Reginald S.Y. Lee v. Justin Hersey, Travis J. Hersey and the Frank J. Hersey Family Trust

• Court: Court of Appeals of Texas
• Decided: March 12, 2004
• Docket: 07-04-00041-CV
• Status: Published

Opinion

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MARCH 12, 2004

____________________________

NO. 07-03-0219-CV

LYNDA RISINGER-HERSEY AND REGINALD S.Y. LEE, APPELLANTS

V.

CYNTHIA HERSEY, TRUSTEE OF THE FRANK J. HERSEY FAMILY TRUST, JUSTIN HERSEY AND TRAVIS HERSEY, ET AL., APPELLEES _________________________________

NO. 07-03-0339-CV

REGINALD S.Y. LEE, APPELLANT

V.

THE FRANK J. HERSEY FAMILY TRUST, JUSTIN HERSEY AND TRAVIS HERSEY, APPELLEES _________________________________

NO. 07-04-0041-CV

REGINALD S.Y. LEE, APPELLANT

V.

JUSTIN HERSEY, TRAVIS J. HERSEY AND THE FRANK J. HERSEY FAMILY TRUST, APPELLEES _______________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF MONTGOMERY COUNTY;

NO. 01-15925-P; HONORABLE DENNIS WATSON, JUDGE _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

ORDER ON MOTIONS

The court has considered the submissions of the parties in response to our February 17, 2004 letter concerning determination of the trial court's jurisdiction. After reviewing the documents submitted, and portions of the record, we have determined we will not review the jurisdictional issue prior to submission of the other issues. The clerk's record in 07-03-0219-CV is due on March 26, 2004. The parties' briefs in that appeal will be due in accordance with Rule of Appellate Procedure 38.6.

Also pending before the court is appellees' motion to transfer appellant's appeal from the second turnover order from the Ninth Court of Appeals to this court, to consolidate it with the appeal from the first turnover order, pending under docket number 07-03-0339-CV, and to set dates for the filing of the parties' briefs. Pursuant to an order of the Supreme Court, the appeal was transferred to this court on January 28, 2004 and was assigned docket number 07-04-0041-CV. This action rendered moot appellees' request to transfer that appeal. The Rules of Appellate Procedure do not provide for the consolidation of appeals and the request to do so is denied. However, in the interest of economy, we authorize the parties to file briefs addressing both appeals. On the filing of the record in 07-04-0041-CV, appellant shall have 30 days to file a brief supplementing or replacing his brief in 07-03-0339-CV. Appellees then shall have 30 days to file a brief addressing both appeals.

The court reserves ruling on the Herseys' requests to hold Lee in contempt and to impose sanctions.

Per Curiam

 NO.  07-10-0023-CR

                                                   IN THE COURT OF APPEALS

                                       FOR THE SEVENTH DISTRICT OF TEXAS

                                                                 AT AMARILLO

                                                                      PANEL E

                                                           DECEMBER 2, 2010

                                            ______________________________

SAM BOOKER, JR.,

                                                                                                            Appellant

                                                                             v.

                                                        THE STATE OF TEXAS,

                                                                                                            Appellee

                                           _______________________________

   FROM THE CRIMINAL DISTRICT COURT NUMBER ONE OF TARRANT COUNTY;

                             NO. 0922782D; HON. SHAREN WILSON, PRESIDING

Memorandum Opinion

Before QUINN, C.J., HANCOCK, J., and BOYD, S.J.[1]

            In this appeal, appellant Sam Booker, Jr. seeks reversal of the trial court’s action in revoking his deferred adjudication probation, adjudging him guilty of the offense of failing to register as a sex offender, and assessing his punishment at three years confinement in the Institutional Division of the Texas Department of Criminal Justice.  Disagreeing that the record shows reversible error, we affirm the judgment of the trial court.

            In submitting his appeal, appellant presents two issues which, he contends, demonstrate the trial court reversibly erred in its decision.  In his first issue, he argues that there was insufficient evidence to show that he failed to timely pay his required supervision fees or that he failed to complete the required one-third of his sex offender treatment within the first year of his probation.  In his second issue, he contends that the trial court erred in modifying and changing his conditions of probation by adding the condition that he “successfully complete psychological counseling, treatment, and aftercare sessions for sex offenders” almost four years after he was initially placed on probation. 

The standard by which we review a trial court’s revocation of probation is well established.  The order revoking probation is reviewed under an abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006), quoting Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).  In further clarification, the Rickels court instructs that in probation revocation cases such as the instant one in which the sufficiency of the evidence is questioned, the burden of proof to sustain the trial court’s action is by a preponderance of the evidence.  Id. at 763.  That is, the evidence must be sufficient to “create a reasonable belief that the defendant has violated a condition of his probation.”  Id. at 764.  In such a proceeding, the trial judge is the sole judge of the credibility of the witnesses and the weight to be given their testimony, Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980), and the appellate court reviews the evidence in a light most favorable to the trial court’s ruling.  Cardona v. State, 665 S.W.2d at 493.  One violation of the conditions of probation is sufficient to support a revocation of the probation.  Sanchez  v.  State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980).

In its petition seeking the revocation, the State alleged that appellant had failed to timely pay his required probation supervision fees and that he had failed to complete the mandated one-third of his sex offender treatment within the first year after that treatment was required.  This proceeding arises from appellant’s September 2004 no-contest plea to a charge that, as a convicted sex offender, he had failed to timely report in person to the Fort Worth police his intended change of residence.  His probation was modified three times in April, July, and August of 2008.  His August 2008 modification required him to submit to sex offender treatment evaluations as directed by his supervision officer with the treatment to be completed within three years. In that modification, it was provided that if appellant completed one-third of the treatment within a year, an extension of the probationary term would be considered by the trial court. 

 At the revocation hearing, although appellant testified that he eventually made his payments, appellant’s probation supervisor, Judith Choate, testified that appellant did not pay his probation fees during that period alleged in the revocation petition.  Ms. Choate also testified that appellant did not meet the sex offender treatment goals and evaluations required under the 2008 modification of his probation.

Appellant averred that in order to accomplish the treatment goals, he had to do homework and complete responses which he could not do because he could not read or write.  However, Ms. Choate stated that he could have received help from the probation office had he requested it. She said that appellant had not taken the treatment procedure seriously, and that he blamed everyone else for his troubles rather than himself.

Dr. Mike Strain, a sex offender therapist, said that although appellant did have problems reading and writing, his slow progress was caused by “his not being very motivated . . . to do the goals and to accept information [they] were working on in treatment.”  Dr. Strain also testified that most of the treatment goals could have been completed by appellant on available cassette tapes.  He averred that appellant understood the cassette tape procedure and had put on tape a list of rules related to a child avoidance plan used by probationers such as himself.

In sum, viewed in the light by which we review evidence in appeals such as this one, we cannot say the trial court abused its discretion in assessing the evidence and revoking appellant’s probation.  Appellant’s first point is overruled.

In his second point, appellant contends that the trial court erred by modifying his probation conditions.  He was originally placed on probation on September 30, 2004.  Subsequently, on August 27, 2008, his probation conditions were modified, and included in that modification was the condition that he “successfully complete psychological counseling, treatment, and aftercare sessions for sex offenders.”  As we have noted, the violation of this condition was one of the things that led to the revocation which is the subject of this appeal.  However, §11(a) of article 42.12 of the Texas Code of Criminal Procedure specifically provides that the court may, “at any time during the period of community supervision, alter or modify the conditions,” and that the judge “may impose any reasonable condition that is designed to protect or restore . . . the victim, or punish, rehabilitate, or reform the defendant.”  Tex. Code  Crim. Proc. Ann. art. 42.11 §11(a) (Vernon Supp. 2010).  Additionally, we note the condition specifically provided that even though the required sex offender treatment was expected to take three years and appellant had only one year left on his probation term, if appellant successfully completed one-third of the required treatment within one year, an extension would be considered.  Thus, appellant would not be in danger of being revoked, even though he had not completed the full course within the one year.  Thus, the trial court did not act beyond its discretion in adding the condition.  Appellant’s second point is overruled.

In sum, both of appellant’s points are overruled, and the judgment of the trial court is affirmed.

                                                            John T. Boyd

                                                          Senior Justice

Do not publish.

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[1]John T. Boyd, Senior Justice, sitting by assignment.