Kevin Glenn Richards v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-98-303-CR

KEVIN GLENN RICHARDS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 94-776-C

O P I N I O N

Kevin Glenn Richards pleaded guilty in 1995 to theft of property valued at $750 or more but less than $20,000. See Act of May 27, 1985, 69th Leg., R.S., ch. 599, 1, 1985 Tex. Gen. Laws 2244, 2245 (amended 1993) (current version at Tex. Pen. Code Ann. 31.03(e)(4)(A) (Vernon Supp. 2000)). Pursuant to a plea agreement, the court sentenced Richards to prison for ten years, suspended imposition of sentence, and placed him on community supervision for ten years.

The court revoked Richards s community supervision in April 1998. The court imposed the original sentence upon revocation. Richards presents a single issue in which he claims the court abused its discretion in revoking his community supervision because the State failed to prove any of the four allegations against him by a preponderance of the evidence and failed to prove that his failure to meet the financial obligations of his community supervision was intentional after he demonstrated an inability to pay.

BACKGROUND

Richards s conviction arises from his employment with a Lacy-Lakeview movie theater. During his employment as an assistant manager, he stole more than $50,000 in theater receipts, depositing most of the stolen receipts in his own bank account. Pursuant to the plea agreement, Richards agreed to pay restitution in an amount to be determined in the presentence investigation. (PSI). Pursuant to the findings in the PSI report, the court ordered him to pay restitution totaling $58,564.42 at the rate of $600.00 per month. The court also ordered him to pay court costs of $424.50 at the rate of $10.00 per month and a PSI fee of $50.00 at the rate of $5.00 per month.

About nine months later, Richards signed an agreed order amending the conditions of his community supervision by requiring that he serve four days in the county jail over two consecutive weekends. Six months thereafter, Richards signed a second agreed order amending the conditions of his community supervision to require that he reside at the McLennan County Restitution Center . . . and participate in all programs and obey all rules and regulations of that facility until completion of the program.

The State filed a motion to revoke Richards s community supervision sixteen months later, alleging repeated curfew violations, a failure to complete the program at the restitution center, and several financial violations. Richards pleaded true to these allegations and the court continued his community supervision with additional conditions. The court reimposed the condition that Richards reside in the restitution center and participate in all programs and . . . abide by the Center s rules and regulations.

Almost four months after the court continued his community supervision, the State filed a second revocation motion. In this motion, the State alleges that Richards violated the conditions of his community supervision by:

" failing to reside at the restitution center and abide by its rules on or about January 6, 1998;

" failing to pay court costs on or about January 28, 1998 (alleging a $320.00 delinquency);

" failing to pay restitution on or about January 28, 1998 (alleging a $15,387.58 delinquency); and

" failing to pay the PSI fee on or about January 28, 1998 (alleging a $50.00 delinquency).

At the hearing, the State called a probation technician as its sole witness. She testified that she is a custodian of community supervision records. She based the remainder of her testimony about Richards on his community supervision file which she had with her as she testified. The technician testified that Richards failed to stay at the restitution center or comply with its rules. According to the technician, Richards attended an administrative review with community supervision personnel on or about January 6, 1998 at which he was offered thirty days in jail as a sanction for absconding from the restitution center. According to the file, Richards did not return after the administrative review.

When asked about Richards s financial obligations, the technician did not testify that Richards failed to make any of his payments. Rather, she testified that as of January 1998 he was delinquent about $320.00" on his court costs, $15,387.58 on restitution, and $50.00 on the PSI fee.

On cross examination, the technician confirmed Richards s presence at the January 1998 administrative review because of his signature on a staffing report from that date. Although the recommendation from the administrative review was thirty days in jail, the records do not indicate the date on which Richards was to begin his incarceration. The technician could not say how much Richards had paid toward his court costs.

Richards testified in his own behalf. He recalled that at the administrative review he was told that he had been terminated from the restitution center because he left [his] job. He testified that the only thing he was supposed to do following the administrative review was report to the restitution center every Monday. He complied with this requirement for an unspecified period of time until he called to report one day and the community supervision officer told him to just sit tight and that she would call [him] back if [he] had a warrant, so [he] could turn himself in. She never did reply.

Richards worked for $150.00 per week. He testified that this was the best job he could find in Waco. He explained that he had employment opportunities in Austin for which he could have probably made $10.00 per hour. However, his community supervision officer would not permit him to leave the county.

Richards does not have any dependents. He offered no testimony about his current living expenses.

On further examination by the trial court, Richards admitted that he was kicked out of the restitution center because he failed to abide by the center s rules. In argument, Richards s counsel asked the court to continue his client on community supervision because it seems to me like some of the rules and regulations that apply here are a little bit hazy, and not directly made to Mr. Richards and because of a dispute concerning the manner in which the community supervision department arrived at the restitution amount of $58,564.42 originally ordered by the court.

The court found all the allegations true, revoked Richards s community supervision, and imposed the original ten-year sentence. //

SUFFICIENCY OF EVIDENCE

Richards contends in his sole issue that the court abused its discretion in revoking his community supervision because the State failed to prove any of the allegations against him by a preponderance of the evidence.

The first allegation in the revocation motion is that Richards failed to reside at and abide by rules of McLennan County Restitution Center. The probation technician testified that Richards failed to stay at the center or abide by its rules. Richards himself admitted that he was kicked out of the restitution center because he failed to abide by the center s rules.

Richards complains that the record contains no evidence Appellant was made aware of the Center s rules and regulations. He then cites case law for the proposition that vague or indefinite conditions of community supervision are unenforceable. See, e.g., Cardona v. State, 665 S.W.2d 492, 494-95 (Tex. Crim. App. 1984). However, Richards never testified that he lacked an awareness of the restitution center s rules. Counsel never objected that this condition was vague or indefinite. Instead, counsel made a general observation in his closing argument that some of the rules and regulations that apply here are a little bit hazy, and not directly made to Mr. Richards.

Rule 33.1(a)(1)(A) of the appellate rules requires a specific objection in order to preserve error for appellate review. See Tex. R. App. P. 33.1(a)(1)(A). Counsel s general comment in closing argument is not sufficient to preserve any error regarding the validity of this condition of community supervision or to support his claim for the first time on appeal that he was not made aware of the restitution center s rules and regulations. See Kelly v. State, 483 S.W.2d 467, 470 (Tex. Crim. App. 1972); Tex. R. App. P. 33.1(a)(1)(A).

The testimony of the probation technician and Richards s own testimony provide sufficient evidence to support the court s affirmative finding that he failed to reside at the restitution center and abide by its rules. Because the evidence supports the court s finding that Richards committed this violation and because one violation is sufficient to revoke a suspended sentence, the court did not abuse its discretion in revoking his community supervision. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); Dunn v. State, 997 S.W.2d 885, 887 (Tex. App. Waco 1999, pet. ref d). Accordingly, we overrule Richards s sole point.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Vance and

Justice Gray

Affirmed

Opinion delivered and filed January 19, 2000

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