## In The Court of Appeals Seventh District of Texas at Amarillo

No. 07
- 19
- 00007
- CR
LUIS ALBERTO ADAME, JR., APPELLANT

V. THE STATE OF TEXAS, APPELLEE On Appeal from the 286th District Court Hockley County, Texas Trial Court No. 16
- 06
- 8772 ; Honorable Pat Phel an, Presiding

December 11 , 201 9 

### MEMORANDUM OPINIO N Before QUINN, C.J., and PIRTLE and PARKER, JJ. Appellant , Luis Alberto Adame , Jr., appeals from the trial court ’ s judg ment revoking his c ommunity supervision and sentencing him to ten years of imprisonment for the offense of sexual assault of a child

. 1 Appella nt challenges the court ’ s j udg ment through tw o issues. We affirm as modified.

1 T EX
. P ENAL C ODE A N N
. § 22.0 11 (a)(2) (A) (W est 201 9 ). As indicted, the offense was a second degree felony. Id. at § 22.011(f).2

B ACKGROUND In early 201 7, A ppellant ple a d ed guilty to sexual assa ul t of a child. His ten
- year sentence was sus pended in favor of his placement on community supervision for a peri o d of ten years. His community supervision was subject t o certain terms and conditions. A lmost six months after A ppellant ’ s placement on com mu nity supervision, the State filed a motion to revoke

. Following a hearing in which the tri a l court found the alleged violations to be true, the tri al court o rdered A ppel lant ’ s community supervision to continue with additional terms.
Several months later , the State filed another motion to re voke, alleging A ppellant violated eight of th e thirty
- four conditions of his community supervision. Those alleg ed violations included A ppellant ’ s f ailure to report as required , failure to work at su itable employment , fa ilure to pay required fin es and fee s , failure to pay the requ ired monthly community supervisi o n fee , failure to attend p syc hological counseling ses sions , failure to perfo rm required community service , failure to attend probation perf o rmance reviews , and fa ilure to avoid contact with a minor child

. The trial court held a hearing on the State ’ s mot i on during which A ppellant ple a d ed

“ not true ” to the Stat e ’ s allegation s. T wo w itnesses testified. One witness was A ppellant ’ s community sup ervision officer and t he other was a n investigator with the Texas Department of Family and Protective Services. Appe llant ’ s community supervision officer testi fied to the term s and conditions o f A ppel lant ’ s community super vi sion, that he discussed those terms and conditions wi th A ppellant , and that A ppellant unde rstood them. The officer then t old the court which conditi ons A ppellant violated. First, A ppellant f ailed to re port as required for th e months3

of May through December 2018. The officer testified his last contact with A ppellant was
a February 2018 “ face
- t o - face ” “ fi eld visit ” in wh ich the officer went to see A ppellant rather than A ppellant coming to see him. Second, while A ppel lant did submit a job search form in N o vember 2017 , he did not obtain employment and “ failed t o provide pr oof that he ’ s [continuing to seek] employment. ” Third, th e officer testified A ppellant was required to attend s ex offender counseling once a week. The sex offender counselor told the officer A ppellant missed several sessions and also failed t o attend a sc heduled polygra ph exam in Feb ruary 2018. Appellant was “ d ischarged uns u ccessf ully ” from the program in late Feb ruary 2018. Fourth, the officer told the court A ppellant was ordered to complete communi ty service hours and because A ppel lant w as not employed, he was requi red to complete eight h ours per we ek. H o wever, A ppellant had completed only a total of 6.5 hours for th e entire period of his community supervision. Furthermore, A ppellant failed to appear for a required p er formance re view he ar ing. The community supervision officer also t old the court that the terms and conditions of A pp ellant ’ s community supervision pro hibit ed his c ontact with minor children without permission of the officer o r the court. In mid
- February, the officer receiv ed a t elephone call and follow
- up email from a CPS investigator informing him that a wee k earlier, he conducted a home visit regarding minor chil dren. A male identified as A ppellant answered the door of the apartment and it was confirmed he was in the pre se nce of minor children. The officer recommended to the court that Appellant ’ s supervision be revoked because he is “ not a g ood candi date to complete probation just by his actio ns throughout his term of supervision an d so I don ’ t think he will comply with c onditions. ” The investigator with the Department of Family and Pro tective Services testified he receiv ed an intake report con cerning domestic violence in t he home of an infant and4

a one - year - old. The re port indicat ed concerns of domesti c violence , loud ar guing, d rug
u se, and neglect. When t he invest igator visited the home in early Feb ruary 2018 , a male answered the door a nd told the investig ator the woman he was looking for was not there. O n reque st, that person identif ied hi mself to the investigator a s A ppell ant a nd told him he
was babysitting the children. The investigator asked to see the children and A ppellant allowed him to do so. The investigator “ m ade a brief assessment, assured their safety ” and obtained further identifying information fro m A ppellant and co ntact information for the mother. The investigator le f t the apartment and went to his car to determine who A ppellant was and to attempt to loca te the mother

. Within thirty minutes, a maternal aunt
arr ived. She went to the apartment and c ame downstairs w ith one of the children. The i nvestigat or asked who she was , and she identified herself. Shortly thereafter, A ppellant came downstairs with th e other child. Appellant told the inv estigator he was not the father of the children , but t h e mat ernal aunt told the investigator he was. The aunt left with the children , so the inv estigator went back to the apartment and asked A ppell ant a gain whether he was the father of the children. Again, h e said no and when confronted with the fact the mat e r nal aunt s aid he was, he just said it had not “ been proven ” and that he had “ not taken a pat ernity test ” so he did not know for certain if he was

. The investigator left and within two or three h ours, he discovered A ppellant ’ s charges of sexual abus e to a minor child. The investigator later spoke with the mother and she confirmed A ppellant was the fa ther of the children. When asked, she told the investi gator she was not aware of the condition prohibiting A ppel lant ’ s contact with minor children. The mot he r also t old the invest igator A ppellant was not living in the ap artment with her and her children. However, other people at the apart ment comple x told the investigator A ppellant was living th ere.5

A p pellant did not testify but did comment to th e court th at he “ tried my hardest to complete my probation. ” He also said his community s upervis ion officer told him to stop taking his anxiety medication and that he would “ just get too ne rvous, I gues s, and I didn ’ t report. I ’ m sorry. ”
At the conclusion of the h earing, the trial court found each of the State ’ s allegations to be true and revoked A ppellant ’ s community supervi sion. The court sentenced A ppellant to serve ten years of impr isonment.
A NALYSIS S TANDARD OF R EVIEW AND A PPLICABLE L AW The only question be fo re this court when reviewing an order revoking comm unity supe rvi sion is whether the trial court abused its discretion. Hacker v. State , 389 S.W.3d 860, 865 (Tex. Crim. A pp. 201 3); Cardona v. State , 665 S.W.2d 492, 493 (Tex. Crim. App.1984) (citation omi tt ed). In a revocation proceeding, the State is required to prove by a preponderance of the evidence that the probationer violated a condition of community supervision as alleged in the motion to revoke. Cardona , 665 S.W.2d at 493 ( citation omitted). Pr o o f of a single violation is sufficient. Garcia v. State , 387 S.W.3 d 20, 26 (Tex. Crim. App. 2012). If the State fails to sat isfy its burden of proof, the trial co urt abuses its discr etion in revoking community supervision. Ca rdona , 665 S.W.2d at 493
- 94. ( citation omitted). In determining the sufficiency of the evidenc e to sustain a revocation, we view the evidence in the light most favorable to the trial court ’ s ruling. Id. at 493

. T he trial court is the sole trier of fact and determin es the credibilit y of witnesses and the weight to be give their testimony in revocat ion proceedings. Moore v. State , 11 S.W.3d 495, 498 (Tex. Ap p. — Houston [1 4th Dist.] 2000, no pet. ) (citation omitted).6

A PPLICATION I SSUE O NE — S UFFICIEN CY OF THE E VIDENCE In his first issu e, A ppellant argu es the evidence was insufficient to prove he violat ed several conditions of his community supervision ord er. The State responds that it presented sufficient evidence showing A ppellant violated each condition and because the law requ ires s uf ficient evidence o f violation of only one conditio n, we must overrule the issue . We agree. Appellant first argues the State failed to pr ove he did not pr operly report. Appellant concedes his community supervision officer testified A pp ellant did not re po rt to him but argu es there was no evid ence A ppellant di d not report to another officer. The report and file were not ad mitted into evidence

. According to App ellant, such evidence has been found in other cases sufficient to prove an a ppellant ’ s failure to report as re quire d. However, Appellant asserts, because no such evidence was offered here, the S t ate ’ s proof falls short. We do not agree with Appellant ’ s argum ents, in significant part because, i n h is c omments to the court, A p pellant a dmitted his fai lu re to report . Whi le he said it was because he was “ too nervous ” and that he was sorry , these are not valid explanation s for his failure to report. The trial court was free to interpret this as an admissio n supporti ng violation of this cond ition

. Appel l an t also argues th e o rder did n ot expressly include in its conditions that A ppella nt make a certain number of job contacts. It sa id only that A ppellant “ shall work faithf ully at suitable employment as far as possible. ” The offi cer acknowledg ed A ppellant
su bmitted a job fo rm, made seve ral job contacts, had f ew skills for employment o ther than manual labor , and that finding a job “ would be diffi cult. ” The officer also said that he faulted A ppellant “ for not seeking emp loyment ” rather tha n for no t o btaining e mployment.7

The rec ord also s hows that when A ppellant did find potential employ ment, his community sup ervi sion officer told him he could no t take the job because it was not lo cal and would take him out of the sex off ender cou nseling prog ram. According t o A ppellant, court s h ave been r eluctant to revoke community su pervision for violation of this condition, part icularly when some efforts towar d employment have been made. H o wever, the trial court here had before it sufficient f acts from which it could have f ound, by a preponde rance of the evidence, that Appellant violated this condition. See Howard v. State, No. 09
- 09
- 00386
- CR , 2010 Tex. App

. LEXIS 5758, at * 6
- 7 (T ex. App.

— Beaumont July 21, 2010, pet. ref ’ d) (mem. op., not designated for publi cation).
Nex t, A ppellant a r gues t he law requires the S t ate to show A p pellant had the abilit y to pay the fees and costs he was alleged to have left unpaid . This is so because, A pp ellant asserts, revocation of community supervision for failure to pay when a defe ndant i s unable to pay deni e s due process of law. Under article 42A.751(i), when it i s alleged only that the de fendant violated the condition s of c ommunity supervision by fa iling to pay community supervision fees or court co sts or by f ailing to pay the cost of l eg al services, the St ate must prove, by a prep onderance of the evidence, that A p pellant had the ability to pay but willingly did not pay the r equired costs and fees. T EX
. C ODE C RIM
. P ROC
. A NN
. art. 42A.751(i).
The statu t e com es into play in a revocation h ea ring at which it is alleged only that the defendant viol ated the conditions of community supervision by failing to pay community super vision fees or court co sts or by failing to pay the cost of legal services

. H e re, several other allegatio ns were at is su e in the revocation hearing. The “ clear language of the s tatute provides th at t he State only needs to prove the defendant ’ s ability to pay wh en the failure to pay is t he only allegation. ” Archer v. State , No. 13
- 18
- 00059
-8

CR, 2019 Tex. App. L EXIS 4216, at *10 (Tex. App.

— Corpu s Christi May 23, 2019) (mem. op., not desi gnated for publication) (citi ng T EX
. C O DE C RI M
. P RO C
. A NN
. art. 42A.751(i)). Thus, w hen the State alleges more t han on e allegation at the revoca tion hearing, as is the case he re , “ th e State is not r equired to prove the defendant had the ability to pay or that his failure to do so was willf ul. ” Id

. ( citing Gips on v. State , 428 S.W.3d 107, 113 (Tex. Crim. App. 2014) (Johns on, J., concurring)

. S ee a lso Farr v. State , No. 13
- 17
- 00 297
- C R, 2018 Tex. App. LEXIS 6714 , at *9
- 10 (Tex. App.

— Corpus Christi Aug. 23, 2018, no pet. ) (mem. op., not desig nated for publication) ). The refore, the trial court had before it sufficient evidence to support a finding Appellant vi olated this conditi on
. 2 Appellant further argue s th at in its motion, the State alleged he violated cond ition number 15 that required A ppellant to a ttend psychological co unseling sessions. However, the community su pervisi on o fficer testified that A ppellan t failed to attend
se ssion s of the sex offender couns eling program as described in condition B , not condition 15. Because , Appellant argues, evidence was given to sup port a violation of
co ndition B rather than condition 15 and because the State faile d to alleg e A ppellant vi ol at ed condition B, the evide nce was insufficient to support revocation under condition 15. The testimony indicates that while there are tw o con ditions pertaining to counseling , one for p sychological counseling and one for the sex offender co uns eli ng pr o gr am , the two were , in A ppellant ’ s case, related or p erh aps the same requirement

. The officer speaks to both indivi dual coun seling and group sessions , noting both of the co ndit ion s.

2 A ppellant also argues that whil e his failure to pay the i mposed fine is not a lone subject to article 42A.751(i), the court included the repayment of the f ine with the other fees and costs. Therefore, he asser ts, h is community supe rvision should not have been revoked on hi s failure to m ake pa yments toward repaym ent of the imposed f ine. Because we have found the Stat e was not required to prove A ppellant ha d the ability to pay fees and costs under the statute or that his failure to so pay was willful, we find the State was not re quired to prove either with regard t o the assessed fine.9

Given this, the trial court could have been confused

. In any eve nt, this f in ding does not warrant a reversal of the decision to revoke in light of the other established v iolations

. Condi tion 19 of A p pellant ’ s community supervision order requi red hi m to complete community service hours. At the time the motion was filed , the Sta te alleged A ppellant
was thirty
- one hours delinquent. Appellant w as required to perform 2 40 hours of service and the of ficer testifi ed he ha d completed only 6.5 hours b y the t ime of the revocation hearing. Appellant does not dispute this evidence ; rather , h e argues th e Sta te failed to meet it s burden of pro o f as to this allegation because the officer relied only on his own records , did not ref er to the department al records as a whole, and did not state how he
rece iv e d v erific ation of completion of hours. W e disagree with Appellant ’ s assessment of the evidence and find the trial court could have determined there was sufficien t proof to support a finding that Appellant violated thi s condition.
Based on the above and foregoing, t he trial court did not abuse i ts disc retion in determining Appellant violated at least one of the terms and conditions of his community supervision. Accordingly, w e overrule Appellant ’ s first issue

.
I SSUE T WO — T HE E FFECT OF E XHIBIT A ( F ) ON A PPELLANT ’ S F AMILIAL R IGHTS In his second i ss ue , A ppe llant argues the restriction against contact with minor children contained in Exhibit A (f) of his community supervision order unconstitutionally restricted his f amilia l rights and was not re asonably related to hi s underlying crime. 3

3 In his appellate brief, Appell ant refers to th e restriction contained in E xh ibit A(f) of his community supervision or der as “ condition eight. ” It is not, however, condition 8 of Appellant ’ s community supervision order. It i s the eight h allegation in the State ’ s motion to revoke. We will refer to the condition of which A ppellant complai ns as that condition set forth in Exh ibit A(f).10

Appellant pl e a d ed g uilty to sexu al ass ault o f a child. The vic tim was fourteen years old and A ppellant had just turned n ineteen. Appellant a ckno wledges that because the victim was con si dered a child under the law, the condition restrict i ng his contact with minor childr en is reas onably relate d to h is underlying crime. However, he contends, if the order did extend to his own biological children, something A ppellant disputes because the o rder did not e xplicitly say so, the conditi on was not reasonably related to the under ly ing crime because h is crime was no t one against very minor children or incestuous in nature. Rather, it was of the “ statutory rape ” varie ty and thus, A ppellant posed no danger to his own minor children. The con dition , A pp ellant asserts, thus “ evi scerate d his constitutional f amilia l righ ts. ” The State argues Appellant has mischaracterized E xhibit A (f)

. The provision provides in relevant part as follows:
Do not initiate, maintain, or e stablish direct or indirect contact w ith any minor child, or attempt to do so, nor reside in the same residence with minor children with out prior permission o f the court or supervision officer. This, the S t ate says, does not eviscerate Appellant ’ s cons t itu tional rights but instead, imposes o nly a safety requirement, i.e., th at Appellant request permission prior to seeing his children

. We agree

. Texas trial courts are affor ded “ broad discretio n ” in devising terms of community supervision. Cochran v. St ate , 563 S.W.3d 374, 378
- 79 (Tex. App.

— Texarkana 2018 , no pet. ) (citing B utler v. State, 189 S.W.3d 299, 303 (Tex. Crim. App. 2006); Briseno v. State , 293 S.W.3d 644, 647 (Tex. App.

— San Antonio 2009, no pe t. ) ). Trial judges “ may impose any reasonable condi tion that is designed to protect or res tore the community, protect or
r es tore the victim, or punish, rehabilitate, or reform the defendant. ” Id. (citing T EX
. C ODE11

C RIM
. P ROC
. A NN
. art. 42A.301(a) (West 2018) ). The co ndition contained in Exhibit A(f)
was a p ermissible condition under the facts of this case

. See Ex parte Alaka yi , 102 S .W.3d 426, 435
- 36 (Tex. App.

— Houston [14th Dist.] 2003, pet. ref’d) (discussing restrictions imposed in communit y supervision order limiting contact with minors and creating a child safety zone). Appellant admits t hat under Exhibit A (f), he cou ld have a sked the trial court for pe rmission to see his biological children and he readily admits he did not do so . Instead, once his conduct was being questioned , he simply says this shows , whe n considered along side the fact that A ppel lant d id not attemp t to hi de his contact with his c hildren from the officer, that he did n ot understand that t he order extended to contact with his own minor children. But i g norance is not an excuse. Furthermore, the record shows the community supervision officer testified h e discussed with Appellant that this condition “includes all children, b iological and nonbiologi cal.” In addition, t he offi cer answered affirmatively when asked whether he was “convinced that [Appellant] clearly understood that included his own children .”
Thu s, w e cannot agree that Appellant ’ s asserted misunderstandin g that the condition did not apply to h is own children alters the character of the condition such t hat it violated his constitutional rights or placed an imp ermiss i ble restriction on him. Th is is true even though Appellant ’ s crime was “ not against very mi nor chi l dren or incestuous in nature ” b ecause limits like these may be placed on defendants on community supervision for many cr imes, regardless of the victim ’ s age. E x parte Alakayi, 102 S. W.3d at 435. (ci t ations omitted) ; Briseno , 293 S.W.3d at 650.12

Because the restriction set forth in Exhibit A (f) of Appellant ’ s super vision order did not un constitu tionally restrict Appellant ’ s familial rights and was reaso nably related to his underlying c rime , w e resolve Appellant ’ s second issue against him.
R EFORMATION OF J UDGMENT During our review of Appellant ’ s is sues, this court noted an error in the Judgment Revoking Community Super vision. The summary portion of th e judgment under the heading “Ple a to Motion to R evoke ” reflects a plea of “True.” However, Appellant contested the State’s allegations , pleading “ not true ” at the hearing

. Furthermore, on pa ge two, paragraph five , of the Judgment R evoking Community Sup ervision the court finds Appellant f ailed to attend psychological counseling sessions . A s we have noted above, the State ’ s evidence failed to establish this violation. This court has the power to modify t he judgment of the court below to make the

r ecord speak the trut h when we have the n ecessary information to do so. T EX
. R. A PP
. P

. 43.2(b); Bigley v. State , 865 S.W.2d 26, 27
- 28 (Tex. Crim. App. 1993). Appellate courts have the power to reform whatever t he trial court could have corrected by a jud gment nunc pro tunc where the evidence n ecessary to correct the judgment appears in the record. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.

— Dallas 1991, pet. ref'd). The power to reform a judgment is “ not dependent upon the request of any party, nor does it turn on the question of wheth er a party has or has not objected in the trial court. ” Id . at 529
- 30. Thus, we modify the trial court ’ s Judgment Revoking C o mmunity Supervi sion to reflect a plea of “Not true” in the summary portion of the judgment and to delete the fifth paragraph of t he trial court ’ s findings concerning violations of the conditions of community supervision.13

C ONCLUSION As modified, we affirm the judgment of the trial court.

Patrick A. Pirtle Justice
Do not publish.