Opinion issued June 18, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00611-CR
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CLIFFORD LEVIENE POWELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 371st District Court
Tarrant County, Texas1
Trial Court Case No. 1495685D
1
Pursuant to its docket equalization authority, the Supreme Court of Texas
transferred this appeal to this Court. See TEX. GOV’T CODE § 73.001 (authorizing
transfer of cases).
MEMORANDUM OPINION
Appellant, Clifford Leviene Powell, pleaded guilty, with an agreed
recommendation from the State as to punishment, to the third-degree-felony offense
of using a vehicle to evade arrest or detention.2 The trial court deferred adjudication
of appellant’s guilt, placed him on community supervision for four years, and
assessed a fine of $400. Subsequently, the State moved to adjudicate appellant’s
guilt, alleging that he had violated the conditions of his community supervision.
After a hearing, the trial court found appellant guilty and assessed his punishment at
confinement for four years and a fine of $380. In two issues, appellant contends that
(1) the trial court violated his due process rights by revoking his community
supervision and adjudicating his guilt and (2) the judgment should be reformed to
reflect that he pleaded “not true” to the allegations in the State’s motion to
adjudicate.
We modify the trial court’s judgment and affirm as modified.
Background
Appellant was indicted for the offense of using a vehicle to intentionally evade
a peace officer who was attempting to arrest or detain him. On November 2, 2017,
in accordance with appellant’s plea agreement with the State, the trial court deferred
adjudication of appellant’s guilt and placed him on community supervision, subject
2
See TEX. PENAL CODE § 38.04(b)(2)(A).
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to certain conditions, including that he “successfully complete” the Tarrant County
Community Supervision and Corrections Department “Intensive Day Treatment
(Jail), Aftercare, and IDT Re-Entry Court” (“IDT program”).
On April 16, 2018, the State moved to adjudicate appellant’s guilt on the
ground that he had violated the terms of his community supervision by being
“unsuccessfully discharged” from the IDT program on February 5, 2018 and April
6, 2018. At a hearing on the State’s motion, appellant pleaded “not true” to the
allegations.
Duane Coffee, an IDT program supervisor, testified that program counselors
are not authorized to make discharge decisions. Rather, he handled all discharges
from the program. He explained that the first phase of the IDT program is 90 days
in length and that, to complete the program successfully, all participants are required
to progress to “level 3.” The program is designed to prevent participants from “just
doing their time in the program” and not learning anything. Thus, one ground for
discharge from the program is failing to make progress. He testified that appellant
began the IDT program twice and was twice “unsuccessfully discharged.” The first
time, on February 5, 2018, appellant was discharged because he “was not making
the appropriate amount of progress,” and the trial court amended the conditions of
appellant’s community supervision and ordered him to serve 60 days’ confinement.
Afterwards, on April 4, 2018, the trial court ordered appellant to re-start the IDT
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program. On April 6, 2018, however, appellant refused to sign intake documents,
which included the required consent for treatment, and he was discharged.
Rodney Sikes, an IDT counselor, testified that appellant initially began the
program on January 5, 2018, attended orientation, and completed the required
documents. Thereafter, appellant progressed “somewhat,” but was resentful and
fixated on challenging the reasons that he had been assigned to the program.
Appellant insisted that he did not have a substance abuse problem and that he had
been “wronged by having to be in the program.” On February 5, 2018, appellant
was discharged from the program. After the trial court gave appellant 60 days’
confinement to “re-evaluate the situation,” appellant returned to IDT and sat through
orientation. However, he refused to sign any of the required documents. Sikes
explained that IDT is a “HIPAA-protected program, so what one person talks about
in substance abuse can’t be shared with other people unless they sign that
documentation, which is federal law.” Although Sikes explained to appellant that
he would be discharged, appellant refused to sign the required documents.
Ann Henderson, a lead counselor for the IDT program, testified that appellant
did not participate in the program as required because he refused to perform the tasks
that he was assigned. Rather, appellant voiced that he was not supposed to be in the
program, resisted the instructions that he was given, and did not “do the requirements
to progress to level 1.”
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Douglas Jones, appellant’s community supervision officer, testified that
appellant was ordered to attend and successfully complete IDT. He explained that
IDT counselors “don’t usually just terminate someone from IDT.” Rather, on
February 5, 2018, appellant was brought to the trial court to address his behavioral
issues. The IDT counselors discussed with the trial court the reasons that a discharge
was recommended, and the trial court made the decision to discharge him. The trial
court then amended the terms and conditions of appellant’s community supervision
by ordering him to serve 60 days of conditional jail time and ordering him to restart
the program upon the completion of those days. And, once the trial court ordered
appellant back into the program, he was admitted. His subsequent refusal to
participate by signing the required documentation constituted grounds for discharge.
Appellant testified that he understood that his failure to comply with the trial
court’s order that he successfully complete the IDT program could result in his being
sentenced to confinement.
The trial court found “true” that appellant had violated the conditions of his
community supervision, found him guilty of the underlying offense, and assessed
his punishment at confinement for four years.
Revocation and Adjudication
In his first issue, appellant asserts: “The trial court abused its discretion and
violated due process in adjudicating guilt and revoking community supervision by
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sustaining the allegation that [he] was unsuccessfully discharged from a court-
ordered treatment program.”
Appellate review of an order revoking community supervision and
adjudicating guilt is limited to determining whether the trial court abused its
discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); see
also TEX. CODE CRIM. PROC. art. 42A.108(b). A trial court has the discretion to
revoke community supervision if a preponderance of the evidence supports one of
the State’s allegations that the defendant violated a condition of his community
supervision. Leonard v. State, 385 S.W.3d 570, 576 (Tex. Crim. App. 2012); see
also Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012) (holding that proof
of single violation of terms of community supervision is sufficient to support trial
court’s decision to revoke). The evidence meets the preponderance standard if the
greater weight of the credible evidence creates a reasonable belief that a defendant
has violated a condition of his community supervision. Rickels, 202 S.W.3d at 764;
Bell v. State, 554 S.W.3d 742, 746 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d).
We examine the evidence in the light most favorable to the trial court’s order. Bell,
554 S.W.3d at 746. As the sole trier of fact, the trial court determines the credibility
of witnesses and the weight to be given to their testimony. Id.
Revocation involves a loss of liberty and implicates due process. Leonard,
385 S.W.3d at 577. Thus, the “central issue to be determined in reviewing a trial
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court’s exercise of discretion in a [community supervision] revocation case is
whether the [defendant] was afforded due process of law.” Id. The Texas Court of
Criminal Appeals has explained:
It would surely offend due process if a defendant were discharged from
his therapy program for a wholly inappropriate reason—such as illegal
discrimination or mere caprice—and the bare fact of that discharge
were used as a basis to revoke the defendant’s community supervision.
Yet, by an ordinary abuse-of-discretion review, such a revocation
would be sustained.
Id. Accordingly, when a trial court, through a condition of a defendant’s community
supervision, makes his compliance with the terms of his community supervision
subject to the discretion of a third party, we must also, in determining whether the
trial court abused its discretion, “examine the third party’s use of discretion to ensure
that it was used on a basis that was rational and connected to the purposes of
community supervision.” Id.
Here, the record shows that the trial court ordered appellant to “successfully
complete” the IDT program. The State moved to adjudicate appellant’s guilt on the
ground that he had been “unsuccessfully discharged” from the IDT program on
February 5, 2018 and April 6, 2018. At the hearing on the State’s motion to
adjudicate, appellant testified that he understood that his failure to comply with the
trial court’s order that he successfully complete the IDT program could result in his
being sentenced to confinement.
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Coffee testified that, on February 5, 2018, appellant was discharged from the
IDT program because he “was not making the appropriate amount of progress.” He
explained that the first phase of the IDT program is 90 days in length and that, to
complete the program successfully, all participants are required to progress to “level
3.” Henderson testified that appellant did not participate in the program as required
because he refused to perform his assigned tasks. Rather, appellant voiced that he
was not supposed to be in the program and resisted the instructions that he was given.
Henderson explained that, after one month in the program, appellant had not
performed the tasks that most participants normally accomplished in the first two
weeks. And, he did not “do the requirements to progress to level 1.”
Sikes testified that the first time that appellant was admitted into the IDT
program, he progressed “somewhat,” but was resentful and fixated on challenging
the reasons that he had been assigned to the program. Appellant insisted that he did
not have a substance abuse problem and that he had been “wronged by having to be
in the program.” And, on February 5, 2018, appellant was discharged from the
program.
Jones testified that, on February 5, 2018, appellant was brought to the trial
court to address his behavioral issues. The IDT counselors discussed with the trial
court the reasons that a discharge was recommended, and the trial court made the
decision to discharge appellant from the IDT program. Again, proof of a single
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violation of the terms and conditions of community supervision is sufficient to
support a trial court’s decision to revoke. See Garcia, 387 S.W.3d at 26. Although
the record shows that the trial court later gave appellant a second chance to complete
the IDT program, the evidence shows, and it is undisputed, that he did not do so.
Viewed in the light most favorable to the trial court’s order, the greater weight
of the evidence supports a reasonable belief that appellant violated a condition of his
community supervision by not “successfully complet[ing]” the IDT program and
being “unsuccessfully discharged.” See Rickels, 202 S.W.3d at 764; Bell, 554
S.W.3d at 746; see also Stento v. State, No. 01-17-00164-CR, 2018 WL 6377973, at
*3–4 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018, no pet.) (mem. op., not
designated for publication) (holding that program-staff testimony about defendant’s
behavior and violations of rules was sufficient to support trial court’s revocation of
community supervision and adjudication of guilt); Bradford v. State, No. 02-16-
00421-CR, 2017 WL 6759030, at *4 (Tex. App.—Fort Worth Dec. 28, 2017, no
pet.) (mem. op., not designated for publication).
Further, there is no evidence that appellant was discharged from the IDT
program “for a wholly inappropriate reason . . . or mere caprice.” Leonard, 385
S.W.3d at 577; Stento, 2018 WL 6377973, at *3. The purposes of community
supervision are “to protect or restore the community, protect or restore the victim,
or punish, rehabilitate, or reform the defendant.” TEX. CODE CRIM. PROC. art.
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42A.301(a); see also Stento, 2018 WL 6377973, at *3. Coffee testified that the IDT
program is designed to prevent participants from “just doing their time in the
program” and not learning anything. Thus, one ground for discharge from the
program is a failure to progress. He explained that to complete the program
successfully, all participants are required to progress to “level 3.” IDT staff testified
that appellant refused to perform his assigned tasks and did not “do the requirements
to progress to level 1.” IDT staff discussed with the trial court the reasons that a
discharge was recommended, and the trial court made the decision to discharge
appellant from the IDT program.
Once ordered into the program, appellant’s level of participation was within
his control. See, e.g., Donovan v. State, No. PD-0474-14, 2015 WL 4040599, at *5
(Tex. Crim. App. July 1, 2015). Discharging appellant from the program for refusing
to progress is rationally connected to the purposes of rehabilitating and reforming
him. See Leonard, 385 S.W.3d at 577; see, e.g., Stento, 2018 WL 6377973, at *3–
4 (holding that discharging defendant from program for “disrespecting staff, not
following directives, [and] refusing to sign the in-house behavioral
contract . . . rationally relate[d] to the objective of rehabilitating and reforming
appellant through community supervision”); Riddle v. State, No. 02-14-00180-CR,
2014 WL 5409550, at *6 (Tex. App.—Fort Worth Oct. 23, 2014, pet. ref’d) (mem.
op., not designated for publication) (holding that whether defendant successfully
10
completed program was left to discretion of treatment specialists, and evidence did
not show that they abused their discretion in discharging defendant from program);
Goodwin v. State, No. 14-12-00512-CR, 2013 WL 5346429, at *5 (Tex. App.—
Houston [14th Dist.] Aug. 27, 2013, no pet.) (mem. op., not designated for
publication) (“[Defendant’s] making progress in treatment would be rationally
connected to the purposes of rehabilitating and reforming [defendant].”).
We hold that the trial court did not abuse its discretion in finding “true” that
appellant violated the terms and conditions of his community supervision and
adjudicating his guilt. See Leonard, 385 S.W.3d at 577; Rickels, 202 S.W.3d at 764.
We overrule appellant’s first issue.
Modification of Judgment
In his second issue, appellant argues that the trial court’s judgment should be
modified to comport with the record, which reflects that he entered a plea of “not
true” to the State’s allegations in its motion to adjudicate. The State agrees that the
judgment should be so modified.
The record reflects that, at the adjudication hearing, appellant entered a plea
of “not true” to the State’s allegations. However, the trial court’s judgment states
that appellant entered a plea of “true.” An appellate court has the power to correct
and reform a trial court judgment to make the record speak the truth when it has the
necessary data and information to do so. Nolan v. State, 39 S.W.3d 697, 698 (Tex.
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App.—Houston [1st Dist.] 2001, no pet.) (citing Asberry v. State, 813 S.W.2d 526,
529 (Tex. App.—Dallas 1991, pet. ref’d)). Accordingly, we modify the trial court’s
judgment to reflect that appellant entered a plea of “not true” to the allegations in
the State’s motion to adjudicate his guilt. See TEX. R. APP. P. 43.2(b) (“Court of
Appeals may . . . modify the trial court’s judgment and affirm it as modified.”);
Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Torres v. State, 391
S.W.3d 179, 185 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (modifying
judgment to state that defendant pleaded “true” to allegations in enhancement
paragraphs).
We sustain appellant’s second issue.
Conclusion
We modify the trial court’s judgment to reflect appellant’s plea of “not true”
to the State’s allegation in its motion to adjudicate. As modified, we affirm the trial
court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
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