Ricky Dan Allee v. State

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-15-00246-CR No. 07-15-00286-CR ________________________

RICKY DAN ALLEE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 47th District Court Randall County, Texas Trial Court No. 17917A; Honorable Dan Schaap, Presiding

April 13, 2016

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant, Ricky Dan Allee, appeals from the trial court’s revocation of his

deferred adjudication community supervision and the entry of judgment as to two

offenses: (1) possession of a controlled substance, to-wit: methamphetamine in an

amount of four grams or more but less than 200 in a drug-free zone1 and (2) possession

1 TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2010). The offense is a second degree felony with punishment increased by five years when committed in a drug-free zone. Id. at § 481.134(c). of marihuana in an amount of five pounds or less but more than four ounces in a drug-

free zone.2 Punishment was assessed at eight years confinement and a $1,500 fine in

the possession of methamphetamine case and eight years confinement without a fine in 3 the possession of marihuana case. The two sentences were ordered to run

concurrently. By a single issue, Appellant contends the evidence was legally insufficient

to support the trial court’s revocation of his deferred adjudication community

supervision. We agree and, therefore, reverse and render.

BACKGROUND

Appellant, who suffers from addiction, has been a car salesman for over forty

years and is a homeowner. He takes numerous prescribed medications for various

medical conditions. In January 2007, pursuant to a plea bargain, he was placed on

deferred adjudication community supervision for a term of five years. Since then, the

State has filed six motions to revoke. Until the revocation proceeding the subject of this

appeal, each of those filings resulted in a continuation of his deferred adjudication. In

2008, his community supervision was extended two years, and in 2009, it was extended

an additional three years, for the statutory maximum period of supervision of ten years.

TEX. CODE CRIM. PROC. ANN. art. 42.12, § 22(c) (West Supp. 2015).

On February 6, 2015, with no revocation proceeding pending, Appellant’s

probation officer convinced him that he needed to agree to a modification of the terms

2 TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(3) (West 2010). The offense is a state jail felony with punishment increased to that of a third degree felony when committed in a drug-free zone. Id. at § 481.134(d). 3 Originally, one appeal was filed from two separate judgments. For purposes of clarity, this court ordered the appeal severed into two separate appellate cause numbers. See Allee v. State, No. 07-15- 00246-CR, 2015 Tex. App. LEXIS 7423 (Tex. App.—Amarillo July 16, 2015, order) (not designated for publication).

2 and conditions of his community supervision to include a requirement that he participate

in an electronic monitoring program in lieu of revocation and incarceration. Appellant

signed a Supplemental Order that provided that his conditions of supervision were

amended to include a requirement that he “[p]articipate in the Community Control

Program provided by the Community Supervision and Corrections Department as an

alternative to incarceration for a period of not less than 60 days nor more than 180

days, and abide by all rules and regulations of said program.” That order was signed by

the trial court on February 11, 2015. The Community Control Program is an electronic

monitoring program which required Appellant to wear an ankle monitor and be at his

residence twenty-four hours a day “unless directed otherwise by the Court or

supervision officer for the purpose of employment, counseling . . . or other necessary

activities deemed appropriate by the Community Supervision and Corrections

Department.” The order also required Appellant to report to his supervision officer as

directed, but at least twice monthly, and obtain and maintain phone service within two

weeks of being placed in the program for monitoring purposes. Twenty days later, on

March 3, 2015, his supervision officer filed a report of violation indicating the he had

“failed to participate and complete” the program.

On March 10, 2015, based on the report of a violation, the State filed its motion

to revoke on the sole ground that he had failed to participate and complete the

Community Control Program. (Emphasis added). At a hearing on the State’s motion,

Appellant entered a plea of not true. Two of Appellant’s community supervision officers

and Appellant testified at the hearing. At the conclusion of the hearing, the trial court

found the State’s allegation to be true and adjudicated Appellant guilty of the charged

offenses. 3 STANDARD OF REVIEW

An appeal from a court’s order adjudicating guilt is reviewed in the same manner

as a revocation hearing. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West

Supp. 2015). When reviewing an order revoking community supervision imposed under

an order of deferred adjudication, the sole question before this court is whether the trial

court abused its discretion. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App.

2013) (citing Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006)). In a

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

the defendant violated a condition of community supervision as alleged in the motion to

revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). In a revocation

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 [community supervision].” Hacker, 389 S.W.3d at 865 (citing Rickels,

202 S.W.3d at 764). The trial court abuses its discretion in revoking community

supervision if, as to every ground alleged, the State fails to meet its burden of proof.

Cardona v. State, 665 S.W.2d 492, 494 (Tex. Crim. App. 1984). In determining the

sufficiency of the evidence to sustain a revocation, we view the evidence in the light

most favorable to the trial court’s ruling. Jones v. State, 589 S.W.2d 419, 421 (Tex.

Crim. App. 1979). Additionally, the trial court’s decision to revoke is limited by the

allegations of which the defendant has due notice—those which are contained in the

written motion to revoke. Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App.

1980).

4 ANALYSIS

The supplemental order amending Appellant’s conditions of community

supervision provided as follows:

26. Participate in the Community Control Program . . . for a period of not less than 60 days nor more than 180 days, and abide by all rules and regulations of said program.

a. Be at your residence . . . twenty-four hours daily, unless directed otherwise by the Court or supervision office for the purposes of employment, counseling, participation in the Literacy and Education Program, and other necessary activities as deemed appropriate . . . .

b. The defendant is to report to the supervision officer as directed by the Court or supervision officer, but at least twice monthly and obey all rules and regulations . . . .

c. The defendant is to obtain telephone service within two weeks of being placed in the Community Control Program. The defendant will then maintain telephone service while in the program.

Other than the conditions provided, the record does not establish any additional “rules

and regulations of said program” that Appellant was required to follow.

The State’s motion to revoke alleged the following as its sole ground for

revocation:

The defendant violated the provisions of Condition No. 26 of the Order Deferring Adjudication and Placing Defendant on [community supervision] which required the defendant to participate in the Community Control Program Provided by the Community Supervision and Corrections Department as an alternative to incarceration for a period of not less than 60 days nor more than 180 days, and abide by all rules and regulations of said program; said violation occurring when the defendant failed to participate and complete the Community Control Program as directed.

(Emphasis added).

5 Appellant’s supervision officer testified that Appellant came to his office on

February 6, 2015, to sign the supplemental order outlining Appellant’s participation in

the Community Control Program. According to the officer, he explained the document

to Appellant before he signed it and Appellant testified the order was explained to him

on that date. After the order was signed, it was approved by the trial court’s signature

on February 11, 2015.

Although the supplemental order required Appellant to report “at least twice

monthly,” specific dates were never provided. On February 12th, for the second time in

the month of February, Appellant did report to the Community Supervision and

Corrections Department and visited with his supervision officer. An ankle monitor was

not provided to Appellant on that visit, presumably because the supervision officer was

unaware of the court’s approval of the supplemental order.4 The following day

Appellant did not report for a previously scheduled visit related to his prior conditions of

community supervision; however, that failure to report was not alleged in the current

motion to revoke.

The supervision officer testified that after he received the approved order for

electronic monitoring, he was unable to contact Appellant. His phone calls went

unanswered and Appellant did not have voicemail set up. A surprise home visit on

February 25th was also unsuccessful; however, the record is silent on whether

Appellant had been permitted to go to work or be away for another approved activity.

Regarding the condition that he have phone service, Appellant testified he had a

landline.

4 According to the supervision officer, an ankle monitor is not placed on a defendant until the order is approved by the trial court. 6 In this case, the State moved to revoke Appellant’s community supervision based

on the alleged violation of a condition that had been effective for less than one month.

Furthermore, it was the sole violation alleged. While the motion to revoke alleged that

Appellant failed to “participate and complete” the Community Control Program, the

record establishes that Appellant did “participate” by reporting to his supervision officer

on February 6th and 12th.5 Furthermore, any allegation that Appellant failed to

“complete” the program was premature since, by the terms of the supplemental order

itself, the program could not be completed for at least sixty days.

We are not unmindful of Appellant’s addiction issues and his numerous failures

to comply with the terms and conditions of his community supervision.6 We recognize

the numerous opportunities he has been given since being placed on deferred

adjudication community supervision in 2007. That notwithstanding, the State’s only

allegation in the current motion to revoke was Appellant’s failure to participate in and

complete the Community Control Program. The State had the burden to prove

Appellant failed to comply with the program during the relevant period of time following

the effective date of the supplemental order. This it has not done. Even viewing the

evidence in the light most favorable to the trial court’s finding of true, we find the State

failed to meet its burden of proof. A revocation proceeding “portends a possible

deprivation of liberty, and as such, the application of appropriate due process of law is

constitutionally required.” Caddell, 605 S.W.2d at 277 (citing Gagnon v. Scarpelli, 411

U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)). Under the circumstances of this

5 The supplemental order required a minimum of two visits per month but it did not specify dates for those visits. 6 There is evidence in the record of other violations committed by Appellant; however, revocation can only be upheld on the allegation in the State’s motion. 7 case, Appellant was deprived of that right. As such, Appellant’s issue is sustained and

we conclude the trial court abused its discretion by entering a finding of true to the

State’s allegation and in revoking Appellant’s deferred adjudication community

supervision on each count.

CONCLUSION

The trial court’s judgments adjudicating guilt are reversed and judgments of “Not

True” are rendered.

Patrick A. Pirtle Justice

Do not publish.