                                   NO. 07-11-00219-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL C

                                       JULY 18, 2012


                          JESSICA AILEEN YORK, APPELLANT

                                              v.

                           THE STATE OF TEXAS, APPELLEE


               FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                  NO. 55,623-B; HONORABLE JOHN B. BOARD, JUDGE


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION

       Appellant, Jessica Aileen York, appeals the decision of the trial court adjudicating

her guilty of the offense of possession of a controlled substance, methamphetamine, in

an amount of less than one gram.1 After a hearing on the issue of punishment, the trial

court sentenced appellant to 180 days in a State Jail Facility (SJF). Appellant has

perfected her appeal and brings forth four issues. We will modify the judgment of the

trial court and affirm its decision as modified.




       1
           See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010).
                         Factual and Procedural Background


      On October 23, 2007, appellant entered into a plea bargain agreement with the

State of Texas wherein she entered a plea of guilty to the indicted charge of possession

of methamphetamine in an amount of less than one gram and the State recommended

deferred adjudication with appellant being placed on community supervision for a period

of three years.    Subsequently, the State filed its first motion to proceed with

adjudication. As a result, a hearing was conducted on the State’s motion to proceed

with adjudication on April 28, 2009. At the conclusion of this hearing, the trial court

extended the community supervision period for one year and ordered the terms and

conditions of community supervision modified to include completion of the Managed

Care Program in Lubbock, Texas, followed by Intensive Supervision Program (ISP).


      After the initial motion to proceed hearing, there were agreed supplemental

orders amending conditions of probation executed by appellant. The final two agreed

supplemental orders both contained condition 26a, requiring appellant to participate in

the Community Control Program provided by the Community Supervision and

Corrections Department (Department), which required appellant to be at her residence

on record with the Department twenty-four hours daily, unless directed otherwise by the

Court or the supervising officer.    Provisions in the term 26a provided that prior

arrangements could be made to be away from her residence for the purposes of

employment, counseling, participation in the Literacy and Education Program, and other

necessary activities as deemed appropriate by the Department. The requirement that




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appellant be at her residence was to be verified by electronic monitoring of appellant’s

exit and entrance to her residence via an ankle monitor.


       On March 23, 2011, the State filed another motion to proceed with adjudication of

guilt against appellant. In this motion, the State alleged that appellant had violated

condition 1 of her supervision, specifically that on the 7 th of December 2010 appellant

had intentionally and knowingly used or possessed drug paraphernalia, a bong. The

second allegation was that appellant had failed to comply with condition 26a by being

out of range without permission on a number of specified days at specified times.


       The trial court conducted a hearing on the motion to proceed with adjudication on

May 23, 2011. After hearing the evidence, the trial court found the allegation relating to

the alleged violation of condition 1 ―Not True,‖ but the trial court found the allegations

relating to condition 26a ―True.‖


       The trial court then convened the punishment phase of the proceedings. At the

conclusion of the evidence on the punishment issue, the trial court sentenced appellant

to 180 days in an SJF. On June 3, 2011, the trial court signed a written judgment

finding appellant guilty and sentencing her to six months in an SJF.


       Appellant appeals the trial court’s judgment by four issues.       The State has

conceded error on the third and fourth issues, and the judgment will be modified to

reflect the deletion of the fine as raised by issue three and deletion of the order to pay

attorney’s fees as raised by issue four.




                                            3
       Appellant contends that the evidence was insufficient to support the trial court’s

finding of ―True‖ as to whether appellant violated condition 26a.      Lastly, appellant

contends that, because the trial court’s oral pronouncement sentence was confinement

for ―180 days‖ in an SJF and the judgment reflected confinement for ―six months‖ in an

SJF, the judgment should be modified to reflect confinement for 180 days. We will

affirm the judgment of the trial court as hereinafter modified.


                                   Sufficiency of the Evidence


       The record reflects that condition 26a of appellant’s community supervision

required appellant to be at the residence she had on record with the Department twenty-

four hours per day, subject only to certain enumerated exceptions and other necessary

activities as deemed appropriate.       The State’s motion to proceed alleges twelve

separate instances of violations by being out of the residence without permission. The

motion alleges that appellant was out of range of the ankle monitor system without

permission.


       The testimony of supervising officers Carol Morales and Matt Thompson reflect

that appellant was required to file in advance with the Department a schedule of when

she would be out of the house. Further, each officer testified that, on each and every

occasion that appellant was scheduled to be out of the residence, the monitor tracking

record showed that she was out of her residence.




                                             4
Standard of Review


      When reviewing the adjudication of guilt on the original charge of an appellant

under an order of deferred adjudication, the review process is the same as that for a

revocation of community supervision.      See Antwine v. State, 268 S.W.3d 634, 636

(Tex.App.—Eastland 2008, pet. ref’d).           In a proceeding to revoke community

supervision, the burden of proof is on the State to show by a preponderance of the

evidence that the defendant violated a term and condition of community supervision as

alleged in the motion to revoke.         See Cobb v. State, 851 S.W.2d 871, 873

(Tex.Crim.App. 1993). Proof of any one of the alleged violations is enough to support

an order to revoke. See Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979);

Gobell v. State, 528 S.W.2d 223, 224 (Tex.Crim.App. 1975). The standard by which an

order revoking community supervision is reviewed on appeal is abuse of discretion.

See Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006); Lloyd v. State, 574

S.W.2d 159, 160 (Tex.Crim.App. 1978).


      When the standard of review is abuse of discretion, the record must simply

contain some evidence to support the decision made by the trial court. See Herald v.

State, 67 S.W.3d 292, 293 (Tex.App.–Amarillo 2001, no pet.); Becker v. State, 33

S.W.3d 64, 66-67 (Tex.App.–El Paso 2000, no pet.); Brumbalow v. State, 933 S.W.2d

298, 300 (Tex.App.–Waco 1996, pet. ref’d).         In determining the sufficiency of the

evidence, we view the evidence in the light most favorable to the trial court’s ruling. See

Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. 1981). The trial judge is the trier




                                            5
of fact and the arbiter of the credibility of the testimony during a hearing on a motion to

adjudicate. See id.


Analysis


       The term and condition that appellant was accused of violating required that she

be at her residence on record with the Department twenty-four hours daily, unless

otherwise directed by the court or supervision officer for employment, counseling,

participation in the Literacy and Education Program, and other necessary activities as

deemed appropriate. Appellant’s attack on the sufficiency of the evidence is couched in

terms of appellant’s lack of knowledge that she could venture no further than range of

the monitoring device, assumed for purposes of the argument to be 300 feet. However,

the term and condition of community supervision is not defined by a 300-foot range of

the monitor, rather the term is defined by the requirement that appellant be at her

residence.   The monitor is the mechanism for verifying that appellant was at her

residence as required.


       The record reflects that appellant’s terms and conditions of community

supervision were modified on two occasions and the term 26a was a part of the

modification on each occasion. As part of this term of community supervision, appellant

was required to wear an ankle monitor. This monitor reported each time appellant left

her residence. The term required appellant to file weekly a schedule of her intended

absences from the residence, and, further, those absences had to be approved by her

supervising community supervision officer. During the applicable time period, appellant

was supervised by two community supervision officers. Community supervision officer

                                            6
Carol Morales took over the supervision of appellant while the original assigned officer

was on medical leave.     Morales testified that she visited with appellant about the

requirements of electronic monitoring and explained to her how the system tracked her

comings and goings from the residence. Morales further testified that the records of the

Department indicated that appellant was away from the residence without prior approval

on February 23, 25, 26, and March 5 of 2011. On February 28, Morales visited with

appellant regarding her absences from the residence. At that time, appellant denied

being away from the residence and blamed the equipment for reporting her absences

erroneously.   Somewhat telling is the fact that during this discussion appellant

challenged Morales by asking what time the equipment showed her leaving her home

that morning to come to the meeting with Morales. After appellant advised Morales that

she had left her home at 12:20 pm, Morales showed appellant the report of the monitor

that indicated that appellant had left her home at 12:19 pm.


      The testimony of the other supervising officer, Matt Thompson, reflected that

appellant’s monitoring records showed violations occurring on January 18, 26, 29, and

30 of 2011. Additionally, the records indicated absences on February 12.     Thompson

spoke with appellant about the problem of the absences on February 14, 2011, and

appellant offered an excuse for two of those absences.


      Based upon this testimony, the trial court adjudicated appellant guilty and

subsequently sentenced her to 180 days in an SJF.


      Based upon the record before us, appellant was advised of the term and

condition of supervision 26a.    Further, the evidence shows a consistent pattern of

                                            7
absences from the residence that were not preapproved. The record established that

appellant was aware that any absence that was not preapproved was a violation of term

and condition 26a. We review these facts in the light most favorable to the trial court’s

ruling. See Garrett, 619 S.W.2d at 174. Under these facts, the State met its burden of

proof that a violation of term and condition 26a had occurred. See Cobb, 851 S.W.2d at

873. Therefore, the trial court did not abuse its discretion in adjudicating appellant

guilty.    See   Rickels, 202 S.W.3d at 763; Lloyd, 574 S.W.2d at 160.        Accordingly,

appellant’s first issue is overruled.


                                        Length of Sentence


          By her second issue, appellant challenges the judgment entered that reflects that

she is to serve six months in an SJF while the record reflects that the trial court orally

pronounced appellant’s sentence at confinement for 180 days in an SJF. The record

supports appellant’s contention that the oral pronouncement was for confinement for

180 days.


          Appellant contends that, if there is a conflict between the oral pronouncement of

sentence and the written judgment, the oral pronouncement of sentence controls. See

Taylor v. State, 131 S.W.3d 497, 500 (Tex.Crim.App. 2004). The State counters that

Texas courts have held that a ―month‖ means a solar month, 30 days, not a calendar

month. See Presley v. State, 538 S.W.2d 624, 626 (Tex.Crim.App. 1976). Therefore,

according to the State, there is no conflict, and the sentence would be construed to

mean 180 days.



                                                8
       We are not persuaded by the State’s argument. The authority cited by the State

deals with situations in which the term at issue is not defined by statute and is used in

assessing punishment for an offense. See Presley, 538 S.W.2d at 626. We are not

dealing with a fact pattern of a statute not defining the term of sentence. Rather, we

have a divergence between the oral pronouncement and the written judgment. The oral

pronouncement controls this situation. See Taylor, 131 S.W.3d at 500. Therefore,

pursuant to Texas Rule of Appellate Procedure 43.2(b), we will modify the judgment to

reflect a term of confinement of 180 days in an SJF as pronounced originally. See TEX.

R. APP. P. 43.2(b).


                                            Fine


       Appellant’s third issue contests the bill of costs that assessed a fine of $750. The

record reflects that the trial court did not assess a fine upon adjudication of guilt, and the

judgment entered by the trial court reflects ―N/A‖ in the space allocated for fine. The

State has candidly conceded that the bill of costs is inaccurate and that no fine was

assessed. Accordingly, we order the bill of costs modified to reflect no fine assessed.

See TEX. R. APP. P. 43.2(b).


                                      Attorney’s Fees


       Appellant’s fourth issue contests the evidence to support an order that appellant

pay for her appointed attorney. In this issue, as in the previous issue, the State has

conceded error. The State has asked the Court to modify the judgment to delete the

requirement that appellant repay Potter County for her court-appointed attorney the sum


                                              9
of $1,400. We agree and will modify the judgment to delete the order for repayment of

attorney’s fees in the amount of $1,400. See TEX. R. APP. P. 43.2(b).


                                      Conclusion


      The judgment of the trial court is affirmed as modified to reflect a sentence of 180

days in an SJF, delete the requirement of the bill of costs to pay a fine of $750, and

delete the requirement that appellant repay Potter County for her court-appointed

attorney.


                                                       Mackey K. Hancock
                                                            Justice




Do not publish.




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