COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00429-CR
ROLANDO CADENA APPELLANT
A/K/A ROLAND CARDENA
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Introduction
Appellant Rolando Cadena a/k/a Roland Cardena appeals his conviction
and sentence after the trial court revoked his deferred adjudication community
supervision. In three points, Appellant claims that the trial court abused its
discretion by revoking his community supervision and by ordering him to
1
See Tex. R. App. P. 47.4.
reimburse his court-appointed attorney fees. We modify the trial court’s
judgment and affirm it as modified.
Background Facts and Procedural History
In 2006, Appellant pleaded guilty to aggravated sexual assault of a child
and received eight years’ deferred adjudication community supervision. One of
the terms of his community supervision required that he complete sex-offender
counseling treatment within three years of its “initiation.” Appellant met with his
sex-offender counselor for the first time on August 7, 2006. Shortly after this
meeting at the end of August 2006, he was arrested on an outstanding warrant
and incarcerated for five months. He was released on January 22, 2007, and
started attending group counseling sessions on February 24, 2007.
In 2008, Appellant pleaded true to having violated the terms of his
community supervision by drinking alcohol and hiring a prostitute, and the trial
court ordered him confined for sixty days as a condition of continuing his
community supervision.
In September of 2009, the State filed its petition to adjudicate alleging that
Appellant had violated the terms of his community supervision by not paying fees
and by not timely completing his sex-offender counseling within the required
three-year period. The trial court granted the State’s petition after a hearing,
adjudicated Appellant guilty, and sentenced him to ten years’ confinement.
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Standard of Review
We review an order revoking community supervision under an abuse of
discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In a
revocation proceeding, the State must prove by a preponderance of the evidence
that the defendant violated the terms and conditions of community supervision.
Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The trial court is
the sole judge of the credibility of the witnesses and the weight to be given their
testimony, and we review the evidence in the light most favorable to the trial
court=s ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172,
174 (Tex. Crim. App. [Panel Op.] 1981). If the State fails to meet its burden of
proof, the trial court abuses its discretion by revoking the community supervision.
Cardona, 665 S.W.2d at 493–94. Proof by a preponderance of the evidence of
any one of the alleged violations of the conditions of community supervision is
sufficient to support a revocation order. Moore v. State, 605 S.W.2d 924, 926
(Tex. Crim. App. [Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871
(Tex. Crim. App. [Panel Op.] 1980).
Proof of Violations
In his first two points, Appellant argues that the trial court abused its
discretion by adjudicating him guilty and revoking his community supervision
because the evidence does not support the trial court’s findings that he violated
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the terms of his community supervision by failing to pay fees and by not
completing his sex-offender counseling within three years.
The State alleged that Appellant violated the terms of his community
supervision by failing to complete his sex-offender counseling/treatment within
three years of its initiation. The record shows that in August 2006 Appellant was
placed on community supervision, met with his counselor for the first time, and
signed a contract promising to complete his counseling goals by August 9, 2009.
Of the thirty goals that he needed to accomplish within the three-year period, ten
were to have been completed each year, but the evidence shows that Appellant
came up short each year. By the end of August 2009, he was still five goals
behind.2
Appellant contends that the trial court abused its discretion by finding that
he did not complete his counseling within the three-year period because the
three-year period actually ended on April 24, 2010, not in August 2009 as alleged
by the State. To arrive at the later date, Appellant argues that his sex-offender
treatment was not initiated on the day he first met with his counselor, but on
February 24, 2007, when he attended his first group session. Then he argues
that his completion date should be pushed back several months to account for
the times he spent in jail after his arrest on an outstanding warrant and after he
2
Appellant’s sex-offender-treatment counselor, Jorge Medina, testified that
in the first year Appellant fell five goals behind; that in the second he completed
nine out of ten; and that at the end of the third year, he had completed eight out
of ten goals. Medina testified that two goals were waived and that the three-year
period ended with Appellant still lacking completion of several goals.
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violated his community supervision the first time. In essence, Appellant argues
that he did not complete his required counseling because, through no fault of his
own, it was impossible for him to do so.
Viewed in the light most favorable to the trial court’s ruling, however, the
record reasonably supports the trial court’s belief by a preponderance of the
evidence that Appellant had the ability to complete his counseling and failed to
do so. First, it was reasonable for the trial court to conclude that Appellant’s
counseling was initiated on the first day he met with his counselor in August
2006, rather than the later date when he first participated in a group therapy
session. The evidence at the hearing was uncontradicted that Appellant signed a
contract with his counselor on August 24, 2006, agreeing to complete his
counseling within three years.
Next, although there is evidence in the record that Appellant was
incarcerated, and therefore unable to participate in therapy sessions for eight
months during the thirty-six months he had to complete his thirty treatment goals,
the evidence also shows that he could have completed the goals had he applied
himself. As soon as Appellant was released from his first period of incarceration,
he was instructed to schedule a group session but delayed in doing so for
approximately one month. His second incarceration, which was for sixty days,
resulted from him having violated the conditions of his community supervision by
consuming alcohol and hiring a prostitute. Appellant was told by the trial court on
four occasions during his period of community supervision that he needed to
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complete his therapy goals by August 2009. Appellant’s probation officer
testified that Appellant admitted not taking his treatment seriously, saying, “I just
honestly have not taken my homework as seriously as I should have.”
The evidence also shows that when motivated by an impending deadline,
Appellant could apply himself to his therapy. He testified that “the last 21 days I
went through practically every single session throughout the week. I quit working
that 21 days to see if I could get as many goals completed before my deadline.”
Based on the evidence in the record, the trial court reasonably could have
concluded that the reason Appellant did not successfully complete his treatment
regimen is because he did not sufficiently apply himself. The trial court also
could have reasonably concluded that Appellant’s own criminal conduct
shortened the time within which he had to complete his counseling. He could not
and did not claim to misunderstand the requirement and the time limitations. The
trial court did not abuse its discretion by denying Appellant additional time to
complete his counseling and by finding the alleged violation to be true. We
overrule Appellant’s second point.3
3
Because a trial court’s revocation of community supervision will be upheld
if the trial court properly sustained any one of the State’s allegations, we need
not address Appellant’s first point. See Moore, 605 S.W.2d at 926; Sanchez, 603
S.W.2d at 871.
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Attorney’s Fees and Reparations
In his third point, Appellant contends that the trial court erred by ordering
that he pay reparations and appointed counsel’s fees absent any evidence that
he was able to do so.
The following appears at the bottom of the Judgment Adjudicating Guilt:
Furthermore, the following special findings or orders apply:
THE COURT RECOMMENDS THAT APPOINTED COUNSEL FEES
ASSESSED UNDER THE TEXAS CODE OF CRIMINAL
PROCEDURE, ANN., ARTICLE 26.05 IN THE AMOUNT OF
$1,100.00 BE PAYABLE TO AND THROUGH THE CRIMINAL
DISTRICT CLERK’S OFFICE OF TARRANT COUNTY, TEXAS, AS
A CONDITION OF PAROLE.
REPARATIONS IN THE AMOUNT OF $2,387.00
The State concedes that to the extent that the trial court’s assessment of
appointed counsel’s fees constitutes a final order, it was error because there was
no assessment of whether Appellant had the financial resources to pay the fees.
The State requests that we reform the judgment to delete the recommended
assessment of attorney’s fees. We grant the State’s request, hold that an order
requiring reimbursement of attorney’s fees is improper, and sustain Appellant’s
third point to that extent.
To the extent that Appellant complains of the reparations entry in the
amount of $2,387.00, however, such an entry is required by the code of criminal
procedure: “In all revocations of a suspension of the imposition of a sentence the
judge shall enter the restitution or reparation due and owing on the date of the
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revocation.” Tex. Code Crim. Proc. Ann. art. 42.03, § 2(b) (Vernon Supp. 2010).
We overrule Appellant’s third point as to that entry.
Conclusion
Having overruled Appellant’s second point and the portion of his third point
complaining of the entry of reparations in the judgment, having sustained the
portion of his third point complaining of the entry of attorney’s fees in the
judgment, and having determined that we need not address his first point, we
modify the judgment to delete the recommended assessment of attorney’s fees
and affirm the judgment as modified. See Tex. R. App. P. 43.2(b).
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 24, 2011
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