Michael Wade Riddle v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00180-CR
MICHAEL WADE RIDDLE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 41,428-C
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MEMORANDUM OPINION 1
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Appellant Michael Wade Riddle appeals from the revocation of his
community supervision and resulting sentence. Finding no abuse of discretion in
the revocation, we affirm the trial court’s judgment.
1
See Tex. R. App. P. 47.4.
I. BACKGROUND
A. DEFERRED ADJUDICATION COMMUNITY SUPERVISION
On September 30, 2004, Riddle pleaded guilty to aggravated sexual
assault. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West Supp. 2014). The
trial court deferred adjudicating Appellant’s guilt and placed him on community
supervision for ten years. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a)
(West Supp. 2014). Appellant’s community supervision was governed by several
conditions, including conditions requiring him to (1) “[c]ommit no offense against
the laws of this State or of any other State or of the United States”; (2) “[a]void
injurious or vicious habits, namely alcoholic beverages, marihuana, narcotics or
other habit-forming drugs”; (3) pay monthly court costs, supervision fees, fines,
and sexual-offender fees; and (4) either successfully complete a sexual-abuse-
treatment program “as determined by the treatment specialist(s)” or remain in
such a program until the expiration of Appellant’s community-supervision term.
See id. art. 42.12, §§ 11, 13B(a)(2), 19.
B. ADJUDICATION HEARINGS
On October 30, 2006, the State filed a motion to proceed to adjudicate
Appellant’s guilt, alleging that Appellant had violated the community-supervision
terms. See id. art. 42.12, § 21(e). After the trial court set and reset the hearing
multiple times, Appellant requested the appointment of an expert, which the trial
court apparently granted. On June 4, 2007, the State amended its motion to
proceed to adjudication and alleged that Appellant had violated the four
2
community-supervision terms previously recited. The trial court began a hearing
on the State’s motion to revoke on July 18, 2007.
Appellant pleaded not true to the violation allegations. At the hearing,
Appellant’s community-supervision officer, Michael Richards, testified that on
September 20, 2006, Appellant “admitted to using cocaine for about a month”
when Richards requested that Appellant submit to a random drug test. Richards
further testified that Appellant had failed to pay court costs, supervision fees,
fines, and sex-offender fees.
Emily Orozco, a treatment provider at Appellant’s sex-offender-treatment
program, testified that Appellant had been discharged from the program because
he had repeated contact with children, consorted with “individuals of disreputable
character,” did not cooperate in therapy, continued to have “ongoing deviant and
repeated sexual fantasies” (some of which involved the nine-year-old
complainant in the underlying offense), and committed other offenses, including
assaulting his disabled wife. Orozco summed up why Appellant was discharged
from the program: “He showed a pattern of deliberate chronic violations that not
only violated his stipulation of probation, his treatment agreement, but basically,
he had committed new offenses.”
The State alleged that Appellant had committed the new offense of injury
to a disabled individual, i.e., his wife. See Tex. Penal Code Ann. § 22.04 (West
Supp. 2014). At the revocation hearing, Appellant’s wife testified about the
offense, which occurred on September 10, 2006, while Appellant was high on
3
cocaine. She stated that she must use a walker and, occasionally, a wheelchair.
After the State rested its case, the trial court set the remainder of the adjudication
hearing for August 15, 2007.
On August 7, 2007, Appellant’s counsel, Dorie Glickman, filed a sworn
motion to continue the hearing because she would be on vacation and because
she had not received the court-appointed expert’s curriculum vitae. The trial
court continued the hearing date until October 31, 2007. On October 18, 2007,
Glickman filed a sworn motion to continue the adjudication hearing because the
court-appointed expert, Ron Burks, and a fact witness, Ron Perrett, were not
available to testify on October 31. Glickman stated in the motion that Perrett was
a “necessary” witness who would testify to Appellant’s “character” and “prior
candidacy for supervision.” She further stated that Burks “can evaluate
[Appellant] regarding his present candidacy for sex offender probation, and
whether or not Ms. Orozco’s treatment and administration of [Appellant] falls
within the standard of care.” The trial court denied the motion.
Before the October 31 hearing began, 2 Glickman again raised the motion
to continue on Appellant’s behalf asserting that Perrett, “who had supervised
2
The clerk’s record contains an order purporting to extend the hearing on
the State’s motion from October 31 to November 14. However, the reporter’s
record reflects that evidence on the State’s motion to proceed to adjudication
was heard on October 31. It appears this order actually continued the
punishment hearing and not the adjudication hearing as noted.
4
[Appellant] on probation in the past and was able to work with him for five years,”
was not available to testify. The trial court explained why it denied the motion:
[T]his case has been set and reset on numerous occasions and
usually at the request of [Appellant’s attorney]. In fact, it was reset
specifically for the purposes of allowing experts to come into the fold,
. . . so . . . this matter was originally set . . . in May of 2007. We
eventually got started in July of 2007. . . . Since that time, it’s been
set again on more than one occasion. And it’s . . . time for it to be
moved along.
Glickman called two character witnesses, James Rasmussen and Gary
Southard, who testified to Appellant’s difficult upbringing and to their opinions
that Appellant would be a good candidate for further community supervision.
Glickman also called Dr. John F. Butler, who had reviewed Orozco’s records
regarding Appellant. Butler stated that because Orozco had not evaluated
Appellant’s risk factors or Appellant’s intellectual ability, she could not have
accurately determined the appropriate treatment for him.
After the State and Appellant presented closing arguments, the trial court
concluded that Appellant had committed a new offense by causing injury to a
disabled person, failed to avoid injurious or vicious habits by admitting to cocaine
use, failed to pay court costs, failed to pay supervision fees, failed to pay a sex-
offender fee, and failed to successfully complete the sex-offender program.
Thus, the trial court found those allegations to be true. The trial court found not
true the allegation that Appellant failed to pay a fine. The trial court adjudicated
Appellant guilty of the underlying offense. See id. art. 42.12, §§ 5(b), 21(b-2).
5
Appellant asked for a two-week continuance to gather evidence relevant to
punishment, which the trial court granted to November 14, 2007.
C. PUNISHMENT HEARING
At the November 14 hearing, Appellant’s counsel, Tony Odiorne, 3 stated
that he did not intend to call any witnesses for the purposes of punishment but
wanted to submit a report from Butler, which was still being prepared. 4 The trial
court stated that it would review the report when it was prepared and would then
“determine whether or not there is a need to have any further hearing.” On
November 28, 2007, the trial court set a punishment hearing for December 13,
2007. The next day, Glickman filed a motion to supplement evidence “with a
report by . . . Butler,” which the trial court granted. In the report, Butler
recommended that Appellant “be given a trial of treatment with . . . Burks for a
period of about six months” to fully exhaust “all local re[s]ourses.”
At the hearing on December 13, 2007, another public defender
representing Appellant, Brennon Brady, 5 noted that Glickman was unable to be
present but that he was “ready” and “prepared” to proceed regarding sentencing.
3
Like Glickman, Odiorne was with the public defender’s office and had
represented Appellant since the State filed its motion to proceed to adjudication.
4
The State averred that it would rely on the evidence presented at the
adjudication hearings in arguing the appropriate punishment.
5
Brady was the initial attorney from the public defender’s office whom the
trial court appointed to represent Appellant in the revocation proceeding. The
public defender’s office also represented Appellant in the underlying offense.
6
Brady stated that Appellant was “concern[ed]” that Glickman was not present and
that Appellant desired a continuance, but Brady believed that Glickman’s
absence was not an issue because no evidence would be presented. The trial
court denied the continuance because “there is to be no evidence presented
today, nor are there to be any arguments presented. . . . [A]ll there is left to do is
the sentencing.” Appellant then directly addressed the trial court:
I’ve trusted my attorney. This is twice that she has not been here. I
understand that this Court is trying to dispose of this case. Also,
please understand with this Court that I do have some stuff I would
like to go over my attorney with that I think might make a difference
in this. I do need Dorie Glickman here to take care of this for me as
she has been acting as my attorney. I understand that she has a
family emergency. I was told the same thing the last time we were
here. I don’t know what’s going on, Your Honor, nobody’s told me
anything. But I would like my attorney to be present and I do ask for
that continuance until my attorney can be here.
The trial court again denied Appellant’s motion for a continuance because there
would be no presentation of evidence. Brady asked that Appellant’s objection be
“noted.” The trial court, after stating that it had considered Butler’s report and the
evidence admitted at the adjudication hearings, sentenced Appellant to life
confinement because Appellant had shown “a disregard of the order of
community supervision” and group therapy “did not appear to have any positive
impact on [Appellant] at all.”
7
D. APPEAL
Appellant filed the instant appeal. 6 In seven points, he argues that (1) the
evidence was insufficient to support the trial court’s true findings, (2) the trial
court erred by denying the October 18 motion for continuance, (3) the trial court
erred by refusing to allow closing arguments at the punishment hearing, and (4)
his community-supervision condition regarding his sex-offender program was not
properly modified; thus, it could not serve as a basis for adjudication or
revocation.
II. SUFFICIENCY OF THE EVIDENCE
In his third, fourth, sixth, and seventh points, Appellant argues that the
evidence was insufficient to support the trial court’s findings that he violated his
community-supervision conditions. We conclude that the trial court did not abuse
its discretion by finding these alleged violations true.
A. STANDARD OF REVIEW
We review an order revoking community supervision under an abuse of
discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In a
revocation proceeding, the State must prove by a preponderance of the evidence
that the defendant violated the terms and conditions of community supervision.
6
The court of criminal appeals twice granted Appellant an out-of-time
appeal. Ex parte Riddle, No. WR-78748-02, 2014 WL 1328387, at *1 (Tex. Crim.
App. Apr. 2, 2014); Ex parte Riddle, No. AP-76946, 2013 WL 172825, at *1 (Tex.
Crim. App. Jan. 16, 2013).
8
Hacker v. State, 389 S.W.3d 860, 864–65 (Tex. Crim. App. 2013). The trial court
is the sole judge of the credibility of the witnesses and the weight to be given
their testimony, and we review the evidence in the light most favorable to the trial
court’s ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172,
174 (Tex. Crim. App. [Panel Op.] 1981). If the State fails to meet its burden of
proof, the trial court abuses its discretion in revoking the community supervision.
Cardona, 665 S.W.2d at 493–94. Proof by a preponderance of the evidence of
any one of the alleged violations of the conditions of community supervision is
sufficient to support a revocation order. Moore v. State, 605 S.W.2d 924, 926
(Tex. Crim. App. [Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871
(Tex. Crim. App. [Panel Op.] 1980).
B. APPLICATION
1. Commit New Offense
Appellant argues in his seventh point that the evidence was insufficient to
show that his wife was disabled such that his assault on her constituted an injury
to a disabled individual. 7 See Tex. Penal Code Ann. § 22.04(a). A disabled
person is “a person older than 14 years of age who by reason of age or physical
or mental disease, defect, or injury is substantially unable to protect [herself] from
harm or to provide food, shelter, or medical care for [herself].” Id. § 22.04(c)(3).
Once again, the preponderance of the evidence is a lesser standard of proof than
7
Appellant specifically does not challenge the sufficiency of the evidence to
support a finding that he assaulted his wife.
9
is required in a criminal trial. See Hacker, 389 S.W.3d at 864–65. Thus, a
defendant may be acquitted of a criminal offense and still have his community
supervision revoked based on the same act. Polk v. State, 729 S.W.2d 749, 750
n.1 (Tex. Crim. App. 1987); Black v. State, 411 S.W.3d 25, 30 (Tex. App.—
Houston [14th Dist.] 2013, no pet.).
Here, Appellant’s wife testified that she was thirty-five years old, she
depended on a walker and a wheelchair to get around, and she received social-
security-disability payments. She was disabled after she was assaulted in 1999
and suffered nerve damage. She stated that she was unable to protect herself
from Appellant because of her disability. Two police officers who investigated
Appellant’s wife’s complaint after Appellant assaulted her testified that she was
unable to take care of herself and appeared to be physically and mentally
disabled. This evidence meets the preponderance standard and sufficiently
supported the trial court’s reasonable conclusion that Appellant had violated this
community-supervision condition. See, e.g., Jones v. State, No. 02-12-00199-
CR, 2013 WL 5675360, at *1 (Tex. App.—Fort Worth Oct. 17, 2013, no pet.)
(mem. op., not designated for publication); Miles v. State, 343 S.W.3d 908, 913–
14 (Tex. App.—Fort Worth 2011, no pet.); cf. Morgan v. State, 365 S.W.3d 706,
708–09 (Tex. App.—Texarkana 2012, no pet.) (holding evidence of disability
sufficient to support conviction for injury to a disabled individual). We overrule
point seven.
10
Although sufficient evidence of one violation is enough to support an
adjudication and revocation, we will address Appellant’s remaining sufficiency
arguments in an abundance of caution. See Joseph v. State, 3 S.W.3d 627, 641
(Tex. App.—Houston [14th Dist.] 1999, no pet.).
2. Payment
In point three, Appellant asserts that the evidence was insufficient to show
he failed to pay court costs, the supervision fee, and the sexual-offender fee
because there was no allegation or showing that Appellant’s failure to pay was
intentional or that he had the ability to pay. See Tex. Code Crim. Proc. Ann. art.
42.12, § 21(c).
Richards testified that Appellant made some, but not all, monthly payments
for fees and costs while on deferred adjudication community supervision. He
further stated that Appellant held numerous jobs during this time. Appellant did
not introduce evidence contradicting the fact that he was employed and was able
to make monthly payments. The State showed by a preponderance that
Appellant was able to pay and intentionally did not pay as ordered. Therefore,
the trial court did not abuse its discretion by finding the nonpayment allegations
true. Cf. Brown v. State, 354 S.W.3d 518, 520 (Tex. App.—Fort Worth 2011, pet.
ref’d) (mem. op.) (finding trial court appropriately declined to revoke community
supervision on failure-to-pay basis because State offered no evidence of ability to
pay or that failure was intentional); Corpus v. State, 26 S.W.3d 660, 662 (Tex.
App.—Corpus Christi 2000, no pet.) (applying prior version of section 21(c),
11
which provided inability to pay was affirmative defense that defendant must prove
by a preponderance, and concluding evidence sufficient to show appellant
intentionally failed to make required payments); Joseph, 3 S.W.3d at 641–42
(applying prior statute and concluding evidence sufficient to infer defendant’s
failure to pay was intentional). We overrule point three.
3. Habitual Use of Illegal Drug
In his fourth point, Appellant argues the evidence was insufficient to
support the trial court’s finding that he engaged in the habitual use of habit-
forming drugs because his admitted cocaine use did not qualify as habitual. See
Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)(2).
Appellant’s community-supervision condition mandated that Appellant
“[a]void injurious or vicious habits, namely alcoholic beverages, marihuana,
narcotics or other habit-forming drugs.” Richards testified that Appellant admitted
he had been using cocaine for a month but did not tell Richards “exactly
specifically how many times.” Appellant is correct that a single use of an illegal
drug cannot be characterized as a habit. See Garcia v. State, 571 S.W.2d 896,
900 (Tex. Crim. App. 1978). However, Appellant admitted to Richards that he
had been using cocaine for a month. Further, even though there was evidence
that Appellant had passed a drug test given the week before his admission,
Richards explained that cocaine stays in a user’s system only “for approximately
two to three days,” which would not rule out habitual use. Under the applicable
preponderance standard and viewing the evidence in favor of the trial court’s
12
finding, this evidence was sufficient to create a reasonable belief that Appellant
did not avoid the injurious habit of cocaine use. 8 See generally Hacker, 389
S.W.3d at 865 (explaining preponderance-of-evidence standard). We overrule
point four.
4. Successful Completion of Sexual-Abuse Program
In his sixth point, Appellant contends that the preponderance of the
evidence did not show he violated the condition regarding successful completion
of the sexual-abuse program because he was not allowed to attempt to complete
the program “until [his] term of supervision has expired.” This condition
mandated that Appellant “shall remain in the Sexual Abuse Treatment Program
until the program has been successfully completed, as determined by the
treatment specialist(s), or until [Appellant’s] term of supervision has expired.”
The determination of whether Appellant successfully completed the program was
left to the discretion of the treatment specialists, and the evidence does not show
that they abused their discretion in discharging Appellant from the program. See
Leonard v. State, 385 S.W.3d 570, 577 (Tex. Crim. App. 2012). Appellant’s
8
We disagree with the State’s argument that Appellant’s single use of
cocaine, if only a single use were proven, was sufficient to support adjudication
and revocation because any use of cocaine would have violated the condition.
The cases cited by the State are inapposite because the conditions in those
cases clearly barred injurious habits as well as any use of illegal drugs. See,
e.g., Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977); Kirk v. State,
No. 01-99-01184, 2001 WL 279211, at *1–2 (Tex. App.—Houston [1st Dist.] Mar.
22, 2001, no pet.) (not designated for publication). Appellant’s condition was not
so worded.
13
treatment specialist testified that Appellant was discharged from the program
based on “a pattern of deliberate chronic violations that not only violated his
stipulation of probation, his treatment agreement, but basically, he had
committed new offenses.” Because he was discharged, Appellant could not have
stayed in the program until his supervisory period expired. In short, once
Appellant was discharged, he was unable to attempt to complete the program
before his supervisory period ended. The preponderance of the evidence was
sufficient to support revocation on this basis. See, e.g., Newman v. State, No.
07-10-00016-CR, 2011 WL 691624, at *2–3 (Tex. App.—Amarillo Feb. 28, 2011,
no pet.) (mem. op., not designated for publication). We overrule point six.
III. PROCEDURAL COMPLAINTS
A. DENIAL OF CONTINUANCE
In his first point, Appellant argues that the trial court abused its discretion
by denying his October 18, 2007 sworn, written motion for continuance filed
before the October 31, 2007 adjudication hearing. See Tex. Code Crim. Proc.
Ann. arts. 29.06–.08 (West 2006). In order to show reversible error based on the
denial of a pretrial motion for continuance, Appellant must show both that the trial
court erred in denying the motion and that the lack of a continuance harmed him.
See Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010). Trial court
error requires “a showing that the case made for delay was so convincing that no
reasonable trial judge could conclude that scheduling and other considerations
as well as fairness to the state outweighed the defendant’s interest in delay of the
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trial.” Id. To establish harm, the record must show with “considerable specificity”
how Appellant was harmed by the absence of more preparation time than he
actually had. Id. at 842.
Appellant has failed to meet this high standard. The trial court explained
its analysis behind the denial—multiple, previous delays at Appellant’s request—
which was reasonable and indicated that Appellant’s case for delay did not
outweigh other, valid considerations. See, e.g., Rogers v. State, No. 14-12-
00546-CR, 2013 WL 1867080, at *4–5 (Tex. App.—Houston [14th Dist.] May 2,
2013, no pet.) (mem. op., not designated for publication). Further, the record is
not sufficiently specific to demonstrate that Appellant was harmed. 9 Appellant
asserts in his brief that Perrett “may have conducted an . . . assessment and may
have determined the IQ of [Appellant] prior to setting up the treatment program
for him, thus explaining the reason [Appellant] appeared to have dropped in his
performance after the program provider changed.” This is too speculative to
establish the requisite quantum of harm. 10 See, e.g., Harrison v. State, 187
S.W.3d 429, 434 (Tex. Crim. App. 2005). We overrule point one.
9
The court of criminal appeals has held that a motion for new trial,
accompanied by an evidentiary hearing, usually is necessary to show harm from
any trial court error in denying a motion for continuance. See, e.g., Gonzales,
304 S.W.3d at 842–43. Appellant did not file a motion for new trial.
10
We note that the evidence Appellant claims would have been introduced
through Perrett’s testimony—the lapses in Orozco’s treatment—was admitted
through Butler’s testimony at the October 31 adjudication hearing. This further
undermines Appellant’s argument that he was harmed by the denial of a
continuance.
15
B. DENIAL OF CLOSING ARGUMENT
In his second point, Appellant contends that the trial court abused its
discretion by refusing to allow closing argument before the trial court imposed
punishment. Neither Appellant nor his attorneys objected to the trial court’s
stated intention to decide punishment without closing arguments. Appellant
asked for a continuance until Glickman could be present but did not indicate that
he desired to make a closing argument to the trial court. We conclude Appellant
has forfeited any error arising from the trial court’s decision to decide punishment
without closing arguments. See Habib v. State, 431 S.W.3d 737, 740–41 (Tex.
App.—Amarillo 2014, pet. ref’d). See generally Tex. R. App. P. 33.1(a). We
overrule point two.
C. MODIFICATION OF CONDITION
Appellant argues in his fifth point that the trial court abused its discretion by
revoking his probation on the basis of the successful-completion condition
because the condition was not properly modified to allow him to attend Orozco’s
treatment program instead of Perrett’s treatment program.
First, because we have concluded that the preponderance of the evidence
sufficiently supported the trial court’s decision to revoke Appellant’s community
supervision on the basis of three other condition violations, the alleged failure to
properly modify this condition would not result in relief to Appellant. See, e.g.,
Moore, 605 S.W.2d at 926 (holding proof by a preponderance of one violation
sufficient to support revocation order).
16
Second, the record reveals that Appellant attended the program approved
by the county’s community-supervision department as the condition required:
“The Defendant is ordered to appear in person, as ordered by the Community
Supervision and Corrections Department for treatment in the Sexual Abuse
Treatment Program on an out-patient basis.” [Emphasis added.] The county
changed the approved provider of the program approximately one year after
Appellant began participating in the program. The community-supervision
condition required Appellant to participate in the program approved by the
county’s community-supervision department. Because the condition required
Appellant to participate in the county’s approved program, no modification was
needed to compel Appellant to participate in the approved program when the
county changed the approved provider of the program. Cf. Tex. Code Crim.
Proc. Ann. art. 42.12, § 10(d) (allowing modification of community-supervision
conditions if defendant is transferred to “different programs within the community
supervision continuum of programs and sanctions”); Witkovsky v. State, 320
S.W.3d 425, 430–31 (Tex. App.—Fort Worth 2010, pet. ref’d, untimely filed) (op.
on PDR) (concluding modification requirements of section 10 applied when State
conceded probation officer transferred defendant from one approved treatment
program to another program within continuum of county’s approved treatment
programs). We overrule point four.
17
IV. CONCLUSON
Finding no abuse of discretion and having overruled Appellant’s points, we
affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: WALKER, MCCOY, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 23, 2014
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