No. 05-08-01362-CR
Opinion issued November 4, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court Dallas County, Texas, Trial Court Cause No. F96-44168-LH.
Before Justices MORRIS, BRIDGES, and MURPHY.
Opinion By Justice MORRIS.
A jury convicted Charles Lee Harrison of aggravated sexual assault of a child and assessed his punishment at eight years' probation, which was later extended by the trial court to eleven years. In 2008, the trial court revoked appellant's probation and sentenced him to five years' imprisonment. Appellant now complains in six issues on appeal that the trial court abused its discretion in revoking his probation. We affirm the trial court's judgment.
Factual Background
In 1997, appellant pleaded not guilty to the offense of aggravated sexual assault of a child. After the jury convicted him and sentenced him to eight years' probation, the trial court set the conditions of probation. Condition "(o)" required the following: On or before the 1st day of January 1998, probationer shall participate in sex-offender counseling through a court-approved counselor who specializes in treatment of sex offenders. The defendant shall abide by any and all treatment directives, comply with the rules and regulations of the approved agency, pay all costs incurred for such services and continue in said treatment until released by the court.
The appellate record contains no objection by appellant to any of the probation conditions. On April 4, 2005, the State filed its first motion to revoke appellant's probation, alleging that appellant had violated probation condition (o) because he "failed to successfully participate in sex offender counseling, having been unsuccessfully discharged from Burns, Crimson and Associates Inc. on or about 3/30/05." On September 16, 2005, the State withdrew its motion to revoke, and the trial court extended appellant's probation for three more years, to expire on September 15, 2008. On August 21, 2007, the State filed a new motion to revoke, alleging that appellant failed to report to court on August 20, 2007 and violated condition (o) because he "failed to successfully participate in sex offender counseling." On September 20, 2007, appellant pleaded true to both allegations. The trial court declined to rule on the motion to revoke and granted appellant a personal recognizance bond. On March 19, 2008, the State filed another motion to revoke, again alleging appellant had violated condition (o) by "fail[ing] to report to sex offender treatment as directed." On May 2, 2008, the State withdrew its motion and the trial court modified the conditions of appellant's community supervision to add condition "(x)": Enter a community based residential facility, specifically Wayback House, 899 Stemmons Freeway, Dallas, Tx . . . as soon as [space] becomes available. Defendant is further ordered an[d] agrees to comply with all rules, regulations, and treatment programs as deemed appropriate by this facility. Release from this facility can only be effected by the Court.
On September 5, 2008, the State filed its final motion to revoke appellant's probation. It alleged, again, that appellant had violated condition (o). The motion specifically alleged that appellant had "failed to successfully complete sex offender counseling." On September 17, 2008, at a hearing on the motion, a probation officer not assigned to appellant but familiar with his file testified that appellant had not completed his sex offender counseling. She testified that "[Appellant] has started sex offender treatment quite a few times. He has been discharged also quite a few times for either nonpayment or missing groups or the combination of the two. He just restarted treatment." The probation officer stated that sex offender counseling can take months or several years, depending on how quickly the sex offender progresses through the program. She said that appellant had denied committing the offense in his initial polygraph examinations but had eventually relented. In the early years of appellant's probation, he refused to admit that he was guilty of sexual assault, despite the fact that he had been found guilty of molesting an eight-year-old girl. Appellant testified in his defense. He claimed that from 1997 to 2005, he never missed a sex offender class. He admitted there were times when he fell behind on paying for the sex offender counseling, but he claimed he always paid off his fees eventually. He specifically admitted there was one time after 2005 when he was dismissed from sex offender counseling "because of a money situation." He stated, . . . I never missed anything that I had to do that I could — that I had control of. I was always where I was supposed to be and doing what I was supposed to do and that's — I'm thinking that's why they reinstated me and felt like I was a pretty good candidate to be reinstated. I always tried to stay on point.
After the hearing, the trial court found appellant had violated condition (o) and sentenced him to five years' imprisonment. Discussion
In his first three issues, appellant complains the trial court abused its discretion in revoking his probation because his probation term expired before he could successfully complete sex offender counseling and "successful completion" of sex offender counseling was not required by the "participation" terms of condition (o). To the extent appellant is now complaining that any alleged failure to successfully complete sex offender counseling could not be used as the basis for revoking his probation because it did not allege his failure to "participate" in sex offender counseling as required by condition (o), he has waived the complaint by failing to raise it when his probation was revoked. See Tex. R. App. P. 33.1(a); Hunt v. State, 5 S.W.3d 833, 835 (Tex. App.-Amarillo 2000, pet. ref'd). Moreover, to the extent appellant is arguing the trial court erred by revoking his probation for a violation of condition (o) based upon his failure to complete sex offender counseling during the probationary term, we disagree. Appellate review of a probation revocation is limited to determining whether the trial court abused its discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). We examine the evidence in the light most favorable to the trial court's findings. See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984). An order revoking probation must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence which would create a reasonable belief that a defendant has violated a condition of his probation. See Rickels, 202 S.W.3d at 763-64. In a revocation proceeding, the trial judge is the sole trier of the facts and determines the credibility of the witnesses and the weight to be given to the testimony. See Lee v. State, 952 S.W.2d 894, 897 (Tex. App.-Dallas 1997, no pet.). Probation may not be revoked upon a finding of any violation of any probationary condition other than that alleged in the motion to revoke or necessarily included within the allegations contained in the motion. Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). Here, the State's motion claimed a violation of only condition (o) based on appellant's failure to successfully complete sex offender counseling. Condition (o) required appellant to "participate in sex-offender counseling . . . until released by the court." Participation in counseling as described by condition (o) was an inherent requirement for completion of the ordered counseling. The State repeatedly alleged appellant's violation of condition (o) throughout the course of appellant's probation term. And during the final month of appellant's probation, when his term was about to expire without his ever being released from sex offender counseling by the trial court, the State alleged he failed to successfully complete the sex offender counseling. Based upon the record before us, we conclude the State's motion to revoke necessarily included the allegation that appellant did not participate in counseling as ordered in condition (o). Evidence at the revocation hearing showed appellant had failed to participate in sex offender counseling. Over the eleven years of his probationary term, appellant's participation in sex offender counseling had never progressed far enough for the trial court to release him from this condition. He was discharged from sex offender counseling on several occasions for failure to attend or failure to pay. Having reviewed the entire record, we conclude the trial court did not abuse its discretion in revoking appellant's probation. We resolve appellant's first three issues against him. In his fourth issue, appellant complains that condition (o) was unenforceable because it left to a counseling facility "the determination of compliance with that condition." The record contains no showing that appellant objected to this condition at the time it was imposed. By failing to object at the time the condition was imposed, appellant waived his right to complain of it on appeal. See Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). In addition, the condition did not leave the determination of compliance with a counseling facility but rather required appellant to seek sex offender counseling through a "court-approved counselor" and to participate in the counseling "until released by the Court." Thus, only the trial court could determine whether appellant had complied with the probation condition. See Jones v. State, 571 S.W.2d 191, 193 (Tex. Crim. App. 1978). We resolve appellant's fourth issue against him. In his fifth and sixth issues, appellant contends that when the trial court modified his probation conditions to include condition (x), condition (o) was effectively superceded and therefore the trial court abused its discretion by revoking his probation for failing to comply with condition (o). When the trial court modified appellant's probation it specifically added condition (x) requiring appellant to enter Wayback House and comply with the rules, regulations, and treatment programs of the facility. Appellant argues this condition, which did not specifically require sex offender counseling, superceded condition (o) and therefore sex offender counseling was no longer required as a condition of appellant's probation. By failing to raise this complaint at the revocation hearing, appellant has waived it for appeal. See Hunt, 5 S.W.3d at 835. Furthermore, the record does not support appellant's claim. The face of the modification order does not indicate the trial court intended to eliminate condition (o) when it added condition (x). And the signed order accompanying the State's motion to withdraw its motion to revoke recites that appellant ". . . continues to be subject to the terms and conditions of probation heretofore imposed AND IS TO BE HELD IN CUSTODY FOR RELEASE TO WAYBACK HOUSE." Appellant's complaints are without merit. We therefore resolve his fifth and sixth issues against him. We affirm the trial court's judgment.