Opinion
NO. 02-16-00040-CR
07-21-2016
BRIAN ELTON RAY APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1067945D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
Appellant Brian Elton Ray appeals from the revocation of his community supervision and the ten-year sentence imposed by the trial court. In three points, Ray argues that the trial court abused its discretion by revoking his community supervision. We will affirm.
II. PROCEDURAL BACKGROUND
On February 13, 2009, Ray pleaded guilty, pursuant to a plea agreement, to the second-degree felony of intoxication manslaughter. See Tex. Penal Code Ann. § 49.08 (West 2011). The trial court sentenced Ray to ten years' confinement; imposed a $2,000 fine; suspended the sentence; and placed Ray on community supervision for a period of ten years.
On October 2, 2015, the State filed a petition to revoke Ray's community supervision, alleging that Ray had violated two conditions of his community supervision. Specifically, the State alleged in Paragraph One that Ray was ordered by the trial court to commit no offense against the laws of this state, any other state, or the United States and that he had violated that condition on or about March 21, 2015, when he intentionally or knowingly caused bodily injury to Emma Rodriguez, a member of his family or household with whom he had a dating relationship, by impeding her normal breathing or blood circulation by applying pressure to her throat or neck with his arm. The State alleged in Paragraph Two that Ray had violated another condition of his community supervision—which ordered him to submit non-diluted urine for testing for controlled substances and cannabinoids at the direction of the supervision officer and to pay for urine testing as required—when he "failed to submit to a urine test as instructed on or about June 9, 2015 (stall), August 27, 2015, and August 28, 2015."
At the revocation hearing, Ray pleaded "not true" to the above allegations in the State's petition to revoke. After hearing testimony from Emma Rodriguez; her daughter, D.B.; Officer Brandon Finch; Detective Chris Brashear; and Ray's supervision officer, the trial court found the allegations in Paragraphs One and Two (stall) of the State's petition to revoke to be true, revoked Ray's community supervision, and sentenced Ray to ten years' confinement.
At the conclusion of the hearing, the trial court announced on the record that he had previously "dealt with" Ray's alleged failures to submit to a urine test on August 27 and 28, 2015, and that collateral estoppel prevented the court from making findings as to those two alleged violations. Accordingly, concerning the State's allegations in Paragraph Two, the trial court limited its finding of true to the allegation that Ray failed to submit to urine testing on or about June 9, 2015—the date alleging the "(stall)," which is explained below.
After the trial court imposed sentence, Ray asked to reopen his case to present additional punishment evidence, which the trial court allowed. Ray then testified and requested an extension of his community supervision. Ray admitted on cross-examination, however, that he had blown positive results on his Interlock device and had two DWI convictions, one of which occurred while he was out on bond for intoxication manslaughter. The State called the daughter of the victim killed in the intoxication manslaughter, and she requested that Ray be sentenced to ten years' imprisonment. Ray re-called D.B., who requested that Ray not be sentenced to the penitentiary. At the conclusion of the punishment evidence, the trial court again sentenced Ray to ten years' confinement.
III. REVOCATION OF COMMUNITY SUPERVISION
In his second point, Ray argues that the trial court abused its discretion by revoking his community supervision based on the allegation that he had failed to provide a urine sample.
We review an order revoking community supervision under an abuse-of-discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In a revocation proceeding, the State must prove by a preponderance of the evidence that the defendant violated the terms and conditions of community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and we review the evidence in the light most favorable to the trial court's ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). If the State fails to meet its burden of proof, the trial court abuses its discretion by revoking the community supervision. Cardona, 665 S.W.2d at 493-94.
Holly Gaines, the community supervision officer for the 396th District Court, testified that a community supervision officer asked Ray to submit to a drug test on June 9, 2015; that he was unable to submit a urine sample on his first attempt; that he said he did not have time to wait; and that he therefore had "stalled out" on the drug test. Gaines explained that "stalling out" means that Ray was either unable to submit urine or left before doing so. Gaines testified that Ray's failure to submit nondiluted urine for testing for controlled substances and cannabinoids at the direction of the supervision officer was a violation of community supervision condition number 15. Although Ray was given an opportunity to come back the following day to submit a urine sample and did so, Gaines testified that Ray's failure to submit a urine sample on June 9 was still a violation of his community supervision conditions. Ray admitted during his punishment testimony that he had failed to provide a urine sample on June 9, 2015.
Gaines explained that a technician would check back every thirty minutes to see if Ray was able to give a urine sample.
In arguing that the evidence is insufficient to show he violated a term of his community supervision by failing to submit to urine testing on June 9, 2015, Ray focuses on the State's use of the term "(stall)" in its petition to revoke, arguing that the State premised the alleged violation "not simply on the language of the [community supervision] condition, but on an addition to it, i.e., a 'stall.'" The State's use of the parenthesized word "(stall)" did not alter or modify Ray's community supervision condition, which required that he "[s]ubmit non-diluted urine for testing for controlled substances and cannabinoids at the direction of the supervision officer and pay for urine testing as required." See generally Tex. Code Crim. Proc. Ann. art. 42.12, § 10(a) (West Supp. 2015) (stating that, with limited exceptions, "only the judge may alter conditions of community supervision"). The parenthesized word was merely a notation used by the community supervision department to indicate that Ray had shown up on June 9, 2015, but had failed to provide a urine sample. See Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977) (stating that allegations in revocation motion must be specific enough to give accused notice of alleged violation). Moreover, Ray made no complaint in the trial court about the parenthesized word in the State's motion to revoke, nor does he contend on appeal that he was misled as to the violation he was called upon to defend against. See Grantham v. State, 547 S.W.2d 286, 286 (Tex. Crim. App. 1977) (holding that appellant forfeited complaint that revocation motion failed to plead any violation committed by appellant).
Reviewing the evidence in the light most favorable to the trial court's ruling, we hold that the State proved by a preponderance of the evidence that Ray violated the condition of his community supervision that required him to submit to urine testing for controlled substances and cannabinoids at the direction of the supervision officer when he failed to submit a urine specimen on June 9, 2015. See Clay v. State, 710 S.W.2d 119, 119-20 (Tex. App.—Waco 1986, no pet.) (upholding probation revocation for violation of term requiring submission of urine specimen when appellant appeared but was unable to produce urine specimen); see also McWilliams v. State, No. 02-14-00142-CR, 2014 WL 7204509, at *2 (Tex. App.—Fort Worth Dec. 18, 2014, pet. ref'd) (mem. op., not designated for publication) (holding that trial court did not abuse its discretion by revoking appellant's community supervision on the ground that she failed to submit a urine sample); Sanchez v. State, No. 01-13-00631-CR, 2014 WL 3107659, at *3 (Tex. App.—Houston [1st Dist.] July 8, 2014, no pet.) (mem. op., not designated for publication) (same). Accordingly, the trial court did not abuse its discretion by revoking Ray's community supervision. See Rickels, 202 S.W.3d at 763. We overrule Ray's second point.
Because proof by a preponderance of the evidence of any one of the alleged violations of the conditions of community supervision is sufficient to support a revocation order, see Smith v. State, 286 S.W.3d 333, 342 & n.36 (Tex. Crim. App. 2009), we need not address Ray's first issue challenging the trial court's finding that the allegations in the first paragraph of the State's motion to revoke were true. See Tex. R. App. P. 47.1 (requiring appellate court to address only issues necessary for disposition of appeal).
IV. ALLEGED FAILURE TO CONSIDER FULL RANGE OF PUNISHMENT
In his third point, Ray argues that he was denied due process because the trial court refused to consider the entire range of punishment and sentenced him to ten years' imprisonment—the sentence originally assessed. Ray points out that the trial court stated he would impose the ten-year sentence "required by law"; Ray argues that the law did not require a ten-year sentence and that the trial court's comment shows the trial court did not consider the entire range of punishment.
Because the right to be sentenced after consideration of the full range of punishment is a waivable-only right, see Grado v. State, 445 S.W.3d 736, 741-43 (Tex. Crim. App. 2014), Ray's complaint that the trial court failed to consider the full range of punishment was not forfeited by his failure to object at trial. --------
Under Texas law, when regular community supervision is revoked, a trial court may proceed to dispose of the case as if there had been no community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, § 23(a) (West Supp. 2015). In other words, the trial court may impose the sentence originally assessed. Guzman v. State, 923 S.W.2d 792, 799 (Tex. App.—Corpus Christi 1996, no pet.). Or, if the trial court determines that the best interests of society and the defendant would be served by a shorter term of confinement, it may reduce the term of confinement originally assessed to any term not less than the minimum prescribed for the offense. Tex. Code Crim. Proc. Ann. art. 42.12, § 23(a). Such reduction is left to the sound discretion of the trial court. See Cannon v. State, 537 S.W.2d 31, 32 (Tex. Crim. App. 1976) (interpreting prior version of statute with substantially similar language and stating that any reduction is left to the sound discretion of the trial court).
Although the trial court initially stated that it was imposing the ten-year sentence "required by law" based on finding that the State had proved two violations of Ray's community supervision conditions, the trial court allowed Ray to reopen his case to present evidence on punishment. Ray testified that he was willing to do whatever it took to continue his community supervision and to "stay out from behind bars" because he could not think of leaving his son. On cross-examination, Ray admitted that seven months after he was placed on community supervision for intoxication manslaughter, he had blown into his vehicle Interlock device, and it had registered positive alcohol readings. Ray also admitted that he had been convicted of DWI in 2004 in Palo Pinto County and that he had been convicted of DWI in Tarrant County four months after the event forming the basis of his intoxication manslaughter conviction. The daughter of the victim in the new assault offense alleged in Paragraph One of the State's petition to revoke requested that Ray not be sent to the penitentiary, but the daughter of the victim killed in the intoxication manslaughter case requested that Ray be sentenced to ten years' imprisonment.
Based on the record before us, we cannot conclude that the trial court did not consider the full punishment range after hearing the punishment evidence, which did not show that the best interests of society would be served by a shorter term of confinement, nor can we conclude that the trial court abused its discretion by imposing the sentence it originally assessed. See Tex. Code Crim. Proc. Ann. art. 42.12, § 23(a); Cannon, 537 S.W.2d at 32 (holding no abuse of discretion in failing to reduce term of punishment originally assessed when appellant admitted burglarizing another building less than one month after being placed on probation for burglary); Guzman, 923 S.W.2d at 799 (holding no abuse of discretion in imposing the sentence originally assessed). We overrule Ray's third point.
V. CONCLUSION
Having overruled Ray's dispositive points, we affirm the trial court's judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE PANEL: WALKER, GABRIEL, and SUDDERTH, JJ. SUDDERTH, J., filed a concurring opinion. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: July 21, 2016