Thomas Clark v. State ( 2018 )

NUMBER 13-17-00364-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THOMAS CLARK, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Benavides
Appellant Thomas Clark appeals his probation revocation and sentence imposed
by the trial court. By two issues, Clark argues that: (1) the evidence was insufficient to
justify the trial court’s revocation of probation and (2) the trial court’s sentence of
imprisonment was constitutionally disproportionate and excessive. We affirm.
I. BACKGROUND
In August 2011, Clark pleaded guilty to eight counts of aggravated sexual assault
of a child, a first-degree felony, and was sentenced to ten years’ deferred adjudication
probation. See TEX. PENAL CODE ANN. § 22.021 (West, Westlaw through 2017 1st C.S.).
In July 2013, the State filed its first motion to adjudicate probation. The State
alleged: (1) Clark was unable to pay his urinalysis (UA) fee; (2) Clark was discharged
from Hamilton Group Psychology’s sex offender treatment program due to a lack of
progress in January 2013; and (3) Clark was discharged from Family Counseling’s sex
offender treatment program for failing to accept responsibility in June 30, 2013. After
Clark entered a plea of not true, the trial court found the allegations true, continued Clark
on probation and ordered the following sanctions: (1) zero tolerance, (2) thirty days’
confinement in the Nueces County Jail, and (3) to re-enter the sex offender treatment
program.
In September 2016, the State filed its second motion to revoke probation. In the
second motion, the State alleged that: (1) Clark had failed to pay court costs, a sex
offenders fee, monthly supervision fee, and his UA fee; (2) Clark was discharged from
Grey Matters sex offender treatment program in August 2016; (3) Clark failed to schedule
a polygraph within sixty days of the trial court order; and (4) Clark had access to the
internet on his cellular phone in violation of the terms of his probation. In October, Clark
entered a plea of true to the allegations. The trial court elected to continue him on
probation a second time and ordered the following sanctions: (1) zero tolerance, (2) sixty
days’ confinement in the Nueces County Jail, and (3) ordered him to re-enter the Grey
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Matters sex offender treatment program.
In February 2017, the State filed its third motion to revoke probation. In the third
motion, the State alleged that: (1) Clark failed to pay court costs, his sex offender fee,
and a monthly supervision fee; and (2) was discharged from the Grey Matters sex
offender treatment program in February 2017.
The trial court held a hearing regarding the allegations in the State’s motion to
revoke probation. Clark pleaded not true to all allegations. The witnesses who testified
were Jennifer Saenz, the custodian of records for adult probation; Leigh Motes and
Sharon Sanders, the co-owners of Grey Matters, the sex offender treatment program
Clark attended; and Antonio Clark (Antonio), the appellant’s brother.
Saenz testified based on the probation department’s records. She stated the
department records showed that Clark received $953 from a disability check and $120 in
food stamps. She stated that Clark self-reported paying $349 for rent to Antonio and
$204 in child support. Saenz knew Clark’s attorney was court-appointed and he was
required to pay other costs as a condition of probation, as well as his sex offender
treatment program costs.
Motes testified that she knew Clark from Hamilton Group Psychology, as well as
Grey Matters.1 Clark was on a zero-tolerance contract2 with Grey Matters, after being
1 It appears Hamilton Group Psychology became Grey Matters during the term of Clark’s
probation.
2 The zero tolerance contract contained the following conditions: (1) Clark could have no
excused absence for the first 90 days, including medical appointments that could have been made on other
days; (2) Clark could have no unexcused absences for the first 180 days and could not be late (including
being tardy); (3) the weekly treatment fee was $45.00 and Clark would be turned away from the session if
he did not have the full amount; (4) Clark would complete two homework assignments per month; and (5)
after 90 days, Clark would have an individual session with a provider to assess his progress in the program,
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discharged five prior times. Motes stated Clark knew he had to have the $45.00 fee
available to participate in each session, as well as complete homework assignments due
based on the time he has been involved in their program and conditions of the contract.
Motes explained that Clark attended nine sessions from December 8, 2016 to
February 22, 2017 when he was discharged from the program. In December 2016, Clark
attended on the 8th and brought homework,3 the 15th and brought homework, the 22nd
and brought homework, and the 29th and had no homework. Motes agreed that Clark
was able to pay each time and complied with the homework requirement for the month of
December. In January 2017, Clark attended on the 5th with homework, but it was not
acceptable, the 12th with homework, on the 19th with no homework, and on the 26th with
no money for the session fee and no homework. Motes stated that Clark was allowed to
stay on the 26th even though he did not bring the required funds. She also explained
that even though Clark brought homework on the 5th, it was not acceptable, but they
made corrections to it and Clark was asked to complete the corrections at home and re-
present it to the group. Motes stated that Clark never brought the January 5th homework
back to the group session. In February 2017, Clark attended on the 2nd with no
homework, but paid a $90 fee for that session and the session on January 26th. On the
9th, Clark was absent, but later brought an excuse from his doctor and was given credit,
even though the absence was a violation of the contract. On the 16th, Clark showed
without the fees again and was asked to leave. Motes filed a report with probation and
costing $90.00. Any violation would be referred to the probation department. Clark initialed the conditions
and signed the contract on December 8, 2016.
3 Clark brought the required fees to participate unless otherwise noted.
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discharged Clark from the program for committing multiple violations of the contract.4
Motes testified that Clark was not progressing at a normal pace due to his lack of
homework. Motes explained that the program consists of eight modules and in over six
years, Clark was working in module three. Although Clark argued the lack of progress
was due to his low intellectual state,5 Motes stated that Clark could participate in the
sessions when he wanted to and could complete the homework. Even though Grey
Matters could adjust the program and make allowances for low intellectual functioning,
Motes believed that Clark never showed or expressed a need for the accommodations.
Motes also explained to the court that people can actively participate in sessions
without the homework, class can be made up later in the week if someone does not have
the fees available, and if someone came weekly and participated, the eight modules could
be completed in two and a half years. She stated that after giving Clark chances by
letting prior violations go, she dismissed him for violation of the homework requirement,
violation of the absence conditions, and lack of fees.6
Sanders testified that she completed the testing of Clark, but IQ is not determined
based on one test. Sanders stated that treatment is based on her testing and adjusted
as needed due to the results. She felt that although Clark tested at “borderline
4 Although Clark included the $90 individual session fee in determining the amount necessary per
month, Clark had not been ordered to participate in an individual session at the time he was discharged.
Motes stated that it was required after the first 90 days, and then it would be required as necessary
throughout the duration of the program.
5 Clark tested at as “borderline intellectual functioning,” meaning he is “below low average but
above. . . what the public would call mental retardation” according to Sanders’s IQ testing.
6 During the hearing, the State agreed to not consider the other lacking fees as part of the
revocation.
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intellectual functioning,” he should have been able to complete the modules easily.
Sanders also agreed that she was not in the treatment room during sessions.
Antonio testified that Clark lives with him and his family. He did agree that he
asked Clark for rent: $300 in December, $400 in January, and $300 in February for bills
and other costs. Antonio stated that Clark lives on a limited income and receives a
disability check and food stamps. Antonio knew Clark was attempting to comply with the
terms of his probation but was unaware that Clark did not comply with the treatment
program conditions. Antonio stated that the Grey Matters “ladies” were always adding
costs to Clark, which was why he was not complying.
The trial court found all the allegations in the revocation to be true and proceeded
to punishment. At punishment, B.S., the complainant in the underlying sexual assault
case, Jaime Gonzales, Clark’s probation officer, and Antonio testified.
B.S. testified that she was still traumatized from the abuse, which occurred when
she was five years old. She also stated that she occasionally sees Clark in the Corpus
Christi area and he acknowledges her and either makes faces or “flips her off.” B.S.
asked the trial court to send Clark to prison.
Antonio testified that Clark is a good person and tries to help his family out.
Antonio explained how Clark took care of their mother and helped him deal with his PTSD.
Antonio did not think Clark should go to prison.
Gonzales stated that Clark had been discharged from both of the sex offender
treatment programs offered. Gonzales testified that at a prior revocation hearing, he
understood that Clark would live with Antonio, so he would be able to afford paying the
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treatment costs. Gonzales stated that Clark did tell him on February 15th and 23rd that
he did not have the fees for his treatment session the following day. 7 Gonzales agreed
he did not have problems with Clark reporting and abiding by his curfew. He also testified
that he did not look into other sex offender treatment programs because after Clark’s
second revocation proceeding, Gonzales understood that the living arrangement would
prevent money from being an issue.
At the conclusion of the revocation hearing, the trial court took into account the
prior attempts to help Clark comply. The court stated:
You have had chances, after chances, after chances. You had your first
motion to revoke probation, and then a second motion to revoke probation.
After the first one, you were given another opportunity to try to get back on
track. There were some other issues besides payment, obviously. The
next motion to revoke your probation I then put you in – on zero tolerance
because we came up with a solution. And, you know, your attorney is
quoting me from my last hearing saying I won’t put somebody in prison for
being indigent, and I a hundred percent agree with that. I would not do
that.
The trial court adjudicated Clark’s guilt and sentenced him to fifty years’ imprisonment in
the Texas Department of Criminal Justice–Institutional Division. This appeal followed.
II. EVIDENCE WAS SUFFICIENT
By his first issue, Clark alleges the evidence was insufficient to justify the
revocation.
A. Standard of Review
“Appellate review of an order revoking probation is limited to abuse of the trial
court’s discretion.” Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006)
7 Clark had been discharged prior to the February 23rd statement.
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(quoting Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)). In determining
questions regarding sufficiency of the evidence in a probation revocation case, the burden
of proof is by a preponderance of the evidence. Id. The court of criminal appeals has
stated that “an order revoking probation must be supported by a preponderance of the
evidence; in other words, that greater weight of the credible evidence which would create
a reasonable belief that the defendant has violated a condition of his probation.” Id. at
763–64 (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)).
B. Applicable Law and Discussion
Although the crux of Clark’s argument during the probation revocation hearing was
his inability to afford the treatment fees, the State alleged two allegations in their motion.
The conditions contained in the motion to revoke were (1) to pay additional court costs,
sex offenders fees, and a monthly supervision fee and (2) Clark was to attend and
participate in a sex offender treatment program and was unsuccessfully discharged from
the program.
Texas has an “ability-to-pay” statute, which requires the State to prove that a
defendant was able to pay and failed to pay certain fees. Gipson v. State, 383 S.w.3d
152, 157 (Tex. Crim. App. 2012). In Gipson, the trial court revoked the defendant’s
probation based on a failure-to-pay allegation alone. See id. at 153. Here, although the
State did allege a failure-to-pay, the hearing centered around Clark’s failure to comply
with the sex offender treatment program rules. Although he claimed he was mainly
discharged for his inability to pay a $45 fee to attend counseling sessions, the State put
on evidence that he was discharged for his failure to comply with the zero-tolerance
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contract, based on absences, homework requirements, and fees.
After hearing the evidence, the trial court addressed all the violations of the
contract. The trial court acknowledged that Clark received a disability check and had
limited income, but also heard evidence of his attendance issues and lack of homework
assignments. Motes testified that Clark knew what was required of him since he had
been in their program for over six years and agreed to the zero-tolerance contract. Clark
attended and participated upon starting the program, but his progress seemingly dwindled
as the weeks passed.
Since it was the third motion to revoke, the trial court stressed how it had given
Clark multiple opportunities to come into compliance and finish the treatment, but he
refused to be successful. Therefore, the trial court found all the State’s allegations true
and sentenced Clark to imprisonment.
The trial court did not abuse its discretion for finding the allegations in the motion
to revoke true and weighed the history of the case in determining its sentence. We
overrule Clark’s first issue.
III. EXCESSIVE SENTENCING
By his second issue, Clark argues that the trial court’s sentence of imprisonment
constituted a constitutionally excessive sentence.
A. Applicable Law
The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST.
amend. VIII. Even though within the range permitted by law, a sentence may
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nonetheless be disproportionate to the gravity of the offense. See Ex parte Chavez, 213
S.W.3d 320, 323–24 (Tex. Crim. App. 2006).
To preserve error for appellate review, the complaining party must present a timely
and specific objection to the trial court, and obtain a ruling. TEX. R. APP. P. 33.1(a). A
party’s failure to specifically object to an alleged disproportionate or cruel and unusual
sentence in the trial court or in a post-trial motion waives any error for the purposes of
appellate review. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996);
Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd)
(“[I]n order to preserve for appellate review a complaint that a sentence is grossly
disproportionate, constituting cruel and unusual punishment, a defendant must present
to the trial court a timely request, objection, or motion stating the specific grounds for the
ruling desired.”).
B. Discussion
Generally, punishment assessed within the punishment statutory range is not
subject to a challenge for excessiveness. Lawrence v. State, 420 S.W.3d 329, 333 (Tex.
App.—Fort Worth 2014, pet. ref’d). When community supervision is revoked, the trial
court may generally impose any punishment within the range authorized by statute. See
id. When reviewing excessiveness in a case in which the trial court has revoked
probation, we do not weigh the sentence against the gravity of the violations of the
community supervision, but rather the gravity of the initial offense to which the appellant
pleaded guilty. See id.; Buerger v. State, 60 S.W.3d 358, 365–66 (Tex. App.—Houston
[14th Dist.] 2001, pet. ref’d) (appellant’s sentence rests upon adjudication of guilt for crime
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alleged, not appellant’s violation of community supervision requirements that led to
revocation).
Having reviewed the record, we note that appellant did not object to an alleged
disproportionate or cruel and unusual sentence in the trial court or in a post-trial motion.
See TEX. R. APP. P. 33.1(a); Arriaga v. State, 335 S.W.3d 331, 334 (Tex. App.—Houston
[14th Dist.] 2010, pet. ref’d). Accordingly, appellant has waived any error for purposes
of appellate review. See Rhoades, 934 S.W.2d at 120; Noland, 264 S.W.3d at 151.
However, even if Clark had objected to the trial court’s sentence, his original charge was
eight counts of aggravated sexual assault of a child. See TEX. PENAL CODE ANN. §
22.021. B.S. testified that she is still traumatized as an adult for the abuse she endured
as a five-year-old child. Therefore, the trial court was within the range for a first-degree
felony by imposing a fifty-year prison sentence. Clark’s second issue is overruled.
III. CONCLUSION
We affirm the judgment of the trial court.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
26th day of July, 2018.
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