PD-0379-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/4/2015 2:06:44 PM
Accepted 5/4/2015 4:36:14 PM
PD-0379-15 ABEL ACOSTA
CLERK
THE COURT OF CRIMINAL APPEALS OF TEXAS
JOHN ELSWORTH COMBEST
Appellant
v.
THE STATE OF TEXAS,
Appellee
______________________________________________________
PETITION FOR DISCRETIONARY REVIEW
______________________________________________________
On Petition for Discretionary Review from the First Court of Appeals;
Cause No. 01-13-00712-CR, affirming the trial court’s judgment in
Cause No. 1221980 in the 184th District Court of Harris County, Texas.
______________________________________________________
ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas
CHERI DUNCAN
May 4, 2015 Assistant Public Defender
Harris County, Texas
Texas Bar No. 06210500
BRIAN HUTCHISON
Legal Intern
1201 Franklin, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
Counsel for Appellant
IDENTITY OF PARTIES AND COUNSEL
Appellant John Elsworth Combest
TDCJ # 01873580
Powledge Unit, TDCJ
1400 FM 3452
Palestine, TX 75803
Presiding Judge Hon. Jan Krocker
184th District Court
Harris County, Texas
1201 Franklin, 17th Floor
Houston, Texas 77002
Trial Prosecutor Brandon Leonard
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, TX 77002
Defense Counsel at Trial Gilbert Villareal
Attorney at Law
1419 Franklin Ste 5
Houston, TX 77002
Counsel on Appeal for Appellant Cheri Duncan
Assistant Public Defender
Brian Hutchison
Legal Intern
Harris County, Texas
1201 Franklin, 13th floor
Houston, Texas 77002
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii
TABLE OF CONTENTS .............................................................................................................iii
INDEX OF AUTHORITIES ........................................................................................................ v
STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 1
STATEMENT OF THE CASE...................................................................................................... 1
STATEMENT OF PROCEDURAL HISTORY............................................................................... 2
QUESTION PRESENTED .......................................................................................................... 2
QUESTION PRESENTED
DOES A NO-CONTACT PROVISION IN A COMMUNITY SUPERVISION ORDER PROHIBIT
A DEFENDANT FROM INADVERTENTLY SEEING A MINOR IN A PUBLIC PLACE, AS THE
FIRST COURT OF APPEALS HELD IN THIS CASE, OR DOES “CONTACT” REQUIRE
SOMETHING MORE, AS THE FOURTEENTH COURT OF APPEALS HAS HELD?
REASONS FOR REVIEW ........................................................................................................... 3
PRAYER ..................................................................................................................................... 5
CERTIFICATE OF SERVICE ...................................................................................................... 6
CERTIFICATE OF COMPLIANCE.............................................................................................. 6
APPENDIX
iii
INDEX OF AUTHORITIES
Cases
Brisco v. State, 2002 WL 595075 at *4 (Tex.App. ― Houston [1st Dist.] April 18, 2002,
pet ref ’d)....................................................................................................................... 5
Combest v. State, 01-13-00712-CR, 2015 WL 831994 (Tex. App. Houston [1st Dist.] Feb.
26, 2015) ....................................................................................................................... 2
Jacobellis v. Ohio, 378 U.S. 184 (1964)(Stewart, J., concurring). ........................................... 1
Pequenco v. State, 710 S.W.2d 709 (Tex. App. – Houston [1st Dist.]1986, no pet.). .......... 5
Speth v. State, 965 S.W.2d 13, 17-18 (Tex.App. – Houston [14th Dist.] 1998), rev’d on other
grounds, 6 S.W. 3d 530 (Tex. Crim. App. 1999) ......................................................... 4
Whitaker v. State, 2010 WL 2541863 at *1 (Tex. App. ― Beaumont, June 23, 2010, no
pet.) ........................................................................................................................... 2, 5
iv
STATEMENT REGARDING ORAL ARGUMENT
Is the word “contact” like the word “pornography” – do courts simply know it
when they see it?1 The vexing question of what “contact” means arises frequently in
appeals from motions to adjudicate guilt and motions to revoke probation. Only the
Fourteenth Court of Appeals, however, has attempted to enunciate a definition. The
First Court in this case made no such effort, but simply deferred to the trial court’s
finding that Appellant violated a no-contact order by merely seeing his sleeping
grandson in a hospital emergency room. The frequency with which no-contact
conditions are used to revoke community supervision makes this an important question
of state law that needs to be resolved by this Court. Oral argument would be useful to
resolve the conflict that currently exists concerning this question.
STATEMENT OF THE CASE
This petition follows the appeal of John Elsworth Combest’s adjudication of
guilt and the revocation of his community supervision. Mr. Combest had been placed
on deferred adjudication with ten years of community supervision after pleading guilty
to indecency with a child (C.R. at 82).
The motion to adjudicate in this case alleged that Mr. Combest had violated four
conditions of his community supervision. The trial court granted the State’s motion on
1
See the late Justice Potter Stewart’s famous observation from Jacobellis v. Ohio, 378 U.S. 184,
197 (1964)(Stewart, J., concurring).
1
all four grounds, and assessed punishment at 14 years in prison (C.R. at 121). Although
Mr. Combest challenged each basis for revocation on appeal, the court of appeals
addressed only one: whether or not he had violated a no-contact provision in his
community supervision order.
Conducting an abuse of discretion review, the court of appeals held that the
evidence supported the trial court’s finding by a preponderance, citing Whitaker v. State,
2010 WL 2541863 (Tex. App. ― Beaumont, June 23, 2010, no pet.). The court also held
that double jeopardy did not bar the adjudication on that alleged violation, for which
Mr. Combest previously had served a number of days in jail.
STATEMENT OF PROCEDURAL HISTORY
The First Court of Appeals handed down its opinion on February 26, 2015.
Combest v. State, 01-13-00712-CR, 2015 WL 831994 (Tex. App. Houston [1st Dist.] Feb.
26, 2015). After this Court granted a motion to extend, the petition was due on April
29, 2015. Counsel is filing a final motion to extend with this petition.
QUESTION PRESENTED
DOES A NO-CONTACT PROVISION IN A COMMUNITY SUPERVISION
ORDER PROHIBIT A DEFENDANT FROM INADVERTENTLY SEEING A
MINOR IN A PUBLIC PLACE, AS THE FIRST COURT OF APPEALS HELD IN
THIS CASE, OR DOES “CONTACT” REQUIRE SOMETHING MORE, AS THE
FOURTEENTH COURT OF APPEALS HAS HELD?
The conditions of supervision that the trial court imposed on Mr. Combest did
not define the word “contact.” Neither did the court of appeals’ opinion.
The specific condition that Mr. Combest allegedly violated said: “You are to
2
have no contact with any minor under the age of seventeen (17) beginning
11/29/2010 for any reason except as specifically permitted by the Court.” (emphasis in
original). The State alleged that he violated this condition when he entered a hospital
emergency room to meet his daughter, who had taken his grandson there for treatment
of a persistent high fever. His grandson was asleep in a chair and did not see or hear
Mr. Combest.2
REASONS FOR REVIEW
The court of appeals acknowledged that while Mr. Combest was at the hospital:
1. he never touched his grandson,
2. he did not speak to his grandson,
3. he did not communicate with his grandson, and
4. he did not make eye contact with his grandson
(Combest at p. 7). However, the court said, “Combest testified that he went to the
hospital because Eric was there and that he saw Eric there, in the emergency room,” and
this, without more, was sufficient to support the trial court’s ruling. Id. (emphasis in
original).
The court of appeals’ conclusion that mere seeing equals contact conflicts with
the definition of contact enunciated by the Fourteenth Court of Appeals, which has
2
The grandson was not the complainant in the indecency charge for which Mr. Combest was
placed on deferred adjudication, and there was no suggestion that he had ever abused the
grandson.
3
said that contact can mean “several things: the physical union of surfaces; a simple
association, whether verbal or not, with another person; or the establishment of
communication with another.” See Speth v. State, 965 S.W.2d 13, 17-18 (Tex. App. –
Houston [14th Dist.] 1998), rev’d on other grounds, 6 S.W. 3d 530 (Tex. Crim. App. 1999).
Under this definition, Mr. Combest did not violate the no-contact condition of his
community supervision.
Mr. Combest’s actions at the hospital only occupy a small part of the reporter’s
record, and the few instances where his intent is discussed in the record prove that he
went to the hospital only to assist his daughter in making medical decisions:
● Manuel Chica, Mr. Combest’s community supervision officer, testified he
only knew about the incident because Mr. Combest described it in a letter
to him. (R.R. at 24).
● Mr. Combest’s daughter, Catherine Bell, said she called her father because
he was close and was caring (R.R. at 48). She also testified that when she
was talking with her father and the hospital medical staff, they were in a
waiting room six rooms away from where her son was (R.R. at 48).
● Mr. Combest testified that he was at the hospital because his daughter had
called and asked for his assistance. He testified that he saw his grandson
twice: once while he was asleep on a chair in the emergency room and
later when a nurse took him out of the room in a wheelchair. (R.R. at 56).
The evidence established that Mr. Combest went to a public place that he was
4
not forbidden from entering. While there, he merely saw a minor, who did not see him.
The trial and appellate courts’ conclusion that this was prohibited “contact” strains the
definition of the word beyond all common sense. It equates merely seeing a child with
far more potentially dangerous conduct in other cases in which violations of no-contact
provisions occurred. See, e.g., Brisco v. State, 2002 WL 595075 at *4 (Tex. App. ― Houston
[1st Dist.] April 18, 2002, pet ref ’d)(not designated for publication)(appellant was alone
with one-year old child that he allowed to touch his erect penis); Whitaker v. State, 2010
WL 2541863 at *1 (Tex. App. ― Beaumont, June 23, 2010, no pet.) (appellant
transported his son, whom he was authorized to transport, and other children in his car
on more than one occasion).
Community supervision provisions that prohibit contact or communication
between the defendant and others exist only to further the essential objectives of a
person’s probation. Pequenco v. State, 710 S.W.2d 709 (Tex. App. – Houston [1st
Dist.]1986, no pet.). The lower courts’ application of the no-contact provision in this
case did not further any objectives of Mr. Combest’s deferred adjudication, since the
alleged violation was neither “contact” nor purposeful and intentional.
PRAYER FOR RELIEF
Appellant prays that this Court grant his petition, and upon review, reverse the
court of appeals and remand for consideration of the remaining issues.
Respectfully submitted,
5
Alexander Bunin
Chief Public Defender
Harris County Texas
/s/ Cheri Duncan
______________________________
Cheri Duncan
Assistant Public Defender
Texas Bar No. 06210500
1201 Franklin, 13th floor
Houston Texas 77002
(713) 368-0016 telephone
(713) 437-4318 e-fax
cheri.duncan@pdo.hctx.net
CERTIFICATE OF SERVICE
I certify that a copy of this brief was served electronically to the Harris County
District Attorney and the State Prosecuting Attorney on March 27, 2015.
/s/ Cheri Duncan
______________________________
Cheri Duncan
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with Rule 9.2, TEX. R. APP. PROC. It was prepared on
a computer using 14-point Garamond type. It contains 1,230 words.
/s/ Cheri Duncan
_____________________________
Cheri Duncan
6
Opinion issued February 26, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00712-CR
———————————
JOHN ELSWORTH COMBEST, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1221980
MEMORANDUM OPINION
John Elsworth Combest was charged by indictment with indecency with a
child, a felony. Combest pleaded guilty and was sentenced to 10 years’ deferred
adjudication and a $500 fine. Two years later, the State moved to adjudicate
Combest’s guilt, and Combest pleaded not true to the State’s allegations. The trial
court found the allegations true and sentenced Combest to 14 years’ confinement.
In three issues, Combest challenges the sufficiency of the evidence to prove the
State’s three allegations, contends that the trial court could not adjudicate his guilt
based on his failure to pay costs and fees because there was no bill of costs, and
contends that the trial court violated the Constitution’s double jeopardy clause by
adjudicating him guilty based on the allegation that he violated the no-contact
condition of his community supervision. We affirm.
Background
The following are the relevant conditions of Combest’s community
supervision:
• Pay the following fees . . . A $2.00 transaction fee will be charged
each time you make a payment.
o Pay a Supervision Fee at the rate of $60.00 per month for the
duration of your community supervision beginning 1/29/2011
to HCCS&CD
o Pay a Fine of $500.00 and Court Costs at the rate of $30.00
per month beginning 01/29/2011 to Harris County through
HCCS&CD. You are given credit for 0 DAYS.
• You are to have no contact with any minor under the age of
seventeen (17) beginning 11/29/2010 for any reason except as
specifically permitted by the Court.
• You may not access to the Internet through any manner or method,
beginning 11/29/2010 for any reason unless specifically ordered by
the Court. You may not view, receive, download, transmit, or possess
pornographic material on any computer. You are not to possess
pornographic software images or material on any hard drive, floppy
disk, Disk, Diskette or magnetic tape. You may only have internet
2
access at a[n] employment site. You may not have internet access
at your home until further order of the Court.
Seven months after Combest’s community supervision began, the State filed
a motion to adjudicate his guilt, alleging that he violated the no contact with a
minor condition of his community supervision. But the State requested that the
trial court dismiss the motion. The trial court granted the motion to dismiss and
noted the following on the motion: “Other: Jail therapy, Abel Eval.” On the same
day, the trial court amended the conditions of Combest’s community supervision to
order Combest to “participate in an intensive sex offender treatment program,”
submit to an “A.B.E.L. EVALUATION,” and serve 25 days in jail, with credit for
20 days.
A year and a half later, the State filed a second motion to adjudicate, along
with a later amended motion, alleging four violations of the conditions of
community supervision:
• failure to pay supervision fees, in arrears $80 as of January 23, 2013;
• failure to pay his fine and court costs, in arrears $72 as of January 23, 2013;
• knowingly using the Internet for personal reasons that were unrelated to
employment on or about November 20, 2012; and
• having contact with a minor under the age of 17 on or about May 12, 2011.
The trial court held a hearing on the State’s motion to adjudicate, at which
Combest pleaded not true to each allegation. The trial court found true each of the
State’s allegations, revoked Combest’s community supervision, adjudicated him
guilty, and sentenced him to 14 years’ confinement.
3
Sufficiency of the Evidence
A. Standard of Review
We review a trial court’s order revoking community supervision for an
abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).
The trial court abuses its discretion in issuing an order to revoke if the State fails to
meet its burden of proof. Greathouse v. State, 33 S.W.3d 455, 458 (Tex. App.—
Houston [1st Dist.] 2000, pet ref’d). We examine the evidence in the light most
favorable to the trial court’s order. Id. The trial judge is the sole trier of the facts
and determines the credibility of the witnesses and the weight to be given to their
testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980); Amado
v. State, 983 S.W.2d 330, 332 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d).
In a community supervision revocation hearing, 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); Smith v. State, 790 S.W.2d 366, 367 (Tex. App.—Houston [1st Dist.] 1990,
writ ref’d). This standard is met when the greater weight of the credible evidence
creates a reasonable belief that the defendant violated a condition of his
community supervision. Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App.
1983); Akbar v. State, 190 S.W.3d 119, 123 (Tex. App.—Houston [1st Dist.] 2005,
no pet.). When several violations are found by the trial court, we will affirm the
4
order revoking community supervision if the State proved any one violation by a
preponderance of the evidence. See Sanchez v. State, 603 S.W.2d 869, 870–71
(Tex. Crim. App. 1980); Akbar, 190 S.W.3d at 123.
B. Analysis
In his first issue, Combest contends that there is insufficient evidence to
support the findings that he violated any conditions of his community supervision
and, therefore, the trial court abused its discretion in adjudicating him guilty. In its
motion to adjudicate guilt, the State alleged that Combest “did then and there
violate the terms and conditions of Community Supervision by: Failing to comply
with Court order by having contact with Eric Bell, who is a minor under the age of
seventeen on or about May 12, 2011.” The condition provided: “You are to have
no contact with any minor under the age of seventeen (17) beginning
11/29/2010 for any reason except as specifically permitted by the Court.”
Combest testified that in 2011 he went to a hospital and saw Eric after his
daughter called Combest about Eric having been ill:
I told [my community supervision officer] about having seen my
grandson Eric at the hospital. And that [when] I went in, in fact, he
was asleep on the chair inside the emergency room. And while I and
his mother were talking about his condition, a nurse came out and got
him in a wheelchair and took him to the back. I didn’t see him for a
while. I went to talk with the nurse about his condition and when the
doctor got through, I talked to the doctor about his condition.
5
Combest also testified that he intended for the meeting at the hospital to take
place—he told his daughter “to get [Eric] to the hospital,” adding “I will meet you
there as soon as I can.”
Combest did not challenge the no-contact condition as unconstitutionally
vague at the time the condition was imposed, and he does not make this argument
on appeal. See Speth v. State, 6 S.W.3d 530, 534–35 (Tex. Crim. App. 1999) (en
banc) (defendant must complain at trial to conditions of community supervision he
finds objectionable and cannot raise complaint for first time on appeal). Rather,
Combest contends that the State failed to prove a violation of the condition because
there was no evidence that he touched, spoke to, made eye contact with, or
communicated with Eric in any manner.
Appellate review of revocation is limited to determining whether the trial
court abused its discretion, and we examine the evidence in the light most
favorable to the trial court’s findings. See Rickels, 202 S.W.3d at 763 (we review
trial court’s order revoking community supervision under abuse-of-discretion
standard); Greathouse, 33 S.W.3d at 458 (we examine evidence in light most
favorable to trial court’s order). The State meets its burden of proving by a
preponderance of evidence that Combest violated the conditions of his community
supervision if the greater weight of the credible evidence creates a reasonable
belief that Combest violated a condition of his community supervision. See
6
Jenkins, 740 S.W.2d at 437. Here, there is no evidence that Combest touched,
spoke to, made eye contact with, or communicated with Eric, but Combest admits
that he went to the hospital because Eric was there and that he saw Eric there, in
the emergency room. We conclude that the State adduced sufficient evidence to
meet its burden to prove a violation of the no-contact condition. See Whitaker v.
State, No. 09-09-00246-CR, 2010 WL 2541863, at *3 (Tex. App.—Beaumont
2010, no pet.) (mem. op., not designated for publication) (appellant violated no-
contact provision by driving children, other than his son, home because these
actions “were not inadvertent, unplanned, or happenstance; they were purposeful
and intentional”).
In support of his argument that seeing Eric at the hospital did not amount to
a violation of the no-contact condition, Combest relies on Hacker v. State, 389
S.W.3d 860 (Tex. Crim. App. 2013), in which the Court of Criminal Appeals held
that there was insufficient evidence that any prohibited conduct had occurred. But
in Hacker, the condition expressly allowed appellant to contact his wife by
telephone regarding child custody issues.1 Id. at 863. Hacker and his wife also
“had an arrangement for [Hacker] to babysit their children at his wife’s home while
1
The no-contact condition specifically provided that Hacker was not to contact his
wife “in person, in writing, by telephone, via the [I]nternet, a third party or any
other means except as specifically permitted. YOU MAY SPEAK TO HER VIA
TELEPHONE ONLY FOR THE PURPOSE OF CHILD CUSTODY ISSUES.”
Hacker, 389 S.W.3d at 863.
7
she was at work.” Id. at 863. The Court of Criminal Appeals held that although
“contact” has a broad meaning, Hacker’s “simply occupying his wife’s home when
she was not there [was] not a prohibited communication with his wife . . . .” Id. at
868.
Here, no exception in the conditions permitted Combest to visit his minor
grandson in the hospital. Accordingly, Hacker does not support Combest’s
argument. We conclude that the evidence supports the trial court’s finding by a
preponderance of the evidence that Combest violated the no-contact with minors
condition of his community supervision as the State alleged.
Double Jeopardy
In his third issue, Combest contends that the trial court violated his
constitutional right “to be free from double jeopardy” by adjudicating his guilt
based on the allegation that he violated the no-contact condition. The double
jeopardy clause of the United States Constitution protects against three abuses:
(1) a second prosecution for the same offense after acquittal; (2) a second
prosecution for the same offense after conviction; and (3) multiple punishments for
the same offense. Ex Parte Rhodes, 974 S.W.2d 735, 738 (Tex. Crim. App. 1998).
But double jeopardy protections do not apply to a revocation hearing
because it is a proceeding wherein the result is deemed to be neither a conviction
nor acquittal. State v. Nash, 817 S.W.2d 837, 840 (Tex. App.—Amarillo 1991,
8
pet. ref’d); see Ex parte Peralta, 87 S.W.3d 642, 644–46 (Tex. App.—San Antonio
2002, no pet.) (reasoning that probation revocation proceedings are not designed to
punish a criminal, but to determine whether probationer has violated conditions;
thus, double jeopardy does not apply to such proceedings). Unlike a criminal
proceeding, guilt or innocence is not at issue in a revocation hearing. Nash, 817
S.W.2d at 840. Rather, the issue is whether the defendant has committed an act
that in effect, broke the contract made with the court pursuant to the granting of
community supervision. Id. The result is not a conviction, but a finding upon
which the trial court might exercise its discretion by revoking, or continuing,
community supervision. Id.
In 2011, when the State first moved to adjudicate Combest’s guilt, the State
alleged that Combest violated the condition that Combest have no contact with a
minor when he visited his grandson in the emergency room on May 12, 2011. The
State later moved to dismiss the motion, and the trial court granted the motion. At
that time, the trial court amended the conditions of Combest’s community
supervision to include an A.B.E.L. evaluation and intensive sex offender treatment,
as well as 25 days of jail time, with credit for 20 days served. 2
2
The trial court retains authority to impose jail confinement as a condition of
community supervision “at any time during the supervision period.” Johnson v.
State, 286 S.W.3d 346, 351 (Tex. Crim. App. 2009). And the trial court “may do
so for any reason and perhaps for no reason,” unless prohibited by law. Id.; see
also TEX. CODE CRIM. PROC. ANN. art. 42.12, § 12(a) (West 2004) (conditions of
9
Combest contends that the trial court’s 2013 revocation based on the same
alleged violation of the no-contact condition violated the double jeopardy clause.
But “double jeopardy does not apply to probation-revocation hearings.” Smith v.
State, 290 S.W.3d 368, 381–82 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).
Indeed, “even if the trial court denies the State’s motion to revoke probation, the
State can file a second motion to revoke, alleging the exact same probation
violations . . . .” Id.; see also United States v. Whitney, 649 F.2d 296, 298 (5th Cir.
1981) (declining to extend double jeopardy to probation revocation proceedings
because they are not designed to punish a criminal defendant for violation of
criminal law, but rather are for determining whether probationer has violated
conditions of his probation).
Having concluded that there was sufficient evidence to support the trial
court’s finding that Combest violated the no-contact condition of his community
supervision and that double jeopardy does not apply, we overrule Combest’s first
and third issues.3 See Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012)
(single violation is sufficient to support revocation of community supervision).
community supervision may include submitting defendant in felony case to term
of confinement no longer than 180 days in county jail).
3
Because Combest’s second issue regarding the lack of a bill of costs relates only to
the allegations that he failed to pay costs and fees and we affirm based on a
violation of the no-contact condition, we need not reach this issue.
10
Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do Not Publish — TEX. R. APP. P. 47.2(b).
11