                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                NO. 2-09-259-CR


W ILLIAM LUTHER W ITKOVSKY                                           APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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      FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                     OPINION ON STATE’S PETITION
                     FOR DISCRETIONARY REVIEW

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      Pursuant to rule of appellate procedure 50, we have reconsidered our

previous opinion upon reviewing the State’s petition for discretionary review. See

Tex. R. App. P. 50. We withdraw our April 22, 2010 opinion and judgment, and we

substitute the following.

                                 I. INTRODUCTION

      Appellant W illiam Luther W itkovsky appeals from a judgment revoking his

community supervision. In four issues, W itkovsky argues (1) that the trial court
abused its discretion by revoking his community supervision because he completed

a sex offender treatment program, (2) that a term used in the condition of his

community supervision requiring that he attend and participate in a sex offender

treatment program is so vague as to render the condition unenforceable, (3) that the

trial court abused its discretion by revoking his community supervision because a

second sex offender treatment program that he participated in was not administered

in accordance with applicable guidelines, and (4) that the condition of his community

supervision requiring that he attend and participate in a sex offender treatment

program violates part of the code of criminal procedure.        W e will reverse and

remand.

                    II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      In February 2003, W itkovsky pleaded guilty to the offense of injury to a child.

The trial court sentenced him to ten years’ confinement, suspended imposition of the

sentence, and placed him on community supervision for ten years. One of the

conditions of W itkovsky’s community supervision required of him as follows:

      2.     Submit to evaluation for sex offenders as directed by the
             supervision officer.      Attend and participate fully in and
             successfully complete psychological counseling/treatment
             sessions (including aftercare) for sex offenders with an individual
             or organization which provides sex offender treatment or
             counseling as specified by or approved by the judge or the
             supervision officer. Assume responsibility for your offense. Pay
             all costs of evaluation/counseling/ treatment. Treatment must be
             completed within three years of its initiation.




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      In September 2008, the State filed a petition to revoke W itkovsky’s community

supervision, alleging that he had violated the terms and conditions of his community

supervision for being “discharged unsuccessfully from Michael Strain and Associates

Sex Offender Treatment, due to his poor progress on treatment plan goals and for

his failure to be honest about and take responsibility for his sexual offense.” The

State did not allege a violation of any other condition of community supervision.

      At the hearing on the State’s petition, DeAnn Sheid-Cross, a supervisor with

the Tarrant County Community Supervision and Corrections Department, testified

that she had attended a “chaperone approval meeting” in February 2007 with

W itkovsky, W itkovsky’s wife, and Yolanda Slawson, W itkovsky’s assigned

community supervision officer. At the time of the meeting, W itkovsky had completed

sex offender counseling with Jeff Clark at “Towards Healing” and was attending the

“Aftercare” part of Clark’s program.    Cross testified that her conversation with

W itkovsky at the February 2007 meeting caused her “major concern” because he

had denied committing the offense for which he was on probation and could not give

examples of the homework assignments that he had completed as part of his

counseling. Cross opined that W itkovsky had “regressed” in regard to assuming

responsibility for the offense that he had committed and in regard to the things that

he had learned at treatment. She concluded that he needed additional counseling

and recommended that he be placed in a different program to begin counseling “all

over again.”


                                         3
      Slawson testified that she was W itkovsky’s primary community supervision

officer from June 2002 to June 2007; that she attended the February 2007 meeting

with W itkovsky, his wife, and Cross; and that W itkovsky’s comments at the meeting

also caused her concern. Slawson opined that W itkovsky had not been successfully

treated in Clark’s program, and she agreed to send W itkovsky to counseling with

Michael Strain & Associates.

      Michael Strain, an approved sex offender treatment provider, testified that

Slawson had referred W itkovsky to him for sex offender counseling; that W itkovsky

needed to work on accepting responsibility for his offense, criminal thinking errors,

and child avoidance; and that Strain had ultimately discharged W itkovsky from

counseling after unsuccessfully treating him for one and one-half years because

W itkovsky had categorically denied ever inappropriately touching his granddaughter.

      Jaye Crowder, a forensic psychiatrist, testified that W itkovsky was not treated

in a sex offender treatment program as mandated by the guidelines set forth by the

Texas Department of State Health Services, Council on Sex Offender Treatment.

Stephen Finstein, a licensed clinical social worker, marriage family therapist, and sex

offender treatment provider, testified that Witkovsky fully completed the requirements

of his sex offender treatment. W itkovsky testified that Strain had asked him to admit

certain things about his offense that he could not remember or that were not true,

and W itkovsky opined that he had successfully completed Clark’s sex offender

program.


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      The trial court found that W itkovsky had violated his community supervision

as alleged in the State’s revocation petition, and it sentenced him to ten years’

confinement.

                            III. S TATE’S M OTION TO S TRIKE

      The State filed a motion to strike two exhibits contained in the appendix to

W itkovsky’s brief. It argues that the exhibits should be struck because they are not

part of the appellate record in this case. Exhibit “1” is the affidavit of Michael E.

Harssema dated December 3, 2009, and Exhibit “2” is the affidavit of Jaye Crowder

dated December 3, 2009. Neither exhibit is part of the appellate record in this case.

Therefore, we grant the State’s motion to strike the two exhibits contained in the

appendix to W itkovsky’s brief. See Tex. R. App. P. 34.1 (“The appellate record

consists of the clerk’s record and, if necessary to the appeal, the reporter’s record.”);

Rasberry v. State, 535 S.W .2d 871, 873 (Tex. Crim. App. 1976) (reasoning that

documents attached to pro se brief could not be considered on appeal because they

were not part of the record); Grimes v. State, 135 S.W .3d 803, 816 (Tex.

App.—Houston [1st Dist.] 2004, no pet.) (stating that appellate court cannot consider

an item that is not part of the record on appeal).

                              IV. S TANDARD OF R EVIEW

      W e review an order revoking community supervision under an abuse of

discretion standard. Rickels v. State, 202 S.W .3d 759, 763 (Tex. Crim. App. 2006);

Cardona v. State, 665 S.W .2d 492, 493 (Tex. Crim. App. 1984); Cherry v. State, 215


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S.W .3d 917, 919 (Tex. App.—Fort W orth 2007, pet. ref’d).              In a revocation

proceeding, 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); Cherry, 215 S.W .3d at 919.

The trial court is the sole judge of the credibility of the witnesses and the weight to

be given their testimony, and we review the evidence in the light most favorable to

the trial court’s ruling. Cardona, 665 S.W .2d at 493; Garrett v. State, 619 S.W .2d

172, 174 (Tex. Crim. App. [Panel Op.] 1981); Cherry, 215 S.W .3d at 919. If the

State fails to meet its burden of proof, the trial court abuses its discretion in revoking

the community supervision. Cardona, 665 S.W .2d at 493–94.

            V. M ODIFICATION OF W ITKOVSKY’S C OMMUNITY S UPERVISION

      In his first issue, W itkovsky argues that the trial court abused its discretion by

revoking his community supervision on the basis of his failure to successfully

complete Strain’s sex offender treatment program. He contends that he had already

successfully completed Clark’s sex offender treatment program and that his

conditions of community supervision were never properly modified to require him to

attend a second sex offender treatment program, as required by code of criminal

procedure article 42.12, sections 10(d) and 10(e).

      Code of criminal procedure article 42.12, section 10(a) provides that “[o]nly the

court in which the defendant was tried may . . . impose conditions” of community

supervision. Tex. Code Crim. Proc. Ann. art. 42.12, § 10(a) (Vernon Supp. 2009);


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see DeGay v. State, 741 S.W .2d 445, 449 (Tex. Crim. App. 1987). And “[e]xcept as

provided by Subsection (d) of [section 10], only the judge may alter conditions of

community supervision.” Tex. Code Crim. Proc. Ann. art. 42.12, § 10(a) (emphasis

added); see also id. art. 42.12, § 11(a) (“The judge of the court having jurisdiction of

the case shall determine the conditions of community supervision and may . . . alter

or modify the conditions.”).      Subsection (d)’s exception to subsection (a)’s

requirement that only a judge may alter conditions of community supervision

provides, “A judge that places a defendant on community supervision may authorize

the supervision officer supervising the defendant . . . to modify the conditions of

community supervision for the limited purpose of transferring the defendant to

different programs within the community supervision continuum of programs and

sanctions.   Id. art. 42.12, § 10(d) (emphasis added).        Thus, the exception in

subsection (d) to the general rule that only a judge may alter a defendant’s

conditions of community supervision permits a supervision officer to modify a

defendant’s conditions of community supervision (1) when authorized by the trial

court and (2) for the limited purpose of transferring the defendant to different

programs within the community supervision continuum of programs and sanctions.

Id.

      Subsection (e) of section 10 explains the procedure that a supervision officer

must follow if, pursuant to subsection (d), he or she has been authorized by the trial

court to modify a defendant’s conditions of community supervision. It provides,


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      If a supervision officer . . . modifies the conditions of community
      supervision, the officer . . . shall deliver a copy of the modified
      conditions to the defendant, shall file a copy of the modified conditions
      with the sentencing court, and shall note the date of delivery of the copy
      in the defendant’s file. If the defendant agrees to the modification in
      writing, the officer . . . shall file a copy of the modified conditions with
      the district clerk and the conditions shall be enforced as modified. If the
      defendant does not agree to the modification in writing, the supervision
      officer . . . shall refer the case to the judge of the court for modification
      in the manner provided by Section 22 of this article.

Id. art. 42.12, § 10(e).

      In this case, one of W itkovsky’s conditions of community supervision required

that he attend and successfully complete a sex offender treatment program,

including aftercare, as specified by or approved by the judge or his community

supervision officer. The evidence introduced at the hearing on the State’s petition

to revoke showed that W itkovsky had completed Clark’s counseling program and

that he was participating in Clark’s Aftercare program at the time of the “chaperone

approval meeting” with Slawson and Cross in February 2007. 1 After the “chaperone

approval meeting,” Slawson—not Clark—transferred W itkovsky to Strain’s sex

offender treatment program because she and Cross opined that W itkovsky had



      1
         Both Cross and Slawson testified that W itkovsky was in Aftercare at the
time of the “chaperone approval meeting” on February 8, 2007. Their testimony is
consistent with several letters that Clark sent to Slawson. The trial court admitted
a July 11, 2006 letter from Clark to Slawson stating that “W itkovsky has successfully
completed his treatment plan” and that he “is now being transferred to Aftercare.”
The trial court admitted another letter dated October 11, 2006, from Clark to Slawson
updating Slawson on W itkovsky’s attendance in Aftercare, stating that W itkovsky “is
now only required to attend Aftercare once per month” and that he “will attend
Aftercare on the third W ednesday of every month at 8 p.m.”

                                           8
regressed in regard to assuming responsibility for the offense that he had committed

and in regard to the things that he had learned at treatment. The State concedes

that Slawson’s transfer of W itkovsky from Clark’s sex offender treatment program

to Strain’s sex offender treatment program constituted a transfer of “the defendant

to [a] different program[] within the community supervision continuum of programs,”

as contemplated by article 42.12, section 10(d). See id. art. 42.12, § 10(d). Indeed,

the State argues in its brief that W itkovsky’s “probation officer ‘transferred’ him from

one sex offender treatment program (Clark’s) to another (Strain’s) within the

continuum of such sex offender treatment programs offered through Tarrant

County’s Community Supervision and Corrections Department.” [Emphasis added.]

      Although it is undisputed that Slawson performed a section 10(d) transfer of

W itkovsky from one sex offender treatment program to another, thus modifying his

community supervision, there is no evidence that the trial judge had authorized

Slawson to make such a transfer or modification, as expressly required by section

10(d). See id. (stating that a judge “may authorize” a supervision officer to modify

defendant’s condition of community supervision).         The condition of community

supervision requiring that W itkovsky attend and participate in a sex offender

treatment program permits Slawson to only specify or approve the individual or

organization that will conduct Witkovsky’s treatment, which Slawson had obviously

done because Witkovsky had completed counseling with Clark and was participating

in Aftercare when Slawson transferred him to Strain’s program.               Unlike the


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community supervision order in Mayfield v State, 167 S.W .3d 585, 586 (Tex.

App.—Beaumont 2005, no pet.)—in which the trial court had specifically included

language providing that it “authorizes [Mayfield’s] community supervision officer to

modify conditions of community supervision and to transfer [Mayfield] to any

community supervision program or residential facility deemed appropriate”—the

order and its supplements and amendments thereto in this case setting the terms

and conditions of Witkovsky’s community supervision contain no such modification

authorization. In the absence of any evidence demonstrating that the trial court had

authorized Slawson to modify Witkovsky’s community supervision by transferring him

“to different programs within the community supervision continuum of programs and

sanctions,” section 10(a)’s default rule that “only the judge may alter conditions of

community supervision” controls. 2 See Tex. Code Crim. Proc. Ann. art. 42.12,

§ 10(a).

      Further, even if the trial court had authorized Slawson to perform a section

10(d) transfer of W itkovsky from one sex offender treatment program to another, and

thus implemented the exception to section 10(a)’s requirement that only a judge may



      2
         Even if the trial court had authorized Slawson to transfer W itkovsky to a
different program within the community supervision continuum of programs pursuant
to section 10(d), which it did not, we question whether Slawson’s action of assigning
W itkovsky to Strain’s sex offender treatment program to begin counseling “all over
again” (as characterized by Cross) instead of assigning W itkovsky to an Aftercare
program constituted a “transfer” as contemplated by section 10(d) because
W itkovsky had already completed sex offender counseling with Clark and was
participating in Clark’s Aftercare program.

                                         10
alter conditions of community supervision, there is no evidence that Slawson

additionally complied with the requirements of section 10(e) by delivering a copy of

the modified condition to W itkovsky; filing a copy of the modified condition with the

sentencing court; noting the date of delivery of the copy in W itkovsky’s file; and, if

necessary, referring the case to the judge for modification in the manner provided

by code of criminal procedure article 42.12, section 22. See id. art. 42.12, § 10(e)

(providing that a supervision officer “shall” perform each of these actions). In other

words, despite having a condition of his community supervision modified, there is

nothing in the record to indicate that W itkovsky was afforded the opportunity to

express in writing his agreement or disagreement with the modification and, if he

disagreed, to have the modification referred to the judge for modification as provided

by section 22. See id.; see also Taylor v. State, 592 S.W .2d 614, 616, n.1 (Tex.

Crim. App. 1980) (“W e pause to note our disapproval of an oral modification of the

terms of probation.”).

      W e note that the record shows that W itkovsky participated in Strain’s sex

offender treatment program for one and one-half years before being discharged from

the program. In Brown v. State, the court of criminal appeals held that the trial court

abused its discretion by revoking Brown’s probation on the basis of his failure to

comply with the condition of probation that he “[r]eport to the probation officer [a]s

directed” because “[s]uch requirement standing alone constitutes an improper

delegation of the setting of terms of probation to the probation officer.” 508 S.W .2d


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366, 368 (Tex. Crim. App. 1974); see also Parsons v. State, 513 S.W .2d 554, 555

(Tex. Crim. App. 1974) (holding that the condition in appellant’s probation order that

he report to the probation officer “as directed” was unenforceable as an improper

delegation of authority to the probation officer). The court observed, however,

      The exercise of improperly delegated authority by a probation officer
      cannot make the delegation effective, although on different facts, where
      parties over a period of time have accepted such a delegation of
      authority as shown by the course of conduct between them, a
      probationer may be estopped from objecting to being held to the duty
      assumed.

Brown, 508 S.W .2d at 368 (emphasis added). In this case, although W itkovsky

participated in Strain’s sex offender treatment program for one and one-half years,

we cannot conclude that the estoppel consideration detailed in Brown applies to

preclude W itkovsky from challenging the validity of the modified condition for which

his community supervision was revoked because, unlike the condition in Brown, the

modified condition on which the trial court revoked W itkovsky’s community

supervision in this case—failing to complete a sex offender treatment program due

to an unsuccessful discharge from Strain’s program—does not constitute or involve

an improper delegation of the trial court’s authority. Rather, as explained above, the

modified condition in this case involves no delegation of the trial court’s authority at

all—whether improper or otherwise. In contravention of article 42.12, section 10(a)’s

requirement that only the judge may alter conditions of community supervision,

Slawson unilaterally modified W itkovsky’s condition of community supervision



                                          12
requiring that he attend and successfully complete a sex offender treatment program

when she transferred him from Clark’s sex offender treatment program to Strain’s

sex offender treatment program.

      W here there is no showing that the terms or conditions of community

supervision were modified, a person’s community supervision cannot be revoked for

failure to meet the modified terms. See Kelly v. State, 627 S.W .2d 826, 827 (Tex.

App.—Tyler 1982, no pet.) (citing Ivy v. State, 545 S.W .2d 827 (Tex. Crim. App.

1977)). Here, W itkovsky’s community supervision was modified, but it was modified

unilaterally, without court authorization. Accordingly, because Slawson was not

authorized to modify W itkovsky’s community supervision by transferring him from

Clark’s sex offender treatment program to Strain’s sex offender treatment program,

we hold that the trial court abused its discretion by revoking W itkovsky’s community

supervision on the basis of his failure to successfully complete Strain’s sex offender

treatment program. See Tex. Code Crim. Proc. Ann. art. 42.12, § 10(a), (d); Rickels,

202 S.W .3d at 763; Cobb, 851 S.W .2d at 873. W e sustain Witkovsky’s first issue.

Having sustained W itkovsky’s first issue, we need not address his second, third, and

fourth issues. See Tex. R. App. P. 47.1.

                     VI. P ETITION FOR D ISCRETIONARY R EVIEW

      The State has filed a petition for discretionary review. It does not challenge

any of the analysis above regarding Slawson’s unilateral modification of W itkovsky’s

community supervision.      Instead, it argues that this court failed to consider


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“alternative reasons” for concluding that the trial court did not abuse its discretion by

revoking W itkovsky’s community supervision.          The lone “alternative reason”

identified by the State for concluding that the trial court did not abuse its discretion

by revoking community supervision concerns the requirement contained in condition

number two of W itkovsky’s community supervision (set out in full in section II above)

providing that he “[a]ssume responsibility for [his] offense.” Assuming, as the State

contends, that this part of condition number two is an independent ground or

condition on which the trial court could have revoked W itkovsky’s community

supervision, the unchallenged analysis above regarding Slawson’s unilateral

modification of W itkovsky’s community supervision forecloses any possibility that the

trial court could have based its decision to revoke W itkovsky’s community

supervision on his failure to assume responsibility for his offense. This is because

the only grounds alleged by the State in support of its petition to revoke complain of

W itkovsky’s poor progress on treatment plan goals and his failure to be honest about

and take responsibility for his offense in regard to his unsuccessful discharge from

Strain’s sex offender treatment program. 3 The State accordingly expressly limited

      3
      Specifically, the State alleged that W itkovsky had violated condition
number two of his community supervision only as follows:

      [O]n or about August 5, 2008 the defendant was discharged
      unsuccessfully from Michael Strain and Associates Sex Offender
      Treatment, due to his poor progress on treatment plan goals and for his
      failure to be honest about and take responsibility for his sexual offense.
      [Emphasis added.]


                                           14
the grounds on which it sought to have W itkovsky’s community supervision revoked

to only those relating to and underlying his unsuccessful discharge from Strain’s sex

offender treatment program. Having determined above that Slawson was never

even authorized to modify W itkovsky’s community supervision by transferring him

from Clark’s sex offender treatment program to Strain’s sex offender treatment

program, it makes no difference in this appeal whether or not W itkovsky assumed

responsibility for his offense while participating in Strain’s sex offender treatment

program. Accordingly, there is no “alternative reason” alleged in the State’s petition

to revoke on which the trial court could have properly revoked W itkovsky’s

community supervision.

                                  VII. C ONCLUSION

      Having sustained W itkovsky’s first issue, we reverse the trial court’s judgment

revoking W itkovsky’s community supervision and remand the cause to the trial court.




                                               BILL MEIER
                                               JUSTICE

PANEL: W ALKER, MCCOY, and MEIER, JJ.

PUBLISH

DELIVERED: June 24, 2010


       W e further note that although the State’s petition to revoke alleges
W itkovsky’s “failure to . . . take responsibility for his sexual offense,” the offense
W itkovsky pleaded guilty to was injury to a child.

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