Glenn Thomas v. State ( 2011 )

Affirmed and Memorandum Opinion filed May 3, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00653-CR

Glenn Thomas, Appellant

v.

The State of Texas, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 1225340

MEMORANDUM OPINION

Appellant Glenn Thomas appeals the revocation of his community supervision.  In his sole issue on appeal, appellant challenges the sufficiency of the evidence to support his adjudication.  We affirm.

Background

On August 20, 2009, the State charged appellant by indictment for burglary of a habitation with the intent to commit assault against Suzette Thomas.  On September 17, 2009, appellant pleaded guilty to the offense without an agreed recommendation.  The trial court accepted appellant’s plea and sentenced him to six years deferred adjudication of guilt.  On May 20, 2010, the State filed a motion to adjudicate appellant’s guilt, alleging that appellant had violated the terms and conditions of his community supervision by, among other things, failing to report to his community supervision officer on November 5, 2009, and failing to participate in the community service restitution program at a rate of ten hours per month.  Appellant pleaded not true to the allegations in the State’s motion.  After a hearing on July 12, 2010, the trial court found the allegations in the State’s motion were true, revoked appellant’s probation, adjudicated appellant’s guilt to the underlying offense of burglary of a habitation, and sentenced him to seven years’ confinement. 

Standard of Review

In his only issue on appeal, appellant claims that the trial court abused its discretion by finding the State’s allegations true because the State failed to provide sufficient evidence that he had violated the conditions of release on community supervision.

Community supervision is “the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period” of time that generally results in the suspension of a sentence of imprisonment or confinement.  Tex. Code Crim. Proc. Ann. art. 42.12, § 2(2) (West Supp. 2009).  The proceeding to revoke community supervision is not criminal or civil, but rather an administrative proceeding.  Greer v. State, 999 S.W.2d 484, 486 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).  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).  The State has the burden of showing by a preponderance of the evidence that the defendant committed a violation of the conditions of community supervision.  Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).  The preponderance-of-the-evidence standard is met when the greater weight of the credible evidence creates a reasonable belief that the defendant has violated a condition of his community supervision.  Rickels, 202 S.W.3d at 763.  The appellate court will view the evidence in the light most favorable to the trial court’s order.  Moore v. State, 11 S.W.3d 495, 498 (Tex. App.—Houston [14th Dist.] 2000, no pet.).  In determining whether the allegations in the revocation motion are true, the trial court is the sole trier of facts, the judge of the credibility of the witnesses, and the arbiter of the weight to be given to the testimony.  Trevino v. State, 218 S.W.3d 234, 240 (Tex. App.—Houston [14th Dist.] 2007, no pet.).  The violation of a single condition of community supervision will support the trial court’s decision to adjudicate guilt.  Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). 

Analysis

The State alleged in its motion to adjudicate guilt that appellant had failed to comply with the terms and condition of his community supervision by not reporting to his community supervision officer, Celia Rivas, on November 5, 2009.  Rivas testified that appellant did not come in on November 5, 2009, and she did not hear from him that day.  Appellant admitted that he did not report on November 5, 2009, but claimed that his failure to report on November 5, 2009, was an honest mistake and he reported on November 6, 2009. 

Further, as a condition of his community supervision, appellant was required to participate in the community supervision restitution program by performing a total of 200 hours at a rate of ten hours per month.  The State alleged that appellant had not performed his hours at the required rate.  Appellant asserts that there was no testimony on this alleged violation.  To the contrary, Rivas testified that appellant should have completed forty hours by the date of the July 12, 2010 revocation hearing, but had only completed twenty-two hours.  Appellant did not dispute that he had not performed the required number of hours, but explained that he could not perform his hours in March 2010 due to an injury and he had a note from his doctor excusing him from work.  Appellant claimed that he had completed thirty-five hours by the date of the revocation hearing, but admitted that he had not completed the required forty hours. 

Although appellant admits that he did not report to his community supervision on November 5, 2009, or perform his community supervision hours at the specified rate, he provides explanations for not complying with the terms and conditions of his community supervision to excuse such lack of compliance.  The granting of probation creates a contractual relationship between the court and the probationer.  Bowen v. State, 649 S.W.2d 384, 386 (Tex. App.—Fort Worth 1983, pet. ref’d).  The court extends clemency to the probationer if he will keep and perform certain requirements and conditions, the violation of which authorizes the revocation of probation. Id.  The court may revoke community supervision for any violation, including “technical” violations.  Nurridin v. State, 154 S.W.3d 920, 924 (Tex. App.—Dallas 2005, no pet.).  “Technical” violations typically include the probationer’s failure to report to the probation officer, pay community supervision fees, and perform community service at the specified rate.  Coffel v. State, 242 S.W.3d 907, 909 (Tex. App.—Texarkana 2007, no pet.). 

The trial court, as the trier of fact, assessed credibility and the explanations provided and found that appellant had violated the conditions of his community supervision.  The trial court’s decision is supported by the record evidence, which includes appellant’s admissions.  Even if appellant’s violations were “technical” violations, they were nonetheless sufficient to revoke his community supervision.  The resulting seven-year prison sentence is not for appellant’s violations of the conditions of his community supervision, but for the burglary offense to which appellant had previously pled guilty.  We hold that the evidence is sufficient to find that appellant violated two conditions of his community supervision and overrule appellant’s issue.[1]

Having overruled appellant’s sole issue in this appeal, we affirm the judgment of the trial court. 

                                                                        /s/        Sharon McCally

                                                                                    Justice

Panel consists of Justices Anderson, Seymore, and McCally.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] Because the evidence supports the judgment on these two grounds, we need not address appellant’s additional arguments regarding the other violations alleged in the State’s motion to adjudicate guilt.