                                                                         PD-0449-15
                                                       COURT OF CRIMINAL APPEALS
                      PD-0449-15                                        AUSTIN, TEXAS
                                                       Transmitted 5/18/2015 8:22:28 AM
                                                         Accepted 5/19/2015 3:51:59 PM
                                                                         ABEL ACOSTA
                                                                                 CLERK
                       NO. _____________ PD

                             IN THE

                       COURT OF CRIMINAL

                            APPEALS

                        OF TEXAS
       ___________________________________________

                     TIMOTHY WADE BESSARD
                           Petitioner,

                               VS.

                  THE STATE OF TEXAS
                        Respondent
_________________________________________________________

             Petition in Cause No. 1221855 from the
                th
         184 District Court of Harris County, Texas and
                   the Court of Appeals for the
                       14TH District of Texas
_________________________________________________________

        PETITION FOR DISCRETIONARY REVIEW
_________________________________________________________

                                     DENA FISHER
                                     440 LOUISIANA ST, STE 200
                                     HOUSTON, TX 77002
                                     TEL: 713-222-2201
                                     FAX: 713-224-2815
 May 19, 2015                        fisherlawoffice@me.com
                                     SBOT # 24034440

                                     ATTORNEY FOR PETITIONER
                     IDENTITY OF PARTIES AND COUNSEL

Petitioner:                            Wade Timothy Bessard

Counsel for Appellant:     at trial    Michael Fosher
                                       TBN 07280300
                                       440 Louisiana, Suite 1200
                                       Houston, TX 77002

                           on appeal   Dena Fisher
                                       TBN 24034440
                                       440 Louisiana, Suite 200
                                       Houston, TX 77002

Counsel for Appellee:      at trial    Ryan Volkmer
                                       Assistant District Attorney
                                       Harris County, Texas
                                       TBN 24084026

                         on appeal     Alan Curry
                                       Assistant District Attorney
                                       TBN 05263700
                                       Harris County District Atty’s Office
                                       1201 Franklin, Suite 600
                                       Houston, TX 77002

Trial Court Judge:                     The Honorable Jan Krocker
                                       184th District Court
                                       Harris County, Texas




                                       ii
                                              TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...................................................................... ii
TABLE OF CONTENTS ................................................................................................... iii
TABLE OF AUTHORITIES ............................................................................................... v
STATEMENT REGARDING ORAL ARGUMENT ......................................................... 1
STATEMENT OF THE CASE ........................................................................................... 1
ISSUES PRESENTED ...................................................... Error! Bookmark not defined.
    POINT OF ERROR ONE ............................................ Error! Bookmark not defined.
         The evidence regarding Appellant’s failure to pay fees was insufficient to
         prove a violation of probation as the Appellant was indigent and the State did
         not put on any evidence that the Appellant had the ability to pay and willfully
         chose not to. .............................................................................................................. 2
    POINT OF ERROR TWO ........................................... Error! Bookmark not defined.
         The evidence regarding Appellant’s failure to provide written proof of
         employment was insufficient as there was conflicting testimony about what
         was required of Appellant. ....................................................................................... 2
POINT OF ERROR THREE ............................................. Error! Bookmark not defined.
         The evidence regarding the Appellant’s failure to refrain from vicious habits
         was insufficient to prove that he had a “habit” of drug use ..................................... 2
STATEMENT OF FACTS .................................................................................................. 2
SUMMARY OF THE ARGUMENT ................................ Error! Bookmark not defined.
ARGUMENTS AND AUTHORITIES ............................. Error! Bookmark not defined.
    POINT OF ERROR ONE (restated) ............................ Error! Bookmark not defined.
         The evidence regarding Appellant’s failure to pay fees was insufficient to
         prove a violation of probation as the Appellant was indigent and the State did
         not put on any evidence that the Appellant had the ability to pay and willfully
         chose not to. .............................................................................................................. 6
    POINT OF ERROR TWO (restated) ............................................................................. 9
         The evidence regarding Appellant’s failure to provide written proof of
         employment was insufficient as there was conflicting testimony about what
         was required of Appellant. ....................................................................................... 9
    POINT OF ERROR THREE (restated) ....................................................................... 11




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          The evidence regarding the Appellant’s failure to refrain from vicious habits
          was insufficient to prove that he had a “habit” of drug use. .................................. 11
REASON FOR REVIEW……………………………………………………………...
PRAYER ........................................................................................................................... 13
CERTIFICATE OF SERVICE .......................................................................................... 15
CERTIFICATE OF COMPLIANCE ................................................................................ 16




                                                                 iv
                                          TABLE OF AUTHORITIES

Cases
Bearden v. Georgia, 461 U.S. 660 (1983) ....................................................................... 8, 9

Campbell v. State, 456 S.W.2d 918 (Tex. Crim. App. 1970) ............................................ 12

Chacon v. State, 558 S.W.2d 874 (Tex. Crim. App. 1977) ......................................... 12, 13

Cobb v. State, 851 S.W.2d 871 (Tex. Crim. App. 1993) ................................................... 14

Garcia v. State, 571 S.W.2d 896 (Tex. Crim. App. 1978) .......................................... 12, 13

Gipson v. State, 395 S.W.3d 910 (Tex. App.— Beaumont 2013, pet. granted) ................. 7

Marshall v. State, 466 S.W.2d 582 (Tex. Crim. App. 1971)............................................. 12

Mayer v. State, 309 S.W.3d, 552 (Tex. Crim. App. 2010) .................................................. 8

Morales v. State, 538 S.W.2d 629 (Tex. Crim. App. 1976) ........................................ 12, 14

Scamardo v. State, 517 S.W.293 (Tex. Crim. App 1974) ................................................. 10

Stovall v. State, 683 S.W.2d 891 (Tex. App.— Fort Worth 1985, pet. ref'd) ................... 13

Rules
Tex. R. App. P. Rule 39.7 .................................................................................................... 1

Tex. R. App. P. Rule 9.4(i)(3). .......................................................................................... 16




                                                               v
                  STATEMENT REGARDING ORAL ARGUMENT

       Pursuant to Texas Rule of Appellate Procedure 39.7, Appellant hereby requests oral

argument. Counsel is of the opinion that oral argument would serve to emphasize and

clarify the important legal points regarding this appeal.


                             STATEMENT OF THE CASE

       On March 28, 2014 Appellant was convicted in the 184th District Court of

Harris County of violating the terms and conditions of his community supervision.

His punishment was assessed at seven (7) years confinement in the Institutional

Division of the Texas Department of Criminal Justice. Notice of appeal was timely

filed on March 28, 2014 (CR, pg 51). This Court has jurisdiction pursuant to Tex. R.

App. P. 26.2.

       The Reporter’s Record was properly filed with this Honorable Court on May

27, 2014.

            There are no bills of exception.




                                               1
                    QUESTIONS PRESENTED FOR REVIEW


    1. Was the evidence regarding Appellant’s failure to pay fees sufficient to
       prove a violation of probation?

    2. Was the evidence regarding Appellant’s failure to provide written proof of
       employment sufficient to prove a violation of probation?
    3. Was the evidence regarding Appellant’s failure to refrain from vicious
       habits sufficient to prove that he had a “habit” of drug use?
                             STATEMENT OF FACTS

      On Appellant pled guilty to the offense of Possession of Controlled Substance,

Penalty Group I, 4-200 grams, a second degree felony on June 29, 2009. Appellant

waived indictment in writing. CR 10. A finding of guilt was deferred and Appellant

was placed on community supervision for a period of five (5) years. CR 20.

       On January 30, 2014 a Motion to Adjudicate Guilt was filed alleging four

(4) violations of the conditions of supervision. CR 43. Appellant pleaded not true to

the violations. 2 RR 11. A hearing was held on March 27, 2014, concluding on

March 28, 2014.

      In the hearing, the State called the court liaison officer for the 184 th District

Court, Melinda Collins, who testified about the contents of the probationary field

file after the Court took judicial notice of same. 2 RR 20. The CLO testified that the

Appellant was required to submit written proof of employment at every office visit

with the probation officer. 2 RR 21. She testified that he last provided that written

proof of employment on September 6, 2013 and had not provided written proof after


                                          2
that. 2 RR 22. She later testified that the Appellant last provided written proof of

employment on September 15, 2013. 2 RR 22. She further testified that the next

scheduled office visits were October 23, 2013 and November 14, 2013. 2 RR 23.

The Appellant was arrested in late December on the Motion to Adjudicate warrant.

3 RR 30.

      In response to the Appellant’s defense counsel questioning she admitted that

it was common if someone held the same job, they might not provide further

verification of that same job. 2 RR 23. Appellant testified that he held two jobs in

2013, and that he provided check stubs with his probation officer as instructed. 3 RR

34, 3 RR 44. Appellant testified that he lost his jobs in late December, before

Christmas. 3 RR 35.

      Appellant’s wife testified that Appellant held two jobs and that he was arrested

in late December for the violation of probation. 3 RR 31. The CLO, Collins, further

testified that Appellant had not missed any appointments with probation or failed to

provide records of employment prior to September 15, 2013. 2 RR 26. Appellant

was on probation for four years and half (4 ½ ) years prior to the motion to adjudicate

hearing. 3 RR 39.

      During that four and half years he is only alleged to have failed to provide

written verification of employment on two occasions, October 23, 2013 and




                                          3
November 14, 2013. 2 RR 23. Appellant testified that he DID provide what he was

instructed to provide, which was his paycheck stubs. 3 RR 34.

      The CLO, Collins, testified that Appellant was behind on his payments of his

court ordered fees in the amount of $620.00 and his laboratory fees in the amount of

$50.00. 2 RR 31. She admitted that neither of these amounts were exorbitant. 2 RR

36.

      On cross, Collins admitted that Appellant was not required to pay while he

was in jail. 2 RR 36, 2 RR. She testified that Appellant was in jail in a treatment

program in 2011 until July, 2012. 2 RR 25. There was no testimony from the State’s

witnesses about the Appellant’s financial ability to pay nor was there any testimony

from any witness as to whether the Appellant had refused to pay at all or was just

behind on payments.

      Collins testified that there was an allegation that Appellant had used PCP in

October, 2013. PCP. 2 RR 26. Collins testified that there were no other allegations

of the Appellant using any controlled or illegal substance. 2 RR 26. Again, she later

testified that there was “one allegation of a urine sample positive for phencyclidine.”

2 RR 33. There was no evidence presented by the State of there being any drug use

by Appellant, except the one urinalysis alleging positive for PCP.

      The Appellant testified that he has never used PCP. 3 RR 38. He testified that

he had accepted responsibility for his drug use in November, 2011, by agreeing to



                                          4
enter the residential drug treatment program. 3 RR 40. Appellant testified that he did

not use PCP. 3 RR 40:

      Appellant: I didn’t do this, I didn’t do this, I didn’t do this.

      After presentation of evidence by the State and Appellant, the trial court found

all four (4) violations alleged to be true and sentenced Appellant to seven (7) years

in the Institutional Division of the Texas Department of Criminal Justice. 3 RR 50.


                              REASON FOR REVIEW

      There was insufficient evidence presented by the State to prove by a

preponderance of the evidence that the Appellant violated his conditions of

probation.

      Appellant was behind on his supervision fees and laboratory fees. However

there was no evidence presented that he had the ability to pay but just chose not to,

which is a requirement by the State to prevail.

      Appellant provided proof of employment via check stubs as he was instructed

to do by his probation officer at each visit. The one witness who testified that he had

done otherwise was the court liaison, who gave conflicting statements about when

he last gave written verification of employment and testified that it would be

common for someone who held the same job not to continue to provide written

verification. The Appellant testified that he provided written verification and

paycheck stubs, as instructed. He testified that the paycheck stubs should be in the


                                           5
probation file. He testified that he lost his jobs in December 2013 when he was

arrested on the Motion to Adjudicate that was filed. This conflicting evidence is

insufficient to prove by a preponderance of the evidence that the Appellant violated

this condition of probation.

   Appellant had one drug test positive for PCP. One drug test is not sufficient to

prove he failed to avoid injurious or vicious habits, as alleged in his Motion to

Adjudicate probation. This one drug test is insufficient to establish a “habit” as

alleged by the Motion to Adjudicate.


                               REASON FOR REVIEW


                                    Question #1.

The evidence regarding Appellant’s failure to pay fees was insufficient to prove a
violation of probation as the Appellant was indigent and the State did not put on any
evidence that the Appellant had the ability to pay and willfully chose not to.


      The testimony at the revocation hearing was that the Appellant was $620.00

in arrears in paying his supervisory fees and $50.00 in arrears in paying his

laboratory fees. 2 RR 31. There was no testimony offered by the State as to whether

the Appellant had been paying some fees monthly, whether the Appellant had

sufficient resources to allow him to pay the fees or whether the Appellant was

willfully refusing to pay the fees. The only evidence presented by the State was that

he was in arrears the amount described supra. On June 29, 2009, when Appellant



                                         6
pled guilty to the second degree offense of Possession of a Controlled Substance,

Penalty Group 1, 4-200 grams. (CR 12), he requested court appointed counsel. CR

7.

        The trial court granted that request, found Appellant indigent, and appointed

an attorney to represent him. In November 2011, when a Motion to Adjudicate was

filed, Appellant again requested a court appointed attorney. CR 35. Again, the trial

court found him indigent and appointed counsel. In January, 2014, when the present

Motion to Adjudicate the subject of this appeal was filed, the trial court again found

Appellant indigent and appointed counsel to represent him. CR 41. When the

Appellant gave notice of appeal and completed a pauper’s oath, the trial court again

appointed him counsel. CR 53. Four times Appellant has been found indigent by the

trial court.

        The trial court’s decision to adjudicate the Appellant for violations of failing

to pay supervision and laboratory fees is tantamount to imprisoning a defendant

because he is poor, especially without the proof required to show that he was able to

pay and willfully chose not to. It was an abuse of discretion when the State failed to

prove that Appellant was able to pay the fees and did not do so. Gipson v. State, 395

S.W.3d 910, 915 (Tex. App.— Beaumont 2013, pet. granted)1. In Gipson, the court



1
 Gipson overruled in regards to “fines”. Differentiated between fines and fees because fines are punitive and fees
are remedial in nature. Gipson v. State, 428 S.W.3d 107 (Tex. Crim. App. 2014). The issue in the present case is
whether Appellant had the ability to pay FEES and willfully chose not to and whether that was proven by the State.


                                                         7
of appeals reversed because the State failed to show the defendant had the ability to

pay the fines and fees and was willfully not doing so. Id.

      In the present case, the State presented no evidence of Appellant’s ability or

inability to pay, nor did it present evidence that the failure to pay was done willfully

by Appellant. While Appellant’s trial counsel did not object to this, the Court of

Appeals has held that because it was a sufficiency challenge, no objection was

required. Id. at 914. “Sufficiency issues cannot be forfeited and need not be

preserved for appeal.” Id. (citing Mayer v. State, 309 S.W.3d, 552, 556 (Tex. Crim.

App. 2010)).

      The Appellant was not able to afford his fees and the trial court’s finding of

true, despite the Appellant’s indigent status, was fundamentally unfair in violation

of due process and equal protection. Bearden v. Georgia, 461 U.S. 660 (1983). A

trial court cannot revoke probation for nonpayment absent evidence and findings

that the failure was willful and that alternative forms of punishment would be

inadequate to meet the State’s interest in punishment and deterrence. Id. at 666. This

would be little more than punishing a person for his poverty. Id. at 671.

      The Appellant testified that he held two jobs in 2013, one at a pizza place in

the Woodlands and one at Burger King. 3 RR 34. There was no testimony from any

witness as to how much he made, what living expenses he had, how long he worked

there, what payments toward probation that he was able to make, whether he was



                                           8
told to pay by his probation officer and refused, or whether he was supporting

children or a family. There was simply no evidence offered by the State to prove that

the Appellant had the ability to pay and did not. Thus, the evidence is insufficient to

prove by a preponderance of the evidence that the Appellant had the ability to pay

and willfully did not do so, and thus was in violation of his probation.


                                     Question #2

The evidence regarding Appellant’s failure to provide written proof of employment
was insufficient as there was conflicting testimony about what was required of
Appellant.

      As stated above, the CLO was the sole witness for the State in its proof that

the Appellant did not provide written proof of employment. The court liaison officer

did not directly supervise the Appellant on probation. She testified first that

Appellant last provided written proof of employment on September 6, 2013 and then

she testified that Appellant last provided written proof of employment on September

13, 2013. 2 RR 21, 22.

      She also testified that it would be common for someone who is holding down

the same job to not provide further verification. 2 RR 23. Further, the Appellant

testified that he had provided written verification and paycheck stubs, as he was

instructed to do. 3 RR 34. An order revoking probation must be supported by a

preponderance of the evidence. Scamardo v. State, 517 S.W.293, 298 (Tex. Crim.

App 1974). The greater weight of the credible evidence must create a reasonable


                                          9
belief that the defendant violated a condition of his probation. See id. In this case,

the sole witness for the State was not even the supervising officer, but simply reading

from the court’s file in court. She agreed that it might be common for a person

holding the same job not to provide verification of that same job.

      The Appellant testified that he provided paycheck stubs as he was instructed

to do. For all of the 4 ½ years of probation, Appellant managed to provide written

verification of his employment, whether through paycheck stubs, or through other

documentation. The last two months before the Motion to Adjudicate was filed are

the two months that the probation file did not contain written verification of his

employment.

      The testimony of the one witness for the state, who did not even directly

supervise the Appellant but who works in the courtroom, and who provided

conflicting testimony as to the dates that he last reported his employment AND who

testified that it is common for someone who has held the same job to NOT have to

provide continued verification, is insufficient to prove by a preponderance of the

evidence that the Appellant failed to provide written proof of employment,

especially considering the history of Appellant complying with the requirement that

he provide proof of employment for 4 ½ years of supervision.




                                          10
                                     Question #3

The evidence regarding the Appellant’s failure to refrain from vicious habits was
insufficient to prove that he had a “habit” of drug use.


      The Motion to Adjudicate filed on January 30, 2014 alleges that Defendant

did then and there violate terms and conditions of Community Supervision by:

Failing to avoid injurious and vicious habits to wit: the Defendant did use a

controlled substance, namely Phencyclidine, which was evidenced by the presence

of Phencyclidine in a urine sample taken from Wade Bessard on October 23, 2014

at the Harris County Community Supervision and Corrections Department. CR 42.

      Further the Judgment adjudicating Appellant on March 28, 2014 states

“Defendant violated the terms and conditions of community supervision as set out

in the State’s Original Motion to Adjudicate Guilt as follows: AVOID INJURIOUS

OR VICIOUS HABITS. CR 47, 48. At the adjudication hearing, the State called

Kendrick Rabb, a community supervision technician employed by the Harris County

Community Supervision and Corrections Department. 2 RR 42. Mr. Rabb testified

that on October 23, 2014, he observed the Appellant provide a urine sample. 2 RR

51. He testified as to the chain of custody of that urine sample. 2 RR 58.

      The State also called Melinda Collins, court liaison officer for the 184 th

District Court, who testified that there was one allegation of drug use, phencyclidine,

on October 23, 2014. The State did not allege or prove up any other allegations of



                                          11
drug use, alcohol use, or any other illicit substance abuse by Appellant as a basis for

revocation. The courts of appeals have long held that a single use of a drug is not a

“habit” for the purposes of a condition of probation that the defendant avoid injurious

or vicious habits. Garcia v. State, 571 S.W.2d 896, 900 (Tex. Crim. App. 1978). See

also Campbell v. State, 456 S.W.2d 918 (Tex. Crim. App. 1970); Marshall v. State,

466 S.W.2d 582 (Tex. Crim. App. 1971); Morales v. State, 538 S.W.2d 629 (Tex.

Crim. App. 1976); Chacon v. State, 558 S.W.2d 874 (Tex. Crim. App. 1977); Stovall

v. State, 683 S.W.2d 891 (Tex. App.— Fort Worth 1985, pet. ref'd).

      In Garcia, the defendant was alleged to have violated her probation by

submitting one urine sample that tested positive for opiates. There was no evidence

presented that the defendant had ever submitted any urine test or the results thereof.

The defendant pled true to a different allegation and the appellate court made the

observation that “had it (the urine test) been proven to be true, it should be

remembered that proof of a single instance of the use of a drug cannot be

characterized as a habit under the decisions of this court.” Garcia, 571 S.W.2d 900.

      Further, in Stovall, the appellant was alleged to have violated his probation

condition of “avoid injurious or vicious habits” and “avoid persons or places of

disreputable or harmful character” by being seen in a single incident of carrying a

beer at a nightclub. The court reversed the finding of the trial court, and set aside the

order revoking Appellant’s probation, finding that a single occurrence of the use of



                                           12
an alcoholic beverage cannot be characterized as a habit under the decisions of our

Court of Criminal Appeals. See Chacon, 558 S.W.2d at 874.” In Morales, the

Appellant was noted to smell like alcohol and appeared to be intoxicated when he

appeared at a jail to inquire into making someone’s bond. Again, the court found

that a single instance of alcohol use cannot be characterized as a habit. Morales, 538

S.W.2d 629.

      In a proceeding to revoke community supervision, the burden of proof is on

the State to show by a preponderance of evidence that the defendant violated a term

and condition of community supervision as alleged in the motion to revoke. Cobb v.

State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The State in this case has failed

to do that on all four allegations of violations of community supervision. The trial

court abused its discretion in adjudicating the guilt of the Appellant and sentencing

him to seven years confinement in TDCJ.


                                      PRAYER

      ACCORDINGLY, this Court should GRANT this PETITION FOR

DISCRETIONARY REVIEW and ORDER briefs on the merits to answer the

question of whether the evidence against the Petitioner was legally sufficient to

support his adjudication.

      Petitioner further prays for all relief to which he may be entitled.




                                         13
Respectfully submitted,
_/s/ Dena Fisher__
DENA FISHER
TBN: 24034440
440 Louisiana, Suite 200
Houston, TX 77002
Tel: 713-222-2201
d2f@sbcglobal.net
Attorney for Wade Timothy Wade Bessard




  14
                            CERTIFICATE OF SERVICE

   This is to certify that on the 18th day of May, 2015, a true and correct copy of the above

and foregoing Appellant’s Petition for Discretionary Review was served on the Harris

County District Attorney’s Office, 1201 Franklin, Suite 600, Houston, Texas 77002, by

electronic-delivery.

                                          _/s/ Dena Fisher__
                                          DENA FISHER




                                            15
                        CERTIFICATE OF COMPLIANCE

   This is to certify that the brief filed in case number 14-14-00348-CR complies with

requirement of Tex. R. App. P. Rule 9.4(i)(3). According to the computer program used to

prepare the document, the brief has the following number words: 2158 including footnotes.

                                         _/s/ Dena Fisher__
                                         DENA FISHER




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