No. 05-01-01775-CR.
Opinion Filed January 28, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F00-46606-VI. AFFIRMED.
Before Chief Justice THOMAS and Justices FRANCIS and LANG.
Opinion By Chief Justice THOMAS
Anthony Reed, Sr. appeals the revocation of his probation. Appellant waived a jury trial and entered a negotiated guilty plea to sexual assault. See Tex. Pen. Code Ann. § 22.011 (Vernon Supp. 2003). Pursuant to the plea bargain agreement, the trial court sentenced appellant to ten years' confinement, probated for eight years, and assessed a $1000 fine. Subsequently, the State moved to revoke appellant probation, alleging appellant violated two conditions of his probation. Appellant pleaded not true to the allegations at a hearing on the motion. The trial court found the allegations true, revoked appellant's probation, and sentenced him to ten years' confinement. In three points of error, appellant contends the evidence is insufficient to support the revocation, the trial court abused its discretion in revoking his probation based on an invalid condition, and the trial court's judgment should be reformed to delete the fine. We affirm the trial court's judgment. Appellant was placed on probation on June 20, 2000, and several conditions of probation were imposed. On May 18, 2001, the trial court added condition (u), which provides:
[The] defendant shall participate in the Electronic Monitoring Program conducted by the Dallas County Community Supervision and Corrections Department. As a participant therein, the defendant must remain at his residence . . . at all times except during approved work hours or at other times approved in advance by the court or the probation officer.
On September 11, 2001, the State filed an amended motion to revoke probation alleging appellant failed to pay probation fees and failed to remain in his home under electronic monitoring for parts of June and in July and August 2001. At a hearing on the motion, Jennifer Leslie, appellant's probation officer, testified she took over appellant's case in June 2001. Leslie discussed each of the probation conditions with appellant at their first meeting, and discussed the rules, regulations, and requirements of the Electronic Monitoring Program with appellant at their weekly meetings. As appellant's probation officer, Leslie was required to reconcile reports from the monitoring company with time cards from appellant's employer that appellant submitted to her weekly. Leslie testified that if the monitoring report showed appellant was not at home or work at that time, then appellant was outside his home without approval in violation of condition (u). The monitoring records offered into evidence showed appellant was unaccounted for and not in his home on multiple occasions in June, July, and August 2001. Leslie testified that when she confronted appellant about the discrepancies between the handwritten entries on his time cards and the monitoring reports, appellant admitted he falsified his time cards to include times he was not at work because he wanted to receive extra money from his employer. Leslie further testified that even though appellant was working, probation department records showed appellant was $498 delinquent in paying his probation fees. Jessie Lane testified Leslie sent him to check appellant's monitoring equipment. This was done because Leslie had received a report from the monitoring company that the equipment had been unplugged. Lane went to appellant's home and found the monitor equipment on a desk with books and magazines on top of it. The electrical cord was unplugged, but the telephone to which the monitor was hooked was plugged in its socket. Lane plugged the monitor into an electrical strip under the desk, and it functioned properly. Henry Reed, appellant's brother, testified appellant lived with him, and appellant worked as a mail handler at a company owned by Henry's son. Henry testified that the telephone in the house was located in a high traffic area between the living room and the bathroom. On several occasions, the telephone cord was accidently kicked out of the socket. Appellant's monitor equipment was on top of a desk with the telephone and a computer. Henry testified appellant sometimes received a paycheck for his work, but most of the time appellant was paid in cash. Henry further testified appellant only left the house to go to work or to therapy classes, appellant did not deliberately take the monitor from his leg, and appellant had no funds and was indigent. invalid probation condition
In his second point of error, appellant contends the trial court abused its discretion in revoking his probation because condition (u), electronic monitoring, constituted an unlawful delegation of authority from the trial court to a probation officer. The State argues appellant did not object at trial about the validity of condition (u) and, thus, has waived his complaint. In the alternative, the State argues condition (u) has a reasonable relationship to the treatment of appellant and the protection of the public. The State correctly points out an appellant generally cannot complain about a condition of community supervision for the first time on appeal. See Speth v. State, 6 S.W.3d 530, 535 (Tex.Crim.App. 1999). However, in this case appellant complains about a revocation based on a modified condition of probation. Although a defendant may not appeal an order altering or modifying the conditions of his probation, he may complain of a modification order when violation of that order formed the basis of a subsequent revocation. See Elizondo v. State, 966 S.W.2d 671, 672 (Tex.App.-San Antonio 1998, no pet.) (citing Sanchez v. State, 603 S.W.2d 869, 870 (Tex.Crim.App. [Panel Op.] 1980)); see also Tex. Code Crim. Proc. Ann. art. 42.12, § 23(b) (Vernon Supp. 2003) (appeal following revocation of probation); Basaldua v. State, 558 S.W.2d 2, 5 (Tex.Crim. App. 1977) (no appeal of order modifying probation conditions). We will therefore address appellant's complaint. Appellant argues condition (u), the electronic monitoring requirement, constituted an unlawful delegation of authority from the trial court to his probation officer because the probation officer determined the times when appellant was allowed to be away from his residence rather than the trial court. We disagree. We review a trial court's imposition of community supervision conditions under an abuse of discretion standard. See LeBlanc v. State, 908 S.W.2d 573, 574 (Tex.App.-Fort Worth 1995, no pet.). Article 42.12, section 11 of the code of criminal procedure permits a trial judge to "impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant." Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a) (Vernon Supp. 2003). Trial courts have been given wide discretion in selecting terms and conditions of probation. See Fielder v. State, 811 S.W.2d 131, 134 (Tex.Crim.App. 1991). Submission to electronic monitoring is one of the probation conditions a trial judge may impose. See Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)(17). Here, appellant was placed on probation after being sentenced to ten years imprisonment for sexual assault. The trial court ordered appellant to submit to electronic monitoring, which included getting prior approval from the court or the probation officer for any time spent away from home that was not during work hours. It is not an unauthorized delegation of judicial authority to allow a probation officer to determine the times a probationer is allowed to be away from his residence when that probationer has been ordered by the trial court to undergo electronic monitoring. See McArthur v. State, 1 S.W.3d 323, 334 (Tex.App.-Fort Worth 1999, no pet.), cert. denied, 531 U.S. 873 (2000). Determining a probationer's schedule facilitates both his confinement and participation in court-approved activities. See id. The trial court retained ultimate supervision over appellant during the probationary period. See Jones v. State, 571 S.W.2d 191, 193 (Tex.Crim.App. [Panel Op.] 1978). We conclude condition (u) was not an improper delegation of authority. Accordingly, we overrule appellant's second point of error. insufficient evidence
In his first point of error, appellant contends the evidence is insufficient to show he was not in his residence during the times the electronic monitoring device may have been unplugged, and the State failed to rebut his affirmative defense of inability to pay the probation fees. The State argues the evidence is sufficient to show appellant violated both conditions of probation by disabling the electronic monitoring device and by not providing proof of his inability to pay the probation fees. We review an order revoking probation under an abuse of discretion standard. See Bennett v. State, 476 S.W.2d 281, 282 (Tex.Crim.App. 1972); Lee v. State, 952 S.W.2d 894, 897 (Tex.App.-Dallas 1997, no pet.) (en banc). In making this determination, we examine the evidence in the light most favorable to the trial court's order. See Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1981); Lee, 952 S.W.2d at 897. The State must prove by a preponderance of the evidence that the probationer violated the terms and conditions of his probation. See Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App. 1993); Lee, 952 S.W.2d at 897. In a revocation proceeding, the trial judge is the sole trier of the facts, credibility of the witnesses, and the weight to be given the testimony. See Lee, 952 S.W.2d at 897. Here, appellant's probation officer testified appellant was unaccounted for on numerous occasions during the months of June, July, and August 2001. Appellant admitted he falsified time cards to include times when he was not at work. According to the monitoring reports, those times coincided with the times appellant was unaccounted for without approval. We conclude the State showed by a preponderance of the evidence appellant violated the electronic monitoring condition of probation. Moreover, appellant failed to prove the affirmative defense of inability to pay fees by a preponderance of the evidence. See Watts v. State, 645 S.W.2d 461, 463 (Tex.Crim.App. [Panel Op.] 1983). Appellant's probation officer testified appellant was employed during the time she supervised him, and was delinquent in paying the probation fees. We conclude the evidence showed that appellant had the ability to pay the probation fees and he did not pay them. Having reviewed the evidence under the appropriate standard, we conclude the evidence is sufficient to show appellant violated the conditions of his probation. See Cobb, 851 S.W.2d at 874; Lee, 952 S.W.2d at 901. Accordingly, we overrule appellant's first point of error. fine not orally pronounced
In this third point of error, appellant contends the trial court's judgment should be modified to delete the fine. Appellant argues that since the fine was not orally pronounced when the trial court revoked his probation, it must be deleted. The State agrees the fine should be deleted because it was not orally pronounced at the sentencing hearing. We disagree. An unprobated fine orally imposed at the original plea hearing may be included in the judgment revoking regular probation even though the fine was not repronounced at the revocation hearing. See Coffey v. State, 979 S.W.2d 326, 329 (Tex.Crim.App. 1998). Here, the trial court's judgment placing appellant on probation specifically states the assessed fine is not probated. Thus, appellant is not entitled to have the fine deleted. We overrule appellant's third point of error. We affirm the trial court's judgment.