Anthony Sean Cullever v. State ( 2011 )

Opinion issued February 10, 2011

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-09-00889-CR

———————————

Anthony Sean Cullever, Appellant

V.

The State of Texas, Appellee

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Case No. 07CR0819

MEMORANDUM OPINION

          Appellant Anthony Sean Cullever pleaded guilty to the offense of indecency with a child.  See Tex. Penal Code Ann. § 21.11 (West Supp. 2010).  The trial court deferred adjudication of guilt and placed Cullever on community supervision.  The State filed a motion to revoke, alleging several violations of the conditions of Cullever’s community supervision.  The trial court granted the motion, revoked community supervision, and sentenced Cullever to 8 years in prison.  In his sole issue, Cullever argues that the trial court abused its discretion in revoking community supervision.  We affirm.

Background

          On October 18, 2007, Cullever pleaded guilty to the offense of indecency with a child.  He signed written admonishments acknowledging that he understood the consequences of his plea and certifying that he was mentally competent.  Pursuant to a plea agreement, the trial court deferred adjudication of guilt and placed Cullever on community supervision for 8 years.  The conditions of his community supervision included requirements that he: (1) pay a supervision fee of $40.00 per month; (2) pay $849.17 for attorney’s fees at a rate of $10.00 per month; (3) pay $25.00 to Crime Stoppers; (4) pay $5.00 per month to the Sexual Assault Program Fund; (5) perform 240 hours of community service at a rate of no less than 16 hours per month; and (6) attend psychological counseling sessions for sex offenders.  The State filed a motion to revoke community supervision after Cullever failed to pay the above fees, failed to complete community service at the required rate, and was discharged from counseling.

          At the hearing, Cullever pleaded true to the State’s allegation that he failed to pay his community supervision fees, court costs, attorney’s fees, Crime Stoppers fee, and sexual assault program fine. He pleaded not true to the allegation that he had been discharged from psychological counseling and not true to the allegation that he had failed to perform community service.

          Cullever testified that he found a job driving a shuttle bus at the airport where he worked from January to August 2008.  He was paid $9.25 per hour and worked approximately 5 to 7 days per week. Cullever testified that even though he was employed, he did not have the ability to pay the fees because his living expenses were high.  Cullever was fired in August and had to move into a homeless shelter.  While he was there, he spent time applying for jobs and would drive the other residents around in exchange for gas money.  Cullever also testified that he received some money from his brother.  Community Supervision Officer W. Ordaz testified that Cullever made only two partial fee payments—one in January 2008 and one in March 2008, which covered only a portion of his community supervision fees and court costs.  He testified that Cullever had not made any other attempts to pay the required fees.  Ordaz testified that he received a report in December 2008 indicating that Cullever had become homeless and was living at a shelter.  Ordaz agreed that a homeless person would have difficulty paying fees but testified that Cullever was working for several months before he became homeless and made only two payments during that time.

In regard to Cullever’s failure to complete 240 hours of community service at a rate of 16 hours per month, Ordaz testified that Cullever had completed 35½ hours of community service in the 16 months he had been on community supervision.  Cullever did not testify regarding his failure to complete his community service hours at the required rate.

J. O’Brien, a licensed sex offender treatment provider, testified that Cullever was discharged from the treatment program because he failed to make progress in the treatment program, did not complete homework assignments, was absent from and did not participate in group therapy sessions, came late to meetings, and failed to pay for counseling services.  She testified that Cullever’s performance during therapy sessions was “unacceptable” during the first month and improved only slightly during the following months. His progress declined significantly in October and November 2008.  Cullever was eventually terminated in January 2009, and O’Brien gave him several referrals for other treatment facilities.  She also encouraged Cullever to get a psychiatric evaluation on several occasions, but he did not make an appointment until after his treatment was terminated.  Ordaz testified that he received reports that Cullever had missed counseling several times and that he was disruptive during the group therapy session.  Cullever testified that he did not talk in group therapy sessions because he is shy and “not really a talker.”  He further testified that he thought that he was making good progress, but after he lost his job, he became more depressed.  Cullever stated that during this time he stopped taking medication because he “felt that was a crutch to keep somebody, you know, doing what they’re supposed to do.”  He testified that after he was terminated from counseling, he realized that he needed to get back on the medication and he made an appointment with a psychiatrist at the Mental Health and Mental Retardation Authority of Harris County.  He was diagnosed with schizoaffective disorder and bipolar disorder and placed on medication. He testified that he has since been taking his medication as prescribed.

          Cullever’s attorney questioned both Ordaz and O’Brien about Cullever’s mental state during the time he was on community supervision. Ordaz testified that he had not conducted a psychological evaluation because the records did not show that Cullever had a mental health disorder and because he did not initially indicate that he had any mental health issues.  Ordaz later learned that Cullever was bipolar, but he did not conduct a psychological evaluation at that time because Cullever stated that he was taking medication to control the disorder.  Ordaz testified that he did not know that Cullever had been diagnosed with schizophrenia when he filed the motion to revoke and that such knowledge would have factored into his decision to file the motion.  O’Brien testified that when Cullever was attending counseling sessions, she was concerned that he might have a personality disorder.  She referred him to psychiatric centers and psychiatrists on several occasions, but Cullever never sought further treatment. She also testified that the diagnosis partially explained Cullever’s behavior during counseling.

          After hearing the evidence, the court found that all of the allegations in the State’s motion to revoke were true.  The trial court found Cullever guilty of the offence of indecency with a child, revoked his probation, and sentenced him to 8 years’ confinement in prison.  Cullever timely filed a notice of appeal, and on appeal he argues that the trial court abused its discretion in granting the State’s motion to revoke community supervision.

Analysis

          In his sole issue on appeal, Cullever argues that the trial court abused its discretion in granting the State’s motion to revoke community supervision because:  (1) there was insufficient evidence that his failure to pay fees and fines was not the result of his inability to pay; (2) there was insufficient evidence that his failure to complete community service was not the result of his inability to pay; (3) the motion was insufficient to provide notice that he was discharged from counseling for reasons that would constitute a violation of the terms of his probation; and (4) there was insufficient evidence to establish that he was discharged from counseling for reasons that constitute a violation of the terms of his probation.

Our review of a trial court’s order revoking community supervision is limited to determining whether the trial court abused its discretion.  Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).  The trial court abuses its discretion in issuing the order to revoke if the State fails to meet its burden of proof.  Greathouse v. State, 33 S.W.3d 455, 458 (Tex. App.—Houston [1st Dist.] 2000, pet ref’d).  We examine the evidence in the light most favorable to the trial court’s order.  Id. The trial judge is the sole trier of the facts and determines the credibility of the witnesses and the weight to be given to their testimony.  Taylor v. State, 604 S.W.2d 175, 175 (Tex. Crim. App. 1980); Amado v. State, 983 S.W.2d 330, 332 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). 

In a community supervision revocation hearing, the State must prove by a preponderance of the evidence that the probationer violated the terms and conditions of community supervision.  Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Smith v. State, 790 S.W.2d 366, 367 (Tex. App.—Houston [1st Dist.] 1990, writ ref’d).  This standard is met when the greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of his community supervision.  Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983); Akbar v. State, 190 S.W.3d 119, 123 (Tex. App.—Houston [1st Dist.] 2005, no pet.).  When several violations are found by the trial court, we will affirm the order revoking community supervision if the State proved any violation by a preponderance of the evidence.  Sanchez v. State, 603 S.W.2d 869, 870–71 (Tex. Crim. App. 1980); Akbar, 190 S.W.3d at 123.

The unrebutted testimony of Officer Ordaz established that Cullever failed to complete his court-ordered community service at the required rate.  At the hearing, Cullever did not testify about his failure to complete the required community service hours.  He argues on appeal, however, that it was implicit in his testimony that his inability to pay community supervision fees impacted his ability to perform community service.  Relying on Code of Criminal Procedure article 42.12, section 21(c), Cullever argues that the State had an affirmative burden to prove that his financial disability did not impact his ability to perform community service.  That provision is inapplicable because it only applies when the State’s motion to revoke is based on the probationer’s failure to pay attorney’s fees, community supervision fees, or court costs.  See Tex. Code Crim. Proc. Ann. art. 42.12, § 21(c) (West Supp. 2010).  In a community supervision revocation hearing at which it is alleged only that the defendant violated the conditions of community supervision by failing to pay appointed counsel, community supervision fees, or court costs, the State must prove by a preponderance of the evidence that the defendant was able to pay and did not pay as ordered by the judge.  Id.  When, as in this case, the motion to revoke is filed on grounds other than those listed in the statute, article 42.12, section 21(c) does not apply.

The order granting community supervision required Cullever to perform 240 hours of community service at a rate of no less than 16 hours per month until completed.  Over the course of over 16 months, Cullever only completed 35½ of 240 required hours. Cullever did not testify regarding his failure to complete the required community service hours.  We hold that the trial court did not abuse its discretion because the evidence was sufficient to show, by a preponderance of the evidence, that Cullever failed to complete the required hours of community service at the required rate.  Because this violation provides a valid basis for revocation of community supervision, we do not address Cullever’s remaining arguments.  See Canseco v. State, 199 S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).  Cullever’s sole issue is overruled.

Conclusion

          We affirm the judgment of the trial court.

                                                                   Michael Massengale

                                                                   Justice

Panel consists of Justices Keyes, Sharp, and Massengale.

Do not publish.  Tex. R. App. P. 47.2(b).