George Ballesteros v. State of Texas--Appeal from 226th Judicial District Court of Bexar County

No. 04-00-00573-CR
George BALLESTEROS,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-4180-W
Honorable Sid L. Harle, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: September 19, 2001

AFFIRMED

George Ballesteros appeals the trial court's revocation of probation. We affirm the trial court's judgment.

Background

In August of 1998, George Ballesteros pled nolo contendere to the felony offense of possession of a prohibited weapon and pursuant to a plea bargain agreement was placed on deferred adjudication, community supervision for three years. In October of 1998, the trial court issued an order requiring Ballesteros to appear and answer the State's motion to enter adjudication of guilt and revoke community supervision. In December of 1998, the trial court modified the community supervision to include additional conditions. In February of 2000, the State filed an amended motion to enter an adjudication of guilt and to revoke community supervision which included an additional violation of Ballesteros' probation. In March of 2000, the trial court held a hearing on the amended motion. Ballesteros pled true to condition two in that he tested positive for methamphetamine. The court set aside the deferred adjudication order and adjudged Ballesteros guilty of possession of a prohibited weapon. The trial court sentenced Ballesteros to three years imprisonment, but suspended the sentence of imprisonment, placing him on community supervision for three years. The trial court found that residential placement was necessary, but because Ballesteros suffered from a variety of medical conditions, ordered an evaluation to determine which residential programs would be available. At a subsequent hearing held on August 7, 2000, the trial court indicated that, according to the evaluation, "Safe P" was the only residential program that would take Ballesteros. Defense counsel suggested other alternatives, which the trial court rejected because they involved outpatient treatment. Later, on August 28, 2000, the trial court revoked Ballesteros' probation because he refused to participate in the "Safe P" program. Ballesteros was sentenced to two years imprisonment in the Texas Department of Corrections.

Discussion

Ballesteros seeks to have this court reverse the revocation of probation and order the trial court to conduct another hearing to consider alternatives to "Safe P." Ballesteros argues that "the court violated his right to due process of law secur[e]d to him under and by virtue of the [F]ifth [A]mendment to the United States Constitution, in that the court failed to consider any treatment on a residential basis other that the very onerous 'Safe P' program which would involve between nine and twelve months of prison incarceration."

The decision whether to grant probation is wholly discretionary and nonreviewable. Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999) (citing Flournoy v. State, 589 S.W.2d 705, 707 (Tex. Crim. App.1979)), cert. denied, 529 U.S. 1088 (2000). "When probation is granted, the trial court 'extends clemency' and creates a relationship that is, 'in a way, contractual that is, the court agrees with the convict that clemency by way of probation will be extended if he will keep and perform certain requirements and conditions, the violation of which will authorize the revocation of the probation.'" Id. (citations omitted). "Consistent with its broad discretionary powers in deciding whether to grant community supervision, a trial court likewise has broad discretion in determining the conditions to be imposed." Id. "The trial court 'shall' determine the conditions of community supervision, but the description of allowable conditions is prefaced with the permissive term 'may': 'The judge may 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.'" Id. (citing Tex. Code Crim. Proc. art. 42.12 11(a)); see also Chacon v. State, 558 S.W.2d 874, 875 (Tex. Crim. App. 1977) (holding that a probation condition must be "a reasonable one"). Thus, as long as the trial court imposed reasonable probation conditions, the decision will be upheld.

The record demonstrates that the trial court did not abuse its discretion in revoking Ballesteros' probation. The court determined that Ballesteros was in need of a residential program, ordered an evaluation in view of his special medical needs, and found that "Safe P" was the only available program. The court listened to defense counsel's arguments regarding available outpatient treatment, but rejected them because it had determined that inpatient treatment was necessary. Under these circumstances, the trial court did not abuse its discretion. We overrule Ballesteros' issue.

Conclusion

We affirm the trial court's judgment.

Karen Angelini, Justice

DO NOT PUBLISH