                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-19-00295-CR

TERRY LANCE MCELYEA,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 249th District Court
                             Johnson County, Texas
                         Trial Court No. DC-F201800865


                          MEMORANDUM OPINION

      Terry Lance McElyea pled guilty to the offense of driving while intoxicated, a

third-degree felony. See TEX. PENAL CODE ANN. §§ 49.04; 49.09(b)(2). After a hearing on

punishment, the trial court sentenced McElyea to 10 years in prison. The sentence was

suspended, and McElyea was placed on community supervision for 10 years. As a

condition of community supervision, McElyea was required to successfully complete a

substance abuse felony punishment facility (SAFPF) program. Because the trial court did
not abuse its discretion in imposing the SAFPF condition, the trial court’s judgment is

affirmed.

BACKGROUND

       While out on bail for one third-degree-felony DWI offense, committed in March of

2018, McElyea committed another DWI offense when he caused a car accident and his

blood alcohol concentration was 0.304. This offense occurred in July of 2018 and is the

subject of this appeal. In one issue, McElyea contends the trial court abused its discretion

in requiring the completion of a SAFPF program as a condition of community supervision

because, McElyea contends, there was no evidence to support an implied finding that he

was a suitable candidate for that program.

CONDITIONS OF COMMUNITY SUPERVISION

       The trial court may impose any reasonable condition of community supervision

that is not duplicative of another condition and that is designed to protect or restore the

community, protect or restore the victim, or punish, rehabilitate, or reform the defendant.

TEX. CODE CRIM. PROC. ANN. art. 42A.301. The trial court may also require as a condition

of community supervision that the defendant serve a term of confinement and treatment

in a substance abuse felony punishment facility (SAFPF) if the court makes an affirmative

finding that drug or alcohol abuse significantly contributed to the commission of the

offense and the defendant is a suitable candidate for treatment. Id. art. 42A.303(a), (c)(2).

When, as in this case, the trial court fails to explicitly make affirmative findings, it is

presumed that the court made the necessary findings to support its decision. Ice v. State,

914 S.W.2d 694, 695 (Tex. App.—Fort Worth 1996, no pet.). Such implied findings, if

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supported in the record by any facts or any theory, require us to sustain the trial court’s

decision. Id. at 696.

STANDARD OF REVIEW

       A trial court's decision to grant community supervision is "wholly discretionary,"

and the trial court has broad discretion to determine the conditions of community

supervision to be imposed. Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999). Thus,

we review the imposition of a condition of community supervision, such as SAFPF, for

an abuse of discretion. See Briseno v. State, 293 S.W.3d 644, 647 (Tex. App.—San Antonio

2009, no pet.); LeBlanc v. State, 908 S.W.2d 573, 574 (Tex. App.—Fort Worth 1995, no pet.).

ARGUMENTS AND EVIDENCE

       McElyea asserts that he was not a suitable candidate for SAFPF because: 1) he

completed a 30-day inpatient treatment program; 2) he regularly attended a local

Alcoholics Anonymous program and had been sober at the time of the punishment

hearing for 13 months; 3) his therapist and treatment counselor each testified that he did

not need further inpatient treatment and that it could be detrimental to him if he attended

further inpatient treatment; 4) his probation officer did not specifically recommend

SAFPF as a preferred long-term inpatient treatment program; and 5) after being

sentenced at the same time to six years in prison for the March 2018 offense, SAFPF for

the July 2018 offense was irrelevant.

       However, there was also testimony presented that would support an implied

finding that McElyea was a suitable candidate for SAFPF. During the sentencing hearing,

McElyea admitted that in the year or two prior to his DWI arrest in March of 2018, he had

McElyea v. State                                                                     Page 3
driven after drinking “quite a bit…more than 25 times.” At the time of McElyea’s DWI

arrest in July 2018, he described himself as “an alcoholic out of control” and admitted that

he “could not stop drinking.” In the March offense, McElyea had a blood-alcohol-

concentration of 0.130 and drove with other persons in his vehicle. McElyea’s blood-

alcohol-concentration in the July offense, committed only four months later, was 0.304,

and he collided with another vehicle causing the driver of the other vehicle to suffer a

concussion. The record also reflects that McElyea repeatedly violated his bail conditions

for the March offense by continuing to test positive for alcohol and by skipping required

tests for alcohol.

       Both McElyea’s therapist and treatment counselor testified that the relapse rate is

60% even for persons who participate in inpatient treatment. In reference to McElyea’s

year of abstinence, the therapist testified that “a year is not a whole long time.” Although

McElyea’s probation officer did not specifically recommend SAFPF (she left that to the

decision of the trial court), she did recommend that McElyea complete a long-term,

inpatient treatment program.       The probation officer testified that she based her

recommendation on her pretrial investigation which included (1) the SASSI-4 substance

abuse screen for McElyea which indicated that he had a “high probability of having a

substance-abuse disorder” and (2) McElyea’s criminal history. No long-term, inpatient

treatment program other than SAFPF was offered for the trial court’s consideration.

APPLICATION AND CONCLUSION

       After reviewing the entire record, and for the reasons stated above, we find the

trial court did not abuse its discretion in making the implied finding that McElyea was a

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suitable candidate for SAFPF and including the program in McElyea’s conditions of

supervision.

       McElyea’s sole issue on appeal is overruled, and the trial court’s judgment is

affirmed.


                                       TOM GRAY
                                       Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed March 23, 2020
Do not publish
[CR25]




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