                                                                                 PD-0121-15
                                                                 COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                             Transmitted 2/22/2015 12:36:03 PM
                                                                Accepted 2/26/2015 11:32:02 AM
                               NO. PD-0121-15                                     ABEL ACOSTA
                                                                                          CLERK


                    IN THE COURT OF CRIMINAL APPEALS
                                OF TEXAS


                      CHARLES EDWARD TUMLINSON,

                                  Appellant,

                                      v.

                          THE STATE OF TEXAS,

                                  Appellee.


                        From the First Court of Appeals
                            No. 01-14-00238-CR


                Appealed from the 149th Judicial District Court
                         of Brazoria County, Texas
                        Trial Court Cause No. 50946
                  Honorable Terri Holder, Judge Presiding


     APPELLANT’S PETITION FOR DISCRETIONARY REVIEW




                                    D. CRAIG HUGHES
                                    State Bar No. 10211025
                                    LAW OFFICES OF D. CRAIG HUGHES
                                    7322 Southwest Freeway, Suite 1100
                                    Houston, Texas 77074
                                    Tel - (713) 535-0683
February 26, 2015
                                    Fax - (713) 981-3805
                                    ATTORNEY FOR APPELLANT
                                    CHARLES EDWARD TUMLINSON
                                          TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

IDENTITY OF JUDGE, PARTIES, AND COUNSEL. . . . . . . . . . . . . . . . . . . . . iv

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         The Court of Appeals Erred in Affirming the District Court’s
         Judgment Granting the State’s First Amended Motion to Adjudicate
         Guilt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         A.       Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         B.       Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

CONCLUSION AND PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

APPENDIX




                                                              ii
                                       INDEX OF AUTHORITIES

Cases                                                                                                            Page(s)

Bearden v. Georgia, 461 U.S. 660 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11

Duncan v. State, 321 S.W.3d 53, 56 (Tex. App.-Houston [1st Dist.]
2010, pet. ref'd). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Dureso v. State, 988 S.W.2d 448, 450-51 (Tex. App.—Houston [1st Dist.]
1999, pet. ref'd). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

Gagnon v. Scarpelli, 411 U.S. 778, 790 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Gipson v. State, 383 S.W.3d 152 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . 9, 11

Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . 2

Pierce v. State, 113 S.W.3d 431, 437 (Tex.App.—Texarkana
2003, no pet. h.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Zablocki v. Redhail, 434 U.S. 374, 400 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Statutes and Rules

Section 3.01,Texas Penal Code.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Section 22.011(a)(2)(A),Texas Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .1

Section 21.11,Texas Penal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (West Supp. 2010). . . . . . . . . . . . . . . 2

Tex. Code Crim. Proc. Art. 42.12 § 21(c) (Vernon Supp.2003).. . . . . . . . . . . . . . 2, 11




                                                             iii
             IDENTITY OF JUDGE, PARTIES, AND COUNSEL

      Pursuant to Rule 68.4(a) of the Texas Rules of Appellate Procedure, a complete

list of the names of all interested parties is provided below.

1.    Honorable Terri Holder, Presiding District Judge

2.    Charles Edward Tumlinson, Appellant

2.    Bill Leathers, trial counsel for Appellant

3.    D. Craig Hughes, trial and appellate counsel for Appellant

4.    Jeri Yenne, Brazoria County Criminal District Attorney

5.    Greg McMillian, Brazoria County Assistant Criminal District Attorney

6.    Brian Hrach, Brazoria County Assistant Criminal District Attorney




                                          iv
       STATEMENT REGARDING ORAL ARGUMENT

Appellant requests oral argument to aid the Court in the decisional process.




                                  v
                           STATEMENT OF THE CASE

       On February 22, 2006, a grand jury in Brazoria County, Texas, returned a two

(2) count Indictment against Charles Edward Tumlinson (“Tumlinson”). Count One

charged him with Aggravated Sexual Assault of a Child, in violation of Section

22.011(a)(2)(A) of the Texas Penal Code (“TPC”); Count Two charged him with

Indecency with a Child by Contact, in violation of Section 21.11 of the TPC. The

Indictment further alleged that the charged conduct arose from, and constituted a

Criminal Episode, pursuant to Section 3.01 of the TPC. See CR 5.1

       On October 23, 2007, the Court issued an Order of Deferred Adjudication

Placement of Community Supervision (“Order”) with respect to both Counts One and

Two, with specific terms and conditions. See CR6. On August 19, 2013, the State

filed its First Amended Motion to Adjudicate Guilt (“Motion”). See CR 21.

       On March 14, 2014, a Hearing was held on the Motion. 2 RR at 1.

       On March 20, 2014, a Judgment Adjudicating Guilt (“Judgment”) was entered

and Tumlinson was sentenced to thirty (30) years confinement in the Texas

Department of Criminal Justice-Institutional Division (“TDCJ”) on Count One, and

twenty (20) years confinement in TDCJ on Count Two, to run concurrent. See CR51.

       On March 20, 2014, Tumlinson filed a Notice of Appeal. See CR49.

       On December 18, 2014, the Court of Appeals for the First District of Texas

affirmed the judgment of the district court.

       1

      “CR” refers to the Clerk’s Record, which is immediately followed by the Entry Number.
“RR” refers to the Reporter’s Record, which is immediately preceded by the Volume number and
immediately followed by the Reporter Record’s page number(s).

                                             1
                 STATEMENT OF PROCEDURAL HISTORY

      On December 18, 2014, the Court of Appeals for the First District of Texas

affirmed the Judgment of the District Court. A copy of that opinion is attached in the

Appendix. No Motion for Rehearing was filed in the appellate court.

                            GROUND FOR REVIEW

      Whether the Court of Appeals erred in affirming the District Court’s judgment

granting the State’s First Amended Motion to Adjudicate Guilt.

                                   ARGUMENT

      THE COURT OF APPEALS ERRED IN AFFIRMING THE
      DISTRICT COURT’S JUDGMENT GRANTING THE STATE’S
      FIRST AMENDED MOTION TO ADJUDICATE GUILT.

      A.     Standard of Review

      The decision to proceed to an adjudication of guilt is reviewed in the same

manner as a revocation of “ordinary” community supervision. Tex. Code Crim. Proc.

Ann. art. 42.12 § 5(b) (West Supp. 2010); Duncan v. State, 321 S.W.3d 53, 56 (Tex.

App.-Houston [1st Dist.] 2010, pet. ref'd). This Court reviews a decision to revoke

community supervision, and by extension a decision to adjudicate, for an abuse of

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

321 S.W.3d at 56-57. An order revoking community supervision must be supported

by a preponderance of the evidence. The State carries the burden of proving every

element of at least one revocation ground by a preponderance of the evidence. See

Pierce v. State, 113 S.W.3d 431, 437 (Tex.App.—Texarkana 2003, no pet. h.); citing

Tex. Code Crim. Proc. Art. 42.12 § 21 (Vernon Supp.2003).


                                          2
      B.     Discussion

      On March 20, 2014, the Court pronounced sentence in this case. 3 RR at 4. The

Court found that Tumlinson had violated certain terms and conditions of his deferred

adjudication probation, and revoked his community supervision for Count One,

alleging aggravated sexual assault of a child, and for Count Two, alleging indecency

with a child by contact, and sentenced him to serve 30 years confinement in TDCJ on

Count One, and 20 years confinement in TDCJ on Count Two, to run concurrent. Id.

      In the Motion, there were four (4) alleged violations of the terms and

conditions of Tumlinson’s community supervision at issue: (1) failure to support

dependents; (2) failure to maintain consistent employment; (2) failure to seek suitable

employment; and (4) failure to successfully participate in a sex offender treatment

program. See CR 21.

             (1)    Allegation Three– Failure to Successfully Participate in a Sex
                    Offender Treatment Program

      The Court of Appeals exclusively focused on the allegation that Tumlinson

failed to “successfully” participate in a sex offender treatment program in affirming

the District Court Judgment. Condition No. 2 of Tumlinson’s conditions of probation,

sex offender special conditions, stated simply:

      “A defendant shall attend and participate in a sex offender treatment
      program.”

Id.

      That condition did not define what constituted “successful” participation, or

require same. Defense counsel asserted that participation, as defined in the terms and


                                          3
conditions of community supervision, simply meant attendance at all meetings,

prompt payment of fees, and acknowledgment of responsibility for the defendant’s

offense. 2 RR at 188-89. O’Brien Counseling (“O’Brien”) records introduced into

evidence at the revocation hearing proved that Tumlinson had missed only four group

therapy sessions during the approximately five (5) years that he attended sex offender

therapy. State’s witness Henry John (“John”), who was a contract therapist with

O’Brien, testified at the revocation hearing that Tumlinson acknowledged

responsibility for his offense. See 2 RR at 3. John also testified that Tumlinson started

treatment at O’Brien on February 28, 2008, and continued with same into 2013, a

period of approximately five (5) years. 2 RR at 11. He further described the four (4)

levels of treatment at O’Brien, as well as Tumlinson’s participation in group therapy

and his advancement through those levels. 2 RR at 12-16.Therefore, evidence was

presented to the district court that Tumlinson did actively participate in a sex offender

treatment program, as defined in the terms and conditions of his community

supervision, which was all that was required of him.

      As noted, the Court of Appeals specifically focused on this one allegation,

stating that “because this ground is sufficient to support the trial court’s adjudication

of guilty, we do not need to reach Appellant’s challenges to the other grounds.” See

Tumlinson v. State, (No. 01-14-00238-CR) (Tex.App.– Houston [1st Dist.] December

18, 2014)(“Tumlinson”) at 8. In support of this premise, the Court of Appeals cited

Canseco v. State, 199 S.W. 3d 437, 438 (Tex.App.— Houston [1st Dist.] 2006, pet.

ref’d). The Court of Appeals further found that while Appellant was in the third phase


                                           4
of his sex offender therapy treatment, he identified previously undisclosed details of

his offense that had not been part of his existing treatment. See Tumlinson, at 7. As

a result, he was returned to the first phase of treatment. Id. After he returned to the

first phase of treatment, the Court of Appeals found that his active involvement in the

therapy sessions declined. Id. Further, when he did participate, his answers to

questions became more “tangential, indirect and vague.” Id. Ultimately, the decision

was made to terminate him from the therapy sessions and move him back to the first

level. Id. According to the Court of Appeals, these decisions were made by the

clinical staff with consultation from the probation department to which Tumlinson

reported.

      Tumlinson was removed from his original group therapy program in late July

of 2013. The State filed its motion to adjudicate in early August of 2013. At that time,

the Court of Appeals found that he was not involved in any group therapy program.

      It is essential to note that during the five (5) years that he attended his sex

offender therapy group, Tumlinson only missed four sessions, one as a result of being

evacuated due to Hurricane Ike. State witness John testified that Tumlinson was

making progress toward responsible treatment goals. See 2 RR at 3. Dr. Scott Hickey

(“Hickey”), a State of Texas licensed clinical psychologist and sex offender treatment

provider, testified that during his sex offender group therapy sessions with

Tumlinson, that he was an “attentive and cooperative group participant”, paying

attention to what others had to say and offering constructive feedback. See 2 RR at

108. The State’s decision to file a motion to adjudicate Tumlinson was wholly


                                           5
premature. There is no question that Tumlinson did successfully participate in a sex

offender treatment program for five years. During the short period of time that he was

not involved, he was seeking a new sex therapy program.

      For the above and foregoing reasons, Tumlinson prays that the Court of

Appeal’s decision affirming the District Court’s Judgment to revoke his community

supervision be reversed and remanded, that the Judgment of the District Court be

vacated, and that his community supervision be reinstated.

               (2 & 3)     Allegations One and Two – Failure to Maintain Consistent
                           Employment and Failure to Seek Suitable Employment

      To prevail on a motion to revoke based on lack of employment, the State must

show that a defendant failed to exercise diligence and good faith in seeking

employment. See Dureso v. State, 988 S.W.2d 448, 450-51 (Tex. App.—Houston [1st

Dist.] 1999, pet. ref'd). If it does, then the trial court’s decision to revoke community

supervision is sufficiently supported, and other grounds need not be addressed. Id.

Short periods of unemployment, during which the defendant demonstrates some effort

to obtain a job, will not support a finding that the defendant failed to secure and

maintain employment. See Dureso v.State, 988 S.W.2d at 450-51 (finding abuse of

discretion in revoking community supervision when defendant had been unemployed

for only one month, during which time defendant applied for jobs); Rehwalt v. State,

489 S.W.2d 884, 885 (Tex. Crim. App. 1973) (finding abuse of discretion in revoking

community supervision when State moved to revoke seven days after his employment

terminated).



                                           6
      In the revocation motion, the State alleged in paragraph 1 that Tumlinson failed

to maintain consistent employment, which the State claimed was a violation of the

rules, regulations and policies of the BCCSCD. (Emphasis added). See 2 RR at 186.

The Order stated in Condition E that Tumlinson was to:

       “Obey all rules, regulations and policies of the Brazoria County
      Community Supervision and Corrections Department.”

Id.

      At the revocation hearing, Tumlinson asserted that neither Jeffrey Morrison

(“Morrison”) nor Glenda Pegrenet (“Pegrenet”), who were employed as supervision

officers with BCCSCD and were familiar with Tumlinson, or any other witness

testified that maintaining consistent employment is a rule, regulation or policy of the

BCCSCD. Morrison and Pegrenet testified that it was a condition of Tumlinson’s

community supervision to maintain consistent employment, but that language was not

specifically stated in Term O, or anywhere else. Again, with respect to any alleged

violation of Term E, there was no testimony by any witness that it was a rule,

regulation or policy of the BCCSCD to maintain consistent employment. Id.

      The State also alleged in the motion that Tumlinson did not seek suitable

employment each and every month that he was on community supervision, in

violation of Term “O”. See CR 22. As such, the State’s burden was to prove that

Tumlinson did not seek suitable employment at any time during the entire term of his

community supervision. If Tumlinson was able to show at any time during the term

of his community supervision that he had sought suitable employment, which he

clearly did, then the State's request that he be revoked for that violation should have

                                          7
been denied. See Dureso, 988 S.W.2d at 450.

      To rebut the State’s allegations that Tumlinson failed to maintain consistent

employment, and that he failed to seek suitable employment, Tumlinson offered the

testimony of witnesses Mindy Tumlinson (Tumlinson’s wife) [2 RR at 128], Barbara

Jean Brown (Tumlinson’s aunt) [2 RR at 153-156], Corey Tumlinson (Tumlinson’s

sister) [2 RR at 158], Denise Ahmed (Tumlinson’s friend)[2 RR at 162], and Michael

G. Cummings (Tumlinson’s friend from church) [2 RR at 174] at the revocation

hearing. Their testimony proved by a preponderance of the evidence that Tumlinson

had maintained employment while on probation and was always obsessed with

finding work.

      Condition “O” of the Order stated that Tumlinson was to “seek suitable

employment in some lawful occupation.” It did not state that he could not be self

employed. See 2 RR at 187. Further, it did not direct or specify a number of times

Tumlinson had to seek employment. Id. It did not state that he had to go to one

interview a week, one interview a month, one interview every quarter, or eight

interviews a day. Id. Consequently, that language was impermissibly vague and

ambiguous, and did not give Tumlinson sufficient notice of what he was required to

do in order to comply. Id. Therefore, the District Court should not have found that

alleged violation to be true.

             (4)    Allegation Four– Failure to Support Dependents

      Condition “P” of the terms and conditions of Tumlinson’s community

supervision provided that he was to:


                                         8
        “support the dependents that you now have, or that you acquired during
       the term of this community supervision.”

2 RR at 189.

       However, that condition of probation did not require Tumlinson to support his

dependents at a certain level of his income, or to fully comply with any applicable

child support orders. Id. As such, it simply required him to provide support. Id. Over

the last thirty years, the U. S. Supreme Court, as well as Texas statutes, have

addressed the permissibility of revocation or incarceration when a defendant is unable

to pay amounts due pursuant to a community supervision order. See Gibson v. State,

383 S.W.3d 152 (Tex. Crim. App. 2012).

       In federal constitutional law, the seminal case is Bearden v. Georgia, 461 U.S.

660 (1983) (holding that a sentencing court could not revoke probation for a failure

to pay a fine or make restitution absent evidence and findings that the probationer

willfully failed to pay and that alternative forms of punishment would be inadequate

to meet the State’s interests). In Bearden, the Supreme Court explained that the

reason for a probationer's nonpayment is critical. “If the probationer has willfully

refused to pay the fine or restitution when he has the means to pay, the State is

perfectly justified in using imprisonment as a sanction to enforce collection.” Id. at

668.

       However, as here, if a probationer has made all reasonable efforts to pay

obligations pursuant to a community supervision order, and yet cannot do so fully

through no fault of his own, it is fundamentally unfair to revoke probation

automatically without considering whether adequate alternative methods of punishing

                                          9
the defendant are available. Id. The Supreme Court reasoned that it could be

unconstitutional to deprive a defendant of his liberty when he was unable to pay. Id.

at 672–73. Noting that “[d]ue process and equal protection principles converge in the

Court's analysis,” it concluded that, “[b]y sentencing petitioner to imprisonment

simply because he could not pay the fine, without considering the reasons for the

inability to pay or the propriety of reducing the fine or extending the time for

payments or making alternative orders, the court automatically turned a fine into a

prison sentence” in violation of the Fourteenth Amendment. Id. at 665, 674. This lack

of fault provides a “substantial reaso[n] which justifie[s] or mitigate[s] the violation

and make[s] revocation inappropriate.” Gagnon v. Scarpelli, 411 U.S. 778, 790

(1972); Cf. Zablocki v. Redhail, 434 U.S. 374, 400 (1978) (distinguishing, under both

due process and equal protection analyses, persons who shirk their moral and legal

obligation to pay child support from those wholly unable to pay). The defendant's

employment status and ability to obtain employment are also factors to consider in

determining the defendant's ability to pay. See Bearden, 461 U.S. at 672.

      With regard to Texas statutory law, at least a part of Tumlinson’s sufficiency

claim is governed by the ability-to-pay statute, which requires the State to prove, at

a revocation hearing, that a defendant was able to pay and failed to pay certain fees.

Tex. Code Crim. Proc. art. 42.12 § 21(c). This statute expressly applies to fees for

appointed counsel, community supervision, and court costs. Id. In Gibson, the trial

court revoked appellant’s community supervision, not only for failure to make those

payments explicitly listed in the statute, but also for failure to pay a fine and fees for


                                           10
Crime Stoppers and pre-sentence investigation, which are not specifically listed in the

statute. See Gibson, 383 S.W.3d at 158. The court of appeals determined that the

statute applied to all of the amounts unpaid by appellant because the legislative

history of the statute revealed that the Legislature intended that it conform to the due-

process requirements set forth in Bearden. Id. As discussed, however, the court of

appeals erred in construing the due-process requirement described in Bearden as an

evidence-sufficiency requirement. See Gibson, 347 S.W.3d at 896. In Gibson,

because the court of appeals misapplied Bearden in its analysis of the ability-to-pay

statute, the Court remanded that case so that the lower court could consider, in light

of its opinion, whether the ability-to-pay statute applied to appellant’s unpaid

amounts that were not explicitly listed in the statute. Gibson, 383 S.W.3d at 158. The

Texas Court of Criminal Appeals has specifically noted the Texas ability-to-pay

statute imposes an evidentiary burden on the State, and is reviewed under a

sufficiency of the evidence analysis. See Gibson, 383 S.W.3d at 159.

      In this case, the State failed to prove by a preponderance of the evidence that

Tumlinson had an ability to pay more child support than the amount he did pay. The

Court also failed to make any determination as to Tumlinson’s ability to pay.

Tumlinson did not “shirk” his obligation to pay support for his dependents. He made

an affirmative effort to do so, even though the amount of payment was less than his

court ordered child support.




                                           11
                        CONCLUSION AND PRAYER

      For the above and foregoing reasons, Tumlinson prays that the Court of

Appeal’s decision affirming the District Court’s Judgment to revoke his community

supervision be reversed and remanded, that the Judgment of the District Court be

vacated, and his community supervision be reinstated.

                               Respectfully submitted,

                               LAW OFFICES OF D. CRAIG HUGHES

                                /s/ D. CRAIG HUGHES
                               D. CRAIG HUGHES
                               State Bar No. 10211025
                               7322 Southwest Freeway, Suite 1100
                               Houston, Texas 77074
                               Tel - (713) 535-0683
                               Fax - (713) 981-3805
                               ATTORNEY FOR APPELLANT
                               CHARLES EDWARD TUMLINSON

       CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4

       I hereby certify that the above and foregoing brief complies with the
type-volume limitation of Tex. R. APP. P. 9.4(i) because it contains 2963 words,
excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1).
       This brief complies with the typeface requirements and the type style
requirements of TEX. R. APP. P. 9.4(e) because it has been produced on a computer
in conventional typeface using Times New Roman in 14 point font in the body of the
brief and Times New Roman 12 point font in the footnotes.


                               /s/ D. CRAIG HUGHES
                               D. CRAIG HUGHES




                                       12
                          CERTIFICATE OF SERVICE

       I hereby certify that on February 22, 2015, a true and correct copy of the above
and foregoing Appellant’s Petition for Discretionary Review was electronically filed
and electronically served on the Brazoria County Criminal District Attorney’s Office
and that on February 23, 2015, a true and correct copy of the above and foregoing
Petition of Discretionary Review was sent via U. S. Mail, postage prepaid, to the
State’s Prosecuting Attorney at P. O. Box 13046, Austin, Texas 78711-3046.



                                 /s/ D. CRAIG HUGHES
                                 D. CRAIG HUGHES




                                          13
Opinion issued December 18, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00238-CR
                           ———————————
               CHARLES EDWARD TUMLINSON, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 149th District Court
                          Brazoria County, Texas
                        Trial Court Case No. 50946


                          MEMORANDUM OPINION

      Appellant, Charles Edward Tumlinson, obtained deferred adjudication on

charges of aggravated sexual assault of a child1 and of indecency with a child by



1
      See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (2)(B) (Vernon Supp. 2014).
contact.2 The State filed a motion to adjudicate guilt on four grounds of violating

the terms of Appellant’s community supervision. Appellant pleaded not true to the

grounds.      The trial court found three of the four grounds true, adjudicated

Appellant’s guilt, and assessed punishment at thirty years’ confinement and twenty

years’ confinement, respectively, to be served concurrently.           In one issue,

Appellant argues the trial court abused its discretion by finding he violated the

named grounds of the terms of his community supervision.

        We affirm.

                                     Background

        Appellant pleaded guilty to a charge of aggravated sexual assault of a child

and a charge of indecency with a child by contact. The trial court accepted

Appellant’s pleas and placed him on 10 year’s deferred adjudication in November

2007.      One of the terms of Appellant’s community supervision concerned

participation in a sex offender treatment program. Specifically, Appellant was

required to

        attend and participate in a sex offender treatment program . . . and
        obey all rules, regulations and policies of the designated program until
        successful completion and/or further orders of the court. Program
        participation is defined as attendance at all meetings, prompt payment
        of fees, acknowledgement of responsibility for the defendant’s
        offenses, and progress toward responsible treatment goals.



2
        See TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon 2011).
                                           2
In its motion to adjudicate guilt, the State presented four grounds for determining

that Appellant had violated his community supervision requirements. In one of

those grounds, the State alleged that Appellant “failed to successfully participate in

sex offender treatment.”

      At the hearing on the motion, H. John testified. John is a licensed sex

offender therapist. He works for O’Brien Counseling, which provides counseling

services to the Brazoria County Probation Department. John led the group therapy

session that Appellant first attended as part of his community supervision

requirements.

      John testified that O’Brien Counseling’s sex offender therapy services are

based on four phases of treatment. Among other things, the first phase requires the

offender to acknowledge the specific acts committed. The second phase involves

the offender recognizing his thinking and behavior patterns and developing coping

responses. The third phase, known as the victim empathy phase, involves teaching

the offender to understand the perspective and feelings of the victim. In the last

phase, the offender develops mechanisms to prevent relapse and to function

independently of group counseling.

      John informed the court that O’Brien Counseling typically expects offenders

to complete the first phase between six months to a year. Appellant took just under

two years. After that, Appellant completed the second phase in a shorter time


                                          3
span. Once, he was in the third phase, however, Appellant reported details related

to his underlying offenses that he had not previously disclosed in his therapy.

Because he had not disclosed these details and incorporated them into his therapy,

the counselors at O’Brien Counseling decided Appellant would need to return to

the first phase of treatment to cover those additional details.

      After he was returned to the first phase of treatment, Appellant became less

invested in participating in his group therapy sessions. Over time, Appellant’s

accounts of the events of the offending acts became more inconsistent.         His

answers to questions became more tangential, indirect, and vague. Ultimately, the

decision was made to terminate Appellant from the therapy sessions. The decision

to move Appellant back to the first level and the decision to terminate Appellant

from the therapy sessions were not made by one individual. Instead, the decisions

were made by the clinical staff with consultation from the probation department to

which Appellant reported.

      Appellant’s group therapy sessions were terminated on July 24, 2013. The

State filed a motion to adjudicate guilt on August 2, 2013. A hearing on the

motion was not held until March 14, 2014.            Six weeks before the hearing,

Appellant joined another sex offender therapy group. The group was led by Dr. J.

S. Hickey. Dr. Hickey has a PhD in clinical psychology and is a sex offender

treatment provider. Dr. Hickey testified for Appellant at the hearing on the motion


                                           4
to adjudicate guilt. As a condition for participating in group sex abuse therapy, Dr.

Hickey required Appellant to receive individual therapy for other disorders he felt

Appellant had.3 Dr. Hickey testified that Appellant had been cooperative in five

out of the six therapy sessions Appellant had attended.

                              Adjudication of Guilt

      In his sole issue, Appellant argues the trial court abused its discretion by

finding he violated the named grounds of the terms of his community supervision.

A.    Standard of Review & Applicable Law

      A trial court’s determination on a motion to adjudicate is reviewable in the

same manner as a determination of a motion to revoke community supervision.

TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon Supp. 2014).                 A

revocation proceeding is neither criminal nor civil in nature; rather, it is an

administrative proceeding. Canseco v. State, 199 S.W.3d 437, 438 (Tex. App.—

Houston [1st Dist.] 2006, pet. ref’d). At a revocation hearing, the State must prove

by a preponderance of the evidence that the defendant has violated a condition of

his community supervision. Id. at 438. The State satisfies its burden if the greater

weight of credible evidence creates a reasonable belief that the defendant violated a

condition of his probation as alleged by the State. Solis v. State, 589 S.W.2d 444,

3
      John testified that he considered the possibility that Appellant had other
      psychological disorders that were preventing him from progressing in his
      treatment. John reviewed Appellant’s psychological examination results and
      determined that Appellant did not indicate “any clinical psychopathology.”
                                          5
447 (Tex. Crim. App. 1979); Armstrong v. State, 82 S.W.3d 444, 448 (Tex. App.—

Austin 2002, pet. ref’d). Proof of a single violation is sufficient to support a

revocation. Canseco, 199 S.W.3d at 439.

      Our review of an order adjudicating guilt and revoking community

supervision is limited to determining whether the trial court abused its discretion in

determining that the defendant violated the terms of his community supervision.

Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006); Duncan v.

State, 321 S.W.3d 53, 56–57 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).

We view the evidence in the light most favorable to the trial court’s order.

Canseco, 199 S.W.3d at 439; Duncan, 321 S.W.3d at 57. As the trier of fact at a

revocation proceeding, the trial court determines the credibility of the witnesses

and the weight to be given to their testimony. Armstrong, 82 S.W.3d at 448.

B.    Analysis

      In its motion to adjudicate guilt, the State alleged that Appellant had violated

four terms of his requirements for community supervision. One of the claims that

the trial court found true was the claim that Appellant had failed to successfully

participate in sex offender treatment.

      Under the terms of his community supervision, Appellant was required to

      attend and participate in a sex offender treatment program . . . and
      obey all rules, regulations and policies of the designated program until
      successful completion and/or further orders of the court. Program
      participation is defined as attendance at all meetings, prompt payment

                                          6
      of fees, acknowledgement of responsibility for the defendant’s
      offenses, and progress toward responsible treatment goals.

Appellant claims that the terms of his community supervision did not define what

successful participation meant. This is contradicted by the second sentence of this

term, which explicitly defines “program participation.” Appellant then asserts that

we should define successful participation to mean that Appellant attended the

meetings, promptly paid his fees, and acknowledged responsibility for his offense.

This definition excludes the written requirement that program participation

includes “progress toward responsible treatment goals.”

      John testified that the goals of the group sex offender therapy sessions

include completing four phases of treatment. At a certain point in his therapy,

Appellant had completed the first two phases. But while Appellant was in the third

phase, Appellant identified previously undisclosed details of the offense that had

not been part of his existing treatment. As a result, Appellant had to return to the

first phase of treatment. After Appellant returned to the first phase of treatment,

his active involvement in the therapy sessions declined. When he did participate,

his answers to questions became more tangential, indirect, and vague. Ultimately,

the decision was made to terminate Appellant from the therapy sessions. The

decision to move Appellant back to the first level and the decision to terminate

Appellant from the therapy sessions were not made by one individual. Instead, the



                                         7
decisions were made by the clinical staff with consultation from the probation

department to which Appellant reported.

      Appellant points out that Dr. Hickey testified that, at the time of the hearing,

Appellant was in a new group therapy program and had been cooperative in five

out of the six therapy sessions Appellant had attended. Appellant argues that this

shows that he did actively participate in a sex offender treatment program.

      Appellant was removed from his original group therapy program in late July

2013. The State filed its motion to adjudicate guilt in early August 2013. At that

time, Appellant was not involved in any group therapy program, let alone

successfully participating in one. The simple fact that Appellant took steps to stop

violating this term of his community supervision six months after he began

violating it does not establish that no violation occurred. See Canseco, 199 S.W.3d

at 439 (holding proof of single violation is sufficient to support revocation).

      The State’s burden of proof was by a preponderance of the evidence. Id. at

438. We review the trial court’s ruling for an abuse of discretion. Rickels, 202

S.W.3d at 763. We hold that Appellant has failed to establish that the trial court

abused its broad discretion by determining that Appellant violated this term of his

community supervision. Because this ground is sufficient to support the trial

court’s adjudication of guilt, we do not need to reach Appellant’s challenges to the

other grounds. See Canseco, 199 S.W.3d at 439; TEX. R. APP. P. 47.1 (requiring


                                          8
appellate courts to address every issue raised and necessary to final disposition of

the appeal).

      We overrule Appellant’s sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                               Laura Carter Higley
                                               Justice

Panel consists of Justices Keyes, Higley, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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