Opinion issued May 19, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00586-CR ——————————— ELIJAH ISAIAH-DOMINIQUE PLEASANT, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 405th Judicial District Court Galveston County, Texas Trial Court Case No. 11CR0712
MEMORANDUM OPINION
This is an appeal from an adjudication of guilt in which Appellant Elijah
Isaiah-Dominique Pleasant was sentenced to eight years’ confinement. The trial
court found true six of the allegations on which the State moved to revoke
Pleasant’s community supervision. In two issues, Pleasant contends that the trial court abused its discretion by (1) admitting his sex offender counselor’s reports
and records in violation of the Confrontation Clause and (2) taking judicial notice
of his probation file at the hearing on the State’s motion to revoke. We affirm.
Background
In February 2013, Pleasant pleaded guilty to third-degree felony injury to a
child. The trial court assessed punishment at eight years’ confinement, but
suspended the sentence and placed Pleasant on community supervision for eight
years. In March 2014, the State moved to revoke Pleasant’s community
supervision, alleging that Pleasant had failed to:
• pay supervision fees; • pay court costs; • reimburse Galveston County for compensation of appointed counsel; • pay the Crime Stoppers Program fee; • pay for the cost of drug/alcohol screening; • participate in a community service program at a rate of no less than 16 hours per month until completed; • enroll in a domestic violence and/or anger control program; and • attend sex offender counseling as required.
Pleasant pleaded not true to all of the allegations.
The trial court conducted a hearing on the State’s motion in May 2014. At
the State’s request, the trial court took judicial notice of Pleasant’s probation file.
It also heard the testimony of three witnesses: (1) Pleasant’s community
supervision officer, Kerry Klyng of the Galveston County Adult Probation
Department, (2) Pleasant, and (3) Pleasant’s girlfriend.
2 The trial court found six of the State’s eight allegations to be true. It found
that Pleasant had failed to:
• pay court costs; • pay the Crime Stoppers Program fee; • pay for the cost of drug/alcohol screening; • participate in a community service program at a rate of no less than 16 hours per month until completed; • enroll in a domestic violence and/or anger control program; and • attend sex offender counseling as required.
The trial court revoked Pleasant’s community supervision and assessed punishment
at eight years’ confinement.
Discussion
In two issues, Pleasant contends that the trial court abused its discretion by
taking judicial notice of his probation file and by admitting his sex offender
counselor’s hearsay reports and records, in violation of the Confrontation Clause.
The State responds that the trial court’s judgment should be affirmed because
Pleasant failed to challenge all grounds for revocation, or alternatively, that the
trial court properly took judicial notice of the probation file and admitted the
reports and records.
A. Standard of Review
We review a trial court’s order revoking community supervision under an
abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.
App. 2006). The trial court abuses its discretion in issuing the order to revoke if
3 the State fails to meet its burden of proof. Greathouse v. State, 33 S.W.3d 455,
458 (Tex. App.—Houston [1st Dist.] 2000, pet ref’d). We examine the evidence in
the light most favorable to the trial court’s order. Id. The trial court is the sole
trier of the facts and determines the credibility of the witnesses and the weight to
be given to their testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim.
App. 1980); Amado v. State, 983 S.W.2d 330, 332 (Tex. App.—Houston [1st Dist.]
1998, pet. ref’d).
In a community supervision revocation hearing, the State must prove by a
preponderance of the evidence that the probationer violated the terms and
conditions of community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex.
Crim. App. 1993); Shah v. State, 403 S.W.3d 29, 33 (Tex. App.—Houston [1st
Dist.] 2012, pet. ref’d). This standard is met when the greater weight of the
credible evidence creates a reasonable belief that the probationer violated a
condition of his community supervision. Jenkins v. State, 740 S.W.2d 435, 437
(Tex. Crim. App. 1983); Shah, 403 S.W.3d at 34.
When several violations are found by the trial court, we will affirm the order
revoking community supervision if the State proved any violation by a
preponderance of the evidence. 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.”) (citations
4 omitted). And the trial court’s judgment should be affirmed if the appellant does
not challenge all of the grounds on which the trial court revoked community
supervision. Joseph v. State, 3 S.W.3d 627, 640 (Tex. App.—Houston [14th Dist.]
1999, no pet.) (“Thus, in order to prevail, appellant must successfully challenge all
the findings that support the revocation order.”).
B. Analysis
In his second issue, Pleasant contends that the trial court abused its
discretion by taking judicial notice of the contents of his probation file, which
presumably support multiple grounds for revocation. Specifically, Pleasant asserts
that the file contained his sex offender counselor’s records, which are not an
appropriate subject matter of which to take judicial notice. Even assuming that the
trial court erred in taking judicial notice of Pleasant’s probation file, we conclude
that the trial court did not abuse its discretion in revoking Pleasant’s community
supervision based on his failure to perform community service in accordance with
the conditions of community supervision.
The violation of a single condition of community supervision is sufficient to
support revocation. Smith, 286 S.W.3d at 342; Joseph, 3 S.W.3d at 640 (“[I]n
order to prevail, appellant must successfully challenge all the findings that support
the revocation order.”). Here, the unrebutted testimony of Klyng, Pleasant’s
community supervision officer, established that Pleasant failed to perform his
5 court-ordered community service at the required rate. The order granting
community supervision required Pleasant to perform 200 hours of community
service at a rate of 16 hours per month until completed. Klyng testified that over
the course of nearly 14 months, Pleasant had completed only six of the 200
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Opinion issued May 19, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00586-CR ——————————— ELIJAH ISAIAH-DOMINIQUE PLEASANT, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 405th Judicial District Court Galveston County, Texas Trial Court Case No. 11CR0712
MEMORANDUM OPINION
This is an appeal from an adjudication of guilt in which Appellant Elijah
Isaiah-Dominique Pleasant was sentenced to eight years’ confinement. The trial
court found true six of the allegations on which the State moved to revoke
Pleasant’s community supervision. In two issues, Pleasant contends that the trial court abused its discretion by (1) admitting his sex offender counselor’s reports
and records in violation of the Confrontation Clause and (2) taking judicial notice
of his probation file at the hearing on the State’s motion to revoke. We affirm.
Background
In February 2013, Pleasant pleaded guilty to third-degree felony injury to a
child. The trial court assessed punishment at eight years’ confinement, but
suspended the sentence and placed Pleasant on community supervision for eight
years. In March 2014, the State moved to revoke Pleasant’s community
supervision, alleging that Pleasant had failed to:
• pay supervision fees; • pay court costs; • reimburse Galveston County for compensation of appointed counsel; • pay the Crime Stoppers Program fee; • pay for the cost of drug/alcohol screening; • participate in a community service program at a rate of no less than 16 hours per month until completed; • enroll in a domestic violence and/or anger control program; and • attend sex offender counseling as required.
Pleasant pleaded not true to all of the allegations.
The trial court conducted a hearing on the State’s motion in May 2014. At
the State’s request, the trial court took judicial notice of Pleasant’s probation file.
It also heard the testimony of three witnesses: (1) Pleasant’s community
supervision officer, Kerry Klyng of the Galveston County Adult Probation
Department, (2) Pleasant, and (3) Pleasant’s girlfriend.
2 The trial court found six of the State’s eight allegations to be true. It found
that Pleasant had failed to:
• pay court costs; • pay the Crime Stoppers Program fee; • pay for the cost of drug/alcohol screening; • participate in a community service program at a rate of no less than 16 hours per month until completed; • enroll in a domestic violence and/or anger control program; and • attend sex offender counseling as required.
The trial court revoked Pleasant’s community supervision and assessed punishment
at eight years’ confinement.
Discussion
In two issues, Pleasant contends that the trial court abused its discretion by
taking judicial notice of his probation file and by admitting his sex offender
counselor’s hearsay reports and records, in violation of the Confrontation Clause.
The State responds that the trial court’s judgment should be affirmed because
Pleasant failed to challenge all grounds for revocation, or alternatively, that the
trial court properly took judicial notice of the probation file and admitted the
reports and records.
A. Standard of Review
We review a trial court’s order revoking community supervision under an
abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.
App. 2006). The trial court abuses its discretion in issuing the order to revoke if
3 the State fails to meet its burden of proof. Greathouse v. State, 33 S.W.3d 455,
458 (Tex. App.—Houston [1st Dist.] 2000, pet ref’d). We examine the evidence in
the light most favorable to the trial court’s order. Id. The trial court is the sole
trier of the facts and determines the credibility of the witnesses and the weight to
be given to their testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim.
App. 1980); Amado v. State, 983 S.W.2d 330, 332 (Tex. App.—Houston [1st Dist.]
1998, pet. ref’d).
In a community supervision revocation hearing, the State must prove by a
preponderance of the evidence that the probationer violated the terms and
conditions of community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex.
Crim. App. 1993); Shah v. State, 403 S.W.3d 29, 33 (Tex. App.—Houston [1st
Dist.] 2012, pet. ref’d). This standard is met when the greater weight of the
credible evidence creates a reasonable belief that the probationer violated a
condition of his community supervision. Jenkins v. State, 740 S.W.2d 435, 437
(Tex. Crim. App. 1983); Shah, 403 S.W.3d at 34.
When several violations are found by the trial court, we will affirm the order
revoking community supervision if the State proved any violation by a
preponderance of the evidence. 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.”) (citations
4 omitted). And the trial court’s judgment should be affirmed if the appellant does
not challenge all of the grounds on which the trial court revoked community
supervision. Joseph v. State, 3 S.W.3d 627, 640 (Tex. App.—Houston [14th Dist.]
1999, no pet.) (“Thus, in order to prevail, appellant must successfully challenge all
the findings that support the revocation order.”).
B. Analysis
In his second issue, Pleasant contends that the trial court abused its
discretion by taking judicial notice of the contents of his probation file, which
presumably support multiple grounds for revocation. Specifically, Pleasant asserts
that the file contained his sex offender counselor’s records, which are not an
appropriate subject matter of which to take judicial notice. Even assuming that the
trial court erred in taking judicial notice of Pleasant’s probation file, we conclude
that the trial court did not abuse its discretion in revoking Pleasant’s community
supervision based on his failure to perform community service in accordance with
the conditions of community supervision.
The violation of a single condition of community supervision is sufficient to
support revocation. Smith, 286 S.W.3d at 342; Joseph, 3 S.W.3d at 640 (“[I]n
order to prevail, appellant must successfully challenge all the findings that support
the revocation order.”). Here, the unrebutted testimony of Klyng, Pleasant’s
community supervision officer, established that Pleasant failed to perform his
5 court-ordered community service at the required rate. The order granting
community supervision required Pleasant to perform 200 hours of community
service at a rate of 16 hours per month until completed. Klyng testified that over
the course of nearly 14 months, Pleasant had completed only six of the 200
required hours.
Pleasant also admitted that he performed only six hours of community
service. He testified that his only excuse for failing to perform more community
service was lack of transportation. But he also admitted that he could walk to the
location at which he was required to perform his community service.
We conclude that this evidence was sufficient to show, by a preponderance
of the evidence, that Pleasant failed to complete the required hours of community
service at the required rate and thus violated the community service condition of
his community supervision, justifying revocation. See Thomas v. State, No. 14-10-
00653-CR, 2011 WL 1709940, at *2 (Tex. App.—Houston [14th Dist.] May 3,
2011, pet. ref’d) (mem. op., not designated for publication) (probation officer’s
testimony that appellant failed to perform his community service hours at required
rate was sufficient evidence to support revocation); Cochran v. State, 78 S.W.3d
20, 28 (Tex. App.—Tyler 2002, no pet.) (same); Elizondo v. State, 966 S.W.2d
672, 673 (Tex. App.—San Antonio 1998, no pet.) (same).
6 Because Klyng’s oral testimony and Pleasant’s own admission amply
support the trial court’s finding that Pleasant failed to complete the required
community service hours, we conclude that error in taking judicial notice of the
contents of Pleasant’s probation file, if any, would not warrant reversal. See Garza
v. State, 996 S.W.2d 276, 280 (Tex. App.—Dallas 1999, pet. ref’d) (recognizing
that trial court’s error in taking judicial notice is subject to harmless error rule).
Even assuming that the probation file contained evidence that Pleasant failed to
complete his required community service, it would be, at most, duplicative of
Klyng’s and Pleasant’s own oral testimony, which Pleasant does not challenge on
appeal. Accordingly, any error in taking judicial notice of the contents of
Pleasant’s probation file was harmless. See TEX. R. APP. P. 44.2(b); see also
Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (improper admission
of evidence does not constitute reversible error and is properly deemed harmless if
same or similar facts are proved by other properly admitted evidence); Anderson v.
State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986) (same); Gavin v. State, 404
S.W.3d 597, 605 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (appellant failed
to show that his trial counsel’s request for trial court to take judicial notice of its
records prejudiced him because “all of the information that the trial court noted
from its files was duplicative of testimony” offered at trial).
7 Because any single unchallenged ground will support revocation, we hold
that Pleasant failed to show that the trial court abused its discretion in revoking
based on Pleasant’s failure to comply with the community service condition of his
community supervision, and we need not address his first issue regarding the
admission of his sex offender counselor’s reports and records that support the
finding that he failed to attend sex offender counseling. See Smith, 286 S.W.3d at
342 (one sufficient ground for revocation supports trial court’s order revoking
community supervision); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App.
1980) (“We need not address appellant’s other contentions since one sufficient
ground for revocation will support the court’s order to revoke probation.”); Gobell
v. State, 528 S.W.2d 223, 224 (Tex. Crim. App. 1975) (“Since the other finding
upon which probation was revoked is unchallenged, appellant’s contention, even if
correct, would not show an abuse of discretion.”).
We overrule Pleasant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Rebeca Huddle Justice
Panel consists of Justices Keyes, Huddle, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).