Brisco, Larry v. State

Opinion issued April 18, 2002 In The Court of Appeals For The First District of Texas NO. 01-00-00762-CR LARRY BRISCO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 182nd District Court Harris County, Texas Trial Court Cause No. 698617 OPINION ON MOTION FOR REHEARING On December 13, 2002, this Court affirmed appellant Larry Brisco's conviction. Appellant filed a timely motion for rehearing and for rehearing en banc. In his motion, appellant argues that this Court should have considered the merits of his argument, contained in point of error four, that the condition of his community supervision that prohibited unsupervised conduct with any minor under the age of 17 was unclear and ambiguous, and thus unenforceable. We agree that, on appeal from an order revoking community supervision, appellant is entitled to challenge the validity of a condition of his community supervision that the trial court imposed eight months after the original conviction. See Greathouse v. State, 33 S.W.3d 455 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd). We, therefore, withdraw our December 13, 2001 opinion and issue this opinion in its place. We deny appellant's motion for rehearing and rehearing en banc. Our December 13, 2001 judgment affirming appellant's conviction remains unchanged because we again overrule point of error four. Appellant pleaded guilty to the felony offense of indecency with a child, and the trial court assessed punishment at five years in prison and a $500 fine. In accordance with the parties' agreement, the trial court probated appellant's prison sentence and placed appellant on community supervision. One of the conditions of appellant's community supervision was: "You are to have no unsupervised contact with any minor under the age of seventeen (17) beginning 11-8-96 for any reason except as specifically permitted by the Court." The State filed a motion to revoke appellant's community supervision based on a violation of the "no unsupervised contact" condition. On May 19, 2000, the trial court revoked appellant's community supervision and sentenced appellant to five years in prison. In five points of error, appellant argues the trial court erred because: (1) the trial court abused its discretion in revoking his community supervision; (2) the condition of community service he violated was unclear and ambiguous to the point he did not know what was expected of him; and (3) the trial court did not permit appellant an evidentiary hearing on his motion for new trial. We affirm. Abuse of Discretion In points of error one and two, appellant argues the evidence is legally and factually insufficient to support the trial court's finding that he violated the "no unsupervised contact" provision of his community service. Alternatively, in point of error three, appellant asserts the trial court abused its discretion when it found appellant violated the "no unsupervised contact" provision of his community service. Our review of the evidence is limited to determining whether the trial court abused its discretion in revoking appellant's community supervision. McDonald v. State, 608 S.W.2d 192, 199 (Tex. Crim. App. 1980). If the State can prove a violation of a condition of community supervision by a preponderance of the evidence, the order of revocation will be supported. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980); Greathouse v. State, 33 S.W.3d 455, 458 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd). If the State fails to meet its burden of proof, the trial court abuses its discretion in issuing the order to revoke community supervision. Greathouse, 33 S.W.3d at 458; Reid v. State, 834 S.W.2d 125, 126 (Tex. App.--Houston [1st Dist.] 2000, no pet.). In conducting this review, we are to view the evidence in the light most favorable to the trial court's order. Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979); Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). The trial court is the exclusive judge of the credibility of witnesses and the weight to be given their testimony, and the trial court determines if the allegations in the motion to revoke are sufficiently demonstrated. Galvan v. State, 846 S.W.2d 161, 162 (Tex. App.--Houston [1st Dist.] 1993, no pet.); McFarlin v. State, 661 S.W.2d 201, 203 (Tex. App.--Houston [1st Dist.] 1983, no pet.). At the revocation hearing, appellant's probation officer, Susan Brooks, testified she met with appellant every month. Every time she saw appellant, Ms. Brooks discussed with appellant the conditions of his community supervision and asked him whether he had violated any of the conditions. Ms. Brooks knew appellant had a learning disability and attempted to communicate with him on a level he could understand. Appellant appeared to understand everything Ms. Brooks said to him, and she stated it was clear to appellant he was to have no unsupervised contact with any children, regardless of their relationship to him. Ms. Brooks also testified appellant met all other conditions of his community supervision, including attending weekly sex offender treatment programs. Appellant also agreed to submit to periodic polygraph examinations. (1) On November 11, 1999, appellant voluntarily met with John Schwartz, a polygraph examiner. Mr. Schwartz testified that appellant seemed normal, rational, and able to answer the questions. Mr. Schwartz was also aware appellant had a learning disability, but stated the disability did not seem to prevent appellant from understanding their conversation. During the postexamination discussion, Mr. Schwartz asked appellant whether he had engaged in any unsupervised conduct with children under the age of 17. Appellant told Mr. Schwartz that about a month earlier (October 1999) he had been alone with his one-year-old nephew. Appellant stated he became excited when he held the child and achieved an erection. He then explained he had allowed the child to touch his erect penis. Mr. Schwartz asked appellant to write a statement that described the event, and appellant did so. Appellant's mother, Lois Brisco, testified on his behalf. Appellant lives with her and his older brother, Sterling. She explained her son had been disabled since he was hit by a car when he was five years old. Mrs. Brisco denied her son had unsupervised contact with any children in October 1999. However, she admitted her grandson brought his son to their house during that period; she was at the store, but she claimed her other son was present at the time. She testified someone is almost always with appellant and that he is closely watched because she fears he cannot care for himself and becomes depressed. Mrs. Brisco also testified appellant tries to please everyone. Mrs. Brisco admitted appellant can read and write well and that he went to school until twelfth grade. Mrs. Brisco insisted appellant does not fantasize about children. Tyrone Davis, Mrs. Brisco's grandson, testified he took his son to Mrs. Brisco's house in October 1999. Appellant and appellant's brother, Sterling, were both present. Mr. Davis testified appellant saw the child, but did not pick him up or spend any time alone with him. Sterling Brisco testified he lives with his mother and appellant. He also stated Tyrone visited the house with his son in October 1999 on two occasions, but appellant did not pick up the child. Mr. Brisco testified no one left appellant alone in the room with the child and that he paid attention to appellant to make sure he did not get into trouble. He also testified appellant is very cooperative and eager to please. Appellant testified he recalled taking the polygraph exam, but did not know why he did so, other than his probation officer told him to. He admitted he wrote and signed the statement (which was admitted into evidence) about the incident with his nephew, but claimed Mr. Schwartz "pressured him." However, appellant was unable to explain how Mr. Schwartz had pressured him. He denied knowing anything about the contents of the statement and said he did not tell Mr. Schwartz he touched his nephew. He also denied telling Mr. Schwartz he had fantasies about young boys, and claimed he does not have those fantasies. Appellant did not know why he wrote the untrue information. In fact, he claimed he did not remember his conversations with Mr. Schwartz. Appellant testified he remembered Tyrone Davis coming to his house in October 1999, and conceded he was left alone with the child. He also admitted he knew the conditions of his community supervision prevented him from having unsupervised contact with children. Even though he continued to deny he touched the child, appellant admitted he told Mr. Schwartz about his nephew. Appellant testified he can read and write well, and could understand the prosecutor's questions. However, he denied being able to answer the questions or understanding the court proceedings. Finally, appellant testified he did not understand his written statement would put him in trouble until he was arrested. Appellant's written statement, his testimony at the revocation hearing, and the testimony of Ms. Brooks and Mr. Schwartz are sufficient to prove by a preponderance of the evidence that appellant violated a condition of his community supervision by having unsupervised contact with a child under the age of 17. As the sole judge of the credibility of the witnesses, the trial court was entitled to disbelieve the witnesses who testified they did not leave the child alone with appellant. Galvan, 846 S.W.2d at 162; McFarlin, 661 S.W.2d at 203. Appellant argues that, viewing the evidence in the light most favorable to the trial court's ruling, there was no evidence that the trial court did not "specifically [permit]" appellant's contact with his nephew. We disagree. There is nothing in this record, however, that indicates appellant ever sought permission from the trial court to have contact with his nephew or any other minor under the age of 17. Likewise, nothing in this record indicates the trial court considered or granted such a request. Further, the record does not establish that appellant thought the trial court had granted him permission to have unsupervised conduct with his nephew. Because the evidence shows the State proved by a preponderance of the evidence appellant violated the "no unsupervised contact" provision, the trial court did not abuse its discretion in revoking appellant's community supervision. We overrule points of error one through three. Validity of Condition of Community Supervision In point of error four, appellant argues the "no unsupervised contact" provision of his community supervision was invalid because it was unclear, nonexplicit, and ambiguous to the point he did not know what was expected of him. (2) The trial court modified appellant's conditions of community supervision to include this provision approximately eight months after appellant was placed on community supervision. A trial court has broad discretion in imposing conditions of community supervision. Greathouse, 33 S.W.3d at 459. However, the conditions must be reasonable and must be designed to "protect or restore the community, protect or restore the victim, or punish, rehabilitate or reform the defendant." See Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a) (Vernon 1979 & Supp. 2002); Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999). Furthermore, conditions of community supervision must be "clear, explicit, and unambiguous so that the probationer understands what is expected of him." Greathouse, 33 S.W.3d at 459; Todd v. State, 911 S.W.2d 807, 817 (Tex. App.--El Paso 1995, no pet.). The probationer must know with certainty what he is being asked to do. Greathouse, 33 S.W.3d at 459; see Curtis v. State, 548 S.W.2d 57, 58 (Tex. Crim. App . 1977). Appellant argues the words "unsupervised" and "contact" individually, and the collective term "unsupervised contact," render the "no unsupervised contact" condition impermissibly vague and ambiguous. Specifically, appellant argues he did not have notice of what contact was prohibited or what was expected of him. We hold that the "no unsupervised contact" provision is clear and unambiguous. Because of the nature of the underlying offense, it was obviously the trial court's intention to prohibit appellant from having any contact whatsoever, not just sexual contact, with a person under the age of 17 unless someone else was present. Further, there is no evidence in this record that appellant did not know what the condition of community supervision meant or that he thought the conduct on which the revocation order was based was actually allowed under the conditions of his community supervision. We overrule point of error four. Hearing on Motion for New Trial In point of error five, appellant argues the trial court erred when it refused to hold a hearing on his motion for new trial and, instead, allowed the motion to be overruled by operation of law. Specifically, appellant argues that because his motion alleged facts not in the record related to the "trial court's imposition of the accused's community supervision," the trial court was obligated to hold a hearing to allow him to create a record. We disagree. After the trial court revoked appellant's community supervision, appellant filed a motion for new trial that dealt solely with whether appellant was competent to enter his plea in the first place. Specifically, he asserts he "should have been allowed to present evidence that he neither voluntarily nor knowingly entered into a plea of guilty" and that he should have "been allowed to present evidence that he did not understand his plea papers in spite of having signed them." None of the argument contained in the motion for new trial related to the propriety of the revocation itself. A defendant placed on community supervision may raise issues relating to the conviction only in appeals taken when community supervision is originally imposed. Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999); Satterwhite, 36 S.W.3d 145,149 (Tex. App.--Houston [1st Dist.] 2000, no pet.). To the degree an appeal of the revocation of defendant's community supervision relates to the original cause in which the defendant received community supervision, the court of appeals has no jurisdiction to consider the defendant's complaints. Manuel, 994 S.W.2d at 662; Satterwhite, 36 S.W.3d at 149. Here, appellant neither filed a motion for new trial nor appealed his original conviction. The trial court therefore lost jurisdiction to hear his complaint regarding the voluntariness of his guilty plea 30 days after he was placed on community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 23(b) (Vernon Supp. 2002) (right to appeal conviction and punishment accrues when defendant is placed on community supervision); Tex. R. App. P. 26.2(a)(1); Manuel, 994 S.W.2d at 660; Satterwhite, 36 S.W.3d at 149. Because appellant was precluded from challenging his original conviction at the revocation stage, the trial court did not err in refusing to consider appellant's motion for new trial based on his argument that he was incompetent to enter his plea. We overrule point of error five. Conclusion We affirm the trial court's judgment. Frank C. Price (3) Justice Panel consists of Justices Mirabal, Nuchia, and Price. Do not publish. Tex. R. App. P. 47.4. 1. Ms. Brooks testified the probation department uses polygraph examinations as a tool to monitor sex offenders. 2. Appellant does not argue he was unaware of this specific prohibition or that he did not receive adequate admonishments regarding the terms of his community supervision generally. 3. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.