                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00045-CR
         ______________________________


     RUSSELL LYNN STRACENER, Appellant

                         V.

         THE STATE OF TEXAS, Appellee



    On Appeal from the 8th Judicial District Court
              Hopkins County, Texas
             Trial Court No. 0719499




     Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION

        Russell Lynn Stracener had previously been placed on deferred adjudication community

supervision under a plea agreement that provided for three charges of indecency with a child to be

reduced to a single plea of guilty to a charge of mental injury to a child. Stracener has now been

adjudicated guilty by the trial court.1 On appeal, Stracener asserts that the evidence was not legally

and factually sufficient to support the finding that he violated conditions of his community

supervision and that two conditions later were improperly added to his community

supervision—passing periodic polygraph tests and successfully completing counseling as a sex

offender.

        Stracener does not dispute the State's allegation that he failed to timely perform the two

unquestionably valid conditions of his community supervision—doing sixteen hours of community

service during November 2007 and timely paying a $50.00 Crimestoppers fee. Instead, he offers

explanations of why he did not comply with those terms.

        Because of Stracener's lack of community service in November 2007 and his failure to timely

pay the Crimestoppers fee, we will affirm the judgment of the trial court without addressing or

endorsing the subsequently added terms concerning polygraph examinations and sex offender

counseling.




        1
            Stracener has been sentenced to twelve years' imprisonment and ordered to pay a $1,000.00
fine.

                                                   2
Background

       Stracener's original terms of community supervision required him to "[p]erform 240 hours of

community service work at the rate of 16 hours per month,"[s]ubmit to and pass . . . polygraph testing

at the request of the CSO/field officer," and "[p]ay a one time crimestoppers fee of $50.00 within 60

days of the date of this order through the CSCD." Stracener received the order containing these

conditions, stated he had no questions about the requirements, affirmed that he understood them,

could live up to them, and signed the order imposing the conditions.

       Shortly thereafter, and without a hearing, the trial court amended Stracener's conditions of

supervision. These conditions, apparently motivated by the sex offenses that were dismissed under

the plea agreement, required Stracener to "attend, actively participate, and successfully complete

psychological counseling with a State Licensed Sex Offender Treatment Provider and pay all

associated costs." Stracener received the amended conditions of supervision, but wrote "refused" on

his signature line because he did not agree with the amendment. Nevertheless, he attended and paid

for counseling.

       A few months later, the State filed a motion to proceed with adjudication of guilt based on

Stracener's failure to perform community service in November 2007, pay the Crimestopper fee on

time, and pass the polygraph examination. The motion also claimed that he violated the amended

condition of community supervision because he was unfavorably discharged from sex-offender

counseling. Stracener filed a motion to quash the proceeding, claiming that the polygraph results



                                                  3
were inadmissible and that the unilateral and after-the-fact amendment of his community supervision

conditions was illegal. He also argued that he was prevented from timely paying the Crimestopper

fee by the clerk and that his community service was not completed because he was required to attend

and pay for counseling and because he was sick.

       With respect to the condition requiring community service work at the rate of sixteen hours

per month, the trial court heard undisputed evidence that Stracener failed to perform any of his

required community service for the month of November 2007. Stracener had several reasons to

justify his failure. First, he claimed the work was not completed because he was working for his

father to get the money to pay his fees.2 However, he later stated the money to pay all November fees

was borrowed from his father, thus undermining that reason for not completing the November hours

of community service. Next, while Stracener admitted he could have performed community service

hours during the first three weeks of November, he saved the work for the last week and then became

sick. Stracener's father said he could not perform the required hours because he was "sick around

Thanksgiving" with "some kind of stomach virus." Stracener's community supervision officer and

counselor, Jerry Beare, recalled that although Stracener's wife called to report he was ill in December,

he did not appear to be sick in November during the required Tuesday meetings. Offering a third

explanation, Stracener claimed supervision officer Joseph Flemens excused his November hours and




        2
         Stracener has worked for his father repairing pallets since 2006, without paying income
 taxes. He took home about $300.00 per week.

                                                   4
gave him an opportunity to make up the community service later in the year. Flemens testified he had

no authority to modify the trial court's order.

       Undisputed evidence demonstrated Stracener failed to pay the Crimestopper fee within sixty

days of the order of community supervision, even though he had the financial means to do so. As a

defense, Stracener claimed that he tried to pay the Crimestopper fee three times, but that the clerk

would not accept the money, gave it back to him, and told him he did not owe it. She finally accepted

the money, after the end of the sixty-day time frame mandated by the court. On cross-examination,

Stracener admitted that he knew the clerk would have taken the money and applied it to another

payment even if he had overpaid.

       Next, over objections that polygraph results were inadmissible, undisputed evidence of failure,

including Stracener's admission that "I have never been able to pass [a polygraph test] so far" was

admitted. To provide justification, Stracener said he failed the last polygraph test because the

examiner upset him when he "jumped up at me and started, you know, raking me over the coals about

the way I looked at him."

       Finally, with respect to the requirement to complete counseling, the trial court heard

undisputed evidence that Stracener was unfavorably discharged. He was required to attend class

every Tuesday night unless there was a conflict. Beare testified that Stracener "from day one, has

failed to engage in the therapeutic process . . . . There was one incident in which he showed up with

a tape recorder trying to record the meeting." Beare required Stracener to sign a waiver of



                                                  5
confidentiality that would allow him to speak with family members, employers, and neighbors. Even

after explaining that Beare would have to discharge him unless the confidentiality waiver was signed,

Stracener refused to sign. As a result, Stracener was unfavorably discharged from counseling. Beare

also declared Stracener's "participation was adversarial. He was not wanting to cooperate but rather

- -it was my belief that Mr. Stracener would rather destroy or bring down the group than to be a

recipient of the benefits of the group." Beare had never seen that level of resistance to the program.

       We review a decision to adjudicate guilt as we review a decision to revoke community

supervision.3 TEX . CODE CRIM . PROC. ANN . art 42.12, § 5(b) (Vernon Supp. 2009). While a decision

to revoke community supervision rests within the discretion of the trial court, it is not absolute. In

re T.R.S., 115 S.W.3d 318, 320 (Tex. App.—Texarkana 2003, no pet.). To revoke community

supervision, the State must prove every element of at least one ground for revocation by a

preponderance of the evidence. TEX . CODE CRIM . PROC. ANN . art. 42.12, § 10 (Vernon Supp. 2009);

T.R.S., 115 S.W.3d at 320; Johnson v. State, 943 S.W.2d 83, 85 (Tex. App.—Houston [1st Dist.]

1997, no pet.). "'Preponderance of the evidence' has been defined as the greater weight and degree

of credible testimony." T.R.S., 115 S.W.3d at 320. In other words, if the greater weight of credible

evidence in this case created a reasonable belief that Stracener violated a condition of community

supervision, the standard was met. Id. at 321 (citing Martin v. State, 623 S.W.2d 391, 393 n.5 (Tex.

Crim. App. [Panel Op.] 1981).



        3
            Thus, all standards will be discussed in terms of revocation of community supervision.

                                                   6
       In a revocation hearing, the trial court is the sole trier of the facts and determines the

credibility of the witnesses and the weight to be given to the testimony. T.R.S., 115 S.W.3d at 321;

Lee v. State, 952 S.W.2d 894, 897 (Tex. App.—Dallas 1997, no pet.); Johnson, 943 S.W.2d at 85.

The court may accept or reject any or all of a witness' testimony. T.R.S., 115 S.W.3d at 321 (citing

Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987)).

       Considering the unique nature of a revocation hearing and the trial court's broad discretion in

the proceedings, the general standards for reviewing factual sufficiency do not apply. Pierce v. State,

113 S.W.3d 431, 436 (Tex. App.—Texarkana 2003, pet. ref'd). Instead, we review the trial court's

decision regarding community supervision revocation for an abuse of discretion, and examine the

evidence in a light most favorable to the trial court's order. T.R.S., 115 S.W.3d at 321; Pierce, 113

S.W.3d at 436 (citing Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981)).

Thus, if the greater weight of credible evidence creates a reasonable belief that a defendant has

violated a condition of his or her community supervision, the trial court's order of revocation did not

abuse its discretion and must be upheld. Pierce, 113 S.W.3d at 436 (citing Scamardo v. State, 517

S.W.2d 293, 298 (Tex. Crim. App. 1974). If the State's proof is sufficient to prove any one of the

alleged community supervision violations, the revocation should be affirmed. T.R.S., 115 S.W.3d at

321 (citing Stevens v. State, 900 S.W.2d 348, 351 (Tex. App.—Texarkana 1995, pet. ref'd)).

       An award of community supervision is not a right, but a contractual privilege entered into

between a court and a defendant. Speth v. State, 6 S.W.3d 530, 533–34 (Tex. Crim. App. 1999). For



                                                  7
this reason, the law is well settled that conditions of community supervision not objected to are

affirmatively accepted as terms of the contract. Id. at 534–35; Manuel v. State, 994 S.W.2d 658,

661–62 (Tex. Crim. App. 1999); Vale v. State, 486 S.W.2d 370 (Tex. Crim. App. 1972). Since

Stracener did not object to the conditions requiring him to pay the Crimestopper fee and perform

community service according to the schedule ordered by the court, he was bound to perform them or

be subject to adjudication.

        Flemens testified Stracener failed to pay the Crimestopper fee within sixty days of the order

of community supervision and also failed to complete the required sixteen hours of community

service for November 2007. Stracener did not contest this fact. Instead, he provided several reasons

to justify his noncompliance with the court's order. Since the trial court was the sole trier of the facts

and credibility, he was free to reject all of Stracener's testimony as incredible excuses. T.R.S., 115

S.W.3d at 321; Johnson, 943 S.W.2d at 85. Reviewing the evidence in a light most favorable to the

verdict, we conclude the record is sufficient to support a trial court's reasonable belief that Stracener

violated either of these conditions of community supervision. Thus, we cannot say the trial court

abused its discretion or acted without reference to guiding rules and principles. The order of

adjudication must be upheld.4




         4
         Because the above violations are dispositive of Stracener's appeal, we expressly do not
 address, and we should not be read as approving, the amendment of Stracener's conditions of
 community supervision, without a hearing, to include sex-offender terms.

                                                    8
      We affirm the trial court's judgment.




                                                  Josh R. Morriss, III
                                                  Chief Justice

Date Submitted:      September 16, 2009
Date Decided:        October 21, 2009

Do Not Publish




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