Applin v. State

341 S.W.3d 528, 2011 Tex. App. LEXIS 2821, 2011 WL 1435477

• Court: Court of Appeals of Texas
• Decided: April 14, 2011
• Docket: 02-09-00089-CR, 02-09-00090-CR
• Status: Published

Opinions

OPINION

BILL MEIER, Justice.

I. INTRODUCTION

Appellant Sheree Leanne Applin a/k/a Sheree Leanne Aptlin appeals the trial court’s judgments revoking her community supervision. In two points, Applin contends that the evidence is insufficient to establish that she violated terms of her community supervision and contends that trial counsel was ineffective. We will affirm.

II. BACKGROUND

On September 22, 2008, Applin entered pleas of guilty to both causes involved in this case — driving while intoxicated with felony repetition. As part of her plea-bargain agreements, Applin received seven-year sentences. The trial court probated the sentences for a period of four years, placing Applin on community supervision. Among the conditions of her community supervision, Applin immediately served ten days in the Tarrant County Jail. Her plea-bargain agreements also included that Applin complete 160 hours of community service, pay court costs and a $1,350 fine, and that Applin’s driver license be suspended for two years and until she completed the DWI repeat offender program. Other conditions of her community supervision included that Applin abstain from illegal substances, attend substance abuse treatment, and pay a monthly probation supervision fee. The terms of her plea-bargain agreements also allowed for “other conditions to be set by [the trial] court.”

Three weeks after being placed on community supervision — on October 13, 2008— the trial court supplemented Applin’s community supervision conditions and ordered her to serve fourteen days’ confinement in the Tarrant County Jail. Again, on December 29, 2008, the trial court supplemented her community supervision conditions by jailing her for 156 days. On February 13, 2009, the State filed its petitions seeking to revoke Applin’s community supervision. In the three-page petitions, the State alleged that Applin violated the conditions of her community supervision by testing positive through urinalysis on December 12, 2008, for hydrocodone, hydromorphone, and codeine; by testing positive for THC on September 30, 2008; by failing to attend substance abuse treatment on October 7, 2008, and December 20, 2008; and by failing to pay her probation supervision fees in October and December 2008.

At the hearing on the State’s revocation petitions, Applin pleaded “not true” to all allegations. Ermelindo Rolon, Applin’s community supervision supervisor, testified that Applin failed to attend substance abuse treatment in October and December 2008, and that Applin failed to pay her supervision fees in October and November 2008. Rolon also testified that Applin tested positive for codeine, hydrocodone, hy-dromorphone, and THC. Rolon said that Applin “did not take probation seriously” and that she had “a nonchalant kind of attitude.” According to Rolon, the trial court amended Applin’s community supervision in October 2008 to include the fourteen days’ jail time because Applin missed one of her outpatient support appointments. When asked whether the jail time was in relation to Applin having tested positive for THC, Rolon said that at the time of the October condition, he was not aware that Applin had tested positive. Rolon said, however, that he was aware of Applin testing positive for THC at the time the trial court imposed the December jail-time condition. Rolon testified that Applin did not have good family support and that Applin’s “partner recovery,” App-lin’s mother, was a poor influence on App-lin. The State questioned Rolon about Applin’s having tested positive for codeine, hydrocodone, and hydromorphone. Specifically, the State asked Rolon if Applin tested positive “in one dose or separate doses?” As Rolon began to answer, defense counsel objected that Rolon was testifying to what someone at a laboratory had told him and thus his statement would be hearsay. Defense counsel qualified his statement by stating that although the parties had stipulated that these drugs had been detected in Applin’s urine, he would not stipulate to the out-of-court statement regarding “one dose or separate doses.” The trial court sustained the objection. Rolon said that Applin admitted to having taken her mom’s cough syrup, which contained the codeine, hydrocodone, and hy-dromorphone.

Lori Applin, Applin’s mother, testified that Applin took cough syrup when she was sick that had been prescribed to either Lori or Lori’s husband, that Lori’s husband administered the cough syrup to Applin, and that Applin never saw the bottle. Lori said that no one was aware at the time Applin was sick that the prescription cough medicine contained codeine, hy-drocodone, or hydromorphone. Applin’s father also testified at the hearing and admitted he was aware that Applin had tested positive for codeine, hydrocodone, hydromorphone, and THC. He said that he was also aware that Applin did not finish her substance abuse treatment. He said that Applin’s failures were due to her being “probably a little careless” and that he would be willing to be Applin’s partner in recovery if the trial court continued App-lin’s community supervision.

Applin testified that she had smoked marijuana seven days after the trial court placed her on community supervision. She said that she had missed one substance abuse session because she had mistaken which day she was to attend, but that she missed another because the counselor “refused” her. She said that she did not intentionally consume codeine, hydroco-done, or hydromorphone. And Applin also testified that she had failed to pay her fees, but that she did not have the money because she had lost her job while she was serving the jail time in October.

The trial court found that Applin violated each of the State’s allegations except for failure to pay the October fee and revoked Applin’s community supervision. The trial court sentenced Applin to the seven years’ confinement in each of the two cases originally pleaded to. The sentences are to run concurrently. This appeal followed.

III. REVOCATION OF COMMUNITY SUPERVISION

In her first point, Applin contends that the trial court abused its discretion by revoking her community supervision. Applin argues that the evidence is insufficient to prove that she violated terms of her community supervision. The crux of Applin’s argument is that the trial court had already subjected her to confinement for the alleged violations of her community supervision; thus, citing double jeopardy, Applin contends that the trial court erroneously used the “same violation as a basis for revoking her probation and sentencing her to the penitentiary” as it did when it imposed its additional conditions in October and December 2008. Therefore, App-lin argues, the trial court now seeks to “punish [Applin] yet again for the same violation[s].” We disagree.

A. Community Supervision Conditions

“Community supervision” is the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period during which a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part. See Rohret v. State, 41 S.W.3d 218, 219-20 n. 4 (Tex. App.-Dallas 2001, no pet.). Under this paradigm, and like in this case where the plea-bargain agreement called for community supervision allowing for conditions to be set by the trial judge, the trial judge determines the conditions of community supervision and may alter or modify the conditions at any time. See Tex. Code Crim. Proc. art. 42.12, § 11(a) (Vernon 2004). The trial judge may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant. Id. An award of community supervision is a quasi-contractual privilege, not a right. Speth v. State, 6 S.W.3d 530, 534 (Tex.Crim.App. 1999). And the terms or conditions of community supervision are terms of the agreement entered into between the trial court and the defendant. Id. These terms are capable of being changed by the trial court in the course of the community supervision time frame. Id. at 534-35.

The conditions of community supervision may include a number of requirements, including submitting a defendant in a felony case to a term of confinement for no longer than 180 days in county jail. Tex.Code Crim. Proc. art. 42.12, § 12(a); see also Grodis v. State, 921 S.W.2d 502, 505-06 (Tex.App.-Fort Worth 1996, pet. ref'd) (recognizing that a trial judge has the authority to impose jail time as an additional condition of probation even in a plea-bargain case). Thus, the trial court retains authority to impose confinement in jail as a condition of community supervision “at any time during the supervision period.” Johnson v. State, 286 S.W.3d 346, 351 (Tex.Crim.App.2009). And unless prohibited by law, the trial judge “may do so for any reason and perhaps for no reason.” Id. Even if community supervision is revoked, the trial judge is not required to give a defendant credit for time spent in confinement as a condition of community supervision; whether to do so is within the trial court’s discretion. Tex.Code Crim. Proc. Ann. art. 42.03, § 2(a) (Vernon Supp. 2004-05); Ex parte Walker, 150 S.W.3d 429, 431-32 (Tex.Crim.App.2004).

In this case, there are no specific fact findings as to why the trial court imposed the jail-time conditions in October and December 2008. But even assuming that the infractions that led to these conditions of community supervision serve in part as the same foundation that supports the State’s petition for revocation, we conclude that there is no double jeopardy issue. Indeed, under Texas law a trial court can impose jail-time conditions “for any reason and perhaps for no reason” at “any time during the supervision period” and not credit that time to a sentence suspension that is eventually revoked; thus, we hold that a trial court does not err by imposing conditions of jail time for violations of community supervision and also finding true that these violations occurred for revocation purposes. Johnson, 286 S.W.3d at 351; see U.S. v. Whitney, 649 F.2d 296, 298 (5th Cir.1981) (declining to extend double jeopardy clause protections to parole and probation revocations proceedings); Ex parte Peralta, 87 S.W.3d 642, 644-46 (Tex.App.-San Antonio 2002, no pet.) (reasoning that probation revocation proceedings are not designed to punish a criminal, but to determine whether probationer has violated conditions of parole; thus, double jeopardy does not apply to such proceedings); Salinas v. State, 1 S.W.3d 700, 701-702 (Tex.App.-Amarillo, pet. ref'd) (noting that neither probation nor parole revocation hearings constitute a stage of a criminal prosecution for double jeopardy purposes). To do so would thwart the purpose behind community supervision; namely, “restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant” while at the same time suspending the defendant’s true sentence for the crime that they have actually been convicted of. Tex.Code Crim. Proc. art. 42.12, § 11(a). Thus, the question we will next address is whether the trial court abused its discretion when it revoked Applin’s community supervision.

B. Sufficient Evidence to Support Revocation

We review an order revoking community supervision under an abuse of discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.1984); Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.-Fort Worth 2007, pet. ref'd). 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); Cherry, 215 S.W.3d at 919. 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); Cherry, 215 S.W.3d at 919. If the State fails to meet its burden of proof, which in this instance is by preponderance of the evidence and not beyond a reasonable doubt, the trial court abuses its discretion in revoking the community supervision. Cardona, 665 S.W.2d at 493-94. Our law is well settled that a defendant’s voluntary judicial confession to violating the terms of her community supervision is, by itself, sufficient to support the decision to revoke. See, e.g., Wade v. State, 83 S.W.3d 835, 839-40 (Tex.App.-Texarkana 2002, no pet.) (defendant’s confession to failing to pay fines and fees, without explanation of inability to pay, was sufficient to support trial court’s decision to revoke community supervision). Furthermore, the decision whether to continue or revoke community supervision is within the trial court’s discretion. Id.

In this case, Applin’s community supervision supervisor testified that Applin had tested positive for codeine, hydrocodone, hydromorphone, and THC: all violations of Applin’s community supervision conditions. The supervisor also testified that Applin failed to attend the classes described in the State’s petitions to revoke and that Applin had failed to pay multiple fees. Applin herself admitted that she smoked marijuana and that she had taken prescription cough syrup. She also admitted that at least one of the violations, missing her support group meeting in October, was her “fault.” Viewing the evidence in the light most favorable to the trial court’s ruling and recognizing that the State need only prove that Applin violated her conditions by a preponderance of the evidence as to any one condition imposed in the community supervision arrangement, we hold that the trial court did not err by finding Applin had violated conditions of her community supervision. Thus, we overrule Applin’s first point.

IV. EFFECTIVE ASSISTANCE OF COUNSEL

In her second issue, Applin contends that her trial counsel was ineffective because he did not object to multiple statements that appear to be hearsay; he stipulated to the contents of a drug test; and he did not “make any meaningful argument [on her behalf].” We hold that the record does not support the claim that Applin’s representation at the revocation hearing was ineffective.

We apply a two-pronged test to ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim.App.2005); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App.2001). To establish ineffective assistance of counsel, an appellant must show by a preponderance of the evidence that his counsel’s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 62-63. There is no requirement that an appellate court approach the two-pronged inquiry of Strickland in any particular order or even address both components of the inquiry if the defendant makes an insufficient showing on one component. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.

In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). The issue is whether counsel’s assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065. Review of counsel’s representation is highly deferential, and the reviewing court indulges a strong presumption that counsel’s conduct fell within a wide range of reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at 813-14. “In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption of reasonable professional assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.Crim.App. 2007).

In this case the record is insufficient to establish that trial counsel failed to conduct himself within the wide range of reasonable representation. It appears to this court that counsel’s strategy was to appeal to the trial court’s discretion and ask the court to assign to Applin a new partner in recovery — her father — and to continue community supervision rather than revoke the suspension of her sentences. Given the evidence that Applin had violated multiple conditions of her community supervision, this court cannot say that counsel’s tactic was not reasonable under the circumstances. We hold that Applin has failed to overcome the presumption that trial counsel’s actions were consistent with sound trial strategy. See Thompson, 9 S.W.3d at 813-14. We overrule Applin’s second point.

V. CONCLUSION

Having overruled both of Applin’s points, we affirm the trial court’s judgments.

DAUPHINOT, J., filed a dissenting opinion.

McCOY, J., concurs without opinion.