Opinion
NO. 01-19-00498-CR
04-23-2020
ANDREW LESTER GOODNIGHT, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Court Brazoria County, Texas
Trial Court Case No. 81703-CR ("Counts I and II")
MEMORANDUM OPINION
After appellant, Andrew Lester Goodnight, pleaded guilty, with an agreed punishment recommendation from the State, to two separate offenses of aggravated sexual assault of a child under fourteen years of age, the trial court deferred adjudication of his guilt, placed him on community supervision for ten years, and assessed a fine of $500. The State, alleging multiple violations of the conditions of appellant's community supervision, subsequently moved to adjudicate appellant's guilt. After a hearing, the trial court found several allegations true, found appellant guilty of each offense, and assessed his punishment at confinement for fifty years for each offense, to run concurrently. In three issues, appellant contends that the evidence is insufficient to support a finding that he violated a condition of his community supervision and the trial court erred in imposing an excessive and disproportionate sentence and in denying him the right to trial by a jury.
See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (iii), (a)(2)(B); see also id. §§ 22.011(c)(1), 22.021(b)(1).
See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13.
We modify the trial court's judgment and affirm as modified.
Background
In 2018, the trial court placed appellant on community supervision, subject to certain conditions, including conditions that he:
1. Commit no offense against the laws of this State or any other State of the United States or of any government entity;
. . . .
8. Report in person to the Community Supervision Officer on or before the 28th day of each month hereafter or at such other times as directed by the Court or Community Supervision Officer and submit a truthful report form. . . . . ;
. . . .
12. Reside within Brazoria County, Texas, and . . . not change place of residence within said County without first notifying the Community Supervision Officer in writing;
. . . .
18. Pay the following:
a. SUPERVISION FEE of $60.00 per month during the term of [his] supervision, payments to be made on the 20th day of each month beginning March, 2018, payable through the Brazoria County Supervision and Corrections Department[;]
Appellant's community supervision was also subject to Sexual Offender Special Conditions of Community Supervision, including conditions that he:
. . . .
32. Work faithfully, without compensation, at a Community Service Task assigned by the Court, specifically, work 400 hours for a Community Restitution Program of the Brazoria County Community Supervision and Corrections Department, working no less than 16 hours per month[; and]
. . . .
34. . . . [P]articipate in the Intensive Supervision Program of this jurisdiction, specifically, a Level I caseload and report to the Community Supervision Officer as directed by the Court and obey all rules, regulations, and policies of said program as detailed in the applicable addendum until discharged by the Court: Sexual Offender Caseload[.]
2. . . . [A]ttend and participate in a sex offender treatment program to be conducted by sex offender treatment provider, namely RSOTP, a [registered sex offender treatment provider,] and obey all rules, regulations and policies of the designated program until successful completion and/or further orders of the court. Program participation is defined as attendance at all meetings, prompt payment of fees, acknowledgment of responsibility for the . . . offense, and progress toward responsible treatment goals[;]
. . . .
9. . . . [N]ot view or possess any material defined as obscene by Chapter 43 of the Texas Penal Code or patronize sexually oriented businesses. . . . [N]ot frequent or seek or maintain employment at sexually oriented establishments including, but not limited to: (topless bars, adult bookstores, X-rated theaters or places where pornography or sexually explicit materials are openly displayed at the establishment)[;]
. . . .
11. . . . [O]bserve child safety zones. . . . [N]ot reside or loiter within 1,000 feet of any school, day care center, park or other areas where children congregate[;]
. . . .
13. . . . [N]ot subscribe to, use, or access the Internet, or any computer online service, either at home or work, or any other location during the length of . . . supervision unless approved in advance by the Court[;]
. . . .
16. . . . [N]ot lie or make false statements to any employee of the Brazoria County Community Supervision and Corrections Department or . . . therapist[; and]
. . . .
. . . [P]ay the following:
A. Sex offender fee of $5.00 per month during the term of . . . supervision, payments to be made on or before the 20[th] day of each month, beginning March 2018, payable through the Brazoria County Community Supervision and Corrections Department for remittance to the State Comptroller as provided by law[; and]
B. . . . [A] polygraph fee of $21.00 per month during the term of supervision, payment to be made on or before the 20[th] day of each month, beginning March 2018, payable through the Brazoria County Community Supervision and Corrections Department.
On February 13, 2019, the State filed its First Amended Motion to Adjudicate Guilt, alleging that appellant had violated the above conditions of his community supervision.
At the hearing on the State's motion, appellant pleaded "[n]ot true" to the State's allegations in its motion. Brazoria County Community Supervision Officer G. Pigrenet then testified that appellant was placed on community supervision on February 20, 2018, she supervised appellant while he completed his community supervision, and she was familiar with the conditions of his community supervision. During appellant's first office visit with Pigrenet, on February 23, 2018, she registered him as a sex offender and she reviewed with appellant the conditions of his community supervision, which appellant indicated that he understood. As part of the conditions of appellant's community supervision, he was to report to Pigrenet twice a month for an in-person visit.
Officer Pigrenet also testified that on January 8, 2019, while supervising appellant, she, along with Brazoria County Senior Community Supervision Officer S. Duke, made a field visit to appellant's home, a "camper" located at 16224 Highway 228-B, Lot Number 7, in Angleton, Texas. After finding certain violations of appellant's conditions of community supervision during her field visit, Pigrenet told appellant to report for an office visit with her the next day. During the January 9, 2019 office visit, appellant admitted to Pigrenet that he had used the Internet daily since June 2018, which constituted a violation of a condition of his community supervision. After the January 9, 2019 office visit, appellant failed to report for an in-person visit with Pigrenet on January 16, 2019, and when Pigrenet tried to call appellant, his telephone was no longer in service. Appellant also failed to attend sex offender treatment on January 14, 2019, January 21, 2019, and January 28, 2019, and as a result of this, he was "unsuccessfully terminated" from his sex-offender-treatment program.
On January 22, 2019, Officers Pigrenet and Duke went to appellant's home address to attempt to locate appellant, but he was no longer there. Appellant's camper and truck were both gone. According to Pigrenet, appellant was required to give her notice before he moved and he had not informed her that he was moving.
Officer Duke testified that he went along with Officer Pigrenet to appellant's home, a recreational vehicle ("RV"), on January 8, 2019. Appellant had a laptop computer in his home, which, based on Duke's cursory examination, appeared to have been connected to the Internet. Duke returned to appellant's home address for a second time in January 2019, but appellant was no longer there. Duke noted that appellant was later arrested by law enforcement officers at a library, which constituted a child safety zone.
Brazoria County Sheriff's Office Sex Offender Compliance Officer M. Lopez testified that on January 22, 2019, he received notice that appellant was not residing at the small RV park where he was supposed to be living. Lopez then went to appellant's home address located at 16224 Highway 228-B, Lot Number 7, but Lopez only found an empty lot. The property manager told Lopez that appellant no longer lived there. On January 29, 2019, Lopez found appellant at a library in Galveston County, Texas.
Brent Walker testified that he owned Handy Self Storage, located at 16224 Highway 228-B in Angleton, Texas—a self-storage facility that had "10 RV sites" available to rent. Appellant, a former tenant, signed a monthly lease agreement with Walker and moved in on March 13, 2018. Walker last saw appellant on January 11, 2019, when he moved out of the RV park and paid most of the rent and fees that he owed. Appellant did not leave a forwarding address.
Appellant testified that in January 2019, he was living at Handy Self Storage, but he sold his RV to pay his past-due rent. After moving out of Handy Self Storage on January 11, 2019, appellant slept in his truck. According to appellant, he was waiting in a library in Galveston County, Texas for "job interviews" when law enforcement officers found him. Appellant also admitted that he stopped attending sex offender treatment and he had lied to Officer Pigrenet about his Internet usage.
The trial court admitted into evidence appellant's hand-written admission, dated January 9, 2019, which states that he had been "using [the] [I]nternet since June 2018 - daily" and he knew it violated his community supervision to do so. He also "made false statements to [his Community Supervision Officer] about [not] using [the] [I]nternet since June 2018."
After hearing the evidence, the trial court found that appellant had violated conditions 1, 8, 12, 32, and 34 of his community supervision as well as conditions 2, 9, 11, and 13 of the Sexual Offender Special Conditions of Community Supervision. The trial court found appellant guilty of two separate offenses of aggravated sexual assault of a child under fourteen years of age and assessed his punishment at confinement for fifty years for each offense, to run concurrently.
Adjudication of Guilt
In his first issue, appellant argues that the trial court erred in adjudicating his guilt because the evidence is insufficient to support a finding that he violated a condition of his community supervision.
Appellate review of an order adjudicating guilt is limited to determining whether the trial court abused its discretion. TEX. CODE CRIM. PROC. ANN. art. 42A.108; Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The trial court's decision must be supported by a preponderance of the evidence. Rickels, 202 S.W.3d at 763-64. The evidence meets this standard when the greater weight of the credible evidence creates a reasonable belief that a defendant has violated a condition of his community supervision. Id.
We examine the evidence in the light most favorable to the trial court's order. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981); Jones v. State, 787 S.W.2d 96, 97 (Tex. App.—Houston [1st Dist.] 1990, pet. ref'd). As the sole trier of fact, a trial court determines the credibility of witnesses and the weight to be given to their testimony. See Garrett, 619 S.W.2d at 174; Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. [Panel Op.] 1980); Jones, 787 S.W.2d at 97.
Proof of a single violation is sufficient to support revocation of community supervision. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Akbar v. State, 190 S.W.3d 119, 123 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Condition 13 of appellant's Sexual Offender Special Conditions of Community Supervision states:
[Appellant] shall not subscribe to, use, or access the Internet, or any computer online service, either at home or work, or any other location during the length of [appellant's] supervision unless approved in advance by the Court.The State, in its First Amended Motion to Adjudicate Guilt, alleged that:
. . . [Appellant], ANDREW LESTER GOODNIGHT, for the months of JUNE, JULY, AUGUST, SEPTEMBER, OCTOBER, NOVEMBER, DECEMBER 2018 AND JANUARY 2019, accessed the Internet, this being in violation of SEX[UAL] OFFENDER SPECIAL CONDITIONS term "13" of the conditions of supervision[.]
At the hearing on the State's First Amended Motion to Adjudicate Guilt, Officer Pigrenet testified that, during a January 9, 2019 office visit with her, appellant admitted to using the Internet daily since June 2018, which was a violation of a condition of appellant's community supervision. Officer Duke also testified that a cursory examination of appellant's laptop computer during a January 8, 2019 field visit at appellant's home revealed that appellant's computer had been connected to the Internet. And appellant's hand-written admission, dated January 9, 2019, states that he had been "using [the] [I]nternet since June 2018 - daily" and he knew it violated his community supervision to do so. Appellant also admitted to making "false statements to [his Community Supervision Officer] about [not] using [the] [I]nternet since June 2018." Appellant testified that he had previously lied to Officer Pigrenet about his Internet usage.
Appellant asserts that the State "failed to prove by a preponderance of [the] evidence that [appellant] accessed the [I]nternet . . . because the State never performed a forensic analysis of his laptop computer to determine if he [had] actually accessed the [I]nternet." But appellant fails to direct this Court to any authority that requires the State to perform a forensic analysis of his laptop computer to establish that appellant had accessed the Internet in violation of a condition of his community supervision. See TEX. R. APP. P. 38.1(i).
Appellant admitted, in his office visit with Officer Pigrenet and in his hand-written admission, dated January 9, 2019, which the trial court admitted into evidence at the hearing without objection, that he had used the Internet each day for more than six months in violation of a condition of his community supervision. Cf. Hawkins v. State, 05-09-00816-CR, 2011 WL 168603, at *1-2 (Tex. App.—Dallas Jan. 20, 2011, no pet.) (mem. op., not designated for publication) (preponderance of evidence showed defendant accessed Internet in violation of condition of community supervision where defendant admitted to supervision officer he had used Internet on several occasions); see also Brown v. State, Nos. 01-13-01039-CR to 01-13-01041-CR, 2014 WL 4390587, at *4 (Tex. App.—Houston [1st Dist.] Sept. 4, 2014, pet. ref'd) (mem. op., not designated for publication) (trial court did not err in revoking community supervision where defendant admitted to two violations of community supervision conditions); Latigue v. State, No. 14-10-00680-CR, 2011 WL 2149418, at *2 (Tex. App.—Houston [14th Dist.] May 26, 2011, no pet.) (mem. op., not designated for publication) ("[Appellant's] admissions alone are sufficient to support an adjudication of guilt."). And neither the testimony of Pigrenet nor the testimony of Officer Duke about appellant's use of the Internet was contradicted at the hearing.
Viewed in the light most favorable to the trial court's order adjudicating guilt, the greater weight of the evidence supports a reasonable belief that appellant violated a condition of his community supervision. Thus, we hold that the trial court did not err in finding "true" that appellant violated condition 13 of the Sexual Offender Special Conditions of Community Supervision and in adjudicating appellant's guilt.
We overrule appellant's first issue.
Cruel and Unusual Punishment
In his second issue, appellant argues that the trial court erred in imposing an excessive and disproportionate sentence, resulting in cruel and unusual punishment, because, "[b]y assessing [appellant] a lengthy sentence . . . and by rejecting the reinstatement of his [community supervision], the trial court failed to consider that [appellant] had valid reasons for not fulfilling all of the requirements of his [community supervision]." The State asserts that appellant has not preserved his complaint for appellate review.
The Eighth Amendment of the United States Constitution and Article I, section 13 of the Texas Constitution require that a criminal sentence be proportionate to the crime for which the defendant has been convicted. Solem v. Helm, 463 U.S. 277, 290 (1983); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd); Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd); see U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13. Texas courts have generally held that a punishment that falls within the limits prescribed by a valid statute is not excessive, cruel, or unusual. See State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016); Ajisebutu v. State, 236 S.W.3d 309, 314 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) ("Generally, a sentence within the statutory range of punishment for an offense will not be held cruel or unusual under the Constitution of either Texas or the United States.").
Although appellant bases his argument on both the United States and Texas Constitutions, he argues the two provisions together, providing no separate argument under the Texas Constitution or any argument as to why the Texas Constitution provides more protection than the United States Constitution. See Heitman v. State, 815 S.W.2d 681, 690 n.23 (Tex. Crim. App. 1991); Rivera v. State, 363 S.W.3d 660, 678 n.12 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Texas courts have consistently concluded that there is "no significance in the difference" between the two constitutional provisions. See Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997); see also Vazquez v. State, No. 01-17-00445-CR, 2018 WL 1321123, at *2 n.3 (Tex. App.—Houston [1st Dist.] Mar. 15, 2018, pet. ref'd) (mem. op., not designated for publication).
To preserve for appellate review a complaint of cruel and unusual punishment, a defendant must present his complaint to the trial court through a timely request, objection, or motion stating the specific grounds for the ruling desired. See TEX. R. APP. P. 33.1(a); Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999) (concluding defendant did not preserve cruel-and-unusual-punishment complaint for appellate review); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd); see also Vazquez v. State, No. 01-17-00445-CR, 2018 WL 1321123, at *2 (Tex. App.—Houston [1st Dist.] Mar. 15, 2018, pet. ref'd) (mem. op., not designated for publication); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) (specific objection must be made in trial court to preserve federal or state constitutional claim of cruel and unusual punishment). A specific objection to the trial court brings the trial court's attention to a possible error that it may correct. See Solis, 945 S.W.2d at 301 ("The purpose for the rule is to allow . . . the trial court to cure any harm."); see also Vazquez, 2018 WL 1321123, at *2. Even a constitutional error may be waived by the failure to timely complain in the trial court. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Quick v. State, 557 S.W.3d 775, 788 (Tex. App.—Houston [14th Dist.] 2018, pet. ref'd).
Here, after the trial court announced his sentence, appellant did not object, obtain a ruling from the trial court, or raise his cruel-and-unusual-punishment complaint in a motion for new trial. See TEX. R. APP. P. 33.1(a); Noland, 264 S.W.3d at 151-52; Solis, 945 S.W.2d at 301; see also Vazquez, 2018 WL 1321123, at *2. Thus, we hold that he has not preserved his complaint for our review. See TEX. R. APP. P. 33.1(a); Noland, 264 S.W.3d at 151-52; Solis, 945 S.W.2d at 301; see also Vazquez, 2018 WL 1321123, at *2-3.
We note that appellant's punishment of confinement for fifty years for each offense, to run concurrently, falls within the applicable statutory range of punishment for the offense of aggravated sexual assault of a child under fourteen years of age—a first-degree felony offense punishable by "imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years." See TEX. PENAL CODE ANN. § 12.32(a) (punishment for first-degree felony offense), § 22.021(e) (aggravated sexual assault of a child constitutes first-degree felony offense); see also Vasquez, 2018 WL 1321123, at *3 n.4. And appellant does not assert, nor do we conclude, that his sentence resulted from fundamental error such that he was not required to object to preserve error. See Young v. State, 425 S.W.3d 469, 473-74 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (holding no fundamental error where defendant convicted of first-degree felony offense and sentenced within statutory range of punishment authorized for such offenses); see also Vasquez, 2018 WL 1321123, at *3 n.4.
Right to Trial by Jury
In his third issue, appellant argues that the trial court erred in denying him the right to trial by a jury because the State alleged that appellant had violated condition 1 of his community supervision by "committing a new felony offense of Failure to Register as a Sex Offender" and appellant was entitled to have "a jury decide the charge based on the beyond a reasonable doubt standard."
Condition 1 of appellant's community supervision states:
Commit no offense against the laws of this Stale or any other State of the United States or of any government entity[.]And the State, in its First Amended Motion to Adjudicate Guilt, alleged that:
. . . [Appellant], ANDREW LESTER GOODNIGHT, on or about the 11TH day of JANUARY, 2019, in Brazoria County, Texas, did then and there after having had a reportable conviction or adjudication for the offense of Aggravated Sexual Assault of a Child, intentionally or knowingly fail to notify local law enforcement authority, namely, Brazoria County Sheriff's Office, with whom . . . [appellant] last registered, of . . . [appellant's] change of address as required by the Sex Offender Registration Program, Chapter 62, Texas Code of Criminal Procedure, this being in violation of term "1" of the conditions of supervision[.]
As noted, proof of a single violation is sufficient to support the revocation of appellant's community supervision. Moore, 605 S.W.2d at 926; Akbar, 190 S.W.3d at 123. And we have already held that the trial court did not err in finding "true" that appellant had violated condition 13 of the Sexual Offender Special Conditions of Community Supervision and in adjudicating appellant's guilt based on his violation of that particular condition. Thus, we need not address any purported error committed by the trial court in finding "true" that appellant had violated condition 1 of his community supervision by "intentionally or knowingly fail[ing] to notify local law enforcement authority, namely, Brazoria County Sheriff's Office, with whom [appellant] last registered, of [appellant's] change of address as required by the Sex Offender Registration Program, Chapter 62, Texas Code of Criminal Procedure." See TEX. R. APP. P. 47.1; Moore, 605 S.W.2d at 926; see also Williams v. State, No. 14-10-01025-CR, 2011 WL 6141591, at *3 (Tex. App.—Houston [14th Dist.] Dec. 8, 2011, no pet.) (mem. op., not designated for publication) (error harmless when appellate court can uphold trial court's revocation of community supervision on other grounds); Deshone v. State, No. 07-04-0082-CR, 2004 WL 1841457, at *2 (Tex. App.—Amarillo Aug. 17, 2004, no pet.) (mem. op., not designated for publication) ("Proof of any of th[e] violations would have justified the trial court's decision to revoke [defendant's] community supervision.").
Modification of Judgment
The trial court's written judgment does not accurately comport with the record in this case in that it states that appellant pleaded "Not True" to violating these conditions of his community supervision, as alleged in the State's First Amended Motion to Adjudicate Guilt: "1, 8, 12, 18a, 32, 34; Sex Offender Conditions of Community Supervision: 2, 9, 11, 13, 16A, 16B." And the judgment lists "22.021(a)(2)(B)" for the "Statute for Offense."
The record shows that appellant pleaded "Not true" to violating these conditions of his community supervision: "1, 8, 12, 18-A, 32, 34" and "Sex Offender Special Conditions of Community Supervision: 2, 9, 11, 13, 16, Subpart A and Subpart B." And that appellant pleaded guilty to the offense of aggravated sexual assault of a child under fourteen years of age under Texas Penal Code section 22.021(a)(1)(B)(i), (iii), (a)(2)(B).
"[A]ppellate court[s] ha[ve] the power to correct and reform a trial court judgment 'to make the record speak the truth when [they] ha[ve] the necessary data and information to do so, or make any appropriate order as the law and nature of the case may require.'" Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet ref'd)). Although neither party addresses the inconsistency between the trial court's written judgment and the record, we, based on our review, conclude that the portions of the judgment regarding appellant's "Plea to Motion to Adjudicate" and the "Statute for Offense" do not accurately comport with the record. See Asberry, 813 S.W.2d at 529-30 (authority to correct incorrect judgment not dependent upon request of any party).
Thus, we modify the portion of trial court's judgment related to the "Plea to Motion to Adjudicate" to state that appellant pleaded "Not true" to violating these conditions of his community supervision, as alleged in the State's First Amended Motion to Adjudicate Guilt: "1, 8, 12, 18-A, 32, 34; Sex Offender Special Conditions of Community Supervision: 2, 9, 11, 13, 16, Subpart A and Subpart B." We also modify the trial court's judgment to reflect that the "Statute for Offense" is "22.021(a)(1)(B)(i), (iii), (a)(2)(B)." See TEX. R. APP. P. 43.2(b); see, e.g., Snyder v. State, No. 01-18-00062-CR, 2018 WL 4136263, at *1-2 (Tex. App.—Houston [1st Dist.] Aug. 30, 2018, no pet.) (mem. op., not designated for publication) (modifying "Statute for Offense"); Rodriguez-Sanchez v. State, No. 01-17-00344-CR, 2018 WL 1189106, at *6 (Tex. App.—Houston [1st Dist.] Mar. 8, 2018, no pet.) (mem. op., not designated for publication) (reforming judgment to reflect allegations in State's motion to adjudicate to which defendant pleaded true).
Conclusion
We affirm the judgment of the trial court as modified.
Julie Countiss
Justice Panel consists of Justices Keyes, Goodman, and Countiss. Goodman, J., concurring. Do not publish. TEX. R. APP. P. 47.2(b).