Opinion
NO. 02-16-00241-CR
12-15-2016
JEREMY FRANKLIN BENTLEY APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. CR13108 MEMORANDUM OPINION
I. INTRODUCTION
Appellant Jeremy Franklin Bentley pleaded guilty to the offense of possession of between four and 200 grams of methamphetamine and was sentenced to a term of eight years of deferred adjudication community supervision and completion of the Substance Abuse Felony Punishment Facility (SAFPF) program. See Tex. Health & Safety Code Ann. § 481.115(d) (West 2010). Two weeks before Appellant was to be released from the halfway house portion of the SAFPF program, he was unsuccessfully discharged. The State then filed a motion to proceed with an adjudication of Appellant's guilt—alleging Appellant's unsuccessful discharge from the SAFPF program as the sole violation of his community supervision. After a hearing, the trial court adjudicated Appellant guilty of the underlying drug charge and sentenced him to serve a term of fifteen years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant perfected this appeal. In a single issue, he contends that the trial court abused its discretion and violated his due process rights by adjudicating him guilty "when it failed to first consider the underlying facts and rationale that led to Appellant's alleged 'unsuccessful discharge' from SAFPF."
II. STANDARD OF REVIEW
On violation of a condition of community supervision imposed under an order of deferred adjudication, a defendant is entitled to a hearing limited to the determination of whether the trial court should proceed with an adjudication of guilt on the original charge under section 12 of article 42.12 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 42.12, § 12 (West Supp. 2016). The hearing "is neither a criminal nor a civil trial, but is rather an administrative proceeding." Wilkins v. State, 279 S.W.3d 701, 703 (Tex. App.—Amarillo 2007, no pet.) (citing Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993)). Therefore, the State's burden on a motion to revoke community supervision is lower than the burden necessary to attain a criminal conviction. Smith v. State, 932 S.W.2d 279, 281 (Tex. App.—Texarkana 1996, no pet.). When moving to revoke community supervision, the State has the burden of showing by a preponderance of the evidence that the defendant committed a violation of a condition of community supervision, Cobb, 851 S.W.2d at 873, and satisfies this burden when the greater weight of credible evidence before the court creates a reasonable belief that it is more probable than not that a condition of probation has been violated as alleged in the State's motion. Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006); Battle v. State, 571 S.W.2d 20, 21-22 (Tex. Crim. App. 1978). 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 while recognizing that the trial court is the sole judge of the credibility of witnesses and the weight given to their testimony. Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979); Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet. ref'd). Our review is limited to determining whether the trial court abused its discretion, bearing in mind that proof of a single violation is sufficient to support revocation. See Rickels, 202 S.W.3d at 763.
III. THE EVIDENCE
Three witnesses testified at the contested hearing on the State's motion to proceed with an adjudication of guilt: Appellant's probation officer, Jennifer Fowler; Appellant's mother, Traci Lynn Perry; and Appellant. Fowler testified that Appellant was placed on deferred adjudication community supervision on June 2, 2015, and that she was his community supervision officer. Appellant was sent to the Walker Sayle SAFPF facility on August 4, 2015. There are three parts to the SAFPF program: a six-month program at the SAFPF unit; a ninety-day program at the residential treatment center; and then a one-year aftercare program. Appellant completed the first part and was transferred to the Abode residential treatment center in February 2016. On April 5 at Abode, Appellant submitted to a urine analysis (UA), which was positive for amphetamine. Fowler testified that after Appellant's positive UA, he was told by Abode staff that he was not allowed to leave the facility; he was on "shut-down" until a meeting could be held. According to Fowler, Appellant did not comply with the "shut-down"; instead, he signed himself out and left the facility.
Fowler testified that on April 5, 2016, when Appellant returned to the facility and his UA was positive for amphetamine, he was searched, and Abode staff found contraband on him, which was "like a Visine bottle with the lid off, and a substance in it that was not -- that they said was not eye drops, and it was hidden in a toilet paper roll, it was stuffed inside a -- a -- a toilet paper roll." Fowler conceded that she did not know what was in the eye dropper but said that Abode has a zero tolerance policy, so Appellant was discharged from the program.
On cross-examination, Fowler testified that she was aware that Appellant wore contacts, and when asked how a saline dropper bottle was contraband, she said, "I don't make the -- the rules for what is contraband at the facility, so I'm just going by what -- what they instructed me was contraband." Fowler testified that she subsequently drug tested Appellant on April 7, 11, and 18 and that all of those tests were clean.
Perry testified that Appellant was her oldest son. She found out on April 6, 2016, that Appellant had been told that he had failed a UA at Abode. Perry said that Appellant had obtained an independent drug test, that she had taken him to pick up the results, and that the results were negative for "everything."
Appellant testified that on April 5, 2016, when he returned to Abode from his job, he signed in and was searched. Appellant said that when they searched him, all they found was the saline solution for his contacts and his contacts case; he denied possessing a toilet paper roll. Abode staff asked him to wait in the lobby for a UA, so he stayed there until they were ready. After the "dip-test" UA, the Abode staff showed Appellant the positive results, and he "freaked out." Appellant testified that he asked about having the UA retested at a lab and that the Abode staff said that they do not do that. Appellant said that he requested a second, repeat UA, but the Abode staff refused. Appellant said that he was told that he was on "shut-down," which meant that he was not allowed his recreational passes until a meeting was set up with his counselor and probation officer. Appellant believed he was still allowed to go to work, and no one told him he could not.
The next morning, Appellant got up for work, went to the front desk, and signed out. He spoke with the Abode staff, and an Abode staff member countersigned by Appellant's signature—showing that he had properly signed out—and gave him his Abode-prepared sack lunch. Appellant said that if he had not been allowed to leave, they would have told him so and would not have signed him out. Appellant testified, "I knew for a fact I had not taken any drugs, and I wanted proof." So after work, Appellant went to a private, walk-in drug-test lab called Accutrace and was tested. The test results provided to him by Accutrace show negative results "across the board." Appellant testified that although he had tested positive in the Abode-administered UA on the evening of April 5, 2016, he tested negative the next day, less than 12 hours later, in the Accutrace-administered test. Appellant said that he tried to show the Accutrace test results to his probation officer and to the Abode staff, but they were not interested and "wanted nothing to do with it."
IV. NO ABUSE OF DISCRETION
Here, no evidence other than testimony was introduced at the hearing on the State's motion to proceed to an adjudication. Although Appellant's attorney identified and offered Appellant's Exhibit 1—which apparently was a copy of the results of the drug test performed on Appellant on April 6, 2016, at Accutrace—that exhibit was not admitted into evidence. And although Appellant testified that he had signed out on April 6, 2016, to go to work and that a member of the Abode staff had countersigned and had provided him with his sack lunch, documentary evidence on this issue was not presented, and no Abode staff member was called to testify.
Although from the cold record before us, Appellant's testimony concerning his version of the events of April 6, 2016, appears credible, we cannot substitute our credibility determination for that of the trial court. See, e.g., Jones, 589 S.W.2d at 421; Martinez v. State, No. 14-04-00225-CR, 2005 WL 1529506, at *1 (Tex. App.—Houston [14th Dist.] June 30, 2005, no pet.) (mem. op., not designated for publication) ("In a revocation proceeding, the trial court acts as the sole trier of fact, exclusively judging the credibility and weight given to the witnesses' testimony."). Because the State presented the testimony of Fowler that Appellant had been unsuccessfully discharged from Abode in violation of the terms of his community supervision based on a positive drug test, and because the only evidence controverting the reasonableness of Abode's decision to discharge Appellant from its program came from Appellant himself, the trial judge, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, did not abuse his discretion by crediting Fowler's testimony and disbelieving Appellant's testimony. Viewed in the light most favorable to the trial court's ruling, the State met its burden of proving by a preponderance of the evidence that Appellant had violated the term of his deferred adjudication community supervision as alleged in the State's motion—Appellant's unsuccessful discharge from the SAFPF program. Accordingly, the trial court acted within its discretion in concluding that Appellant violated this term of his community supervision. See, e.g., Davidson v. State, 422 S.W.3d 750, 757-58 (Tex. App.—Texarkana 2013, pet. ref'd) (holding trial court acted within its discretion in concluding that Davidson had violated the terms and conditions of his community supervision by possessing a firearm).
We overrule Appellant's sole issue.
V. CONCLUSION
Having overruled Appellant's sole issue, we affirm the trial court's judgment adjudicating Appellant's guilt.
/s/ Sue Walker
SUE WALKER
JUSTICE PANEL: WALKER, MEIER, and GABRIEL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: December 15, 2016
See Tex. R. App. P. 47.4.