PD-0602-15 PD-0602-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 5/20/2015 1:01:26 PM Accepted 5/22/2015 10:30:03 AM ABEL ACOSTA IN THE COURT OF CRIMINAL APPEALS CLERK OF AUSTIN, TEXAS
PATRICK BOND, § Appellant § § NO. VS. § § THE STATE OF TEXAS, § Appellee §
ON PETITION FOR DISCRETIONARY REVIEW FROM THE DECISION OF THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS, AT FORT WORTH, TEXAS IN CAUSE NO. 02-14-00314-CR AFFIRMING APPELLANT'S CONVICTION AND SENTENCE IN CAUSE NO. 1324387D HONORABLE MOLLEE WESTFALL, PRESIDING FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY, TEXAS
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
May 22, 2015 Richard A. Henderson State Bar No. 09427100 RICHARD A. HENDERSON, P.C. 100 Throckmorton Street, Suite 540 Fort Worth, Texas 76102 817-332-9602 - Telephone 817-335-3940 - Facsimile richard(örahenderson. corn
ATTORNEY FOR APPELLANT, PATRICK BOND SUBJECT INDEX
IDENTITY OF PARTIES AND COUNSEL ...........................................................ii TABLEOF AUTHORITIES....................................................................................iii STATEMENT REGARDING ORAL ARGUMENT ............................................... 1 STATEMENTOF THE CASE ................................................................................. 1 STATEMENT OF PROCEDURAL HISTORY.......................................................2 GROUNDFOR REVIEW.........................................................................................2 REASONFOR REVIEW..........................................................................................2 GROUNDONE.................................................................................................2 CONCLUSIONAND PRAYER...............................................................................3 CERTIFICATE OF COMPLIANCE ........................................................................4 CERTIFICATE OF SERVICE.................................................................................. 5 APPENDICES...........................................................................................................6 Appendix "A" (Opinion of the Court of Appeals Second District of Texas, Fort Worth, Texas) Appendix "B" (Motion for Rehearing) Appendix "C" (Order denying appellant's motion for rehearing) IDENTITY OF PARTIES AND COUNSEL The following is a complete list of all parties pursuant to Texas Rules of Appellate Procedure 68.4(a): 1. Mr. Patrick Bond, TDC#1979158 1358 FM 3328 Palestine, Texas 75803 Defendant/Appellant 2. Mr. Edward E. Castillo 2101 Moneda Street Fort Worth, Texas 76111 Trial Attorney for Defendant 3. THE STATE OF TEXAS Ms. Erin W. Cofer Assistant Criminal District Attorney, Tarrant County Trial Attorney Mr. Charles Mallin Former Chief of Appellate Tarrant County District Attorney's Office Mr. Joe Shannon, Jr. Former Criminal District Attorney Tarrant County, Texas Ms. Debra Windsor, Chief, Post -Conviction Assistant Criminal District Attorney Tarrant County, Texas Ms. Sharen Wilson Criminal District Attorney Tarrant County, Texas 401 W. Belknap Street, Fort Worth, Texas 76196 Plaintiff/Appellee 4. Honorable Mollee Westfall Judge, 37 1st District Court 401 W. Belknap Street Fort Worth, Texas 76196 Trial Judge
5. Richard A. Henderson 100 Throckmorton Street, Suite 540 Fort Worth, Texas 76102 Attorney for Appellant 11 TABLE OF AUTHORITIES
CASES
Leblanc v. State, 908 S.W.2d 572 (Tex. App. —Ft. Worth 1995, no pet).......................................3
Mathis v. State, PD 053 6-1 (Tex. Crim. App. 2014) ....................................................................3
Mayer v. State, 309 S.W.3d 552 (Tex.Crim. App. 2010).............................................................3
Code:
Tex.Code Crim. Proc. art. 42.12 Sec. 11(b)..............................................................2
111 STATEMENT REGARDING ORAL ARGUMENT
Petitioner believes that oral argument would aid the court in deciding the
critical issues presented.
STATEMENT OF THE CASE
Appellant was originally placed on deferred adjudication probation for
retaliation. A Petition to Proceed to Adjudication was filed alleging four violations
of probation including possessing weapons, failure to pay probation fees, failure to
complete community service and failing to attend anger control counseling (CR
30-32). The pleas to the court were not true to all violations (RR2: 6-8). The
Trial court found the possession of a weapon allegation to be not true on the oral
record. The judgment and docket entries indicate a true finding to all four
allegations, in error. The court found all of the three other allegations to be true.
The court adjudicated Appellant guilty of the original charge of retaliation and
sentenced Appellant to seven years in the Institutional Division of the Texas
Department of Criminal Justice.
1 STATEMENT OF PROCEDURAL HISTORY
The Court of Appeals issued its Opinion affirming the conviction on April 9,
2015. A Motion for Rehearing was e-filed by Appellant on April 23, 2015. The
Motion for Rehearing was overruled by the Second Court of Appeals on April 30,
2015. This Petition for Discretionary Review is timely if filed on or before May
30, 2015.
GROUND FOR REVIEW
GROUND ONE: Is it an abuse of discretion by the trial court to revoke probation when the underlying causes of the revocation are economic inability to pay?
REASON FOR REVIEW
Reason for Review Ground One:
Economic inability to pay cannot be the basis for the revocation of probation
and finding Appellant had violated these terms of probation was an abuse of
discretion. Tex.Code Crim. Proc. article 42.12 Sec. 11(b) states that the trial court
SHALL (Emphasis added) consider the ability of a defendant to make payments under article 42.12 Sec. 11, Leblanc vs State 908 S.W.2d 572 (Tex. App. —Ft.
Worth 1995 no pet). This is a mandatory provision according to this court in
Mathis vs. State, PD 0536-1 (Tex. Crim. App. 2014), see also Mayer vs. State, 309
S.W.3d 552 (Tex.Crim. App. 2010).
In this case, there was no evidence that Appellant had the ability to pay the
probation fees nor for anger control counseling. Moreover, the testifying probation
officers stated that Appellant's reasons for many of his probation difficulties were
the result of economic hardship for lack of a job. Appellant had been evicted from
his apartment (RR2: 27-28, 52-54, 56,59). It was an abuse of discretion to find
Appellant in violation of these terms of his probation.
The Court of Appeals should have ruled that the trial court abused its
discretion and reversed the case.
CONCLUSION AND PRAYER
WHEREFORE, Appellant respectfully prays that this Court reverse the
decision of the Court of Appeals and the Trial Court and remand this cause to the
court of Appeals and to order the trial court to conduct a new hearing.
3 Respectfully Submitted,
RICHARD A. HENDERSON, P.C. Two City Place 100 Throckmorton Street, Suite 540 Fort Worth, Texas 76102 (Telephone) 817-332-9602 (Telecopier) 817-335-3940 E-mail: richard1rahenderson. corn
By: Richard A. Henderson State Bar No. 09427100
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of TEx.R.APP. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of TEx.R.APP. P. 9.4(i) because it contains 1,080 words,
excluding any parts exempted by TEx.R.APP.P. 9.4(i)(1), as computed by the
word-count feature of Microsoft Office Word 2010, the computer so used to
prepare the document.
Richard A. Henderson
4 CERTIFICATE OF SERVICE
A true copy of the Appellant's Brief has been electronically served on
opposing counsel, Ms. Debra Windsor, Assistant Criminal District Attorney, Chief,
Post-Conviction, Tarrant County District Attorney's Office, 401 W. Belknap
Street, Fort Worth, Texas 76196 and mailed U.S. Regular Mail to Appellant,
Mr. Patrick Bond, TDCJ #1979158, Joe F, Gurney Unit, 1358 FM 3328, Palestine,
Texas 75803 on this the 20th day of May 2Ol
5 APPENDICES APPENDIX "A"
OPINION OF COURT OF APPEALS SECOND DISTRICT OF TEXAS Fort Worth COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00314-CR
PATRICK BOND APPELLANT
V.
THE STATE OF TEXAS STATE
FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1324387D
MEMORANDUM OPINION'
I. INTRODUCTION
Appellant Patrick Bond appeals from the trial court's order revoking his
deferred adjudication community supervision and adjudicating him guilty of
retaliation. In a single issue, Bond argues that the trial court abused its discretion
'See Tex. R. App. P. 47.4. by finding that he had violated his deferred adjudication community supervision.
We will affirm.
II. PROCEDURAL BACKGROUND
On May 10, 2013, Bond pleaded guilty, pursuant to a plea agreement, to
the third-degree felony of retaliation. See Tex. Penal Code Ann. § 36.06(a)(1)
(West 2011). Following this plea, the trial court placed him on two years'
deferred adjudication community supervision and imposed a $200 fine.
On May 22, 2014, the State filed its first petition to proceed to adjudication
alleging four categories of violations: that Bond (1) possessed a firearm; (2)
failed to pay the $60 monthly supervision fee in each of the six months listed; (3)
failed to participate in and complete twenty hours of monthly community service
during each of the nine months listed; and (4) failed to participate in or
successfully complete anger control counseling in June and July 2013.
At the hearing on the State's first petition to proceed to adjudication, Bond
pleaded "not true" to each of the allegations in the State's petition. After hearing
testimony from two community supervision officers and a senior court officer, the
trial court found the allegations in paragraphs 2, 3, and 4 to be true and that
2Although the docket contains the note that "Crt finds para # 1, 2, 3, & 4 true" and the judgment adjudicating guilt states that "[w]hile on community supervision, Defendant violated the terms and conditions of community supervision as set out in the State's ORIGINAL Motion to Adjudicate Guilt as attached: PARAGRAPHS ONE, TWO, THREE, AND FOUR (J" the trial court stated on the record that it found the allegation in paragraph I to be not true and that it found the allegations in paragraphs 2, 3, and 4 to be true. Because the oral pronouncement controls, we need not address Bond's argument that the trial Bond had violated the terms and conditions of his community supervision;
revoked his deferred adjudication community supervision; adjudicated him guilty
of the offense of retaliation; and sentenced him to seven years' confinement.
III. STANDARD OF REVIEW
Appellate review of the decision to adjudicate guilt is "in the same manner"
as review of the revocation of community supervision. Tex. Code Crim. Proc.
Ann. art. 42.12, § 5(b) (West Supp. 2014). 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 in revoking the community supervision. Cardona, 665 S.W.2d at 493-
94. Proof by a preponderance of the evidence of any one of the alleged
court abused its discretion by finding the allegation in paragraph I to be true. Cf. Taylor v. State, 131 S.W.3d 497, 500, 502 (Tex. Crim. App. 2004) (stating that when there is a conflict between the oral pronouncement of sentence and the sentence in the written judgment, the oral pronouncement controls). violations of the conditions of community supervision is sufficient to support a
revocation order. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel
Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.]
1980).
IV. No ABUSE OF DISCRETION
In Bond's sole issue, he contends that the trial court abused its discretion
by finding that he had violated the terms of his deferred adjudication community
supervision, arguing that economic inability to pay prevented his compliance with
the conditions requiring that he perform community service hours, that he pay
monthly supervision fees, and that he participate in anger control counseling.
Specifically, Bond argues that he was having economic issues that made doing
community service difficult and that economic inability to pay cannot be the basis
for revocation of community supervision.
During the hearing on the State's first petition to proceed to adjudication,
one of Bond's community supervision officers testified that Bond was required to
complete twenty hours of community service each month, that she had discussed
this requirement with him at every single office visit, and that she had given Bond
referrals to Goodwill and to Mission Arlington. Bond's other community
supervision officer testified likewise that she had informed Bond of his obligation
to complete his community service at every one of his visits and that Bond did
not comply with multiple referrals for community service. Bond never told her
how his unemployment prevented him from completing community service. Bond
ri did not complete the required twenty hours of community service during each of
the nine months from August 2013 through April 2014; one month he completed
sixteen hours, one month three hours, and several months zero hours. He
completed a total of sixty hours; if he had completed his monthly twenty-hour
quota, he would have had ample time to discharge his obligation during the nine-
month time period.
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 Bond
violated the condition of his community supervision that required him to complete
150 hours of community service restitution at the rate of no fewer than twenty
hours per month. See, e.g., Elizondo v. State, 966 S.W.2d 671, 672-73 (Tex.
App.—San Antonio 1998, no pet.) (holding that the finding that Elizondo had
failed to comply with term of probation requiring him to perform his community
service hours was sufficient to support revocation); Trevino v. State, No. 08-13-
00234-CR, 2015 WL 181657, at *2 (Tex. App.—El Paso Jan. 14, 2015, no pet.)
(not designated for publication) (upholding revocation of community supervision
because State proved by a preponderance of the evidence that appellant had
failed to complete his court-ordered community service at the required rate).
Bond does not contest the fact that he did not complete the required community
service hours; he instead argued in the trial court and argues on appeal that his
unemployment and consequent financial difficulties made it hard for him to do so.
As the sole judge of the weight of the evidence, the trial court was free to believe the testimony of the State's witnesses and to be skeptical of Bond's argued
excuse. See, e.g., Cardona, 665 S.W.2d at 493; accord Crisp v. State, No. 07-
11-00254-CR, 2013 WL 1226911, at *2 (Tex. App.—Amarillo, Mar. 26, 2013, no
pet.) (mem. op., not designated for publication) (rejecting application of "inability-
to-pay" affirmative defense to community-service condition of community
supervision); Sanchez v. State, No. 07-11-00246-CR, 2012 WL 5392106, at *1
(Tex. App.—Amarillo Nov. 5, 2012, no pet.) (mem. op., not designated for
publication) (explaining that trial court was free to reject excuses provided by
defendant for failure to complete community-service requirement). Accordingly,
we hold that the trial court did not abuse its discretion by revoking Bond's
deferred adjudication community supervision, adjudicating Bond guilty of the
offense of retaliation, and sentencing him to seven years' imprisonment. See
Rickels, 202 S.W.3d at 763; Moore, 605 S.W.2d at 926 (holding that proof of any
one violation is sufficient to support revocation order). We overrule Bond's sole
issue.
V. CONCLUSION
Having overruled Bond's sole issue, we affirm the trial court's judgment.
PER CURIAM
PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: April 9, 2015
1-1 Gal COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
Patrick Bond § From the 371st District Court
§ of Tarrant County (1324387D)
V. § April 9, 2015
§ Per Curiam
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court's judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
PER CURIAM APPENDIX "B"
MOTION FOR REHEARING IN THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS FORT WORTH, TEXAS
PATRICK BOND, APPELLANT From the 371ST District Court
of Tarrant County VS. IL Trial Court Case No.13243871)
THE STATE OF TEXAS, APPELLEE
APPELLANT'S MOTION FOR REHEARING TO THE HONORABLE COURT OF APPEALS: COMES NOW, Patrick Bond, Appellant in the above-styled and numbered appeal,
and, pursuant to Rule 49.5(c) of the Texas Rules of Appellate Procedure, hereby files this
Motion for Rehearing, and asks the Court to reconsider and withdraw its opinion of April 9,
2015 and shows as follows:
1. Appellant respectfully requests the court to reconsider its opinion ruling against Appellant and withdraw its opinion and issue a new opinion granting him relief.
Appellant's Motion for Rehearing Page 1 WHEREFORE, PREMISES CONSIDERED, Appellant respectfully requests the
court to reconsider its opinion of April 9,2015 and prays the court to withdraw its opinion
and submit a new opinion in favor of Appellant.
Respectfully submitted,
RICHARD A. HENDERSON P.C. 100 Throckmorton Street, Suite 540 Fort Worth, Texas 76102 Telephone: 817-332-9602 Facsimile: 817-335-3940
State Bar No. 09427100
CERTIFICATE OF SERVICE
A true copy of the Appellant's Motion for Rehearing has been electronically served on opposing counsel, Ms. Debra A. Windsor, Assistant Criminal District Attorney, Post-Conviction, Tarrant County District Attorney's Office, 401 W. Belknap Street, Fort Worth, Texas 76196, via the State's e-mail address, coappellatealerts@tarrantcountv.com and mailed, U.S. Regular Mail to Appellant, Patrick Bond, TDCJ #1979158, Joe F. 23rd day of April Gurney Unit,1358 FM 3328, Palestine, JT5 803 on this 2015.
A. Henderson
Appellant's Motion for Rehearing Page 2 APPENDIX "C" ORDER ON MOTION FOR REHEARING tILL COPY
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
FROM THE 371 ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1324387D
We have considered "Appellant's Motion for Rehearing."
It is the opinion of the court that the motion for rehearing should be and is
hereby denied and that the opinion and judgment of April 9, 2015, stand
unchanged.
The clerk of this court is directed to transmit a copy of this order to the
attorneys of record.
DATED April 30, 2015.