Roy Bennett v. The State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-99-203-CR

ROY BENNETT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 26,887

O P I N I O N

Appellant Bennett appeals from the trial court's order revoking his probation. Appellant pled guilty and was convicted of indecency with a child. He was sentenced to ten years in the Texas Department of Criminal Justice-Institutional Division, and a $1000.00 fine. The sentence was suspended and Appellant was placed on community supervision for ten years. Condition 17 of the Order Granting Community Supervision states: "That [Appellant] attend sex offender counseling as directed by the probation officer."

The State filed a motion to revoke Appellant s probation alleging: "The No. 17 condition of probation states that the defendant attend sex offender counseling as directed by the probation officer. The defendant has violated this condition of probation, to wit: Roy Burton Bennett was discharged by the treatment provider for failure to cooperate, and unwilling[ness] to follow simple directions given by the provider."

Appellant pled "not true" to the allegation.

After hearing, the trial court revoked Appellant's probation and sentenced him to ten years in prison.

Appellant appeals on three points of error.

Point 1: Appellant was denied due process of law by having his probation revoked on a condition of probation that was not specific enough to notify Appellant of the performance required of the condition of probation.

Appellant did not object to condition 17 of his probation until after his probation was revoked. See Rule 33.1(a) Texas R. App. P.

A defendant cannot object to his conditions of probation for the first time on appeal. Speth v. State, No. 425-98 (Tex. Crim. App. December 1, 1999); Margoitta v. State, No. 10-99-036-CR (Tex. App. Waco, January 19, 2000).

Point 1 is overruled.

Point 2: "The evidence was insufficient to allow the revocation of Appellant's probation where the evidence showed he complied with the strict requirements of his probation.

Appellant contends that there was no evidence that he did not literally attend as directed.

The terms "attend sex offender counseling" are sufficient to apprise Appellant that participation and cooperation are required. For this condition of probation to bear any relevance to Appellant s community supervision and the goal of rehabilitation, it must mean that Appellant was to participate and cooperate. Figgins v. State, 528 S.W.2d 261, (Tex. Crim. App. 1975).

The State's burden of proof in a hearing to revoke is preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The trial judge is the sole trier of facts, judge of the credibility of the witnesses and the weight to be given their testimony. His decision is not to be overturned absent an abuse of discretion. Ross v. State, (Tex. Crim. App. 1975).

Appellant's counselor testified that the goal of sex offender counseling is for the offender to verbalize his crime, take responsibility for it, and from that, the offender can learn how to prevent himself from reoffending. The counselor further testified that Appellant continually failed to take responsibility for his sexual crime and blamed the child for his actions.

He testified that Appellant became defiant and was uncooperative; that Appellant refused to answer questions propounded to him, and was discharged from the program that he was directed to attend. It was because of Appellant's failure to participate and cooperate, and his disruptive conduct that he was discharged from the program, and thus failed to attend. The trial judge did not abuse his discretion in revoking Appellant's probation.

Point 2 is overruled.

Point 3: "Appellant was denied his right to adequate accommodations for his disability as guaranteed under the Americans with Disabilities Act by not having a counselor who could adequately communicate with the deaf and understand their problems."

Appellant is deaf. His counselor was not deaf. Appellant has failed to show that his rights were in any way violated. Appellant was not entitled to a counselor of his choosing. Neither the Americans with Disabilities Act nor the Texas Code of Criminal Procedure require that appellant be assigned a counselor who shares his disability. Appellant was assigned a counselor who was experienced in working with the deaf and with deaf sex offenders. The counselor utilitized the services of an interpreter in each session with Appellant.

No abuse of the trial judge s discretion has been shown in the court's treatment of Appellant's disability. Additionally, the matter here complained of was never presented to the trial court. Rule 33.1(a) Tex. R. App. P. Point 3 is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Gray and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed April 5, 2000

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