Opinion
NO. 03-17-00291-CR
03-27-2018
Clinton Ray Griffin, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
NO. 2011-170 , HONORABLE CHRIS SCHNEIDER, JUDGE PRESIDING MEMORANDUM OPINION
In 2013, appellant Clinton Ray Griffin pleaded guilty to aggravated sexual assault of a child. See Tex. Penal Code § 22.021. The trial court ordered Griffin placed on deferred-adjudication community supervision for ten years. In 2016, the State filed a motion to adjudicate, alleging that Griffin violated seven conditions of his community supervision. After holding a hearing, the trial court found that Griffin had violated terms of his community supervision, adjudicated Griffin guilty, and assessed his punishment at 17 years in prison and a $2,000 fine. The trial court also assessed various court costs and fees against Griffin. In eight appellate issues, Griffin contends that the trial court abused its discretion in finding that Griffin violated terms of his community supervision and that the trial court erred in making certain monetary assessments against him. We will modify the trial court's judgment and affirm the judgment as modified.
DISCUSSION
Revocation of Community Supervision
In his first four issues, Griffin contends that the trial court abused its discretion in revoking his community supervision and adjudicating his guilt.
We review the decision to adjudicate guilt in the same manner as a community-supervision revocation in which an adjudication of guilt was not deferred. See Leonard v. State, 385 S.W.3d 570, 571 n.1 (Tex. Crim. App. 2012). The State must prove that the defendant violated a condition of probation by a preponderance of the evidence. See Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). Thus, we apply a less rigorous legal-sufficiency analysis than is performed when the standard is beyond a reasonable doubt. Id. We review a trial court's decision to revoke community supervision for an abuse of the trial court's discretion, see Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006), viewing the evidence in the light most favorable to the trial court's decision, see Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). Proof by a preponderance of the evidence of a single violation of a condition of community supervision is sufficient to support revocation. See Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009) ("We have long held that 'one sufficient ground for revocation would support the trial court's order revoking' community supervision.") (quoting Jones v. State, 571 S.W.2d 191, 193 (Tex. Crim. App. 1978)); Figueroa v. State, No. 03-16-00805-CR, 2017 WL 2857139, at *3 (Tex. App.—Austin June 29, 2017, no pet.) (mem. op., not designated for publication) ("A trial court's decision to revoke community supervision must be supported by a preponderance of the evidence . . . . Proof of a single violation of a condition of community supervision is sufficient to support revocation.").
In its motion to revoke Griffin's community supervision, the State alleged, among other things, that Griffin violated the terms and conditions of his community supervision by having contact with C.S., a minor. Griffin contends, in his second issue, that the trial court abused its discretion in finding that he violated this condition.
The record indicates that this person's name should actually be abbreviated C.R., but she has usually been referred to as C.S. throughout this case.
At the revocation hearing, Griffin's probation officer testified concerning this contact as follows:
[State's Attorney:] Did you come into some information that he had had contact with a minor child by the name of [C.S.]?
[Probation Officer:] Yes, ma'am.
[State's Attorney:] And how did you come into that information?
[Probation Officer:] I observed the defendant in close proximity of the child when I was reporting to one of his work locations for a field visit.
[State's Attorney:] And as a condition Mr. Griffin, was he supposed to have any contact with minor children?
[Probation Officer:] No, ma'am.
***
[State's Attorney:] Did you speak to Mr. Griffin about this contact?
[Probation Officer:] Yes, ma'am.
[State's Attorney:] And what did he have to tell you?
[Probation Officer:] He—he told me that it was an isolated incident. He tried to get rid of her and not acknowledge her.
[State's Attorney:] Is that what you observed that day?
[Probation Officer:] What I observed was the—the child exit the building and Mr. Griffin was maybe ten feet behind her following her out of the building. And she immediately went into an adjacent structure mobile home then he approached me.
***
[Griffin's Attorney:] And can you explain what contact you—what sort of contact you saw him engaging in with [C.S.]?
[Probation Officer:] They exited the same building around ten feet apart. He was right behind her. And Mr. Griffin also told me that he had had contact with her, telling her to go away—actually having verbal contact with her.
***
[Griffin's Attorney:] Now, when you saw Mr. Griffin in the same proximity as [C.S.], was [C.S.] the only person there?
[Probation Officer:] To my best recollection he and [C.S.].
***
[State's Attorney:] And if you will tell us what you saw when you arrived on April 26th of 2016 at Mr. Griffin's place of work?
[Probation Officer:] Yes, ma'am. While I was pulling up in the department vehicle and parking, I saw a young female that appeared to be a minor walk out of the front of the barn and then Mr. Griffin following after her coming out of the exit of the barn after her, probably about 10, 15 feet behind her. She didn't acknowledge me at all. She just went to an adjacent building. Went inside.
[State's Attorney:] Did you try to have any contact or make contact with her?
[Probation Officer:] No, ma'am.
[State's Attorney:] Why not?
[Probation Officer:] Well, I was honestly just focused on him and speaking to him and trying to get his explanation. And what I did speak to him he let me know that she was 17.
[State's Attorney:] And was there anybody else around when they exited that barn?
[Probation Officer:] No, ma'am.
[State's Attorney:] That you saw?
[Probation Officer:] No, ma'am.
[State's Attorney:] And did you speak with Mr. Griffin's employer at that time?
[Probation Officer:] No, ma'am.
[State's Attorney:] Okay. You had seen with your own eyes Mr. Griffin having that contact with [C.S.]?
[Probation Officer:] Yes, ma'am.
Viewing this evidence in the light most favorable to the trial court's decision, we conclude that there was sufficient evidence to support the trial court's finding that Griffin violated a condition of his community supervision by having unsupervised contact with C.S. The trial court could have reasoned that Griffin's close proximity to C.S. when exiting the building, the fact that the two were alone together, and the fact that he spoke to her proved by a preponderance of the evidence that Griffin had contact with C.S. Morever, although the testimony of C.S. and her father at the revocation hearing tended to show that Griffin did not have unsupervised contact with C.S., the trial court could have disbelieved their testimony and credited the probation officer's testimony. See Hacker, 389 S.W.3d at 865 ("[W]e have explained that the trial judge is the sole judge of the credibility of the witnesses and the weight to be given to their testimony."). This is true even though the testimony of C.S. and her father was uncontradicted. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010) ("[The trial court] is entitled to believe or disbelieve all or part of the witness's testimony—even if that testimony is uncontroverted—because he has the opportunity to observe the witness's demeanor and appearance."); Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994) (noting that fact-finder "was free to accept or reject any or all of the evidence of either the State or the defense, even if that evidence was uncontradicted"); Torres v. State, 905 S.W.2d 440, 441 (Tex. App.—Fort Worth 1995, no pet.) (same).
Because we have concluded that sufficient evidence supported the trial court's finding that Griffin violated a condition of his community supervision by having unsupervised contact with C.S., and because proof by a preponderance of the evidence of a single violation of a condition of community supervision is sufficient to support revocation, see Smith, 286 S.W.3d at 342, we further conclude that the trial court did not abuse its discretion in revoking Griffin's community supervision. Accordingly, we overrule Griffin's second issue as it applies to C.S.
Moreover, because proof of a single violation of a condition of community supervision is sufficient to support revocation, we need not address the remainder of his second issue, his first issue, or his third issue, all of which challenge the trial court's revocation of his community supervision. We also need not address his fourth issue, which challenges the trial court's admission of polygraph evidence, because the polygraph evidence did not pertain to the incident with C.S.
Monetary Assessments
In his fifth issue, Griffin contends that the trial court erred in assessing a $2,000 fine in its written judgment that it did not orally pronounce at sentencing. The State has conceded that the assessment of this fine was error, and we agree. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004) ("Since the judge did not orally assess a fine as part of Taylor's sentence when guilt was adjudicated, the Court of Appeals was correct to delete the fine from the judgment."); see also Burt v. State, 445 S.W.3d 752, 757 (Tex. Crim. App. 2014) ("[F]airness to the defendant requires that his sentence be pronounced orally in his presence. A written judgment is simply the declaration and embodiment of that pronouncement. Therefore, when there is a conflict between the oral pronouncement and the written judgment, the oral pronouncement controls.") (cleaned up); Wright v. State, No. 03-14-00468-CR, 2015 WL 4609743, at *2 (Tex. App.—Austin July 28, 2015, no pet.) (mem. op., not designated for publication) ("When the oral pronouncement of sentence and the written judgment vary, the oral pronouncement controls."). Accordingly, we sustain Griffin's fifth issue and will modify the judgment to eliminate the $2,000 fine.
In his sixth issue, Griffin contends that the trial court erred in assessing $2,070 as an "other court cost." Griffin argues that this amount actually represented allegedly unpaid restitution and that, because the trial court did not orally pronounce any amount of restitution at sentencing, the oral pronouncement should control and this Court should delete the amount from the judgment. See Taylor, 131 S.W.3d at 502. In the alternative, Griffin argues that the record only supports an assessment of $390 in court costs. In its appellate brief, the State indicates that "[t]he bill of cost reflecting $2,070 as other court costs needs to be reformed."
That is, restitution that the trial court had previously imposed as a condition of community supervision.
At oral argument, the State indicated that it took no position on whether this Court should delete the amount from the bill of costs.
The record before us appears to indicate that the $2,070 assessment actually represented restitution. Because the trial court did not orally pronounce this restitution during sentencing, and because, in any event, the State agrees that "[t]he bill of cost reflecting $2,070 as other court costs needs to be reformed" and does not oppose the deletion of the assessment, we sustain Griffin's sixth issue and will modify the judgment to delete the assessment of $2,070 from the bill of costs.
In his seventh issue, Griffin contends that the trial court erred in assessing $6,727.29 as a "court appointed attorney fee." Griffin argues that a trial court "only has authority to order reimbursement of attorney fees if it finds that a defendant has the ability to repay those fees." See Tex. Code Crim. Proc. art. 26.05(g) (providing that the trial court shall order the defendant to pay attorney's fees "[i]f the judge determines that a defendant has financial resources that enable the defendant to offset in part or in whole the costs of the legal services provided to the defendant"); Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010) ("[T]he defendant's financial resources and ability to pay are explicit critical elements in the trial court's determination of the propriety of ordering reimbursement of costs and fees."). We agree that the record before us does not indicate that the State presented any evidence concerning Griffin's ability to pay attorney's fees. Accordingly, we sustain Griffin's seventh issue and will modify the judgment to eliminate the assessment of $6,727.29 in attorney's fees from the bill of costs.
In his eighth issue, Griffin asks this Court to abate this appeal to give his counsel the opportunity to obtain the reporter's record from the underlying plea proceedings. Griffin does not explain how that record could show that the order placing him on community supervision was void or how the record could otherwise be relevant to this appeal. We previously denied Griffin's motion to supplement the reporter's record, and we now overrule his eighth issue.
CONCLUSION
Having sustained Griffin's fifth, sixth, and seventh issues, we modify the judgment to eliminate the assessment of the $2,000 fine, the $2,070 "other court cost," and the $6,727.29 in attorney's fees. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Having overruled the remainder of Griffin's issues, we affirm the trial court's judgment as modified.
/s/_________
Scott K. Field, Justice Before Chief Justice Rose, Justices Goodwin and Field Modified and, as Modified, Affirmed Filed: March 27, 2018 Do Not Publish