                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION

                                          No. 04-17-00780-CR

                                        Clint Harrison ELLER,
                                               Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                      From the 216th Judicial District Court, Kerr County, Texas
                                      Trial Court No. A15-100
                           Honorable N. Keith Williams, Judge Presiding

Opinion by:       Liza A. Rodriguez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Patricia O. Alvarez, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: April 10, 2019

AFFIRMED

           Clint Harrison Eller appeals the trial court’s judgment adjudicating his guilt, revoking his

community supervision, and sentencing him to eighty years’ imprisonment. We affirm the trial

court’s judgment.

                                             BACKGROUND

           Eller was charged with one count of aggravated sexual assault of a child younger than

fourteen years old by penetrating the child’s anus with his male sexual organ. See TEX. PENAL

CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B). On May 19, 2016, Eller pled guilty and received ten
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years of deferred adjudication community supervision. On October 17, 2016, the State filed a third

amended motion to adjudicate guilt and revoke community supervision alleging that Eller violated

multiple conditions of his community supervision. Eller pled “not true” to all the alleged

violations. An evidentiary hearing was held on June 30, 2017 and continued on September 21,

2017. At the conclusion of the hearing, the trial court found that Eller violated the following

conditions of his community supervision: 1

           Condition No. 1 by committing the new offenses of failure to comply with sex
           offender registration requirements in that (a) on or about July 18, 2016, he failed to
           update his job information with the Kerr County Sheriff’s Office; (b) on or about
           June 27, 2016, he failed to update his place of residence with the Kerr County
           Sheriff’s Office; (c) on or about June 24, 2016, he failed to obtain an annually
           renewable driver’s license in Kerr County; and (d) on or about June 27, 2016, he
           failed to update his place of residence with the Fredericksburg Police Department
           or the Gillespie County Sheriff’s Office;

           Condition No. 8 by failing to notify his probation officer within twenty-four hours
           of a change in his employment;

           Condition No. 9(c) by failing to pay his $30 monthly probation fee for May, June,
           and July 2016;

           Condition No. 11 by failing to file a statement of income for July 2016;

           Condition No. 12 by failing to complete any community service hours required to
           be performed at the rate of 16 hours per month; 2

           Condition No. 19 by being outside his residence at approximately 11:12 p.m. on
           August 8, 2016 in violation of his 11:00 p.m. to 6:00 a.m. curfew; and

           Condition No. 12 of the Standard Sex Offender Conditions by being within 500
           yards of Comfort Elementary School without written approval of the trial court or
           his probation officer.




1
    The trial court found that other violations alleged in the State’s third amended motion to revoke were “not true.”
2
 Despite the trial court’s finding that Eller failed to perform community service hours, the community supervision
conditions in this case did not include the performance of any community service.


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Based on these violations, the trial court adjudicated Eller guilty of the underlying offense of

aggravated sexual assault of a child, revoked his community supervision, and sentenced him to

eighty years’ imprisonment. Eller appealed.

                                              ANALYSIS

       In his first two issues on appeal, Eller asserts the evidence is insufficient to support the trial

court’s findings that he violated Condition No. 1 by committing the new offenses of failure to

comply with sex offender registration requirements and violated the other enumerated conditions

of his community supervision. In his third issue, Eller contends he received ineffective assistance

from his trial counsel with respect to the allegations that he committed the new offenses.

       Violation of Community Supervision Conditions

       In a proceeding to revoke community supervision, the State bears the burden to prove the

defendant violated a term of his community supervision by a preponderance of the evidence.

Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013); Rickels v. State, 202 S.W.3d

759, 763-64 (Tex. Crim. App. [Panel Op.] 2006). The State meets its burden when the greater

weight of the evidence creates a reasonable belief that the defendant committed the violation

alleged in the motion to revoke. Rickels, 202 S.W.3d at 764. In reviewing the sufficiency of the

evidence, we view the evidence in the light most favorable to the trial court’s finding and defer to

the trial court as the sole fact finder and judge of the witnesses’ credibility. Jones v. State, 589

S.W.2d 419, 421 (Tex. Crim. App. 1979); Torres v. State, 103 S.W.3d 623, 625 (Tex. App.—San

Antonio 2003, no pet.). Our review of an order revoking community supervision is limited to

determining whether the trial court abused its discretion. Rickels, 202 S.W.3d at 763.

       Eller argues the evidence was conflicting and therefore insufficient to establish he

committed new offenses by failing to comply with the sex offender registration requirements in

violation of Condition No. 1, as set forth above. He also asserts that the remaining violations found


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by the trial court were merely “technical” violations and did not warrant revocation. See Coffel v.

State, 242 S.W.3d 907, 909 (Tex. App.—Texarkana 2007, no pet.) (“technical” violations include

the probationer’s failure to report to the probation officer, to pay probation fees, and to perform

community service hours at the specified rate). Eller cites no legal authority to support a

distinction between violation of a condition by committing a new offense and violation of a

“technical” condition for purposes of a revocation proceeding. To the contrary, sufficient proof of

a single violation of any condition of community supervision, including a technical condition, will

support revocation. Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012); Nurridin v. State,

154 S.W.3d 920, 924 (Tex. App.—Dallas 2005, no pet.).

       Presence Within 500 Yards of a School and Curfew Violation

       Under Condition No. 12 of the Standard Sex Offender Conditions, Eller was required to

avoid being within 500 yards of “any school, day care, or other area where children reside” except

with written approval of the court or probation officer; an exception was made for a specified day

care center. Condition No. 19 of Eller’s community supervision required him to abide by an 11:00

p.m. to 6:00 a.m. curfew by being inside his residence during that time period. At the revocation

hearing, Kerrville Sheriff’s Deputy Matthew Jacobsen testified he made contact with Eller at

approximately 11:15 p.m. on August 8, 2016 at a location within 500 yards of Comfort Elementary

School. Specifically, Deputy Jacobsen found Eller sitting in his truck while parked in front of a

residence located at 618 5th Street in Comfort, Texas. Other evidence showed that Eller’s

residence was in Center Point, Texas. Eller argues on appeal that the State failed to prove that he

knew he was near a school and that he intended to violate his curfew. However, during his

testimony, Eller admitted that he was sitting in his truck in front of the residence in Comfort when

Deputy Jacobsen approached him at approximately 11:15 p.m. While Eller claimed not to be very

familiar with Comfort, he admitted knowing that the elementary school was nearby, having “seen


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it a couple of times.” Other evidence showed the child victim attended that elementary school.

Eller explained his presence outside that residence by stating he had gone there to “Anna’s house”

to “get cleaned up” because he did not have water at his house in Center Point. The trial court

found the alleged violations of both conditions to be “true.”

       Viewing the evidence contained in the record under the applicable standard of review, we

conclude the evidence shows that Eller was aware that he was located near the Comfort Elementary

School and was outside his residence after the 11:00 p.m. curfew on August 8, 2016. Therefore,

we hold the evidence is sufficient to support the trial court’s findings that Eller violated Condition

No. 12 of the Standard Sex Offender Conditions by being within 500 yards of an elementary school

and violated Condition No. 19 of his community supervision by breaking his curfew. The trial

court did not abuse its discretion in adjudicating Eller guilty and revoking his community

supervision based on either of these violations. See Garcia, 387 S.W.3d at 26. Because only one

violation is required to support a revocation of community supervision, we need not address Eller’s

arguments concerning the other violations found by the trial court. See Moore v. State, 605 S.W.2d

924, 926 (Tex. Crim. App. 1980) (“We need not address appellant’s other contentions since one

sufficient ground for revocation will support the court’s order to revoke probation.”).

       Ineffective Assistance

       Eller contends his trial counsel rendered ineffective assistance at the revocation hearing

with respect to the alleged violations of the sex offender registration requirements. Specifically,

Eller asserts counsel’s performance was deficient because (i) he “stood silent” and failed to object

when Detective James Ledford testified that a violation of the sex offender registration




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requirements constitutes a felony offense, 3 and (ii) he failed to make “the proper legal arguments”

when the trial court announced its findings that Eller committed new offenses by violating the sex

offender registration requirements.

         To prevail on a claim of ineffective assistance of counsel, the defendant bears the burden

to prove by a preponderance of the evidence that counsel’s performance was deficient and that the

deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);

Prine v. State, 537 S.W.3d 113, 116 (Tex. Crim. App. 2017). Counsel’s performance is deficient

if it falls below an objective standard of reasonableness. Strickland, 466 U.S. at 688. We apply a

strong presumption that counsel’s conduct was within the range of reasonable professional

assistance and was motivated by sound trial strategy. Prine, 537 S.W.3d at 117. To rebut this

presumption, “any allegation of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d

808, 814 (Tex. Crim. App. 1999) (citation omitted). To show prejudice, the defendant must show

a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. Strickland, 466 U.S. at 688; Garza v. State, 213 S.W.3d 338, 348 (Tex.

Crim. App. 2007). Failure to make the required showing of either deficient performance or

prejudice defeats an ineffective assistance claim. Thompson, 9 S.W.3d at 813.

         Even if trial counsel’s performance was deficient in the manner Eller asserts, he has failed

to establish prejudice under the second Strickland prong. Eller argues he was prejudiced by his

counsel’s deficient performance because it “defies logic that the trial court would have imposed

an 80-year sentence for only technical violations.” However, as the State points out, when a trial



3
 A person commits a second-degree felony if he is required to register as a sex offender every 90 days, as Eller was,
and fails to comply with any registration requirement under Chapter 62. TEX. CODE CRIM. PROC. ANN. art. 62.102(a),
(b)(3).


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court revokes community supervision the sentence imposed is based on the gravity of the

underlying offense of conviction, not the severity of the probation violation. See TEX. CODE CRIM.

PROC. ANN. art. 42A.755(a)(1) (authorizing trial court to dispose of the case “as if there had been

no community supervision”); see also Buerger v. State, 60 S.W.3d 358, 365-66 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref’d) (defendant’s fifteen-year sentence rested upon adjudication

of guilt for alleged crime, not the curfew violation that led to revocation of his deferred

adjudication community supervision). Upon finding that a defendant violated a condition of

deferred adjudication community supervision, the trial court may proceed with an adjudication of

guilt on the original charge. TEX. CODE CRIM. PROC. ANN. art. 42A.108(b). After an adjudication

of guilt, the assessment of punishment and pronouncement of sentence proceed as if the

adjudication of guilt had not been deferred. Id. art. 42A.110(a). Eller pled guilty to aggravated

sexual assault of a child younger than fourteen years of age and when his deferred adjudication

community supervision was revoked and he was adjudicated guilty, the full range of punishment

for that offense became available to the trial court. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B),

(a)(2)(B), (e); see also id. § 12.32(a) (punishment range for first degree felony is five to 99 years

or life imprisonment). The eighty-year sentence imposed on Eller falls within the applicable

punishment range and Eller does not independently challenge the sentence as excessive.

       In addition, because Eller’s ineffective assistance claim is limited to the sex offender

registration violations and the trial court found several other “technical” violations, he cannot show

that he was prejudiced by counsel’s performance, i.e., that the result of the proceeding would have

been different, because violation of any single condition is sufficient to support revocation.

Garcia, 387 S.W.3d at 26. As in Smith v. State, Eller would have to prove ineffective assistance

as to each of the trial court’s ten findings of “true” that led to his adjudication in order to obtain a

reversal. See Smith v. State, 286 S.W.3d 333, 342-43 (Tex. Crim. App. 2009).


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                                       CONCLUSION

       Accordingly, based on the foregoing reasons, we overrule Eller’s issues on appeal and

affirm the trial court’s judgment.

                                             Liza A. Rodriguez, Justice

DO NOT PUBLISH




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