14-15-00606-CR-Affirmed as Reformed; and 14-15-00607-CR-Affirmed
Memorandum Opinion filed August 30, 2016.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-15-00606-CR
                              NO. 14-15-00607-CR



                        LEWIN E. BEARD, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 212th District Court
                          Galveston County, Texas
              Trial Court Cause Nos. 12-CR-1192 & 12-CR-1305

                 MEMORANDUM OPINION

      Appellant Lewin E. Beard appeals his convictions for (1) assault causing
bodily injury – family violence by strangulation, with a previous conviction for a
similar offense, and (2) aggravated assault with a deadly weapon. In two issues,
appellant contends the trial court abused its discretion in revoking his probation
because there was evidence that appellant’s probation officer was aware of
appellant’s inability to pay court-ordered costs and fees as well as his lack of
transportation, and there was insufficient evidence to prove appellant committed
the new offense of evading arrest. We affirm.

                                  BACKGROUND

       Appellant entered pleas of guilty to the offenses of (1) assault causing
bodily injury – family violence by strangulation, with a previous conviction for a
similar offense, and (2) aggravated assault with a deadly weapon. The parties
agreed to a punishment recommendation of two years’ deferred adjudication
community supervision. On November 2, 2012, the trial court signed orders
deferring adjudication of appellant’s guilt in each case and assessing punishment in
accordance with the recommendation.

      The State subsequently filed motions to adjudicate guilt and revoke
community supervision in each case, which resulted in orders modifying the
conditions of appellant’s probation. In April 2015, the State filed its final motions
to adjudicate guilt, as amended, and alleged appellant had violated six conditions
of his probation. In appellant’s assault causing bodily injury case, the State alleged
appellant violated the conditions of his probation by:

          Committing the offense of evading arrest or detention, with a previous
           conviction.
          Failing to report in person to the supervision officer for the months of
           November and December 2014 and January 2015.
          Failing to pay court costs.
          Failing to reimburse Galveston County for compensation of appointed
           counsel.
          Failing to participate in the community work program.
          Failing to enroll in a domestic violence and/or anger control program.

In appellant’s aggravated assault case, the State alleged appellant violated the

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conditions of his probation by:

           Committing the offense of evading arrest or detention, with a previous
            conviction.
           Failing to report in person to the supervision officer for the months of
            November and December 2014 and January 2015.
           Failing to pay supervision fees.
           Failing to pay court costs.
           Failing to pay the Crime Stoppers Program payment.
           Failing to participate in the community work program.
      On June 18, 2015, the trial court held a hearing on the State’s motions to
revoke and adjudicate guilt. At the beginning of the hearing, appellant entered
pleas of true to two of the violations alleged in each case: that he failed to report in
person to the probation department and that he failed to participate in the
community work program. Appellant stated on the record that he was not coerced
or forced into entering his pleas of true. Appellant entered pleas of not true to all
remaining allegations.

      Probation officer Brittany Fowler testified at the hearing. Fowler testified
that the conditions of appellant’s probation were modified twice. Fowler further
testified regarding whether appellant had complied with the conditions of his
probation. Fowler testified that appellant violated condition number one, to not
commit any new offenses, when he was arrested for evading arrest or detention.
Fowler further testified that appellant had failed to pay in full all of the court-
ordered fees and costs, which were requirements of his probation. Appellant
reported to Fowler that he was employed at Preferred Construction, but Fowler
never received verification of employment. Fowler discussed the failure to pay fees
with appellant during each of the approximately ten office visits they had together.
At least a couple of times, appellant told Fowler that he was behind on payments

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because “he didn’t have it or work was down or child support.” Fowler provided
appellant with information regarding possible jobs for which he could apply, but
did not know whether appellant ever followed up on that information.

          Fowler further testified that appellant was required to enroll in a domestic
violence or anger management class within thirty days as one of the conditions in
his assault causing bodily injury case, but had failed to do so. Fowler stated that
she discussed his failure to enroll during each of their meetings and appellant
informed her that he did not have the money to enroll. Fowler explained that
appellant was given a list of agencies offering an available course and that each
agency charges different prices for the course. Finally, Fowler summarized the
details of each of appellant’s underlying offenses and recommended appellant’s
probation be revoked in each case.

          During cross-examination, Fowler testified that appellant had told her on a
few occasions that he was unable to report in person because he had trouble
finding transportation. According to Fowler, when appellant had access to
transportation, he reported in person. Fowler further testified that she was unaware
of appellant having money and simply refusing to pay the court-ordered costs and
fees. Additionally, Fowler testified that appellant had complied with some of his
probation conditions and that not all violations were alleged in the motions to
revoke. Finally, Fowler stated that appellant had told her he was bipolar and
receiving mental health services, but he did not provide any documentation to that
effect.

          Sergeant Michael Allen of the Hitchcock Police Department also testified.
On April 1, 2015, Allen was off duty and not in uniform when he stopped at the
Power Mart convenience store and gas station in Hitchcock, Texas. Allen testified
that he noticed appellant in the store because Allen had known him since appellant

                                            4
was fifteen years old. Allen further testified that he is a warrant officer and knew
that appellant had at least two active warrants for his arrest. According to Allen,
appellant did not see him when Allen first walked into the store. But appellant
appeared to recognize him when he turned around and saw Allen because appellant
“looked surprised.” Allen further testified that he said to appellant, “Lewin, you
know you have these felonies and I can’t let that ride.” Allen then testified that he
put appellant up against a counter and performed a safety pat-down, removing his
phone, credit card, and cash. According to Allen, appellant cooperated but did not
speak. Allen had left his phone and weapon in his car so he asked a female
employee of the Power Mart to call 911. The employee responded by saying: “Are
you playing?” At that point, Allen testified that he could tell appellant, who had a
history of running, was getting ready to try to run.

      Despite Allen’s best efforts, appellant escaped from Allen’s hold and ran out
the front door of the store. Knowing he would be unable to catch him, Allen went
to his car to alert fellow officers and to set up the search perimeter. Allen watched
appellant run north on FM 519 in Hitchcock and set the perimeter accordingly.
With the assistance of additional officers, appellant was located after a couple of
hours. When the officers apprehended appellant, he apologized to Allen for
running from him.

      On cross-examination, Allen reemphasized that appellant knew who Allen
was, regardless of whether Allen was wearing his police uniform. Allen admitted
that he did not identify himself as a police officer or show appellant a badge, but
stated that appellant was well aware that Allen was an officer.

      Officer Jamaliah Davis of the Hitchcock Police Department also testified as
to the events of April 1, 2015. According to Davis, the Department’s
communications division received a call that a black male, later identified as

                                          5
appellant, was fighting with off-duty Sergeant Allen at the Power Mart. Davis was
dispatched to the scene, where she witnessed appellant “ascending” several fences
in a neighboring subdivision. Davis testified that several citizens and business
owners called to report a black male running in front of their businesses or coming
into the businesses and asking to use the phone. A perimeter was soon established
in the area. Although Davis never yelled for appellant to stop, she testified that
someone else did. She further testified that all officers dispatched to the scene were
on duty and in uniform.

      Deputy Billy Kilburn of the Galveston County Sheriff’s Office was called as
a fingerprint expert to verify appellant’s identity for use of his previous conviction.
Kilburn’s testimony and the judgment for appellant’s prior conviction for evading
arrest or detention were admitted over objection.

      Appellant testified that in late 2014, he lost his job and was evicted from his
home, which made it difficult to report to his probation officer and pay fines, fees,
and court costs. Appellant stated that had he been employed, he would have paid
his fines, fees, and court costs “to the best of ability.” Appellant further testified
that he was assigned to perform community service in Santa Fe, Texas, but that he
moved to Texas City, Texas, and did not have any transportation. Appellant
claimed he asked to have his community service assignment changed to Texas City
but was unable to contact the authorities in charge. According to appellant, he
believed that the substance abuse class he completed sufficiently fulfilled all class
requirements, including anger management.

      Appellant also testified regarding his initial encounter with Sergeant Allen at
the Power Mart. According to appellant, Allen came up behind him and grabbed
him while he was at the cash register, without saying anything. Appellant stated
that Allen never identified himself as a police officer or showed him a badge.

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Because appellant did not know who was grabbing him, he “threw him off” and
ran out of the store. Appellant testified that he would have surrendered himself had
he known Allen was an officer. On cross-examination, appellant stated that
although he had known Sergeant Allen for approximately eight years, he had never
seen him in plain clothes and would not recognize him without a police uniform.
When asked why his immediate response to someone touching him from behind
was to fight them off and run outside of the store, appellant stated that “there was a
lot of things going on at that time as far as the news-wise.”

      Appellant conceded on the record that he pled true to failing to report in
person to his probation officer and failing to participate in his community work
program, and appellant acknowledged accepting responsibility for these violations.
Appellant further confirmed that on both prior occasions when the conditions of
his probation were modified, he told the court and probation officers that he would
be able to complete his probation.

      Carl Beard, appellant’s cousin, testified as to appellant’s loss of
employment. Carl had previously employed appellant to assist with building
houses but eventually had to let him go when business became too slow.
According to Carl’s testimony, however, appellant was working for him fairly
regularly in 2012, 2013, and 2014.

      At the conclusion of the hearing, the trial court found there was sufficient
evidence to support all six of the allegations alleged in each of the State’s motions
to adjudicate guilt and revoke probation. Following a punishment phase, the court
sentenced appellant to 17 years’ imprisonment in the Institutional Division of the
Texas Department of Criminal Justice for each offense, with the sentences to run
concurrently.



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                                     ANALYSIS

      In two issues, appellant contends the trial court abused its discretion in
revoking his probation because there was evidence that appellant’s probation
officer was aware of appellant’s inability to pay court-ordered costs and fees as
well as his lack of transportation, and there was insufficient evidence to prove
appellant committed the new offense of evading arrest. We will address appellant’s
issues together.

      In reviewing a probation revocation, we examine the evidence in the light
most favorable to the trial court’s findings to determine whether the trial court
abused its discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
2006). The State must prove, by a preponderance of the evidence, that appellant
violated the conditions of probation in order to succeed on a motion to revoke
probation. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). A plea
of true to any one of the alleged violations is sufficient to support the trial court’s
order of revocation. See Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App.
1979); Moore v. State, 11 S.W.3d 495, 498 n.1 (Tex. App.—Houston [14th Dist.]
2000, no pet.). Once a plea of true has been entered, a defendant may not challenge
the sufficiency of the evidence to support the subsequent revocation. See Rincon v.
State, 615 S.W.2d 746, 747 (Tex. Crim. App. 1981); Cole, 578 S.W.2d at 128.

      Because appellant entered pleas of true in both cases to the allegations that
he failed to report in person to the probation department and that he failed to
participate in the community work program, he cannot now challenge the
sufficiency of the evidence to support the subsequent revocations of his probation.

      Nevertheless, the evidence presented at appellant’s revocation hearing is
sufficient to prove by a preponderance of the evidence that appellant violated his
probation. In community supervision revocation cases, a claim of insufficient

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evidence is limited to the traditional legal-sufficiency analysis, in which we view
the evidence in the light most favorable to the decision to revoke. See Hart v. State,
264 S.W.3d 364, 367 (Tex. App.—Eastland 2008, pet. ref’d). The State has the
burden to establish by a preponderance of the evidence that appellant committed a
violation of the terms and conditions of community supervision. Cardona v. State,
665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The preponderance-of-the-evidence
standard is met when the greater weight of the credible evidence before the trial
court supports a reasonable belief that a condition of community supervision has
been violated. Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim. App. 2006).
When the State fails to meet its burden, it is an abuse of discretion for the trial
court to issue a revocation order. Cardona, 665 S.W.2d at 493–94. In a revocation
proceeding, the trial judge is the sole trier of the facts, the credibility of the
witnesses, and the weight to be given their testimony. Diaz v. State, 516 S.W.2d
154, 156 (Tex. Crim. App. 1974).

      The State alleged, among other violations, that appellant violated his
community supervision by committing the offense of evading arrest or detention.
A person commits this offense if he intentionally flees from a person he knows is a
peace officer or federal special investigator attempting lawfully to arrest or detain
him. Tex. Penal Code Ann. § 38.04(a) (West 2015). Appellant contends the
evidence was insufficient because Sergeant Allen failed to identify himself as a
police officer and did not present a badge. Appellant further argues that he did not
recognize Allen, despite having had previous encounters with him. According to
appellant, he would not have run away had he known Allen was a police officer.

      Appellant’s argument amounts to an attack on the credibility of the State’s
evidence. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).
Allen testified that he had known appellant for many years and that appellant

                                          9
would recognize him, even out of uniform. Although appellant did not notice Allen
immediately, Allen testified that appellant appeared to recognize him upon sight.
Allen further testified that prior to conducting a safety pat-down on appellant, he
stated, “Lewin, you know you have these felonies and I can’t let that ride.” While
Allen attempted to call for backup, appellant fled. Allen testified that appellant
later apologized for fleeing. The fact-finder is the sole judge of the credibility of
the witnesses and strength of the evidence, and we must presume that the fact-
finder resolved any conflicts in favor of the prevailing party. Bargas v. State, 252
S.W.3d 876, 887 (Tex. App.—Houston [14th Dist.] 2008, no pet.). We conclude
the greater weight of credible evidence before the trial court supports the trial
court’s reasonable belief that it is more probable than not that appellant violated a
condition of community supervision by evading arrest.

      Appellant further argues that the State failed to carry its burden under
Article 42.12, section 21(c) of the Texas Code of Criminal Procedure to prove
appellant had the ability to pay all court-ordered fees and had transportation
available to him. Section 21(c), also known as the “ability-to-pay statute,” provides
that when the only allegation at a community supervision revocation hearing is that
the defendant failed to pay fees or court costs, the State must prove by a
preponderance of the evidence that the defendant was able to pay and did not pay
as ordered by the judge. Tex. Code Crim. Proc. Art. 42.12 § 21(c).

      The ability-to-pay statute was addressed in the sole case cited by appellant,
Gipson v. State, 383 S.W.3d 152 (Tex. Crim. App. 2012), in the context of a
probation revocation hearing where the trial court revoked Gipson’s probation
based only on his plea of true to an allegation of failure to pay. The Texas Court of
Criminal Appeals reversed and remanded the case for the court of appeals to
determine, inter alia, whether the ability-to-pay statute applies to unpaid amounts

                                         10
that are not explicitly listed in the statute. Id. at 158. Ultimately, following remand,
the Court of Criminal Appeals held that the plain language of section 21(c) applies
only when the State alleges violations of probation based on failure to pay specific
fees and costs enumerated in the statute, not when the State alleges violations
based on failure to pay fines. Gipson v. State, 428 S.W.3d 107, 108 (Tex. Crim.
App. 2014) (“Gipson II”). The court noted that the Legislature easily could have
included the word “fines” in the language of the statute if it wished to include them
and that fines, unlike fees and costs, are punitive in nature, not remedial. Id. at
108–09.

      Here, appellant attempts to extend the language of the ability-to-pay statute
to include his failure to report to his probation officer and his failure to perform
community service hours, which the Court of Criminal Appeals has implicitly held
he cannot do. See Gipson II, 428 S.W.3d at 108–09. Moreover, appellant’s
probation was revoked in each case after the court found true six violations of his
community supervision conditions as alleged by the State. See id. at 112–13
(Johnson, J., concurring) (reading section 21(c) to apply when the only violations
alleged are ones that center on failure to pay and noting that, in that case, the State
also alleged offense of theft and failure to avoid contact with victim of probated
offense; concluding that section 21(c) would not apply based on presence of those
non-monetary allegations). Thus, section 21(c) does not apply, and appellant
cannot demonstrate the trial court abused its discretion in revoking his probation.

      Accordingly, we overrule appellant’s two issues.

      Finally, we note that the judgment in cause number 12-CR-1192 for the
offense of assault causing bodily injury contains a clerical error. The record
reflects the trial court found true the State’s allegations in paragraph numbers 1, 4,
13, 16, 26, and 35. The judgment incorrectly states, however, that the judge found

                                          11
true paragraph numbers 1, 4, 12, 13, 16A, and 26. Accordingly, we reform the trial
court’s judgment to reflect the judge found true paragraph numbers 1, 4, 13, 16, 26,
and 35. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (stating
appellate court has authority to reform a judgment to “speak the truth”).

      We affirm the trial court’s judgment in cause number 12-CR-1192, as
reformed, and affirm the judgment in cause number 12-CR-1305.




                                       /s/    J. Brett Busby
                                              Justice



Panel consists of Justices Busby, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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