Affirmed and Memorandum Opinion filed August 27, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-12-00512-CR

                RONALD DEAN GOODWIN, JR., Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 405th District Court
                          Galveston County, Texas
                      Trial Court Cause No. 08CR1047

                MEMORANDUM                     OPINION


      Appellant Ronald Dean Goodwin, Jr. pleaded guilty to indecency with a
child by contact, see Tex. Penal Code Ann. § 21.11(a)(1), and was placed on
deferred adjudication with community supervision. The State filed a motion to
adjudicate guilt and revoke community supervision, and after a hearing, the trial
court found that appellant had violated the terms of his probation. The court
adjudicated appellant guilty and sentenced him to ten years‘ confinement. In two
issues, appellant contends the trial court erred by adjudicating him guilty. We
affirm.

                                      BACKGROUND

         On May 8, 2009, appellant pleaded guilty to indecency with a child by
contact and received deferred adjudication with community supervision for ten
years.        The State filed a motion to adjudicate guilt and revoke community
supervision in September 2011 and an amended motion in February 2012, alleging
that appellant violated the following conditions of his probation:

         4.      Report in person to the Supervision Officer, at least once each
                 month as directed by the Supervision Officer and obey all rules
                 and regulations of the [Galveston County Community
                 Supervision and Corrections Department (G.C.C.S.C.D.)];
         12.     Pay to the G.C.C.S.C.D. $60.00 per month as a Community
                 Supervision Fee;
         13.     Pay to the G.C.C.S.C.D. $531.00 in Court Costs . . . paid by
                 installments of $10 per month paid each month;
         16.     Pay to the G.C.C.S.C.D. $715.00 to reimburse the County for
                 attorney fees for Court appointed attorney . . . paid by in [sic]
                 installments of $10.00 per month paid each month;
         17A. Pay to the G.C.C.S.C.D. $5.00 per month as a fee to the Sexual
              Assault Program Fund . . . ;
         17B. Pay to the G.C.C.S.C.D. $50 as a payment to the Advocacy
              Center for Children of Galveston County, Texas . . . . ;
         19.     Pay to the G.C.C.S.C.D. $25.00 as a Crime Victim‘s
                 Compensation Fund reimbursement payment. . . . ;
         23.     Pay to the G.C.C.S.C.D. $100.00 as payment to the Resource &
                 Crisis Center of Galveston County, Texas . . . ;
         36.     Attend psychological counseling sessions for sex offenders with
                 an individual or organization which provides sex offender
                 treatment as specified by our [sic] approved by the judge and
                 the Community Supervision Department. Defendant shall
                 participate in the group and individual counseling sessions as
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             directed by the attending therapist. . . . Defendant shall obey all
             rules, regulations and policies of the designed program, attend
             all sessions and complete all homework assignments until
             successfully terminated by the attending therapist and
             community supervision officer.
      38.    Within thirty (30) days make an appointment for a substance
             abuse assessment evaluation and furnish proof to the
             Supervision Officer of such appointment and then a written
             report with the findings and recommended therapy shall also be
             furnished to the Supervision Officer. The defendant will
             maintain treatment suggested until finally released and proof of
             release once again furnished to his Supervision Officer in
             writing.
Regarding condition No. 4, the State alleged that appellant failed to report for the
month of September 2011. For conditions Nos. 12, 13, 16, 17A, 17B, 19, and 23,
the State alleged that appellant was in arrears in varying amounts totaling
$2,685.00.    For condition No. 36, the State alleged that appellant was
unsatisfactorily discharged from sex offender counseling, and for condition No. 38,
that appellant was unsuccessfully discharged from outpatient substance abuse
treatment. Appellant pleaded not true to all of the allegations.

      The State called three witnesses at the revocation hearing: Judy Brown,
appellant‘s community supervision officer in Galveston County; Dr. Collier Cole,
appellant‘s therapist in Galveston County; and Jean Stanley, appellant‘s sex
offender counselor in Angelina County.

      Brown testified that she had been supervising appellant since May 2009, and
appellant was in arrears on each of the fee conditions identified above. She
testified that she had seventeen to eighteen contacts with appellant before he
moved (and his supervision transferred) to Angelina County in September 2010.
She explained that appellant had a ―very negative‖ attitude since the beginning of
probation and that he was in denial about some things.

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      Cole testified that he began therapy with appellant in September 2009 and
that appellant attended group and individual therapy sessions once per month until
August 2010. Cole met with appellant about twenty-four times for individual and
group therapy sessions. Cole testified generally about the goals of sex offender
therapy: to accept responsibility, develop some notion of empathy for the damage
done to others, and establish some steps to prevent reoccurrence. He discussed the
importance of accepting responsibility, describing it as ―the number one key to
treatment.‖ Cole explained that a sex offender‘s acceptance of responsibility helps
the victim heal.

      However, Cole testified that appellant never accepted responsibility. There
was ―a lot of negativity‖ and complaining from appellant, and he was ―always
blaming others for his problems.‖ Cole explained that it was destructive to the
group therapy atmosphere when someone is ―moaning and groaning and
complaining because sometimes that gets others stirred up.‖ Cole had to tell
appellant a number of times to ―keep it down‖ and ―try to accept things.‖ Cole
recalled from his notes about appellant that he thought appellant‘s negative attitude
did not ―bode well for successful completion of treatment or probation.‖ Further, it
concerned Cole that appellant was ―never engaged in treatment . . . because when
you have someone who is an unrepentant child molester on the street, that‘s a big
worry.‖ Cole explained that appellant used ―anger and belligerence to deflect
others, to push things onto other people, get the attention off him,‖ and he ―never
follows through.‖ Cole believed appellant displayed a clear sign of a personality
disorder.

      Cole also testified that a polygraph is a ―clinical tool which is used in all sex
offender treatment programs throughout the country.‖ It is a ―very useful tool‖ for
individuals like appellant who minimize and do not fully accept responsibility

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because they ―typically will come clean‖ when they fail a polygraph. Cole had
been using polygraphs for twenty years in treatment and had seen it work
―wondrously‖ because it helps people ―come out of denial.‖ At ―virtually every
session . . . from the get-go,‖ Cole talked with appellant about taking a polygraph,
but appellant never took one in Cole‘s program.

      Stanley testified about appellant‘s therapy in Angelina County when he
transferred in August 2010. She described appellant as ―very polite but very
resistant to the idea of treatment.‖ He was very adamant that he was not a sex
offender, and he did not see himself as a sex offender. He did not feel the need for
treatment, and he ―really went down the list of all the reasons why treatment would
not be logistically, financially, or even clinically appropriate for him.‖ Appellant
―flatly den[ied] that he was responsible for anything,‖ and it appeared to Stanley
that appellant ―saw himself as the victim of the system . . . , [and] he just really felt
railroaded and ramrodded.‖ Stanley testified that ―this was [her] biggest concern
perhaps from a clinical standpoint.‖ According to Stanley, appellant said, ―I‘ll do
the curriculum.    I‘ll do the assignments.       But I didn‘t do this.‖      Appellant
―understood the concepts‖ of therapy, but ―he would never own them himself.‖

      In February 2011, Stanley did a ―sexual interest and treatment needs
evaluation,‖ which showed indicators that appellant had a sexual interest in
children. At some point during treatment, Stanley suggested appellant take a
polygraph examination, and if he passed, he would not be required to come to
treatment. Appellant took and failed the polygraph examination. Appellant made
excuses for failing the polygraph and continued to deny responsibility.              He
returned to treatment, but he began missing ―a lot‖ of appointments for group
therapy.



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      Although Stanley testified that there was no set timeline for completing
treatment, appellant was ultimately discharged from treatment. Stanley explained
that it was a ―joint decision‖ to discharge appellant based on conversations
between her, Brown, and appellant‘s community supervision officer in Angelina
County. Stanley believed that appellant was not a good candidate for continued
treatment because of the indicators from the sexual-interest evaluation, his level of
denial, and the fact that he ―has made absolutely no progress in treatment.‖

      Finally, appellant‘s wife testified that appellant missed appointments
because he was the only driver in the family, and he had to take their children to an
emergency care center due to the children‘s medical conditions.

      The trial court found the allegations concerning conditions 4 and 38 ―not
true‖ and the remaining allegations ―true.‖ The court explained its decision to
revoke probation:

             It‘s apparent to me, Mr. Goodwin, based on the testimony that
      I‘ve heard is that counseling or treatment is not going to work with
      you and you‘re not accepting what the treatment offers—counselors
      are offering to you for treatment. When the Court places someone on
      probation, I expect them to abide by all the conditions of probation.
      And an offense like this, counseling is an extremely important
      condition of probation. And that‘s one of the main reasons why any
      court would place anybody on probation for an offense of this nature.
            Given that your refusal to accept the counseling and the benefits
      of counseling again, as I mentioned earlier, I do adjudicate your guilt,
      revoke your Community Supervision and hereby sentence you to ten
      years in the Institutional Division of the Texas Department of
      Criminal Justice.
Appellant filed a timely notice of appeal.




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                                           ANALYSIS

       In two issues, appellant contends the trial court abused its discretion by
revoking appellant‘s community supervision because (1) there is no evidence that
appellant willfully refused to make court-ordered payments; and (2) appellant had
insufficient time to understand the results of his polygraph exam before being
discharged from sex offender counseling.

       The State must prove a ground for revocation of probation—including
deferred adjudication—by a preponderance of the evidence. Hacker v. State, 389
S.W.3d 860, 864–65 (Tex. Crim. App. 2013). We review a trial court‘s decision to
revoke probation for an abuse of discretion, taking into account the sufficiency of
the evidence supporting the basis for revocation. See id. at 865–66. The trial court
is the sole judge of the credibility of the witnesses and the weight to be given to
their testimony. Id. at 865.

       Revocation of probation ―implicates due process,‖ and probation may not be
―arbitrarily withdrawn.‖ Leonard v. State, 385 S.W.3d 570, 576–77 (Tex. Crim.
App. 2012) (quotation omitted). Accordingly, probation may not be revoked for an
impermissible or unconstitutional reason.1 ―It would surely offend due process if a
defendant were discharged from his therapy program for a wholly inappropriate
reason—such as illegal discrimination or mere caprice—and the bare fact of that


       1
          See Leonard, 385 S.W.3d at 573, 583 (holding that the trial court abused its discretion
by revoking probation because a therapist discharged the probationer from sex offender
treatment based entirely on the probationer‘s failing polygraph examinations); see also Dansby v.
State, 398 S.W.3d 233, 239–40 (Tex. Crim. App. 2013) (revocation for invoking Fifth
Amendment privilege is unconstitutional; court of appeals erred to conclude that the
probationer‘s discharge from sex offender treatment program was not a product of his invocation
of a Fifth Amendment privilege); Gipson v. State, 383 S.W.3d 152, 157 (Tex. Crim. App. 2012)
(revocation for failure to pay fines without considering the reasons for the probationer‘s inability
to pay or alternative orders would violate the United States Constitution (citing Bearden v.
Georgia, 461 U.S. 660, 665 (1983))).

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discharge were used as a basis to revoke the defendant‘s community supervision.‖
Id. at 577.

       When a trial court, through a condition of probation, makes the probationer‘s
compliance with the condition subject to the discretion of a third party, we must
―examine the third party‘s use of its discretion to ensure that it was used on a basis
that was rational and connected to the purposes of community supervision.‖ Id.
(reviewing revocation of probation because of the probationer‘s discharge from sex
offender treatment). In Leonard, the Court of Criminal Appeals suggested that the
―purposes of community supervision‖ may be found in the statutory authority of a
trial court to impose reasonable conditions ―‗designed to protect or restore the
community, protect or restore the victim, or punish, rehabilitate, or reform the
defendant.‘‖ Id. at 577 & n.13 (quoting Tex. Code Crim. Proc. Ann. art. 42.12,
§ 11(a)).

       With this standard in mind, we will address appellant‘s second issue on
appeal.2 Initially, we note that appellant cites to no record evidence indicating the
length of time between appellant‘s polygraph examination and his discharge from
the sex offender treatment program. Nor does the record contain any evidence
about what would constitute ―sufficient time‖ for a probationer to understand the
results of a polygraph examination so that the probationer may begin to accept
responsibility for his conduct.        Regardless, there is significant evidence that
appellant steadfastly refused to accept responsibility for his conduct over a period
of almost two years while attending therapy on a bi-weekly and then weekly basis,
and that this was the primary reason he was discharged from therapy and the
primary reason the trial court revoked probation.
       2
         If there is sufficient evidence that the defendant violated one of several grounds for
revocation, we need only address that ground on appeal. See, e.g., Jones v. State, 571 S.W.2d
191, 193–94 (Tex. Crim. App. 1978).

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      Cole described a sex offender‘s accepting responsibility as ―the number one
key to treatment,‖ and Stanley testified that appellant‘s denial of responsibility was
her ―biggest concern.‖ Cole testified that acceptance of responsibility helps the
victim heal. Accordingly, there is some evidence that requiring appellant to accept
responsibility for his conduct was rationally connected to a purpose of community
supervision—restoring the victim. See id. Further, according to Stanley, appellant
made ―absolutely no progress in treatment‖ after nearly two years of therapy.
Appellant‘s making progress in treatment would be rationally connected to the
purposes of rehabilitating and reforming appellant.        See id.   The trial court
concluded ―counseling or treatment is not going to work‖ for appellant. With
some evidence supporting this conclusion, the trial court did not abuse its
discretion by revoking probation for appellant‘s discharge from sex offender
treatment.

      Appellant‘s issues are overruled, and we affirm the trial court‘s judgment.


                                       /s/       Sharon McCally
                                                 Justice

Panel consists of Justices Brown, Christopher, and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




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