Michael J. Galloway v. State ( 2014 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00157-CR
MICHAEL J. GALLOWAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court 4 of Dallas County
Dallas County, Texas
Trial Court No. F-1054301-K
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
In Dallas County, Texas, 1 Michael J. Galloway entered an open plea of guilty to
abandoning a child with intent to return. The trial court deferred adjudication of guilt and placed
Galloway on community supervision for a period of four years. About two years later, the State
filed a motion to adjudicate guilt, alleging that Galloway violated six terms of his deferred
adjudication community supervision. Galloway pled “not true” to the allegations. After a
hearing, the trial court granted the State’s motion, found Galloway guilty of violating four of his
supervision conditions, sentenced him to eighteen months’ confinement, and assessed court costs
of $290.02.
On appeal, 2 Galloway contends that the trial court erred (1) by allowing a Dallas County
officer to testify from the reports prepared by a nontestifying Collin County community
supervision officer, (2) by entering a judgment reflecting that he pled “true” to the State’s
revocation allegations, (3) by entering a judgment indicating that he violated all of the
community supervision terms alleged in the State’s motion to adjudicate, and (4) by assessing
court costs against him in the absence of sufficient evidence to support such an assessment.
We modify the judgment to reflect (1) a plea of not true and (2) a finding that Galloway
violated only conditions H, K, R, and U of his community supervision as alleged in the State’s
motion to adjudicate. We affirm the judgment, as modified.
1
Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We decide
this case pursuant to the precedent of the Fifth Court of Appeals. See TEX. R. APP. P. 41.3.
2
Galloway also appeals a separate conviction of abandoning a child with intent to return resulting in a sentence of
eighteen months’ imprisonment in our cause number 06-13-00158-CR.
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I. Background
The State’s motion to adjudicate guilt alleged that Galloway violated six terms of
community supervision by failing to pay various fees, failing to submit a required urine sample,
and/or failing to participate, as directed, in the Smart Start In-Home Program. It was also alleged
that he consumed an alcoholic beverage. Galloway pled not true to the allegations.
At trial, the State’s only witness, Susan Webster, a Dallas County community supervision
officer, testified, over Galloway’s objection, from documents relating to Galloway’s community
supervision. 3 The documents and Webster’s testimony therefrom, indicated that Galloway had
violated several provisions of his community supervision. Following Webster’s testimony, the
State rested, and Galloway and his wife, Victoria, testified for the defense.
II. Standard of Review
We review a decision to adjudicate guilt in the same manner as we review a decision to
revoke community supervision—for abuse of discretion. TEX. CODE CRIM. PROC. ANN.
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Galloway objected and in his first two points of error argues that Webster’s testimony was hearsay and also
inadmissible under Crawford v. Washington, 541 U.S. 36 (2004), and the Sixth Amendment because, as the records
were prepared by others, Webster had no personal knowledge of the records’ allegations. As a result, Galloway
argues he was deprived of the fundamental right to confront the witnesses. The State responds by citing Gutierrez v.
State, an unpublished case involving a similar petition to adjudicate. See Gutierrez, No. 05-11-01380-CR, 2013 WL
3533549, at *1 (Tex. App.—Dallas July 12, 2013, pet. ref’d) (mem. op., not designated for publication). Gutierrez
cites a line of cases holding that the Confrontation Clause does not apply during revocation hearings because they
are administrative rather than judicial proceedings. See id. (citing Wisser v. State, 350 S.W.3d 161, 164 (Tex.
App.—San Antonio 2001, no pet.); Trevino v. State, 218 S.W.3d 234, 239 (Tex. App.—Houston [14th Dist.] 2007,
no pet.); Smart v. State, 153 S.W.3d 118, 121 (Tex. App.—Beaumont 2005, pet. ref’d)). Although we are obligated
to follow the published precedent of the Dallas Court of Appeals in cases transferred from the Fifth Appellate
District, Gutierrez is an unpublished opinion and is not a binding precedent. More importantly, the cases cited in
Gutierrez were decided before Ex parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012), in which the Texas Court of
Criminal Appeals disavowed its prior cases holding that a community supervision revocation hearing was merely an
administrative proceeding and holding, instead, that revocation hearings are judicial proceedings subject to the rules
governing judicial proceedings. Id. at 212. Adjudication hearings are governed by the same rules as hearings to
revoke community supervision and are, in practical terms, hearings on whether to revoke the defendant’s deferred
adjudication community supervision. Leonard v. State, 385 S.W.3d 570, 572 n.1 (Tex. Crim. App. 2012). With
Galloway’s admissions that he violated conditions of his community supervision, this issue is moot.
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art. 42.12, § 5(b) (West Supp. 2013); Little v. State, 376 S.W.3d 217, 219 (Tex. App.—Fort
Worth 2012, pet. ref’d) (citing Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006));
see In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.—Texarkana 2003, no pet.). In an adjudication
hearing, the trial court is the sole trier of the facts and determines the credibility of the witnesses
and the weight given to their testimony. T.R.S., 115 S.W.3d at 321. A trial court’s decision to
revoke community supervision and proceed to adjudication is examined in the light most
favorable to the trial court’s order. Id.
To revoke deferred adjudication community supervision, the State must prove by a
preponderance of the evidence every element of at least one ground for revocation. TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 10 (West Supp. 2013); T.R.S., 115 S.W.3d at 320. Here, if the
greater weight of credible evidence created a reasonable belief that Galloway violated a single
condition of his community supervision, then an abuse of discretion has not been shown. See
Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); T.R.S., 115 S.W.3d
at 321 (citing Stevens v. State, 900 S.W.2d 348, 351 (Tex. App.—Texarkana 1995, pet. ref’d)).
In its amended motion to adjudicate, the State alleged that Galloway violated condition H
by failing to pay court costs and fines; condition J by failing to pay community supervision fees;
condition K by failing to pay a Crime Stoppers fee; condition N by failing to submit to non-
dilute, random urine-sample testing as directed; condition R by consuming alcohol while at the
Salvation Army on August 22, 2012; and condition U by failing to participate in the Smart Start
In-Home Program as directed. The trial court struck the State’s allegation regarding condition N
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and then found that Galloway had violated conditions H, K, R, and U, but did not find a violation
of condition J.
II. Galloway’s Testimony is Sufficient Evidence
Galloway testified in his own defense, and his testimony, alone, supports revocation.
Galloway agreed that he still owed some fees, and he admitted to testing positive for alcohol
consumption. On cross-examination, the following exchange took place:
Q: . . . you agree to Condition R, the one about, you know,
consuming alcohol at the Salvation Army on August 22, 2012. That happened,
didn’t it?
A: That happened.
Q: That is true?
A: That is true.
There is sufficient evidence in the record from which the trial court could have found by
a preponderance of the evidence that Galloway violated a condition of his supervision.
Accordingly, we overrule these points of error.
III. Modification of True Plea
Galloway also contends that the judgment inaccurately reflects (1) that he pled true to the
State’s revocation allegations and (2) that he violated the conditions of his community
supervision as alleged in the State’s motion. The State agrees with Galloway and asks that we
modify the judgment.
The judgment reflects that Galloway pled true to the State’s allegations, and the judgment
makes a finding that, “[w]hile on community supervision, Defendant violated the terms and
conditions of community supervision as set out in the State’s AMENDED Motion to Adjudicate
Guilt as follows: See attached Motion to Adjudicate Guilt.” However, the reporter’s record
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establishes that Galloway pled not true to all of the allegations in the State’s motion and that the
trial court returned true findings only on the allegations regarding conditions H, K, R, and U.
The Texas Rules of Appellate Procedure give this Court authority to reform judgments and
correct typographical errors to make the record speak the truth. TEX. R. APP. P. 43.2; French v.
State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Gray v. State, 628 S.W.2d 228, 233 (Tex.
App.—Corpus Christi 1982, pet. ref’d). We hereby modify the trial court’s judgment to
accurately reflect that Galloway pled not true to the State’s allegations and to accurately reflect
the trial court’s findings that Galloway violated conditions H, K, R, and U as set out in the
State’s amended motion to adjudicate guilt.
IV. Court Costs
In his final point of error, Galloway argues that there is insufficient evidence to support
the trial court’s assessment of $290.02 in court costs against him.
“A clerk of a court is required to keep a fee record, and a statement of an item therein is
prima facie evidence of the correctness of the statement.” Owen v. State, 352 S.W.3d 542, 547
(Tex. App.—Amarillo 2011, no pet.) (citing TEX. CODE CRIM. PROC. ANN. art. 103.009(a), (c)
(West 2006)). “A cost is not payable by the person charged with the cost until a written bill is
produced or is ready to be produced, containing the items of cost, signed by the officer who
charged the cost or the officer who is entitled to receive payment for the cost.” TEX. CODE CRIM.
PROC. ANN. art. 103.001 (West 2006). “In other words, a certified bill of costs imposes an
obligation upon a criminal defendant to pay court costs, irrespective of whether . . . that bill is
incorporated by reference into the written judgment.” Owen, 352 S.W.3d at 547.
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The clerk’s record in this case did not originally include a bill of costs. Following the
precedent of the Dallas Court of Appeals, we ordered the Dallas County District Clerk to prepare
and file an itemized bill of costs. See Franklin v. State, 402 S.W.3d 894, 895 (Tex. App.—
Dallas 2013, no pet.). In response, we received an unsigned, unsworn computer printout
supporting the amount of costs along with a “Bill of Costs” certification signed by the Dallas
County District Clerk averring that the printout constitutes “costs that have accrued to date.”
The Dallas Court of Appeals has held that this type of filing constitutes a bill of costs. Crain v.
State, No. 05–12–01219–CR, 2014 WL 357398, at *1 n.1 (Tex.App.—Dallas Jan. 31, 2014, no
pet. h.) (mem. op., not designated for publication) (citing Coronel v. State, 416 S.W.3d 550, 555
(Tex. App.—Dallas 2013, pet. ref’d)).
Because the supplemental record contains a bill of costs supporting the amount assessed,
Galloway’s court-costs issue is moot. See Franklin, 402 S.W.3d at 895. We overrule this point
of error.
We affirm the trial court’s judgment, as modified.
Jack Carter
Justice
Date Submitted: March 31, 2014
Date Decided: May 22, 2014
Do Not Publish
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