### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00472-CR

James Quisenberry, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 922635, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

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

James Quisenberry appeals an order revoking his community supervision. In 1993,

Quisenberry pleaded guilty to the offense of indecency with a child by contact and was sentenced

to ten years’ imprisonment. S ee Tex. Pen. Code Ann. § 21.11(a)(1) (West 2003). Imposition of

sentence was suspended, and Quisenberry was placed on community supervision for a term of ten

years. After Quisenberry completed nine years of his probation, the State filed a motion to revoke

his community supervision alleging that Quisenberry had failed to report on one occasion in 1998,

that he was delinquent in payment of his fees by $80, and that he had been terminated from his sex

offender therapy program. After a hearing, the trial court found that Quisenberry had violated his

community supervision and sentenced Quisenberry to six years’ imprisonment.2 In his first two points of error Quisenberry contends that the trial court improperly

admitted hearsay evidence of his failure to report and his delinq uency in payment. Quisenberry

asserts in his third point of error that a condition of his community supervision requiring successful

completion of therapy, as determined by the therapist, was unconstitutionally vague. In his fourth

point of err or, he contends that the trial court abused its discretion by considering statements he

made to his th erapist obtained in violation of his Fifth Amendment protection from self

incrimination. Because the trial court did not abuse its discretion in finding that Quisenberry

violated the conditions of his community supervision, we affirm the trial court’s order revoking

community supervision and imposing sentence.

BACKGROUND

The thirty-two conditions of Quisenberry’s community supervision included

requirements that he regularly report to his community supervision officer, pay a monthly probation

supervision fee and:

Enroll, actively participate in and cooperate fully in S e x Offender therapy as

designated by Probation Officer and while in such program, submit to psychological

or psychiatric testing, evaluation as well as individual, family or group counseling as

directed by said therapist/Probation Officer and remain in such program until

successfully completed, as determined by t he therapist, and attend all sessions and

complete all homework assignments.

After Quisenberry completed four years of community supervision, the State moved to revoke his

community supervision alleging that he was delinquent in payment of his fees by $52 and that he

failed to actively participate in and cooperate fully in his sex offender therapy. After a hearing, the3

trial court continued Quisenberry’s community sup ervision through an order dated December 30,

1997.

Quisenberry cont inued on community supervision until August 2002 when he was

arrested in c onnection with a second motion to revoke his community supervision. This motion

alleged that Quisenberry failed to rep ort to his community supervision officer as scheduled on

August 18, 1998, was delinquent in payment of his community supervision fee by $80, and had been

terminated from sex offender therapy on July 28, 2002.

A hearing on the State’s motion was conducted in October 2002. The State called

Quisenberry’s community supervision officer, Gloria Lira, to testify about Quisenberry’s failure to

report and pay fees. Lira testified that her records indicated that Quisenberry was delinquent in

payment of his community supervision fees by $160. Lira confirmed that Quisenberry had regularly

reported to her in compliance with the conditions of his supervision. Then, based on her review of

Quisenberry’s file, Lira testified that Quisenberry had missed a scheduled appointment with his prior

community supervision officer on August 18, 1998. Lira also testified that she received a letter from

Quise nberry’s therapist indicating that Quisenberry had been terminated from the sex offender

treatment program.

The St a te also called Vivian Lewis-Heine, Quisenberry’s sex offender therapist.

Lewis-Heine treated and supervised Quisenberry’s treatment from th e time he began therapy in 1993.

She explained that she first terminated Quisenberry’s treatment in 1997 for refusal to participate in

the treatment program. She cited major violations such as the use of pornography, use of marijuana,

suspicion of use of

alcohol and other substances, and contact with children in violation of a no4

contact order. Lewis-Heine testified that she continued treating Quisenberry after 1997 and

discussed the factors th at led her to again terminate treatment in 2002. She explained that

Quisenberry had slowly progressed in his therapy until about 1999 when he “b egan to nosedive

slowly.” She referred him for psychiatric care in 2000 when he began having attachment issues with

his biological mother and his own children. She stated that he took a series of polygraph

examinations in 2001 , which he did not pass. In a December 2001 therapy session, Quisenberry

reported that he had sexual arousal when his twelve-year-old son Jacob placed his thumb in

Quisenberry’s mouth. Quisenberry also reported that he had looked in an ashtray for marijuana

roaches and that he tasted a bag of powder he found at work hoping it was cocaine. Lewis-Heine

described an incident in which Quisenberry reported that he was attracted to a co-worker’s teenage

daughter and that he felt that driving his co-worker home was an opportunity to find out where the

daughter lived.

Lewis-Heine explaine d why Quisenberry’s behavior indicated that he should be

terminated from therapy:

So it came to my attention in June or July of 2002 that these were situations that were

really beyond the normal reporting in a treatment session. In the first three years of

treatment we expect this type of reporting, but in the ninth year that means something

is not clicking and I believe that we need to defer to the Court to make a decision

about the safety of th e community regarding these . . . thoughts, feelings and

behaviors that are being reported to us.

Lewis-Heine also voiced concern that Quisenberry was a threat to the minor children of the woman

he was dating.5 At the hearing, Quisen berry cross-examined the State’s witnesses and called the

owner of the gas station where he worked, his father, his ex-wife, and his girlfriend as witnesses.

Quise nberry’s witnesses demonstrated that Quisenberry was a dependable worker and a devoted

father. They established that Quisenberry made extensive efforts over nine years to comply with the

rigorous conditions of his community supervision. At the conclusion of the hearing, the trial court

granted the State’s motion to revoke community supervision and imposed a sentence of six years’

imprisonment.

DISCUSSION

In his first two points of err or, Quisenberry contends that the evidence was

insufficient to support revocation of his community supervision because the evidence showing that

he failed to report to his community supervision officer and was delinquent in payment of fees was

improperly admitted. In conducting a factual or legal sufficiency review, however, we consider all

of the evidence, rightly o r wrongly admitted. C amarillo v. State

, 82 S.W.3d 529, 537 (Tex.

App.—Austin 2002, no pet.). We will therefore construe Quisenberry’s first two issues as a

challenge to the improper admission of hearsay evidence.

The root of Quisenberry’s contention is that Lira, his current community supervision

officer, did not have personal knowledge of his failure to report and of his delinquency in payment

of fees before her service. Lira testified only from business records that were not introduced into

evidence. Quisenberry contends that Lira’s testimony about the contents of the records was

inadmissible hearsay and could not be used as evidence of his failure to meet the conditions of his

community supervision. We need not pass on this question, however, because Quisenberry has not6

pres erved error. Lira testified without objection that, as of October 14, 2002, Quisenberry was

delinquent in payment of his community supervision fees by $160. When Lira was asked whether

Quisenberry was current on his reporting to his prior community supervision officer, Quisenberry

objected raising hearsay grounds. This objection was sustained. The State then established that Lira

was the custodian of Quisenberry’s community supervision records a nd again asked about

Quisenberry’s reporting history. Quisenberry objected and questioned Lira on voir dire. He

established that Lira was testifying from records that were ordinarily kept in her office file cabinet

and that Quisenberry’s files had been stored there since she took over from the prior community

supervision officer. After the voir dire examination, Quisenberry announced that he had no further

questions and did not obtain a ruling on his objection. Lira then testified that Quisenberry missed

an appointment on August 18, 1998. In cross examining Lira, Quisenberry himself elicited

testimony about both the missed appointment and Quisenberry’s delinquency in payment.

In order to preserve error in the ad mission of evidence, a defendant must make a

specific and timely objection and obtain a ruling from the trial court. M artinez v. State

, 98 S.W.3d

189, 193 (Tex. Crim. App. 2003). A defendant must object each time inadmissible evidence is

offered unless he requests a hearing or has obtained a running objection. I d

. Here, Quisenberry did

not object at all to the evidence that he was delinquent in payment of fees. Furthermore, Quisenberry

did not obtain a ruling on his objection to Lira’s testimony based on the records in her possession.

In fact, Quisenberry elicited much of the same testimony on cross examination that he now

complains of on appeal. Because Quisenberry has failed to preserve error, we overrule his first and

second points of error.7 In his remaining points of error, Quisenberry challenges the constitutionality of the

condition of his community supervision that he enroll, actively participate in, and cooperate fully in

sex offender therapy and challenges the use of statements he made in therapy against him. Because

Quisenberry did not object to the evidence of his failure to report and his delinquency in payment

of fees, however, these were proper grounds for revocation of community supervision. We need not

address Quisenberry’s other contentions since a single violation of community supervis ion will

support the court’s revocation order. S anchez v. State

, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980)

(single probation violation will support revocation of probation).

CONCLUSION

Because we overrule Quisenberry’s first two points of error, we have addressed all

issues raised that are necessary to the final disposition of his appeal. We affirm the trial court’s order

revoking his community supervision.

Bea Ann Smith, Justice

Before Justices Kidd, B. A. Smith and Pemberton

Affirmed

Filed: September 30, 2004

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