Richard McCabe v. The State of Texas--Appeal from 228th District Court of Harris County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RICHARD BEVIL MCCABE, )

) No. 08-04-00205-CR

Appellant, )

) Appeal from the

v. )

) 228th District Court

THE STATE OF TEXAS, )

) of Harris County, Texas

Appellee. )

) (TC# 869551)

)

O P I N I O N

Appellant Richard Bevil McCabe appeals the revocation of his community supervision. A jury found Appellant guilty of aggravated sexual assault of a child and assessed punishment at 10 years imprisonment in the Institutional Division of the Texas Department of Criminal Justice, probated to 10 years= community supervision, and imposed a fine of $10,000, probated. After a hearing on the State=s motion to revoke probation, the trial court revoked Appellant=s community supervision and sentenced him to 10 years= imprisonment and a fine of $10,000. In six issues, Appellant challenges the trial court=s revocation of community supervision. We affirm.

PROCEDURAL BACKGROUND

Appellant was placed on probation on March 8, 2001. The following conditions were included under the terms and conditions of his community supervision:

(16.4) You are not to reside, go in, on or within 100 yards of a premises where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility beginning March 8, 2001, for any reason except as specifically permitted by the Court. You are not to supervise or participate in any program that includes participants or recipients persons who are seventeen (17) years of age or younger and that regularly provides athletic, civic or cultural activities beginning March 8, 2001, for any reason except as specifically permitted by the Court.

(16.5) You are to have no contact with any minor under the age of seventeen (17) beginning March 8, 2001 for any reason except as specifically permitted by the Court.

On May 5, 2004, the State filed a AMotion to Revoke Community Supervision.@ In the motion, the State alleged that Appellant had violated the above terms of his community supervision by being in attendance of a Girl Scout Awards Ceremony held at Williams Elementary School in Magnolia and by having minor children in his residence. On June 7, 2004, the State filed an amended motion, which it entitled, AFirst Amended Motion to Adjudicate Guilt.@ The amended motion included the additional allegation that Appellant violated the court=s order not to have contact with any minor by having M.B., a six-year-old child to his home to watch movies. Appellant plead not true to the State=s allegations. After the revocation hearing, the trial court found all the allegations in the State=s amended petition to revoke community supervision to be true, revoked Appellant=s probation, sentenced him to 10 years= imprisonment, and imposed a $10,000 fine. Appellant now brings this appeal.

DISCUSSION

REVOCATION OF COMMUNITY SUPERVISION

Appellant raises six issues, in which he contends the trial court abused its discretion in revoking community supervision because: (1) the evidence of any violation of probation was legally and factually insufficient; (2) double jeopardy bars him from being adjudicated for the aggravated sexual assault offense twice; (3) the State=s amended motion was untimely filed; and (4) the State=s motion failed to allege any violations and the State also failed to provide sufficient notice of the dates of the alleged violations.

Notice

In Issue Four, Appellant contends the trial court erred by holding the revocation hearing within seven days of the State=s filing of its amended motion without a showing of good cause for the untimely filing of the motion.

The State filed its amended motion on June 7, 2004, and the hearing on the State=s motion was held three days later on June 10, 2004. In felony cases, the State may amend the motion to revoke community supervision any time up to seven days before the revocation hearing, after which time the motion may not be amended except for good cause shown. Tex.Code Crim.Proc.Ann. art. 42.12, ' 21(b)(Vernon Supp. 2004-05).

Appellant did not object to the amended motion to revoke community supervision at trial or in his motion for new trial. Because he failed to raise an objection to the amended motion, Appellant waive his right to a good cause showing. Thus, he has not preserved his complaint for appellate review. See Tex.R.App.P. 33.1(a). Issue Four is overruled.

Defective Motion

In Issues Five and Six, Appellant contends that the State=s motion failed to provide sufficient notice of the dates of the alleged violations and that its allegations, as pleaded, failed to state a violation of his probation. Even if the State=s amended motion in this case was defective as Appellant claims, we cannot address these complaints. Appellant did not file a motion to quash the State=s motion and made no objection to the sufficiency of the motion at the revocation hearing. In the absence of a motion to quash, the sufficiency of a motion to revoke probation cannot be raised for the first time on appeal. Vance v. State, 485 S.W.2d 580, 581-82 (Tex.Crim.App. 1972). Appellant has not properly preserved his complaints for appellate review. See Tex.R.App.P. 33.1(a). Issues Five and Six are overruled.

Double Jeopardy

In his third issue, Appellant argues that by proceeding under the State=s AFirst Amended Motion to Adjudicate,@ he was adjudicated guilty twice, in violation of the double jeopardy clause in the Fifth Amendment.

At the start of the hearing, the trial court stated that the State has Afiled a motion to adjudicate guilt@ and inquired into whether there was a mistake in the petition. Appellant=s counsel agreed that he had seen the first amended motion and believed that Appellant=s guilt had been adjudicated in a jury trial. Appellant testified to the same and confirmed that he had been placed on probation for aggravated sexual assault of a child. Appellant did not object to any defect in the State=s amended motion and did not raise a double jeopardy claim in the trial court.

The double jeopardy clause of the United States Constitution protects against three abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishment for the same offense. Ex Parte Rhodes, 974 S.W.2d 735, 738 (Tex.Crim.App. 1998). A double jeopardy claim is forfeited if it is raised for the first time on appeal unless the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000).

Unlike a criminal proceeding, guilt or innocence is not at issue in a probation revocation hearing. State v. Nash, 817 S.W.2d 837, 840 (Tex.App.--Amarillo 1991, pet. ref=d). Rather, the issue is whether the defendant has committed an act that in effect, broke the contract made with the court pursuant to the granting of probation. Id. The result is not a conviction, but a finding upon which the trial court might exercise its discretion by revoking, or continuing, probation. Id.

It is clear from the record that all parties understood that the trial court was proceeding under a mistitled amended motion to revoke community supervision and Appellant made no objection to any defect in that motion. In reviewing the record, the final order in this case clearly states that it is an order revoking community supervision. The trial court found Appellant had violated the conditions of his community supervision as alleged in the State=s amended petition to revoke community supervision. Appellant was not adjudged guilty for the offense, thus double jeopardy does not apply. See Nash, 817 S.W.2d at 840 (double jeopardy protections do not apply to a proceeding wherein the result is deemed to be neither a conviction nor acquittal); see also United States v. Whitney, 649 F.2d 296, 298 (5th Cir. 1981)(declining to extend the double jeopardy clause to parole and probation revocation proceedings because they are not designed to punish a criminal defendant for violation of a criminal law, but rather are for the purpose of determining whether a parolee or probationer has violated the conditions of his parole or probation). Issue Three is overruled.

Violation of Terms and Conditions of Community Supervision

In Issues One and Two, Appellant argues that the evidence presented at the hearing was legally and factually insufficient to revoke his community supervision. Appellant, however, states his argument in terms of the abuse of discretion standard that applies to appellate review of revocation proceedings. As we have previously stated, a factual sufficiency review is not applicable to revocation proceedings. See Becker v. State, 33 S.W.3d 64, 65-6 (Tex.App.--El Paso 2000, no pet.). Therefore, we review the trial court=s order under the applicable standard set out below.

Standard of Review

Our review of a community supervision revocation hearing is limited to a determination of whether the trial court abused its discretion. Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim.App. 1983). The State bears the burden to establish the alleged violations of the trial court=s order by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993); Becker v. State, 33 S.W.3d 64, 66 (Tex.App.--El Paso 2000, no pet.). That burden is met when the greater weight of the evidence before the court creates a reasonable belief that the defendant violated a condition of community supervision. Taylor v. State, 604 S.W.2d 175, 179 (Tex.Crim.App. [Panel Op.] 1980); Williams v. State, 910 S.W.2d 83, 85 (Tex.App.--El Paso 1995, no pet.). In determining whether the allegations in the revocation motion are true, the trial court is the sole trier of facts, the credibility of the witnesses, and the weight to be given the testimony. Taylor, 604 S.W.2d at 179; Becker, 33 S.W.3d at 66. The reviewing court must view the evidence presented at the revocation proceeding in a light most favorable to the trial court=s ruling. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1981).

When the State has sustained its burden of proving the allegation by a preponderance of evidence and no procedural obstacle is raised, the decision of whether to revoke probation is within the discretion of the trial court. Flournoy v. State, 589 S.W.2d 705, 708 (Tex.Crim.App. 1979); Gordon v. State, 4 S.W.3d 32, 35 (Tex.App.--El Paso 1999, no pet.). Under such circumstances, the trial court=s discretion is substantially absolute. Flournoy, 589 S.W.2d at 708; Gordon, 4 S.W.3d at 35. If a single ground for revocation is supported by a preponderance of the evidence and is otherwise valid, then an abuse of discretion is not shown. Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App. 1980); Gordon, 4 S.W.3d at 35.

Evidence at Revocation Hearing

Jennifer Blum testified at the revocation hearing. Ms. Blum is the mother of six-year-old M.B. She knew Appellant as the boyfriend of her friend Amber Mitchell. Ms. Blum=s daughter, M.B., was a good friend of Ms. Mitchell=s daughter, M.M., and they are about the same age. Ms. Blum stated that their daughters were members of the same Girl Scout troop. On several occasions, the girls would have sleepovers at each other=s houses. Sometime after February 7, 2004, on a Friday night, Ms. Mitchell came to pick up the girls who were suppose to go to Ms. Mitchell=s house to watch DVDs. M.B. came home the following day. Around dinnertime, M.B. told her mother that the night before, they had gone to Ms. Mitchell=s house, but her DVD player broke, so they went to AMr. Bubbles=@ house to watch a movie and spent the night there. Ms. Blum explained that M.B. referred to Appellant as AMr. Bubbles@ because she could not say Bevil. M.B. told Ms. Blum that Appellant and Ms. Mitchell pulled out the fold-out bed in the couch for the girls. The girls watched the movie, ABring It On,@ and Appellant and Ms. Mitchell went to another room. The girls slept over Appellant=s house that night.

Ms. Blum is the troop mom for her daughter=s Girl Scout troop. Ms. Blum testified that one day there was a Girl Scout meeting and Appellant drove into the school parking lot and gave Ms. Mitchell the car charger for her cell phone. Appellant said Ahi@ to M.B. or M.M. and Abye@ to Ms. Mitchell and then left. Appellant=s visit lasted about four minutes. Ms. Blum stated that Appellant did not actually attend the meeting. Apparently, the troop leader reported both the overnight stay and the charger drop-off incident to the Girl Scouts of America organization, which later reported the information to probation.

Ms. Mitchell testified that Appellant was her former boyfriend. She and Ms. Blum used to be friends, but tensions developed in their relationship. Ms. Mitchell also stated that the relationship between Ms. Blum and Appellant was very hostile. Like Ms. Blum, Ms. Mitchell testified that Appellant did not attend the troop meeting and confirmed that Appellant just came by to drop off the cell phone charger. Appellant was not in the presence of the girls in the troop, who were on the other side of the parking lot. With respect to the other incident, Ms. Mitchell confirmed that she took M.B. and M.M. to her house for the sleepover and her DVD player broke, but denied taking the girls to Appellant=s house. Rather, she insisted that she took the girls to her mother=s house. Ms. Mitchell explained that her brother, who she calls ABug,@ lives at her mother=s house and that perhaps M.B. thought she said Abubbles@ and confused Appellant with her brother.

M.B. testified at the hearing. She could not identify Appellant in the courtroom as Mr. Bubbles. She remembered that she and M.M. spent the night somewhere else once. M.B.=s mother, Ms. Blum, had testified earlier that she did not think her daughter would have confused Abug@ and Abubbles.@

Viewing the evidence in a light most favorable to the trial court=s ruling, the evidence shows that sometime after February 7, 2004, Ms. Mitchell brought her daughter and six-year-old M.B. to Appellant=s house. M.B.=s mother knew that M.B. referred to Appellant as AMr. Bubbles.@ Appellant was present at his house that night. He and Ms. Mitchell arranged the fold-out bed in the couch for the girls and both girls slept over Appellant=s house. While Ms. Mitchell provided conflicting testimony, it was well within the trial court=s discretion to believe Ms. Blum and disbelieve Ms. Mitchell. Taylor, 604 S.W.2d at 179; Becker, 33 S.W.3d at 66. Ms. Blum=s testimony supports the State=s allegation that Appellant violated the condition of his probation that he have no contact with any minor under the age of seventeen by having M.B., a six-year-old girl to his home to watch movies. We conclude that the State met its burden of proof with respect to one of the alleged violations. Consequently, the trial court did not abuse its discretion in determining that Appellant violated the terms and conditions of community supervision. Issues One and Two are overruled.

We affirm the trial court=s order.

August 25, 2005

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)