### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00543- CR NO. 03-09-00544- CR

Andrew Richard B urke III, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F MI LAM CO UNTY, 20TH JUDICI AL DISTRICT NOS . CR21,8 25 & CR21,9 41, H ONO RAB LE ED MAGRE, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

Andre w Richard Bur

ke, I I I appea ls from the court’s revoc ation of h i s terms of community supervision. Bur ke contends that the evidenc e was l ega l l y insufficient to support the

revoc ation. He al s o contends that the court err ed by deny ing him time cre dit for succe ssfully completing a substance abuse f elony punishment prog ram. We af firm. Bur ke p l ea d ed g uilty to two counts of driving while intox icated, third offe nse (or more). See Tex. Penal Code Ann. § 49.04 (Wes t 2 0 0 3 ), § 49.09 (West Supp. 2009). He was sentenc ed to ten y ear s in prison, which was probate d, and he was place d on community supervision (proba tion) for ten y ear s. One of the terms of his community supervision require d him, afte r serving

a term of confine ment and trea tment in a substance abuse fac ility , to “par ticipate in a drug or alcohol abuse continuum of car e trea tment plan as develope d by the T ex as Commi ssion on Alcohol and Drug Abuse, abiding by all rules and reg ulations of said trea tment plan until succe ssfully discharg edby the s taff of the ca re p ro gra m.” Bur ke was discharg ed from the continuum of care prog ram for failing to abide by its rules and reg ulations. The court revoke d h i s co m m u n i ty supervision and imposed the sentenc e of te n y ear s in prison.

W e revie w the revoc ation of community supervision for an abuse of discretio n . Ricke ls v. State , 202 S.W .3d 759, 763-64 (Tex. Cr i m . Ap p . 2006). I n deter mining questions reg arding sufficie ncy of th e e v id e n c e in c o mm u n ity supervision revoc ation case s, the burden of proof is by a preponde ranc e of the evidenc e. Id. We wi l l affirm if the g rea ter weig ht of the cre dible evidenc e cre ates a rea sonable belief that the defe ndant has violated a condition of his community

s u p ervision. Id. at 764. I f the State fails to meet its burden of proof, the trial court abuses its discretion in re voking. Cardona v. State , 665 S.W .2d 492, 494 (Tex. Crim. App. 1984).

Bur ke’s probation office r, Michelle Posten, testified that Bur ke completed his term in his substance abuse felony punishment fac ility (SAFPF ) succe ssfully without any disciplinary problems. He entere d that prog ram on J une 19, 2008, and was discharg ed on April 29, 2009. He then went to the Abode Treatment Center nea r F ort Worth. Abode’ s prog ram manag er, Sy lvia Wagnon, testified that the cente r assists substance abuse felons with re- enter ing society

. The clients live in the cente r, but may leave on passes to seek work, perf

orm work, attend probation meeting s, or perf orm other nece ssary tasks. Clients can also obtain rec rea tion passes for up to 48 hours. She testified that Bur ke was a 60-day client who enter ed the prog ram on Apr il 29, 2009, and would have gr aduate d on J une 28, 2009. She testified that he completed his require d six hours of wee kly thera py only in the first wee k. The rema inder of his time his attendanc e wa s essentially excused in favor

of appointments at the c ounty hospital.

2Wagnon te stified that Bur ke had a 48-hour pass to le ave the ce nter on the w eeke nd

o f M ay 30-31, 2009. She testified that, althoug h he was elig ible only for a 24-hour p as s , h i s counselor had approve d a 48-hour pass even though it lacke d supporting documentation. Bur ke also had signe d a 72-hour pass that had supporting documentation. Ba sed on the 48-hour pass, he should have returne d on May 31 at 4 p.m. He returne d J une 1, at 4 p.m. Wagnon acknow ledg ed that Bur ke
contact ed h i s counselor to reque st an ex tension, but testified t hat onl y she (W ag non) can approve extensions. She sai d t h at , al though his counselor should have told him of t hat procedure , she di d
not know if that occur

red. Wagnon also testified that, upo n his return, Bur ke tested positive for alcohol—a violation of the cente r’s rules. She said her logbook show ed t h at h i s brea th analy sis

was positive for alcohol but his urinaly sis was neg ative for other illega l drug s. She rec alled that his brea th test showed a conce ntration of .02. Wagnon did no t co n duct the test herse lf. Wagnon testified t hat Burke told her he had jus t b ru shed hi s teeth and rinsed his mouth out with L isterine. As a result of his failing the test, the cente r stripped him of h i s freedoms, including leaving on any pass including a work pass. He also was moved fr o m a s ingle room into a room share d with other c lients. Wagnon testified that on J une 7, 2009, at 12 : 3 0 a. m . , a shift supervisor repor ted
t h at s h e s aw Bu rke wea ving and stumbli ng down a hall in the cente r, showing signs of being drunk i ncluding smelling of alcohol and sl u rr ing his speec h. Two empty beer cans were found i n another cl i en t ’s b ackpa ck that Bur ke was seen “fiddling in.” The next day , a sear ch of his jacke t

reve aled another empty beer can of a simil ar ty pe. Wagnon said that Bur ke denied drinking alcohol and any responsibility for t h e beer

. Wagnon descr ibed drunkenne ss and consumption of alcohol

3as very serious violations of the cente r’s reg ulations. Bur ke, howeve r, t ested neg ative on brea th and urine tests. Wagnon decide d on J une 9, 2009, to discharg e him unsucce ssfully

. Posten, Bur ke’s probation office r, confirme d that she told Bur ke not to leave the cente r, that he would be picked up by law enfor ceme nt and returne d to Milam County

. He never theless left the cente r on J une 9, 2009. Tammy McKinney was Bur ke’s primary co u n selor at Abode. She testified that Bur ke was compliant with rules, participa ted in counseling , and did ever y thing require d. She approve d his 48-hour pass and, afte r lear ning from Ruby By er s , t h e o utpatient coordina tor, that Bur ke wanted an extension to attend to his sick mother, she approve d a 12-hour extension (althoug h the extension g rante d was a ppare ntly for 24 hour s). McKinne y testified that she did not know the proce dure for extensions, but that By ers told her that her verba l approva l was sufficie nt. McKinney testified that she approve d the extension beca use of Bur ke’s “wonde rful” perf

ormanc e in the cente r. She testified that he wa s “consta ntly in contac t” wit h her during the 72-hour period. She testified that Mr. Say eed told her that Bur ke tested positive for alcohol. McKinney said she looked at the test 1 results and found that they wer e neg ative. McKinney testified that Say eed reque sted an additional test, but that Wagnon ref

used. She testified that Bur ke was sear ched upon his return on J une 1 and

n o t allowed to leave during the nex t wee k. She testified t hat one of Burke’ s new roommates wa s

on a rela pse trac k afte r using methamphetamine while at home on leave

. She testified that the beer attributed to Bur

ke could have belong ed to one of the other roommates. McKinney testified that she was fir ed on June 7, 2009, prior to coming in to work.

McKinney

did not testify

reg arding Mr. Say eed’ s first name. 1 4Bur ke testified that he asked for the extension on May 31 so he could acc ompany his mother to the hospital when she we n t t o have a stent examined. Bur ke testified that he talked to By ers first, who told him to contac t his primary counselor. He said he called his primary counselor
to g et approva l, and she g rante d approva l co n d i t i o ned on g etting By ers’ s verba l approva l. Bur ke said that he saw paper

work showing that his brea th test on J une 1 showed neg ative for alcohol—not positive. He said he r equeste d a rete st a fter hear ing it reported a s positive and, upon being denied the re test, filed a g rieva

nce. Bur ke testified that he takes antidepressants and a strong sleepingpill at night. He said he was told to repor

t for testing late on J une 6, which he passed, but that the sleeping pill would explain why he was wea

ving and slurring his words. He testified that the beer cans wer e not his, that they belong ed to his roommates, some of w hom were on rela pse trac k. Bur ke called Posten, his probation office r, on J une 17, 2009. Posten testified that she told him that a war

rant was out for his arr est and that he neede d to turn himself in. She testified that Bur ke told he r he could not turn himself in for at least a wee k beca use he was in A tlanta, Geor g ia. At trial, Bur

ke admitted that he lied to Posten about being in Atlanta to stave off arr est. He said he was working and t ry ing to g et enough money to h i re an att orney . Bur ke was arr ested on or about J une 26, 2009, in Rockdale, Texas. He testified that he had lear ned his lesson, had lear

ned from the
trea tment, and had no intention of “ messing up” this last chance

.

The trial cour t co n cl u ded that the State proved that Bur ke violated the terms of his community supervision as allege d, namely that he was unsucce ssfully discharg ed fr om Abode beca use he f ailed to abide by

its rules and re g ulations.

5We find no abuse of discretion. Bur ke was undisputedly discharg ed unsucce ssfully from Abode on g rounds that he failed to abide by its rules and reg ulations. As for the validity of the char g e that he failed to comply with Abode’ s rules and reg ulations, the trial court was fac ed with conflicting evidenc e. I t had to make a cre dibilit y choice , and evidently chose to believe Wagnon and Posten. We cannot say that the choice is not supported by the rec ord. Wit h that implicit cre dibilit y choice made, the preponde ranc e of the evidenc e supports revoc ation. We cannot s ay t hat the trial court a

bused its discretion by

revoking Bur

ke’s ter m of community

supervision. Bur ke nex t contends that the t rial co u rt er re d b y failing to g ive hi m cre dit for tim e

serve d at the SAFPF fac ility befor e he w ent to Abode. The rele vant statute provides a s follows:

I n all criminal case s the judge of the court in which the defe ndant is convicted shall g ive the defe ndant cre dit on the defe ndant’s sentenc e for the time that the defe ndant has spent:

. . . . (2) in a substance abuse trea tment fac ility opera ted by the Texas Depa rtment of C ri m i nal J ustice under Section 493.009, Gover nment Code, or another court-or dere d residential prog ram or fac ility as a condition of defe rre d adjudication community s u p er vision g rante d in the case if the defe ndant succe ssfully

completes the tre atment prog ram a t that fac ility

.
Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a) (West Supp. 2009). Bur ke undisputedly succe ssfully compl et ed h i s SAFPF prog ram. He contends that he is entitled to cre dit for time serve d in the TDCJ -run SAFPF. The State contends, howeve r, that he is not elig ible for cre dit beca use he was on standard community supervision, and section 2(a) (2) of article 42.03 applies only to persons place d on defe rre d adjudication community supervision.

6“When interpre ting a statute, we look to the literal text of the statute for its meaning ,

and we ordinarily g ive eff

ect to that plain meaning , unless application of the statute’s plain lang uag e would lead to absur d conseque nces tha t the L eg islature could not possibly have intended, or if the plain lang uag e is ambig uous.” Badgett v. State , 42 S.W .3d 136, 138 (Tex. Crim. App. 2001). When the lang uag e of a statute is ambig uous, we may look to its leg islative history as an aid in interpre ting the statute. See Tovar v . State , 978 S.W .2d 584, 586 (Tex. Crim. App. 1998).

The statute does not make plain whether cre dit for time served m ay b e g rante d to defe ndants on standard or post-adjudication (not defe rre d adjudication) community supervis ion who

succe ssfully complete a trea tment prog ram at a TDCJ -run SAFPF. Bur ke arg ues that Section 2(a) (2) of article 42.03 should be read disj unctively to require g iving credit for tim e served to defe ndants

on standard community sup er v i s ion who succe ssfully complete a trea tment prog ram at a TDCJ

run SAFPF. Under that rea ding, defen dants on defe rre d-adjudica tion community supervision who complete another court-or dere d residential p ro g ram or fac ility as a condition of community

s u p er v i s i o n would be entitled to cre dit for time serve d. The State insists , howeve r, that the
statute offe rs alterna tive means of ear ning g ood-time cre dit only to probationer s whose adjudication was de fer red. The leg islative history is not expressly dispositi ve. Two stated g oals of the
statute—to g ive incentives to of fende rs to c omplete trea tment pr og rams and to e ase overc rowding in prison s —are likely better serve d by g ranting cre dit to all ty pes of probationer s. The House 2

The fisc al note provide s as follows: 2 Severa l provisions of the bill would also specify co n d i tions in which a judge shall 7Resear ch Or g anization’s bill analy sis, howe ver, only contemplates that courts apply ing the statute will e x tend cre dit to defe ndants who are on defe rre d-adjudica tion community

supervision. Other

3 statements in the house c ommitt ee r eport a re inc onclusive. The last sente nce of the e x cer pt from 4

g ive a defe ndant cre dit on the defe ndant’s sentenc e for the time that the d ef endant has spent in jail or a substance abuse trea tment fac ility , if the defe ndant succe ssfully completes the trea tment prog ram. Th ese provisions could result in reduc ed time serve d in corre ctional populations depending on the extent to which the provisions are utiliz ed; howeve r such r eductions ar e not included in this analy sis. Fisca l Note, Tex. H.B. 1678, 80th L eg ., R.S. (2007). The house c ommitt ee w rote the f ollowing a

naly sis: CSHB 1678 also aims to incre ase incentives for offe nders to suc cessf ully complete substance abuse prog rams and reduc e the time offe nders spend in ca rc er ated by requiring judge s to g ive defe ndants cre dit for time serve d succe ssfully completing a trea tment prog ram in a Substa n ce Ab use Fe lony Punishm ent Fa cility or other court-or dere d residential pr og ram or f acility

. House Comm. on Correc tions, Bill Analy sis, Tex . H.B . 1678, 80th L eg ., R.S. (2007). The house r esea

rch or g anization’s report pr ovided as follows: 3 CSHB 1678 would require judge s to g ive defe ndants on probation as a condition of defe rre d adjudication credit ag ainst their sentenc es for time spent in a substance abuse trea tment faci l i t y or another court-or dere d residential prog ram or fac ility if they had succ essfully completed the prog ram. To defe ndants whose probation was revoked, judge s also would have to g ive credit for tim e spent in the s ame facilities if the def endant suc cessf

ully completed the pr og ram. House Rese arc h Org anization, Bill Analy sis, Tex . H.B . 1678, 80th L eg ., R.S. (2007). The house c ommitt ee on c orre ctions provided the f ollowing a

naly sis: 4 This bill provides that a judge shall g rant cer tain defe ndants cre dit on their sentenc e fo r the time that they spent in a Substance Abuse Fe lony Punishm ent Fa cil i t y (SAFPF ) or other court-or dere d re s i d en t i al prog ram or fac ility if they succe ssfully compl eted the trea tment prog ram at that fac ility

. This cre dit would apply t o defe ndants who succe ssfully completed the prog ra m as a condition of defe rre d 8the House committee’s bill ana ly sis quoted in footnote 4 might be rea d to support extending cre dit

to all probationer s wher e it states that “[t] his cre dit would also apply to defe ndants who succe ssfully comp l et ed the prog ram while on community supervision, but wer e revoke d and subsequently require d to serve time in a state jail felony fac ility or priso n . ” Ho u s e C o m m. on Correc tions, Bill Analy sis, Tex. H.B

. 1678, 80th L eg ., R.S. (2007). I n context, howeve r, that statement follows

a sentenc e that expressly discusses only defe ndant s wh o s u cce ssfully complete a prog ram as a condition of their defe rre d-adjudica tion co m m u n i t y s upervision. Id. The limit ed scope of the
sentenc e that discusses only defe ndants whose adjudication is defe rre d may also implicitl y color this subsequent refer ence to defe ndants who complete a prog ram while on “community supervision.” See id. Although neither the lang uag e of the statute nor the bill anal y s es p ro vides an express answe r, we conclude that the leg islature intended to require courts to g i v e cr edit for time

serve d only to defe ndants serving a term of defe rre d-adjudica tion community supervision. The bill analy ses are mostly inconclusive, but the one analy sis to take a clea r position—t he House Resear ch Or ganiz ation’s analy sis—does so in favor of t he conjunctive rea ding that require s cre dit be gi v en only to defe ndants on community supervision whose adjudication was defe rre d. House Comm. on

adjudication community supervision betwee n the time they wer e gra n t ed defe rre d adjudication and their sentenc e, reg ardle ss if t he defe ndant is to be sentenc ed to prison or a state jail felony fac ility

. This cre dit would also apply to defe ndants who succe ssfully completed the prog ram whi l e o n community supervision, but wer e revoke d and subsequently require d to serve time in a state jail felony fac ility or prison. House Comm. on Correc tions, Bill Analy sis, Tex . H.B . 1678, 80th L eg ., R.S. (2007). 9Correc tions, Bill Analy sis, Tex. H.B

. 1678, 80th L eg ., R.S. (2007). Whil e not expressly excluding

the g rant of time cre dit t o defe ndants on standard community supervision, the House Resear ch Org anization does not mention that possibili ty

. This interpre tation is consistent with the somewhat less strained rea ding of the statute. The conjunctive rea ding promoted by the State require s g iving

cre dit for time serve d to defe rre d adjudication probationer s only , but does so reg ardle ss of the ty pe of fac ility in which they serve their time. The disjunctive rea ding promoted by Bur ke require s g iving

cre dit to standard probationer s for time serve d i n T DC J -run fac iliti es only , but allows defe rre dadjudication community probationer s to g et cre dit reg ardle s s o f the ty pe of fac ility in which they

serve their time. Reading the statute as distinguishing among ty pe of probationer s to deter mine when

cre dit must be g iven is less of a strain than rea ding it as distinguishing among ty pes of fac iliti es—but only for one ty

pe of probationer

—to deter mine when cre dit is due. We conclude that the subsection
at issue permits g iving cre dit for time serve d for succe ssfully completing an SAFPF only to persons serving defe rre d-adjudica tion probation. See Tex. Code Crim. P roc. A nn. art. 42.03, § 2(a )(2)

.

Affir med.

G. Alan Waldrop Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med Filed: June 25, 2010 Do Not Publish

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