Chicorean Kareem Dill v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 2, 2023
• Docket: 09-22-00306-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00306-CR __________________

CHICOREAN KAREEM DILL, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 1A District Court Jasper County, Texas Trial Cause No. 14424JD __________________________________________________________________

MEMORANDUM OPINION

Appellant Chicorean Kareem Dill appeals the trial court’s revocation of his

community supervision. Under a plea bargain agreement, Dill pleaded guilty to the

offense of evading arrest or detention with a previous conviction, a state jail felony.

See Tex. Penal Code Ann. § 38.04(b)(1)(A). The trial court found Dill guilty of the

offense, assessed punishment at confinement at two years in state jail and assessed

a $1,000 fine, but suspended imposition of the sentence and placed Dill on

community supervision for two years. The State filed a motion to revoke Dill’s

1 community supervision, alleging Dill violated the terms of his community

supervision by: (1) committing a new offense when he intentionally and knowingly

damaged or destroyed a door frame without the consent of Kevin Pearson, the owner

of the property, and caused pecuniary loss of $100 or more or less than $750 to the

owner; (2) failing to pay his monthly supervision fees through May 2022; (3) failing

to pay court costs and monthly payments for his fine due May 20, 2022; (4) failing

to pay court appointed attorney fees due May 20, 2022; and (5) failing to pay

substance abuse testing fees through May 2022. At a hearing on the State’s motion

to revoke Dill’s community supervision, Dill pleaded “not true” to the allegations in

the motion. After hearing evidence relating to the alleged violations, the trial court

found each of the allegations in the motion to revoke “true.” After hearing

punishment evidence, the trial court sentenced Dill to two years in state jail. On

appeal, Dill argues that the evidence was insufficient to support revocation. We

affirm the trial court’s judgment.

Standard of Review

When reviewing an order revoking community supervision, the sole question

before this Court is whether the trial court abused its discretion. See Rickels v. State,

202 S.W.3d 759, 763 (Tex. Crim. App. 2006). In a revocation proceeding, the State

must prove by a preponderance of the evidence that the defendant violated a

condition of community supervision as alleged in the motion to revoke. Id. at 763-

2 64; Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). In the context of a

revocation proceeding, “a preponderance of the evidence” means “th[e] greater

weight of [] credible evidence which would create a reasonable belief that the

defendant has violated a condition of his [community supervision].” Rickels, 202

S.W.3d at 764.

In determining the sufficiency of the evidence to sustain a revocation, we view

the evidence in the light most favorable to the trial court’s ruling. Jones v. State, 589

S.W.2d 419, 421 (Tex. Crim. App. 1979). The trial court abuses its discretion only

if its decision “was so clearly wrong as to lie outside that zone within which

reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex.

Crim. App. 1992) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.

App. 1990) (op. on reh’g)). Revocation is appropriate when a preponderance of the

evidence supports at least one of the State’s allegations that the defendant violated a

condition of his community supervision. See Leonard v. State, 385 S.W.3d 570, 576

(Tex. Crim. App. 2012). A single violation of a term of community supervision is

sufficient to support the trial court’s decision to revoke community supervision. See

Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). The trial court is the

sole judge of the credibility of the witnesses and the weight to be given their

testimony. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); Brooks v.

State, 153 S.W.3d 124, 127 (Tex. App.—Beaumont 2004, no pet.).

3 Evidence at Trial

Lianne Allen, a probation officer with the East Texas Probation Department

testified that she received Dill’s case on April 19, 2022, and she had supervised his

case since that time. She testified that, according to Dill’s probation file, the

conditions of his probation were reviewed with him on the day of sentencing. She

testified that approximately one month after Dill was placed on probation, the

sheriff’s office notified Allen that Dill had committed a new offense. According to

Allen, after she received the offense report, she e-mailed the district attorney about

the offense and brought Dill’s other violations to the district attorney’s attention.

Allen testified that the violations alleged in the motion to revoke, in addition to the

new offense, were that, after being on probation for two months, Dill had failed to

pay his monthly supervision fees in the amount of $60 on May 20, 2022 and June

20, 2022, failed to pay his attorney’s fees, failed to pay his monthly amount toward

court costs and his fine, and failed to pay for drug testing. Allen also testified that

Dill failed to report to the probation department.1

Deputy Jason Hawthorne with the Jasper County Sheriff’s Office testified that

on May 23, 2022, he was dispatched to the residence of Delvin Pearson at 837

County Road 725 in Buna, because Pearson had called stating that “Chico” had

1 This was not alleged as a violation of the terms of Dill’s community supervision in the State’s motion to revoke. 4 “busted” the door to the residence and taken a food tray. According to Deputy

Hawthorne, when he arrived at the residence, he spoke with Kevin Pearson Jr. and

Delvin Pearson. Deputy Hawthorne testified that he observed inside the garage a

door that opens into the house, “[t]he frame to the door was cracked where it met the

hinges -- not the hinges but where the door handle meets[,]” and that Dill was

reported as the perpetrator. Deputy Hawthorne testified that Kevin Pearson Jr.

showed him a “video of Chico leaving the residence[]” recorded that evening.

Deputy Hawthorne recognized the man in the video as “Chico” Dill, whom the

Deputy knew from previous encounters, and Deputy Hawthorne identified the man

in the video as the defendant in this case. Deputy Hawthorne testified he conducted

interviews and obtained a statement from the person believed to be the homeowner,

Delvin Pearson. During the investigation, Deputy Hawthorne learned that Kevin and

Delvin knew Dill, Dill had not taken the food tray but that the “door was busted[]”

when Dill was there, and that before Dill was there the door was not broken.

According to Deputy Hawthorne, Delvin Pearson stated he wanted to press charges

against Dill, and Deputy Hawthorne sought a warrant for Dill’s arrest. On cross-

examination, Deputy Hawthorne testified that Delvin Pearson never provided

verification that he owned the residence, and Delvin or Kevin never indicated that

someone named Nikki Robinson owned the house. Deputy Hawthorne agreed that

5 the motion to revoke inaccurately stated that Kevin Pearson was the owner of the

residence.

Delvin Pearson testified that he had lived at the residence at 837 County Road

725 in Buna for six to seven months with his son, Kevin. According to Delvin, Dill

is his nephew, and they do not always get along. Delvin testified that he and his son

both spoke with the deputy and told him that they believed Dill had busted the door

because Kevin had been in the area, but they did not actually witness him do it.

Delvin testified that Kevin had a video recording, but Delvin could not remember if

he watched it. According to Delvin, he believed Dill busted the door because it was

his belief that Dill used to live at the residence and Dill was “told by Nikki to no

longer be there” at the residence. Delvin testified that prior to this incident on May

23rd, he had asked Dill not to come back to the house because Dill was no longer a

resident there and no longer welcome. Delvin testified that he rents the residence

from the owner, Nikki Robinson, through a verbal agreement and there was no

written lease. Delvin testified that Kevin was not an owner or renter of the residence,

but Kevin lived at the house with Delvin. According to Delvin, he did not give Dill

permission to “bust” the door.

Analysis

In one appellate issue, Dill argues the evidence introduced at the revocation

hearing was not sufficient to support the revocation of Dill’s probation. According

6 to Dill, the evidence regarding the new criminal mischief offense was insufficient

under the “preponderance of the evidence” standard to support revocation because

“the State did not present any evidence beyond mere supposition that Dill actually

committed the offense[] or was even present at the Property on the night in question.”

Dill argues that the State’s motion to revoke “was defective . . . in that it misidentifies

the ‘owner’ of the Property as ‘Kevin Pearson’”; that the State failed to produce

evidence concerning consent or lack of consent from the actual owner of the

residence, Nikki Robinson; the State failed to produce any competent evidence that

Dill damaged the door frame; Kevin’s video was never admitted into evidence; and

Kevin’s video only showed Dill “walking away from the house.” As for the

allegations regarding Dill’s failure to pay fines and fees, Dill argues that no evidence

was offered (and no findings made by the trial court) as to Dill’s ability to pay or

that his failure to pay was intentional.

A person commits the offense of criminal mischief if, without the effective

consent of the owner, he intentionally or knowingly damages or destroys the tangible

property of the owner. Tex. Penal Code Ann. § 28.03(a)(1). Under section 1.07 of

the Texas Penal Code, “owner” is a person who “has title to the property, possession

of the property, whether lawful or not, or a greater right to possession of the property

than the actor; or . . . is a holder in due course of a negotiable instrument.” Id. §

1.07(a)(35) (emphasis added).

7 As to Dill’s argument that the State’s motion to revoke was defective, Dill

failed to preserve that alleged error for appellate review. See Tex. R. App. P. 33.1(a).

In general, a prerequisite to presenting a complaint for appellate review is a showing

that the complaint was made by a timely request, objection, or motion, and that the

trial court either ruled on or refused to rule on the request, objection, or motion. Id.

Errors in a motion to revoke community supervision must be pointed out to the trial

court in a timely motion to quash. Gordon v. State, 575 S.W.2d 529, 531 (Tex. Crim.

App. [Panel Op.] 1978). Error, if any, is waived absent such a motion. Id. Even if

the motion to revoke is in fact defective, the question of the sufficiency of a motion

to revoke community supervision cannot be raised for the first time on appeal.

Rodriguez v. State, 951 S.W.2d 199, 204 (Tex. App.—Corpus Christi 1997, no pet.).

Dill failed to file a motion to quash the State’s motion to revoke and failed to object

to the State’s motion to revoke at the revocation hearing.

We next address Dill’s challenge to the sufficiency of the evidence supporting

the allegation that Dill committed a new offense of criminal mischief. On this record,

the trial court heard Deputy Hawthorne, who responded to the call and investigated

the alleged offense, testify that he observed the damaged door, he viewed Kevin’s

video showing Dill walking away from the residence, and Deputy Hawthorne

identified Dill as the person in the video because Deputy Hawthorne recognized Dill.

The trial court also heard Delvin Pearson testify that he rented the residence, he and

8 Kevin lived there, the owner of the residence told Dill he was no longer allowed at

the residence, and Delvin or Kevin did not give Dill permission to damage the door.

On this record, the trial court could have reasonably concluded that Dill committed

the offense of criminal mischief. See Hacker, 389 S.W.3d at 865 (trial court is the

sole judge of the credibility of the witnesses and the weight to be given their

testimony). Viewing the evidence in the light most favorable to the trial court’s

ruling, we conclude that the State proved, by a preponderance of the evidence, that

Dill violated one or more conditions of his community supervision. See Rickels, 202

S.W.3d at 763; Cobb, 851 S.W.2d at 874. Because the trial court did not abuse its

discretion by revoking Dill’s unadjudicated community supervision, we overrule

Dill’s issue on appeal. 2 We affirm the trial court’s judgment.

AFFIRMED.

_________________________ LEANNE JOHNSON Justice

Submitted on June 22, 2023 Opinion Delivered August 2, 2023 Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.

2 Because a single violation of a term of community supervision is sufficient to support the trial court’s decision to revoke community supervision, we need not address Dill’s arguments on appeal regarding his failure to meet certain financial obligations as alleged in the State’s motion to revoke. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980); see also Tex. R. App. P. 47.1. 9