In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-12-00492-CR
_________________
RICKY METCALFE, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 12-13910
________________________________________________________________________
MEMORANDUM OPINION
Ricky Metcalfe pled guilty to the offense of injury to a child. The trial court
found the evidence sufficient to find Metcalfe guilty, but deferred further
proceedings and placed Metcalfe on community supervision for six years. The
State subsequently filed a motion to revoke Metcalfe‘s unadjudicated community
supervision. Metcalfe pled ―true‖ to four violations of the terms of his community
supervision. The trial court found Metcalfe violated the terms of the community
1
supervision order, found Metcalfe guilty of injury to a child, revoked Metcalfe‘s
community supervision, and imposed a sentence of ten years of confinement.
Metcalfe appeals the trial court‘s revocation of his community supervision, and in
six issues he contends that the trial court erred in revoking his community
supervision because it was impossible for him to perform the terms of his
community supervision.
We review the trial court‘s order revoking community supervision for abuse
of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006)
(quoting Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)); Staten
v. State, 328 S.W.3d 901, 904-05 (Tex. App.—Beaumont 2010, no pet.). The State
must prove a violation of the terms of community supervision by a preponderance
of the evidence. Rickels, 202 S.W.3d at 763-64. The State satisfies its burden when
the ―‗greater weight of the credible evidence . . . create[s] a reasonable belief that
the defendant has violated a condition of his probation.‘‖ Id. at 764 (quoting
Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)); Staten, 328
S.W.3d at 905. We view the evidence in the light most favorable to the trial court‘s
ruling. See Cardona, 665 S.W.2d at 493. Proof of a single violation of the terms of
community supervision will support revocation. Moore v. State, 605 S.W.2d 924,
926 (Tex. Crim. App. 1980).
2
The State alleged that Metcalfe violated the terms of his community
supervision by failing to: (1) report for the months of June and August 2012, (2)
provide verification of performing the community service hours required, (3)
successfully complete the Violence Intervention Education Program, and (4)
complete an Anger Management Program. On appeal, Metcalfe contends that it
was impossible for him to comply with the terms of his community supervision
due to his extended illness. He argues that he was bedridden and could not have
performed the terms he was charged with violating.
During the revocation hearing, Metcalfe‘s trial counsel informed the court
that with regard to count two, Metcalfe‘s physician was ―supposed to send the
probation department an excuse that the defendant could not perform community
service hours due to his medical problems.‖ Trial counsel followed that statement
with, ―Apparently that was not done.‖ Trial counsel further explained Metcalfe‘s
condition to the trial court as follows:
[T]he [defendant is] 47 years of age. He indicates immediately after
receiving probation he had congestive heart failure, was hospitalized
at St. Elizabeth and Baptist. A week after he received probation, he
went to the house and had his kidney shut down and reentered Baptist
Hospital and indicates he called Ms. Revia and left numerous
messages about this situation but received no callbacks. However, Ms.
Revia did visit him at Baptist Hospital. She indicated he was calling
her. Defendant says he did return her call and said she was – he was to
see her on a Wednesday. On a Tuesday prior to that particular report
date, the defendant was hospitalized for liver and staff [sic] infection,
3
which was inside his body. In the five months since he received
probation he says he‘s been in and out of the hospital or at his home in
bed.
Thereafter, the record reflects the following exchange occurred between the trial
court and Metcalfe:
THE COURT: Did you have your medical records brought to the –
THE DEFENDANT: No.
THE COURT: Don‘t you think that‘s important?
THE DEFENDANT: Yes.
THE COURT: Didn‘t bother to do that?
THE DEFENDANT: No, sir.
THE COURT: Are you getting disability?
THE DEFENDANT: Yes, sir.
THE COURT: From who?
THE DEFENDANT: I get total disability from Social Security.
THE COURT: For what?
THE DEFENDANT: My heart condition.
THE COURT: How long have you had a heart condition?
THE DEFENDANT: I‘ve had it for – since ‘99.
THE COURT: And never have bothered to show that to anybody?
4
THE DEFENDANT: No, sir.
THE COURT: Do you think that the crack cocaine, marijuana,
alcohol, Xanax and pain pills have contributed to your heart
problems?
THE DEFENDANT: Yes, sir.
THE COURT: I bet it has. So, you really – if you have any disability
at all, it‘s been self-induced. Do we agree with that?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. So, you just want me to take your word for it
that you can‘t do any community service. What kind of community
service do we offer, sir?
THE DEFENDANT: Really, I don‘t know.
THE COURT: You don‘t have a clue.
THE DEFENDANT: No, sir.
THE COURT: So, you can‘t sit there and say that you can‘t do it. If
we have a desk job where you can sit there and put pink ribbons
together for breast awareness month, you wouldn‘t know, would you?
THE DEFENDANT: No, sir.
Metcalfe‘s probation officer informed the trial court that she saw Metcalfe in the
hospital.
In reviewing the record in a light most favorable to the trial court‘s ruling,
we do not conclude that the record establishes that it was impossible for Metcalfe
to perform the terms of his community supervision. As the sole trier of fact, the
5
trial court was entitled to judge the credibility of the witnesses and decide what
weight to give the testimony. See Brooks v. State, 153 S.W.3d 124, 127 (Tex.
App.—Beaumont 2004, no pet.). Metcalfe did not produce any medical records to
the trial court to prove his alleged prolonged illness. The only evidence Metcalfe
did provide the trial court was his own testimony, which the trial court could
reasonably have rejected.
Viewing the evidence in the light most favorable to the trial court‘s ruling,
we conclude the State proved, by a preponderance of the evidence, that Metcalfe
violated at least one of the conditions of his community supervision. Moreover, ―a
defendant whose community supervision is revoked may only appeal from the
revocation, not the validity or invalidity of the terms and conditions of the
probation order entered months or years before.‖ Brooks, 153 S.W.3d at 128. The
record reflects that Metcalfe entered his plea of ―true‖ freely and voluntarily. A
plea of ―true‖ to an allegation that defendant violated a condition of community
supervision, standing alone, is sufficient to support the revocation. See Duncan v.
State, 321 S.W.3d 53, 58 (Tex. App.—Houston [1st Dist.] 2010, pet. ref‘d).
Because the trial court did not err in accepting Metcalfe‘s pleas of ―true,‖ there was
sufficient evidence to support revocation.
6
Because the trial court did not abuse its discretion by revoking Metcalfe‘s
unadjudicated community supervision, we overrule Metcalfe‘s six issues and
affirm the trial court‘s judgment.
AFFIRMED.
______________________________
CHARLES KREGER
Justice
Submitted on May 22, 2013
Opinion Delivered July 10, 2013
Do not publish
Before McKeithen, C.J., Kreger, and Horton, JJ.
7