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


                  No. 06-17-00158-CR



         NOAH FULTON JACKSON, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 71st District Court
                Harrison County, Texas
               Trial Court No. 09-0262X




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION
        After pleading guilty in 2009 to sexual assault of a child, Noah Fulton Jackson spent many

years on deferred adjudication community supervision, under which he was required to attend an

intensive out-patient sex-offender program (the SOP) under the counseling and treatment of Dr.

Kimberly Modisette. In April 2017, after determining that Jackson had become unsuccessful in

the SOP, Modisette discharged him from the program on the basis of that lack of success. 1 The

trial court ruled that Jackson’s discharge violated the terms of his community supervision,

adjudicated Jackson’s guilt, and sentenced him to eight years’ imprisonment. Jackson argues that

the trial court abused its discretion in adjudicating his guilt. Because we disagree, we affirm the

trial court’s judgment.

        One of the conditions of his community supervision had required Jackson to “[e]nroll [in]

. . . and attend psychological counseling sessions including [the SOP] at the direction of the

[Community Supervision Officer (CSO)] and provide the [CSO] with proof of completion of the

program.”      Testimony from Jackson’s CSOs showed that he generally complied with the

conditions of community supervision, except for failing several random drug tests, until 2017.

Their testimony also showed that Jackson had been attending the SOP until he was discharged in

April 2017. Daryll Bailey, Jackson’s CSO at that time, testified that, when he was discharged, he




1
 The record in this case reflects the convenient—though, we believe, improper—expression that Jackson was
“unsuccessfully discharged” or that his “unsuccessful discharge” was ordered. In this opinion, we conclude that
Modisette was successful in her discharge of Jackson from the SOP—in other words, that her decision to discharge
Jackson from the program was effective and within her discretion—because there is sufficient evidentiary support for
her determination that he had become unsuccessful in meeting the SOP’s requirements.

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was out of compliance with the SOP condition. He also testified that Jackson did not enroll in

another SOP after his discharge.

       Modisette also testified. She explained that the SOP consists of an active treatment phase

that lasts an average of two to three years, and a maintenance phase, in which the client is seen on

a bi-annual or annual basis, that continues until he has completed his community supervision. She

explained that, before a client transitions to the maintenance phase, he must meet certain

therapeutic goals and be in compliance with his community supervision. Modisette testified that

the three areas that she concentrated on with Jackson were his history of substance abuse, admitting

and accepting responsibility for his sexual offenses, and changing his belief system that allowed

sex to control his decision making process. She explained that these beliefs included a sense of

entitlement and his emotional dysregulation, which she described as being really negative, hostile,

and angry about everything and feeling like a victim. Jackson had to deal with these and

demonstrate compliance before he went on to the maintenance phase. Modisette explained that,

during the maintenance phase, she meets with the client for a bi-annual or annual psycho-sexual

evaluation in which she looks for acute risk factors, for stable dynamic risk factors, and to see if

there is any change that would suggest an elevation in risk to the community. She also testified

that successfully completing the SOP would consist of controlling the acute risk factors or stable

dynamic risk factors.

       Jackson transitioned to the maintenance phase in 2014. Modisette testified that remaining

in the maintenance phase was contingent on Jackson maintaining complete compliance and on his

dynamic recidivism risk remaining at the same level. Factors that would mandate an immediate

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return to active treatment included, inter alia¸ the failure to make and keep scheduled individual

sessions at the required frequency, supervision/treatment non-compliance, alcohol or drug use, an

increase in occurrence of thinking errors, or any behavior that would suggest acute elevations in

risk.

        Modisette also testified about the circumstances that resulted in her discharging Jackson

from the SOP. She testified that Jackson had come to an appointment and made some vague

comments that let her know something had gone on in Harrison County. She then called his CSO

and was informed that Jackson had failed a drug test, for which he should have been referred back

to immediate active treatment. She met with Jackson again and talked with him about the failed

drug test, and he became hostile towards his CSO, would not accept any responsibility, deflected

responsibility for his offenses, showed no victim empathy, and had a complete regression. She

explained that he had to return to active treatment, he became very angry and agitated, and he

started talking about filing a complaint against her. She testified that, after he threatened to file a

complaint, he was going to be discharged because her treatment contract stated that, if the client

threatens her, it is grounds for immediate discharge. After Jackson left her office, Modisette

discovered that he had taken trash from his vehicle and placed it in a bag under her vehicle.

        In explaining why he was not a good candidate for the SOP, Modisette testified that

Jackson’s history and what she saw that day—emotional dysregulation, failure to comply, rejection

of treatment and supervision, and failure to abstain from alcohol or drugs—were all acute risk

factors that put him at an elevated risk to commit another sexual offense. Although she indicated



                                                  4
that Jackson had made some progress, she stated, “What I saw was a complete regression to base

line, [and] his acute risk is very much elevated.”

        On cross-examination, Modisette testified that, when she discharges someone for his or her

lack of success, she is saying that she is no longer willing to be on their risk containment team.

She also testified that Jackson failed in five ways that resulted in his discharge. She explained that

all of the reasons were related to acute risk factors. The first reason was his use of alcohol and

drugs. The second was his rejection of treatment and supervision. She explained that the rejection

of supervision is considered an acute, elevated risk that puts the client at an elevated risk for failure

in his treatment. Based on what she saw, she opined that the same thinking errors that they had

dealt with periodically throughout his treatment were the cause of Jackson’s rejection of

supervision. The third reason was Jackson’s emotional dysregulation, which she explained was

his becoming extremely reactive and failing to take responsibility for old offenses for which he

had previously admitted responsibility. Fourthly, Jackson threatened her professional license.

Modisette explained that she would not continue to treat a client after having him or her threaten

her professional licensure. She stated that, before that threat, she had told Jackson that she was

ordering his return to active treatment. The final reason was his putting trash under her vehicle,

which was passive/aggressive behavior. She explained that one of the objectives of treatment is

that there be no more victims. That means not just no more sexual-assault victims, but no more

victims at all, including himself as a victim.

        Modisette interpreted Jackson’s threat to file a complaint as an attempt to bully or to

intimidate her. She also testified, “I was willing to continue to work with him until he made that

                                                   5
threat. I felt like his acute risk was significantly elevated when he made that threat[.] I am not

going any further.” Modisette also testified that, sometime after his discharge, Jackson asked her

if he could go to treatment in a group in Longview, but that she had refused him since he had

already been discharged. She stated that, if he had asked beforehand, there would not have been

a problem. She continued “[O]nce he makes that threat this is how I make a living, this is how I

provide for my family.”

       Jackson claimed that he had completed all of his classes with Modisette and that she had

told him she would send a statement of his completion, but never did. He also claimed that the

first time he heard that he was supposed to be seeing Modisette twice a year was when his CSO

told him to go see her. He testified that, at his annual meeting with Modisette in April 2017, she

told him he would have to start coming to weekly meetings again. He said that Modisette then

stepped out of the room and telephoned his CSO. When she came back in, she said that she had

been told by the CSO that Jackson was hanging out with little girls. Jackson claimed that he

became upset about that allegation, not about her requiring him to return to attending weekly

meetings. He said that he was willing to go back on active status. Jackson also denied making

any statement about filing a complaint against Modisette. He claimed that his reference to hiring

a lawyer was to get the community supervision behind him. He did not deny that there was a bag

of trash found under Modisette’s vehicle; he explained that he was upset when he got into his

vehicle and that the bag of trash fell out.

       Rhonda Thomas, a friend of Jackson, testified that she had accompanied him to his April

2017 meeting with Modisette. She did not hear the conversation between Jackson and Modisette,

                                                6
except when he came out of her office. She testified that Modisette had told Jackson he would

have to go back to weekly meetings and that, when Jackson came out, he was mad. He told her

that accusations were made about him hanging out with little girls. Although Thomas remembered

trash being in her vehicle, she did not know how it got under Modisette’s vehicle.

       After arguments of counsel, the trial court found true the State’s allegation that Jackson

had failed to complete the SOP, adjudicated Jackson’s guilt, and sentenced him to eight years’

imprisonment.

       In his sole issue, Jackson complains that the trial court erred in adjudicating his guilt. He

argues that, since he could not complete the SOP until his community supervision was ended, the

trial court abused its discretion by prematurely adjudicating his guilt. He also argues that

Modisette, who was delegated responsibility for determining whether he completed the SOP,

abused her discretion in declaring him unsuccessful and discharging him from the SOP. We

disagree.

       We review a trial court’s adjudication of guilt in the same manner as a decision to revoke

community supervision—for abuse of discretion. Little v. State, 376 S.W.3d 217, 219 (Tex.

App.—Fort Worth 2012, pet. ref’d) (citing Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.

2006)). In a revocation hearing, the State must prove by a preponderance of the evidence that the

defendant violated a condition of his community supervision. Rickels v. State, 202 S.W.3d 759,

763 (Tex. Crim. App. 2006); Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana 2003,

pet. ref’d). A revocation order is “supported by a preponderance of the evidence” if the “greater

weight of the credible evidence . . . would create a reasonable belief that the defendant has violated

                                                  7
a condition of his probation.” Rickels, 202 S.W.3d at 763–64 (quoting Scamardo v. State, 517

S.W.2d 293, 298 (Tex. Crim. App. 1974)). Since the trial court is the trier of fact, it also determines

the credibility of the witnesses and the weight to be given their testimony. In re T.R.S., 115 S.W.3d

318, 321 (Tex. App.—Texarkana 2003, no pet.) (citing Jones v. State, 787 S.W.2d 96, 97 (Tex.

App.—Houston [1st Dist.] 1990, pet. ref’d)). In our review, the evidence is viewed in the light

most favorable to the trial court’s ruling. Lively v. State, 338 S.W.3d 140, 143 (Tex. App.—

Texarkana 2011, no pet.) (citing Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)).

The trial court does not abuse its discretion if at least one ground for revocation is supported by a

preponderance of the evidence. Id. (citing Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim.

App. [Panel Op.] 1980)).

       In this case, the trial court based its finding that Jackson failed to complete the SOP on

Modisette’s discharging him from the SOP for his having not succeeded.                 Therefore, the

requirement that Jackson attend and successfully complete the SOP was subject to the discretion

of a third party, Modisette. In such a case, we must also examine the third party’s use of discretion

to determine whether the trial court abused its discretion. Leonard v. State, 385 S.W.3d 570, 577

(Tex. Crim. App. 2012). In examining the third party’s use of discretion, we determine whether it

was both rational and connected to the purposes of community supervision. Id. The purposes of

community supervision are to protect or restore the community; to protect or restore the victim;

and to punish, rehabilitate, or reform the defendant. Id. at 577 n.13; see TEX. CODE CRIM. PROC.

ANN. art. 42A.301(a) (West Supp. 2017).

       In challenging the trial court’s judgment, Jackson first argues that, since the SOP would

                                                  8
not be complete until his community supervision was complete, the trial court acted prematurely

in adjudicating his guilt. He points to Modisette’s testimony that, under her SOP, a client

progresses from active treatment after two or three years, then to the maintenance phase of having

bi-annual or annual evaluations, where he remains until he completes his community supervision.

He also argues that, after he was discharged by Modisette, he could ask to enter a different SOP.

        Jackson does not cite any legal authority supporting his contention that a trial court acts

prematurely in adjudicating guilt or in revoking community supervision when a defendant is

discharged from an SOP for lack of success. Jackson candidly states that he has, as have we, been

unable to find such authority. To the contrary, the cases cited by Jackson show that appellate

courts have affirmed trial courts that have revoked community supervision, or have adjudicated

guilt, when the defendant has been discharged from an SOP for his or her failure. See Donovan v.

State, No. PD-0474-14, 2015 WL 4040599, at *5 (Tex. Crim. App. July 1, 2015) (mem. op., not

designated for publication);2 Bussell v. State, No. 12-16-00117-CR, 2017 WL 2962834, at *3 (Tex.

App.—Tyler July 12, 2017, pet. ref’d) (mem. op., not designated for publication); Hart v. State,

264 S.W.3d 364, 372 (Tex. App.—Eastland 2008, pet. ref’d); Wright v. State, 249 S.W.3d 581,

583 (Tex. App.—Fort Worth 2008, no pet.). In affirming the trial court, the courts in these cases

examined the grounds for the discharge and the actions of the defendant to determine whether the

trial court had abused its discretion.

        In addition, Jackson does not cite to any testimony or other evidence in the record for his


2
 Although unpublished opinions have no precedential value, we may take guidance from them “as an aid in developing
reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).

                                                        9
contention that, after he was discharged, he could ask to be placed in another SOP. Further,

although the defendants in the above cases had the opportunity to participate in multiple SOPs,

none of these cases support the proposition that a defendant is entitled to attend another SOP after

he has been discharged. In this case, Modisette’s testimony explained how Jackson’s use of drugs

and alcohol, his failure to take responsibility for his past offenses, his anger at her and his CSOs,

and his passive/aggressive behavior all contributed to an acute elevated risk to the community that

he would commit another sexual offense. She also explained why, even though he had made some

progress, his complete regression to baseline demonstrated that he was not a good candidate for

SOP. Viewing this testimony in the most favorable light, the trial court could reasonably conclude

that allowing Jackson to attend another SOP would not further the purposes of community

supervision, i.e., that it would not alleviate the risk to the community that he would offend again,

and that it would not contribute to his rehabilitation.

       Jackson also argues that Modisette abused her discretion in discharging him. He points to

those instances in Modisette’s testimony where she discussed his threat to make a complaint

against her and said that it was a threat to her livelihood, therefore, she immediately discharged

him. Jackson argues that this shows that the reason for discharging him was that he made a threat

to her livelihood, which has no relation to the purposes of community supervision.

       This argument ignores the rest of Modisette’s testimony in which she listed four other

actions by him as additional bases for discharging him: his use of drugs and alcohol, his resistance

to treatment and supervision, his failure to take responsibility for past offenses, and his

passive/aggressive behavior. She also explained why each demonstrated an elevation in the acute

                                                  10
risk to the community. In addition, she explained how she saw the threat to file a complaint against

her as an attempt to bully or intimidate her, which would be counter to her remaining on his risk

management team.       Further, she explained how all of those actions, including the threat,

demonstrated that Jackson had made a complete regression to baseline. Finally, she testified that

successfully completing the program would consist of controlling the acute risk factors. Jackson’s

complete regression to baseline showed that he was no longer controlling his acute risk factors.

       Viewed in the light most favorable to the judgment, Modisette’s testimony shows that the

bases for her decision to discharge Jackson were both rational and related to the purposes of

community supervision. See Leonard, 385 S.W.3d at 577. Therefore, we find that Modisette did

not abuse her discretion in discharging Jackson from the SOP.

       Because Modisette did not abuse her discretion in discharging Jackson from the SOP, the

trial court did not abuse its discretion in adjudicating Jackson’s guilt. We overrule Jackson’s issue.

       For the reasons stated, we affirm the trial court’s judgment.



                                               Josh R. Morriss III
                                               Chief Justice

Date Submitted:        March 6, 2018
Date Decided:          March 26, 2018

Do Not Publish




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