TERRY N. RICKELS v. THE STATE OF TEXAS--Appeal from 156th District Court of Bee County

NUMBER 13-01-042-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI EDINBURG

TERRY N. RICKELS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 156th District Court of Bee County, Texas

MEMORANDUM OPINION ON REMAND

Before Chief Justice Valdez and Justices Hinojosa and Castillo

Opinion by Chief Justice Valdez

This is an appeal from a trial court ruling to revoke probation and impose imprisonment. We previously reversed and remanded the decision of the trial court, holding that the provisions of probation were too vague and indefinite to be enforced as there was no clear instruction given on how a mandatory child safety zone was to be measured. // The court of criminal appeals reversed our decision on the ground that the probationary child safety zone provision was not vague or ambiguous, and directed us to consider appellant s remaining contentions. //

Background

Appellant, Terry Rickels, was originally convicted of two counts of indecency with a child and placed on ten years probation. He was later found to have violated one of the conditions of his probation, which dictated that appellant could not go within three hundred (300) feet of any premises where children 17 years or younger congregate or gather. It was determined that he violated this condition after a probation revocation hearing in which three witnesses testified as to the distance between his residence and a nearby public school.

According to witness testimony at the hearing, various measurements were taken to establish the distance between Rickels s home and the school. According to measurements taken by a private investigator, (1) the distance between Rickels s front door to the curb at the front of the school measured 296 feet, (2) Rickels s property line measured 380 feet from the door of the school, and (3) Rickels s front door measured 400 feet from the front door of the school. According to his probation officer and a Dallas police officer who took measurements, the distance between the corner of Rickels s property and the curb in front of the school measured 250 feet.

Rickels did not testify at the revocation hearing, other than to enter a plea of not true. The three witnesses reported that he was either not at home or inside the house when the various measurements were taken. The trial court found the allegation to be true, revoked Rickels s probation, and sentenced Rickels to ten years imprisonment.

In his original appeal before this court, Rickels argued that the trial court abused its discretion in revoking his probation because (1) the evidence was insufficient to establish that Rickels violated his probation, (2) the condition was too vague and indefinite to be enforced, and (3) the condition, because of its vagueness, was an unlawful delegation of authority to the probation department. We addressed Rickels s second issue and held that the order was not clear, explicit and unambiguous as required by law, and therefore it violated his right as a probationer to know with certainty what was expected from him. //

The State appealed our decision to the Court of Criminal Appeals, which concluded that the challenged condition was not too vague to be enforced. Rickels v. State, 108 S.W.3d 900, 903 (Tex. Crim. App. 2003). The court found that the property line of the school is indeed the proper boundary from which to measure, and further, that it does not matter where [appellant s] property lines fall. The only measurement that is at issue is from Rickels s body to premises where children congregate. Id. at 902. The court accordingly reversed and remanded to this Court to consider Rickels s remaining points of error.

Trial Court Findings

By his remaining point of error, Rickels argues that the evidence presented at the hearing failed to show that he physically violated his probationary condition by coming within 300 feet of a child safety zone. //

We review a trial court s imposition or revocation of community supervision under an abuse of discretion standard. See Belt v. State, 127 S.W.3d 277, 280 (Tex. App. Fort Worth 2004, no pet.). An order revoking community supervision must be supported by a preponderance of the evidence. See Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). In other words, the burden of proof is on the State to establish that the greater weight of the credible evidence creates a reasonable belief that the defendant has violated a condition of his community supervision. See Maxey v. State, 49 S.W.3d 582, 584 (Tex. App. Waco 2001, pet. ref d).

On appeal, this Court must view the evidence presented at the revocation hearing in the light most favorable to the court s decision. See Liggett v. State, 998 S.W.2d 733, 736 (Tex. App. Beaumont 1999, no pet.). When a trial court fails to make specific findings of fact and conclusions of law, it is presumed that the court made the necessary findings to support its decision. Ice v. State, 914 S.W.2d 694, 695 (Tex. App. Fort Worth 1996, no pet.). The reviewing court does not engage in its own fact finding, but rather must review the entire record to determine whether there are any facts that lend support for any theory upon which the trial court s decision can be sustained. Id. at 696. If the implied or actual finding is supported by the record, it must be sustained. Id.

The trial court found that Rickels intentionally and knowingly [went] within three hundred (300) feet of a premise where children 17 years or younger congregate or gather, to wit: Sidney Lanier Elementary School. The evidence at the revocation hearing demonstrated that Rickels moved into a home around the corner from an elementary school. A special speed-limit sign noting the presence of a school zone and equipped with a flashing yellow light was visible from the front door of Rickels s home. The distance from Rickels s front door to the child safety zone (i.e., the property line of the school) // was within the 300 feet limitation imposed by the conditions of his probation. Although the witnesses who testified as to the measurements they took did not see Rickels entering or exiting his home through the front door or otherwise using the front area of his property, the trial court could reasonably infer that Rickels used the front door or entered the front yard of his property at some point while residing there. See Loera v. State, 14 S.W.3d 464, 468 (Tex. App. Dallas 2000, no pet.) (declaring trial court could reasonably infer from defendant s presence in front of home that he had used public streets to get to the home, and therefore was guilty of intoxication in a public place).

We conclude that the facts adduced at the hearing lend support to the trial court s finding that Rickels went within 300 feet of the elementary school, and therefore this finding did not constitute an abuse of discretion. Accordingly, Rickels s remaining issue is overruled and we affirm the decision of the trial court revoking his probation.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b)

Memorandum Opinion delivered and filed

this 10th day of March, 2005.