Pellum v. State

Full title: KATRINA HALL PELLUM, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Twelfth District, Tyler

Date published: Aug 8, 2007

No. 12-06-00429-CR (Tex. App. Aug. 8, 2007)

Opinion

No. 12-06-00429-CR

Opinion delivered August 8, 2007. DO NOT PUBLISH.

Appeal from the County Court at Law of Cherokee County, Texas.

Panel consisted of WORTHEN, C.J., HOYLE, J., and BASS, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

MEMORANDUM OPINION

BILL BASS, Justice.

This is an appeal from an order granting the State's application to revoke community supervision. In two issues, Appellant Katrina Hall Pellum challenges the legal and factual sufficiency of the evidence. In a third issue, Appellant complains that the court erred in revoking her probation for failure to report to her probation officer, because it was conclusively established that no officer with the power of arrest under a warrant issued by a judge for the alleged probation violation attempted to contact Appellant in person at her last known address. We affirm.

BACKGROUND

Appellant pleaded guilty on October 19, 2005 to the offense of assault causing bodily injury, a class A misdemeanor. The court found Appellant guilty and assessed her punishment at a fine of $500 and 360 days of confinement in the Cherokee County jail. The court suspended the imposition of sentence and placed Appellant on community supervision for twelve months. She was also ordered to perform 120 hours of community service. On June 19, 2006, the State filed an application to revoke Appellant's community supervision alleging that Appellant, in violation of the conditions of her community supervision had (1) failed to report to her probation officer in December 2005 and in January, March, April, and May 2006, (2) failed to pay the twenty dollar monthly supervision fee ordered, (3) failed to pay her fine at the rate of fifty dollars a month, (4) failed to pay the court costs at the rate of twenty six dollars a month, (5) failed to pay a time fee of twenty five dollars at the rate of five dollars each month, (6) failed to attend anger management classes, and (7) failed to perform any of the 120 hours of community service at the rate of sixteen hours per month. Andretta White, Appellant's probation officer, identified Appellant in court. She testified that Appellant had reported only twice since being placed on community supervision, in November 2005 and February 2006. Otherwise Appellant had complied with none of the conditions of community service that the State had alleged she violated. Ms. White did acknowledge that Appellant had paid $120 of the $621 due as restitution. Ms. White told the court that Appellant had been employed at Manpower. During Appellant's initial visit, Appellant had told Ms. White that she had recently undergone surgery on her hands and had suffered seizures, conditions that might at least temporarily interfere with her ability to work. Ms. White asked Appellant to bring or send confirmation of her medical condition and associated physical limitations from her doctor, but no such verification was ever received. For her community service, Appellant was tentatively assigned to do light duty at the Cherokee County Annex Building. On February 21, 2006, during Appellant's second and last visit to the probation department, Ms. White reminded Appellant of her obligation to complete the community service hours ordered by the court. Appellant never reported to perform any of the 120 hours of community service ordered by the court. On redirect examination, Andretta White conceded that no attempt had been made to contact Appellant in person at the address listed in the file. Appellant's mother, Bennie Hall, testified that she was in declining health because of multiple ailments, and that Appellant took care of her. She told the court that Appellant was her "sole responsible care giver," that Appellant had been trained in the use of the machine used to formulate her medicine, and that Appellant was the only person who knew how to administer her medicine. Despite her stated dependency upon Appellant, however, she somehow managed without her during the twenty or thirty days Appellant was in jail prior to the revocation hearing. Appellant's mother testified that, beyond taking care of her, Appellant was unable to work because of her hands, that they had no reliable transportation, and that Appellant's sole income was $200 per month child support. She acknowledged they had a telephone in her home that Appellant could have used to talk to the probation department. Appellant's mother was unaware that Appellant was on probation, although she recalled that Appellant was supposed to attend anger management classes. She also remembered that two months prior to the hearing she had made Appellant's bond after Appellant had been arrested for possession of marijuana. For most of the time since being placed on community service, Appellant had lived with her mother, not at the address she gave when she was placed on community service. Appellant did not testify.

Standard of Review

"Appellate review of an order revoking probation is limited to abuse of the trial court's discretion." Rickels v. State , 202 S.W.3d 759, 763 (Tex.Crim.App. 2006) (quoting Cardona v. State , 665 S.W.2d 492, 493 (Tex.Crim.App. 1984)). In reviewing the sufficiency of the evidence to support the revocation of community service, appellate courts review the evidence in the light most favorable to the judgment, giving deference to the trial court as the sole trier of facts, the credibility of the witnesses, and the weight to be given to the evidence presented. Russell v. State , 685 S.W.2d 413, 419 (Tex.App.-San Antonio), pet. ref'd per curiam, 702 S.W.2d 617 (Tex.Crim.App. 1985). Under the abuse of discretion standard, the record must contain some evidence to support the trial court's decision. Brooks v. State , 153 S.W.3d 124, 127 (Tex.App.-Beaumont 2004, no pet.); Becker v. State , 33 S.W.3d 64, 66-67 (Tex.App.-El Paso 2000, no pet.). The general standards for reviewing factual sufficiency do not apply in probation revocation cases. Pierce v. State , 113 S.W.3d 431, 436 (Tex.App.-Texarkana 2003, pet. ref'd); Cochran v. State , 78 S.W.3d 20, 27 (Tex.App.-Tyler 2002, no pet.).

Applicable Law

The State has the burden of establishing the alleged violations of the conditions of probation by a preponderance of the evidence. Cobb v. State , 851 S.W.2d 871, 873 (Tex.Crim.App.); Cochran , 78 S.W.3d at 28. Because a probation revocation hearing is an extension of the original sentencing portion of a defendant's trial, formal proof of the judgment of the conviction and the terms of probation is not necessary. Cobb , 851 S.W.2d at 873-74. The State must prove the identity of the probationer, and that the probationer violated a condition of the probation order. Id. at 874. Proof of a violation of a single condition of probation is sufficient to support a trial court's decision to revoke. Moore v. State , 605 S.W.2d 924, 926 (Tex.Crim.App. 1980); Cochran , 78 S.W.3d at 28. The code of criminal procedure provides an affirmative defense to revocation on the grounds that the probationer failed to report to his supervisor or remain in a specified place.

[I]t is an affirmative defense to revocation for an alleged failure to report to a supervision officer as directed or to remain within a specified place that a supervision officer, peace officer, or other officer with the power of arrest under a warrant issued by a judge for that alleged violation failed to contact or attempt to contact the defendant in person at the defendant's last known residence address or last known employment address, as reflected in the files of the department serving the county in which the order of community supervision was entered.

TEX. CODE CRIM. PROC. ANN. 42.12 § 24 (Vernon 2006). Section 21(c) of article 42.12 provides that when it is alleged that the defendant violated the conditions of community supervision by failing to pay appointed counsel, fees, court costs, restitution or reparations, the inability of the defendant to pay as ordered is an affirmative defense to revocation, which the defendant must prove by a preponderance of the evidence. TEX. CODE CRIM. PROC. ANN. 42.12 § 21(c) (Vernon 2006).

Discussion

In her first issue, Appellant challenges the factual sufficiency of the evidence supporting the trial court's order revoking community supervision. Appellant's argument assumes that the standard of review applicable to factual sufficiency challenges in appeals from judgments of conviction is equally applicable in appeals from an order revoking community service. The appropriate standard of review in revocation cases is "abuse of discretion." Cobb , 851 S.W.2d at 873. Appellant's first issue is without merit and is overruled. In her second issue, Appellant contends the evidence is legally insufficient to support the trial court's order. We shall review the sufficiency of the evidence under an abuse of discretion standard. Appellant first complains that the State did not introduce into evidence the misdemeanor community supervision order nor did the State request the court to take judicial notice of its order. Because of the trial court's continuing jurisdiction in cases wherein community supervision has been granted, formal proof of the underlying conviction and the conditions of probation is not necessary. Cobb , 851 S.W.2d at 873-74. "[A]s long as the judgment and order of probation appear in the record on appeal, the State is not required to introduce the documents into evidence." Cobb , 851 S.W.2d at 874. The Misdemeanor Community Supervision Order in this case is included in the record on appeal. Andretta White, Appellant's probation officer, testified that she knew Appellant. Appellant reported to her in November shortly after she was placed on community supervision and again in February. Appellant informed Ms. White of her hand surgery. Appellant's mother also testified that Appellant had undergone surgery on her hands. Ms. White testified that Appellant paid $120 in restitution to the victim of the assault for which she was convicted. Appellant enrolled in an anger management class as ordered by the court, although she failed to attend the classes. We conclude Appellant's identity as the same person found guilty of assault and placed on community supervision was well established. Under this issue, Appellant also maintains that the State failed to prove that her failure to pay the fine, fees, and costs was intentional. Appellant's mother testified that although Appellant was her "sole responsible care giver," Appellant was otherwise unable to work because of the painful condition of her hands. Appellant's mother also told the court that neither she nor Appellant had a reliable means of transportation and that Appellant's only income was $200 child support each month. Appellant never produced any verification of her medical problems and disability from her physician although her probation officer asked her to provide it on both of Appellant's visits. Appellant was apparently employed by Manpower when she pleaded guilty to the assault. Although she had access to the telephone where she lived, she never called her probation officer to discuss or excuse her inability to pay the various monthly amounts ordered. There is no evidence that during the time she was on community service, she unsuccessfully sought employment. Appellant never reported to perform her community service nor did she call to explain her failure. Appellant was capable, even by her mother's account, of cooking, washing, caring for her children, operating the machine that formulated her mother's medicine, and administering that medicine. She was able on at least one occasion to purchase marijuana. In a revocation proceeding, the trial judge is the sole trier of fact and is in the best position to judge the credibility of the witnesses and determine the weight to be given their testimony. Davila v. State , 173 S.W.2d 195, 197 (Tex.App.-Corpus Christi 2005, no pet.). The trial court was unconvinced by the testimony of Appellant's mother, and specifically found that Appellant had failed to present credible evidence of her inability to pay. We defer to that determination. The evidence is clearly established that Appellant failed to attend anger management classes. There is no evidence explaining or attempting to excuse this failure. As urged in her third issue, Appellant established her due diligence defense to revocation because of her failure to report to her supervision officer. Andretta White testified that the files of her department did not reflect that a supervision officer, peace officer, or other officer with the power of arrest under a warrant issued by a judge had attempted to contact Appellant in person at her last known address. Therefore, revocation of Appellant's community service solely on the basis of her failure to report would not have been justified. The State, however, established by a preponderance of the evidence Appellant's violation of six other conditions of community service. Proof of the violation of even one condition is sufficient. Cochran , 78 S.W.3d at 28. The trial court did not abuse its discretion in revoking Appellant's community service.

DISPOSITION

The judgment is affirmed .