### 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

ON MOTION F OR REHEARING

NO. 03-11-00015- CR

Jason Rhod es, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 26TH JUDICI AL DISTRICT NO. 06- 797- K2 6, H ONO RAB LE B ILLY RAY STUB B LEF IELD, JUDGE P RESIDING

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

We deny Rhodes’s motion for rehe aring , withdraw our opinion and judgme nt dated
Au gu s t 31, 2011, and substitut e the following in their place

. We dismiss Rhodes’s motion for en banc rec onsideration as moot.

Appellant J ason Rhodes pleade d g ui l t y t o the felony offe nse of forg ery of a financ ial instrument and was place d on defe rre d-adju d i cation community supervision for a period of five y ear s. Subsequently , the district court amende d the conditions of Rhodes’s community supervision to include a condition that he serve 180 day s in jail. After Rhodes failed to
repor t to jail on a cer

tain date as schedule d by his probation office r, the State filed a motion to adjudicate

. Following a hearing , the di strict court gra nt ed the motion, adjudicate d Rhodes g uilty ,and sentenc ed him to fiftee n months in state jail. I n a single point of err or, Rhodes asser ts tha t the district court abused its discretion in revoking his community supervision. We will aff irm the order adjudicating g uilt.

BACK GR OUND

After Rhodes was place d on defe rr ed adjudication, he alleg edly violated the conditions of his community supervision by writing two “hot chec ks,” failing to provide a statement of hi s i n co me and expenses, and failing to attend a cog nitive education prog ram. Rather than seeking to revoke Rhodes’s communi ty supervision based on these viol ations, the S tat e agr eed to continue Rhodes on community supervision in exchang e for Rhodes ag ree ing that his conditions of community

supervision be a mended to include r estitution i n the amount of $11,175.00. The district court schedule d a hear ing for Fe bruar y 6, 20 0 8 , to approve the ag ree ment. Howeve r, Rhodes did not appea r at the hear ing. On the day of the hear ing, Rhodes repr esente d to the court, his attorney , and other s t h at h i s fathe r-in-la w had rec ently passed awa y , that he neede d

to a ttend the funer al in T ay lor, and that, althoug h Tay lor was within Will iamson County , he could not make it to court in time for the he aring . As Rhodes later a dmitted, however , he did not attend

a funer al and, in fac t, was not even in the state. Rhodes had left Texas without permission from his probation office r to work in L ara mie, Wy oming. Rhodes made the d ec i s i o n t o stay in Wy oming

on the day of the hear ing to complete a job. Rhodes returne d to Texas later that night and turned himself in to the Wi lliamson Count y J ail.
On Fe bruar

y 11, 2008, the district court held a hear ing t o co n s i d er the ag ree ment previously rea ched betwee n the State and Rhodes. At the hear ing, Rhodes, who had b ee n in jail

2s ince his return to Texas, apolog ized for ly ing to the court. The State, in response t o R h o d es ’s

conduct, reque sted that the court amend the conditions of his community supervision t o i nclude additional jail time. The district court ag ree d to the State’s rec ommendation and amende d Rhodes’s community

supervision as follows:

T h e ad d itional condition of probation—and I will reluc tantly g o along with th e State’s rec ommendation that he be continued on probation, but he will be require d, as a condition of probation, to serve 180 day s in the Wil liamson County J ail. I n light of the financ ial circ umstances of his f amily —I don’t wish to punish his family , but I must punish his behavior —I will allow h im to do the first 30 day s consec utive within the next 90 day s, and the rema ining 150 day s wi l l b e serve d in 30-day incre ments. And those will, basi ca l l y , be schedule d in such a fashion that he can complete those by the end of his probation, which will be 2011. I d o that in order that he will have a reg ular schedule that he ca n work around. He needs to se t a side those 30 day s. And they will be serve d in jail, and they will be serve d in 30-day consec utive incre ments.

Rhodes’s attorney then asked whether Rhodes would need to “wor k

. . . out with his probation office r

. . . when he’s g oing to g o in” to the jail to serve his time. The district court replied, “Tha t’s rig ht.”
At the conclusion of the hear ing, the district court i n s t ru cted the prosec utor to “make a note on the file that this is a very unusual case . . . if we have any trouble in the future.” The district c ourt 1 subsequently enter ed a written order amending Rhodes’s condition of community supervision to include the c ondition that R hodes “se rve 180 da y s in jail.” 2

I n fac t, the district court admonished Rhodes that “this is undoubtedly the most blatant 1 occur renc e” of ly ing to the court that the district court had experience d in six teen y ear s on the bench. Rhodes cl ai m s i n his brief that no such written order was filed. Whil e the written order 2 was not included in the cler k’s rec ord, it has been included in a supplemental cler k’s rec ord that was reque sted by

this Court. 3I n Dec ember 2010, the State filed a motio n to adjudicate , alleg ing that Rhodes

had violated the condition of his community supervision requiring him to serve 180 day s in jail. The district court held a

hear ing on the motion. At the hearing , the district c ourt consider ed testimony from seve ral witnesse s, including Micha el Vohs, Rhodes’s primar y probation off

icer

. Vohs testified that afte r the distric t co u rt order ed Rhodes to serve jail time, Vohs had R hodes report to him on Fe bruar y 15, 2008. On t hat date, acc ording to Vohs, he and R hodes
“esse ntially

chose the dates of a ll future commitment order s.” Vohs explained,

We chose them toge ther, in such a way that would—one, that he would know

. . . the future jail time so he could plan his life around them. Also, I didn’t want there to be any kind of confusion as to does he have to do them now or later and

. . . y ou know, easy for him to g et his life around. I felt it was easie st just to pick the day s, these are the day s, so he ca

n plan his life ar ound them.

Vohs added, “Just from prior interac tions with Mr. Rhodes, I felt that y ou had to be very specific on

some things.

. . . I felt that I had to be extremely concr ete with him, and with as littl e ambig uity as possible, so that he may

not—so that there wa s no misunderstanding .” Vohs had the district court sign six differ ent order s of commitment, one for eac h 30- day incre ment of jail time Rhodes was to serve . Rhodes was schedule d to repor t for his first 30-day

sentenc e on May 7, 2008. Acc ordin g t o Vo h s , Rhodes repor ted to jail on that date but filed a 3

The subsequent incar cer ation dates, ac co rd i n g to Vohs, wer e schedule d for J anuar y 2, 3 2009; May 6, 2009; J anuar y 1, 2010; May 6, 2010; and J anuar y 1, 2011. Vohs testified that the dates wer e sche duled s uch that Rhodes would repor t to jail twice a

y ear in order tha

t he could complete the entire ty

of his jail time in the three y ear s remaining on his probation. 4reque st with the dis t ri ct co urt to allow him to serve his jail time in smaller incre ments. The

district court denie d the re quest.

Rhodes was schedul ed t o beg in his second 30-day sentenc e on J anuar y 2, 2009.
Howeve r, in Dec ember 2008, Rhodes appea red at Vohs’s office without an appointment and asked

to have his jail time resc heduled beca u s e o f h o w the previously schedule d date would adver sely impact his new job a

nd be a burden on his f

amily

. Vohs denied the reque st and reminded Rhodes,
“You knew that these dates wer e not g oing to be chang ed.” Vohs advised Rhodes that if he wanted

t h e d at es ch ang ed, he would need to hire an attorney

. Rhodes turned himself in to the jai l as schedule d on J anuar

y 2. Prior to Rhodes’s third schedule d jail sentenc e set to beg in on May 6, 2009, Rhodes hired an attorney and obtained a hear ing befor e the district court to reque st a modified jail schedule

. At the hear ing, Rhodes asked to be allowed to serve his r emaining 120 day s as four- day wee kends

ever y month until all day s had been serve d. Vohs testified that the district court denied the reque st but “advised tha t he would let the def endant pick othe r day s and not have to do the day s that were previously ag ree d.” The district cour t also ag ree d to let Rhodes do his third 30-day sentenc e at a 4 later, unspe cified time but re quired that the ja il tim e continue to be serve d in 30-day incre ments.

There is no order in the rec ord ref lecting this chang e. Howeve r, on the date of the hear ing, 4 the district court enter ed the following notation on its docket sheet: “Court is fine with chang ing commitment d at es , but defe ndant will have to serve 30 day incre ments until 180 day s have been completed.” 5Rhodes subsequently was assig ned a second probation office r, I nez Gar z a. Vohs 5
testifi ed t h at o n J uly 15, 2010, Rhodes and Garza ag ree d during a telephone conver sation that Rhodes would beg in serving his third 30-day jail sentenc e on J uly 23, 2010. Vohs added, “[Rhodes] had contac ted Ms. Gar za and picked the date. This is the date he wanted to do [hi s jail time] .” On
J u l y 2 3, Vohs contac ted R hodes t o inform hi m that the commi tment order had been prepare d an d signe d by the judge and that Rhodes neede d to repor t to the jail by 6:00 p.m. Vohs testified that 6
Rhodes “see med reluc tant” to beg in the jai l t i m e, b u t Vohs advised him, “You’ re supposed to be here .” L ater that day , Rhodes called Vohs and told him that beca use he had not he ard from Gar za, he did not be lieve he neede d to r eport to the jail. Rhodes also expressed conce rn that if he went to jail, he would lose his job beca use he had not informed his employ er that he was supposed to repor t
to jail on the date in question. Vohs reminded Rhodes that he had previously ag ree d to the date and that, if Rhodes did not repor t to the jail as schedule d, “he should expect to g o b ac k t o co u rt o n a violation re p o rt

. ” Rhodes did not repor t to the jail as schedule d, and Vohs subsequently filed a probation-violation re port.

Gar z a al s o t estified at the hear ing and ag ree d with the State that Rhodes

was schedule d to repor

t to jail on J uly 23. Ga rz a added, “Tha t was the date that he sug g ested” when they spoke on J uly 15. Gar za subsequently “wor ked out the commitment order and sent it to

This was beca

use Rhodes was now repor ting from Montgome ry County wher e he was 5 employ ed at the time.

On cross-e x amination, Vohs acknow ledg ed that the commitment order had not been 6 signe d by the court until the day Rhodes was schedule d to repor t to the jail. Howeve r, Vohs testified that he ema iled Rhodes a copy of the c ommitm ent orde r that af ternoon so that he w ould rec eive it prior to repor

ting to the jail that night. Rhodes acknow ledg ed having rec eived the commitment order that day

. 6Michae l Vohs” to obtain the court’s signa ture. Gar za w as shown a copy of the c ommitm ent orde r

with the court’s signa ture, acknow ledg ed th at t he handwr iting on the order was not her own, and specula ted that the orig inal commitment order she had sent to Vohs may hav e been lost at the probation depar

tment. Gar za also acknow ledg ed that afte r speaking with Rhodes on J uly 15, she did not speak with him ag ain until J uly 26. On that date, Gar za rec eived a call fr o m R h o des informing her that he had not repor ted to the jail on J uly 23 beca use Gar za had not called to confirm that date with him. Gar za e x plained to Rhode s that it wa s his r esponsibility to c ontact her, not the other wa y around. Rhodes testified i n his defe nse. Rhodes testified t hat i t was his understanding that afte r the district court had allowed him to chang e the dates during which he could serve his jail time, there was no set schedule for serving his time so long as he completed it by the end of his probation.
I n R h o d es ’s wo rd s, “I t didn’t matter when I g ot them done as long as I g ot them done.” Rhode s testified t hat he did not sug g est the J uly 23 start date as Garza had testi fied, but he did ag ree to it.
Acc ording to Rhodes, Gar za had told him that “she would try to g et [hi m] in on the 23rd,” but “for some rea son in [R hodes’s] mind it was not confirme d.” Rhodes acknow ledg ed re ceiving the commitment order from Vohs via email on J uly 23, but he believed that he did not need to repor t to the jail as specifie d by the order bec au s e Ga rz a had not previously confirme d the date with him. When Rhodes rec eived the call from Vohs on J uly 23 telling him that the commitment order was signe d and that he should repor t to the jail later that day , Rhodes told him, “I can’ t. I mean, it’s too late in the day

. I

can’ t make it out there.” Rhodes also did not repor t to jail the foll owing day or 7

Rhodes testified that he wa s working in Montgomer y County that day

. 7 7the day there afte r because he “didn’t even know t hat was an opti on.” When Rhodes called Garza

on J uly 26, he asked her if he co u l d wa i t t o re p ort until J anuar y , and she advised him that if he wanted to wa it until then, he ne eded to hire an attorne y and g et per

mission from the court.
On cross-e x amination, Rhodes admitted that he understood his amende d conditions of probation and his obliga tion to serve jail time as order ed. Rhodes also claimed that the less than

one y ear rema ining on his probation was sufficie nt time to complete his rema ining 120 day s of jail,

even though, in the previous two-and- a-hal f y ea rs since the jail time had been order ed, he had completed only

60 day s. Cecil Scott, Rhodes’s employ er at the time, also testified at the hear ing. Scott confirme d that Rhodes was working in Montg omery County on J uly 23, bailing ha

y . When a sked if he wa s awa

re tha t Rhode s was supposed to r eport to ja il on that date, Scott testified that he wa s, but also that Rhodes had told him that “it had not been c onfirmed.”

At the conclusion of the hear ing, the district court adjudicate d R h o d es g uilty and sente nced him to fiftee n months’ confineme nt in state jail. This appeal followe d.

STANDARD OF REVIEW
A trial court’s deci s i o n t o adjudi cate a defe ndant’s g uilt is revie wed in the same

manner as a revoc ation of “ordina ry ” community supervision. S ee T ex . Code Crim. Proc. Ann.
art. 42.12, § 5(b) (West Supp. 2010). I n other words, our revie w is limit ed to deter mining whether the trial court abused its discretion in deter mining that the defe ndant violated the terms of his community supervision. See Ricke ls v. State , 202 S.W .3d 759, 763 (Tex. Crim. App. 2006); Duncan

v. State , 321 S.W .3d 53, 56 (Tex. App.—Houston [1st Dist.] 2010, pet. ref ’d). A trial court abuses

8its discretion in re voking c ommunity supervision when the State fails t o meet it s burden of proof.

Cardona v. State , 665 S.W .2d 492, 493 (Tex. Crim. App. 1984). The State’s burden of proof in community -super

vision revoc ation case s is by a preponde r a n c e o f th e e v id ence . Ricke ls , 202 S.W .3d

at 763-64. Thus, t h e t ri al co u rt does not abuse its discretion in revoking community supervision if the g rea ter weig ht of the cre dible evidenc e cre ates a rea s o n ab l e b eli ef that the defe ndant has violated a condition of his community supervision. See id

. at 764. We view the evidenc e prese nted in a re v o ca tion proce eding in the light most favor able to the trial court’s ruling

. Garrett v. State , 619 S.W .2d 172, 174 (Tex. Crim. App. 1981); Mauney v. Sta t e , 107 S.W .3d 693, 695 (Tex. App.—Austin 2003, no pet.). As the trier of fac t, it is left t o t h e t ri al court to judge the

cre dibilit y of the witnesses and the weig ht to be g iven their testimony

. Garrett , 619 S.W .2d at 174; Mauney , 107 S.W .3d at 695.

ANALYSIS

I n his sole point of error , Rhodes asser ts that the district court abuse d its discr etion in adjudicating his g uilt b as ed o n a failure to serve his jail time. Acc ording to Rhodes, beca use his period of defe rre d adjudication was not set to end until Novembe r 2011, he still had time to comply with the condition. He adds that there was no require ment in the district c ourt’s order that he “c omplete the re quired jail time by a date cer

tain.”
As support for his position, Rh o d es re l ies on Dureso v. State , 988 S.W .2d 448 (Tex. App.—Houston [1st Dist.] 1999, pet. ref ’d). I n that case , Dure so was require d as a condition of his probation to perf

orm no less than 10 hours of community service per month. At the probation

revoc ation hear ing, Dure so’s probation office r testified that Dure so had until Marc h 21 to complete

9the 10 hours of community service require d for the month. When Dure so was arr ested on Marc h 3,

he had alre ady reg istered to start his community service and still had almost three wee ks to complete his hours. The appea ls court conclude d that the distri ct co u rt abused its discretion in finding a violation of probation when Dure so still had time to perf orm the require d community service hours. See id . at 450. The a

ppeals c ourt provided no f urther a naly sis on the issue. Rhodes’s case is distinguishable from Dureso

. Whil e it is true that Rhodes had until t h e en d of hi s defe rre d adjudication to serve his rema ining 120 day s in jail, the di strict court had order ed Rhodes to serve his jail time in six 30-day i n cr em en t s as d irec ted by the probation depar tme n t an d agr ee d upon by Rhodes. Thus, even though the district court did not specify the dates on whic h Rhodes would repor t to jail, Rhode s had to r eport to jail on the date s scheduled by the probation depar

tment to which he had ag ree d

. Rhodes’s probation office rs, Vohs and Gar za, both testified that Rhodes was schedule d to repor t to the jail for one of those incre ments on J uly 23, 2010, and that Rhodes had ag ree d to this date. By h i s o wn admi ssion, Rhodes had ag ree d to the
J uly 23 start d at e b u t d i d n o t repor t on that date. Rhodes testified that “for some rea son in [hi s] mind” the date was never confirme d to him, and he claimed that Gar za had previously told him that “she neede d 14 day s’ notice to g et a date” for the jail time. Howeve r, the district c ourt would not 8

I n his motion for rehe aring , Rhodes emphasizes that no one contac ted him prior to J uly 23 8 to confirm that he was schedule d to repor t on that date. Howeve r, based on Garza’s testimony that it wa s Rhodes’s re sponsibili ty to contact he r, the district cour t could have r easona

bly inferr ed that it was also Rhodes’s responsibility to confirm the start date if he was unsure of it. Additionally , the rec ord supports a finding b y the district court that Rhodes knew that he was require d to repor t on that date. Garza t estified that J uly 23 was the date Rhodes had sug g ested whe n he spoke w ith her on J uly 15, Vohs testified simil arly , Rhodes acknow ledg ed in his testimony that he had “ag ree d” to that date, and Rhodes’s em p l oy er testified that he believed as ear ly as “the wee k befor e, up to the 10have abused its discretion in disbelieving Rhodes’s unsubstantiated testimony , particula rly in light of Rhodes’s documented history of ly ing to the court. The rec ord also ref lects that Rhodes did not
repor t to the jail on the day s following J uly 23 even afte r being told by Vohs that he was “supposed

to be there ” and despite having been em ai l ed a copy of the commitment order ; that Rhodes had attempted to re- schedule his jail time on prior occa sions; and that he had soug ht not to repor t to jail
ag ain until J anuar

y 2011, which was ten months prior to the expiration of his defe rre d adjudication. Thus, the district court could have found t h at R h o d es had exhibi ted a pattern of attempting to evade his jail ti me in the past and tha t, by failing to report on July

23 as scheduled, R hodes had at that time failed to ser

ve his jail time as ordered. And, as the S tate point ed out during the hearing , in the two-and- a-ha lf y ear s since Rhodes had been order ed to serve jail time, he had completed only
60 day s of his 180-day require ment. Ba sed on that history , the district court would not have abused its discr etion in f

inding that in the rema ining e leven months of Rhodes’s defe rre d adjudication, he would be unable to complete the r emaining 120 day s of jail time. 9

Finally , in his motion for rehe aring , Rhodes cites to four older opinions of the court of criminal appea ls for the proposition that probation should not be revoke d so long as the probationer makes “some eff

ort” to comply with an “ong oing open condition” of probation such as “g ainful employ ment.” We find these case s distinguishable. I n eac h of the case s, the condition of g ainful

1 0

wee kend befor e” J uly 23 (a Fr iday ) that Rhodes was supposed to g o to jail on that date, even though Rhodes had told him that the date wa s not confirmed. I n less than a y ea r, R h o d es would have to complete four 30-day incre ments of j ail time, 9 which wa s twice a s many as he ha d serve d in the previous two-a nd-a- half y ear s. See Gormany v. State , 486 S.W .2d 324, 325 (Tex. Crim. App. 1972) (re versing revoc ation 1 0 order based on failure of probationer “to work faithfully at suitable employ ment” when evi d en ce 11emplo y

ment did not require that the employ ment be at the di rec tion of t he probation depar tment.
I n contr as t , the jail time require d in Rhodes’s case was under the direc tion of the probation depar tment, and the evidenc e showed that by not repor ting to jail on the ag ree d-upon date, Rhodes failed to comply with that condition. Mo re o v er , i n eac h of the case s Rhodes cites, the evidenc e d i d n o t s h o w that the probationer had mere ly made “some eff ort” to comply with the condit i o n of probation. I nstead, the evidenc e showed that the probationer had in fac t complied wi th the condition. On the other hand, the evidenc e in this case , discussed above, when viewed in the light most favora

ble to the trial cour

t’s ruling , showed that Rhodes fa iled to comply

. 1 1
We conclude that the State satisfied its burden to pro v e b y a preponde ranc e of the evidenc e that Rhodes violated a condition of his community supervision. Acc ording ly , on the fac ts

showed that probationer “had applied for a number of jobs; had secur ed employ ment four times and had a job to g o to at the time he was arr ested” ); Butler v. State , 486 S.W .2d 331, 333-34 (Tex. Crim. App. 1972) (re versing revoc ation order based on failure of probationer to “wor k faithfully at suitable employ ment as fa

r as possible” w hen evidence showed t hat probationer “ha d in fac t secure d a job and was en route to the job site with his employ er when arr ested” ); Steed v. State , 467 S.W .2d 460, 461 (Tex. Crim. App. 1971) (re versing revoc atio n o rd er based on failure of probationer to “wor k faithfully at suitable employ ment as far as possible” when evidenc e sh o we d t h at p robationer was employ ed for two periods during he r proba tion and was hospitalized and unable to work for other periods); Perry v . State , 459 S.W .2d 865, 866 (Tex. Crim. App. 1970) (re versing revoc ation order based on failure of probationer to “wor k faithfully at suitable employ ment and notify the probation office r prior to chang ing employ ment” when evidenc e showed that prob at i o n er “wa s g ainfully employ ed when place d on probation,” had worke d for various employ ers during his probation, and had notified his proba tion officer eac h time of his chang e in employ ment). Rhodes also provides various justifications for his failure to comply , e.g ., the absenc e of 1 1 a commitment order or other confirma tion prior to J uly 23, the im p o rt an ce t o his employ er of Rhodes completing his w ork on the day he was schedule d to report, a nd the leng th of time it takes to trave l from Montgome ry County to Wil liamson County

. The district court would not have abused its discretion in finding that such justifications did not excuse Rhodes’s fail u re t o co mply , particula rly in light of the history o f t h e ca s e and Rhodes’s admission that he understood his conditions of probation and his oblig ation to serve ja il tim e as or dere d. 12and circ umstances of this case , we cannot conclude that the d i s t rict court abused its discretion in

adjudicating Rhodes’s g uilt. W e over rule Rhodes’s sole point of e rror .

CONCLUSION We affir m the district court’s orde r adjudica ting g uilt.

__________________________________________ Bob Pembe rton, J ustice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Affir med on Motion for Rehea ring Filed: Oc tober 5, 2011 Do Not Publish

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