In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-23-00288-CR ___________________________
DAVID ANTHONY TRIPOLONE, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 371st District Court Tarrant County, Texas Trial Court No. 1606038
Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION
In June 2020, Appellant David Anthony Tripolone pleaded guilty to indecency
with a child by contact in exchange for seven years’ deferred-adjudication community
supervision, a fine, the State’s waiving a second indecency-with-a-child count, and
other conditions. One of the community-supervision conditions required Tripolone
to complete a Sex Offender Treatment Program (SOTP).
Just over three years later, the State petitioned to proceed to adjudication,
alleging in two separate paragraphs that Tripolone had “failed to successfully
complete the [SOTP] and was discharged on or about” December 15, 2021, and July
7, 2023, respectively. The State waived Paragraph One, and Tripolone pleaded true to
Paragraph Two. Despite the State’s having waived Paragraph One, the trial court
found in its written judgment that Tripolone had violated his community-supervision
conditions as set out in both paragraphs, adjudicated him guilty, and sentenced him to
15 years’ confinement.
On appeal, Tripolone raises two points: (1) the trial court abused its discretion
by adjudicating him guilty because the State neither alleged nor proved a probation
violation and because he did not intentionally violate any of his probation conditions
and (2) the trial court erroneously signed a judgment finding that he had violated his
probation conditions as set out in both paragraphs of the State’s petition. Although
the trial court did not abuse its discretion by adjudicating Tripolone guilty, it did err
by finding that he had violated his community-supervision conditions as set out in
2 Paragraph One of the State’s petition. We will thus modify the judgment to remove
the erroneous finding and affirm the judgment as modified.
I. Background
Tripolone’s community-supervision conditions required him to complete an
SOTP:
Complete all requirements of a sex[-]offender treatment evaluation within sixty days as directed by the supervision officer. Attend and participate fully in and successfully complete psychological counseling, treatment, and aftercare sessions for sex offenders with an individual or organization as specified by or approved by the [c]ourt or the supervision officer. Pay all costs of evaluation, counseling, treatment[,] and aftercare. Treatment must be completed within three years of its initiation, with at least one-third of treatment completed each year.
On July 13, 2023, the State petitioned to proceed to adjudication, alleging in
two paragraphs that Tripolone had violated his community-supervision terms and
conditions as follows: (1) Tripolone “failed to successfully complete the [SOTP] and
was discharged on or about December 15, 2021,” and (2) Tripolone “failed to
successfully complete the [SOTP] and was discharged on or about July 7, 2023.”
At the start of the October 11, 2023 hearing on the State’s adjudication
petition, the State waived Paragraph One of its petition. Tripolone pleaded true to
Paragraph Two, and the trial court found that allegation to be true. The trial court
then heard testimony from Tripolone; Tripolone’s wife; and Sean Braun, one of
Tripolone’s treatment providers.
3 Tripolone admitted that he had not successfully completed an SOTP and was
discharged from an SOTP on July 7, 2023. He testified that he understood that
successfully completing an SOTP was one of his community-supervision conditions
and that pleading true to violating one of those conditions could result in
incarceration.
Tripolone explained that he had started an SOTP at Dr. Strain & Associates.
Sometime during Tripolone’s treatment there, Dr. Strain suggested that he find
another SOTP. Tripolone agreed and voluntarily left the program in December 2021.
Tripolone testified that he began another SOTP with Psychotherapy Services &
Yokefellows (PSY) in January 2022. From mid-January 2022 through mid-June 2023,
Tripolone attended weekly group sessions at PSY. Around August 2022, Tripolone
was diagnosed with autism, anxiety, and depression.
Tripolone had four different treatment providers while at PSY. Eventually,
Tripolone was treated by Braun, PSY’s Clinical Director. Braun explained that it was
unusual for an individual to have four treatment providers but explained that PSY was
trying to help Tripolone succeed and hoped that different treatment approaches and
treatment groups would “help him to make progress and [to] be open and honest
about his behaviors.” Braun also testified to a different treatment timeline than
Tripolone. According to Braun, Tripolone had “attended treatment with our office
for about two and a half years” and had worked with different providers at PSY
“anywhere from six to eight months each.”
4 Tripolone and Braun did not get along. Tripolone complained that he felt that
Braun had attacked and antagonized him during treatment sessions and had used
profane or sexual language that was directed toward him. Tripolone further
complained that Braun had encouraged Tripolone’s fellow treatment-group members
to “join [in] the conversation to attack [him].”
Tripolone also claimed that after he provided his “autism report” to Braun in
April or May 2023, he felt that Braun started treating him differently because of his
autism diagnosis and began requiring him to redo or elaborate more on his
homework. Tripolone also felt that Braun was not reviewing his homework
thoroughly. According to Tripolone, when he discussed his anxiety and depression
diagnoses with Braun, Braun was dismissive, declaring that Tripolone was no different
than anybody else and that “everybody would be on the mental health caseload if that[
was] the case.”
Braun admitted that his communication style during sessions was assertive and
that if he felt that a person was not being truthful, he might “push a little bit more.”
Braun testified that when he learned of Tripolone’s autism diagnosis, he made
accommodations based on that diagnosis and based on the recommendations of the
clinical psychologist who had diagnosed Tripolone. But Tripolone resisted Braun’s
accommodation attempts.
According to Braun, Tripolone failed to comply with treatment because “[h]e
was resistant to any interventions that any of the clinicians provided.” Although it was
5 not uncommon for a person to deny culpability when starting treatment, Tripolone’s
honesty was a continuing issue because he “repeatedly changed his story regarding the
offense for which he had [pleaded] guilty to.” Braun opined that based on Tripolone’s
ongoing resistance to treatment, he was at a moderate to high risk to reoffend.
During what ended up being Tripolone’s last session at PSY, Braun told him
that because he was not making progress, PSY was going to have a staffing with
Braun, another experienced clinician at PSY, Tripolone’s probation officer, and any
family members who wanted to attend. Braun and Tripolone then started talking
about the positive things that Tripolone had going on in his life. During this
discussion, Tripolone sarcastically said, “I don’t remember all the dumb shit that you
tell me.” Because of that comment, Braun responded, “You know, if you’re not going
to take advantage of this opportunity, then I’m just going to refer you back to your
[probation officer], and I’m going to unsuccessfully discharge you from treatment.”
PSY discharged Tripolone from SOTP on July 7, 2023.
Tripolone recalled that during his last session with Braun, Braun had
confronted him about an assignment that he had completed several months earlier
with a different PSY provider and wanted Tripolone to redo the assignment.
Tripolone claimed that his outburst with Braun during that session was in response to
Braun’s using profane language and taunting him. Tripolone acknowledged that Braun
had informed him that one of the reasons that he was discharged from PSY was
because he had not taken responsibility for his sexual offense.
6 Tripolone understood that admitting to the offense is one of the most
important parts of sex-offender treatment. He confessed that he had denied
committing the offense during some of his treatment sessions. He admitted during
the revocation hearing that he had committed the offense and explained that he had
trouble making that admission to his providers at PSY because he was unmedicated at
the time.
Tripolone testified that he started taking medication for autism in August 2023,
the month after his discharge from PSY. According to Tripolone, his autism causes
him “to take things very literal[ly],” and he was unable to react or respond
appropriately to Braun because he was not medicated then. He explained that with
medication, he can focus and can think, speak, and function properly. Tripolone’s
wife confirmed the medication’s positive effects: Tripolone was calmer, better able to
make decisions, and more intuitive about what people actually mean “when they say
whatever they say.”
Tripolone testified that he would have continued treatment at PSY if Braun
had not unsuccessfully discharged him. Tripolone stated that he intended to complete
an SOTP and asked the trial court to allow him to participate in an SOTP with a
provider experienced in dealing with autism. But even if Tripolone had to attend
sessions with Braun, Tripolone believed that “things would be different[ ]” because he
was medicated.
7 At the hearing’s conclusion, the trial court adjudicated Tripolone guilty of
indecency with a child by sexual contact and sentenced him to 15 years’ incarceration.
Tripolone timely appealed and has raised two points.
II. Adjudication of Tripolone’s Guilt
In his first point, Tripolone contends that the trial court abused its discretion
by adjudicating him guilty because the State failed to plead or prove that he violated a
condition of his community supervision.
We review a trial court’s decision to adjudicate guilt with the same standard we
use to review a trial court’s decision to revoke community supervision. See Tex. Code
Crim. Proc. Ann. art. 42A.108(b). In a revocation proceeding, the State must prove by
a preponderance of the evidence that the defendant violated at least one of the terms
and conditions of community supervision. Bryant v. State, 391 S.W.3d 86, 93 (Tex.
Crim. App. 2012); Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006).
The trial court is the sole judge of the witnesses’ credibility and the weight to be given
their testimony, and we review the evidence in the light most favorable to the trial
court’s ruling. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); Cardona v.
State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). 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.
Here, Tripolone argues that the trial court abused its discretion for two reasons.
First, he contends that the State neither pleaded nor proved a probation violation
8 because the State failed to allege and prove that he did not complete an SOTP within
three years of beginning treatment at PSY. Second, he asserts that he did not
intentionally violate any of his probation conditions. We address each of these
arguments in turn.
Here, as noted, Tripolone’s probation conditions required him to “[a]ttend and
participate fully in and successfully complete” an SOTP and stated that “[t]reatment
must be completed within three years of its initiation, with at least one-third of
treatment completed each year.” Tripolone argues that because the State failed to
allege in its revocation petition that he did not complete an SOTP within three years
of beginning treatment at PSY, the State failed to allege that he had violated a
probation condition.
To preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion sufficiently stating the specific grounds, if
not apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1);
Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021). Further, the party
must obtain an express or implicit adverse trial-court ruling or object to the trial
court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon v. State, 595 S.W.3d 216,
223 (Tex. Crim. App. 2020). Deficiencies in a revocation petition must be raised at or
before trial, and failure to object at that time forfeits any appellate complaint about
sufficiency of the notice provided by the motion. Armstrong v. State, No. 02-13-00243-
CR, 2014 WL 1324423, at *2 (Tex. App.—Fort Worth Apr. 3, 2014, no pet.) (per
9 curiam) (mem. op., not designated for publication); see Labelle v. State, 692 S.W.2d 102,
105 n.2 (Tex. Crim. App. 1985) (stating that a long line of cases holds that the
allegations in a revocation motion do not require the same particularity as that
required of an indictment or information; rather, “the motion to revoke must simply
give fair notice of the violation involved in order to comport with minimum due
process”); Hunt v. State, 5 S.W.3d 833, 835 (Tex. App.—Amarillo 1999, pet. ref’d)
(holding that complaints about deficiencies in revocation motions were forfeited
when appellant failed to raise them at or before trial); see also Moores v. State, Nos. 05-
10-01270-CR, 05-10-01271-CR, 2012 WL 556184, at *5 (Tex. App.—Dallas Feb. 22,
2012, no pet.) (mem. op., not designated for publication) (stating that any error by the
State in failing to allege an “on or about” date in revocation motion was harmless
because the revocation-hearing record reflected that appellant knew what he was
required to defend against and that his contacts with the complainant that the State
proved and relied upon to revoke his probation occurred within the term of his
probation); Pierce v. State, 113 S.W.3d 431, 439 (Tex. App.—Texarkana 2003, pet.
ref’d) (stating that a variance is material only if it operates to the defendant’s surprise
or prejudices his rights). Because Tripolone did not raise his complaint about the
State’s failing to allege that he did not complete an SOTP within three years of
beginning treatment at PSY, he has failed to preserve this complaint for our review,
and we overrule it. See Tex. R. App. P. 33.1(a)(1).
10 Next, Tripolone argues that the State did not prove that he had failed to
successfully complete an SOTP within three years of starting treatment. As Tripolone
acknowledges, a plea of “true,” standing alone, suffices to support revoking
community supervision. Tapia v. State, 462 S.W.3d 29, 31 n.2 (Tex. Crim. App. 2015).
But, Tripolone argues, “[t]his case presents the rarest of exceptions to this rule”
because the conduct the State alleged and to which he pleaded true did not amount to
a violation of his probation conditions.
We addressed a similar argument in Ward v. State, No. 02-10-00068-CR,
2010 WL 5186783 (Tex. App.—Fort Worth Dec. 23, 2010, no pet.) (mem. op., not
designated for publication). In that case, Condition No. 28 of Ward’s community
supervision required him to “[s]uccessfully complete the Sex Offender Program
within 3 years of it[ ]s initiation.” Id. at *1. The State had alleged in its revocation
petition that “[Ward] had ‘failed to successfully complete the Sex Offender Program
within three years of its initiation’ and that he ‘was unsuccessfully discharged from
treatment on September 01, 2009.’” Id. At the revocation hearing, Ward’s counselor
testified that Ward had admitted to having had contact with children but had refused
to take suggestions about how to avoid those contacts. Id. at *2. The counselor
further testified that Ward was not progressing in his treatment and was so disruptive
to other group members during treatment sessions that Ward was attending individual
sessions toward the end of his treatment. Id. The counselor decided to unsuccessfully
discharge Ward from the program after discussions with Ward’s probation officer,
11 who also testified that Ward had continually violated his probation by coming into
contact with children. Id. at *1–2.
Ward contended that the trial court abused its discretion by revoking his
community supervision and by adjudicating him guilty because the State failed to
establish that he had failed to successfully complete an SOTP within three years of its
inception. Id. at *1. We rejected this contention, reasoning that
Appellant’s arguments that the trial court had to find that three years had elapsed since the sex[-]offender treatment began in order to conclude that he violated his community supervision and that involuntary dismissal based on failure to progress does not amount to a failure to successfully complete the program are faulty. Condition No. 28 required successful completion of the three-year program. Successful completion would necessarily require more than three years of robotic attendance; it would require improvement. According to the evidence, Appellant did not progress but regressed. Appellant therefore did not successfully complete the program as required by Condition No. 28. Applying the appropriate standard of review, we hold that the trial court did not abuse its discretion by revoking Appellant’s community supervision for violating Condition No. 28.
Id. at *2 (footnote omitted).
Here, Tripolone’s community-supervision conditions required him to “[a]ttend
and participate fully in and successfully complete” an SOTP. The evidence showed
that Tripolone was placed on deferred-adjudication community supervision in June
2020. According to Tripolone, he left an SOTP with Dr. Strain in December 2021,
and he started another SOTP with PSY in January 2022. After a year and a half of
treatment—or two-and-half years, according to Braun—Tripolone was not making
progress in his treatment at PSY. He was unsuccessfully discharged from PSY in July
12 2023 because, according to Braun, Tripolone had refused to take responsibility for or
be honest about his sexual offense and had continually resisted treatment even after
PSY made accommodations for his autism. Although Tripolone testified that he
would behave differently in treatment while on medication, he had initially refused to
take medication after his diagnosis and waited until after his discharge from PSY to
begin taking that medication. And according to Braun, “medication would not have
any impact on [Tripolone’s] ability or willingness to be honest.”
As we noted in Ward, “[s]uccessful completion would necessarily require more
than three years of robotic attendance; it would require improvement.” Id. According
to the evidence here, since the trial court placed Tripolone on deferred-adjudication
community supervision in June 2020, he had been in two SOTPs—first with Dr.
Strain and then with PSY—and after at least 18 months with PSY, he showed no
improvement and was thus discharged in July 2023 without completing the program.
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 Tripolone
violated a community-supervision condition by failing to “[a]ttend and participate
fully in and successfully complete” an SOTP within three years of initiating treatment.
Lastly, Tripolone argues that he did not intentionally violate any of his
probation conditions. He contends that he had worked diligently to complete his
SOTP while being treated at PSY, but his autism, lack of medication, and conflicts
with Braun led to his involuntary discharge from the program. Tripolone
13 acknowledges that generally, unless the issue is the nonpayment of fees, the State is
not required to prove that the defendant voluntarily or intentionally violated a
community-supervision condition when that condition does not specify a mens rea
requirement. See Cessac v. State, No. 13-17-00640-CR, 2018 WL 3583744, at *2 (Tex.
App.—Corpus Christi–Edinburg July 26, 2018, no pet.) (mem. op., not designated for
publication) (“Generally, unless the issue in question is nonpayment of restitution or
other supervisory fees, the State has no duty to prove voluntary or intentional conduct
when the terms of the community supervision do not specify a [mens rea].”); Smith v.
State, No. 06-12-00065-CR, 2013 WL 238883, at *3 (Tex. App.—Texarkana Jan. 23,
2013, no pet.) (mem. op., not designated for publication) (noting that the State has no
duty to prove intentional conduct where no mens rea is specified in community-
supervision condition); see, e.g., Hardy v. State, No. 08-21-00074-CR, 2022 WL 1210576,
at *2 (Tex. App.—El Paso Apr. 25, 2022, no pet.) (not designated for publication)
(concluding that the State was not required to prove that appellant knowingly
possessed or transported a handgun because “the language of the community
supervision term [did] not specify a mens rea standard; it simply prohibit[ed] possession
and transport of a firearm and ammunition”); Cano v. State, No. 01-00-01210-CR,
2001 WL 1098023, at *1 (Tex. App.—Houston [1st Dist.] Sept. 20, 2001, no pet.) (not
designated for publication) (“The State had no duty to prove voluntary or intentional
conduct here because the State sought to revoke appellant’s community supervision
for failure to report, not for failure to make required payments.”). Because the State
14 did not have to prove an intentional failure to complete an SOTP, its burden was only
to show, by a preponderance of the evidence, that Tripolone had failed to complete
an SOTP. As we have already determined that the State met this burden, we conclude
that the trial court did not abuse its discretion by revoking Tripolone’s community
supervision and adjudicating him guilty. We thus overrule Tripolone’s first point.
III. Judgment Modification
In his second point, Tripolone argues that the trial court incorrectly found in its
written judgment that he had pleaded “true” to the allegation in Paragraph One of the
State’s adjudication petition. Tripolone asks us to modify the judgment to correctly
reflect that the trial court found that he had violated only Paragraph Two. The State
agrees that the judgment is incorrect and that the judgment should be modified.
Here, the record shows that at the adjudication hearing, the State waived
Paragraph One, Tripolone pleaded true to Paragraph Two only, and the trial court
found only the allegations in Paragraph Two to be true. Nevertheless, in its written
judgment, the trial court found as follows: “While on deferred[-]adjudication
community supervision, Defendant violated the conditions of community supervision,
as set out in the State’s Original Motion to Adjudicate Guilt, as follows:
PARAGRAPH(S) ONE AND TWO.”
We may modify a judgment “to make the record speak the truth.” French v.
State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); see Tex. R. App. P. 43.2(b). Here,
the record reflects that the trial court found only the allegations in Paragraph Two to
15 be true. We thus sustain Tripolone’s second point and will modify the judgment
accordingly.
IV. Conclusion
Having sustained Tripolone’s second point, we modify the judgment to delete
and replace “PARAGRAPH(S) ONE AND TWO” in the trial court’s findings with
“PARAGRAPH TWO.” Having overruled Tripolone’s first point, we affirm the
judgment as modified. See Tex. R. App. P. 43.2(b).
/s/ Elizabeth Kerr Elizabeth Kerr Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: August 1, 2024