                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00511-CR

ALLEN LEEROY DOWNEY                                                  APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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                        MEMORANDUM OPINION 1

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      In one issue, appellant Allen Leeroy Downey appeals his conviction for

indecency with a child by contact. 2    Appellant argues that his sex offender

treatment provider denied him due process by discharging him from a sex

offender treatment program after he refused to take a polygraph test. We affirm.



      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 21.11(a)(1), (c)(1) (West 2011).
                                Background Facts

      A grand jury indicted appellant with committing indecency with a child,

alleging that he had touched the breast of a child while intending to arouse and

gratify his sexual desire. Appellant pled guilty to that offense while receiving

admonishments about the effects of doing so, waiving constitutional and statutory

rights, and judicially confessing.

      The trial court deferred its adjudication of appellant’s guilt and placed him

on community supervision for ten years.         As conditions of the community

supervision, the trial court ordered him to, among other terms, abstain from using

narcotics or other habit-forming drugs, complete 240 hours of community service,

pay monthly supervision and sex offender fees, successfully complete a sex

offender treatment program, and submit to polygraph examinations.

      As part of pleading guilty, appellant received and signed a document

informing him that on violation of “a condition” of community supervision, he

could be arrested, detained, and convicted for his offense. Also, appellant and

his attorney signed another document stating,

            The Defendant was advised that under the laws of this State,
      the court has determined and imposed the . . . conditions of
      community supervision . . . . The Defendant was further advised that
      the Court has the authority, at any time during the community
      supervision set forth above, to revoke the Defendant’s community
      supervision for any violation of the above terms and conditions.
      [Emphasis added.]

      Almost six years after the trial court placed appellant on community

supervision, the State filed a petition for the trial court to revoke it and to


                                        2
adjudicate appellant’s guilt. The petition alleged that appellant had violated each

of the conditions mentioned above by using illegal drugs on several occasions

over the course of four years; being 203 hours behind schedule in performing

community service; having delinquent balances for supervision and sex offender

fees, and failing to remain in the sexual abuse treatment program because,

among other reasons, he had missed a polygraph session. Appellant pled not

true to these allegations.

      After considering the evidence and witnesses presented by the parties at a

contested hearing on the State’s petition, the trial court found that appellant had

violated all of the conditions specified in the petition, revoked his community

supervision, found him guilty of indecency with a child by contact, and sentenced

him to twenty years’ confinement. Appellant brought this appeal.

                      Appellant’s Due Process Complaint

      In his only issue, appellant argues that he “was denied his right to due

process of law when his sex offender treatment provider discharged him from her

sex offender treatment program.” In January 2012, appellant’s probation officer,

Michael Richards, assigned him to attend sex offender treatment with Emily

Orozco. 3 According to Orozco’s testimony at the adjudication hearing, appellant

failed to attend his first scheduled session in her program. When he arrived at

      3
       Orozco, who has a master’s degree in education and counseling, has
been a licensed sex offender treatment provider since 2001 and has treated
many sex offenders since then. The record establishes that before 2012,
appellant attended sex offender treatment with another counselor.


                                        3
his next scheduled session a week later, he admitted that he had missed the first

session because he had been using cocaine, and he stated that he had been

abusing substances at the time of his offense. Orozco testified that from January

2012 until May 2012, appellant missed several therapy sessions while he

continued to use cocaine. Because of his continued cocaine use, Orozco wanted

him to take a polygraph exam before he could continue in the program. He

refused, and based on that refusal, Orozco discharged him from the program on

May 2, 2012. 4

      At the adjudication hearing, Richards testified that under his watch,

appellant had committed many violations of community supervision, including, by

admission, using cocaine ten times; 5 failing to complete his community service

hours (he had completed only thirty-seven hours at the time of the hearing); and

falling behind on his monthly fee payments.

      Appellant contends that in violation of the United States and Texas

constitutions and of a Texas statute, Orozco denied him due process by

discharging him from the sex offender treatment program for failing to take a


      4
        Prior to May 2012, appellant had taken at least ten polygraph
examinations during his community supervision term. Orozco testified that her
purpose in requiring polygraph examinations is to “determine whether
[probationers] are following the guidelines set for them outside of the treatment
setting.”
      5
       After learning of appellant’s continuing use of cocaine, Richards arranged
for appellant to attend outpatient drug treatment twice and a ninety-day inpatient
drug treatment program once. Appellant relapsed after each of these treatments.


                                        4
polygraph examination. Specifically, he argues that the discharge violated his

right against compelled self-incrimination 6 because the polygraph that he refused

to submit to would have revealed incriminating facts about his drug use. This is

an argument that we do not need to resolve, however, because even assuming

its validity, we must still affirm the trial court’s judgment of conviction.

      We review a trial court’s decision to revoke community supervision for an

abuse of discretion. See Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App.

2013); see also Witkovsky v. State, 320 S.W.3d 425, 428 (Tex. App.—Fort Worth

2010, pet. dism’d).     In a revocation proceeding, the State must prove by a

preponderance of the evidence that the defendant violated at least one condition

of his community supervision. See, e.g., Bryant v. State, 391 S.W.3d 86, 93

(Tex. Crim. App. 2012); Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort

Worth 2012, no pet.); Cantu v. State, 339 S.W.3d 688, 691–92 (Tex. App.—Fort

Worth 2011, no pet.) (mem. op.); see also Long v. State, No. 02-12-00090-CR,

2013 WL 1337975, at *3–4 (Tex. App.—Fort Worth Apr. 4, 2013, pet. ref’d)

(mem. op., not designated for publication) (explaining that even a violation of a

condition that a defendant considers to be technical or minor may support a trial

court’s revocation decision).

      Recently, in Dansby v. State, the court of criminal appeals carved out an

exception to the rule that the State must only prove one violation of a community

      6
       See U.S. Const. amend. V (explaining that no one “shall be compelled in
any criminal case to be a witness against himself”).


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supervision condition to sustain a revocation order. See 398 S.W.3d 233, 241–

43 (Tex. Crim. App. 2013). Dansby pled guilty to indecency with a child, and a

trial court placed him on five years’ deferred adjudication community supervision.

Id. at 234. Dansby agreed to conditions requiring him to complete a sex offender

treatment program and to submit to polygraph tests at his probation officer’s

discretion.   Id.   After about a year of treatment, his sex offender treatment

provider asked him to submit to a sexual history polygraph test. Id. Dansby went

to the polygrapher’s office for the test but refused to submit to it when he

understood that he would be asked questions about prior sexual offenses. Id. at

235. A few months later, Dansby’s sex offender treatment provider discharged

him from the program. Id.

      The State filed a motion to proceed to adjudication that alleged two

grounds for revocation.     Id.   First, the motion claimed Dansby’s refusal to

participate in the sexual history polygraph violated condition 30 of his community

supervision, which required him to submit to polygraphs. Id. Second, the State

alleged that he had violated condition 36, which required him to “attend and

successfully complete the Sex Offender Treatment Program.”            Id.     After a

hearing, the trial court found that Dansby had violated both conditions alleged by

the State and adjudicated him guilty of indecency with a child. Id. at 239.

      On appeal, Dansby argued that the trial court had unconstitutionally

revoked his community supervision in violation of his Fifth Amendment privilege

against self-incrimination. Id. Relying on the well-settled principle that the State


                                         6
must prove only one violation of a condition, the court of appeals affirmed the

revocation of Dansby’s community supervision because he failed to successfully

complete sex offender treatment, and the court of appeals did not address

Dansby’s Fifth Amendment argument. Id.

      The court of criminal appeals granted Dansby’s petition for discretionary

review and held that the court of appeals had erred by declining to address the

Fifth Amendment issue. Id. at 242–43. While the court acknowledged that an

appellate court is usually entitled to rely on a single violation in affirming a

revocation of community supervision, it reasoned that “this approach can work

only if the violation upon which the reviewing court relies to uphold the trial

court’s ruling is itself unquestionably free of constitutional taint.” Id. at 241. The

court further reasoned that before the State can take advantage of the rule that

one violation may support revocation on appeal, it “must demonstrate from the

record that the one violation upon which it relies on appeal is supportable

independent of whatever constitutional taint arguably inheres in the other.” Id.

The court held that the record supported a strong inference that Dansby was only

discharged from his sex offender treatment program because he invoked his Fifth

Amendment privilege. Id. at 242. Therefore, the Court reasoned that Dansby

only violated condition 36 as a result of his refusal to comply with condition 30.

See id. Because the conditions were inextricably linked, the Court remanded the

appeal to the court of appeals with an instruction to consider the constitutional

issue. See id. at 243.


                                          7
       Here, appellant argues that the State unconstitutionally revoked his

community supervision because Orozco only discharged appellant from the sex

offender treatment program after he refused to answer incriminating polygraph

questions.   However, after a thorough review of the record, we hold that

appellant’s case is distinguishable from Dansby because three unchallenged-on-

appeal violations free of any “constitutional taint” exist (using cocaine on multiple

occasions, failing to sufficiently complete community service hours, and failing to

pay fees), any one of which is a sufficient basis to uphold revocation of

appellant’s probation.   See id. at 241.      Therefore, assuming that appellant

preserved a meritorious Fifth Amendment claim, we need not address it and can

rely on the general rule that violation of one community supervision condition

suffices to uphold revocation on appeal. See Moore v. State, 605 S.W.2d 924,

926 (Tex. Crim. App. [Panel Op.] 1980) (“We need not address appellant’s other

contentions since one sufficient ground for revocation will support the court’s

order to revoke probation.”); Jones v. State, 571 S.W.2d 191, 193–94 (Tex. Crim.

App. [Panel Op.] 1978) (declining to address an appellant’s argument because

the revocation of his probation could be supported on another ground); see also

Tex. R. App. P. 47.1; Brown v. State, No. 08-11-00230-CR, 2013 WL 173423, at

*2 (Tex. App.—El Paso Jan. 16, 2013, no pet.) (not designated for publication)

(declining to address an appellant’s argument about the allegedly illegal seizure

of evidence from his computer, which was related to one ground for revocation,

when another ground for revocation supported the defendant’s conviction); Silber


                                         8
v. State, 371 S.W.3d 605, 611 (Tex. App.—Houston [1st Dist.] 2012, no pet.)

(“[I]n order to prevail on appeal, the defendant must successfully challenge all of

the findings that support the revocation order.”).

      Appellant appears to recognize that he violated conditions of community

supervision that are not connected to his discharge from sex offender treatment,

but he argues that the discharge was the State’s “determining factor” in seeking

revocation. Appellant has not, however, cited any authority for the proposition

that the trial court’s discretion in revoking community supervision is somehow

impaired by the State’s motivation in seeking revocation. Our review of an order

“revoking community supervision is limited to a determination of whether the trial

court abused its discretion.” Lopez v. State, 46 S.W.3d 476, 482 (Tex. App.—

Fort Worth 2001, pet. ref’d) (emphasis added); see also Tex. Code Crim. Proc.

Ann. art. 42.12, § 10(a) (West Supp. 2012) (stating that it is the trial court’s

responsibility to “grant community supervision, impose conditions, [and] revoke

the community supervision”).

      For these reasons, we conclude that the trial court did not abuse its

discretion by revoking appellant’s community supervision and adjudicating his

guilt, and we therefore overrule his sole issue. See Dansby, 398 S.W.3d at 241–

44.




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                              Conclusion

     Having overruled appellant’s only issue, we affirm the trial court’s

judgment.




                                            TERRIE LIVINGSTON
                                            CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: September 19, 2013




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