IN THE TENTH COURT OF APPEALS
No. 10-24-00023-CR No. 10-24-00024-CR No. 10-24-00025-CR No. 10-24-00026-CR No. 10-24-00033-CR
SCOTT ALAN SEREIKA, Appellant v.
THE STATE OF TEXAS, Appellee
From the 443rd District Court Ellis County, Texas Trial Court Nos. 40305CR, 40944CR, 40945CR, 40946CR, and 40947CR
MEMORANDUM OPINION
After a contested revocation hearing, the trial court revoked Scott Alan Sereika’s
community supervision in each of the underlying cases and sentenced him to 8 years in
prison in each case, to run concurrently. On appeal, Sereika argues that the trial court
abused its discretion in revoking his community supervision in the underlying cases and that his sentences were grossly disproportionate in violation of the United States and
Texas Constitutions. See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13. We disagree.
Revocation of Community Supervision
In his first issue, Sereika asserts that the trial court abused its discretion by
revoking his probation in each case because he provided reasonable excuses for missed
appointments and drug tests, and because “Sereika attained the goals a court wants to
see from those on probation although not as timely as the court wished.”
STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court’s decision to revoke community supervision for an abuse
of discretion. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). To justify
revocation, the State must prove by a preponderance of the evidence that the defendant
violated a term or condition of community supervision. Id. at 864-65. In this 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
probation.’” Id. at 865 (quoting Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim. App.
2006)). The trial court is the sole judge of the credibility of the witnesses and the weight
to be given their testimony. Id. Thus, we review the evidence in the light most favorable
to the trial court’s ruling. See id.
Sereika v. State Page 2 DISCUSSION
Pursuant to a plea agreement, on March 1, 2018, Sereika pled guilty in each of the
underlying cases to third-degree-felony prescription fraud and was placed on
community supervision in each case for a period of 10 years. See TEX. HEALTH & SAFETY
CODE ANN. § 481.129. The State filed a motion to revoke Sereika’s community supervision
in each case on January 25, 2023. All of the revocation motions alleged that Sereika
violated the terms of his community supervision by failing to report to the community
supervision department as scheduled on seven occasions, failing to report for required
drug testing on six occasions, and failing to complete substance abuse evaluation
requirements and recommendations.1 Sereika pled “not true” to these allegations. In
1 The revocation motions alleged that Sereika violated the terms of his community supervision as follows:
(4) (Report to the Community Supervision Department as directed by the Court or the Supervision Officer and obey all rules and regulations of said department;) in that the said defendant failed to report for the months of December 18, 2018, January 22, 2019, July 2, 2019, August 13, 2019, May 4, 2020, September 14, 2020, and May 11, 2022,
(13) (Submit to testing for drugs and alcohol as directed. Submit to any type of test requested by the community supervision department supervising your case not limited to urine, hair, buccal swab, sweat, and/or breath at your own expense;) in that the said defendant failed to report for testing as requested by the supervision officer on November 26, 2018, December 14, 2018, January 2, 2019, January 23, 2019, February 11, 2019,and June 17, 2019, [some of the revocation motions also alleged in this section that Sereika was delinquent in paying for some of his drug tests],
(15) (Submit to a substance abuse evaluation within 60 days and comply with any recommendations made by said evaluation;) in that the said defendant failed to complete IOP and MRT as recommended from Substance Abuse Evaluation,
(A2) (Complete the general Substance Abuse Evaluation requirements of Condition #15 and comply with any and all recommendations therein, including, but not limited to, attending 12 step support group meetings as directed by your counselor and/or
Sereika v. State Page 3 trial court cause number 40944CR, the State included an additional allegation that Sereika
failed to make scheduled payments to the probation department and was delinquent in
the amount of $4,487.00.2 Sereika pled “true with…with some extenuating
circumstances” to this allegation.
Sufficient proof of a single violation will support a revocation of community
supervision. Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012). Sereika’s probation
officer, Celeste Jernigan, testified at the contested revocation hearing. Jernigan testified
that Sereika failed to properly report to his community supervision officer and failed to
submit to required drug testing on each of the dates listed in the revocation motions.
Sereika also testified at the revocation hearing. Sereika did not deny missing scheduled
appointments and drug tests; rather, he explained that his missed appointments and drug
tests were for health reasons, family reasons, and emergencies. He admitted that he
supervision officer, calling random drug/alcohol testing line if instructed, and obtaining a sponsor and working a recovery program.) in that the said defendant failed to complete the general substance abuse evaluation requirements of Condition #15[.]
2 This additional allegation states:
(10) (Make payments to the Ellis County Community Supervision and Corrections Department as follows: (a) Court Costs $279.00 (b) Restitution $0 (c) Attorney Fee $0 (d) Fine $0 (e) Collection Fee $25.00 (f) Crime Stoppers $0 (g) DA Forgery Fee $0 (h) Family Violence $0 (i) Children Advocacy Center $0 (j) Interpreter Fee $0 (k) Other $0, by making monthly payments in the amount of $100.00 per month beginning in the month next following entry of this order, or next following your release from jail, and continuing until all court-ordered obligations are paid in full. The defendant acknowledges that he or she possesses the financial means and ability to make payments in accordance with this schedule;) in that the said defendant failed to make payments as directed and is currently delinquent in the amount of $4,487.00[.]
Sereika v. State Page 4 “made several mistakes” in missing scheduled appointments, but explained that he
would always try to rectify the situation.
Jernigan also explained that after Sereika was released from a detox program in
2018, he was required to complete a 26-week Intensive Outpatient Program (“IOP”).
Though Sereika was given multiple opportunities to complete the program over the
course of several years, he failed to successfully complete it. In compromise, in June of
2022, the probation department reached an agreement with Sereika that he would receive
credit for his IOP program if he completed a 15-week Moral Reconation Therapy (“MRT”)
program. Sereika enrolled in the MRT program but was unsuccessfully discharged for
failure to attend.
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IN THE TENTH COURT OF APPEALS
No. 10-24-00023-CR No. 10-24-00024-CR No. 10-24-00025-CR No. 10-24-00026-CR No. 10-24-00033-CR
SCOTT ALAN SEREIKA, Appellant v.
THE STATE OF TEXAS, Appellee
From the 443rd District Court Ellis County, Texas Trial Court Nos. 40305CR, 40944CR, 40945CR, 40946CR, and 40947CR
MEMORANDUM OPINION
After a contested revocation hearing, the trial court revoked Scott Alan Sereika’s
community supervision in each of the underlying cases and sentenced him to 8 years in
prison in each case, to run concurrently. On appeal, Sereika argues that the trial court
abused its discretion in revoking his community supervision in the underlying cases and that his sentences were grossly disproportionate in violation of the United States and
Texas Constitutions. See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13. We disagree.
Revocation of Community Supervision
In his first issue, Sereika asserts that the trial court abused its discretion by
revoking his probation in each case because he provided reasonable excuses for missed
appointments and drug tests, and because “Sereika attained the goals a court wants to
see from those on probation although not as timely as the court wished.”
STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court’s decision to revoke community supervision for an abuse
of discretion. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). To justify
revocation, the State must prove by a preponderance of the evidence that the defendant
violated a term or condition of community supervision. Id. at 864-65. In this 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
probation.’” Id. at 865 (quoting Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim. App.
2006)). The trial court is the sole judge of the credibility of the witnesses and the weight
to be given their testimony. Id. Thus, we review the evidence in the light most favorable
to the trial court’s ruling. See id.
Sereika v. State Page 2 DISCUSSION
Pursuant to a plea agreement, on March 1, 2018, Sereika pled guilty in each of the
underlying cases to third-degree-felony prescription fraud and was placed on
community supervision in each case for a period of 10 years. See TEX. HEALTH & SAFETY
CODE ANN. § 481.129. The State filed a motion to revoke Sereika’s community supervision
in each case on January 25, 2023. All of the revocation motions alleged that Sereika
violated the terms of his community supervision by failing to report to the community
supervision department as scheduled on seven occasions, failing to report for required
drug testing on six occasions, and failing to complete substance abuse evaluation
requirements and recommendations.1 Sereika pled “not true” to these allegations. In
1 The revocation motions alleged that Sereika violated the terms of his community supervision as follows:
(4) (Report to the Community Supervision Department as directed by the Court or the Supervision Officer and obey all rules and regulations of said department;) in that the said defendant failed to report for the months of December 18, 2018, January 22, 2019, July 2, 2019, August 13, 2019, May 4, 2020, September 14, 2020, and May 11, 2022,
(13) (Submit to testing for drugs and alcohol as directed. Submit to any type of test requested by the community supervision department supervising your case not limited to urine, hair, buccal swab, sweat, and/or breath at your own expense;) in that the said defendant failed to report for testing as requested by the supervision officer on November 26, 2018, December 14, 2018, January 2, 2019, January 23, 2019, February 11, 2019,and June 17, 2019, [some of the revocation motions also alleged in this section that Sereika was delinquent in paying for some of his drug tests],
(15) (Submit to a substance abuse evaluation within 60 days and comply with any recommendations made by said evaluation;) in that the said defendant failed to complete IOP and MRT as recommended from Substance Abuse Evaluation,
(A2) (Complete the general Substance Abuse Evaluation requirements of Condition #15 and comply with any and all recommendations therein, including, but not limited to, attending 12 step support group meetings as directed by your counselor and/or
Sereika v. State Page 3 trial court cause number 40944CR, the State included an additional allegation that Sereika
failed to make scheduled payments to the probation department and was delinquent in
the amount of $4,487.00.2 Sereika pled “true with…with some extenuating
circumstances” to this allegation.
Sufficient proof of a single violation will support a revocation of community
supervision. Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012). Sereika’s probation
officer, Celeste Jernigan, testified at the contested revocation hearing. Jernigan testified
that Sereika failed to properly report to his community supervision officer and failed to
submit to required drug testing on each of the dates listed in the revocation motions.
Sereika also testified at the revocation hearing. Sereika did not deny missing scheduled
appointments and drug tests; rather, he explained that his missed appointments and drug
tests were for health reasons, family reasons, and emergencies. He admitted that he
supervision officer, calling random drug/alcohol testing line if instructed, and obtaining a sponsor and working a recovery program.) in that the said defendant failed to complete the general substance abuse evaluation requirements of Condition #15[.]
2 This additional allegation states:
(10) (Make payments to the Ellis County Community Supervision and Corrections Department as follows: (a) Court Costs $279.00 (b) Restitution $0 (c) Attorney Fee $0 (d) Fine $0 (e) Collection Fee $25.00 (f) Crime Stoppers $0 (g) DA Forgery Fee $0 (h) Family Violence $0 (i) Children Advocacy Center $0 (j) Interpreter Fee $0 (k) Other $0, by making monthly payments in the amount of $100.00 per month beginning in the month next following entry of this order, or next following your release from jail, and continuing until all court-ordered obligations are paid in full. The defendant acknowledges that he or she possesses the financial means and ability to make payments in accordance with this schedule;) in that the said defendant failed to make payments as directed and is currently delinquent in the amount of $4,487.00[.]
Sereika v. State Page 4 “made several mistakes” in missing scheduled appointments, but explained that he
would always try to rectify the situation.
Jernigan also explained that after Sereika was released from a detox program in
2018, he was required to complete a 26-week Intensive Outpatient Program (“IOP”).
Though Sereika was given multiple opportunities to complete the program over the
course of several years, he failed to successfully complete it. In compromise, in June of
2022, the probation department reached an agreement with Sereika that he would receive
credit for his IOP program if he completed a 15-week Moral Reconation Therapy (“MRT”)
program. Sereika enrolled in the MRT program but was unsuccessfully discharged for
failure to attend. He did not complete the MRT program until approximately November
of 2023, several months after the State filed its revocation motions. Sereika admitted
during the contested hearing that his failure to timely complete the class was
“[a]bsolutely 100 percent my fault,” though he attributed his untimely completion to
scheduling conflicts, extenuating circumstances, or financial concerns.
The trial court, as sole judge of the credibility of the witnesses and the weight to
be given their testimony, was free to disbelieve Sereika’s explanations and excuses for his
missed appointments, missed drug tests, and untimely completion of required treatment
programs. In reviewing the record, we conclude that the trial court did not abuse its
discretion in revoking Sereika’s probation in each of the underlying cases.
Accordingly, Sereika’s first issue in each of these appeals is overruled.
Sereika v. State Page 5 Grossly Disproportionate Sentence Complaints
In his second and third issues, Sereika contends that his sentences were “grossly
disproportionate to the crime and inappropriate to the offender” in violation of the Eighth
Amendment to the United States Constitution and article I, section 13 of the Texas
Constitution. See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13.
A disproportionate-sentence claim must be preserved for appellate review. See
TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996)
(noting that constitutional rights, including the right to be free from cruel and unusual
punishment, may be waived); see also Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d) (“[I]n order to preserve for appellate review a
complaint that a sentence is grossly disproportionate, constituting cruel and unusual
punishment, a defendant must present to the trial court a timely request, objection, or
motion stating the specific grounds for the ruling desired.”).
Sereika did not assert his disproportionate-sentence claims when the trial court
orally pronounced his sentences at the revocation hearing. When asked by the trial court
if there was any legal reason why sentence should not be imposed, defense counsel only
requested some additional time for Sereika to get his affairs in order before serving his
sentences. Furthermore, Sereika did not raise a disproportionate-sentence claim in a
motion for new trial or otherwise present a post-trial objection to the imposed sentences.
Sereika v. State Page 6 Therefore, we conclude that Sereika did not preserve his disproportionate-sentence
complaints for review.
Accordingly, Sereika’s second and third issues in each of these appeals is
overruled.
Conclusion
Having overruled all of Sereika’s issues in each of these appeals, we affirm the trial
court’s judgments in each case.
STEVE SMITH Justice
Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed August 29, 2024 [CR25]
Sereika v. State Page 7