### 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. 03-17-00019- CR
Mark Luke, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ASTROP CO UNTY, 21ST JUDICI AL DISTRICT NO. 157 77, H ONO RAB LE CHRI STO P HER DARROW DUGGAN, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Mark L uke pleade d g uilty in 2015 to the offe nse of driving while intox icated with a child passeng er. See Tex. Penal Code § 49.045. Punishm ent was assessed at two y ear s’ confine ment in the Texas Depa

rtment of Criminal J u s t i ce S t at e J ail Division, but the district court suspended imposit ion of the sentenc e and place d L uke on community supervision for five y ear s in acc ordanc e with the terms of his plea ag ree ment. See id

. § 12.35(a)

. At a subsequ en t h ea ri ng on the State’s

m o t i o n t o revoke , the district court found that L uke violated the terms and conditions of hi s community supervision, revoke d his community supervision, and sentenc ed him to eig hteen months in state jail. L uke appea ls the distr i ct co u rt’s judgme nt in two issues, contending that the court abused its discretion by finding that he violated the t er m s an d conditions of his communitysupervision and that there was insufficient evidenc e to prove that h e v iolated the terms and

conditions of his community supervision. We will affirm the district cour t’s judgme nt.

BACK GR OUND The rec ord ref

lects that L uke pleade d g uilty to driving while intox icated with a child passeng er a

nd was sentenced to two y ear s in state j ail, but the di strict court suspended imposit ion of the sentenc e and place d L uke on community supervision for five y ear s. The rec ord also ref lects that the State soug ht to revoke L uke’s co m m u n i t y supervision multipl e times. I nitially , the State

rea ched a plea- barg ain ag ree ment with L uke reinstating his community supervision. The last time, the matter pr ocee ded to a he aring

.

The State’s only witness at the revoc ation hear ing was Matthew L eon Clark, L uke’s community -super

vision off icer with the Ba strop County Communi ty

Supervision a

nd Correc tions Depa rtment. Clark t estified that he was part of the process resulting in the earlier plea agr eeme nt with L uke, and that as p ar t of the ag ree ment, L uke was to attend and succe ssfully complete an I ntermedia te Sanctions Fa cility (I SF) prog ram for a period of not less than 45 day s and not more than 120 day s. The rele vant part of that plea ag ree ment is set fo rt h i n t he court’s “1st Orde r Modify ing Conditi ons of Communi ty Supervision,” which is in the rec ord. The order direc ts L uke to complete a 45- to-120 day I SF “substanc e abuse cog nitive treatment tra ck” pr og ram:

The De fenda

nt shall serve a

term of confinement and trea tment in a S tate of Texas C o ntrac ted I ntermedia te S anction Facility for a period of not less than 45 d ay s n o r m o re t h an 120 day s and the Def endant shall cooper ate with and complete all
2I ntermedia te Sanction Fa cility Prog ram require ments for its substance abuse

cog nitive tr eatment trac k and abide with all rules and reg ulations of said fac ility

. I t is the C o u rt ’s Orde r that said Def endant may be rele ased from the Fa cility in a manner and on a date d et ermined jointly by the I ntermedia te Sanction Fa cility Direc tor and the Direc tor of the Co mm u n it y Su p e r v is io n and Correc tions Depa rtment or their desig nees. Upon rele ase, the Def endant is order ed to meet with his Communi ty Supervision and Correc tions Offic er and continue to complete all other terms and c onditions of his communi ty supervision.

T h e order also provided that L uke would not incur supervision fee s while awa iting entry t o an d during the I SF prog ram, a nd that L uke would re main in jail until transporte d to the I SF progra m. 1 Clark testified th at afte r he returne d to his office to complete L uke’s admission packa g e for the I SF prog ram, he discovere d that the prog ram require ments had rec ently chang ed and that the 45-to-120-da

y I SF prog ram combining substance abuse trea tment a nd cog nitive tr eatment

no longe r exis ted. Clark stated that the prog ram now had two separ ate trac ks consis t i n g o f a cog nitive educa

tion trac k and a substance abuse trac k, that completion of both would not take more t h an 1 8 0 d ay s , and that L uke could not complete both trac ks with the order as written. Cla rk testified that he draf

ted a modification to the order incorpora ting this chang e. He then took the order along with the I SF admission packa g e rele ase form to L uke at the jail, but L uke ref used to sign the

new or der or

any rele ase. The rec o rd re flec ts that the State moved to revoke L uke’s community supervision almost one month afte r the plea ag ree ment , when L uke had still not started an I SF prog ram. The State’s motion alleg ed that L uke “f ailed to coope rate with and complete all I ntermedia te S anction

Shortly afte r enter ing into the plea ag ree ment, L u ke reta ined new counsel, who was his 1 third lawy er in this case

. 3Fa cility Prog ram require ments as d i re ct ed

. ” At the conclusion of the hear ing on the motion to

revoke, the district court found that L uke violated the terms and conditions of his community supervision by failing to complete the I SF prog ram. The court noted t h at L u ke reque sted reinstateme nt on community supervision and said that reinstateme nt was one of the court’s options

as punishment

. Ultimately , the court offe red L uke the choice of being sentenc ed to a Substance Abuse Fe lony Punishm ent Fa cility (SAFPF ) prog ram or having his community supervision revoke d and serving two y ear s in state jail with cre dit for time serve d. L uke confe rre d with his counsel and chose the latter. The court then imposed a reduc ed sentenc e of 18 months in state jail. After war d, L uke filed a mot ion for new t rial , which the court denied, and the court signed its finding s of fact and conc lusions of law. This appea l followed.

DISCUSSIO N A trial court’s decision to revoke community superv i s i o n m u st be supported by a preponde ranc e of the evidenc e. Hack er v. State , 389 S.W .3d 860, 864-65 (Tex. Crim. App. 2013). We r eview the court’s revoc ation decision for an abuse of discretion, mindful that the trial court is the sole j udg e of the credibility of the witnesse s and the we ight to be g iven to their testimony

. Id

. at 865. I n deter

mining whether the trial court abused its d i s cr eti on by finding a violation of a cond i t i o n o f communi ty supervision, we view the evidence in the l ight most favor able to the t rial court’s f indings a nd ruling

. Garrett v. State , 619 S.W .2d 172, 174 (Tex. Crim. App. 1981)). Modifications to the terms and c onditions of a defe ndant’s community supervision

are g overne d by statute. When this m atter w as bef ore the district court, the gove rning statute was

4article 42.12, section 10 of the Texas Code of Criminal Procedur e. Under that statute, a judge may 2 alter conditions of community supervision, and the judge may authorize the defe ndant’s supervision office r to do so “for

the limited purpose of tra nsfer ring the defe ndant to dif

fer ent prog rams within the community supervision continuum of prog rams and sanctions.” For mer Tex. Code Crim. Proc. art. 42.12 § 10(a) , (d). I n such a case , if the community supervision office r modifies the conditions of a defe ndant’s comm u n i t y s u pervision, the office r must: (1) deliver a copy of the modified conditions to the defe ndant; (2) file a copy of the modified conditions with the sentenc ing court; (3)
note t he date of delivery of t he copy in the defendant’s file; and if the de fenda nt does not ag ree to the modification in writing , (4) ref er the case to the judge of the court for modification as provided by section 22 of a

rticle 42.12. Id . § 10(e)

. After a hear ing on a motion to revoke community supervision, the court has authority
to order that the defe ndant’s community supervision be continued, extended, modified, or revoke d. Id

. § 21(b). I f the court revoke s community supervision, it may impose the sentenc e assessed at the punishment he aring or it may reduc e the sentenc e that was suspended at the punishment hear ing if it determines that to do so would serve the best intere sts of society and the de fenda

nt. Id

. § 23(a)

.
No abuse of

discretion by f

ind ing viol ation of

com m uni ty supervision L uke contends that the district court abused its discretion by finding that he violated the terms and conditions of his community supervision. He asser ts that there is no evidenc e that the

The Texas L eg islature repe aled article 42.12 eff ective J anuar

y 1, 2017, and enac ted article 2 42A, as part of a nonsubstantive revision of community -super vision laws. See Act of May 26, 2015, 84th L eg ., R.S., ch. 770-71, §§ 1.01, 3.01, 2015 Tex. Gen. L aws 2321, 2325 (codifie d at Tex. Code Crim. Proc. arts. 42A.051-.052)

. 5court authorized his supervision office r to “unilater ally ” modify the terms and condit i o n s of his

community supervision and no evidenc e that the due proce ss proce dural require ments of former article 42.12, section 10(e) wer e followed. Thus in L uke’s view, the court abused its discretion by finding that L uke violated the terms and conditions of his community supervision t h at wer e “illeg ally modified.” I n support of his arg

ument, L uke relies on W

itkovsky v. State , 320 S.W .3d 425 (Tex. App.—For

t Worth 2010, pet. ref

’d, untimely filed), a case distinguishable from this one. I n W itkovsky , the defe ndant wa s o n probation for injury to a child when the State filed a motion to revoke , alleg ing that Wit kovsky was “discha rg ed unsucce ssfully ” from a sexual-assault-pre vention prog ram. Id

. at 427-28. Wit kovsky completed the progr am as order ed by the judge

. Id

. at 430. Howeve r, W itkovsky did not compl et e a s epar ate sex -off ender trea tment prog ram that was added afte r his community -super vision office r co n cl u d ed that Wit kovsky had “re g resse d” and require d place ment in a diffe rent prog ram “ to beg in counseling all over a g ain.” Id . at 428.

On appea l, Wit kovsky contende d that the terms and conditions of hi s co m m u nity

s u p er v i s ion order wer e never properly modified to require his completion of t he second prog ram . Id

. at 429. The State conce ded that the second prog ram wa s a “t ra n sfer of the defe ndant to a differ ent prog ram” as contemplated by former article 42.12, section 10(d). Id

. at 430. Thus, it was undisputed that there had been a modification of Wit kovsky ’s community supervision. Id

. The For t Worth Court of Appea ls stated that: (1) despite the State’s conce ssion, it was questionable whether starting a treatment prog ram “all over ag ain” constitut ed a “tra nsfer to a differe nt pro gra m wi t hin the community -super

vision continuum” within t he meaning of section 10(d); (2) there was no

6evidenc e that the trial judge had authorized the community -super vision office r to modify the terms and conditions of Wit kovsky ’s community supervision; and (3) even if the community -super vision office r had such authority , there was no showing that any of the proce dural require ments of section 10(e) wer e met. Id

. at 430-31 & n.2. The appellate co u rt further stated t hat not hing in the record showed Wit kovsky had an opportunity to express in writing his ag ree ment or disag ree ment with the modification, and if he disag ree d, to have the modific ation ref err ed to the judg e. Id . at 431. The evidenc e in this case , viewed in the light most favor able to the trial court’s ruling , is not like the evidenc e in W itkovsky

. L uke did not sta rt , m u ch less complete, any I SF prog ram order ed by the court. Clark did not conclu d e t h at L uke had reg resse d and decide to chang e the availability of the 45-to-120-da y prog ram of trea tment; rathe r, as L uke’s cou n s el n o t ed , “I don’t know that that’s any

body ’s fault. I g uess probation did not rea liz e that the prog ram had chang ed.” Clark delivere d to L uke a copy of the order , which Clark modified to descr ibe the only available I SF prog ram contemplated by the court’s order

. When L uke ref used to sign it, the matter proce eded to the district court, which was authorized to orde r t h e continuation, extension, modification, or
revoc ation of L uke’s community supervision. See For mer Tex. Code Crim. Proc. art. 42.12 § 21(b). Thus, the conce rns in W

itkovsky about the lack of a trial-cour t hear ing and the lack of notice to, and input from, the defe ndant about modification of the terms and conditions of his community supervision are not prese nt here

. Cf

. W itkovsky , 320 S.W .3d at 431. L uke has not shown that the
court abused its discretion by finding that he violated the terms and conditions of his community supervision, which L

uke conte nds were “illeg ally modified.” We over

rule L uke’s f irst issue.

7Suf

fi cient e vidence supp orte d f ind ing of violation of

com m uni ty supervision I n his next issue, L uke contends that there was insufficient evidenc e to prove that he violated the terms and conditions of his community supervision. He asser ts that the State prese nted

no evidenc e that he violated the terms and conditions of th e “1 s t Or d er Modify ing Terms and Conditi ons of Communi ty Supervision,” which require d completion on l y of an I SF prog ram spanning a per iod of not less than 45 day s and not more than 120 da y s. The decision to revoke co mm u n it y s u p e r v is io n mu s t b e s upported by a preponde ranc e of the evidenc e. Hack

er , 389 S.W .3d at 864-65. “I n the probation-r evoca tion context, ‘a preponde ranc e of the evidenc e’ means ‘that g rea ter weig ht of the cre dible evidenc e which would

cre ate a rea sonable belief that the defe ndant has violated a condition of his pr obation.’” Id

. at 865 (quoting Ricke ls v. State , 202 S.W .3d 759, 764 (Tex. Crim. App. 2006)).

Her e, the St at e al l eg ed that L uke “fa iled to cooper ate with and complete all I ntermedia te Sanction Fa cility Prog ram require ments as direc ted.” Clark testified that he discovere d that the I SF p ro gra m requirements had rec ently chang ed, that the 45-to-120-da y I SF prog ram combining substance abuse trea tment and cog nitive trea tment no longe r exis ted, and that completion of both the cog nitive e ducation trac k and a substance abuse tra ck—as c ontemplated by the court’s “1 s t Orde r Modify ing Terms and Conditi ons of Communi ty Supervision”—would not take more than 180 day s. L uke did not dispute Clark ’s testimony about this oversig ht, and L uke’s counsel

rema rked that it was no one’s fault; appar ently the probation depar tment did not rea liz e the prog ram had chang ed. Clark further testified that he draf ted a modification to the order incorporating the chang e to the I SF prog ram and took it to L uke, who ref used to sign it. The district court was the sole

8judge of Clark’s cre dibilit y and the weig ht to be g iven to his testimony

. See id . We conclude that

t h e ev i d ence in this rec ord, viewed in the light most favor able to the district court’s ruling , wa s sufficie nt to support the court’s de termination that the terms a nd conditions of L uke’s c ommunity supervision require d him to cooper ate with and complete all I SF prog ram require ments as direc ted and that—by reje cting the modified order for his admission to the only exis ting ty pe of I SF prog ram contemplated b y t h e co u rt ’s order —L uke did not cooper ate with and did not complete the I SF prog ram require ment as direc ted. Acc ording ly , t h e d i s t ri ct court did not abuse its discretion by finding that L uke violated the terms and conditions of his community supervision. We ov errule L uke’s se cond issue.

CONCLUSION

We affir m the district court’s judg ment revoking L uke’s c ommunity

supervision.

J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices F ield and B ourland Affir med Filed: Jul y

20, 2017 Do Not Publish

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