Opinion
NO. 09-11-00475-CR
05-16-2012
WILLIAM EARL DURHAM, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 10-09383
MEMORANDUM OPINION
In accordance with a plea-bargain agreement, William Earl Durham entered a plea of guilty to the offense of burglary of a habitation. The trial court found evidence sufficient to find Durham guilty, deferred further proceedings, placed Durham on community supervision for five years, and assessed a $1,000 fine. The State subsequently filed a motion to revoke Durham's unadjudicated community supervision. At the hearing on the State's motion to revoke, Durham pled "not true" to the allegation that he violated the conditions of his community supervision by failing to register as a sex offender. After hearing testimony and receiving evidence, the trial court found that Durham violated the terms of his community supervision, found him guilty of burglary of a habitation, and assessed his punishment at 20 years' confinement. The trial court assessed administrative fees of $3,060. The administrative fee balance sheet indicates that $1,000 of the administrative fees is attributable to attorney fees.
DUE PROCESS
In his first issue, Durham argues the State failed to give him notice of the terms of the community supervision order that he allegedly violated. The State's motion to revoke alleged that Durham violated condition one, which prohibited Durham from committing another offense. The State alleged that he violated this condition by "comitt[ing] the offense of Sex Offender Duty to Register . . . in violation of Condition Durham contends that the State's allegation was insufficient because there is no law in Texas which "make[s] it an offense for a sex offender to have a duty to register." In a revocation proceeding, the defendant is entitled to the "'rudiments of due process,'" which include a written revocation motion that informs a defendant of the alleged violation of a term of probation. Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. [Panel Op.] 1980). While the allegations in a motion to revoke need not be stated with the same particularity required in an indictment, the allegations must be sufficient to fully inform the defendant of what he is required to defend. See Labelle v. State, 720 S.W.2d 101, 104 (Tex. Crim. App. 1986). We may find that reversible error exists when the allegations in the motion to revoke fail to inform the defendant fully of the alleged violations of probation, and the trial court has refused to sustain a timely exception. See id. (quoting Garner v. State, 545 S.W.2d 178, 179 (Tex. Crim. App. 1977)). Here, Durham did not complain to the trial court by way of exception or motion, and, in fact, waived the reading of the motion to revoke. As a result, Durham has failed to preserve this complaint for review. See Tex. R. App. P. 33.1 We overrule Durham's first issue.
SUFFICIENCY OF THE EVIDENCE
In his second issue, Durham argues that the evidence is insufficient to prove he violated the conditions of his community supervision order. We review a trial court's decision to revoke community supervision for abuse of discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). A trial court abuses its discretion when the State fails to meet its burden of proof. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In a community supervision revocation proceeding, the State must prove the defendant violated the terms and conditions of his probation by a preponderance of the evidence. See Rickels, 202 S.W.3d at 763-64. We view the evidence presented in a revocation proceeding in the light most favorable to the trial court's ruling. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony in determining whether the allegations in the motion to revoke are true. Id. We will find that the trial court did not abuse its discretion in revoking community supervision if the weight of the credible evidence creates a reasonable belief that the defendant has violated a condition of his community supervision. See Rickels, 202 S.W.3d at 764.
The State sufficiently alleged that Durham violated the terms of his community supervision by failing to register as a sex offender. Chapter 62 of the Texas Code of Criminal Procedure sets forth the law governing the Sex Offender Registration Program. Tex. Code Crim. Proc. Ann. art. §§ 62.001-.408 (West 2006 & Supp. 2011). Article 62.051 provides:
A person who has a reportable conviction or adjudication or who is required to register as a condition of parole, release to mandatory supervision, or community supervision shall register or, if the person is a person for whom registration is completed under this chapter, verify registration as provided by Subsection (f), with the local law enforcement authority in any municipality where the person resides or intends to reside for more than seven days. If the person does not reside or intend to reside in a municipality, the person shall register or verify registration in any county where the person resides or intends to reside for more than seven days.Id. § 62.051(a). Further, Durham did not contend to the trial court that he was unaware of his duty to register as a sex offender. Rather, Durham argues that the State failed to present evidence that his duty to register had not expired and that he was not registered in the required county. Durham contends the State failed to prove that he resided in or intended to reside in Liberty, Texas for more than seven days. He further argues that the evidence showed only that he was in the general area of Liberty County, and not in the municipal city limits of Liberty, Texas.
Detective Elaine Taylor of the Liberty Police Department testified that Durham was required to register as a sex offender as a result of his prior conviction of burglary of a habitation with intent to commit sexual assault. She testified she had conversations with Durham about his duty to register, and that she had problems in the past with him meeting his requirement to register. In December 2010, Durham was incarcerated in the Liberty County jail. Taylor testified that as a condition of his release from jail, he was required to register with the Liberty Police Department as a sex offender. Taylor testified that on January 16, 2011, Durham had not registered as a sex offender as required by law and he was arrested. At the time he was arrested, Durham was at a residence in contact with children.
Frances Wood, the Sex Offender registrar with the Liberty County Police Department, testified she spoke with Durham on the phone about his duty to register with her as a sex offender. She first spoke with Durham about his duty immediately following his release from the Liberty County jail in December 2010. She told him that he needed to register with her office and explained that he had seven days from the day he was released from jail to register. She testified he did not register within the seven days. She further testified that as of the date of Durham's arrest on January 16, 2011, he had not registered as a sex offender with her.
Durham testified that he bonded out of jail in Liberty County on December 23. He testified he had contact with the Liberty County Police Department about his sex offender registration right after Christmas. He stated that he had been in the county for only a few days before he called Wood. He testified that when he called, he informed her that he had been released from jail on bond, but had nowhere to live because he had lost his home while he was incarcerated. He testified that Wood told him to contact her once a week to let her know if his circumstances had changed. Durham testified that he did as she instructed. Durham testified that Wood did not tell him that he needed to register.
Durham testified that after he contacted Wood, he left Liberty County and stayed in Jefferson County for three or four days. Durham then camped with his brother for four days, but did not tell the court the county in which he camped. He then went to his daughter's house for four to five days, but again failed to tell the court the county in which his daughter resided. He then went back to Liberty for a few days. He then went to Jefferson County for a few days. He then returned to Liberty County for a day. He testified that throughout this time he spoke to Wood two to three times to inform her of his status. Durham admited that during this time he did not actually register. Durham denied that Wood told him he needed to register by January 7, but he admitted that he knew it was his job to register on January 7 of every year because he had been required to register as a sex offender for several years. In fact, he testified that he had registered in 2003, 2004, 2005, 2007, 2008, and 2009 without a problem.
He testified that he was registered in 2010, but when he was released from jail, his place of residence was not available anymore because he had lived at his mother's house and she had died. He reported her death and his lack of a place to live to Wood and he testified that in response, Wood told him he just needed to keep reporting to her weekly, which is what he did until he was arrested.
From the record in this case, the trial court could reasonably find by a preponderance of the evidence that Durham violated the terms of his community supervision by failing to register as a sex offender. Viewing the evidence in a light most favorable to the trial court's ruling, we find the court could have found that Durham had a duty to register as a sex offender in Liberty County, that he failed to register as a sex offender in Liberty County, and therefore violated the terms of his community supervision. Accordingly, the trial court did not abuse its discretion in finding that Durham had violated the conditions of his community supervision, in revoking his community supervision, and adjudicating guilt. We overrule Durham's second issue.
ASSESSMENT OF COURT COSTS AND ATTORNEY FEES
In issue three, Durham contends that the trial court abused its discretion in assessing attorney fees and costs against him because he was an indigent defendant. The trial court has discretionary authority to order reimbursement of appointed attorney fees when the defendant has financial resources that enable him to offset the costs of the legal services provided. Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2011). "A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs." Id. art. 26.04(p).
Here, the trial court determined Durham was indigent when the court initially appointed him counsel at his plea hearing, and again when it appointed him counsel at his motion to revoke hearing, and again when it appointed counsel to represent him in this appeal. We find no evidence in the record to support a finding that Durham's financial circumstances had materially changed between the date the trial court initially appointed trial counsel and the date it rendered judgment. Id.; see also Roberts v. State, 327 S.W.3d 880, 883-84 (Tex. App.—Beaumont 2010, no pet.). Further, there is no determination or finding in the record that Durham had financial resources that would enable him to pay the appointed attorney fees. Without evidence to demonstrate this ability, the trial court erred in ordering reimbursement of appointed attorney fees. See Mayer v. State, 274 S.W.3d 898, 901-02 (Tex. App.—Amarillo 2008), aff'd, 309 S.W.3d 552 (Tex. Crim. App. 2010).
The State concedes that there is no evidence to support the trial court's decision to charge Durham with his appointed attorney fees.
Durham also argues that the trial court erroneously assessed and ordered him to pay $350 for the costs of production of a presentence investigation report (PSI). He contends that the PSI was never completed and is not part of the appellate record. However, during the revocation hearing, at least twice, the trial judge noted on the record that he was reviewing Durham's PSI report while questioning Durham. We find evidence in the record to support the trial court's assessment of costs of production for the PSI report and ordering Durham to pay those expenses.
Durham next argues that the trial court erred in assessing and ordering him to pay court costs and fees. The statute governing court costs differs substantially from the statute authorizing the award of attorney fees. The Government Code provides that a "person convicted of an offense shall pay the following under the Code of Criminal Procedure, in addition to all other costs[.]" Tex. Gov't Code Ann. § 102.021 (West Supp. 2011) (court costs on conviction). Section 102.021 makes no reference to the defendant's ability to pay court costs. See id. Article 26.05(g), on the other hand, explicitly conditions the trial court's authority to order a defendant to pay attorney fees on the defendant's ability to pay—"[i]f the [trial] court determines that a defendant has financial resources[.]" See Tex. Code Crim. Proc. Ann. art. 26.05(g). We find that the trial court did not err in ordering Durham to pay the costs and fees associated with prosecution, despite its finding of indigence. We overrule Durham's issue as it regards court costs, but sustain it with regard to the attorney fees awarded against him. Accordingly, we subtract the $1,000 in appointed attorney fees from the administrative fees and modify the trial court's judgment to reflect an administrative fee of $2,060. In all other respects, we affirm the judgment.
See Tex. R. App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd).
--------
AFFIRMED AS MODIFIED.
CHARLES KREGER
Justice
Do not publish Before McKeithen, C.J., Gaultney and Kreger, JJ.