ACCEPTED 01-14-00977-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 11/18/2015 11:30:24 AM CHRISTOPHER PRINE CLERK
No. 01-14-00977-CR In the COURT OF APPEALS FILED IN 1st COURT OF APPEALS For the HOUSTON, TEXAS FIRST SUPREME JUDICIAL DISTRICT11/18/2015 11:30:24 AM At Houston CHRISTOPHER A. PRINE Clerk
Appeal in No. 05-DCR-043338 th 240 District Court of Fort Bend County, Texas
DONALD COREY HILL Appellant v THE STATE OF TEXAS Appellee
STATE’S APPELLATE BRIEF
Counsel for Appellee JOHN F. HEALEY DISTRICT ATTORNEY 268TH JUDICIAL DISTRICT FORT BEND COUNTY, TEXAS
JOHN J. HARRITY, III ASSISTANT DISTRICT ATTORNEY FORT BEND COUNTY, TEXAS SBN # 09133100 John.Harrity@fortbendcountytx.gov 309 South Fourth Street, 2nd floor Richmond, Texas 77469 281-341-4460 (Tel.) 281-238-3340 (Fax) IDENTIFICATION OF PARTIES
Pursuant to Tex. R. App. P. 38.1, a complete list of the names of all interested parties is provided below so the members of this Honorable Court may at once determine whether they are disqualified to serve or should recuse themselves from participating in the decision of the case.
Appellant: Appellee: DONALD COREY HILL THE STATE OF TEXAS
Counsel for Appellee/State: Address(es): JOHN F. HEALEY, JR. Fort Bend County District Attorney District Attorney’s Office of Fort Bend County, Texas 301 Jackson Street, Rm 101 268TH Judicial District Richmond, Texas 77469
NATALIE McKINNON (Same) Assistant District Attorney Fort Bend County, Tx. (Trial)
JOHN J. HARRITY, III (Same) Assistant District Attorney Ft. Bend County, Tx. (Appeal Only)
Counsel for Appellant: Address(es): Don Hecker 200 Highway 90a, Suite B (Trial and Appeal) Richmond, Texas 77469 dhecker281@aol.com
Trial Judge: The Hon. Thomas R. Culver, III 240th District Court of Fort Bend County, Texas
ii TABLE OF CONTENTS
SECTION PAGE
IDENTIFICATION OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
REPLY TO APPELLANT’S FIRST POINT OF ERROR. . . . . . . . . . . . . . . . . . . . 2
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
iii INDEX OF AUTHORITIES
CASES PAGE
Drew v. State, 942 S.W.2d 98 (Tex. App. Amarillo 1997).. . . . . . . . . . . . . . . . . . 10
Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). . . . . 11
Hacker v. State, 389 S.W.3d 860, 964-865 (Tex. Crim. App. 2013). . . . . . . . . . . 11
Hall v. State, 452 S.W.2d 490 (Tex. Crim. App. 1970). . . . . . . . . . . . . . . . . . . . . 11
Ivey v. State, 16 S.W.3d 75 (Tex. App. Houston [1st Dist.] 2000). . . . . . . . . . . . . 10
Marcum .v. State, 983 S.W.2d 762 (Tex. App. Houston 14th Dist. 1998, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Rickets v. State, 202 S.W.3d 759, 763-764 (Tex. Crim. App. 2006). . . . . . . . . 1, 12
Rogers v. State, 640 S.W.2d 248, 264-265 (Tex. Crim. App. 1982). . . . . . . . . . . 10
Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980). . . . 11
Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . 10
Watts v. State, 645 S.W.2d 461, 463 (Tex. Crim. App. 1983). . . . . . . . . . . . . . . . 11
STATUTES AND RULES
Tex. R. App. P. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Tex. R. App. P. 38.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
iv STATEMENT REGARDING ORAL ARGUMENT
The State does not believe oral argument is necessary in the present case.
However, should the Court decide that it wants to hear oral argument in this case, the
State would request that it be allowed to present oral argument.
v No. 01-14-00977-CR In the COURT OF APPEALS For the FIRST SUPREME JUDICIAL DISTRICT At Houston
Appeal in No. 05-DCR-043338 th 240 District Court of Fort Bend County, Texas
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Following a hearing on the State’s Motion to Adjudicate, the trial court found
that Appellant violated conditions D, F, H, L, CCC, CCC, CCC and LLL as alleged
in the State’s motion to adjudicate. (4 R.R. 135). The trial court adjudicated his guilt
and found a lack of evidence to substantiate Appellant’s claims of illnesses during
2013. (4 R.R. 136). The trial court assessed Appellant’s punishment at six years in
the Texas Department of Criminal Justice. (4 R.R. 136).
vi STATEMENT OF FACTS
The State challenges all factual assertions in the Appellant’s brief pursuant to
Tex. R. App. P. 38 and submits its account of the facts as follows and within its reply
to Appellant’s points of error.
SUMMARY OF THE ARGUMENT
Viewing the evidence in the light most favorable to the trial court’s
decision, the trial court did not abuse its discretion in adjudicating Appellant.
Rickets v. State, 202 S.W.3d 759, 763-764 (Tex. Crim. App. 2006).
1 REPLY TO APPELLANT’S FIRST POINT OF ERROR
On November 12, 2013, the state filed a motion to adjudicate guilt. (C.R. 190;
R. 1).The trial court adjudicated Appellant and now appeals that judgment.
The Motion for Adjudication of Guilt alleged that Appellant was to:
D. Report, in person, to the Fort Bend County Community
Supervision and Corrections Department during the normal working hours of
said department, and on today’s date and on the same date of each month
thereafter unless a different date, within one calendar month is agreed to by
yourself and your Community Corrections officer; and obey all the rules and
regulations of the Fort Bend County Community Supervision and Corrections
Department;
F. Work faithfully at a suitable employment as far as possible;
H. Pay to the Fort Bend County Community Supervision and
Corrections Department a fee of $60.00 during the normal working hours of
the Fort Bend County Community Supervision and Corrections Department
on today’s date and on the same date of each month thereafter during your
term of probation;
L. You are to submit to random test for alcohol and/or drugs by the
Fort Bend County Community Supervision and Corrections Department. The
fee for said test shall be paid by you to the Fort Bend County Community
2 Supervision and Corrections Department within ten (10) days of the giving of
a specimen;
SEX OFFENDER SPECIAL CONDITIONS ADDENDUM:
CCC. Attend, participate in, and successfully complete a sex offender
treatment program with a Registered Sex Offender Counselor approved by
your Community Corrections Officer, until successfully discharged by said
Counselor. Abide by all rules and regulations of the program and do not leave
or withdraw from the program without the permission of your Community
Corrections Officer and the treatment provider; and be responsible for any
costs of the program. Failure to successfully complete this condition is
grounds for revoking or extending your term of probation. Successful
completion will be determined by the treatment provider, your Community
Corrections Officer and the Court.
LLL. The Defendant shall pay a Sex Offender Supervision Fee of
$5.00 per month during the term of supervision, payments to be made on or
before the 15th day of each month, beginning November 1, 2007, payable
through the Community Supervision and Corrections Department for
remittance to the State Comptroller;
The State would further show that, thereafter, while the Defendant's probation
3 was in full force and effect, the Defendant did violate the terms and conditions
of his probation by:
D. The Defendant failed to report, in person, to the Fort Bend
County Community Supervision and Corrections Department for the months
of June, July, September and October 2013 and one time in August 2013;
F. The Defendant failed to work faithfully at a suitable employment
as far as possible for the months of June, July, August, September and
October 2013;
H. The Defendant failed to pay to the Fort Bend County Community
Supervision and Corrections Department a fee of $60.00 for the months of
March, April, May, June, July, August, September and October 2013;
L. The Defendant failed to pay fee for alcohol/drug testing to the
Fort Bend County Community Supervision and Corrections Department within
ten (10) days of the giving of a specimen for tests conducted on April 24, 2013
and May 13, 2013;
CCC. The Defendant failed to attend, participate in, and successfully
complete in sex offender counseling at the Center for Healthy Sexuality
Restitution and Responsibility Treatment Program as evidenced by missing
his group on August 23,2012, September 13, 2012, October 25, 2012,
January 10, 2013, February 7, 2013, April 18, 2013, June 4, 2013, June 13,
2013, June 29, 2013, July 5, 2013, July 11, 2013, July 18, 2013, July 25,
4 2013, August 1, 2013, August 8, 2013 and August 15 2013, and further
evidenced by the Defendant being unsuccessfully discharged from treatment
on August 20, 2013;
CCC. The Defendant failed to be responsible for any costs of the
program as evidenced by being delinquent in the amount of $640.00 for
treatment service fees to The Center for Healthy Sexuality Restitution and
Responsibility Treatment Program;
CCC. The Defendant failed to attend, participate in, and successfully
complete a sex offender treatment program with a Registered Sex Offender
Counselor approved by his Community Corrections Officer, as evidenced by
being unsuccessfully discharged from The Center for Healthy Sexuality
Restitution and Responsibility Treatment Program on August 20, 2013 due
to excessive absences;
LLL. The Defendant shall pay a Sex Offender Supervision Fee of
$5.00 per month through the Community Supervision and Corrections
Department for the months of March, April, May, June, July, August,
September and October 2013.
(C.R. 193-194).
Timothy Olier a community supervision officer with the Fort Bend County
community supervision and corrections department testified that he had supervised
Appellant since February of 2013. (4 R.R. 18). Appellant was supposed to report 5 twice a month and failed to report for the months of June, July, September and
October 2013 and once in August of 2013. (4 R.R. 19). Appellant was also to remain
employed as a condition of his probation. Appellant advised that he was employed
at FedEx. Olier contacted FedEx to verify his employment, but was notified in
writing from FedEx that he was never an employee there. (4 R.R. 19). Appellant was
not employed during June, July, August, September and October 2013. (4 R.R. 19).
Appellant also failed to pay probation fees for March though and including October
2013, another violation of his probation. (4 R.R. 20). He also failed to pay for drug
tests conducted for April 24 and May 13, 2013. (4 R.R. 21-22). Appellant was in sex
offender treatment at the time Olier took over his caseload, but he stopped reporting.
Appellant had numerous absences from the program. (4 R.R. 21-22). He was
unsuccessfully discharged as of August 20, 2013. (4 R.R. 23). Appellant was also
delinquent in treatment fees with the treatment provider as well as missing his sex
offender supervision fee of $5 a month for the months of March through October of
2013. (4 R.R. 24).
In May 2013, Appellant contacted Olier and told him that he was ill and in the
hospital. Olier told him that he just needed to provide Olier documentation on where
he was and contact Olier upon his release. (4 R.R. 24). Appellant provided one
document to Olier which was unsigned and it appeared that it was not a legitimate.
6 (4 R.R. 24, 29). The document claimed that Appellant had leukemia. Appellant
never provided Olier with any other medical records to support his claim of leukemia.
(4 R.R. 24).
At the end of June, approximately June 25, Olier received a telephone call and
Appellant stated that he had been diagnosed with cancer. Appellant was instructed
to contact Olier once he was released from the hospital. On July 8, Appellant called
Olier and said he was back in the hospital and that he had fallen and broken his hip.
Olier instructed him to have the hospital fax documentation as proof of his condition
and his hospital stay which Olier never received. (4 R.R. 25, 34). On July 11, 2013,
Olier attempted to do a field visit at Appellant’s residence but there was no answer
at his door. (4 R.R. 25). On July 12, 2013 Appellant called and stated he was still in
the hospital. Olier told Appellant he still had not received the fax to prove where he
was or of his condition. Appellant agreed to have it faxed, but Olier never received
it. (4 R.R. 26).
On August 9, 2013 Appellant called Olier and stated that he was in St. Luke’s
hospital and had kidney failure and didn’t know when he would be released from the
hospital. He said that he was going to have a kidney transplant. He told Olier that
he was given a kidney transplant from his girlfriend. (4 R.R. 35). He also told Olier
that his girlfriend had a copy of the medical information and she would bring it to the
7 office that day, which she never did. (4 R.R. 26). Appellant reported to the office on
August 22, 2013 and appeared to be healthy. (4 R.R. 26-27). Olier discovered from
the internet that Appellant was married. (4 R.R. 27).
Kim Cabrera with the community corrections department for Fort Bend County
testified that as a court liaison she goes over what the conditions are with the
defendant before they leave the courtroom and provides them with a copy of their
judgment along with their conditions and she goes over each condition and addendum
with them including their reporting instructions. (4 R.R. 41). When the defendant
goes to probation, the probation officer goes over the conditions with them again. (4
R.R. 42). Cabrera is currently assigned to supervise Appellant’s case. (4 R.R. 42).
Appellant was respectful, but didn’t actually do what he said he would do. (4 R.R.
44-45). Cabrera met with Appellant’s mother who was extremely negative about the
department in general and the supervising probation officers. (4 R.R. 46).
Appellant’s medical file contained a letter sent to them by Appellant’s girlfriend, now
wife, from Memorial Herman concerning a medical condition he had along with
discharge paperwork from St. Luke’s Hospital from April of 2013. (4 R.R. 47).
Appellant has failed to do anything to become compliant or to indicate that he wants
to continue on and successfully complete his probation. (4 R.R. 47). .
Appellant testified that at the time of the motion to adjudicate hearing, he was
8 twenty-seven years old was employed as an electrician/shop manager and delivery
truck driver for Capp Electric beginning on August 18, 2014. (4 R.R. 101). He was
able to obtain insurance when he got the job. (4 R.R. 102). Appellant testified to his
health issues, claiming that he had been exhausted and in excruciating pain. He
claimed that he kept in touch with his probation officer. Appellant testified that he
thought he had a hip fracture and that he had kidney stones. (4 R.R. 107-108).
Around August of 2013, his health began to improve and he got a job and insurance.
(4 R.R. 108). Appellant admitted he was delinquent in his fees, and didn’t make any
payments since he got his job. (4 R.R. 113). Appellant stated that Olier and his
mother did not tell the truth regarding a number of his health issues. (4 R.R. 114-
115). Appellant admitted that during the months of January through May of 2013 he
was physically able to comply with his conditions of probation. (4 R.R. 116). He
was also physically able to comply with his conditions of probation in August
through October of 2012. (4 R.R. 117). Appellant stated that his wife’s testimony
that during the past year Appellant had access to insurance and that he had been
“medically okay”, was incorrect, but he could not recall when he was removed from
her insurance. (4 R.R. 118-119). Appellant also claimed that Olier’s testimony that
Appellant failed to provide documentation to the probation department was not true.
Appellant testified that every time he was released out of the hospital he provided
9 documents. (4 R.R. 121). Appellant testified that his attorney had all of the medical
records that he claimed exist where turned over to his attorney. (4 R.R. 128-129).
The trial court found that Appellant violated conditions D, F, H, L, CCC, CCC,
CCC and LLL as alleged in the State’s motion to adjudicate. (4 R.R. 135). The trial
court adjudicated his guilt and found a lack of evidence to substantiate Appellant’s
claims of illnesses during 2013. (4 R.R. 136). The trial court assessed Appellant’s
punishment at six years in the Texas Department of Criminal Justice. (4 R.R. 136).
A condition of probation should be sufficiently specific to give the defendant
reasonable notice of what is expected of him. Drew v. State, 942 S.W.2d 98 (Tex.
App. Amarillo 1997). However a defendant must object at the time of sentencing to
a condition of community supervision, otherwise nothing is preserved for review on
appeal. Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999); Rogers v. State, 640
S.W.2d 248, 264-265 (Tex. Crim. App. 1982); Ivey v. State, 16 S.W.3d 75 (Tex. App.
Houston [1st Dist.] 2000). Appellant fails to point to any place in the record where
he objected to the conditions at the time he was placed on deferred adjudication or
during the motion to adjudicate. Therefore Appellant has waived his vagueness
complaint.
The State need only prove one violation of a condition of probation, and the
failure of a defendant to report to his community supervision officer as instructed on
10 one occasion is sufficient grounds for the trial court to adjudicate. Marcum .v. State,
983 S.W.2d 762 (Tex. App. Houston 14th Dist. 1998, pet. ref’d). It can be an abuse
of discretion to revoke probation for failure to report if the probationer establishes
good cause for the violation. Hall v. State, 452 S.W.2d 490 (Tex. Crim. App. 1970).
However a defendant’s admission that he failed to report is sufficient to support the
trial court’s judgment adjudicating a defendant’s community supervision. See Watts
v. State, 645 S.W.2d 461, 463 (Tex. Crim. App. 1983).
On appeal, the trial court’s decision to adjudicate is reviewed under an abuse
of discretion standard and the evidence is examined in the light most favorable to the
trial court’s finding. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel
Op.] 1981). The trial judge is the sole trier of fact and of the credibility of the
testimony during a hearing on a motion to adjudicate. See Garrett, 619 S.W.2d at
174. The State must prove by a preponderance of the evidence that a defendant
violated the terms and conditions of community supervision. Hacker v. State, 389
S.W.3d 860, 964-865 (Tex. Crim. App. 2013). Proof of a single violation of a
defendant’s community supervision is sufficient to support a trial court’s decision to
adjudicate. Bryant v. State, 391 S.W.3d 86, 93 (Tex. Crim. App. 2012); Sanchez v.
State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980).
In the present case, one of the probation conditions required Appellant to report
11 to his community supervision officer in person twice a month however Olier testified
that Appellant failed to abide by such requirement from June through October of 2013
He also failed to report once in August of 2013. Also as part of his probation,
Appellant was required to work at a suitable place of employment for as far as
possible. Appellant claimed that he was employed at FedEx, however, when Mr.
Olier contacted FedEx to verify Appellant’s statements, Mr. Olier received written
documentation from FedEx saying that Appellant had never been an employee there.
In addition to failing to maintain suitable employment and deceiving his corrections
counselor, Appellant was delinquent on several required fees. For example, he failed
to pay probation fees from March through October 2013. He failed to pay for drug
tests conducted on April 24, 2013, and May 13, 2013. Appellant also failed to pay
fees related to his sex offender therapy. At the time of the hearing, Appellant was
$640 delinquent in treatment fees with his treatment provider . Moreover, sex
offender supervision fees of $5 a month remained unpaid from March through
October of 2013. Appellant also stopped reporting to sex offender therapy. Finally,
after repeated absences, he was unsuccessfully discharged on August 20, 2013. In
sum, Appellant violated a total of six probation conditions (C.R. 193).
Viewing the evidence in the light most favorable to the trial court’s decision,
the trial court did not abuse its discretion in adjudicating Appellant. Rickets v. State,
12 202 S.W.3d 759, 763-764 (Tex. Crim. App. 2006).
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, it is respectfully submitted that
all things are regular and that this Court find no reversible error in Appellant’s
conviction, affirm the judgment and sentence in all things, and order execution of the
judgment and sentence in accordance with the opinion of the Court.
Respectfully submitted, John F. Healey, Jr. District Attorney, Fort Bend County 268th Judicial District
/s/ John J. Harrity, III John J. Harrity, III Assistant District Attorney Fort Bend County, Texas SBN # 09133100 John.Harrity@fortbendcountytx.gov 301 Jackson Street, Room 101 Richmond, Texas 77469 281-341-4460 (office) 281-341-8638 (fax)
13 CERTIFICATE OF COMPLIANCE
This is to certify that in accordance with Texas Rule of Appellate Procedure
9.4(i)(3), this State’s Appellate Brief has been reviewed by the word count function
in WordPerfect, and contains 3516 words in its entirety.
/s/ John J. Harrity, III John J. Harrity, III
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instrument has
been forwarded to Appellant’s attorney of record, Don A. Hecker, 200 Highway 90a,
Suite B, Richmond, Texas 77479, or via email at dhecker281@aol.com, or via e-filing
on the date of the filing of the original with the Clerk of this Court.