McWilliams, Leticia

• Court: Texas Supreme Court
• Decided: January 16, 2015
• Docket: PD-0042-15
• Status: Published

Opinion

PD-0042-15 COURT OF CRIMINAL APPEALS

JANUARY 16, 2015 PD-0042-15 AUSTIN, TEXAS Transmitted 1/7/2015 6:11:09 PM Accepted 1/16/2015 1:21:17 PM ABEL ACOSTA IN THE COURT OF CRIMINAL APPEALS CLERK FOR THE STATE OF TEXAS

LETICIA MCWILLIAMS APPELLANT

V. COA NO. 02-14-00142-CR TRIAL COURT NO. 1174887 THE STATE OF TEXAS, APPELLEE

APPEALED FROM CAUSE NUMBER 1174887, IN THE CRIMINAL DISTRICT COURT NUMBER THREE, TARRANT COUNTY, TEXAS; THE HONORABLE ROBB CATALANO, JUDGE PRESIDING.

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

WILLIAM H. "BILL" RAY TEXAS BAR CARD NO. 16608700 ATTORNEY FOR APPELLANT

LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C. 512 MAIN STREET, STE. 308 FORT WORTH, TEXAS 76102 (817) 698-9090 (817) 698-9092, FAX bill@billraylawyer.com

ORAL ARGUMENT NOT REQUESTED

PETITION FOR DISCRETIONARY REVIEW, PAGE 1 IDENTITY OF PARTIES AND COUNSEL

LETICIA MCWILLIAMS APPELLANT c\o Texas Dept. of Criminal Justice, Institutional Division, Huntsville, Texas

HONORABLE WILLIAM H. RAY ATTORNEY FOR APPELLANT 512 Main Street, Ste. 308 ON APPEAL Ft. Worth, Texas 76102

HONORABLE FELIPE CALZADAD ATTORNEY FOR APPELLANT 2724 Kimbo Road AT TRIAL Ft. Worth, Texas 76111

HONORABLE SHAREN WILSON CRIMINAL DISTRICT ATTORNEY 401 W. Belknap St. TARRANT COUNTY, TEXAS Ft. Worth, Tx. 76196-0201

HONORABLE TIFFANY BURKS ASSISTANT CRIMINAL DISTRICT 401 W. Belknap St. ATTORNEY, TARRANT COUNTY, Ft. Worth, Tx. 76196-0201 TEXAS

HONORABLE ROBB CATALANO JUDGE, CRIMINAL DISTRICT 401 W. Belknap St. COURT NUMBER THREE Ft. Worth, Texas 76196 TARRANT COUNTY, TEXAS

HONORABLE LISA McMINN STATE PROSECUTING P.O. Box 13046 ATTORNEY Austin, Texas 78711

PETITION FOR DISCRETIONARY REVIEW, PAGE 2 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL 2

INDEX OF AUTHORITIES 4

STATEMENT CONCERNING ORAL ARGUMENT 5

STATEMENT OF THE CASE 5

STATEMENT OF THE PROCEDURAL HISTORY 6

GROUNDS FOR REVIEW

GROUND FOR REVIEW NUMBER ONE 7

THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT APPELLANT VIOLATED THE TERMS OF HER PROBATION AND ADJUDICATING APPELLANT GUILTY AND THEN SENTENCING APPELLANT TO FOUR YEARS IN PRISON

PRAYER 9

CERTIFICATE OF SERVICE 10

CERTIFICATE OF COMPLIANCE 10

APPENDIX The Appendix contains the Opinion of the Court of Appeals.

PETITION FOR DISCRETIONARY REVIEW, PAGE 3 INDEX OF AUTHORITIES

Cases Page

Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984) 7

Rickels v. State, 202 S.W.3d 759 (Tex.Crim.App. 2006) 7

Scamardo v. State, 517 S.W.2d 293, 298 (Tex.Crim.App. 1974) 7

Statutes

Article 42.12, Section 21 ( c) Code of Criminal Procedure 8

PETITION FOR DISCRETIONARY REVIEW, PAGE 4 STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not necessary in this case.

STATEMENT OF THE CASE

This is an appeal from a felony conviction resulting from a revocation of

probation for the offense of Intoxication Assault. Appellant was charged by

indictment with the offense of Intoxication Assault CR, Pages 7-8.

Appellant pled guilty to count one of the indictment pursuant to a plea

agreement, which the trial court followed, and was placed on 10 years probation

for the offense of Intoxication Assault on January 19, 2010. CR, Pages 30-33.

This probation had standard terms of probation and additional supplemental terms

for DWI related cases. CR, Pages 34-36.

On April 4, 2014, the trial court heard the State’s Second Petition to Revoke

Probation. CR, Pages 79-82, RR, Pages 1-48. The trial court found the

allegations of the petition to be true and revoked Appellant’s probation and

sentenced Appellant to four years in the Institutional Division of the Texas

Department of Criminal Justice. CR, Pages 92-97. RR, Page 47.

On direct appeal, the Court of Appeals for the Second Appellate District in

Fort Worth affirmed Appellant’s conviction. The opinion was not designated for

publication.

PETITION FOR DISCRETIONARY REVIEW, PAGE 5 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

Appellant was sentenced on April 4, 2014. Notice of Appeal was timely

filed. Appellant timely filed her brief in the Court of Appeals on July 24, 2014.

The State timely filed its brief on September 18, 2014.

The case was submitted to the Court of Appeals, without oral argument, on

October 31, 2014. The Court of Appeals affirmed Appellant’s conviction on

December 18, 2014. That opinion is not designated for publication.

This Petition for Discretionary Review is timely filed.

PETITION FOR DISCRETIONARY REVIEW, PAGE 6 GROUND FOR REVIEW NUMBER ONE

THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT APPELLANT VIOLATED THE TERMS OF HER PROBATION AND ADJUDICATING APPELLANT GUILTY AND THEN SENTENCING APPELLANT TO FOUR YEARS IN PRISON

Appellate review of an order revoking probation is limited to abuse of the

trial court's discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.

1984). In determining questions regarding sufficiency of the evidence in probation

revocation cases, the burden of proof is by a preponderance of the evidence. Id.

An order revoking probation must be supported by a preponderance of the

evidence; in other words, that greater weight of the credible evidence which would

create a reasonable belief that the defendant has violated a condition of his

probation. Scamardo v. State, 517 S.W.2d 293, 298 (Tex.Crim.App. 1974),

Rickels v. State, 202 S.W.3d 759 (Tex.Crim.App. 2006).

In this case, the petition to revoke probation had several allegations, but

other than a single act of failing to submit a urine specimen, all the acts were

derived from Appellant’s failure to do an act which was ultimately founded in a

financial obligation. Specifically, Appellant was required to install the In-Home

monitoring device [Paragraph 1A and 3], Pay a supervision fee monthly in the

amount of $60.00 [Paragraph 2], Pay for urine testing [Paragraph 4], Pay electronic

monitoring fees and it was alleged that Appellant was $2,425.00 in arrears. PETITION FOR DISCRETIONARY REVIEW, PAGE 7 [Paragraph 5], and Work faithfully at suitable employment [Paragraph 6].

Article 42.12 of the Code of Criminal Procedure, Section 21 ( c) requires

that the State prove by a preponderance of the evidence that the defendant was able

to pay probation fees, and did not pay as ordered by the judge. In this case, there

was ample proof that Appellant did not pay probation fees, but there was no proof

that she had the ability to pay those fees. Appellant testified that she was indigent,

as did Queinton Waldon, the probation officer. RR, Page 18. Salina Aguirre was

Appellant’s SWIFT probation officer and was also aware that Appellant was

indigent. RR, Pages 26-30.

Appellant testified that she was indigent and had no means to pay the

money. RR, Pages 32-35; 42-43.

The trial court then revoked Appellant’s probation and sentenced her to four

years in prison. CR, Pages 92-97; RR, Page 47.

The trial court erred in so finding that Appellant had the ability to pay her

fees, and other than the single allegation that Appellant did not provide a urine

sample, were the only allegations or basis of the allegations made by the State for

revocation. Appellant submits that her failure to submit a urine sample was

beyond hear control and she was in fact present and able to submit a sample, she

just could not stay all afternoon due to her mothers work.

PETITION FOR DISCRETIONARY REVIEW, PAGE 8 The Court of Appeals held that the trial court did not abuse its discretion,

noting that a single allegation, in this case the failure to submit a urine specimen,

was sufficient to sustain a decision to revoke probation. Opinion, pages 5-6.

While the law allows revocation on a single issue, Appellant submits that,

given the totality of the financial circumstances facing Appellant, the trial court

abused its discretion in revoking and the Court of Appeals erred in sanctioning this

decision of the trial court.

PRAYER FOR RELIEF

Appellant Prays that this Honorable Court reverse the trial court’s order

revoking her probation and remand the case for a new trial.

RESPECTFULLY SUBMITTED,

/S/ WILLIAM H. “BILL” RAY WILLIAM H. "BILL" RAY TEXAS BAR CARD NO. 16608700 ATTORNEY FOR APPELLANT

LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C. 512 MAIN STREET, STE. 308 FORT WORTH, TEXAS 76102 (817) 698-9090 (817) 698-9092, FAX

PETITION FOR DISCRETIONARY REVIEW, PAGE 9 CERTIFICATE OF SERVICE

I certify that a true copy of Appellant's Brief was delivered via the electronic filing system to the office of Sharen Wilson, Criminal District Attorney, Criminal District Attorney of Tarrant County, Texas, 401 W. Belknap St. Ft. Worth, Tx. 76196-0201 on the date of this document’s filing. I certify that a true copy of Appellant's Petition for Discretionary Review was placed in the United States Mail addressed to Appellant, in the Texas Department of Corrections / Tarrant County Jail, on the date of this document’s filing. I certify that a true copy of Appellant's Petition for Discretionary Review was delivered via the electronic filing system to the State’s Prosecuting Attorney, at P.O. Box 13046, on the date of this document’s filing.

/S/ WILLIAM H. “BILL” RAY WILLIAM H. “BILL” RAY

CERTIFICATE OF COMPLIANCE Pursuant to Rule 9.4 i3, of the Texas Rules of Appellate Procedure, I certify that the Brief on Direct Appeal filed in this case, has 1424 words contained therein. This count was obtained via the WordPerfect computer program.

/S/ WILLIAM H. "BILL" RAY WILLIAM H. “BILL” RAY

PETITION FOR DISCRETIONARY REVIEW, PAGE 10 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00142-CR

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY TRIAL COURT NO. 1174887D

MEMORANDUM OPINION1

I. INTRODUCTION

Appellant Leticia McWilliams appeals from the revocation of her

community supervision. In her sole point, McWilliams argues that the trial court

abused its discretion by revoking her community supervision and by sentencing

her to four years’ imprisonment. We will affirm.

1 See Tex. R. App. P. 47.4. II. PROCEDURAL BACKGROUND

On January 19, 2010, McWilliams pleaded guilty, pursuant to a plea

agreement, to the third-degree felony of intoxication assault. See Tex. Penal

Code Ann. § 49.07 (West 2011). The trial court sentenced McWilliams to ten

years’ confinement; imposed a $1,000 fine; suspended the sentence; and placed

McWilliams on community supervision for a period of ten years. On July 22,

2011, the State filed a petition to revoke McWilliams’s community supervision.

Three months later, the State filed a motion to dismiss its petition to revoke, and

the trial court dismissed the petition, continued McWilliams’s community

supervision, and imposed additional conditions of community supervision.

The State filed a second petition to revoke McWilliams’s community

supervision on February 4, 2014, alleging that McWilliams had violated multiple

conditions of her community supervision. Specifically, the State alleged that

McWilliams was ordered by the trial court to submit to supervision by the

Supervision with Immediate Enforcement (SWIFT) Court and that she had

violated that condition when she was discharged from the SWIFT Court for

noncompliance, as follows:

a. The Defendant failed to install the In-Home monitoring device as court ordered and directed by Tarrant County CSCD in the month of January 2014.

b. The Defendant failed to submit a urine specimen or a non-diluted urine specimen on or about January 30, 2014 as directed by Tarrant County CSCD.

2 The State also alleged that McWilliams had violated additional conditions of her

community supervision when she failed to pay the supervision fee of $60 or any

other amount on the fifteenth day for the various months during the period from

April 2010 to January 2014, as listed in the petition (Paragraph 2); failed to install

the in-home monitoring device in January 2014 (Paragraph 3);2 failed to pay for

urine testing for eight months during the period from 2012 to 2014 (Paragraph 4);

failed to pay for electronic monitoring fees and owed a total balance of $2,425

(Paragraph 5); and failed to obtain or verify employment for July 2012 through

January 2014 (Paragraph 6).

At the revocation hearing, McWilliams pleaded “not true” to the allegations

in the State’s second petition to revoke. After hearing testimony from

McWilliams’s community supervision officer, McWilliams’s SWIFT community

supervision officer, and McWilliams, the trial court found the allegations in

Paragraphs 1a, 1b, 2, 3, and 4 of the State’s second petition to revoke to be true

and sentenced McWilliams to four years’ confinement.3

III. NO ABUSE OF DISCRETION

In her sole point, McWilliams argues that the trial court abused its

discretion by revoking her community supervision and by sentencing her to four

2 The State notes in its brief that the allegation in Paragraph 1a is repeated in Paragraph 3. 3 The judgment does not contain findings related to the allegations in Paragraphs 5 and 6 of the State’s second petition to revoke.

3 years’ imprisonment. McWilliams argues that all of the violations alleged in the

State’s second petition to revoke, other than a single act of failing to submit a

urine specimen, were based on her failure to do acts that were founded on

financial obligations and that there was no proof that she had the ability to meet

those financial obligations.

We review an order revoking community supervision under an abuse of

discretion standard. 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

revocation proceeding, the State must prove by a preponderance of the evidence

that the defendant violated the terms and conditions of community supervision.

Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The trial court is

the sole judge of the credibility of the witnesses and the weight to be given their

testimony, and we review the evidence in the light most favorable to the trial

court’s ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172,

174 (Tex. Crim. App. [Panel Op.] 1981). If the State fails to meet its burden of

proof, the trial court abuses its discretion by revoking the community supervision.

Cardona, 665 S.W.2d at 493–94.

The record reveals that the trial court added supplemental conditions of

community supervision on September 24, 2012, requiring McWilliams to submit

to supervision by the SWIFT Court and to submit a valid, nondiluted, and

nonadulterated urine, hair, blood, breath, or saliva sample for testing according to

the time and manner directed by the supervision officer. Two weeks later,

4 McWilliams signed a document entitled “SWIFT Court Warning,” which stated

that she was required to call the drug-test hotline every weekday and, if selected,

to report for testing before 3:00 p.m. that same day. In bold at the bottom of the

warning, it stated, “I have read or have had the S.W.I.F.T. program explained to

me. I understand also that my probation can be revoked for any violation of

probation.”

During the revocation hearing, McWilliams’s SWIFT community

supervision officer testified that McWilliams was discharged from SWIFT for

noncompliance, which included failing to submit a urine specimen on January 30,

2014.4 McWilliams testified that she presented on January 30, 2014, to give a

urine specimen but that she left at 1:35 or 1:40 p.m. before giving a sample

because her mother had to be at work. On cross-examination, McWilliams

admitted that she did not give a urine specimen on January 30, 2014, and that

she understood that was a condition of her probation and a condition of the

SWIFT order. On appeal, McWilliams does not deny that she failed to submit a

urine sample on January 30, 2014. Instead, she argues that “her failure to

submit a urine sample was beyond [her] control and [that] she was in fact present

and able to submit a sample[;] she just could not stay all afternoon due to her

mother[’]s work.”

4 The record includes a letter from McWilliams’s community supervision officer to the trial court stating that McWilliams was discharged from the SWIFT Court for “noncompliance” on January 31, 2014—the day following her failure to provide a urine specimen.

5 Reviewing the evidence in the light most favorable to the trial court’s ruling,

we hold that the State proved by a preponderance of the evidence that

McWilliams violated the condition of her community supervision that required her

to submit to supervision by the SWIFT Court when she failed to submit a urine

specimen on January 30, 2014. See Cobb, 851 S.W.2d at 873; see also

Sanchez v. State, No. 01-13-00631-CR, 2014 WL 3107659, at *3 (Tex. App.—

Houston [1st Dist.] July 8, 2014, no pet.) (mem. op., not designated for

publication) (holding that trial court did not abuse its discretion by revoking

appellant’s community supervision on the ground that he had failed to submit

urine samples on four occasions). Accordingly, we hold that the trial court did not

abuse its discretion by revoking McWilliams’s community supervision and

sentencing her to four years’ confinement. See Rickels, 202 S.W.3d at 763; see

also Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980)

(holding that proof of any one violation is sufficient to support revocation order).

We overrule McWilliams’s sole point.

6 IV. CONCLUSION

Having overruled McWilliams’s sole point, we affirm the trial court’s

judgment.

/s/ Sue Walker SUE WALKER JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: December 18, 2014