Casey Lee Tillison v. State

• Court: Court of Appeals of Texas
• Decided: July 3, 2015
• Docket: 10-14-00403-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-14-00403-CR

CASEY LEE TILLISON, Appellant v.

THE STATE OF TEXAS, Appellee

From the 40th District Court Ellis County, Texas Trial Court No. 36116CR

MEMORANDUM OPINION

Casey Lee Tillison pled guilty to the offense of aggravated sexual assault of a

child. See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i), (2)(b) (West 2011). The trial court

deferred an adjudication of guilt and placed Tillison on community supervision for 10

years. Two years later, the State filed a motion to proceed with an adjudication of

Tillison’s guilt. After a hearing, the trial court found Tillison had violated three

conditions of his community supervision, adjudicated Tillison guilty, and sentenced

Tillison to 65 years in prison. Because the trial court did not abuse its discretion in revoking Tillison’s community supervision and adjudicating Tillison’s guilt, but erred

in imposing a fine that was not orally pronounced at sentencing, the trial court’s

judgment is modified to delete the fine and affirmed as modified.

ERROR IN THE JUDGMENT

In his first three issues, Tillison complains about error in the written judgment

which, he contends, should be modified. First, Tillison contends the judgment should

be modified to properly reflect the sections of the Texas Penal Code of which he was

found to have been convicted. However, Tillison cites to nothing to support the

proposition that the judgment in this case needs to be modified. As the Code of

Criminal Procedure requires, the judgment accurately reflects that Tillison was

convicted of the offense of aggravated sexual assault of a child. TEX. CODE CRIM. PROC.

ANN. art. 42.01, Sec. 1(13) (West 2006) (“The judgment shall reflect…the offense or

offenses for which the defendant is convicted.”). The Code does not require the

statutory penal provisions or every nuance of the statutory penal provisions also be

reflected in the judgment. The fact that the Penal Code provision cited along with the

name of the offense in this particular judgment only refers to the subsection regarding

the victim’s age does not make the judgment in need of correction. Tillison’s first issue

is overruled.

Next, Tillison complains that the judgment must be reformed because the elected

County and District Attorney for Ellis County was listed on the judgment instead of the

Tillison v. State Page 2 assistant who participated in the revocation hearing. Again, Tillison cites to nothing to

show that the elected State’s attorney cannot be named in the judgment if he did not

participate in the proceeding resulting in the judgment. The Texas Code of Criminal

Procedure states that a judgment shall reflect "[t]hat the case was called and the parties

appeared, naming the attorney for the state . . . and the attorney for the defendant[.]"

TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1(2) (West 2006). The elected County and

District Attorney for Ellis County is the attorney for the State in this case. Tillison’s

second issue is overruled.

Lastly, Tillison asserts the trial court erred in imposing a fine in its written

judgment when the court had not imposed a fine in its oral pronouncement of Tillison’s

sentence. When the oral pronouncement of sentence and the written judgment vary,

the oral pronouncement controls. Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App.

2002). The State agrees that no fine was orally pronounced by the trial court during

Tillison’s sentencing. Accordingly, Tillison’s third issue is sustained.

VIOLATIONS OF COMMUNITY SUPERVISION

In his last three issues, Tillison complains that the trial court abused its discretion

in adjudicating Tillison’s guilt based on a violation of conditions 34, 35, and 38 of his

terms of community supervision. Condition 34 related to Tillison having no contact

with a person under the age of 17 unless supervised by a person approved by the

community supervision department; condition 35 related to Tillison participating in sex

Tillison v. State Page 3 offender counseling until successful discharge; and condition 38 related to Tillison

submitting to random polygraph exams.

The decision to proceed to adjudication of guilt is reviewable in the same manner

as a revocation of "ordinary" community supervision. TEX. CODE CRIM. PROC. ANN. art.

42.12 § 5(b) (West 2006); Duncan v. State, 321 S.W.3d 53, 56 (Tex. App.—Houston [1st

Dist.] 2010, pet. ref'd). We review a decision to revoke community supervision, and by

extension a decision to adjudicate, for an abuse of discretion. Rickels v. State, 202 S.W.3d

759, 763 (Tex. Crim. App. 2006); Duncan, 321 S.W.3d at 56-57. The State’s burden of

proof in a revocation proceeding is by a preponderance of the evidence. Cobb v. State,

851 S.W.2d 871, 874 (Tex. Crim. App. 1993). Further, the violation of a single condition

of community supervision is sufficient to support a revocation. Smith v. State, 286

S.W.3d 333, 342 (Tex. Crim. App. 2009) ("We have long held that 'one sufficient ground

for revocation would support the trial court's order revoking' community supervision.")

(quoting Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. [Panel Op.] 1978); Moore

v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Moses v. State, 590

S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979). Thus, in order to prevail on appeal,

an appellant must successfully challenge all the findings that support the revocation

order. Joseph v. State, 3 S.W.3d 627, 640 (Tex. App.—Houston [14th Dist.] 1999, no pet.).

At times, Tillison was under the supervision of the Dallas County Community

Supervision and Corrections Department. While under Dallas County’s supervision,

Tillison v. State Page 4 Tillison admitted to his community supervision officer that he had contact with a 17

year old minor, Tillison’s niece, at Tillison’s brother’s party. Tillison’s brother could not

recall if Tillison was at the party. There was testimony, however, that at the time of the

party, the niece would have been only 16 years old. This is enough to support the trial

court’s finding that Tillison violated condition 34, relating to Tillison having no contact

with a person under the age of 17 unless supervised by a person approved by the

department. Because proof by a preponderance of the evidence of only one violation is

sufficient to support revocation, the trial court did not abuse its discretion in revoking

Tillison’s community supervision and adjudicating Tillison’s guilt. Tillison’s fourth,

fifth, and sixth issues are overruled.

CONCLUSION

Having determined the trial court did not abuse its discretion in revoking

Tillison’s community supervision and adjudicating Tillison’s guilt but also having

sustained Tillison’s third issue regarding the imposition of a fine not orally pronounced

at sentencing, we modify the trial court’s judgment to delete the fine and affirm the

judgment as modified.

TOM GRAY Chief Justice

Tillison v. State Page 5 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed as modified Opinion delivered and filed July 2, 2015 Do not publish [CRPM]

Tillison v. State Page 6