Joshua Alexander Henry v. State

• Court: Court of Appeals of Texas
• Decided: November 21, 2013
• Docket: 06-13-00101-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-13-00101-CR

JOSHUA ALEXANDER HENRY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 23736

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Joshua Alexander Henry appeals from the revocation of his community supervision and

the final adjudication of his guilt. Originally, Henry’s conviction for evading arrest with a motor

vehicle was deferred, and he was placed on community supervision for four years. The State

filed motions to revoke his community supervision and adjudicate him based on failure to pay

various fees, failure to report, and failure to complete community service work. After a hearing,

the trial court revoked Henry’s community supervision, adjudicated him guilty of evading arrest

with a motor vehicle, and sentenced him to twenty-four months in a state jail facility. We find

the evidence sufficient to support the allegation that he had not reported as required by the

conditions of community supervision and affirm the judgment of the trial court.

I. Untimely Challenges

Henry contends that two conditions of his community supervision are so vague and

indefinite that they are unenforceable. One requires him to “report in person as scheduled to the

Community Supervision and Corrections Department (CSCD) of Lamar County, or the county in

which you are permitted to reside.” The other requires him to “[p]erform 300 hours of

Community Service Restitution (CSR) work and complete a CSR orientation within 30 days of

the date of this order, and abide by all rules of the CSR program.”

These challenges should have been raised by a timely appeal after Henry was placed on

community supervision, not after his community supervision was revoked. An appeal may be

taken at the time a defendant is placed on community supervision. See TEX. CODE CRIM. PROC.

ANN. art. 42.12, § 23(b) (West Supp. 2013). Henry waived his challenges to the conditions of

2 community supervision by failing to appeal after being placed on community supervision. Leach

v. State, 170 S.W.3d 669, 676 (Tex. App.—Fort Worth 2005, pet. ref’d) (citations omitted).

Because Henry’s argument on this point was not timely appealed, we lack jurisdiction to address

it now.

II. Sufficiency of the Evidence

Henry also argues that the evidence is insufficient to support the trial court’s

determination that he violated various terms of his community supervision. Sufficient grounds

for a revocation order exist if any violation of community supervision is properly shown. Garcia

v. State, 387 S.W.3d 20, 27 (Tex. Crim. App. 2012).

Our review of an order revoking community supervision is limited to determining

whether the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.

App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In a community

supervision revocation hearing, although the revocation decision rests within the discretion of the

trial court, that discretion is not absolute. Wester v. State, 542 S.W.2d 403, 405 (Tex. Crim.

App. 1976); Scamardo v. State, 517 S.W.2d 293, 297 (Tex. Crim. App. 1974). The trial court is

not authorized to revoke community supervision without a showing, by a preponderance of the

evidence, that the defendant has violated a condition of the community supervision imposed by

the court. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987); Cardona, 665 S.W.2d

at 493.

The State argues that sufficient evidence supports each allegation. In this case, there is

evidence that Henry failed to report to the community supervision department. The supervising

3 community supervision officer, Danny Taylor, testified that he had been Henry’s officer since

October 7, 2011. According to Taylor, Henry failed to report “probably five times” in the first

year. Since December 2012, until the date of hearing, May 20, 2013, he had not reported at all.

Henry acknowledged that he did not report to the community supervision office from December

2012 through the next April, but testified that he was hurt. It is the function of the trial court to

determine the credibility of the witnesses and resolve any conflicts in the evidence. The

preponderance of the evidence is sufficient to support the allegation of failure to report and,

therefore, sufficient to support the revocation. We cannot find that the trial court abused its

discretion in finding Henry violated the terms of his community supervision.

III. Hearsay Objection

Henry also contends that the trial court erred by admitting hearsay over his objection.

He complains about testimony by Taylor. Over objection, Taylor testified about Henry’s

behavior on community supervision before Taylor began handling his case. Henry’s specific

complaint is that without the admission of the community supervision file into evidence, the

officer’s testimony (except for the officer’s personal knowledge of Henry’s failures to report

after the officer began handling his case) was hearsay. But the record shows that the community

supervision file was admitted into evidence. We overrule this point of error.

4 We affirm the judgment of the trial court.

Jack Carter Justice

Date Submitted: November 20, 2013 Date Decided: November 21, 2013

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