Dyaron Derrell Nelson v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00912-CR
Dyaron Derrell NELSON,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 1996-CR-4475
Honorable Mary Rom n, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December 10, 2003

AFFIRMED

Dyaron Nelson was placed on deferred adjudication community supervision on April 20, 1998 after pleading no contest to the offense of sexual assault. Pursuant to the terms of his probation, Nelson was to spend 180-days in jail, perform 600 hours of community service, begin participation in a sex offender treatment program by April 21, 1998, and "have no direct contact with or enter onto the premises where the victim or any minor children, including [his] own children or step children, reside or are present."

On May 26, 1998, Nelson asked the trial court to modify the terms of his community supervision so that he could have contact with his children. The trial court, in response to Nelson's request, modified the terms of Nelson's community supervision without a hearing on May 27, 1998. The trial court modified the terms of Nelson's community supervision by ordering Nelson to participate in an Electric Monitoring (House Arrest) Program instead of serving 180-days in jail and waived the condition requiring Nelson to have no contact with minor children, provided the contact occurred while Nelson was at the World Pentecost Church. Although the court's modified terms of community supervision still required Nelson to attend a sex offender treatment program, the modified terms omitted a start date for such program.

On August 20, 2002, the State filed a motion to enter adjudication of guilt and revoke community supervision based on Nelson's failure to perform the requisite hours of community service and his having had contact with a minor off the premises of the World Pentecost Church on February 28, 2000. Shortly thereafter, on October 18, 2002, the State filed an amended motion to enter adjudication of guilt and revoke community supervision based on, among other allegations, Nelson's failure to attend his sex offender treatment program. After a hearing, the trial court found Nelson had violated the modified terms of his community supervision. The trial court then adjudicated Nelson's guilt and sentenced Nelson to 15 years imprisonment. Nelson raises two issues on appeal: (1) whether the trial court abused its discretion in revoking his community supervision because the modified condition pertaining to the sex offender treatment program is void for vagueness; and (2) whether there is sufficient evidence to support the trial court's finding that he violated the terms and conditions of his community supervision.

In his first issue, Nelson maintains the trial court abused its discretion in revoking his community supervision because the modified condition pertaining to the sex offender treatment program is vague. Before we can address the issue of vagueness, we must first determine whether Nelson forfeited the right to complain about the terms of his community supervision. The Court of Criminal Appeals has held that a defendant "must complain at trial to the conditions he finds objectionable." Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). Therefore, if a defendant fails to object to the terms and conditions of his probation at trial, the defendant waives any complaints he may have had. See id. "A distinction must be made, however, for those instances when a condition is imposed by way of an amendment to the probation order." Rickels v. State, 108 S.W.3d 900, 902 (Tex. Crim. App. 2003). When a condition is imposed by way of an amendment to the probation order, "the relevant inquiry is whether the probationer was given an opportunity to object to the modification." Id. In this case, the court modified the terms of Nelson's community supervision without a hearing, and Nelson had no opportunity to object. We therefore address the merits of his argument.

Nelson contends the community supervision condition ordering his participation in the sex offender treatment program is void for vagueness because the court's modified order contains no date on which his participation was to begin and, therefore, failed to give him notice of his obligations. When a court grants probation, the relationship between the court and its probationer is contractual in nature. McDonald v. State, 442 S.W.2d 386, 387 (Tex. Crim. App. 1969). The conditions of probation should be expressed clearly and explicitly so that the probationer understands what is expected of him. Id.

Although we agree with Nelson that the modified terms of community supervision do not specify a date on which Nelson was to begin participation in the sex offender treatment program, we cannot agree that Nelson did not have adequate notice of his obligations. The record reflects that Nelson began attending the sex offender treatment program sometime during 1998 and had continuously attended his treatment program from such date until the fall of 2002. We believe Nelson's own conduct in attending the treatment program since 1998 removed any uncertainty as to the date he was to begin participating in the program. See Murphree v. State, 768 S.W.2d 342, 343 (Tex. App.--Houston [14th Dist.] 1989, no pet.). Moreover, having put forth some effort to attend the program, Nelson cannot now repudiate the order amending his community supervision. See id. Because the record substantiates that Nelson understood what was required of him by the sex offender treatment condition, his first issue is overruled. See id.

In his second issue, Nelson argues that there is insufficient evidence to support the trial court's finding that he violated the terms and conditions of his community supervision. In a probation revocation hearing, the State must prove by a preponderance of the evidence that the probationer violated a condition of his probation. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). To meet this burden of proof, the greater weight of the evidence must create a reasonable belief that the defendant violated a condition of probation as alleged in the motion to revoke. Battle v. State, 571 S.W.2d 20, 22 (Tex. Crim. App. 1978).

A trial court's decision to revoke probation is reviewed for an abuse of discretion. Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). We must review the evidence in the light most favorable to the trial court's order, and the trial court is the sole judge of the credibility of the witnesses and the weight to be given the testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980). Proof of a single violation suffices to support an order revoking probation. Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980).

In its motion to revoke, the State alleged that Nelson committed eight probation violations, including "failing to attend his sex offender treatment program and/or working toward reasonable treatment goals." At the revocation hearing, Richard Mack, the executive director of Marriage and Family Therapy Associates, Nelson's treatment provider, testified that in the fall of 2002 Nelson failed to attend his sex offender treatment program. Mack further testified that during the fall of 2002 he learned Nelson was wanted by the authorities for allegedly violating the terms of his community supervision. According to Mack, Nelson had told him that he planned on turning himself into the authorities immediately. When Nelson did not make himself available for treatment and did not turn himself into authorities as promised, Mack suspended Nelson from his organization's treatment program. The trial court subsequently found that Nelson had violated, among other violations, the term of his community supervision requiring him to participate in a sex offender treatment program. (1)

Viewed in the light most favorable to the trial court's ruling, we believe there is evidence in the record to support the trial court's finding that Nelson violated at least one condition of his community supervision. Therefore, we hold that the trial court did not abuse its discretion by revoking Nelson's probation. Nelson's second issue is overruled.

The judgment of the trial court is affirmed.

Catherine Stone, Justice

Do Not Publish

1. Nelson's probation order defined participation as attendance at all meetings, prompt payment of fees, admission of responsibility for the offense, and progress toward reasonable treatment goals.