Reformed and Affirmed and Opinion Filed March 15, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00453-CR
JOSHUA ALEXANDER JAMES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1420189-R
MEMORANDUM OPINION
Before Justices Molberg, Nowell, and Goldstein
Opinion by Justice Molberg
Appellant Joshua James appeals his conviction for assault family violence
impeding breath/circulation for which he was sentenced to four years’ confinement
after the trial court adjudicated his guilt and revoked his community supervision. In
three issues, appellant challenges the trial court’s order revoking his deferred
adjudication community supervision, arguing that insufficient evidence supported
the trial court finding true the State’s allegations that he violated three conditions of
community supervision. In his fourth issue, appellant argues most of the “time
payment fee” assessed here is unconstitutional. We conclude sufficient evidence
supported at least one of the trial court’s bases for adjudicating appellant guilty and
revoking his community supervision and find that the time payment fee was
prematurely assessed. We therefore affirm the judgment as modified below in this
memorandum opinion. See TEX. R. APP. P. 47.4.
I. Background
Appellant pleaded guilty to assault family violence impeding
breath/circulation on December 10, 2014, pursuant to a plea bargain agreement with
the State, according to which he would be placed on deferred adjudication
community supervision for four years. He was ordered by the trial court to comply
with twenty conditions of supervision. As pertinent here, appellant was ordered to
“notify the Supervision Officer not less than twenty-four hours prior to any changes
in your home or employment address”; “[f]irst contact to the Volunteer Center must
be made by the defendant within 30 days from referral and defendant is to start 160
hours of community service at an approved Community Service Project or projects
designated by the Community Supervision and Corrections Department”; and
“[w]ithin 30 days from referral, participate[] in a domestic violence treatment
program (BIPP)[1] through a court-approved resource, making an observable,
deliberate and diligent effort to comply with all directives provided by the Program
until released successfully by the agency of the Court.”
1
“BIPP” stands for Batterer’s Intervention and Prevention Program. See Ex parte Obi, 446 S.W.3d
590, 594 n.3 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).
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During appellant’s time on probation, the State filed several motions to
proceed with an adjudication of guilt, beginning in 2015. Each motion alleged,
among other things, that appellant had failed to “participate in a domestic violence
treatment program (BIPP) through a court-approved resource” or that he “did violate
condition (p) in that [he] did not complete BIPP.” Each time, appellant’s probation
was continued, sometimes with modified conditions, including jail time.
The State filed the amended motion to proceed with adjudication of guilt at
issue here on December 18, 2019. The State alleged, in pertinent part, that appellant
“failed to notify the Community Supervision Officer of his change of
address/employment within 24 hours”; “failed to complete Community Service
hours as directed”; and “failed to participate in a Domestic Violence Treatment
program (BIPP) through a court-approved resource.”
At the hearing on the motion to proceed with an adjudication of guilt,
appellant pleaded not true to the State’s allegations. The State called Kecia Mitchell,
a probation officer with Dallas County, who testified that she first began supervising
appellant in 2016. She said generally that appellant “didn’t complete anything”;
“had a problem reporting as scheduled”; “didn’t complete BIPP”; and “didn’t
complete anything, any of his conditions.”
Regarding BIPP in particular, she testified as follows:
Q. And so he also was supposed to complete BIPP, correct?
A. Yes.
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Q. And he -- he never did that, correct?
A. No. He never –
Q. How did you know he was supposed to do BIPP?
A. He was given several referrals and it’s on his conditions of his
probation.
Q. Okay. So did you -- did you talk to him personally about having to
complete BIPP?
A. Yes.
More specifically, she said that appellant “enrolled in BIPP twice” but “just never
went to any sessions.”
According to Mitchell, appellant told her that the first provider to which he
was referred—The Family Place in northeast Dallas—was inconvenient. Appellant
was given a final August 30, 2019 deadline to enroll at the Family Place. Mitchell
said he did not enroll until September. When Mitchell then referred him to a
provider closer to where he lived, “he enrolled, but then he was arrested” and missed
the deadline. During his five years of probation, Mitchell said, appellant did not
complete BIPP. Though appellant told Mitchell he was attending, she inquired and
determined “he hadn’t attended any classes” and “eventually he was discharged.”
On cross-examination, Mitchell further testified:
Q. Okay. So you’ve given him another referral. Did he, in fact, enroll
there?
A. Yes.
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Q. So it went through an orientation and enrolled, whatever that process
is?
A. Yes.
Q. Paid money in order to enroll; is that correct?
A. I’m assuming he paid the money.
Q. Okay. As far as your notes go, does it indicate that he showed you
any -- any proof of actually attending the classes?
A. No. I actually -- I called them and asked if he was attending. And I
think he attended one before he was arrested on a probation violation.
She testified that, prior to going to jail, appellant had missed two classes, and if he
“misse[d] any more, then he was going to be discharged.”
When questioned about his failure to notify her about any changes in his
address, Mitchell said: “[I]t was a while back. I think he was living in some
apartments. He moved frequently. . . . [T]he last time he was living in some
apartments, that was in 2016 and the field officer was having a hard time contacting
him there.” And regarding community service hours, Mitchell testified that
appellant was aware he was supposed to complete them. She stated that he did not
complete them.
Appellant testified he understood his conditions of probation. He testified he
was incarcerated prior to June 2019, and he was “doing BIPP in Dallas County
custody.” When he was released, he said he made attempts to get credit for those
classes. He also said he made the August 30, 2019 deadline to enroll at The Family
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Place; he testified that he enrolled August 28. But “it was an inconvenience because
it was all the way in north Dallas and I lived in Duncanville at the time with no car
. . . .” Appellant further said The Family Place “kept rescheduling” him. So,
appellant said, he ended up at another provider located on Martin Luther King, Jr.
Blvd. in south Dallas. But he had transportation issues there, too. Appellant
testified, finally, he enrolled with the provider called Lankford Avenue, where he
said he completed three classes.
Appellant admitted two exhibits relating to the BIPP requirement. The first
was a letter of enrollment from Lankford Avenue. It reflected that appellant’s date
of enrollment and orientation was November 6, 2019, and the estimated date of first
class was November 9, 2019. Included with the letter was a receipt indicating
appellant made a $40 payment for “intake” and “workbook” on November 6. The
second exhibit was another receipt, dated November 16, 2019, indicating a $20.00
payment for a class at Lankford Avenue.
The trial court found appellant violated the three conditions at issue and
adjudicated him guilty.2 The court sentenced appellant to four years’ confinement
and made “an affirmative finding of family violence.”
2
The State abandoned four allegations, and the trial court found four other allegations not true.
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II. Standard of review
We review a trial court’s order revoking probation for an abuse of discretion.
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). “In determining
questions regarding sufficiency of the evidence in probation revocation cases, the
burden of proof is by a preponderance of the evidence.” Id. This standard applies
“whether it be regular probation” or, as here, deferred adjudication. Hacker v. State,
389 S.W.3d 860, 864 (Tex. Crim. App. 2013). Thus, to support an order revoking
probation, the “greater weight of the credible evidence” must “create a reasonable
belief that the defendant has violated a condition of his probation.” Rickels, 202
S.W.3d at 763–64. The trial judge is the sole judge of the credibility of the witnesses
and the weight to be given their testimony. Hacker, 389 S.W.3d at 864.
III. Analysis
We conclude sufficient evidence showed appellant violated the condition of
probation requiring him to participate “in a domestic violence treatment program
(BIPP) through a court-approved resource, making an observable, deliberate and
diligent effort to comply with all directives provided by the Program until released
successfully by the agency of the Court.” Because we so conclude, we do not reach
or discuss the other two conditions the trial court found true. Moses v. State, 590
S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979) (“Proof of any one of the
alleged violations is sufficient to support the order revoking probation.”).
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The evidence shows appellant was placed on deferred adjudication
community supervision at the end of 2014. There is no evidence appellant attended
any court-approved BIPP classes until the end of 2019, when the State was already
moving again to revoke appellant’s community supervision based on his failure to
satisfy this condition. Mitchell testified that, though being arrested stopped
appellant from continuing at Lankford Avenue, she determined that he had already
missed two classes prior to being arrested. While appellant testified that he attended
BIPP classes in jail, there is no evidence beyond his testimony that the classes he
attended were the “court-approved resources” referred to in the community
supervision order. And the trial court was the sole judge of the witnesses’ credibility
and the weight to be given their testimony. Hacker, 389 S.W.3d at 864. Appellant
argues he “did not wholly neglect his BIPP obligations” and that he “took steps to
complete the program.” But we cannot agree the trial court erred by finding that
appellant’s late effort was not the participation required by its order. Further,
appellant was not ordered merely to participate in the program but to make “an
observable, deliberate and diligent effort to comply with all directives provided by
the Program[.]”
Given all of that, we conclude the trial court could have found that the greater
weight of the evidence created a reasonable belief that appellant failed to
“[participate] in a domestic violence treatment program (BIPP) through a court-
approved resource, making an observable, deliberate and diligent effort to comply
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with all directives provided by the Program until released successfully by the agency
of the Court.” Accordingly, we conclude the trial court did not abuse its discretion
by proceeding to an adjudication of guilt and revoking appellant’s community
supervision. Appellant’s third issue is overruled; consequently, we need not decide
his first two issues. See, e.g., Overloon v. State, No. 05-20-00249-CR, 2021 WL
4704813, at *1 (Tex. App.—Dallas Oct. 8, 2021, no pet.) (mem. op., not designated
for publication).
IV. Time payment fee
In his fourth issue, appellant argues the “time payment fee” imposed pursuant
to TEX. LOC. GOV’T CODE § 133.1033 is unconstitutional. He relies on this Court’s
decision in Ovalle v. State, 592 S.W.3d 615, 618 (Tex. App.—Dallas 2020), vacated,
No. PD-0127-20, 2021 WL 1938672 (Tex. Crim. App. May 12, 2021).
Here, the trial court’s March 26, 2020 judgment adjudicating guilt reflected
$599 owed in court costs. According to the fee docket sheet in the clerk’s record, a
$25.00 fee (labelled “installment plan”) accrued on January 10, 2015—thirty-one
days after the other $574 in costs accrued. The parties agree that this is a “time
payment fee” assessed under section 133.103.
3
“A person convicted of an offense shall pay, in addition to all other costs, a fee of $25 if the person:
(1) has been convicted of a felony or misdemeanor; and (2) pays any part of a fine, court costs, or restitution
on or after the 31st day after the date on which a judgment is entered assessing the fine, court costs, or
restitution.”
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While this appeal was pending, the court of criminal appeals decided Dulin v.
State, 620 S.W.3d 129, 133 (Tex. Crim. App. 2021), where it held that “[t]he
pendency of an appeal stops the clock for purposes of the time payment fee.”
Applying Dulin here, we conclude that the $25 time payment fee was prematurely
assessed because appellant’s notice of appeal—which was filed less than thirty days
after the March 26, 2020 judgment—stopped the thirty-one day clock in section
133.103. See id. The $25 fee should therefore be struck, without prejudice to it
being assessed later if, more than thirty days after the issuance of the appellate
mandate, the defendant has failed to completely pay any fine, court costs, or
restitution that he owes. See id. We also note that, to the extent the time payment
fee was assessed thirty-one days after appellant was placed on deferred probation in
2014, it was prematurely assessed then, too, because an order of deferred
adjudication is not a “judgment.” See Turner v. State, No. 05-19-01493-CR, 2021
WL 3083501, at *2 (Tex. App.—Dallas July 21, 2021, no pet.) (mem. op., not
designated for publication) (“an order of deferred adjudication is not a ‘judgment,’”
and thus “time payment fee was prematurely assessed” a month after order of
deferred adjudication was entered); TEX. LOC. GOV’T § 133.103 (time payment fee
is owed only if defendant “pays any part of a fine, court costs, or restitution on or
after the 31st day after the date on which a judgment is entered assessing the fine,
court costs, or restitution” (emphasis added)).
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Accordingly, we modify the trial court’s judgment to reduce the total amount
of court costs by $25. See TEX. R. APP. P. 43.2(b) (appellate court may “modify the
trial court’s judgment and affirm it as modified”).
V. Conclusion
We affirm the trial court’s judgment as modified.
/Ken Molberg/
KEN MOLBERG
JUSTICE
200453f.u05
DO NOT PUBLISH
Tex. R. App. P. 47
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOSHUA ALEXANDER JAMES, On Appeal from the 265th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F-1420189-R.
No. 05-20-00453-CR V. Opinion delivered by Justice
Molberg. Justices Nowell and
THE STATE OF TEXAS, Appellee Goldstein participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
We modify the trial court’s judgment to reduce the total amount of
court costs by $25 to strike the time payment fee, without prejudice to
them being assessed later if, more than 30 days after the issuance of
the appellate mandate, the defendant has failed to completely pay any
fine, court costs, or restitution that he owes.
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 15th day of March, 2022.
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