White v. State

JEFFERY THOMAS WHITE, APPELLANT v. THE STATE OF TEXAS, APPELLEE

NO. 12-20-00024-CR

COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

November 30, 2020

APPEAL FROM THE 114TH JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Jeffery Thomas White appeals the trial court's order revoking his deferred adjudication community supervision and his ensuing ten-year sentence. Appellant raises four issues on appeal. We modify and affirm as modified.

BACKGROUND

Appellant was charged by indictment with obstruction or retaliation and pleaded "guilty." The trial court deferred finding Appellant "guilty" and placed him on community supervision for five years.

On December 12, 2019, the State filed a motion to proceed to final adjudication alleging that Appellant violated a condition of his community supervision by, on December 9, 2019, failing to report to the Smith County Community Supervision and Corrections Department "after Court or upon release from [the] Smith County Jail."

On January 3, 2020, the trial court conducted a hearing on the State's motion. At the commencement of the hearing, Appellant pleaded "not true" to the allegation that he failed to report as alleged in the State's motion.

The State called Smith County Community Supervision Officer Halie Melot as its sole witness. Melot, who was present during Appellant's original plea proceedings, identified Appellant and confirmed that he was admonished of the condition of his community supervision at issue. She stated that she heard the judge tell Appellant about this condition and that Appellant appeared to understand the condition. She further stated that Appellant was released from jail at 11:52 a.m. on December 9, 2019, and did not report to the Smith County Community Supervision Office that day, which violated a condition of his community supervision.

In contrast, Appellant testified that he believed he had forty-eight hours following his release from jail to report to the community supervision office. He further testified that he spent the remainder of the day on which he was released from jail looking for a place to live.

Ultimately, the trial court found the alleged violation in the State's motion to be "true," adjudicated Appellant "guilty" of obstruction or retaliation, revoked Appellant's community supervision, and sentenced Appellant to imprisonment for ten years. This appeal followed.

REVOCATION OF COMMUNITY SUPERVISION

In his first issue, Appellant contends that the trial court erred in revoking his community supervision because the evidence is insufficient to support the revocation. A court may revoke a defendant's regular community supervision or deferred adjudication community supervision if the state proves, by a preponderance of the evidence, that the defendant violated a condition thereof. See Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013). Proof of a single violation is sufficient. Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012). In the community supervision revocation context, preponderance of the evidence means "that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his probation." Hacker, 389 S.W.3d at 865.

The applicable burden of proof informs the appellate standard of review for sufficiency of the evidence. Id. For an order revoking community supervision, because the less rigorous preponderance of the evidence standard applies, we review for abuse of discretion. See id. If the state fails to satisfy its burden of proof, the trial court abuses its discretion by revoking a defendant's community supervision. See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984).

In determining the sufficiency of the evidence to sustain a revocation, an appellate court views the evidence in the light most favorable to the trial court's ruling. Id. at 493. As the factfinder at a revocation hearing, the trial court is the sole judge of the credibility of witnessesand the weight to be given their testimony and may accept or reject all or any part of a witness's testimony. Moore v. State, 11 S.W.3d 495, 498 (Tex. App.-Houston [14th Dist.] 2000, no pet.).

Here, Melot confirmed that Appellant was admonished of the condition of his community supervision at issue. She further stated that she heard the judge tell Appellant about this condition and that Appellant appeared to understand it. Lastly, Melot testified that Appellant was released from jail at 11:52 a.m. on December 9, 2019, and did not report to the Smith County Community Supervision Office that day, which violated a condition of his community supervision.

Appellant testified that he believed he had forty-eight hours from the time of his release to report to the community supervision office. On appeal, he argues that the condition of his community supervision he is alleged to have violated contradicts a separate condition of community supervision, under which he was required to "[r]eport in person to your supervision officer within 48 hours after release from jail or other confinement following any arrest or conviction." We disagree with Appellant's contention that these terms of his community supervision are conflicting. But even if we were to assume arguendo that this other condition is contradictory, the record conclusively establishes that Appellant was given a copy of the terms and conditions of his community supervision, that he read and understood them, and that he failed timely to appeal the judgment imposing community supervision to address the supposed conflicting conditions of which he now complains. Thus, by failing to appeal the trial court's order placing him on deferred adjudication community supervision, Appellant forfeited any issue with regard to propriety of its terms. See Wiley v. State, 410 S.W.3d 313, 320-21 (Tex. Crim. App. 2013); Riles v. State, 417 S.W.3d 606, 608-09 (Tex. App.-Amarillo 2013), aff'd, 452 S.W.3d 333 (Tex. Crim. App. 2015).

Based on our review of the record, we conclude that the greater weight of the credible evidence before the trial court supports its finding that Appellant violated a condition of his community supervision as alleged in the State's motion to revoke. Therefore, we hold that the trial court did not abuse its discretion by revoking Appellant's community supervision and adjudicating him guilty of obstruction or retaliation. Appellant's first issue is overruled.

ADMISSIBILITY OF PUNISHMENT EVIDENCE

In his second issue, Appellant argues that the trial court abused its discretion by admitting evidence of his criminal history, which was not relevant to its determination of whether he violated a condition of his community supervision.

Standard of Review and Governing Law

We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). A trial court does not abuse its discretion when its ruling falls within the zone of reasonable disagreement. See id.

Under the Texas Rules of Evidence, relevant evidence generally is admissible. TEX. R. EVID. 402. At a revocation hearing, once the court has determined that the defendant violated a condition of his community supervision and adjudicates guilt, punishment is assessed as though adjudication had not been deferred. See TEX. CODE CRIM. PROC. ANN. art. 42A.110(a) (West 2018); cf. Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999) (discussing ability to present punishment evidence in revocation proceeding prior to adjudication).

Furthermore, during the punishment phase of a noncapital trial, "[r]egardless of the plea and whether the punishment [is] assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing[.]" TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2020). The admissibility of evidence in a noncapital trial is a matter of policy, which includes giving complete information to the factfinder to allow it to tailor an appropriate sentence for the defendant. See Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). As a result, what is relevant for the factfinder to consider during punishment is determined by whatever is helpful to it. See id.

Discussion

In the instant case, Appellant objected to the admission of testimony regarding his criminal history as set forth in the presentence investigation report (PSI) because it is not relevant to the allegations of whether he violated the terms and conditions of his community supervision. In admitting the testimony, the trial court noted that if it revoked Appellant's community supervision, it would be called upon to sentence him.

A trial court has broad discretion in determining the admissibility of evidence presented at the punishment phase of trial and may admit evidence deemed relevant to sentencing,including evidence of other crimes or bad acts. See Schultze v. State, 177 S.W.3d 26, 40 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). Furthermore, at the outset of the proceedings, the trial court, upon the State's request and without objection from Appellant, took judicial notice of the PSI. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (any error admitting evidence rendered harmless when other properly admitted evidence proved same fact). Therefore, because the evidence of Appellant's criminal history is relevant to the issue of punishment and the trial court already had taken judicial notice of the PSI, we hold that the trial court did not abuse its discretion in admitting this testimony and, further, that any error in the admission of such testimony is harmless. See Schultze, 177 S.W.3d at 40; see also Brooks, 990 S.W.2d at 287. Appellant's second issue is overruled.

CRUEL AND UNUSUAL PUNISHMENT

In his third issue, Appellant argues that his ten-year sentence amounts to cruel and unusual...