Modified and Affirmed and Opinion Filed August 18, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00471-CR
No. 05-21-00472-CR
JEWELL LEE THOMAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F18-31413-T and F18-10610-T
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Nowell
Opinion by Justice Pedersen, III
Jewell Lee Thomas appeals the trial court’s judgments revoking
hiscommunity supervision. In two appellate issues, he argues (1) the trial court erred
by refusing to award him back time to which he was entitled, and (2) the trial court
abused its discretion in finding that appellant failed to complete the court-ordered
drug treatment program, because it was not possible for him to do so. We modify
the trial court’s judgment to add credit for jail time appellant served before he was
sentenced. As modified, we affirm the trial court’s judgments.
Background
Appellant pleaded guilty, in both of these cases, to driving while intoxicated
(DWI).1 The trial court assessed his punishment in each case at ten years’
confinement and then probated the sentences for six years and probated a fine of
$1,500. One condition of appellant’s community supervision required him to
participate in and to successfully complete the treatment program in a Substance
Abuse Felony Punishment Facility (SAFPF). But appellant was discharged from the
Substance Abuse Felony Punishment (SAFP) program for refusing to participate,
and the State moved to revoke his community supervision in both cases. After an
evidentiary hearing on the motions, the trial court found that appellant had failed to
comply with the SAFP condition, revoked his community supervision, and
sentenced him to ten years’ confinement in each case, to be served concurrently.
Back Time Credit
In his first issue, appellant challenges the trial court’s refusal to give him credit
for time he served before sentencing. Awards of such back time credit are governed
by article 42.03 of the Texas Code of Criminal Procedure. Appellant concedes that
the statute excludes time he spent in the drug treatment program at SAFPF, because
1
Appellant had already been convicted more than twice of DWI offenses, which enhanced these
offenses to third-degree felonies. TEX. PENAL CODE ANN. § 49.09(b)(2).
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he did not successfully complete the treatment program. 2 See TEX. CODE CRIM.
PROC. art. 42.03 § 2(a)(2). He contends, however, that he is entitled to credit for the
time he spent in jail prior to being sentenced.
The State agrees with appellant that he is due credit for jail time served, but it
correctly stated in its brief that the record did not contain information we needed to
modify the judgment concerning such a credit. To that end, we abated the appeal and
directed the trial court (1) to determine the proper amount of back time due by statute
to appellant in each of these cases, and (2) to sign a nunc pro tunc judgment in each
case that includes appellant’s back time credit. We have received the trial court’s
supplemental clerk’s record complying with our order.
This Court has the power to modify an incorrect judgment to make the record
speak the truth when we have the necessary information before us to do so. See TEX.
R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App.
1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet.
ref’d). With the filing of the nunc pro tunc judgments, we now have in the record the
information necessary to correct the judgments. Accordingly:
in the trial court’s judgment in its case number F18-31413-T (our case number
05-21-00471-CR), under Total Jail Time Credit, we delete “N/A” and replace
it with “501 total days”; and
2
Appellant’s community supervision was initially conditioned on completing a treatment program at
the Wilmer Judicial Treatment Center. However, the same day he reported to that program, he was taken
to the hospital complaining of chest pains. When the hospital released him hours later, he “absconded.” He
was arrested some six months later, and the trial court added the condition to his community supervision
requiring him to complete the in-patient program at SAFPF. Any measurable time spent at the Wilmer
Judicial Treatment Center would also be excluded from back time credit.
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in the trial court’s judgment in its case number F18-10610-T (our case number
05-21-00472-CR), under Total Jail Time Credit, we delete “N/A” and replace
it with “503 total days.”
We incorporate the trial court’s July 27, 2022 nunc pro tunc judgments into
the modified original judgments for all purposes. We sustain appellant’s first issue
to the extent of these modifications.
Impossibility of Fulfilling Condition of Community Supervision
In his second issue, appellant contends that the trial court abused its discretion
by revoking his community supervision because it was not possible for him to
complete the SAFP program. Appellant testified on his own behalf at the revocation
hearing. He stated that in May 1996, he had been struck by a vehicle, and his leg was
seriously injured. Before his arrest, he was diagnosed with chronic pain syndrome,
and he was being treated with steroid injections and opiates. Neither of those
treatments is available in a drug treatment facility operated by the Texas Department
of Corrections (TDC). Because appellant is unable to have that same treatment while
undergoing the SAFP program, he contends that he is constant pain, he cannot
concentrate, and therefore he cannot participate in the treatment program.
We review an order revoking community supervision to determine whether
the trial court abused its discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex.
Crim. App. 2006). An order revoking community supervision must be supported by
a preponderance of the evidence, meaning the greater weight of the credible
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evidence. Id. at 763–64. In appellant’s case, it is undisputed that he did not
satisfactorily complete the SAFP program; he failed to satisfy that condition of his
community supervision. And a finding of a single violation of community
supervision is sufficient to support revocation. Sanchez v. State, 603 S.W.2d 869,
871 (Tex. Crim. App. [Panel Op.] 1980). But fairness requires that community
supervision not be revoked if the defendant establishes that compliance with a
condition was actually impossible. See Euler v. State, 218 S.W.3d 88, 91 (Tex. Crim.
App. 2007) (“In particular, where, as in Texas, the factfinder, if it finds a violation
of the conditions of probation, has discretion to continue the probation, the
probationer ‘is entitled [by due process] to an opportunity to show not only that he
did not violate the conditions [of his probation], but also that there was a justifiable
excuse for any violation or that revocation is not the appropriate disposition.’”)
(quoting Black v. Romano, 471 U.S. 606, 612 (1985)).
Along with his own testimony, appellant relies on testimony from Mary Helen
Morrow, M.D., the medical director at the East Texas Treatment Facility where the
SAFPF was located. Dr. Morrow examined appellant once, and she confirmed the
chronic pain diagnosis he had received before his arrest. She referred appellant to a
pain management doctor and to a higher level medical unit within the TDC that could
better meet his needs. But she did not conclude that appellant needed to leave the
TDC system to be properly treated.
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Laurie Baker, a community supervision and corrections officer who interacted
with appellant during his time in the SAFPF, testified for the State and reported that
appellant was screened and adjudged capable of participating in the treatment
program. She explained that appellant was assigned to the special needs SAPF
program, which had the ability to treat both physical and mental health needs of
those on community service. She testified that in her interactions with appellant he
never mentioned any physical issue—including pain management or chronic pain—
that was a barrier to his completing the SAFP. Instead, she recalled appellant’s
complaining only about the program’s inability to treat his psychiatric needs. Baker
testified that appellant signed three separate Refusals of Program Treatment Services
on consecutive days in October 2020. After this repeated refusal to participate in
treatment, he was discharged from the program. Baker testified that appellant’s
discharge was classified as “administrative”; it was based on his refusal to
participate, not on any inability to participate.
Throughout the hearing, witnesses made references to a possible referral of
appellant to a TDC hospital in Galveston for pain management treatment. Due to
pandemic restrictions in place at the time, any trip to Galveston would have to be
followed by a period of quarantine and a re-start of the SAFP program. Appellant
rejected this resolution of his complaint, purportedly because of the delay it would
cause in completing the program. The State concedes that treatment at Galveston
would not yield an ideal schedule, but it argues the existence of this option
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demonstrated that appellant could receive pain management treatment and continue
to participate in the SAFPF program.
It was the trial court’s role, as the fact finder in this case, to reconcile any
conflicts in the evidence and to judge the witnesses' credibility. See Swearingen v.
State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). Here, the only evidence that
appellant was physically unable to complete the SAFP treatment program was his
own testimony, which the trial court was free to reject, especially if appellant did not
raise that complaint at the time of his discharge. Moreover, appellant has rejected a
path that would provide him—within the TDC—the very treatment he desires,
purportedly because it would require quarantine following treatment. The trial court
could have viewed appellant’s changing complaints and his rejection of alternative
treatment as evidence that he simply did not want to participate in treatment for
substance abuse.3 Indeed, at the hearing, appellant repeatedly rejected the premise
that he needed such treatment, asserting that “I don’t think I have an alcohol
problem. I may have a drinking and driving problem, but I don’t—I disagree that I
have an alcohol problem.”
We conclude that a preponderance of the evidence supports the trial court’s
rejection of appellant’s impossibility justification. Accordingly, the trial court did
3
We note that the trial judge stated she was “struggling” with the fact that appellant had never brought
up the pain management issue before, despite his participation in three or four previous hearings.
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not abuse its discretion when it revoked appellant’s community supervision for
failure to complete the SAFP program. We overrule appellant’s second issue.
Conclusion
As modified, we affirm the trial court’s judgments.
/Bill Pedersen, III//
BILL PEDERSEN, III
210471f.u05 JUSTICE
210472f.u05
Do Not Publish
TEX. R. APP. P. 47
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JEWELL LEE THOMAS, Appellant On Appeal from the 283rd Judicial
District Court, Dallas County, Texas
No. 05-21-00471-CR V. Trial Court Cause No. F18-31413-T.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Pedersen, III. Justices Partida-
Kipness and Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
Under Total Jail Time Credit, we delete “N/A” and replace it with “501 total
days”.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 18th day of August, 2022.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JEWELL LEE THOMAS, Appellant On Appeal from the 283rd Judicial
District Court, Dallas County, Texas
No. 05-21-00472-CR V. Trial Court Cause No. F18-10610-T.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Pedersen, III. Justices Partida-
Kipness and Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
Under Total Jail Time Credit, we delete “N/A” and replace it with “503 total
days”.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 18th day of August, 2022.
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