                                                                              PD-0602-15
                           PD-0602-15                      COURT OF CRIMINAL APPEALS
                                                                           AUSTIN, TEXAS
                                                          Transmitted 5/20/2015 1:01:26 PM
                                                           Accepted 5/22/2015 10:30:03 AM
                                                                            ABEL ACOSTA
                IN THE COURT OF CRIMINAL            APPEALS                         CLERK
                         OF AUSTIN, TEXAS


PATRICK BOND,                        §
         Appellant                   §
                                     §        NO.
VS.                                  §
                                     §
THE STATE OF TEXAS,                  §
         Appellee                    §


ON PETITION FOR DISCRETIONARY REVIEW FROM THE DECISION
              OF THE COURT OF APPEALS FOR
  THE SECOND DISTRICT OF TEXAS, AT FORT WORTH, TEXAS
                   IN CAUSE NO. 02-14-00314-CR
    AFFIRMING APPELLANT'S CONVICTION AND SENTENCE
                   IN CAUSE NO. 1324387D
         HONORABLE MOLLEE WESTFALL, PRESIDING
            FROM THE 371ST DISTRICT COURT OF
                 TARRANT COUNTY, TEXAS



  APPELLANT'S PETITION FOR DISCRETIONARY REVIEW



 May 22, 2015
                           Richard A. Henderson
                           State Bar No. 09427100
                      RICHARD A. HENDERSON, P.C.
                      100 Throckmorton Street, Suite 540
                            Fort Worth, Texas 76102
                           817-332-9602 - Telephone
                            817-335-3940 - Facsimile
                           richard(örahenderson. corn

                   ATTORNEY FOR APPELLANT, PATRICK BOND
                                            SUBJECT INDEX

IDENTITY OF PARTIES AND COUNSEL ...........................................................ii
TABLEOF AUTHORITIES....................................................................................iii
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENTOF THE CASE ................................................................................. 1
STATEMENT OF PROCEDURAL HISTORY.......................................................2
GROUNDFOR REVIEW.........................................................................................2
REASONFOR REVIEW..........................................................................................2
      GROUNDONE.................................................................................................2
CONCLUSIONAND PRAYER...............................................................................3
CERTIFICATE OF COMPLIANCE ........................................................................4
CERTIFICATE OF SERVICE.................................................................................. 5
APPENDICES...........................................................................................................6
         Appendix "A"
          (Opinion of the Court of Appeals Second District of Texas,
          Fort Worth, Texas)
         Appendix "B"
          (Motion for Rehearing)
         Appendix "C"
          (Order denying appellant's motion for rehearing)
                     IDENTITY OF PARTIES AND COUNSEL
         The following is a complete list of all parties pursuant to Texas Rules of
Appellate Procedure 68.4(a):
      1. Mr. Patrick Bond, TDC#1979158
         1358 FM 3328
         Palestine, Texas 75803
         Defendant/Appellant
      2. Mr. Edward E. Castillo
         2101 Moneda Street
         Fort Worth, Texas 76111
         Trial Attorney for Defendant
      3. THE STATE OF TEXAS
         Ms. Erin W. Cofer
         Assistant Criminal District Attorney, Tarrant County
         Trial Attorney
         Mr. Charles Mallin
         Former Chief of Appellate
         Tarrant County District Attorney's Office
         Mr. Joe Shannon, Jr.
         Former Criminal District Attorney
         Tarrant County, Texas
         Ms. Debra Windsor, Chief, Post -Conviction
         Assistant Criminal District Attorney
         Tarrant County, Texas
         Ms. Sharen Wilson
         Criminal District Attorney
         Tarrant County, Texas
         401 W. Belknap Street, Fort Worth, Texas 76196
         Plaintiff/Appellee
      4. Honorable Mollee Westfall
         Judge, 37 1st District Court
         401 W. Belknap Street
         Fort Worth, Texas 76196
         Trial Judge

      5. Richard A. Henderson
         100 Throckmorton Street, Suite 540
         Fort Worth, Texas 76102
         Attorney for Appellant
                                          11
                                TABLE OF AUTHORITIES

CASES

Leblanc v. State,
  908 S.W.2d 572 (Tex. App. —Ft. Worth 1995, no pet).......................................3

Mathis v. State,
  PD 053 6-1 (Tex. Crim. App. 2014) ....................................................................3

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



Code:

Tex.Code Crim. Proc. art. 42.12 Sec. 11(b)..............................................................2




                                                    111
              STATEMENT REGARDING ORAL ARGUMENT

      Petitioner believes that oral argument would aid the court in deciding the

critical issues presented.




                             STATEMENT OF THE CASE

      Appellant was originally placed on deferred adjudication probation for

retaliation. A Petition to Proceed to Adjudication was filed alleging four violations

of probation including possessing weapons, failure to pay probation fees, failure to

complete community service and failing to attend anger control counseling (CR

30-32). The pleas to the court were not true to all violations (RR2: 6-8). The

Trial court found the possession of a weapon allegation to be not true on the oral

record. The judgment and docket entries indicate a true finding to all four

allegations, in error. The court found all of the three other allegations to be true.

The court adjudicated Appellant guilty of the original charge of retaliation and

sentenced Appellant to seven years in the Institutional Division of the Texas

Department of Criminal Justice.




                                          1
                   STATEMENT OF PROCEDURAL HISTORY

      The Court of Appeals issued its Opinion affirming the conviction on April 9,

2015. A Motion for Rehearing was e-filed by Appellant on April 23, 2015. The

Motion for Rehearing was overruled by the Second Court of Appeals on April 30,

2015. This Petition for Discretionary Review is timely if filed on or before May

30, 2015.


                           GROUND FOR REVIEW

GROUND ONE: Is it an abuse of discretion by the trial court to revoke probation
             when the underlying causes of the revocation are economic
             inability to pay?


                            REASON FOR REVIEW

Reason for Review Ground One:

      Economic inability to pay cannot be the basis for the revocation of probation

and finding Appellant had violated these terms of probation was an abuse of

discretion. Tex.Code Crim. Proc. article 42.12 Sec. 11(b) states that the trial court

SHALL (Emphasis added) consider the ability of a defendant to make payments
under article 42.12 Sec. 11, Leblanc vs State 908 S.W.2d 572 (Tex. App. —Ft.

Worth 1995 no pet). This is a mandatory provision according to this court in

Mathis vs. State, PD 0536-1 (Tex. Crim. App. 2014), see also Mayer vs. State, 309

S.W.3d 552 (Tex.Crim. App. 2010).

      In this case, there was no evidence that Appellant had the ability to pay the

probation fees nor for anger control counseling. Moreover, the testifying probation

officers stated that Appellant's reasons for many of his probation difficulties were

the result of economic hardship for lack of a job. Appellant had been evicted from

his apartment (RR2: 27-28, 52-54, 56,59).      It was an abuse of discretion to find

Appellant in violation of these terms of his probation.

      The Court of Appeals should have ruled that the trial court abused its

discretion and reversed the case.



                         CONCLUSION AND PRAYER

      WHEREFORE, Appellant respectfully prays that this Court reverse the

decision of the Court of Appeals and the Trial Court and remand this cause to the

court of Appeals and to order the trial court to conduct a new hearing.




                                          3
                                     Respectfully Submitted,

                                     RICHARD A. HENDERSON, P.C.
                                     Two City Place
                                     100 Throckmorton Street, Suite 540
                                     Fort Worth, Texas 76102
                                     (Telephone) 817-332-9602
                                     (Telecopier) 817-335-3940
                                     E-mail: richard1rahenderson. corn


                                     By:
                                            Richard A. Henderson
                                            State Bar No. 09427100

                                     ATTORNEY FOR APPELLANT


                     CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of TEx.R.APP. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of TEx.R.APP. P. 9.4(i) because it contains 1,080 words,

excluding any parts exempted by TEx.R.APP.P. 9.4(i)(1), as computed by the

word-count feature of Microsoft Office Word 2010, the computer so          used to

prepare the document.


                                            Richard A. Henderson


                                        4
                        CERTIFICATE OF SERVICE

      A true copy of the Appellant's Brief has been electronically served on

opposing counsel, Ms. Debra Windsor, Assistant Criminal District Attorney, Chief,

Post-Conviction, Tarrant County District Attorney's Office, 401 W. Belknap

Street, Fort Worth, Texas 76196 and mailed U.S. Regular Mail to Appellant,

Mr. Patrick Bond, TDCJ #1979158, Joe F, Gurney Unit, 1358 FM 3328, Palestine,

Texas 75803 on this the 20th day of May 2Ol



                                     Richard A. Henderson




                                        5
APPENDICES
     APPENDIX "A"

      OPINION OF
   COURT OF APPEALS
SECOND DISTRICT OF TEXAS
      Fort Worth
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-14-00314-CR


PATRICK BOND                                                            APPELLANT

                                         V.

THE STATE OF TEXAS                                                            STATE




        FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 1324387D



                         MEMORANDUM OPINION'



                                  I. INTRODUCTION

      Appellant Patrick Bond appeals from the trial court's order revoking his

deferred adjudication community supervision and adjudicating him guilty of

retaliation. In a single issue, Bond argues that the trial court abused its discretion




      'See Tex. R. App. P. 47.4.
by finding that he had violated his deferred adjudication community supervision.

We will affirm.

                          II. PROCEDURAL BACKGROUND

      On May 10, 2013, Bond pleaded guilty, pursuant to a plea agreement, to

the third-degree felony of retaliation. See Tex. Penal Code Ann. § 36.06(a)(1)

(West 2011). Following this plea, the trial court placed him on two years'

deferred adjudication community supervision and imposed a $200 fine.

      On May 22, 2014, the State filed its first petition to proceed to adjudication

alleging four categories of violations: that Bond (1) possessed a firearm; (2)

failed to pay the $60 monthly supervision fee in each of the six months listed; (3)

failed to participate in and complete twenty hours of monthly community service

during each of the nine months listed; and (4) failed to participate in or

successfully complete anger control counseling in June and July 2013.

      At the hearing on the State's first petition to proceed to adjudication, Bond

pleaded "not true" to each of the allegations in the State's petition. After hearing

testimony from two community supervision officers and a senior court officer, the

trial court found the allegations in paragraphs 2, 3, and 4 to be true and that


       2Although  the docket contains the note that "Crt finds para # 1, 2, 3, & 4
true" and the judgment adjudicating guilt states that "[w]hile on community
supervision, Defendant violated the terms and conditions of community
supervision as set out in the State's ORIGINAL Motion to Adjudicate Guilt as
attached: PARAGRAPHS ONE, TWO, THREE, AND FOUR (J" the trial court
stated on the record that it found the allegation in paragraph I to be not true and
that it found the allegations in paragraphs 2, 3, and 4 to be true. Because the
oral pronouncement controls, we need not address Bond's argument that the trial
Bond had violated the terms and conditions of his community supervision;

revoked his deferred adjudication community supervision; adjudicated him guilty

of the offense of retaliation; and sentenced him to seven years' confinement.

                             III. STANDARD OF REVIEW

      Appellate review of the decision to adjudicate guilt is "in the same manner"

as review of the revocation of community supervision. Tex. Code Crim. Proc.

Ann. art. 42.12, § 5(b) (West Supp. 2014). 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. Cobb v. State, 851 S.W.2d 871, 873 (Tex.

Crim. App. 1993). 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

court abused its discretion by finding the allegation in paragraph I to be true. Cf.
Taylor v. State, 131 S.W.3d 497, 500, 502 (Tex. Crim. App. 2004) (stating that
when there is a conflict between the oral pronouncement of sentence and the
sentence in the written judgment, the oral pronouncement controls).
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).

                             IV. No ABUSE OF DISCRETION

         In Bond's sole issue, he contends that the trial court abused its discretion

by finding that he had violated the terms of his deferred adjudication community

supervision, arguing that economic inability to pay prevented his compliance with

the conditions requiring that he perform community service hours, that he pay

monthly supervision fees, and that he participate in anger control counseling.

Specifically, Bond argues that he was having economic issues that made doing

community service difficult and that economic inability to pay cannot be the basis

for revocation of community supervision.

         During the hearing on the State's first petition to proceed to adjudication,

one of Bond's community supervision officers testified that Bond was required to

complete twenty hours of community service each month, that she had discussed

this requirement with him at every single office visit, and that she had given Bond

referrals to Goodwill and to Mission Arlington.           Bond's other community

supervision officer testified likewise that she had informed Bond of his obligation

to complete his community service at every one of his visits and that Bond did

not comply with multiple referrals for community service. Bond never told her

how his unemployment prevented him from completing community service. Bond


                                           ri
did not complete the required twenty hours of community service during each of

the nine months from August 2013 through April 2014; one month he completed

sixteen hours, one month three hours, and several months zero hours. He

completed a total of sixty hours; if he had completed his monthly twenty-hour

quota, he would have had ample time to discharge his obligation during the nine-

month time period.

      Reviewing the evidence in the light most favorable to the trial court's ruling,

we hold that the State proved by a preponderance of the evidence that Bond

violated the condition of his community supervision that required him to complete

150 hours of community service restitution at the rate of no fewer than twenty

hours per month. See, e.g., Elizondo v. State, 966 S.W.2d 671, 672-73 (Tex.

App.—San Antonio 1998, no pet.) (holding that the finding that Elizondo had

failed to comply with term of probation requiring him to perform his community

service hours was sufficient to support revocation); Trevino v. State, No. 08-13-

00234-CR, 2015 WL 181657, at *2 (Tex. App.—El Paso Jan. 14, 2015, no pet.)

(not designated for publication) (upholding revocation of community supervision

because State proved by a preponderance of the evidence that appellant had

failed to complete his court-ordered community service at the required rate).

Bond does not contest the fact that he did not complete the required community

service hours; he instead argued in the trial court and argues on appeal that his

unemployment and consequent financial difficulties made it hard for him to do so.

As the sole judge of the weight of the evidence, the trial court was free to believe
the testimony of the State's witnesses and to be skeptical of Bond's argued

excuse. See, e.g., Cardona, 665 S.W.2d at 493; accord Crisp v. State, No. 07-

11-00254-CR, 2013 WL 1226911, at *2 (Tex. App.—Amarillo, Mar. 26, 2013, no

pet.) (mem. op., not designated for publication) (rejecting application of "inability-

to-pay" affirmative defense to community-service condition of community

supervision); Sanchez v. State, No. 07-11-00246-CR, 2012 WL 5392106, at *1

(Tex. App.—Amarillo Nov. 5, 2012, no pet.) (mem. op., not designated for

publication) (explaining that trial court was free to reject excuses provided by

defendant for failure to complete community-service requirement). Accordingly,

we hold that the trial court did not abuse its discretion by revoking Bond's

deferred adjudication community supervision, adjudicating Bond guilty of the

offense of retaliation, and sentencing him to seven years' imprisonment. See

Rickels, 202 S.W.3d at 763; Moore, 605 S.W.2d at 926 (holding that proof of any

one violation is sufficient to support revocation order). We overrule Bond's sole

issue.

                                    V. CONCLUSION

         Having overruled Bond's sole issue, we affirm the trial court's judgment.


                                                     PER CURIAM

PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.

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

DELIVERED: April 9, 2015


                                           1-1
                                      Gal
                           COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-14-00314-CR

Patrick Bond                              § From the 371st District Court

                                          § of Tarrant County (1324387D)

V.                                        §   April 9, 2015

                                           § Per Curiam

The State of Texas                         § (nfp)

                                     JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was no error in the trial court's judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS

                                       PER CURIAM
    APPENDIX "B"

MOTION FOR REHEARING
                          IN THE COURT OF APPEALS
                      FOR THE SECOND DISTRICT OF TEXAS
                             FORT WORTH, TEXAS

                                   NO. 02-14-00314-CR

PATRICK BOND,
      APPELLANT                                  From the 371ST District Court

                                                 of Tarrant County
VS.                                        IL
                                                  Trial Court Case No.13243871)

THE STATE OF TEXAS,
     APPELLEE


                   APPELLANT'S MOTION FOR REHEARING
TO THE HONORABLE COURT OF APPEALS:
         COMES NOW, Patrick Bond, Appellant in the above-styled and numbered appeal,

and, pursuant to Rule 49.5(c) of the Texas Rules of Appellate Procedure, hereby files this

Motion for Rehearing, and asks the Court to reconsider and withdraw its opinion of April 9,

2015 and shows as follows:


      1. Appellant respectfully requests the court to reconsider its opinion ruling against
         Appellant and withdraw its opinion and issue a new opinion granting him relief.




Appellant's Motion for Rehearing                                                    Page 1
      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully requests the

court to reconsider its opinion of April 9,2015 and prays the court to withdraw its opinion

and submit a new opinion in favor of Appellant.

                                          Respectfully submitted,

                                          RICHARD A. HENDERSON P.C.
                                          100 Throckmorton Street, Suite 540
                                          Fort Worth, Texas 76102
                                          Telephone: 817-332-9602
                                          Facsimile: 817-335-3940




                                          State Bar No. 09427100

                                          ATTORNEY FOR APPELLANT



                            CERTIFICATE OF SERVICE

      A true copy of the Appellant's Motion for Rehearing has been electronically served
on opposing counsel, Ms. Debra A. Windsor, Assistant Criminal District Attorney,
Post-Conviction, Tarrant County District Attorney's Office, 401 W. Belknap Street, Fort
Worth, Texas 76196, via the State's e-mail address, coappellatealerts@tarrantcountv.com
and mailed, U.S. Regular Mail to Appellant, Patrick Bond, TDCJ #1979158, Joe F.
                                                                      23rd day of April
Gurney Unit,1358 FM 3328, Palestine, JT5 803 on this
2015.


                                                  A. Henderson




Appellant's Motion for Rehearing                                                     Page 2
         APPENDIX "C"
ORDER ON MOTION FOR REHEARING
                                                                         tILL COPY




                        COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00314-CR


PATRICK BOND                                                         APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE




        FROM THE 371 ST DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 1324387D




      We have considered "Appellant's Motion for Rehearing."

      It is the opinion of the court that the motion for rehearing should be and is

hereby denied and that the opinion and judgment of April 9, 2015, stand

unchanged.

      The clerk of this court is directed to transmit a copy of this order to the

attorneys of record.

      DATED April 30, 2015.


                                                   PER CURIAM

PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.
