James Bryan Stockton v. State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-01-191-CR

No. 10-01-192-CR

JAMES BRYAN STOCKTON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court Nos. 27,197 and 27,374

O P I N I O N

In August 1999, William James Stockton pled guilty to separately indicted offenses of possession of a controlled substance and unlawful use of a criminal instrument, both state jail felonies. Tex. Health & Safety Code Ann. 481.115 (Vernon Supp. 2002); Tex. Pen. Code Ann. 16.01 (Vernon 1994). The court sentenced him to two years in prison in each case, but suspended the sentences to five years of community supervision.

In November 2000, the State filed motions to revoke community supervision in both cases alleging that Stockton: (1) sexually assaulted a nine-year-old girl, a violation of the condition that he not commit any offenses; (2) did not attend and complete the Texas Drug Offender Education Program; and (3) in the possession case, did not complete fifty hours of community service. Stockton was indicted for the assault charge and was acquitted after a jury trial in May 2001. In June 2001, the court held a hearing on the motions to revoke, found that the alleged violations were true, and granted the motions, imposing two-year sentences. The court ordered the sentences to run consecutively. Tex. Code Crim. Proc. Ann. 42.08 (Vernon Supp. 2002).

Stockton complains on appeal (1) that the evidence is insufficient that he violated the conditions of community supervision, and (2) that the community service and drug offender program conditions are too vague to be enforceable. We note that community service and attending the drug offender program are not conditions of community supervision in the unlawful use case, i.e., they are not included in the order of community supervision. Therefore, the only possible violation in that case is the assault.

Vagueness

We do not find Stockton s vagueness argument persuasive. The community supervision order states that he must (1) attend and complete the Texas Drug Offender Education Program as directed by the Probation Officer and pay the cost of the class within 180 days, and (2) complete 50 hours of community service within 180 days of this order. These are specific directives which are clear. Therefore, our review will be of the sufficiency complaints.

Standard of Review

After considering all of the evidence, the court may, in its sound discretion, revoke [community supervision] if the State has proved every element of the offense by a preponderance of the evidence. Battle v. State, 571 S.W.2d 20, 22 (Tex. Crim. App. 1978). A trial court s decision to revoke is reviewed for abuse of discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Campbell v. State, 427 S.W.2d 621, 622 (Tex. Crim. App. 1968). There is an abuse of discretion when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).

Drug Offender Program and Community Service

The State called Stockton s probation officer to testify. She said he did not comply with either of these two conditions. She gave no other testimony about these matters. On cross-examination, she testified that Stockton had been serving his community supervision while living in Oklahoma and was on an out of State report. She had never personally met with him except in jail. She also said she did not know the name of Stockton s probation officer in Oklahoma or the type of communications that had occurred between Stockton and the Oklahoma Probation Department. In addition, she said that out-of-state probation departments could design their own rules and procedures in supervising probationers. Finally, she was not aware of any disciplinary action taken against Stockton by the Oklahoma Probation Department.

The probation officer had practically no knowledge of the manner in which Stockton had been supervised in Oklahoma or of the circumstances pertinent thereto. The sum of her testimony (presumably hearsay) was that Stockton did not comply with the two conditions, but she gave no specific information. No documentary evidence was introduced. We find that the State did not prove by a preponderance of the evidence that Stockton violated these conditions of probation, and the trial court abused its discretion in basing the revocation in the possession case on violations of these two conditions.

Assault

The State called the child, B.R., to testify. She described an incident at Stockton s house. She said Stockton started touching me in my middle. A friend of B.R. s was there, and B.R. testified she told her friend that Stockton touched her [i]n my private. The prosecutor asked if Stockton put his finger in your private part, and B.R. said yes. On cross-examination, B.R. admitted that she had testified at Stockton s trial that she told her friend what to report about the incident, telling the friend let s say this because it would be worse. But B.R. denied ever lying about what happened or telling her friend to lie.

Under a preponderance of the evidence standard, and considering there was no evidence to contradict B.R. s story, we find that the court did not abuse its discretion in revoking Stockton s community supervision based on this allegation.

Conclusion

Community supervision can be revoked based on a violation of a single condition. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987). Because the State s evidence was sufficient to prove the assault, the court acted within its discretion. Therefore, we overrule Stockton s issues and affirm the judgment in each case.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed July 17, 2002

Do not publish

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