Jennifer Lavigne v. State

• Court: Court of Appeals of Texas
• Decided: February 28, 2020
• Docket: 03-19-00111-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00111-CR

Jennifer Lavigne, Appellant

v.

The State of Texas, Appellee

FROM THE 403RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-DC-12-900138, THE HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

MEMORANDUM OPINION

Jennifer Lavigne was charged with the felony offense of theft. See Tex. Penal

Code § 31.03. Per the terms of a plea-bargain agreement, Lavigne’s adjudication of guilt was

deferred, and she was placed on deferred-adjudication community supervision. The State filed a

motion to adjudicate contending that Lavigne failed to comply with the terms of her community

supervision. Following a hearing on the motion, the district court granted the State’s motion,

adjudicated Lavigne’s guilt, revoked her community supervision, and sentenced her to seven

years’ imprisonment. See id. § 12.34. On appeal, Lavigne challenges the propriety of the district

court’s judgment adjudicating her guilt. We will affirm the district court’s judgment.

BACKGROUND

After being charged with the offense of theft, Lavigne agreed to plead guilty to

the charged offense in exchange for the State recommending that Lavigne’s adjudication of guilt be deferred, that she be placed on community supervision for ten years, and that she pay

approximately $50,000 in restitution over time during her community supervision. The district

court accepted Lavigne’s plea, deferred adjudication of guilt, placed her on deferred-adjudication

community supervision, and imposed conditions of community supervision, including the

requirements that she pay the restitution set out in the plea agreement, notify the Department if

she intends to change her address, report to her community-supervision officer as directed, and

pay court costs, supervision fees, and Crime Stopper fees. Nearly two years later, the State filed

a motion to adjudicate Lavigne’s guilt and to revoke her community supervision arguing that she

had not complied with the terms of her community supervision by failing to pay restitution, by

failing to meet with her community-supervision officer in May 2018 as directed, and by failing

to pay the required court costs, supervision fees, and Crime Stopper fees.

During the adjudication hearing, the following witnesses were called to the stand:

Melanie Deslatte-Brown, who was a community-supervision officer for the Travis County

Community Supervision Department (the “Department”), and Thomas Child, who was a friend of

Lavigne’s. In her testimony, Deslatte-Brown described two types of hearings that an individual

on community supervision may have with her community-supervision officer when she is not

in compliance with the terms of community supervision. The first is a supervisory hearing in

which an agreement to achieve compliance is prepared. If the individual fails to abide by the

agreement, then an administrative hearing is scheduled. In her testimony, Deslatte-Brown also

explained that although the district court deferring Lavigne’s conviction was in Travis County,

Lavigne moved to Harris County and was being partially monitored by the Harris County

Community Supervision Department; however, Deslatte-Brown also explained that the

restitution requirement was being monitored by the Travis County Department. Deslatte-Brown

2 also stated that Lavigne’s Harris County community-supervision officer reported that Lavigne

was in compliance with her community-supervision requirements.

In addition, Deslatte-Brown testified that although Lavigne initially made some

restitution payments, she stopped making those payments shortly after being placed on community

supervision. Further, Deslatte-Brown explained that the Department sent a delinquency notice to

Lavigne’s address of record in Houston, Texas, for each month that she failed to make a payment

and that the Department sent a delinquency notice nearly every month for two years. Regarding

those notices, Deslatte-Brown explained that none of those notices were ever sent back to the

Department and that in her experience, those letters are returned to the Department if they

have “an insufficient address.” Deslatte-Brown also recalled that the Department only had one

address listed for Lavigne, that Lavigne never informed the Department that she had moved, and

that Lavigne told her during the week before the adjudication hearing that she had lived at that

same Houston address since she was placed on community supervision.

While testifying, Deslatte-Brown stated that after Lavigne failed to pay restitution

for several months, the Department sent Lavigne notice of a scheduled supervisory hearing to be

held in May 2017. The notice was sent by regular and certified mail and was sent to Lavigne’s

address of record, and Lavigne attended the hearing. During the hearing, Lavigne was told the

amount of restitution that was delinquent and was instructed to pay the amount of the delinquency.

During Deslatte-Brown’s testimony, a copy of a supervisory-hearing agreement entered into

during that hearing was admitted into evidence. The agreement was signed by Lavigne and two

community-supervision officers, listed the amount of Lavigne’s delinquency, and set out her

monthly restitution payments. The report also warned that the failure to comply could result in

further legal action.

3 Further, Deslatte-Brown testified that Lavigne made no further payments after the

supervisory hearing and never contacted the Department to talk about restructuring her payments

or to state that she was no longer able to make the payments. Next, Deslatte-Brown explained

that because Lavigne did not make any payments after the supervisory hearing, the Department

scheduled an administrative hearing for May 2018 and sent an administrative summons by

regular and certified mail to the address on record for Lavigne advising her of when and where

the meeting would happen. Deslatte-Brown also testified that Lavigne did not attend the

administrative hearing or ever contact the Department to reschedule the hearing. Deslatte-Brown

also related that the website for the postal service stated that the certified version of the summons

was “unclaimed,” meaning that no one went to the post office to claim it, but contained no entry

regarding the summons sent by regular mail.

Next, Deslatte-Brown explained that after Lavigne failed to attend the

administrative hearing, she tried to meet with Lavigne regarding her delinquency three more

times but that Lavigne did not show up for any of those meetings. Deslatte-Brown related that

she sent a certified letter to Lavigne regarding the first meeting, that the letter was also not

claimed, that she had a conversation with Lavigne over the phone and scheduled a second

meeting after Lavigne did not show up for the first one, that Lavigne did not attend the second

meeting, that she talked with Lavigne over the phone once more and set up a third meeting for a

week later, and that Lavigne did not show up for that meeting.

During the hearing, Lavigne called Child as a witness. Child testified that he

knew Lavigne because she had been one of his culinary students in the past and that he had

known her for almost twenty years. Next, Child stated that although Lavigne lived at her father’s

home in Houston for her entire life, she moved in with Child approximately a week before the

4 adjudication hearing after her father asked her to leave his home. Further, Child stated that, until

recently, he had never known Lavigne to live anywhere other than at her father’s house. In his

testimony, Child agreed that it was reasonable to assume that Lavigne was receiving mail at her

father’s house.

After considering the arguments of the parties, the district court found all of the

State’s allegations to be true.

STANDARD OF REVIEW

A trial court’s decision to revoke deferred-adjudication community supervision

and proceed to an adjudication of guilt is reviewed in the same way that the revocation of

ordinary community supervision is reviewed. See Tex. Code Crim. Proc. art. 42A.108; Leonard

v. State, 385 S.W.3d 570, 572 n.1 (Tex. Crim. App. 2012). A trial court’s decision to revoke

community supervision is reviewed under an abuse-of-discretion standard of review. Rickels v.

State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). Under that standard, a trial court’s ruling

will only be deemed an abuse of discretion if it is so clearly wrong as to lie outside “the zone of

reasonable disagreement,” Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is

“arbitrary or unreasonable,” State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005).

“An order revoking community supervision must be supported by a preponderance

of the evidence.” Maxey v. State, 49 S.W.3d 582, 584 (Tex. App.—Waco 2001, pet. ref’d). In

this context, “a preponderance of the evidence” means “that greater weight of the credible

evidence which would create a reasonable belief that the defendant has violated a condition of

his probation.” Rickels, 202 S.W.3d at 763-64 (quoting Scamardo v. State, 517 S.W.2d 293, 298

(Tex. Crim. App. 1974)). When making its determination, a trial court may make reasonable

5 inferences from the evidence, see id. at 764, and “is the sole judge of the credibility of the

witnesses and the weight to be given to their testimony,” Hacker v. State, 389 S.W.3d 860, 865

(Tex. Crim. App. 2013). In addition, appellate courts review the evidence presented during the

hearing in the light most favorable to the trial court’s ruling. See Garrett v. State, 619 S.W.2d 172,

174 (Tex. Crim. App. 1981). The violation of a single condition of community supervision is

sufficient to support a revocation determination. See Jones v. State, 472 S.W.3d 322, 324 (Tex.

App.—Eastland 2015, pet. ref’d) (mem. op.). Accordingly, “to prevail on appeal, the defendant

must successfully challenge all of the findings that support the” trial court’s “revocation order.”

Silber v. State, 371 S.W.3d 605, 611 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

DISCUSSION

In her first issue on appeal, Lavigne contends that the district court erred by

determining that she violated the terms of her community supervision by failing to attend the

May 2018 administrative hearing.1 In her second issue on appeal, Lavigne urges that the district

court erred by determining that she violated the terms of her community supervision by failing to

pay restitution, supervision fees, courts costs, and Crime Stopper fees.

1 In the portion of her brief containing the summary of her arguments, Lavigne noted that the administrative hearing “was not a regularly scheduled probation appointment,” but she does not include any similar statement in the argument section of her brief and does not refer to cases suggesting that a condition of community supervision requiring an individual to report to her community-supervision officer as directed would not apply to an administrative hearing. Cf. Milligan v. State, No. 14-98-00837-CR, 2000 WL 890665, at *2 (Tex. App.—Houston [14th Dist.] July 6, 2000, no pet.) (op., not designated for publication) (upholding revocation on ground that defendant failed to appear “for an administrative hearing”). 6 Failure to Report

Regarding the failure-to-report allegation, Lavigne contends that the evidence

presented at the hearing was insufficient to establish that she knew of the scheduled

administrative hearing. As support for this argument, Lavigne highlights testimony presented at

the hearing indicating that she was in compliance with her reporting obligations in Harris

County. Further, Lavigne points out that although the Department sent an administrative

summons by certified mail pertaining to the administrative hearing, “she never picked up the

certified letter” and, therefore, did not receive notice of the hearing. Moreover, although she

acknowledges the testimony indicating that the summons was also sent by regular mail, Lavigne

contends that no evidence was presented during the hearing indicating that she ever received that

letter. Accordingly, Lavigne urges that there was no evidence showing that she was aware of

any obligation to attend the administrative hearing, that she cannot violate her duty to report

if she is not notified of an appointment, and that the district court abused its discretion by

determining that she violated the terms of her community supervision by failing to attend the

administrative hearing.

Although Lavigne points to the testimony demonstrating that the certified letter

was not claimed, other evidence was presented during that hearing upon which the district court

could have reasonably inferred that Lavigne was aware of the hearing and chose not to attend.

First, although Child testified that Lavigne had moved out of her father’s Houston home, his

testimony also indicated that her move was recent and happened months after the administrative

summons was mailed and after the administrative hearing was held. Moreover, Child explained

at the hearing that Lavigne had lived at that home for all of her life until moving out shortly

7 before the adjudication hearing and agreed that it was reasonable to conclude that Lavigne was

receiving mail at her father’s home.

Second, evidence was presented at the hearing demonstrating that the only

address on file for Lavigne was her father’s Houston home and that Lavigne never informed the

Department that she planned to move or had moved, which was required under the terms of her

community supervision. Further, evidence was presented that the administrative summons was

sent to Lavigne’s Houston address on record by regular mail and was not returned to the

Department, and no evidence was presented demonstrating that she did not receive that

summons. In addition, nearly two years’ worth of delinquency notices were sent to that address

and were not returned, and notice regarding the supervisor’s meeting that Lavigne attended was

sent to the same address and in the same manner (e.g. certified and regular mail) as the

administrative summons. Cf. Milligan v. State, No. 14-98-00837-CR, 2000 WL 890665, at *2

(Tex. App.—Houston [14th Dist.] July 6, 2000, no pet.) (op., not designated for publication)

(concluding that trial court did not abuse its discretion by determining that defendant failed to

report for administrative hearing where evidence showed that State sent notice of hearing to

defendant’s address, where letter was not returned, and where none of letters sent to defendant’s

home were returned).

Third, evidence was presented at the adjudication hearing showing that the terms

of Lavigne’s community supervision required her to pay restitution and report as directed, that

she attended a supervisory hearing regarding her failure to make restitution payments, and that

she signed a supervisor’s hearing report warning that the failure to make restitution payments as

directed in the report could result in further legal action. Additionally, evidence was presented

that Lavigne failed to make any additional restitution payments after the hearing, and the district

8 court could have reasonably inferred that Lavigne was aware that further hearings or other

consequences were likely to result.

Finally, evidence was presented indicating that after failing to appear for the

administrative hearing, Lavigne failed to attend three scheduled meetings, including two of

which she agreed to attend during phone calls with Deslatte-Brown. Accordingly, the district

court could have reasonably inferred that Lavigne was aware of those hearings but was choosing

not to appear. Based on all of the evidence presented, the district court could have similarly

inferred that Lavigne knew of the administrative hearing but chose not to attend.

Viewing the evidence in the light most favorable to the district court’s ruling and

considering the reasonable inferences that the district court was free to make from that evidence,

we conclude that the district court did not abuse its discretion by finding that the State proved by

a preponderance of the evidence that Lavigne violated the terms of her community supervision

by failing to appear as directed by her community-supervision officer. Having determined that

one of the alleged grounds sufficiently supported Lavigne’s revocation, we need not address the

sufficiency of the evidence supporting the other revocation grounds that the district court found

to be true. See Carter v. State, No. 01-11-00936-CR, 2012 WL 5989440, at *1, *3 (Tex. App.—

Houston [1st Dist.] Nov. 29, 2019, no pet.) (mem. op., not designated for publication) (noting

that defendant presented multiple grounds challenging revocation, upholding trial court’s

determination that defendant failed to report to her community-supervision officer, and

explaining that appellate court need not address defendant’s remaining challenges to revocation

because only one ground is needed to support revocation).

For all of these reasons, we overrule Lavigne’s first issue on appeal.

9 CONCLUSION

Having overruled Lavigne’s first issue on appeal, we affirm the district court’s

judgment adjudicating her guilt.

__________________________________________ Thomas J. Baker, Justice

Before Chief Justice Rose, Justices Baker and Triana

Affirmed

Filed: February 28, 2020

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