### IN THE TENTH COURT OF APPEALS
No. 10
- 08
- 00137
- CR
BRANDON LEE ANDERSON , Appellant
v. THE STATE OF TEXAS , Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2007
- 556
- C2

MEMORANDUM OPINION
Appellant Brandon Lee And erson appeals the trial court’s revocation of his community supervision. We will affirm the trial court’s judgment. Anderson pleaded guilty to the state jail felony offense of burglary of a building
with intent to commit theft. See T EX
. P EN
. C ODE A NN
. § 30.02 (Vernon 2003). The court deferred an adjudication of guilt and placed Anderson on community supervision for five years. The State subsequently filed a motion to adjudicate guilt. The court adjudicated Anderson guilty and sentenced him to twenty

- f our months ’ confinement inAnderso n v. State Page 2

state jail and a $200 fine . The court then suspended the sentence and again placed Anderson on community supervision for five years. That same day, Anderson signed a waiver of all his rights to appeal, including the filing of a motion for new trial. Nevertheless, o n March 24, 2008, upon obtaining new counsel, Anderson filed a
motion for new trial. On April 8, 2008, while the motion for new trial was pending, the State filed a motion to revoke Anderson’s community supervision, a lleging that he violated the terms and conditions of his community supervision because, on or about April 2, 2008, he “failed to participate/successfully complete Lubbock County CRTC.”
F ollowing a hearing on April 11, the court den ied the motion for new t rial

. On April 21, Anderson filed a notice of appeal. On April 24, t he court conducted a hearing on the motion to revoke, and Anderson pleaded “not true” to the allegation s . The State called only one witness, Anderson’s community supervision officer Herl inda Grusendorf. Grusendorf testified
as follows: Before April 2, 2008, she visited Anderson at the county jail to complete a strategies for case supervision (SCS) interview. During the visit, Anderson completed some of the paperwork required by the Lub bock County CRTC. Grusendorf also
advised Anderson at that time that the Lubbock County CRTC had several programs but that, due to violations, he was more than likely going to be “sentenced to” or

“ eligible for ” the lo ng - term drug treatment program. Afte r the visit, Grusendorf submitted the paperwork to the Lubbock County CRTC. She was later contacted by the facility and advised of which program Anderson had been accepted to and when his anticipated intake date would be. However, to complete the accepta nce process, theAnderso n v. State Page 3

Lubbock County CRTC needed to receive a specific order “advising of the specific program that he was accepted to with the intake date

. ” The order also had to be signed by Anderson, acknowledging that he had read the order and its conditio ns and that he had received a copy of the order. The trial judge sign ed the order, and , on April 2, 2008, Grusendorf had Anderson brought over from the county jail to the district clerk’s office to sign it

. When Anderson arrived, Grusendorf explained the order to him and discussed with him the program for which he was eligible, including the approximate length of the program. Anderson then showed some hesitation in signing the order

. Grusendorf gave him some time to decide what he wanted to do. Anderso n then refused to sign the order, stating that his attorney had filed an appeal and that he was not happy with the time of the treatment program. The trial court found that Anderson violated the condition of his community supervision as stated in the alleg ation in the State’s motion. The court then revoked Anderson’s community supervision and assessed his punishment at twenty

- four months’ confinement in state jail and a $200 fine. Appellate review of an order revoking community supervision is limited to
wh ether the trial court abused its discretion. Forrest v. State , 805 S.W.2d 462, 464 n.2 (Tex. Crim. App. 1991); Cardona v. State , 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); see also Maxey v. State , 49 S.W.3d 582, 584 (Tex. App.

— Waco 2001, pet. ref’d). An order revoking community supervision must be supported by a preponderance of the evidence; in other words, that greater weight of the credible evidence that would create a reasonable belief that the defendant has violated a condition of his communityAnderso n v. State Page 4

supe rvision. Scamardo v. State , 517 S.W.2d 293, 298 (Tex. Crim. App. 1974). The State is required to sustain the burden of proving the allegations of the motion to revoke community supervision. Id. ; Cobb v. State , 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). In his first point, Anderson contends that the trial court abused its discretion in revoking his community supervision because there i s no evidence that he “ affirmatively refused to participate in the drug treatment program that he had previously agreed to
attend. ” Condition number 28 of the order placing Anderson on community supervision stat e s that Anderson “[b]e required to participate and successfully complete treatment through Lubbock County CRTC.” Anderson argues that he did not
violate th is condi tion because he did not refuse to go to the facility or indicate that he was not going to comply with the court’s order ; h e only said that he did not want to sign the order at that time because his case was on appeal , and he was never given a second opport unity to sign the order after the motion for new trial was denied

. We conclude that there is sufficient evidence to show that Anderson violated the
condition. Grusendorf testified that, for Anderson to be accepted into the Lubbock County CRTC program, Lu bbock County CRTC required a specific order that had to be signed by Anderson. But w hen Grusendorf explained the order to Anderson and provided it for him to sign, he refused to sign it and thus effectively refused to participate in the program

. Anderson also argues in his first point that the word “participate” is “somewhat vague” and “subject to numerous interpretations” and thus not the type of specific directive that will support revocation. When a court grants community supervision, theAnderso n v. State Page 5

relationship between the court and its probationer is contractual in nature. McDonald v.
State , 442 S.W.2d 38 6, 387 (Tex. Crim. App. 1969). The conditions of community supervision should be expressed clearly and explicitly so that the probationer
understands what is expected of him. Id. ; see Harris v. State , 608 S.W.2d 229, 230 (Tex. Crim. App. 1980). Here, Anderson had adequate notice of his obligations. The record reflects that when Grusendorf visited Anderson at the county jail to conduct the SCS interview, she discussed the Lubbock County CRTC programs with him, and he completed some of the requir ed paperwork. When Grusendorf visited Anderson again on April 2, 2008, she discussed with him the program for which he was eligible and explained to him the
order that he was required to sign to be accepted to the program. We conclude that these meetings removed any uncertainty as to what Anderson was required to do to “participate” in treatment through Lubbock County CRTC. See Murphee v. State , 768 S.W.2d 342, 343 (T ex. App.

— Houston [14th Dist.] 1989, no pet.) . Moreover, having put forth some effort to comply with the condition, Anderson cannot now repudiate the
order. See id. Anderson also argues that because the requirement that he sign the order was
not somethin g required by the court, but instead an additional requirement imposed by Lubbock County CRTC, it was unauthorized. We disagree. While the duty and responsibility for determining community supervision conditions rests upon the court and cannot be delegat ed, a court, by its very nature, is incapable of directly implementing every detail of the community supervision terms.Anderso n v. State Page 6

See Vento v. State , 724 S.W.2d 948, 951 (Tex. App.

— Amarillo 1987, no pet.). As such, it must rely on other entities to carry out the d etails and must afford those entities some discretion in implementing the terms. See Salmons v. State , 571 S.W.2d 29, 30 (Tex. Crim. App. [Panel Op.] 1978); Vento , 724 S.W.2d at 951. There is a clear distinction between rules imposed by a treatment facil ity in furtherance of its rehabilitation function and the conditions of community supervision. See Salmons , 571 S.W.2d at 30. Here, Lubbock County CRTC’s requirement that Anderson sign the order acknowledging that he had
read the order and its conditions and that he had received a copy of the order is a rule imposed by the treatment facility in furtherance of its rehabilitative function, not an additional condition of community supervision. Anderson’s first point is thus
overruled. In his second point, Anderson contends that his counsel provided ineffective
assistance

. To prevail on an ineffective assistance of counsel claim, the familiar Strickland v. Washington test must be met. Wiggins v. Smith , 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 4 71 (2003) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)); Andrews v. State , 159 S.W.3d 98, 101

- 02 (Tex. Crim. App. 2005) (same). Under Strickland , we must determine: (1) whether counsel’s performance was deficient, and if so, (2) whether the defense was prejudiced by
counsel’s deficient performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Andrews, 159 S.W.3d at 101. The appellant bears the burden of pr oving by a preponderance of the evidence that counsel was ineffective. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Any allegation ofAnderso n v. State Page 7

ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Id. Anderson argues that his counsel’s performance was deficient because counsel thought that a motion for new trial stay ed the proceeding s such that Anderson’s community supervision could not be revoked for violating community s upervision
conditions ; 1 counsel conveyed to Anderson that the proceedings were stayed ; and
Anderson then relied on this “advice that was clearly wrong,” caus ing him to have his community supervision revoked. Anderson argues that the error was then
compoun ded by counsel not having Anderson explain to the court why he did not sign
the order. But Anderson has not developed a r ecord to support th is argument

. Anderson does not cite, nor have we found, evidence in t he record about
whether hi s counsel thought a motion for new trial stayed the proceedings or that his counsel told him that the proceedings were stayed . Anderson’s counsel d id object to “the proceedings” at the revocation hearing “[b]e cause this case is on appeal.” However, there is nothing in the record describing what advice Anderson received

1 We note that in the absence of an appeal, the period of community supervision begins on the day of sentencing because the defendant suffers restrictions upon his freedom that day. Morris v. State , 658 S.W.2d 770, 773

- 74 (T ex. App.

— Beaumont 1983, no pet.); see Nesbit v. State , 227 S.W.3d 64, 69 (Tex. Crim. App. 2007). But see McConathy v. State , 544 S.W.2d 666, 668 (Tex. Crim. App. 1976) (concluding that, when no notice of appeal was filed, terms of probation commenced on d ay amended motion for new trial was overruled by operation of law). However, when an appeal is taken from a criminal conviction assessing a probated sentence, the terms of community supervision are generally stayed until mandate from the appellate court, a ffecting final disposition of the appeal, is issued. See Surety Corp. of Am. v. State , 550 S.W.2d 689, 690 (Tex. Crim. App. 1977) (stating that, when accused is placed on probation and appeals his conviction, terms of probation do not commence until the mandate of the appellate court is received by the clerk); McConnell v. State , 34 S.W.3d 27, 30

- 31 (Tex. App.

— Tyler 2000, no pet.) (holding that trial court retains authority to punish violations of conditions of community supervision before filing of motio n for new trial). We also note that Anderson waived all his rights to appeal, which further complicates this legal issue that we cannot decide on the record before us.Anderso n v. State Page 8

from his counsel before he refused to sign the order. Furthermore, there is no evidence
in the record that Anderson wanted to testify at the revocation hearing. See Salinas v.
State , 163 S.W.3d 734, 740

- 41 (Tex. Crim. App. 2005) (declining to find ineffective assistance where defendant did not testify during punishment phase because record did not divulge whether defendant asserted his right to testify and his counsel failed to protect right). For these rea sons, Anderson’s second point is overruled. Having overruled both of Anderson’s points, we affirm the trial court’s judgment.

REX D. DAVIS Justice Before Chief Justice Gray, Justice Reyna , and Justice Davis Affirmed Opinion delivered and filed February 1 0, 2010 Do not p ublish [C R25]