COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00068-CR
DOUGLAS ACE WARD APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
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MEMORANDUM OPINION1
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Pursuant to a plea bargain, Appellant Douglas Ace Ward pled guilty, and
the trial court convicted him of possession of child pornography, sentenced him
to ten years’ confinement, suspended imposition of the sentence, and placed him
on community supervision for ten years. Almost four years later, the State filed a
motion to revoke Appellant’s community supervision. After a hearing, the trial
court found that Appellant had violated two conditions of his community
1
See Tex. R. App. P. 47.4.
supervision, revoked his community supervision, and imposed the original
sentence of ten years’ confinement. In two issues, Appellant contends that the
trial court abused its discretion and violated his rights to due process by revoking
his community supervision because the violations were not established by a
preponderance of the evidence. Because we hold that the trial court did not
abuse its discretion by revoking Appellant’s community supervision, we affirm the
trial court’s judgment.
In his first issue, Appellant contends that the evidence did not establish
that he failed to successfully complete a sex offender program within three years
of its inception. We review an order revoking community supervision under an
abuse of discretion standard.2 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.3 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.4 Proof
2
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); Cherry v. State, 215 S.W.3d
917, 919 (Tex. App.CFort Worth 2007, pet. ref=d).
3
Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Cherry, 215
S.W.3d at 919.
4
Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex.
Crim. App. [Panel Op.] 1981); Cherry, 215 S.W.3d at 919.
2
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.5
Condition No. 28 of Appellant’s community supervision provides,
Successfully complete the Sex Offender Program within 3 years of
it[]s initiation. Furnish written proof of successful completion to your
Community Supervision Officer within 30 days of completing the
program.
In its motion to revoke Appellant’s community supervision, the State alleged,
among other violations, that Appellant had violated Condition No. 28 of his
community supervision. Specifically, the State alleged that Appellant had ―failed
to successfully complete the Sex Offender Program within three years of its
initiation‖ and that he ―was unsuccessfully discharged from treatment on
September 01, 2009.‖
Probation officer Pam Camp testified that the sex offender program was a
three-year program and that Appellant was ―discharged unsuccessfully‖ from it
―basically . . . because . . . he was continually violating his probation by coming in
contact with children in one way or the other. He made some type of attempt to
touch, hold a child’s hand, [and] be around a child.‖ She also stated that
Appellant’s counselor, Ron Perrett, ―probably . . . could speak better to that [the
issue of Appellant’s discharge from the program and failure to complete the
program successfully] than‖ she could.
5
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);
Leach v. State, 170 S.W.3d 669, 672 (Tex. App.CFort Worth 2005, pet. ref=d.).
3
Ron Perrett testified that Appellant was referred to him for sex offender
treatment after Appellant began his probation. Perrett testified that the program
is primarily group-based, but that ―[n]ear the end of his time with the program[,
Appellant] was doing individual [sessions] because [Perrett] had gotten some
complaints from some of the other group members that he was disruptive and
they felt like they weren’t getting enough focus on their issues . . . .‖
Perrett testified that Appellant would ―tell on himself frequently‖ regarding
encounters with children and that the group would then ―talk in some serious
terms about ways to avoid that.‖ Perrett testified,
My concern is [Appellant] didn’t always say, you’re right. This is
what I should do and this is what I can do. We had a lot of group
discussions where the other group members would demonstrate for
him ways to approach avoidance and ways to be successful in that
in terms of no eye contact; don’t respond if a kid says hello. Just
ignore it and they’ll go away.
They talked repeatedly with him about, [Appellant], you’ve got
to — you can’t play the victim here. You’ve got to be the one saying,
you’re right. That’s something I shouldn’t do and this is what I need
to do about it.
When asked if it ever appeared that Appellant was working on the suggestions to
avoid the contacts, Perrett testified,
And that’s what finally put me at the spot of saying, you know, I don’t
know where else to go because I didn’t see that kind of progress. . . .
[Appellant] would constantly fall back into, well, what am I supposed
to do? Well, here we go again, you know.
Perrett said that he decided to discharge Appellant from the program after
discussing him with Camp. Perrett and Camp believed that Appellant ―was
4
becoming more careless, not less careless.‖ Perett ―felt like [Appellant] just
wasn’t progressing.‖ Perrett testified that Appellant did not complete the sex
offender program and was ―unsuccessfully discharged‖ on September 1, 2009.
Appellant’s arguments that the trial court had to find that three years had
elapsed since the sex offender treatment began in order to conclude that he
violated his community supervision and that involuntary dismissal based on
failure to progress does not amount to a failure to successfully complete the
program are faulty. Condition No. 28 required successful completion of the
three-year program. Successful completion would necessarily require more than
three years of robotic attendance; it would require improvement.6 According to
the evidence, Appellant did not progress but regressed. Appellant therefore did
not successfully complete the program as required by Condition No. 28.
Applying the appropriate standard of review, we hold that the trial court did not
abuse its discretion by revoking Appellant’s community supervision for violating
Condition No. 28. We therefore also hold that the trial court did not violate
Appellant’s due process rights. We overrule Appellant’s first issue.
6
See Figgins v. State, 528 S.W.2d 261, 262–63 (Tex. Crim. App. 1975); Ott
v. State, 690 S.W.2d 337, 339 (Tex. App.—Eastland 1985, pet. ref’d).
5
Because our resolution of his first issue is dispositive,7 we do not reach
Appellant’s second issue,8 and we affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 23, 2010
7
See Moore, 605 S.W.2d at 926; Sanchez, 603 S.W.2d at 871; Leach, 170
S.W.3d at 672.
8
See Tex. R. App. P. 47.1.
6