Fabian Long v. The State of Texas--Appeal from 3rd District Court of Anderson County

NO. 12-06-00184-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

FABIAN LONG, APPEAL FROM THE 3RD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Fabian Long appeals his conviction of possession of a controlled substance, for which he was sentenced to two years in a state jail facility. In one issue, Appellant contends that the trial court erred by refusing to consider his inability to pay during the revocation hearing. We affirm.

Background

On September 9, 2005, Appellant waived indictment and was charged by information with possession of a controlled substance, cocaine, in an amount of less than one gram, a state jail felony.1

On the same date, Appellant and his counsel signed an agreed plea recommendation stating, in part, that he agreed to the stipulation of evidence, judicially confessed to the offense alleged in the indictment or complaint and information, waived his time to file motions for new trial and in arrest of judgment, waived his right to appeal, and waived his right of trial by jury. This document was acknowledged by Appellant, his counsel, and the State s attorney. The trial court accepted Appellant s plea, adjudicated him guilty of possession of a controlled substance of less than one gram, and sentenced him to two years in a state jail facility and a $2,000 fine. However, the trial court suspended imposition of the sentence and placed Appellant on community supervision for five years. The fine was probated to $1,000. Among the terms of Appellant s community supervision was that he commit no offense against the laws of this state and abstain from the use of alcoholic beverages and narcotic drugs or other controlled substances.

On March 13, 2006, the State filed a motion to revoke Appellant s community supervision. The motion alleged that Appellant had violated the terms of his community supervision by failing to commit no offense against the laws of this state, abstain from the use of alcoholic beverages or narcotic drugs or other controlled substances, remain within the State of Texas unless he secured written consent from his community supervision officer, participate in a community service restitution program, attend and successfully complete a drug offender education program, and pay court appointed attorney fees, supervision fees, court costs, fines, restitution, and crime stoppers.

A hearing on the State s motion to revoke was held on May 3, 2006. Appellant pleaded true to the allegations that he committed an offense against this state, consumed alcoholic beverages and narcotic drugs or other controlled substances, and failed to pay court appointed attorney fees, supervision fees, court costs, fines, restitution, and crime stoppers. He pleaded not true to the remaining allegations.2

During the hearing, Appellant testified that he was unable to pay the fees because he owed over $800 in back child support and had to pay $250 per month in child support. He stated that he attempted to pay as much of the child support and fees as he could to keep from being incarcerated. Appellant testified that, during his community supervision, he was self employed, and recently had begun employment in an oil field. Appellant also testified that he was required to pay $86 to complete the drug offender education program. However, he never stated that he did not have the funds to pay for the program. He said only that he never received information about when to take the program.

At the conclusion of the hearing, the trial court found the allegations true that Appellant committed an offense against this state, consumed alcoholic beverages and narcotic drugs or other controlled substances, failed to perform his community service restitution for the months of December 2005, January 2006, and February 2006, and failed to pay court appointed attorney fees, supervision fees, court costs, fines, restitution, and crime stoppers. Thus, the trial court revoked Appellant s community supervision, and assessed his punishment at two years in a state jail facility. This appeal followed.

Inability to Pay

In his sole issue on appeal, Appellant argues that the trial court erred because it did not consider his inability to pay or take the required courses because he lacked the funds to do so. The State contends that Appellant s issue should be denied because he failed to present a proper legal argument. According to the State, Appellant s brief failed to contain citations to case law in support of his position and did not make a legal argument based upon the authorities cited. We agree that Appellant s argument was inadequately briefed.

Appellant s brief contained global citations to articles 1.04 and 1.05 of the Texas Code of Criminal Procedure, the Texas Constitution, and the United States Constitution. Also, Appellant did not separately argue his state and federal constitutional claims or argue that the Texas constitutional protections differ in any significant way from those protections or rights in the United States Constitution. To adequately brief a state constitutional issue, Appellant must proffer specific arguments and authorities supporting his contentions under the state constitution. Moore v. State, 935 S.W.2d 124, 128 (Tex. Crim. App. 1996); Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995). Because Appellant failed to do so, we consider Appellant s sole issue as a federal constitutional claim only. See Jackson v. State, 992 S.W.2d 469, 475 n.8 (Tex. Crim. App. 1999); Johnson v. State, 853 S.W.2d 527, 533 (Tex. Crim. App. 1992).

An appellant s brief must contain a clear and concise argument for the contentions made, with appropriate citation to authorities and to the record. Tex. R. App. P. 38.1(h). However, Appellant s argument regarding the violation of his federal constitutional protections and rights is conclusory. Appellant also fails to describe any justification or reason for a determination that the trial court violated his federal constitutional protections and rights by refusing to consider his inability to pay. Although Appellant s brief contained a global citation to the United States Constitution, the court of criminal appeals stated that it is incumbent upon counsel to cite specific legal authority and to provide legal argument based upon that authority. Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996). Further, it is not sufficient that an appellant globally cite to, for instance, the Sixth Amendment, and nothing else in his request for reversal. See id. As such, Appellant has not adequately briefed his sole issue. Therefore, he has waived the issue on appeal. See Tex. R. App. P. 38.1(h). However, even absent waiver, we conclude that Appellant s issue is without merit.

Due to the unique factors involved in a revocation case, including the trial court s wide discretion, its role as the sole trier of fact, and the unique nature of community supervision revocation proceedings, examination of a revocation order for factually sufficient evidence is inappropriate. Cochran v. State, 78 S.W.3d 20, 27 (Tex. App. Tyler 2002, no pet.); Becker  v. State, 33 S.W.3d 64, 66 (Tex. App. El Paso 2000, no pet.). Rather, appellate review of an order revoking probation is limited to determining whether the trial court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Duke v. State, 2 S.W.3d 512, 515 (Tex. App. San Antonio 1999, no pet.).

At a probation revocation hearing, the State has the burden of establishing the alleged violations by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Cochran, 78 S.W.3d at 28. If there is some evidence to support the finding of even a single violation, the revocation order must be upheld. Cochran, 78 S.W.3d at 28; Becker, 33 S.W.3d at 66-67. Proof of a violation of a single condition of probation is sufficient to support a trial court s decision to revoke. Cochran, 78 S.W.3d at 28 (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980)). A plea of true, standing alone, is sufficient to support a revocation of probation. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979); Hays v. State, 933 S.W.2d 659, 661 (Tex. App. San Antonio 1996, no pet.). When a plea of true is entered, the sufficiency of the evidence may not be challenged. Hays, 933 S.W.2d at 661 (citing Rincon v. State, 615 S.W.2d 746, 747 (Tex. Crim. App. [Panel Op.] 1981)).

As noted above, Appellant pleaded true to the allegations contained in the State s motion to revoke regarding his failure to pay certain fees and costs. In his brief, Appellant did not point to any evidence indicating that he was indigent. Moreover, Appellant pleaded true to allegations regarding his failure to pay fees and costs and, as such, may not challenge the sufficiency of the evidence. See id.

Further, Appellant argues that the trial court should not have found true allegations that could not be performed, namely taking the required courses, due to his inability to pay because he was indigent. The only course that Appellant was required to take was the drug offender education program. However, Appellant pleaded not true to the allegation that he failed to attend and successfully complete the program, and the trial court found that allegation to be not true.

Any one of Appellant s pleas of true was sufficient to support a revocation of his probation. See Moses, 590 S.W.2d at 470; Hays, 933 S.W.2d at 661. Because Appellant pleaded true to at least one violation alleged in the State s motion to revoke, the trial court did not abuse its discretion in revoking his community supervision. See Moses, 590 S.W.2d at 470; Cochran, 78 S.W.3d at 28; Hays, 933 S.W.2d at 661. Accordingly, Appellant s sole issue is overruled.

Disposition

The judgment of the trial court is affirmed.

JAMES T. WORTHEN

Chief Justice

Opinion delivered November 1, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 See Tex. Health & Safety Code Ann. 481.102(3)(D) (Vernon Supp. 2006); Tex. Health & Safety Code Ann. 481.115(a)(b) (Vernon 2003).

2 Although the judgment stated that Appellant pleaded true to the allegation that he failed to perform his community service restitution for the months of December 2005, January 2006, and February 2006, the reporter s record shows that he pleaded not true.