Opinion
NO. No. 01-10-00748-CR
10-20-2011
CARL FRANCIS III, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 56th Judicial District Court
Galveston County, Texas
Trial Court Case No. 06CR0503
MEMORANDUM OPINION
Carl Francis III appeals a trial court judgment revoking his community supervision and adjudicating him guilty of aggravated sexual assault of a child. In November 2006, the State charged Francis with aggravated sexual assault of a child. Pursuant to a plea agreement, Francis pleaded guilty and the trial court placed him on eight-year deferred adjudication community supervision. On November 25, 2009, the State moved to revoke Francis's community supervision and adjudicate him guilty. The trial court found that Francis had violated six conditions of his community supervision and assessed his punishment at ten years' imprisonment. On appeal Francis contends (1) the trial court erred in admitting evidence from his probation record because it lacked the proper foundation; (2) the evidence presented at trial is insufficient to support the findings that he failed to attend the required psychological counseling or submit to a polygraph; and (3) the court erred in making affirmative findings on grounds abandoned by the State. We affirm.
Background
The terms of Francis's supervision required him to make monthly payments totaling $55.00 for community supervision fees, court costs, and Sexual Assault Program Fund fees. Francis was required to perform 360 hours of approved community service work at a rate of no less than 16 hours per month until completed. Additionally, Francis was ordered to participate in individual and group counseling sessions as directed by the attending therapist and submit to a clinical polygraph at least once every six months or as directed by a Sex Offender Treatment Provider.
In its motion to adjudicate Francis's guilt, the State alleged that he failed to (1) pay his community supervision fee, (2) pay court costs, (3) pay the sexual assault program fee, (4) perform 16 hours a month of community service, (5) participate in psychological counseling for sex offenders, and (6) submit to a polygraph. The State also initially contended that Francis committed the offenses of Assault and Interference with an Emergency Telephone Call. However, the State abandoned the allegations of these two offenses at the start of the hearing.
Francis's Probation Officer William Ordaz testified that as of November 25, 2009, the date the Order Revoking Probation was issued, Francis was behind in his monthly payments for court costs as well as the required fees for community supervision and the Sexual Assault Program Fund. In addition, Ordaz testified that Francis had only completed a total of 137 hours of community service since he first reported to Ordaz on December 12, 2006. Ordaz stated that if Francis had kept up with the required hours of 16 a month, he should have already completed the required 360 hours. Ordaz stated that this figure credited Francis for the time he was incarcerated and the period he was unable to work during Hurricane Ike. Testimony from Ordaz and Dr. Collier Cole, Francis's therapist, showed that although Francis had made up some of his missed counseling sessions as of November 25, 2009, he still had not made up one of his missed group sessions from the summer. On cross-examination, Francis admitted that he had missed the session but stated that he did not know that he needed to make it up. According to Dr. Cole, although Francis had been given multiple deadlines to complete the polygraph required under his community supervision, he had failed to do so. Dr. Cole testified that Francis was told in September 2008 that he had until the end of the year to complete a polygraph. In January 2009 he was informed he had until the end of April. After he missed the April deadline he was given until the end of July 2009 and, most recently, until January 2010.
Ordaz's testimony implies the deadline was December 2009 and Collier testified it was January 2010 but both dates were after the motion to adjudicate was filed.
The trial court found true all six of the allegations that Francis violated the terms conditions of his community supervision, adjudicated him guilty of aggravated sexual assault of a child, and assessed his punishment at ten years' imprisonment.
Standard of Review
A community supervision revocation proceeding is neither criminal nor civil in nature—rather, it is an administrative proceeding. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Canseco v. State, 199 S.W.3d 437, 438 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). At a revocation hearing, the State must prove by a preponderance of the evidence that the defendant has violated a condition of his community supervision. Rickets v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006) (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)); Canseco, 199 S.W.3d at 438.
Our review of an order adjudicating guilt and revoking community supervision is limited to determining whether the trial court abused its discretion in ruling that the defendant violated the terms of his community supervision. Rickets, 202 S.W.3d at 763 (quoting Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)); Duncan v. State, 321 S.W.3d 53, 56-57 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). We examine the evidence in the light most favorable to the trial court's order. Duncan, 321 S.W.3d at 57; Canseco, 199 S.W.3d at 439.
Admissibility of Probation File Discussion
Francis contends that the trial court erred in admitting his entire probation file because the proper foundation for the negative evidence hearsay inside of the file had not been laid. Francis claims that because Ordaz testified as to what was not in the probation file as evidence of lack of compliance and did so without laying the proper foundation for negative evidence, the probation file and Ordaz's testimony are inadmissible hearsay. Francis further contends that the file and Ordaz's testimony are the only evidence of his failure to complete his required 16 hours a month of community service and pay necessary community supervision fees, therefore, the affirmative findings by the trial court concerning these two allegations should be vacated.
On appeal, Francis contends that the State never established the necessary predicate for admitting the "negative evidence" in the file under Rule 803(7). To preserve error for appellate review, the party must make a timely request, objection, or motion to the trial court that "state[s] the grounds for the ruling . . . sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." TEX. R. APP. P. 33.1(a)(1)(A). The record shows that Francis did not object to the admission of the records themselves as hearsay or otherwise. In fact, Francis's counsel affirmatively stated that he had no objections to the admission of the probation file. Because Francis did not object to the admission of the file he has not preserved the issue for our review. TEX. R. APP. P. 33.1(a)(1)(A); see Moore v. State, 935 S.W.2d 124, 130 (Tex. Crim. App. 1996) (objection to admission of probation file not preserved when appellant failed to timely object at trial).
Francis admits some of the file was properly admitted under the business records exception. When the trial court is presented with a proffer of evidence that contains both admissible and inadmissible evidence, the trial court, in the absence of a specific objection to the allegedly inadmissible evidence, may properly admit the entire proffer. See Willover v. State, 70 S.W.3d 841, 847 (Tex. Crim. App. 2002) (quoting Jones v. State, 843 S.W.2d 487, 492-93 (Tex. Crim. App. 1992)).
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We overrule Francis's first issue.
Sufficiency of the evidence
In his second issue, Francis contends that there is insufficient evidence to support the findings that he failed to participate in psychological counseling sessions for sex offenders and that he failed to submit to a polygraph as directed by the Sex Offender Treatment Provider.
In a revocation proceeding, the State must prove by a preponderance of the evidence that a defendant has violated a condition of his community supervision. Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006). Showing "a single violation is sufficient to support a revocation." Canseco v. State, 199 S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). We review a trial court's determination to revoke community supervision for an abuse of discretion and view the evidence in the light most favorable to the trial court's decision. Id. "The trial court is the exclusive judge of the credibility of the witnesses and [it] must determine whether the allegations in the motion to revoke are sufficiently demonstrated." Id.
Francis contends the evidence is insufficient to support two of the six grounds for revocation of community supervision found true at trial. He does not claim the evidence was insufficient to establish the other four grounds for revocation: the trial court's findings that he failed to pay probation fees, failed to pay court costs, failed to pay sex offender fees, and failed to perform the required community service. Francis's only challenge to these grounds was the challenge to the admission of his community supervision file, which we have overruled. Any one instance in which an appellant fails to abide by the conditions imposed on him is sufficient to support the trial court's conclusion that appellant violated the terms of his deferred adjudication community supervision. See Greer v. State, 999 S.W.2d 484, 490 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd). Because we have overruled Francis's sole challenge to these four other grounds, we need not also address the sufficiency of the evidence to support revocation based on failure to attend counseling or submit to a polygraph. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980) (explaining that single ground supporting trial court's action ends inquiry into appellant's challenge); Canseco v. State, 199 S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd).
We overrule Francis's second issue.
Abandonment of Condition
In his third issue, Francis contends that the trial court made affirmative findings on grounds the State abandoned at the revocation hearing. Specifically Francis claims the trial court erred in finding true condition 1, which asserted that Francis committed the offenses of "Assault Causes Bodily Injury, Family Violence" and "Interference with an Emergency Telephone Call."
Citing Texas Rule of Appellate Procedure 43.2(b), Francis requests that we reform the judgment to reflect the State's abandonment of the issue by modifying the trial court's finding of true to this issue. See Tex. R. APP. P. 43.2(b). The State denies that the finding of true of condition 1 was made by the trial court. We agree that the record does not reflect an affirmative finding of condition 1.
During the punishment phase, the trial judge stated "[Francis] pled not true to all of the allegations. The State abandoned the first allegation; however, after hearing some testimony on this it's the Court's finding that all of the allegations are true." Although Francis contends that in this statement the trial court found condition 1 true, the State had already abandoned the condition at the start of the hearing and it was therefore not at issue during the hearing. In addition, the judgment does not reflect that the court found condition 1 true. The Judgment Adjudicating Guilt accurately states that the State abandoned condition 1, that Francis pleaded not true to conditions "12, 13, 17A, 31, 36, 55", and that the "Court Found True to Motion to Adjudicate to 12, 13, 17A, 31, 36, 55." The judgment shows that the court only made findings on these conditions and did not make a finding on condition 1.
Because the State abandoned condition 1 and the judgment reflects this, the judgment does not need modification. We overrule Francis's third issue.
Conclusion
We affirm the decision of the trial court.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).