
                           NO.  07-10-0023-CR

      IN THE COURT OF APPEALS

      FOR THE SEVENTH DISTRICT OF TEXAS

      AT AMARILLO

      PANEL E

      DECEMBER 2, 2010

      ______________________________


                            SAM BOOKER, JR.,

                                                   Appellant
      v.

      THE STATE OF TEXAS,

                                                   Appellee
      _______________________________

      FROM THE CRIMINAL DISTRICT COURT NUMBER ONE OF TARRANT COUNTY;

      NO. 0922782D; HON. SHAREN WILSON, PRESIDING
      _______________________________

                           Memorandum Opinion
                    _______________________________

Before QUINN, C.J., HANCOCK, J., and BOYD, S.J.[1]
      In this appeal, appellant Sam Booker, Jr. seeks reversal  of  the
trial court’s action in revoking his deferred  adjudication  probation,
adjudging him guilty of the offense of failing to  register  as  a  sex
offender, and assessing his punishment at three  years  confinement  in
the  Institutional  Division  of  the  Texas  Department  of   Criminal
Justice.  Disagreeing  that  the  record  shows  reversible  error,  we
affirm the judgment of the trial court.
      In submitting his appeal, appellant presents  two  issues  which,
he contends, demonstrate  the  trial  court  reversibly  erred  in  its
decision.  In his first issue, he argues that  there  was  insufficient
evidence to show that he failed to timely pay his required  supervision
fees or that he failed to complete the required one-third  of  his  sex
offender treatment within the first year  of  his  probation.   In  his
second issue, he contends that the trial court erred in  modifying  and
changing his conditions of probation by adding the  condition  that  he
“successfully  complete  psychological   counseling,   treatment,   and
aftercare sessions for sex offenders” almost four years  after  he  was
initially placed on probation.
      The standard by which we review a  trial  court’s  revocation  of
probation  is  well  established.   The  order  revoking  probation  is
reviewed under an abuse of discretion standard. Rickels v.  State,  202
S.W.3d 759, 763 (Tex. Crim. App. 2006), quoting Cardona v.  State,  665
S.W.2d 492, 493 (Tex. Crim. App. 1984).  In further clarification,  the
Rickels court instructs that in probation revocation cases such as  the
instant one in which the sufficiency of  the  evidence  is  questioned,
the burden of proof to  sustain  the  trial  court’s  action  is  by  a
preponderance of the evidence.  Id. at  763.   That  is,  the  evidence
must be sufficient to “create a reasonable belief  that  the  defendant
has violated a condition of his probation.”  Id. at  764.   In  such  a
proceeding, the trial judge is the sole judge  of  the  credibility  of
the witnesses and the weight to be given  their  testimony,  Taylor  v.
State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980),  and  the  appellate
court reviews the evidence in a  light  most  favorable  to  the  trial
court’s ruling.  Cardona v. State, 665 S.W.2d at  493.   One  violation
of the conditions of probation is sufficient to  support  a  revocation
of the probation.  Sanchez  v.  State, 603 S.W.2d 869, 871 (Tex.  Crim.
App. 1980).
      In its petition seeking the revocation, the  State  alleged  that
appellant had failed to timely pay his required  probation  supervision
fees and that he had failed to complete the mandated one-third  of  his
sex offender treatment within the first year after that  treatment  was
required.  This proceeding arises from appellant’s September  2004  no-
contest plea to a charge that, as a  convicted  sex  offender,  he  had
failed to timely  report  in  person  to  the  Fort  Worth  police  his
intended change of residence.  His probation was modified  three  times
in April, July, and August  of  2008.   His  August  2008  modification
required him  to  submit  to  sex  offender  treatment  evaluations  as
directed by his supervision officer with the treatment to be  completed
within three years. In that  modification,  it  was  provided  that  if
appellant completed one-third  of  the  treatment  within  a  year,  an
extension of the probationary term would be  considered  by  the  trial
court.
       At the revocation hearing, although appellant testified that  he
eventually made his payments, appellant’s probation supervisor,  Judith
Choate, testified that appellant did not pay his probation fees  during
that period alleged  in  the  revocation  petition.   Ms.  Choate  also
testified that appellant did not meet the sex offender treatment  goals
and evaluations required under the 2008 modification of his probation.
      Appellant averred that  in  order  to  accomplish  the  treatment
goals, he had to do homework and complete responses which he could  not
do because he could not read or  write.   However,  Ms.  Choate  stated
that he could have received help  from  the  probation  office  had  he
requested it. She said that  appellant  had  not  taken  the  treatment
procedure seriously, and that he blamed everyone else for his  troubles
rather than himself.
      Dr. Mike Strain, a sex offender  therapist,  said  that  although
appellant did have problems reading and writing, his slow progress  was
caused by “his not being very motivated . . . to do the  goals  and  to
accept information [they] were working on in  treatment.”   Dr.  Strain
also testified that  most  of  the  treatment  goals  could  have  been
completed by appellant on available cassette tapes.   He  averred  that
appellant understood the cassette tape procedure and had put on tape  a
list of rules related to a child avoidance plan  used  by  probationers
such as himself.
      In sum, viewed in the  light  by  which  we  review  evidence  in
appeals such as this one, we cannot say  the  trial  court  abused  its
discretion  in  assessing  the  evidence   and   revoking   appellant’s
probation.  Appellant’s first point is overruled.
      In his second point, appellant  contends  that  the  trial  court
erred by modifying his probation conditions.  He was originally  placed
on probation on September 30, 2004.  Subsequently, on August 27,  2008,
his  probation  conditions  were  modified,  and   included   in   that
modification  was  the  condition  that   he   “successfully   complete
psychological counseling, treatment, and  aftercare  sessions  for  sex
offenders.”  As we have noted, the violation of this condition was  one
of the things that led to the revocation which is the subject  of  this
appeal.  However,  §11(a)  of  article  42.12  of  the  Texas  Code  of
Criminal Procedure specifically provides that the court  may,  “at  any
time during the period of community supervision, alter  or  modify  the
conditions,” and that the judge “may impose  any  reasonable  condition
that is designed to protect or restore . . .  the  victim,  or  punish,
rehabilitate, or reform the defendant.”  Tex. Code   Crim.  Proc.  Ann.
art. 42.11 §11(a) (Vernon  Supp.  2010).   Additionally,  we  note  the
condition specifically provided  that  even  though  the  required  sex
offender treatment was expected to take three years and  appellant  had
only one year left on his probation  term,  if  appellant  successfully
completed one-third of the  required  treatment  within  one  year,  an
extension would be considered.  Thus, appellant would not be in  danger
of being revoked, even though he had  not  completed  the  full  course
within the one year.  Thus, the trial court  did  not  act  beyond  its
discretion in  adding  the  condition.   Appellant’s  second  point  is
overruled.
      In sum,  both  of  appellant’s  points  are  overruled,  and  the
judgment of the trial court is affirmed.


                                   John T. Boyd
                                       Senior Justice
Do not publish.










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      [1]John T. Boyd, Senior Justice, sitting by assignment.

