Kelvin L. Ragland v. State

• Court: Court of Appeals of Texas
• Decided: April 23, 2003
• Docket: 06-02-00126-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-02-00126-CR

KELVIN L. RAGLAND, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 202nd Judicial District Court

Bowie County, Texas

Trial Court No. 96F446-202

Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter

O P I N I O N

I. Nature of the Case

Kelvin L. Ragland appeals an order revoking his community supervision. In two points of error, he contends: (1) the trial court erred in not considering mitigating circumstances surrounding his pleas of true; and (2) the trial court abused its discretion in revoking rather than modifying his community supervision.

II. Factual and Procedural Background

On May 26, 2000, Ragland pled guilty to the offense of burglary of a habitation. The trial court sentenced Ragland to ten years' imprisonment with the understanding that the court would consider a motion for community supervision after ninety days. After Ragland had been incarcerated for ninety days, the trial court placed him on community supervision. As conditions of his supervision, the trial court required Ragland, inter alia: (1) to pay a monthly fee of forty dollars each month; (2) to report to a community supervision officer once each month or as otherwise directed by the officer; and (3) to abstain from the possession or use of nonprescription drugs.

In January 2002, the State filed an application to revoke Ragland's community supervision, alleging he failed to meet the above requirements. The trial court held a hearing on the State's motion, and Ragland pled "true" to the allegations. The trial court revoked Ragland's community supervision and sentenced him to five years' incarceration.

III. Discussion

Because Ragland's two points of error are interrelated, we will consider them together.

A. Standard of Review

A trial court has broad discretion in imposing conditions of community supervision. Quisenberry v. State, 88 S.W.3d 745, 749 (Tex. App.-Waco 2002, pet. ref'd). We review a trial court's decision to revoke community supervision under an abuse of discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). When there is sufficient evidence to support a finding the defendant violated a condition of his or her community supervision, the trial court does not abuse its discretion by revoking the supervision. Wade v. State, 83 S.W.3d 835, 839-40 (Tex. App.-Texarkana 2002, no pet.). "Proof of a single violation is sufficient to support revocation of community supervision." Id. at 840.

B. Analysis

Ragland pled true to each of the State's allegations in its motion to revoke his community supervision. In addition to his pleas of true, the record shows that Ragland failed to report to his community supervisor on several different occasions, that he only paid $223.00 in community supervision fees, and that he tested positive for marihuana on three different occasions. Ragland does not complain about the sufficiency of the evidence supporting revocation; rather, he asserts the trial court failed to consider mitigating evidence when revoking his community supervision. He points to nothing in the record supporting this contention.

A trial court's arbitrary refusal to consider mitigating evidence and the entire range of punishment available for the violation of a criminal law would constitute a denial of due process. See McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983); East v. State, 71 S.W.3d 774, 776 (Tex. App.-Texarkana 2002, no pet.); Cole v. State, 757 S.W.2d 864, 865 (Tex. App.-Texarkana 1988, pet. ref'd). But without a clear showing to the contrary, the appellate court presumes that the trial court's actions were correct. Steadman v. State, 31 S.W.3d 738, 741 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd).

Here, Ragland offered the following evidence of mitigating circumstances. Ragland testified that: (1) he is employed; (2) he has dependents to support; and (3) he is willing to pay all of his fines and fees in total.

Nothing in the record indicates that the trial court did not consider these factors. On the contrary, the court indicated that it was aware of both Ragland's employment and the fact that he had children to support. The record clearly shows the trial court considered the evidence regarding Ragland's job and his wife and children, but found his continued failure to comply with conditions of community supervision justified revocation. The record does not show that the trial court refused to consider the entire range of punishment or Ragland's mitigating circumstances. The trial court did not abuse its discretion in revoking rather than modifying Ragland's community supervision. Ragland's two points of error are overruled.

The judgment of the trial court is affirmed.

Jack Carter

Justice

Date Submitted: March 17, 2003

Date Decided: April 23, 2003

Do Not Publish

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                             No. 06-09-00218-CR

                                      RONNY GENE TIBBS, Appellant

                                       On Appeal from the Sixth Judicial District Court

                                                             Lamar County, Texas

                                                            Trial Court No. 21282

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            While Ronny Gene Tibbs was serving a period of community supervision that was to expire December 20, 2016, based on a third offense of driving while intoxicated, he admittedly ingested bootlegged whiskey, a clear violation of a condition of his community supervision.  The trial court revoked Tibbs’ community supervision and imposed a sentence of ten years’ confinement.  Tibbs appeals the trial court’s judgment revoking community supervision on the sole ground that it lacked jurisdiction because a capias warrant never issued.

            In support of his argument, Tibbs relies only on cases interpreting Section 21(e) of Article 42.12 of the Texas Code of Criminal Procedure, which states:

(e) A court retains jurisdiction to hold a hearing under Subsection (b) and to revoke, continue, or modify community supervision, regardless of whether the period of community supervision imposed on the defendant has expired, if before the expiration the attorney representing the state files a motion to revoke, continue, or modify community supervision and a capias is issued for the arrest of the defendant.

Tex. Code Crim. Proc. Ann. art. 42.12, § 21(e) (Vernon Supp. 2009).  All of Tibbs’ cited cases dealt with a trial court’s jurisdiction to revoke community supervision after the supervision period had expired.^[1]  They are inapplicable here, since Tibbs’ period of community supervision had clearly not expired.

            Article 42.12, Section 21(b) of the Texas Code of Criminal Procedure states:

At any time during the period of community supervision the judge may issue a warrant for violation of any of the conditions of the community supervision and cause the defendant to be arrested. Any supervision officer, police officer or other officer with power of arrest may arrest such defendant with or without a warrant upon the order of the judge to be noted on the docket of the court.

Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b) (Vernon Supp. 2009) (emphasis added).  Since the statute discusses issuance of capias as discretionary, it cannot be a general requirement for the court’s jurisdiction to revoke community supervision.  In other words, because the record reflects that Tibbs’ revocation occurred within the period for community supervision, issuance of a capias warrant was not required.^[2]  We overrule Tibbs’ sole point of error on appeal.

            We affirm the trial court’s judgment.

                                                                        Josh R. Morriss, III

                                                                        Chief Justice

Date Submitted:          August 3, 2010

Date Decided:             August 4, 2010

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^[1]Harris v. State, 843 S.W.2d 34 (Tex. Crim. App. 1992), overruled in part by Bawcom v. State, 78 S.W.3d 360, 363 (Tex. Crim. App. 2002); Davis v. State, 150 S.W.3d 196 (Tex. App.—Corpus Christi 2004), rev’d on other grounds, 195 S.W.3d 708 (Tex. Crim. App. 2006) (citing Peacock v. State, 77 S.W.3d 285 (Tex. Crim. App. 2002); Calderon v. State, 75 S.W.3d 555 (Tex. App.—San Antonio 2002, pet. ref’d) (op. on reh’g) (per curiam)).

^[2]See Jackson v. State, No. 13-03-00495-CR, 2005 WL 1981522, at *2 (Tex. App.—Corpus Christi Aug. 18, 2005, no pet.) (mem. op., not designated for publication).  Although this unpublished case has no precedential value, we may take guidance from it “as an aid in developing reasoning that may be employed.”  Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).