ORIGINAL

NO. PD-0853-15 S53-/S

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

COURT O^CfJKiMAUPiTALS

CASEY TILLISON, QQT Q5 2015

Appellant/Petitioner

vs. Abs! Acosfea, Clerk

THE STATE OF TEXAS,

Appellee/Respondent

APPELLANT'S PRO SE PETITION FOR DISCRETIONARY REVIEW

FILED IN

COURT OF CRIMINAL APPEALS In Appeal No. 10-13-00403-CR wLMrrtALb

OCTQ6 2C;5 from the

court of Appeals Abel Acosta, Clerk

for the Tenth Judicial District

Waco/ Texas

Casey Tillison

TDCJ #01973717

WRJHoU
LIST OF PARTIES

APPELLANT

Casey Lee Tillison,Pro Se

APPELLEE

The State of Texas

DEFENSE COUNSEL AT TRIAL

Original Plea and Adjudication

Julissa Martinez

Attorney at Law

107 Kaufman St.

Waxahachie, Texas 75165

STATE'S ATTORNEYS AT TRIAL

On the Original Plea: Mr. Patrick Wilson

On the Adjudication: Amy L. Lockhart

Ellis County District Attorney's Office

109 South Jackson Street

Waxahachie/ Texas 75165

APPELLANT'S ATTORNEY AT 10th COURT OF APPEALS

Juanita Bravo Edgecomb

Attorney at Law

306 Sixth Street

Waxahachie, Texas 75165

STATE'S ATTORNEY ON APPEAL

Patrick Wilson (or his designated representative)

Ellis County District Attorney's Office

109 South Jackson Street

Waxahachie, Texas 75165

STATE'S PROSECUTING ATTORNEY

P.O. Box 12405,Capital Station

Austin, Texas 78711

II
TABLE OF CONTENTS

Pg.

IDENTITY OF PARTIES H •

INDEX OF AUTHORITIES IV.

STATEMENT REGARDING ORAL ARGUMENT .*..'.' 1.

STATEMENT OF THE CASE i."' 2 .

STAEMENT OF PROCEDURAL HISTORY 3 .

GROUNDS FOR REVIEW 4.

GROUND FOR REVIEW NUMBER ONE:

Whether Texas Code of Criminal Procedure Article 42.12§5 is

unconstitutional because it undermines the Fundamental Rights

of the accused by subjecting the accused to unconscionable terms

of probation which are subject to arbitrary enforcement by the

trial court without legitimate adversarial testing.

GROUND FOR REVIEW NUMBER TWO:

Whether Texas Code of Criminal Procedure Article 37.07 §3(a)

"breaches" a plea agreement by introducing evidence that was

not considered in the original plea deal and therefore renders

the statute unconstitutional.

ARGUMENT NUMBER ONE 5 .

ARGUMENT NUMBER TWO 12.

PRAYER FOR RELIEF 15

CERTIFICATE OF SERVICE 16.

APPENDIX "A"[COA Opinion] 17.

Ill
INDEX OF AUTHORITIES

Pg.

Barnier v. Connelly, 6 S.Ct.357, 113 U.S.27, 28 L.Ed.2d

(1985) 7

Bitterman v. State,180 S.W.3d 139,141

(Tex.Crim.App.2005) ,"' 12

Brink v. State,78 S.W.3d 478,483

(Tex.App.-Houston [14th Dist.] 2001) II 9

Dinnery v. State,592 S.W.2d 343,353

(Tex. Crim.App. 1980) 8

Evitts v. Lucy,469 U.S.387,369-399,105 S.Ct- 830,835-36,

83 L.Ed.2d 821 (1986) 14

Garmen v. Meyers, 183 Okl.141, 80 P.2d 624,626. .:: 14

Grayned v. City of Rockford, 408 U.S.104, 92 S-Ct.2294,

33 L.Ed.2d 222m228 (1978) 11

Johnson v. State, 673 S.W-2d 290,294

(Tex. Crim.App. 198 4) L'. ... 9

Kolendar v. Lawson,461 U.S.352,357-58

(1983) 11

Lowry v. State,692 S.W.2d 86,87

(Tex.Crim.App.198 5) 9

Mabry v. Johnson,467 U.S.504,510, 104 S.Ct.2543,

81 L.Ed.2d 437 (1984) 12

Robles v. State,577 S.W.2d 699 9

Santobello v. New York,404 U.S.257,262, 92 S.Ct.495,

30 L.Ed.2d 427 (1971) 12

Smith v. Goguer, 415 U.S.566 (1974) 11

Taylor v. State,131 S.W.3d 497

(Tex.Crim.App.2004) 5

2300 Inc. v. City of Ar1ington,888 S.W.2d 123

(Tex.App.[2nd Dist.] 1994) 6

STATUTES

Tex.C.Crim.Proc. Art .1.15 9

Tex.C.Crim.Proc.Art .1.14(a) 9

Tex.C.Crim.Proc.Art.37.07§3(a) 4

Tex.C.Crim.Proc.Art.42.12§5 H 4

IV.
CONSTITUTIONS

TEXAS CONSTITUTION: 9"

Art.I §3 6

Art. I §10 7

Art. I §19 7

UNITED STATES CONSTITUTION:

Amend. 5 7

Amend .6 7

Amend .14 6

REFERENCE

Blacks Law Dictionary - 14

V.
NO. PD-0853-15

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

CASEY TILLISON,

Appellant/Petitioner

VS.

THE STATE OF TEXAS/

Appellee/Respondent

APPELLANT'S PRO SE PETITION FOR DISCRETIONARY REVIEW

TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

Appellant^Petitioner respectfully submits this Petition for

Discretionary Review and moves that this Honorable Court grant

review of this cause and offers the following support thereof;

STATEMENT REGARDING ORAL ARGUMENT

The Appellant/Petitioner requests oral argument in this case

because such argument may assist the Court in applying the facts

to the issues raised. It is suggested that oral argument may

help simplify the facts and clarify the issues.

1.
• STATEMENT OF THE CASE

The indictment alleged that Appellant committed the offense of

aggravated sexual assault of a child on or about October 3,2009 by

causing the penetration of complainant's sexual organ with his

finger when she was younger than 14 years of age. On April 9,2012,

pursuant to a plea bargain agreement with the State, Appellant pled

guilty, the adjudication of guilt was deferred, and Appellant was

placed on community supervision for a period of 10 years.

On June 6,2014, the State filed a Motion to Proceed with an

Adjudication of Guilt alleging that Appellant violated conditions

of probation: Failing to pay probation fees, court costs and fines

self-reporting contact with minors, failed to participate in sex

offender counseling until successfully discharged, failed to submit

to polygraph testing, and having access to internet without monit

oring .

Appellant pled not true to the allegations in the motion to

adjudicate. After hearing the evidence the trial court held that

the evidence was insufficient to find that Appellant had violated

three of the six alleged in the motion. The motion was granted on

the basis of a finding that Appellant had violated the other three.

The trial court assessed punishment at 65 years confinement in the

Texas Department of Criminal Justice. Appellant's attorney did not

file a motion for new trial. Notice of Appeal was timely filed.

Appellate Cdurt Affirmed the trial court's judgement. No Motion

for rehearing was filed.
' STATEMENT OF PROCEDURAL HISTORY

In Cause No. 36,116 the Appellant/Petitioner was charged with

the offense of Probation Violation -- Aggravated Sexual Assault

of a Child. The Appellant/Petitioner was convicted of such offense

pursuant to a motion to proceed with adjudication on December 4,

2014 and appealed the conviction. On July 2,2015 the Waco Court

of Appeals affirmed the conviction. No motion for rehearing was

filed. On Q\ -^ 3fl ,2015 this Petition for Discretionary

Review was timely forwarded to the Court of Criminal Appeals . :

pursuant to Rule 9.2(b), Texas Rules of Appellate Procedure.

3,
GROUNDS FOR REVIEW

Ground One

Whether Texas Code of Criminal Procedure Article 42.12 § 5

is unconstitutional because it undermines the Fundamental Rights

of the accused by subjecting the accused to unconscionable terms

of probation which are subject to arbitrary enforcement by the

trial court without legitimate adversarial judicial testing.

Ground Two

Whether Texas Code of Criminal Procedure Article 37.07 § 3(a)

"breaches" a plea agreement by introducing evidence that was not

considered in the original plea deal and therefore renders 37.07

unconstitutional.
GROUND ONE

Whether Tex.Code Crim.Proc.Art 42.12 §5(a)(b) undermines the

Fundamental Constitutional Rights of the accused by reducing those

Rights to arbitrary and unconscionable terms and condioti-ons?

Deferred Adjudication

Deferred adjudication is one of the many options available to

trial courts in criminal cases. When applicable, the judge may

"defer further proceedings without entering an adjudication of

guilt, and place the defendant on community supervision." The

judge "may impose a fine applicable to the offense." If the

defendant violates a condition of community supervision, the court

may proceed to adjudicate guilt and assess punishment.

We have noted that "the true objective" of deferred adjudication

"is to divert the accused from the gauntlet run of the criminal

justice system" and allow the judge to "enter into a clearly

understood pact with the accused that will induce and persuade

hime to follow the diversionary road." During that time, there

is no finding of guilt (68 S.W.3d 633), and no final conviction

(36 S.W.3d 871). Instead the judge makes a finding that the

evidence substantiates the defendant's guilt, and then defers

the adjudication. The case is "temporarily stilled and the

accused...[is] permitted the opportunity to demonstrate his

capacity for prescribed good behavior during a specified period."

If the defendant succeeds, the case, for most purposes, "disappears."

If he fails, the case continues on as if it had never been interr

upted, see Taylor v. State,131 S.W.3d 497 (Tex.Crim.App.2004).

5.
Analysis

There is an undeniable stigma attached when this statutory

provision is applied to "sexual offenses." The inherently predjudicial nature of sexual offenses, demands that the accused

recieve the full benefit of Constitutional protections and

provisions to prevent societal support of government oppression

"for the greater good." Arbitrary and Unconscionable statutes

may seek to address the evils that plague society. But these

tactics have historically proven detremental and lead to appressive

government tactics which undermine the "adversarial" system which

holds governmental power in check.

When this statute is analyzed in it's totality. The cumulative

affect of the plea, deferred adjudication, community supervision

terms and conditions, adjudication proceedings and sentencing

practices reveal a systematic abridgment of the Fundamental Rights

Equal Rights

(Tex.Const.Art.I §3 & U.S.Const.Amend.14)

"If a statutory scheme infringes upon the fundamental rights or

interests or burdens inherently suspect class, scheme is subject

to strict scrutiny, and statutory classification must promote

compelling state interest in order to be valid under equal prote

ction clause; however, if statutory scheme does not involve

fundamental right or suspect class, appropriate standard of review

is whether classification is reasonable, not arbitrary, and bears

reasonable relationship to legitimate state objective. 2300 Inc.

v. City of Arlington, 888 S.W.2d 123 (Tex.App.[2nd Dist.] 1994).
Justice Field has defined the principle well in the United

States Supreme Court case of Barnier v. Connolly/ 6 S.Ct.357,

113 U.S.27, 28 L.Ed.923 (1985). He declared: "that equal protection

and security should be given to all under like circumstances in

the enjoyment of their personal and civil rights; that all persons

should be equally entitled to pursue their happiness and aquire

and enjoy property; that they should have like access to courts

of the country for the protection of their persons and property,

the prevention and redress of wrongs, and the enforcement of

contracts; that no impediment should be interposed to the pursuits

by others under like circumstances; that no greater burden should

be laid upon one than are laid upon others in the same calling

and conditions, or higher punishment should be imposed upon one

than such as prescribed to all for like offenses."

As shown in Petitioner's case. The plea deprived him of Due

Process and subjected him to a "higher standard" of terms and

conditions of probation than those applied to other "felony"

cases. The class distinctions applied to equal protection of

law is "a person accused of a felony offense." It defies the

principle of equal protection to make classification distinctions

based on "elements" of an offense.

Fundamental rights and equal protection apply to persons "in

all criminal prosecutions." see Tex.Const.Art.I § 10; "Citizens"

see Tex.Const-Art.I § 19; "person" see U.S.Const.Amend.5; "All

criminal prosecutions" see U•S.Const.Amend. 6 ; "persons and

citizens" see U.S.Const.Amend.14.
The Constitutions' of Texas and the United States do not reduce

rights and privalages based on the nature of a specific type of

offense. To do so violates Equal Protection and creates undue

prejudice for persons accused of inherently prejudicial offenses.

The Penal Code establishes the framework to make distinctions

between crimes. It is Arbitrary to create classes and impose

greater burdens on a person accused of a "sexual offense" than

on a person accused of a "non-sexual offense." Since the proper

classification is "felony offense," which is divided by"penalty

ranges."

Self Incrimination

(Tex.Const.Art.I § 10 & U.S.Const. Amend.5)

The Texas and U.S.Constitutions guarantee protection from the

government compelling a person to give evidence against himself.

"It is well settled that a judicial confession, standing alone

is sufficient to sustain a conviction upon a guilty plea." see

Dinnery v. State,592 S-W.2d 343,353 (Tex.Crim.App-1980).

When the state uses the prosepect of "release" by entering a

plea to recieve deferred adjudication probation and then uses

that plea as evidence against the accused to establish guilt

in the adjudication proceedings, the state has ultimately used

probation to "compel" the accused to give evidence against himself.

In petitioner's case, the plea to recieve deferred adjudication

probation presented an opportunity for immediate release from jail.

Petitioner had been in jail unable to make bond for 10 months prior

to the offer of probation. The prospect of immediate release was

a compelling force used to get petitioner to give evidence against

himself. This is a common tactic used by prosecutors.
Burden of Proof

(Tex.Const.Art.I §§ 10,19 & U.S.Const.Amend.14)

The U.S.Supreme Court has held that it is a violation of the

Due Process Clause of the 14th Amendment to shift the burden of

proof in a criminal case to the defendant, see Lowry v. State,

692 S.W.2d 86,87 (Tex.Crim.App.1985). It is incumbant on the

State to prove every element of the offense beyond a reasonable

doubt. This is true whether the state is relying on circumstantial

or direct evidence- see Johnson v. State, 673 S-W.2d 290,294 (Tex.

Crim.App.1984) .

Under Tex.Code Crim.Proc.Art.1.14(a) a defendant may waive any

rights secured him by law- A heavy burden rests upon prosecution

to demonstrate an intelligent, voluntary and knowing waiver of

constitutional rights, see Robles v. State,577 S.W-2d 699. The

law in Texas is clear that a guilty plea in a bench trial is not

conclusive. Despite the defendant's plea, it is still necessary

for the state to introduce evidence into the record showing the

guilt of the accused. Tex.CodeCrim.Proc.Art.1.15 (Vernon's Supp.

2001). Brink v. State, 78 S.W-3d 478,483 (Tex.App•-Houston [14th

Dist.] 2001 pet.ref'd). The issue in a criminal trial is whether

the prosecution can, by legally admissible evidence, prove its

allegations of criminal conduct beyond a reasonable doubt. Brink,

78 S.W.3d at 484.

Thus two fundamental questions are presented in every criminal

trial: (1) does the prosecution have sufficient evidence of guilt

to convicne a trier of fact beyond a reasonable doubt; and (2)

is the evidence legally admissible?

9.
Petitioner asserts that when the state uses Tex.Code Crim.Proc.

Art.42.12 §5 to relieve itself of it's heavy burden of proof and

further shift that burden of proof to the defendant, "adversarial

testing" has been undermined. The state is using the plea bargain

system under Art.42.12 § 5 to avoid the burden of proof and shift

the burden of proof while retaining the full scope of statutory

power to obtain a conviction through a simpel motion to proceed

with adjudication based on "hyper-critical" and unconscionable

terms and conditions of probation.

Void for Vagueness

(Tex.Const.Art.I § 19 & U.S.Const.Amend.5,14)

Tex.Code Crim.Proc.Art.42.12 §5(a) is void for vagueness regarding

the defendant be placed on "community supervision." The terms

and conditions of community supervision are subject to third party

practices and procedures not expressly governed by the trial court.

It is a basic principle of due process that an enactment is

void ofr vagueness if it's prohibitions are not clearly defined.

Vague laws offend important values.

First: Bevause we believe a man is free to steer between lawful

and unlawful conduct, we insist that laws give the person of

ordinary intelligence a reasonable opportunity to know what is

prohibited. Vague laws may trap the innocent by not providing fair

warning on what is considered lawfully expected.

1 - Second: If arbitrary and discriminatory enforcement is to be

prevented, laws must provide explicit standards. A vague law

impermissibly delegates basic policy matters to policemen, judges

and other officials for resolution on an ad hoc and subjective basis.

Third: Related where a vague staute "abuts upon sensitive areas

10.
of basic first amendment freedoms," and operates to inhibit those

freedoms, see Grayned v. City of Rockford,408 U.S.104, 92 S.Ct-2294,

33 L.Ed.2d 222,228 (1978).

The Petitioner challenges the constitutionality of Art.42.12 §5

of the Code of Criminal Procedure on an important aspect of the

vagueness doctrine... "the requirement that a legislature establish

guidelines to govern lawenforcement."

Where legislature fails to provide minimal guidelines, a

criminal statute may permit "standardless sweep allowing the

pursuit of personal predilections." see Kolendar v. Lawson,461

U.S. 352,357-358 (1983)(quoting Smith v. Goguen,415 U.S.566 (1974).

A law must be sufficiently definite that its terms and provisions

may be known and understood and applied otherwise it is void and

unenforceable.

If the court is unable to know what is prohibited from the

face of the statute, then the law is void for vagueness. Here the

judiciary has to construe third party terms and apply the findings

to vague and even ambiguous statutory terms.

The failure of legislature to declare exactly what matters in

the "requirements" of community supervision, appears to have

attempted to shift the policy issues to the judiciary.

It is unreasonable to believe that the Court and the defendant

were "aware" of the specific requirements that are placed on the

defendant when deferred adjudication probation is implemented.

The statute is void for vagueness under Article I § 19 of the

Tex.Const, and the 5th and 14th Amends, to the U.S.Const11.
GROUND TWO

Whether the application of Tex'.'Code Crim. Proc. Art. 37.07§3 in

deferred adjudication Art.42.12§5(b) proceedings "breaches" the

terms of the plea agreement by introducing evidence beyond what

was "admitted" by defendant in original proceedings in a plea

to recieve deferred adjudication probation.

Once a judge accepts the terms of an agreed plea bargain in

open court, a defendant has an absolute right to have the State

honor the terms it agreed to. see Bitterman v. State,180 S.W.3d

139,141 (Tex.Crim.App.2005). If the State fails to honor a promise

that is part of an executed plea agreement, the defendant is put

in a position where he pled guilty based on a false premise and

therefore, his plea is considered involuntary. Id. at 141-42.

The State must fulfill any agreements it makes to induce a defend

ants plea, see Santobello v. New York, 404 U.S.257,262, 92 S.Ct.

495, 30 L.Ed.2d 427 (1971). The State violates due process if

it breaches an executed plea bargain agreement, see Mabry v.

Johnson, 467 U;JS.504, 510, 104 S.Ct.2543, 81 L.Ed.2d 437 (1984).

Impaired Obligation

"to weaken [the contract], or lessen its value, or make it worse

in any respect or in any degrees... Any law which changes the

intention and legal effect of the orgiginal parties, giving to one

a greater and to the other a less interest or benefit in contract

impairs its obligation. 115 A. 484,486- "The extent of the change

is immaterial- Any deviation from its terms by hastening or post

poning the time of perofrmance which it prescribes, or imposes

conditions not included in the contract, or dispensing with the

12 .
performance of those' that are included. State statutes which do

so are prohibited by Art. 1,§10 of the U'-'S.Const.

Petitioner would show that the "evidence" established by the

plea of guilty in the original proceedings became part of the

"terms' of the plea agreement by virtue of an "expectation" by

the Petitioner that if his probation was revoked and he faced

adjudication it would be based on the evidence and facts from

the original proceedings. The state was allowed by statute to

present extraneous offenses during the sentencing portion of the

adjudication proceedings which caused egregious harm by influencing

a sentence that rs-disproportionate with a finding in the original

proceedings that petitioner was guilty and "probation" was a viable

option based on those findings. Then in the adjudication proceedings

the court sentenced the petitioner to 65 years aggravated for

violating terms of probation being the only added element.

The introduction of evidence under Art.37''07 §3 is unconstitut

ional when applied to Art i.'42.12§5 proceedings.

Arbitrariness

(Tex:..;Const. Art. I §19 & U. S.Const .Amend .5,14)

By permitting trial courts to decide case by case what issues

are relevant without first decalaring a policy or fixing a standard

to be applied in plea bargain cases by which courts may be governed:

1) It introduces arbitrariness into punishment proceedings.

2) It eliminates his right to review trial court decisions.

3) It undermines the Texas Adversary System.

The right to appeal sentencing issues is eliminated by Art,

37.07 §3 because there is no standard which the court's decision

can be measured by. There is no basis for objection.". V' •

13
Article 37.07 §3(a)'s phrase "any matter the court deems relevant"

meetes the very definition of arbitrariness:

Arbitrariness: Conduct or acts based alone upon one's will,

and not upon any course of reasonaing and exercise of judgement,

see Garmen v. Myers, 183 Okl.141 80 P.2d 624,626.

Arbitrariness means as fixed or done capriciously ar at pleasure,

without adequate determinating principle, not found in the nature

of things; nonrational, not done or acting according to reason.

Black's Law Dict;.' (p.96 West 5th Ed.1989) adds to this definition

"in the present case what issues are relevant and therefore

admissible is left completely to the unfettered whim of each

trial court in Texas." Under Art.37.07§3(a) each judge is a

legislature unto himself.

Appellant has a right to meaningful review od decisions compla

ined of at the trllal court level, see Evitts v. Lucy,469 U-S-387,

396-99, 105 S.Ct.830, 835-36, 83 L.Ed.2d 821 (1986).

Whatever a particular trial court deems relevant to the proceedings

is admissible. Ther is no standard at all against which the trial

court's decision can be measured in adjudication proceedings. If

the trial court admits evidence as relevant, the decision can

never be error, regardless of the circumstances or whether a plea

of guilty is involved. By eliminating any objectionable standard

by which the trial courts may be guided, meaningful review is

precluded regarding the admissibility and relevance of evidence

at adjudication proceedings to assess punishment'.' Where the issues

are unnamed and undefined, they are impossible to dispute.

14.
PRAYER FOR RELIEF

For the reasons staed above, it is respectfully submitted that

the Court of Criminal Appeals of Texas should grant this Petition

for Discretionary Review. And enter an order for any and all

relief available to Petitioner from this Honorable Court.

Respectfully submitted,

Casey -Hllison #1973717

address:

Co. 72/. HO if

f^eu \2t»H.~ Tex 75S7&

15.
APPENDIX "A"

"Memorandum Opinion"

17.
IN THE

TENTH COURT OF APPEALS

NO.10-14-00403-CR

CASEY LEE TILLISON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 36116CR

MEMORANDUM OPINION

Casey Lee Tiilison pled guilty to the offense of aggravated sexual assault of a

child. SeeTex. Penal Code Ann. § 22.021(a)(l)(A)(i), (2)(b) (West 2011). The trial court

deferred an adjudication of guilt and placed Tiilison on community supervision for 10

years. Two years later, the State filed a motion to proceed with an adjudication of

Tillison's guilt. After a hearing, the trial court found Tiilison had violated three

conditions of his community supervision, adjudicated Tiilison guilty, and sentenced

Tiilison to 65 years in prison. Because the trial court did not abuse its discretion in
revoking Tillison's community supervision and adjudicating Tillison's guilt, but erred

in imposing a fine that was not orally pronounced at sentencing, the trial court's

judgment ismodified to deletethe fineand affirmed as modified.

Errorin the Judgment

In his first three issues, Tiilison complains about error in the written judgment

which, he contends, should be modified. First, Tiilison contends the judgment should

be modified to properly reflect the sections of the Texas Penal Code of which he was

found -to'have--been convicted. However, Tiilison cites to nothing--to support- the •

proposition that the judgment in this case needs to be modified. As the Code of

Criminal Procedure requires, the judgment accurately reflects that Tiilison was

convicted of the offense of aggravated sexual assault of a child. Tex. CODE CRIM. PROC.

ANN. art. 42.01, Sec. 1(13) (West 2006) ("The judgment shall reflect...the offense or

offenses for which the defendant is convicted.").- The Code does, not require' thestatutory penal provisions or every nuance of the statutory penal provisions also be

reflected in the judgment. The fact that the Penal Code provision cited along with the

name of the offense in this particularjudgment only refers to the subsection regarding

the victim's age does not make the judgment in needof correction. Tillison's first issue

is overruled.

Next, Tiilison complains thatthejudgment mustbe reformed because the elected

County and District Attorney for Ellis County was listed onthe judgment instead ofthe

Tiilison v. State Pa8e 2
assistant who participated in the revocation hearing. Again, Tiilison cites to nothing to

show that the elected State's attorney cannot be named in the judgment if he did not

participate in the proceeding- resulting in-the judgment. The Texas-Code -of Criminal

Procedure states that a judgment shall reflect "[tjhat the case was called and the parties

appeared, naming the attorney for the state . . . and the attorney for the defendant[.]"

Tex. Code Crim. Proc. Ann. art. 42.01, § 1(2) (West 2006). The elected County and

District Attorney for Ellis County is the attorney for the State in this case. Tillison's

second issue is overruled.

Lastly, Tiilison asserts the trial court erred in imposing a fine in its written

judgment when the court had not imposed a fine in its oral pronouncement of Tillison's

sentence. When the oral pronouncement of sentence and the written judgment vary,

the oral pronouncement controls. Exparte Madding, 70 S.W.3d131,135 (Tex. Crim. App.

2002). The State agrees that no fine was orally pronounced by the trial court during

Tillison's sentencing. Accordingly, Tillison's third issue is sustained.

Violations ofCommunity Supervision

In his last three issues, Tiilison complains that the trial court abused its discretion

in adjudicating Tillison's guilt based on a violation of conditions 34, 35, and 38 of his

terms of community supervision. Condition 34 related to Tiilison having no contact

with a person under the age of 17 unless supervised by a person approved by the

community supervision department; condition 35 related to Tiilison participating in sex

Tiilison v. State Page 3
offender counseling until successful discharge; and condition 38 related to Tiilison

submitting to random polygraph exams.

The decision to proceed to adjudication of guilt is reviewable- in the same manner

as a revocation of "ordinary" community supervision. Tex. Code Crim. Proc. Ann. art.

42.12 § 5(b) (West 2006); Duncan v. State, 321 S.W.3d 53, 56 (Tex. App.-Houston [1st

Dist.] 2010, pet. refd). We review a decision to revoke community supervision, and by

extension a decision to adjudicate, for an abuse of discretion. Rickets v. State, 202 S.W.3d

759, 763 (Tex. Crim. App. 2CGG); Duncan, 321 S.W.3d at'56-57. The State's burden ofproof in a revocation proceeding is by a preponderance of the evidence. Cobb v. State,

851 S.W.2d 871, 874 (Tex. Crim. App. 1993). Further, the violation of a single condition

of community supervision is sufficient to support a revocation. Smith v. State, 286

S.W.3d 333, 342 (Tex. Crim. App. 2009) ("We have long held that 'one sufficient ground

for revocation would support 'the trial court's-order revoking' community-.supervision.").

(quoting Jones v. State, 571 S.W.2d 191,193-94 (Tex. Crim. App. [Panel Op.] 1978); Moore

v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Moses v. State, 590

S.W.2d 469,470 (Tex. Crim. App. [Panel Op.] 1979). Thus, in order to prevail on appeal,

an appellant must successfully challenge all the findings that support the revocation

order. Joseph v. State, 3 S.W.3d627,640 (Tex. App.—Houston [14th Dist.] 1999, no pet.).

At times, Tiilison was under the supervision of the Dallas County Community

Supervision and Corrections Department. While under Dallas County's supervision,

Tiilison v. State Page 4
Tiilison admitted to his community supervision officer that he had contact with a 17

year old minor, Tillison's niece, at Tillison's brother's party. Tillison's brother could not

recall if Tiilison was atthe party. There was testimony, however, feat atthe time of the

party, the niece would have been only 16 years old. This is enough to support the trial

court's finding that Tiilison violated condition 34, relating toTiilison having nocontact

with a person under the age of 17 unless supervised by a person approved by the

department. Because proof by apreponderance of the evidence of only one violation is

sufficient to support revocation, the trial court did not abuse its discretion in revoking

Tillison's community supervision and adjudicating Tillison's guilt. Tillison's fourth,

fifth, and sixth issues are overruled.

Conclusion

Having determined the trial court did not abuse its discretion in revoking

Tillison's community supervision and adjudicating Tillison's guilt but also having

sustained Tillison's third issue regarding the imposition ofa fine not orally pronounced

at sentencing, we modify the trial court's judgment to delete the fine and affirm the

judgment as modified.

TOM GRAY

ChiefJustice

Tiilison v.State Pa8e 5
Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed as modified

Opinion delivered and filed July 2,

Do not publish

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