David Gene King v. State

• Court: Court of Appeals of Texas
• Decided: May 28, 2009
• Docket: 01-08-00033-CR
• Status: Published

Opinion

Opinion issued May 28, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00033-CR

DAVID GENE KING, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1023076

MEMORANDUM OPINION

Appellant, David Gene King, was charged with the felony offense of injury to a child. ⁽¹⁾ The trial court sentenced appellant to 10 years' community supervision and a $500 fine. The State later alleged that appellant violated the conditions of his community supervision and filed a motion with the trial court to adjudicate guilt. Upon the State's motion to adjudicate guilt, the trial court ruled that appellant violated some of these conditions and sentenced him to four years in prison. In his sole point of error, appellant argues that the trial court abused its discretion in adjudicating guilt because the State failed to prove the allegations in its motion to adjudicate by a preponderance of the evidence.

We affirm.

Background

On April 12, 2005, appellant pled guilty to injury of a child. Based on a plea bargain struck between appellant and the State, the trial court sentenced appellant to 10 years' community supervision and a $500 fine. The trial court also ordered appellant to "abide by the following Conditions of Community Supervision," including in relevant part:

12.1 Pay a Supervision fee at the rate of $40.00 per month for the duration of your community supervision beginning May 12, 2005 to HCCS&CD.

12.2 Pay a fine of $500.00 and court costs of $188.00 at the rate of $8.00 per month beginning May 12, 2005 to HCCS&CD.

12.3 Pay laboratory fees of $15.00 per month for the duration of your community supervision beginning May 12, 2005 through HCCS&CD.

. . . .

12.8 Pay $5.00 per month to the Sex Assault Program for the duration of your community supervision beginning May 12, 2005 through HCCS&CD.

16 Participate in Sex Offender Treatment Evaluation beginning June 12, 2005. Attend treatment and aftercare with a State of Texas registered Sex Offender Provider as recommended. Comply with all program rules, regulations, and guidelines until successfully discharged or released by further order by the Court. On each reporting date, submit written verification on your enrollment, attendance and/or successful completion of the program to your community supervision officer, to be retained in HCCS&CD's file.

20 You are to have no contact with any minor under the age of seventeen (17) beginning September 1, 2005 for any reason except as specifically permitted by the Court.

On September 28, 2007, the State filed a motion to adjudicate guilt, alleging that appellant had violated conditions 12.1, 12.2, 12.3, 12.8, 16, and 20 of his community supervision. On January 4, 2008, the trial court convened a hearing on the State's motion to adjudicate guilt.At the motion hearing, Keri Porter, appellant's community supervision officer, testified that appellant had been unsuccessfully discharged from two sex offender treatment programs. Porter testified that the first sex offender treatment program had a policy requiring participants to admit responsibility for a sexual offense against a child. Porter testified that appellant's discharge papers showed that appellant repeatedly refused to admit any responsibility for a sexual offense against a child. Porter testified that appellant was discharged from the first sex offender treatment program in August 2005.

Porter testified that, following his unsuccessful discharge from the first treatment program, appellant attended a second sex offender treatment program. Porter testified that she received monthly progress reports regarding appellant's performance. Porter testified that some of the monthly progress reports stated that appellant's participation "needed improvement," while others stated that his participation was "satisfactory" and "good." The reports also stated that appellant was late to two sessions and did not have his homework on one occasion.

Porter further testified that the second treatment provider had a policy that it could discharge a participant from the program for failing a certain number of polygraph examinations. Porter testified that the treatment provider informed appellant that he would be terminated from the program because he failed three polygraph examinations. Porter testified that appellant was discharged from the second sex offender treatment program in September 2007. Porter also testified that appellant told her that he had lied during a polygraph examination because he was afraid to admit having had telephone contact with his minor children.

Michael Boyd, a polygraph examiner contracted by the Harris County probation department, testified that he had administered a polygraph examination to appellant on May 3, 2007 and had conducted a post-test interview. Boyd testified that, during the post-test interview, appellant stated that he had called his wife, who had then allowed their minor children to talk to appellant. Boyd also testified that appellant told him that, after December 2006, he talked to his minor children frequently.

At the conclusion of the motion hearing on January 11, 2008, the trial court granted the State's motion and made the following findings: 1) appellant was unsuccessfully discharged from the first sex offender treatment program; 2) appellant was unsuccessfully discharged from the second sex offender treatment program; and 3) appellant violated the court's no-contact provision by having contact with his minor children. The trial court imposed a sentence of four years' imprisonment on appellant. Appellant gave notice of appeal.

Motion to Adjudicate GuiltIn his sole point of error, appellant argues that the trial court abused its discretion in adjudicating guilt because the State failed to prove the allegations in its motion to adjudicate by a preponderance of the evidence.

Standard of Review

We review a decision to adjudicate guilt "in the same manner" as we review a decision to revoke community supervision or probation. Tex. Code Crim. Proc. Ann. art 42.12 § 5(b) (Vernon Supp. 2008). We review a trial court's order revoking community supervision for abuse of discretion. Akbar v. State, 190 S.W.3d 119, 122 (Tex. App.--Houston [1st Dist.] 2005, no pet.) (citing Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)).

Revocation Hearing

A revocation hearing is not a criminal trial; it is an administrative hearing. Akbar, 190 S.W.3d at 122 (citing Bradley v. State, 608 S.W.2d 652, 656 (Tex. Crim. App. 1980)). The trial court is the sole trier of fact. Id. The State must prove by a preponderance of the evidence that the person on community supervision violated the terms and conditions of his community supervision. Id. (citing Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983)). This standard is met when the greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of his community supervision, as the State alleged. Id. at 123. We examine the evidence in the light most favorable to the trial court's order. Id. (citing Martin v. State, 623 S.W.2d 172, 174 (Tex. Crim. App. 1981)). To support the court's order to revoke community supervision, the State need establish only one sufficient ground for revocation. Id. (citing Moore v.State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980)).

Contact with Minors

Here, the State alleged that appellant violated condition 20 of his community supervision order, forbidding him from making "contact with any minor under the age of seventeen (17) beginning September 1, 2005 for any reason except as specifically permitted by the Court." The State presented testimony from Michael Boyd, a polygraph examiner contracted by the Harris County probation department, who testified that he conducted a post-test interview with appellant on May 3, 2007. Boyd testified that appellant admitted that he had talked to his minor children on the telephone after Keri Porter, appellant's community supervision officer, told appellant that he could not talk with his minor children. The State also presented testimony from Keri Porter, appellant's community supervision officer, who testified that appellant told her that he had lied during a polygraph examination because he was afraid to admit having had telephone contact with his minor children.

The trial court made a ruling that appellant violated the court's no-contact provision by having contact with his minor children. Viewing the evidence in the light most favorable to the trial court's order, we cannot say that the trial court abused its discretion in ruling that appellant violated this condition of his community supervision. Tex. Code Crim. Proc. Ann. art 42.12 § 5(b); Akbar, 190 S.W.3d at 122-23. Because the State need only establish one sufficient ground for revocation in order to support the trial court's order, we need not reach appellant's other arguments. Akbar, 190 S.W.3d at 123. ⁽²⁾

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Jennings, Keyes, and Higley.

Do not publish. Tex. R. App. P. 47.4.

1. ¹ See Tex. Penal Code Ann. § 22.04(a)(3) (Vernon 2007).

2.

Appellant argues that the trial court erred in admitting Porter's testimony because the testimony was based on appellant's probation file, which contained written reports from the sex offender treatment programs regarding appellant's performance. The probation file was never admitted into evidence, and it is not clear that the trial court considered an inadmissible portion of the probation file. Moreover, appellant failed to make a timely objection to the admission of the file and did not obtain a ruling on a hearsay objection. Therefore, appellant did not preserve his objection. See Tex. R. App. P. 33.1; Moore v. State, 935 S.W.2d 124, 130 (Tex. Crim. App. 1996).