PD-0042-15
COURT OF CRIMINAL APPEALS
JANUARY 16, 2015 PD-0042-15 AUSTIN, TEXAS
Transmitted 1/7/2015 6:11:09 PM
Accepted 1/16/2015 1:21:17 PM
ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS CLERK
FOR THE STATE OF TEXAS
LETICIA MCWILLIAMS
APPELLANT
V. COA NO. 02-14-00142-CR
TRIAL COURT NO. 1174887
THE STATE OF TEXAS,
APPELLEE
APPEALED FROM CAUSE NUMBER 1174887, IN THE CRIMINAL
DISTRICT COURT NUMBER THREE, TARRANT COUNTY, TEXAS;
THE HONORABLE ROBB CATALANO, JUDGE PRESIDING.
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
WILLIAM H. "BILL" RAY
TEXAS BAR CARD NO. 16608700
ATTORNEY FOR APPELLANT
LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C.
512 MAIN STREET, STE. 308
FORT WORTH, TEXAS 76102
(817) 698-9090
(817) 698-9092, FAX
bill@billraylawyer.com
ORAL ARGUMENT NOT REQUESTED
PETITION FOR DISCRETIONARY REVIEW, PAGE 1
IDENTITY OF PARTIES AND COUNSEL
LETICIA MCWILLIAMS APPELLANT
c\o Texas Dept. of Criminal
Justice, Institutional
Division, Huntsville, Texas
HONORABLE WILLIAM H. RAY ATTORNEY FOR APPELLANT
512 Main Street, Ste. 308 ON APPEAL
Ft. Worth, Texas 76102
HONORABLE FELIPE CALZADAD ATTORNEY FOR APPELLANT
2724 Kimbo Road AT TRIAL
Ft. Worth, Texas 76111
HONORABLE SHAREN WILSON CRIMINAL DISTRICT ATTORNEY
401 W. Belknap St. TARRANT COUNTY, TEXAS
Ft. Worth, Tx. 76196-0201
HONORABLE TIFFANY BURKS ASSISTANT CRIMINAL DISTRICT
401 W. Belknap St. ATTORNEY, TARRANT COUNTY,
Ft. Worth, Tx. 76196-0201 TEXAS
HONORABLE ROBB CATALANO JUDGE, CRIMINAL DISTRICT
401 W. Belknap St. COURT NUMBER THREE
Ft. Worth, Texas 76196 TARRANT COUNTY, TEXAS
HONORABLE LISA McMINN STATE PROSECUTING
P.O. Box 13046 ATTORNEY
Austin, Texas 78711
PETITION FOR DISCRETIONARY REVIEW, PAGE 2
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
INDEX OF AUTHORITIES 4
STATEMENT CONCERNING ORAL ARGUMENT 5
STATEMENT OF THE CASE 5
STATEMENT OF THE PROCEDURAL HISTORY 6
GROUNDS FOR REVIEW
GROUND FOR REVIEW NUMBER ONE 7
THE TRIAL COURT ABUSED ITS DISCRETION BY
FINDING THAT APPELLANT VIOLATED THE TERMS OF HER
PROBATION AND ADJUDICATING APPELLANT GUILTY AND
THEN SENTENCING APPELLANT TO FOUR YEARS IN PRISON
PRAYER 9
CERTIFICATE OF SERVICE 10
CERTIFICATE OF COMPLIANCE 10
APPENDIX The Appendix contains the Opinion of the Court of Appeals.
PETITION FOR DISCRETIONARY REVIEW, PAGE 3
INDEX OF AUTHORITIES
Cases Page
Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984) 7
Rickels v. State, 202 S.W.3d 759 (Tex.Crim.App. 2006) 7
Scamardo v. State, 517 S.W.2d 293, 298 (Tex.Crim.App. 1974) 7
Statutes
Article 42.12, Section 21 ( c) Code of Criminal Procedure 8
PETITION FOR DISCRETIONARY REVIEW, PAGE 4
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not necessary in this case.
STATEMENT OF THE CASE
This is an appeal from a felony conviction resulting from a revocation of
probation for the offense of Intoxication Assault. Appellant was charged by
indictment with the offense of Intoxication Assault CR, Pages 7-8.
Appellant pled guilty to count one of the indictment pursuant to a plea
agreement, which the trial court followed, and was placed on 10 years probation
for the offense of Intoxication Assault on January 19, 2010. CR, Pages 30-33.
This probation had standard terms of probation and additional supplemental terms
for DWI related cases. CR, Pages 34-36.
On April 4, 2014, the trial court heard the State’s Second Petition to Revoke
Probation. CR, Pages 79-82, RR, Pages 1-48. The trial court found the
allegations of the petition to be true and revoked Appellant’s probation and
sentenced Appellant to four years in the Institutional Division of the Texas
Department of Criminal Justice. CR, Pages 92-97. RR, Page 47.
On direct appeal, the Court of Appeals for the Second Appellate District in
Fort Worth affirmed Appellant’s conviction. The opinion was not designated for
publication.
PETITION FOR DISCRETIONARY REVIEW, PAGE 5
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
Appellant was sentenced on April 4, 2014. Notice of Appeal was timely
filed. Appellant timely filed her brief in the Court of Appeals on July 24, 2014.
The State timely filed its brief on September 18, 2014.
The case was submitted to the Court of Appeals, without oral argument, on
October 31, 2014. The Court of Appeals affirmed Appellant’s conviction on
December 18, 2014. That opinion is not designated for publication.
This Petition for Discretionary Review is timely filed.
PETITION FOR DISCRETIONARY REVIEW, PAGE 6
GROUND FOR REVIEW NUMBER ONE
THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING
THAT APPELLANT VIOLATED THE TERMS OF HER PROBATION
AND ADJUDICATING APPELLANT GUILTY AND THEN
SENTENCING APPELLANT TO FOUR YEARS IN PRISON
Appellate review of an order revoking probation is limited to abuse of the
trial court's discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.
1984). In determining questions regarding sufficiency of the evidence in probation
revocation cases, the burden of proof is by a preponderance of the evidence. Id.
An order revoking probation must be supported by a preponderance of the
evidence; in other words, that greater weight of the credible evidence which would
create a reasonable belief that the defendant has violated a condition of his
probation. Scamardo v. State, 517 S.W.2d 293, 298 (Tex.Crim.App. 1974),
Rickels v. State, 202 S.W.3d 759 (Tex.Crim.App. 2006).
In this case, the petition to revoke probation had several allegations, but
other than a single act of failing to submit a urine specimen, all the acts were
derived from Appellant’s failure to do an act which was ultimately founded in a
financial obligation. Specifically, Appellant was required to install the In-Home
monitoring device [Paragraph 1A and 3], Pay a supervision fee monthly in the
amount of $60.00 [Paragraph 2], Pay for urine testing [Paragraph 4], Pay electronic
monitoring fees and it was alleged that Appellant was $2,425.00 in arrears.
PETITION FOR DISCRETIONARY REVIEW, PAGE 7
[Paragraph 5], and Work faithfully at suitable employment [Paragraph 6].
Article 42.12 of the Code of Criminal Procedure, Section 21 ( c) requires
that the State prove by a preponderance of the evidence that the defendant was able
to pay probation fees, and did not pay as ordered by the judge. In this case, there
was ample proof that Appellant did not pay probation fees, but there was no proof
that she had the ability to pay those fees. Appellant testified that she was indigent,
as did Queinton Waldon, the probation officer. RR, Page 18. Salina Aguirre was
Appellant’s SWIFT probation officer and was also aware that Appellant was
indigent. RR, Pages 26-30.
Appellant testified that she was indigent and had no means to pay the
money. RR, Pages 32-35; 42-43.
The trial court then revoked Appellant’s probation and sentenced her to four
years in prison. CR, Pages 92-97; RR, Page 47.
The trial court erred in so finding that Appellant had the ability to pay her
fees, and other than the single allegation that Appellant did not provide a urine
sample, were the only allegations or basis of the allegations made by the State for
revocation. Appellant submits that her failure to submit a urine sample was
beyond hear control and she was in fact present and able to submit a sample, she
just could not stay all afternoon due to her mothers work.
PETITION FOR DISCRETIONARY REVIEW, PAGE 8
The Court of Appeals held that the trial court did not abuse its discretion,
noting that a single allegation, in this case the failure to submit a urine specimen,
was sufficient to sustain a decision to revoke probation. Opinion, pages 5-6.
While the law allows revocation on a single issue, Appellant submits that,
given the totality of the financial circumstances facing Appellant, the trial court
abused its discretion in revoking and the Court of Appeals erred in sanctioning this
decision of the trial court.
PRAYER FOR RELIEF
Appellant Prays that this Honorable Court reverse the trial court’s order
revoking her probation and remand the case for a new trial.
RESPECTFULLY SUBMITTED,
/S/ WILLIAM H. “BILL” RAY
WILLIAM H. "BILL" RAY
TEXAS BAR CARD NO. 16608700
ATTORNEY FOR APPELLANT
LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C.
512 MAIN STREET, STE. 308
FORT WORTH, TEXAS 76102
(817) 698-9090
(817) 698-9092, FAX
PETITION FOR DISCRETIONARY REVIEW, PAGE 9
CERTIFICATE OF SERVICE
I certify that a true copy of Appellant's Brief was delivered via the electronic
filing system to the office of Sharen Wilson, Criminal District Attorney, Criminal
District Attorney of Tarrant County, Texas, 401 W. Belknap St. Ft. Worth, Tx.
76196-0201 on the date of this document’s filing.
I certify that a true copy of Appellant's Petition for Discretionary Review
was placed in the United States Mail addressed to Appellant, in the Texas
Department of Corrections / Tarrant County Jail, on the date of this document’s
filing.
I certify that a true copy of Appellant's Petition for Discretionary Review
was delivered via the electronic filing system to the State’s Prosecuting Attorney,
at P.O. Box 13046, on the date of this document’s filing.
/S/ WILLIAM H. “BILL” RAY
WILLIAM H. “BILL” RAY
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4 i3, of the Texas Rules of Appellate Procedure, I certify
that the Brief on Direct Appeal filed in this case, has 1424 words contained
therein. This count was obtained via the WordPerfect computer program.
/S/ WILLIAM H. "BILL" RAY
WILLIAM H. “BILL” RAY
PETITION FOR DISCRETIONARY REVIEW, PAGE 10
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00142-CR
LETICIA MCWILLIAMS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 1174887D
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Leticia McWilliams appeals from the revocation of her
community supervision. In her sole point, McWilliams argues that the trial court
abused its discretion by revoking her community supervision and by sentencing
her to four years’ imprisonment. We will affirm.
1
See Tex. R. App. P. 47.4.
II. PROCEDURAL BACKGROUND
On January 19, 2010, McWilliams pleaded guilty, pursuant to a plea
agreement, to the third-degree felony of intoxication assault. See Tex. Penal
Code Ann. § 49.07 (West 2011). The trial court sentenced McWilliams to ten
years’ confinement; imposed a $1,000 fine; suspended the sentence; and placed
McWilliams on community supervision for a period of ten years. On July 22,
2011, the State filed a petition to revoke McWilliams’s community supervision.
Three months later, the State filed a motion to dismiss its petition to revoke, and
the trial court dismissed the petition, continued McWilliams’s community
supervision, and imposed additional conditions of community supervision.
The State filed a second petition to revoke McWilliams’s community
supervision on February 4, 2014, alleging that McWilliams had violated multiple
conditions of her community supervision. Specifically, the State alleged that
McWilliams was ordered by the trial court to submit to supervision by the
Supervision with Immediate Enforcement (SWIFT) Court and that she had
violated that condition when she was discharged from the SWIFT Court for
noncompliance, as follows:
a. The Defendant failed to install the In-Home monitoring device as
court ordered and directed by Tarrant County CSCD in the month of
January 2014.
b. The Defendant failed to submit a urine specimen or a non-diluted
urine specimen on or about January 30, 2014 as directed by Tarrant
County CSCD.
2
The State also alleged that McWilliams had violated additional conditions of her
community supervision when she failed to pay the supervision fee of $60 or any
other amount on the fifteenth day for the various months during the period from
April 2010 to January 2014, as listed in the petition (Paragraph 2); failed to install
the in-home monitoring device in January 2014 (Paragraph 3);2 failed to pay for
urine testing for eight months during the period from 2012 to 2014 (Paragraph 4);
failed to pay for electronic monitoring fees and owed a total balance of $2,425
(Paragraph 5); and failed to obtain or verify employment for July 2012 through
January 2014 (Paragraph 6).
At the revocation hearing, McWilliams pleaded “not true” to the allegations
in the State’s second petition to revoke. After hearing testimony from
McWilliams’s community supervision officer, McWilliams’s SWIFT community
supervision officer, and McWilliams, the trial court found the allegations in
Paragraphs 1a, 1b, 2, 3, and 4 of the State’s second petition to revoke to be true
and sentenced McWilliams to four years’ confinement.3
III. NO ABUSE OF DISCRETION
In her sole point, McWilliams argues that the trial court abused its
discretion by revoking her community supervision and by sentencing her to four
2
The State notes in its brief that the allegation in Paragraph 1a is repeated
in Paragraph 3.
3
The judgment does not contain findings related to the allegations in
Paragraphs 5 and 6 of the State’s second petition to revoke.
3
years’ imprisonment. McWilliams argues that all of the violations alleged in the
State’s second petition to revoke, other than a single act of failing to submit a
urine specimen, were based on her failure to do acts that were founded on
financial obligations and that there was no proof that she had the ability to meet
those financial obligations.
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.
The record reveals that the trial court added supplemental conditions of
community supervision on September 24, 2012, requiring McWilliams to submit
to supervision by the SWIFT Court and to submit a valid, nondiluted, and
nonadulterated urine, hair, blood, breath, or saliva sample for testing according to
the time and manner directed by the supervision officer. Two weeks later,
4
McWilliams signed a document entitled “SWIFT Court Warning,” which stated
that she was required to call the drug-test hotline every weekday and, if selected,
to report for testing before 3:00 p.m. that same day. In bold at the bottom of the
warning, it stated, “I have read or have had the S.W.I.F.T. program explained to
me. I understand also that my probation can be revoked for any violation of
probation.”
During the revocation hearing, McWilliams’s SWIFT community
supervision officer testified that McWilliams was discharged from SWIFT for
noncompliance, which included failing to submit a urine specimen on January 30,
2014.4 McWilliams testified that she presented on January 30, 2014, to give a
urine specimen but that she left at 1:35 or 1:40 p.m. before giving a sample
because her mother had to be at work. On cross-examination, McWilliams
admitted that she did not give a urine specimen on January 30, 2014, and that
she understood that was a condition of her probation and a condition of the
SWIFT order. On appeal, McWilliams does not deny that she failed to submit a
urine sample on January 30, 2014. Instead, she argues that “her failure to
submit a urine sample was beyond [her] control and [that] she was in fact present
and able to submit a sample[;] she just could not stay all afternoon due to her
mother[’]s work.”
4
The record includes a letter from McWilliams’s community supervision
officer to the trial court stating that McWilliams was discharged from the SWIFT
Court for “noncompliance” on January 31, 2014—the day following her failure to
provide a urine specimen.
5
Reviewing the evidence in the light most favorable to the trial court’s ruling,
we hold that the State proved by a preponderance of the evidence that
McWilliams violated the condition of her community supervision that required her
to submit to supervision by the SWIFT Court when she failed to submit a urine
specimen on January 30, 2014. See Cobb, 851 S.W.2d at 873; see also
Sanchez v. State, No. 01-13-00631-CR, 2014 WL 3107659, at *3 (Tex. App.—
Houston [1st Dist.] July 8, 2014, no pet.) (mem. op., not designated for
publication) (holding that trial court did not abuse its discretion by revoking
appellant’s community supervision on the ground that he had failed to submit
urine samples on four occasions). Accordingly, we hold that the trial court did not
abuse its discretion by revoking McWilliams’s community supervision and
sentencing her to four years’ confinement. See Rickels, 202 S.W.3d at 763; see
also Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980)
(holding that proof of any one violation is sufficient to support revocation order).
We overrule McWilliams’s sole point.
6
IV. CONCLUSION
Having overruled McWilliams’s sole point, we affirm the trial court’s
judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 18, 2014
7