                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-14-00180-CR


MICHAEL WADE RIDDLE                                               APPELLANT

                                         V.

THE STATE OF TEXAS                                                     STATE


                                      ----------

          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
                      TRIAL COURT NO. 41,428-C

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                         MEMORANDUM OPINION 1

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      Appellant Michael Wade Riddle appeals from the revocation of his

community supervision and resulting sentence. Finding no abuse of discretion in

the revocation, we affirm the trial court’s judgment.




      1
       See Tex. R. App. P. 47.4.
                                I. BACKGROUND

              A. DEFERRED ADJUDICATION COMMUNITY SUPERVISION

      On September 30, 2004, Riddle pleaded guilty to aggravated sexual

assault. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West Supp. 2014). The

trial court deferred adjudicating Appellant’s guilt and placed him on community

supervision for ten years. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a)

(West Supp. 2014). Appellant’s community supervision was governed by several

conditions, including conditions requiring him to (1) “[c]ommit no offense against

the laws of this State or of any other State or of the United States”; (2) “[a]void

injurious or vicious habits, namely alcoholic beverages, marihuana, narcotics or

other habit-forming drugs”; (3) pay monthly court costs, supervision fees, fines,

and sexual-offender fees; and (4) either successfully complete a sexual-abuse-

treatment program “as determined by the treatment specialist(s)” or remain in

such a program until the expiration of Appellant’s community-supervision term.

See id. art. 42.12, §§ 11, 13B(a)(2), 19.

                           B. ADJUDICATION HEARINGS

      On October 30, 2006, the State filed a motion to proceed to adjudicate

Appellant’s guilt, alleging that Appellant had violated the community-supervision

terms. See id. art. 42.12, § 21(e). After the trial court set and reset the hearing

multiple times, Appellant requested the appointment of an expert, which the trial

court apparently granted. On June 4, 2007, the State amended its motion to

proceed to adjudication and alleged that Appellant had violated the four


                                            2
community-supervision terms previously recited. The trial court began a hearing

on the State’s motion to revoke on July 18, 2007.

      Appellant pleaded not true to the violation allegations.     At the hearing,

Appellant’s community-supervision officer, Michael Richards, testified that on

September 20, 2006, Appellant “admitted to using cocaine for about a month”

when Richards requested that Appellant submit to a random drug test. Richards

further testified that Appellant had failed to pay court costs, supervision fees,

fines, and sex-offender fees.

      Emily Orozco, a treatment provider at Appellant’s sex-offender-treatment

program, testified that Appellant had been discharged from the program because

he had repeated contact with children, consorted with “individuals of disreputable

character,” did not cooperate in therapy, continued to have “ongoing deviant and

repeated sexual fantasies” (some of which involved the nine-year-old

complainant in the underlying offense), and committed other offenses, including

assaulting his disabled wife. Orozco summed up why Appellant was discharged

from the program: “He showed a pattern of deliberate chronic violations that not

only violated his stipulation of probation, his treatment agreement, but basically,

he had committed new offenses.”

      The State alleged that Appellant had committed the new offense of injury

to a disabled individual, i.e., his wife. See Tex. Penal Code Ann. § 22.04 (West

Supp. 2014).    At the revocation hearing, Appellant’s wife testified about the

offense, which occurred on September 10, 2006, while Appellant was high on


                                        3
cocaine. She stated that she must use a walker and, occasionally, a wheelchair.

After the State rested its case, the trial court set the remainder of the adjudication

hearing for August 15, 2007.

      On August 7, 2007, Appellant’s counsel, Dorie Glickman, filed a sworn

motion to continue the hearing because she would be on vacation and because

she had not received the court-appointed expert’s curriculum vitae. The trial

court continued the hearing date until October 31, 2007. On October 18, 2007,

Glickman filed a sworn motion to continue the adjudication hearing because the

court-appointed expert, Ron Burks, and a fact witness, Ron Perrett, were not

available to testify on October 31. Glickman stated in the motion that Perrett was

a “necessary” witness who would testify to Appellant’s “character” and “prior

candidacy for supervision.”       She further stated that Burks “can evaluate

[Appellant] regarding his present candidacy for sex offender probation, and

whether or not Ms. Orozco’s treatment and administration of [Appellant] falls

within the standard of care.” The trial court denied the motion.

      Before the October 31 hearing began, 2 Glickman again raised the motion

to continue on Appellant’s behalf asserting that Perrett, “who had supervised




      2
       The clerk’s record contains an order purporting to extend the hearing on
the State’s motion from October 31 to November 14. However, the reporter’s
record reflects that evidence on the State’s motion to proceed to adjudication
was heard on October 31. It appears this order actually continued the
punishment hearing and not the adjudication hearing as noted.


                                          4
[Appellant] on probation in the past and was able to work with him for five years,”

was not available to testify. The trial court explained why it denied the motion:

      [T]his case has been set and reset on numerous occasions and
      usually at the request of [Appellant’s attorney]. In fact, it was reset
      specifically for the purposes of allowing experts to come into the fold,
      . . . so . . . this matter was originally set . . . in May of 2007. We
      eventually got started in July of 2007. . . . Since that time, it’s been
      set again on more than one occasion. And it’s . . . time for it to be
      moved along.

Glickman called two character witnesses, James Rasmussen and Gary

Southard, who testified to Appellant’s difficult upbringing and to their opinions

that Appellant would be a good candidate for further community supervision.

Glickman also called Dr. John F. Butler, who had reviewed Orozco’s records

regarding Appellant.    Butler stated that because Orozco had not evaluated

Appellant’s risk factors or Appellant’s intellectual ability, she could not have

accurately determined the appropriate treatment for him.

      After the State and Appellant presented closing arguments, the trial court

concluded that Appellant had committed a new offense by causing injury to a

disabled person, failed to avoid injurious or vicious habits by admitting to cocaine

use, failed to pay court costs, failed to pay supervision fees, failed to pay a sex-

offender fee, and failed to successfully complete the sex-offender program.

Thus, the trial court found those allegations to be true. The trial court found not

true the allegation that Appellant failed to pay a fine. The trial court adjudicated

Appellant guilty of the underlying offense. See id. art. 42.12, §§ 5(b), 21(b-2).




                                         5
Appellant asked for a two-week continuance to gather evidence relevant to

punishment, which the trial court granted to November 14, 2007.

                             C. PUNISHMENT HEARING

      At the November 14 hearing, Appellant’s counsel, Tony Odiorne, 3 stated

that he did not intend to call any witnesses for the purposes of punishment but

wanted to submit a report from Butler, which was still being prepared. 4 The trial

court stated that it would review the report when it was prepared and would then

“determine whether or not there is a need to have any further hearing.” On

November 28, 2007, the trial court set a punishment hearing for December 13,

2007. The next day, Glickman filed a motion to supplement evidence “with a

report by . . . Butler,” which the trial court granted.        In the report, Butler

recommended that Appellant “be given a trial of treatment with . . . Burks for a

period of about six months” to fully exhaust “all local re[s]ourses.”

      At the hearing on December 13, 2007, another public defender

representing Appellant, Brennon Brady, 5 noted that Glickman was unable to be

present but that he was “ready” and “prepared” to proceed regarding sentencing.


      3
       Like Glickman, Odiorne was with the public defender’s office and had
represented Appellant since the State filed its motion to proceed to adjudication.
      4
       The State averred that it would rely on the evidence presented at the
adjudication hearings in arguing the appropriate punishment.
      5
        Brady was the initial attorney from the public defender’s office whom the
trial court appointed to represent Appellant in the revocation proceeding. The
public defender’s office also represented Appellant in the underlying offense.


                                          6
Brady stated that Appellant was “concern[ed]” that Glickman was not present and

that Appellant desired a continuance, but Brady believed that Glickman’s

absence was not an issue because no evidence would be presented. The trial

court denied the continuance because “there is to be no evidence presented

today, nor are there to be any arguments presented. . . . [A]ll there is left to do is

the sentencing.” Appellant then directly addressed the trial court:

      I’ve trusted my attorney. This is twice that she has not been here. I
      understand that this Court is trying to dispose of this case. Also,
      please understand with this Court that I do have some stuff I would
      like to go over my attorney with that I think might make a difference
      in this. I do need Dorie Glickman here to take care of this for me as
      she has been acting as my attorney. I understand that she has a
      family emergency. I was told the same thing the last time we were
      here. I don’t know what’s going on, Your Honor, nobody’s told me
      anything. But I would like my attorney to be present and I do ask for
      that continuance until my attorney can be here.

The trial court again denied Appellant’s motion for a continuance because there

would be no presentation of evidence. Brady asked that Appellant’s objection be

“noted.” The trial court, after stating that it had considered Butler’s report and the

evidence admitted at the adjudication hearings, sentenced Appellant to life

confinement because Appellant had shown “a disregard of the order of

community supervision” and group therapy “did not appear to have any positive

impact on [Appellant] at all.”




                                          7
                                     D. APPEAL

      Appellant filed the instant appeal. 6 In seven points, he argues that (1) the

evidence was insufficient to support the trial court’s true findings, (2) the trial

court erred by denying the October 18 motion for continuance, (3) the trial court

erred by refusing to allow closing arguments at the punishment hearing, and (4)

his community-supervision condition regarding his sex-offender program was not

properly modified; thus, it could not serve as a basis for adjudication or

revocation.

                      II. SUFFICIENCY OF THE EVIDENCE

      In his third, fourth, sixth, and seventh points, Appellant argues that the

evidence was insufficient to support the trial court’s findings that he violated his

community-supervision conditions. We conclude that the trial court did not abuse

its discretion by finding these alleged violations true.

                              A. STANDARD OF REVIEW

      We review an order revoking community supervision under an abuse of

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

2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In a

revocation proceeding, the State must prove by a preponderance of the evidence

that the defendant violated the terms and conditions of community supervision.

      6
       The court of criminal appeals twice granted Appellant an out-of-time
appeal. Ex parte Riddle, No. WR-78748-02, 2014 WL 1328387, at *1 (Tex. Crim.
App. Apr. 2, 2014); Ex parte Riddle, No. AP-76946, 2013 WL 172825, at *1 (Tex.
Crim. App. Jan. 16, 2013).


                                           8
Hacker v. State, 389 S.W.3d 860, 864–65 (Tex. Crim. App. 2013). The trial court

is the sole judge of the credibility of the witnesses and the weight to be given

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

court’s ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172,

174 (Tex. Crim. App. [Panel Op.] 1981). If the State fails to meet its burden of

proof, the trial court abuses its discretion in revoking the community supervision.

Cardona, 665 S.W.2d at 493–94. Proof by a preponderance of the evidence of

any one of the alleged violations of the conditions of community supervision is

sufficient to support a revocation order. Moore v. State, 605 S.W.2d 924, 926

(Tex. Crim. App. [Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871

(Tex. Crim. App. [Panel Op.] 1980).

                                  B. APPLICATION

                             1. Commit New Offense

      Appellant argues in his seventh point that the evidence was insufficient to

show that his wife was disabled such that his assault on her constituted an injury

to a disabled individual. 7 See Tex. Penal Code Ann. § 22.04(a). A disabled

person is “a person older than 14 years of age who by reason of age or physical

or mental disease, defect, or injury is substantially unable to protect [herself] from

harm or to provide food, shelter, or medical care for [herself].” Id. § 22.04(c)(3).

Once again, the preponderance of the evidence is a lesser standard of proof than

      7
      Appellant specifically does not challenge the sufficiency of the evidence to
support a finding that he assaulted his wife.


                                          9
is required in a criminal trial. See Hacker, 389 S.W.3d at 864–65. Thus, a

defendant may be acquitted of a criminal offense and still have his community

supervision revoked based on the same act. Polk v. State, 729 S.W.2d 749, 750

n.1 (Tex. Crim. App. 1987); Black v. State, 411 S.W.3d 25, 30 (Tex. App.—

Houston [14th Dist.] 2013, no pet.).

      Here, Appellant’s wife testified that she was thirty-five years old, she

depended on a walker and a wheelchair to get around, and she received social-

security-disability payments. She was disabled after she was assaulted in 1999

and suffered nerve damage. She stated that she was unable to protect herself

from Appellant because of her disability. Two police officers who investigated

Appellant’s wife’s complaint after Appellant assaulted her testified that she was

unable to take care of herself and appeared to be physically and mentally

disabled.   This evidence meets the preponderance standard and sufficiently

supported the trial court’s reasonable conclusion that Appellant had violated this

community-supervision condition. See, e.g., Jones v. State, No. 02-12-00199-

CR, 2013 WL 5675360, at *1 (Tex. App.—Fort Worth Oct. 17, 2013, no pet.)

(mem. op., not designated for publication); Miles v. State, 343 S.W.3d 908, 913–

14 (Tex. App.—Fort Worth 2011, no pet.); cf. Morgan v. State, 365 S.W.3d 706,

708–09 (Tex. App.—Texarkana 2012, no pet.) (holding evidence of disability

sufficient to support conviction for injury to a disabled individual). We overrule

point seven.




                                       10
      Although sufficient evidence of one violation is enough to support an

adjudication and revocation, we will address Appellant’s remaining sufficiency

arguments in an abundance of caution. See Joseph v. State, 3 S.W.3d 627, 641

(Tex. App.—Houston [14th Dist.] 1999, no pet.).

                                   2. Payment

      In point three, Appellant asserts that the evidence was insufficient to show

he failed to pay court costs, the supervision fee, and the sexual-offender fee

because there was no allegation or showing that Appellant’s failure to pay was

intentional or that he had the ability to pay. See Tex. Code Crim. Proc. Ann. art.

42.12, § 21(c).

      Richards testified that Appellant made some, but not all, monthly payments

for fees and costs while on deferred adjudication community supervision. He

further stated that Appellant held numerous jobs during this time. Appellant did

not introduce evidence contradicting the fact that he was employed and was able

to make monthly payments.        The State showed by a preponderance that

Appellant was able to pay and intentionally did not pay as ordered. Therefore,

the trial court did not abuse its discretion by finding the nonpayment allegations

true. Cf. Brown v. State, 354 S.W.3d 518, 520 (Tex. App.—Fort Worth 2011, pet.

ref’d) (mem. op.) (finding trial court appropriately declined to revoke community

supervision on failure-to-pay basis because State offered no evidence of ability to

pay or that failure was intentional); Corpus v. State, 26 S.W.3d 660, 662 (Tex.

App.—Corpus Christi 2000, no pet.) (applying prior version of section 21(c),


                                        11
which provided inability to pay was affirmative defense that defendant must prove

by a preponderance, and concluding evidence sufficient to show appellant

intentionally failed to make required payments); Joseph, 3 S.W.3d at 641–42

(applying prior statute and concluding evidence sufficient to infer defendant’s

failure to pay was intentional). We overrule point three.

                         3. Habitual Use of Illegal Drug

      In his fourth point, Appellant argues the evidence was insufficient to

support the trial court’s finding that he engaged in the habitual use of habit-

forming drugs because his admitted cocaine use did not qualify as habitual. See

Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)(2).

      Appellant’s community-supervision condition mandated that Appellant

“[a]void injurious or vicious habits, namely alcoholic beverages, marihuana,

narcotics or other habit-forming drugs.” Richards testified that Appellant admitted

he had been using cocaine for a month but did not tell Richards “exactly

specifically how many times.” Appellant is correct that a single use of an illegal

drug cannot be characterized as a habit. See Garcia v. State, 571 S.W.2d 896,

900 (Tex. Crim. App. 1978). However, Appellant admitted to Richards that he

had been using cocaine for a month. Further, even though there was evidence

that Appellant had passed a drug test given the week before his admission,

Richards explained that cocaine stays in a user’s system only “for approximately

two to three days,” which would not rule out habitual use. Under the applicable

preponderance standard and viewing the evidence in favor of the trial court’s


                                        12
finding, this evidence was sufficient to create a reasonable belief that Appellant

did not avoid the injurious habit of cocaine use. 8 See generally Hacker, 389

S.W.3d at 865 (explaining preponderance-of-evidence standard). We overrule

point four.

              4. Successful Completion of Sexual-Abuse Program

      In his sixth point, Appellant contends that the preponderance of the

evidence did not show he violated the condition regarding successful completion

of the sexual-abuse program because he was not allowed to attempt to complete

the program “until [his] term of supervision has expired.”         This condition

mandated that Appellant “shall remain in the Sexual Abuse Treatment Program

until the program has been successfully completed, as determined by the

treatment specialist(s), or until [Appellant’s] term of supervision has expired.”

The determination of whether Appellant successfully completed the program was

left to the discretion of the treatment specialists, and the evidence does not show

that they abused their discretion in discharging Appellant from the program. See

Leonard v. State, 385 S.W.3d 570, 577 (Tex. Crim. App. 2012). Appellant’s


      8
       We disagree with the State’s argument that Appellant’s single use of
cocaine, if only a single use were proven, was sufficient to support adjudication
and revocation because any use of cocaine would have violated the condition.
The cases cited by the State are inapposite because the conditions in those
cases clearly barred injurious habits as well as any use of illegal drugs. See,
e.g., Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977); Kirk v. State,
No. 01-99-01184, 2001 WL 279211, at *1–2 (Tex. App.—Houston [1st Dist.] Mar.
22, 2001, no pet.) (not designated for publication). Appellant’s condition was not
so worded.


                                        13
treatment specialist testified that Appellant was discharged from the program

based on “a pattern of deliberate chronic violations that not only violated his

stipulation of probation, his treatment agreement, but basically, he had

committed new offenses.” Because he was discharged, Appellant could not have

stayed in the program until his supervisory period expired.          In short, once

Appellant was discharged, he was unable to attempt to complete the program

before his supervisory period ended. The preponderance of the evidence was

sufficient to support revocation on this basis. See, e.g., Newman v. State, No.

07-10-00016-CR, 2011 WL 691624, at *2–3 (Tex. App.—Amarillo Feb. 28, 2011,

no pet.) (mem. op., not designated for publication). We overrule point six.

                       III. PROCEDURAL COMPLAINTS

                           A. DENIAL OF CONTINUANCE

      In his first point, Appellant argues that the trial court abused its discretion

by denying his October 18, 2007 sworn, written motion for continuance filed

before the October 31, 2007 adjudication hearing. See Tex. Code Crim. Proc.

Ann. arts. 29.06–.08 (West 2006). In order to show reversible error based on the

denial of a pretrial motion for continuance, Appellant must show both that the trial

court erred in denying the motion and that the lack of a continuance harmed him.

See Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010). Trial court

error requires “a showing that the case made for delay was so convincing that no

reasonable trial judge could conclude that scheduling and other considerations

as well as fairness to the state outweighed the defendant’s interest in delay of the


                                        14
trial.” Id. To establish harm, the record must show with “considerable specificity”

how Appellant was harmed by the absence of more preparation time than he

actually had. Id. at 842.

      Appellant has failed to meet this high standard. The trial court explained

its analysis behind the denial—multiple, previous delays at Appellant’s request—

which was reasonable and indicated that Appellant’s case for delay did not

outweigh other, valid considerations.    See, e.g., Rogers v. State, No. 14-12-

00546-CR, 2013 WL 1867080, at *4–5 (Tex. App.—Houston [14th Dist.] May 2,

2013, no pet.) (mem. op., not designated for publication). Further, the record is

not sufficiently specific to demonstrate that Appellant was harmed. 9 Appellant

asserts in his brief that Perrett “may have conducted an . . . assessment and may

have determined the IQ of [Appellant] prior to setting up the treatment program

for him, thus explaining the reason [Appellant] appeared to have dropped in his

performance after the program provider changed.” This is too speculative to

establish the requisite quantum of harm. 10 See, e.g., Harrison v. State, 187

S.W.3d 429, 434 (Tex. Crim. App. 2005). We overrule point one.

      9
        The court of criminal appeals has held that a motion for new trial,
accompanied by an evidentiary hearing, usually is necessary to show harm from
any trial court error in denying a motion for continuance. See, e.g., Gonzales,
304 S.W.3d at 842–43. Appellant did not file a motion for new trial.
      10
       We note that the evidence Appellant claims would have been introduced
through Perrett’s testimony—the lapses in Orozco’s treatment—was admitted
through Butler’s testimony at the October 31 adjudication hearing. This further
undermines Appellant’s argument that he was harmed by the denial of a
continuance.


                                        15
                        B. DENIAL OF CLOSING ARGUMENT

      In his second point, Appellant contends that the trial court abused its

discretion by refusing to allow closing argument before the trial court imposed

punishment.    Neither Appellant nor his attorneys objected to the trial court’s

stated intention to decide punishment without closing arguments.            Appellant

asked for a continuance until Glickman could be present but did not indicate that

he desired to make a closing argument to the trial court. We conclude Appellant

has forfeited any error arising from the trial court’s decision to decide punishment

without closing arguments. See Habib v. State, 431 S.W.3d 737, 740–41 (Tex.

App.—Amarillo 2014, pet. ref’d). See generally Tex. R. App. P. 33.1(a). We

overrule point two.

                          C. MODIFICATION OF CONDITION

      Appellant argues in his fifth point that the trial court abused its discretion by

revoking his probation on the basis of the successful-completion condition

because the condition was not properly modified to allow him to attend Orozco’s

treatment program instead of Perrett’s treatment program.

      First, because we have concluded that the preponderance of the evidence

sufficiently supported the trial court’s decision to revoke Appellant’s community

supervision on the basis of three other condition violations, the alleged failure to

properly modify this condition would not result in relief to Appellant. See, e.g.,

Moore, 605 S.W.2d at 926 (holding proof by a preponderance of one violation

sufficient to support revocation order).


                                           16
      Second, the record reveals that Appellant attended the program approved

by the county’s community-supervision department as the condition required:

“The Defendant is ordered to appear in person, as ordered by the Community

Supervision and Corrections Department for treatment in the Sexual Abuse

Treatment Program on an out-patient basis.” [Emphasis added.] The county

changed the approved provider of the program approximately one year after

Appellant began participating in the program.        The community-supervision

condition required Appellant to participate in the program approved by the

county’s community-supervision department.      Because the condition required

Appellant to participate in the county’s approved program, no modification was

needed to compel Appellant to participate in the approved program when the

county changed the approved provider of the program. Cf. Tex. Code Crim.

Proc. Ann. art. 42.12, § 10(d) (allowing modification of community-supervision

conditions if defendant is transferred to “different programs within the community

supervision continuum of programs and sanctions”); Witkovsky v. State, 320

S.W.3d 425, 430–31 (Tex. App.—Fort Worth 2010, pet. ref’d, untimely filed) (op.

on PDR) (concluding modification requirements of section 10 applied when State

conceded probation officer transferred defendant from one approved treatment

program to another program within continuum of county’s approved treatment

programs). We overrule point four.




                                       17
                                IV. CONCLUSON

      Finding no abuse of discretion and having overruled Appellant’s points, we

affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).



                                                   /s/ Lee Gabriel

                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 23, 2014




                                        18
