Opinion
No. 06-12-00075-CR
10-31-2012
TYMARA SHAWN GARNER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 188th Judicial District Court
Gregg County, Texas
Trial Court No. 31924-A
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Tymara Shawn Garner appeals from the revocation of her community supervision. Garner pled guilty on June 3, 2005, to forgery. The court found her guilty of a state jail felony and (pursuant to a plea agreement) assessed punishment at two years, probated for four years, and a $500.00 fine. The State filed an application to revoke and obtained an order for arrest on November 2, 2007. The application to revoke alleged seven violations of the terms of her community supervision, including failing to report, failing to pay supervision fees, court costs, counsel fees, restitution, fine, and failing to perform community service work at the rate of four hours a month. The alleged violations all occurred during August, September, and October 2007. No action occurred on the application to revoke until she turned herself in on March 4, 2012, after being told by a relative that her picture was on a bulletin board at the community supervision department. At the revocation hearing, Garner stipulated to the facts underlying each allegation and pled "true" to the allegations. The court revoked community supervision and sentenced her to six months' confinement in a state jail facility. Garner contends that the trial court abused its discretion by revoking her community supervision.
Despite her admissions, Garner contends the trial court abused its discretion in revoking community supervision because she presented uncontested testimony that "I think it was May or June [of 2007] that I had got sick with bad migraines and stuff, just going back and forth to the doctor in Parkland." She acknowledged that she had not performed the community service because she was sick between those times and that
for about three years off and on I was in and out of the hospital. I was supposed to have surgery, but I didn't have to. I did treatments and stuff. . . . I have bad migraines and I'm sickle cell anemic, and those two together -- they don't combine. It's only worse on it.
Garner also testified that she had lived in the same place since 2002, but was never contacted about the alleged violations and that she was in custody because "my niece told me I was on a bulletin board." On cross-examination, Garner testified that she had gotten well enough to take care of her children by sometime late in 2010.
Rather than directly attacking the sufficiency of the evidence, Garner contends that the trial court abused its discretion by revoking because
A plea of true to the allegations precludes a review of sufficiency of the evidence. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979).
• The evidence shows without contradiction that the State did not exercise due diligence: no effort to contact her, and she lived at the same address for the entire five-year period between the allegation being filed and the date she turned herself in,
• She testified that she was ill and hospitalized for the relevant time frame, and presumably had no income—and the State put on no evidence of her ability to pay any financial obligation, and
• She was ill and intermittently hospitalized for a lengthy time period, including the relevant dates under this motion to revoke, and thus would likely not have been physically able to perform the required community work service.
When the trial court determines that one or more conditions of community supervision have been violated, the court may then continue, extend, modify, or revoke the community supervision, in its discretion. TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 22(a), 23(b) (West Supp. 2012); Lively v. State, 338 S.W.3d 140, 143 (Tex. App.—Texarkana 2011, no pet.).
In reviewing a revocation proceeding, we look to see whether the trial court abused its discretion by revoking. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). In determining questions about sufficiency of the evidence, the burden of proof is by a preponderance of the evidence. Id. A plea of true, standing alone, is sufficient to support revocation. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979); Perry v. State, 367 S.W.3d 690, 693 (Tex. App.—Texarkana 2012, no pet.). Further, proof of a single violation is sufficient to support a revocation. O'Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App. 1981); Canseco v. State, 199 S.W.3d 437, 438 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd); Wade v. State, 83 S.W.3d 835, 840 (Tex. App.—Texarkana 2002, no pet.).
In this case, arguments could be made concerning defenses to some of the allegations. The argument that the State failed to exercise due diligence in pursuing this revocation motion applies only to the allegation that Garner failed to report for three months in 2007 and is not relevant to the other alleged violations. See TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 21(e), 24 (West Supp. 2012); Wheat v. State, 165 S.W.3d 802, 805 (Tex. App.—Texarkana 2005, pet. dism'd, untimely filed). Further, an issue could be presented concerning the willfulness of Garner's failure to pay fees and court costs. See Lively, 338 S.W.3d at 145 (holding under Bearden v. Georgia, 461 U.S. 660, 672 (1983), trial court must examine reasons probationer did not make required payments of various fees); TEX. CODE CRIM. PROC. ANN. art. 42.037(h) (West Supp. 2012) (requiring—among other things—consideration of willfulness of failure to pay restitution).
But the law allows revocation based on only one violation supported by evidence. Here, there is evidence that Garner violated the condition requiring her to complete four hours of community service a month, as proven by her plea of true. Although Garner argues that if she was hospitalized during the time frame (as she testified she was, at least part of the time) she may not have been able to complete the community service, the evidence presented does not require that inference.
Accordingly, the evidence lends itself to more than one result. The trial court's decision to revoke community supervision was based upon the evidence and, therefore, was not an abuse of discretion.
We affirm the judgment of the trial court.
Jack Carter
Justice
Do Not Publish