      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                              ON MOTION FOR REHEARING


                                     NO. 03-09-00543-CR
                                     NO. 03-09-00544-CR



                            Andrew Richard Burke III, Appellant

                                                 v.

                                 The State of Texas, Appellee


     FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
        NO. CR21,825 & CR21,941, HONORABLE ED MAGRE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               We withdraw the opinion and judgment dated June 25, 2010, and substitute the

following opinion and judgment in their place. We deny appellant’s motion for rehearing.

               Andrew Richard Burke, III appeals from the court’s revocation of his terms of

community supervision. Burke contends that the evidence was legally insufficient to support the

revocation. He also contends that the court erred by denying him time credit for successfully

completing a substance abuse felony punishment program. We reform the judgment to give credit

for time Burke served while successfully completing a program in a substance abuse treatment

facility, and affirm the judgment as reformed.
               Burke pleaded guilty to two counts of driving while intoxicated, third offense

(or more). See Tex. Penal Code Ann. § 49.04 (West 2003), § 49.09 (West Supp. 2009). He was

sentenced to ten years in prison, which was probated, and he was placed on community supervision

(probation) for ten years. Condition 20 of his community supervision required Burke


       to serve a term of confinement and treatment in a substance abuse facility for a term
       of not less than 6 months or more than 1 year, and upon successful completion of
       the program, the defendant is required to participate in a drug or alcohol abuse
       continuum of care treatment plan as developed by the Texas Commission on Alcohol
       and Drug Abuse, abiding by all rules and regulations of said treatment plan until
       discharged by the staff of care program.


Burke’s probation officer, Michelle Posten, testified that Burke completed his term in his substance

abuse felony punishment facility (SAFPF) successfully without any disciplinary problems. She

testified that he entered that program on June 19, 2008, and was discharged on April 29, 2009. He

then went to the Abode Treatment Center near Fort Worth. Burke was discharged from the

continuum of care program for failing to abide by its rules and regulations. The court revoked his

community supervision and imposed the sentence of ten years in prison.

               We review the revocation of community supervision for an abuse of discretion.

Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006). In determining questions

regarding sufficiency of the evidence in community supervision revocation cases, the burden of proof

is by a preponderance of the evidence.       Id.       We will affirm if the greater weight of the

credible evidence creates a reasonable belief that the defendant has violated a condition of his

community supervision. Id. at 764. If the State fails to meet its burden of proof, the trial court

abuses its discretion in revoking. Cardona v. State, 665 S.W.2d 492, 494 (Tex. Crim. App. 1984).

                                                   2
               Abode’s program manager, Sylvia Wagnon, testified that the center assists substance

abuse felons with re-entering society. The clients live in the center, but may leave on passes to seek

work, perform work, attend probation meetings, or perform other necessary tasks. Clients can also

obtain recreation passes for up to 48 hours. She testified that Burke was a 60-day client who entered

the program on April 29, 2009, and would have graduated on June 28, 2009. She testified that he

completed his required six hours of weekly therapy only in the first week. The remainder of his time

his attendance was essentially excused in favor of appointments at the county hospital.

               Wagnon testified that Burke had a 48-hour pass to leave the center on the weekend

of May 30-31, 2009. She testified that, although he was eligible only for a 24-hour pass, his

counselor had approved a 48-hour pass even though it lacked supporting documentation. Burke also

had signed a 72-hour pass that had supporting documentation. Based on the 48-hour pass, he should

have returned on May 31 at 4 p.m. He returned June 1, at 4 p.m. Wagnon acknowledged that Burke

contacted his counselor to request an extension, but testified that only she (Wagnon) can approve

extensions. She said that, although his counselor should have told him of that procedure, she did

not know if that occurred. Wagnon also testified that, upon his return, Burke tested positive for

alcohol—a violation of the center’s rules. She said her logbook showed that his breath analysis

was positive for alcohol but his urinalysis was negative for other illegal drugs. She recalled that

his breath test showed a concentration of .02.        Wagnon did not conduct the test herself.

Wagnon testified that Burke told her he had just brushed his teeth and rinsed his mouth out with

Listerine. As a result of his failing the test, the center stripped Burke of his freedoms, including

leaving on any pass including a work pass. He also was moved from a single room into a room

shared with other clients.

                                                  3
                 Wagnon testified that on June 7, 2009, at 12:30 a.m., a shift supervisor reported that

she saw Burke weaving and stumbling down a hall in the center, showing signs of being drunk

including smelling of alcohol and slurring his speech. Two empty beer cans were found in another

client’s backpack that Burke was seen “fiddling in.” The next day, a search of his jacket revealed

another empty beer can of a similar type. Wagnon said that Burke denied drinking alcohol and

any responsibility for the beer. Wagnon described drunkenness and consumption of alcohol as very

serious violations of the center’s regulations. Burke, however, tested negative on breath and

urine tests.

                 Wagnon decided on June 9, 2009, to discharge him unsuccessfully. Posten, Burke’s

probation officer, confirmed that she told Burke not to leave the center, that he would be picked up

by law enforcement and returned to Milam County. He nevertheless left the center on June 9, 2009.

                 Tammy McKinney was Burke’s primary counselor at Abode. She testified that Burke

was compliant with rules, participated in counseling, and did everything required. She approved

his 48-hour pass and, after learning from Ruby Byers, the outpatient coordinator, that Burke wanted

an extension to attend to his sick mother, she approved a 12-hour extension (although the extension

granted was apparently for 24 hours). McKinney testified that she did not know the procedure

for extensions, but that Byers told her that her verbal approval was sufficient. McKinney testified

that she approved the extension because of Burke’s “wonderful” performance in the center. She

testified that he was “constantly in contact” with her during the 72-hour period. She testified that

Mr. Sayeed1 told her that Burke tested positive for alcohol. McKinney said she looked at the


        1
            McKinney did not testify regarding Mr. Sayeed’s first name.

                                                   4
test results and found that they were negative. McKinney testified that Sayeed requested an

additional test, but that Wagnon refused. She testified that Burke was searched upon his return

on June 1 and not allowed to leave during the next week. She testified that one of Burke’s new

roommates was on a relapse track after using methamphetamine while at home on leave. She

testified that the beer attributed to Burke could have belonged to one of the other roommates.

McKinney testified that she was fired on June 7, 2009, prior to coming in to work.

                Burke testified that he asked for the extension on May 31 so he could accompany

his mother to the hospital when she went to have a stent examined. Burke testified that he talked

to Byers first, who told him to contact his primary counselor. He said he called his primary

counselor to get approval, and she granted approval conditioned on getting Byers’s verbal approval.

Burke said that he saw paperwork showing that his breath test on June 1 showed negative for

alcohol—not positive. He said he requested a retest after hearing it reported as positive and, upon

being denied the retest, filed a grievance.

                Burke testified that he takes antidepressants and a strong sleeping pill at night. He

said he was told to report for testing late on June 6, which he passed, but that the sleeping pill

caused any weaving and slurring of his words. He testified that the beer cans were not his, that they

belonged to his roommates, some of whom were on relapse track.

                On June 17, 2009—eight days after leaving Abode—Burke called Posten, his

probation officer. Posten testified that she told him that a warrant was out for his arrest and that

he needed to turn himself in. She testified that Burke told her he could not turn himself in for at least

a week because he was in Atlanta, Georgia. At trial, Burke admitted that he lied to Posten about



                                                   5
being in Atlanta to stave off arrest. He said he was working and trying to get enough money to

hire an attorney. Burke was arrested on or about June 26, 2009, in Rockdale, Texas. He testified

that he had learned his lesson, had learned from the treatment, and had no intention of “messing up”

this last chance.

                The trial court concluded that the State proved that Burke violated the terms of

his community supervision as alleged, namely that he was unsuccessfully discharged from Abode

because he failed to abide by its rules and regulations.

                We find no abuse of discretion. Burke was undisputedly discharged unsuccessfully

from Abode on grounds that he failed to abide by its rules and regulations. As for the validity of the

charge that he failed to comply with Abode’s rules and regulations, the trial court was faced with

conflicting evidence. It had to make a credibility choice, and evidently chose to believe Wagnon.

We cannot say that the choice is not supported by the record. With that implicit credibility choice

made, the preponderance of the evidence supports revocation. We cannot say that the trial court

abused its discretion by revoking Burke’s term of community supervision.

                Burke next contends that the trial court erred by failing to give him credit for time

served at the SAFPF facility before he went to Abode. On rehearing, for the first time, Burke seeks

relief under Texas Code of Criminal Procedure article 42.12, section 23(b), which provides in

relevant part as follows:


        (b) No part of the time that the defendant is on community supervision shall
        be considered as any part of the time that he shall be sentenced to serve, except that
        on revocation, the judge shall credit to the defendant time served by the defendant
        as a condition of community supervision in a substance abuse treatment facility
        operated by the Texas Department of Criminal Justice under Section 493.009,

                                                  6
        Government Code, or another court-ordered residential program or facility, but only
        if the defendant successfully completes the treatment program in that facility.


Tex. Code Crim. Proc. Ann. art. 42.12, § 23(b) (West Supp. 2009).2 Condition 20 of Burke’s

community supervision, set out above, was consistent with this statute. On April 2, 2009, the

district court signed an Order Releasing from Substance Abuse Felony Punishment Facility. The

court stated in relevant part as follows:


        That the Court has been notified by the proper authorities of the Texas Department
        of Criminal Justice that the defendant is successfully completing the treatment
        program at said facility and has been given a tentative discharge date of April 29,
        2009. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED by this
        Court that the defendant, Andrew Richard Burke, III, be released from the Substance
        Abuse Felony Punishment Facility . . . and that the said defendant be released to a
        duly authorized representative of the Abode Treatment, Inc., White Settlement, Texas
        as part of the Continuum of Care program . . . .”


Posten testified without contradiction that Burke was released from the SAFPF on April 29, 2009.

Burke argues that he should be given credit for time served at the SAFPF because he successfully

completed its program. The State argues that, because Burke did not successfully complete the

continuum of care program, he should get no credit for the more than ten months of time served

at the SAFPF. The State argues that the statute can reasonably be interpreted to mean that the

continuum of care treatment is an integral part of the substance abuse treatment and that both aspects

must be successfully completed to earn the credit for time served.


        2
          Because the request for credit for time served does not challenge the conviction or the
sentence, it is not waived by failure to bring it to the court’s attention before the motion for rehearing
on appeal. See Joseph v. State, 3 S.W.3d 627, 643 (Tex. App.—Houston [14th Dist.] 1999, no pet.)
(citing Ex parte Canada, 754 S.W.2d 660, 663 (Tex. Crim. App. 1988); Ex parte Henson,
731 S.W.2d 97 (Tex. Crim. App. 1987)).

                                                    7
                We conclude that the legislature did not require completion of different programs at

more than one facility in order to earn credit. “When interpreting a statute, we look to the literal text

of the statute for its meaning, and we ordinarily give effect to that plain meaning, unless application

of the statute’s plain language would lead to absurd consequences that the Legislature could not

possibly have intended, or if the plain language is ambiguous.” Badgett v. State, 42 S.W.3d 136, 138

(Tex. Crim. App. 2001). The statute requires a judge to give credit for time served to a defendant

who successfully completes a substance abuse treatment program in “that facility”—singular. See

Tex. Code Crim. Proc. Ann. art. 42.12, § 23(b). It does not require the defendant to successfully

complete a subsequent program at a second facility.

                The court’s orders are consistent with this reading. The court ordered Burke to “serve

a term of confinement and treatment in a substance abuse facility . . . and upon successful completion

of the program, the defendant is required to participate in a drug or alcohol abuse continuum of

care treatment.” (Emphasis added.) The court plainly contemplated that the SAFPF program was

a stand-alone program that would be completed before Burke moved to a related, but separate, phase

of the treatment requirement of his probation at the continuum of care facility. The order releasing

Burke from the SAFPF states that he is “successfully completing” the treatment program at that

facility, which will lead to his release to the custody of the continuum of care program. Posten

testified without contradiction that Burke entered the SAFPF program on June 19, 2008, and

was discharged from it on April 29, 2009—consistent with the court’s discharge order. In the

Judgment Revoking Community Supervision, the trial court finds that Burke was discharged from

the continuum of care treatment program—not the substance abuse treatment facility—without



                                                   8
completing the transitional treatment program successfully. We conclude that Burke successfully

completed the treatment program at the TDCJ’s substance abuse treatment facility as ordered by the

court as a condition of community supervision, and is entitled by law to credit against his sentence

for time served there. Because of the uncontradicted evidence and record regarding the length of

Burke’s tenure at the SAFPF, we need not remand this cause.

               We reform the judgment to award Burke credit for the 314 days of time served in

the substance abuse treatment facility while successfully completing its treatment program. We

affirm the judgment as reformed.




                                              G. Alan Waldrop, Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Reformed and, as Reformed, Affirmed on Motion for Rehearing

Filed: August 31, 2010

Do Not Publish




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