Full Opinion (html_with_citations)

Affirmed as Modified; Opinion Filed December 29, 2014.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-01535-CR

                            RODNEY WADE PARKER, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                       On Appeal from the 219th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 219-80444-2013

                                          OPINION
                           Before Justices Bridges, Francis, and Myers
                                    Opinion by Justice Myers
       Appellant Rodney Wade Parker was charged with felony driving while intoxicated, and

entered into a plea agreement with the State. He was sentenced to ten years’ imprisonment in the

Texas Department of Criminal Justice, which was suspended for five years of community

supervision, and a $500 fine. The State subsequently filed a motion to revoke community

supervision that contained twelve separate allegations. Appellant entered a plea of not true. The

trial court found the first five allegations true, revoked appellant’s community supervision, and

sentenced him ten years’ imprisonment and a $500 fine. In three issues, appellant argues that the

trial court erred by admitting evidence of extraneous bad acts, article 38.22 applied to appellant’s

admissions to his probation officer regarding methamphetamine use, and the trial court abused its

discretion by finding as true the fifth allegation in the State’s motion to revoke. As modified, we

affirm the trial court’s judgment.
                            BACKGROUND AND PROCEDURAL HISTORY

       The first five allegations in the State’s motion to revoke community supervision, which

the trial court ultimately found to be true, read as follows:

       1: that the defendant has used substances prohibited by the Texas Controlled
       Substances Act, to-wit: the defendant admitted the use of methamphetamines on
       or about the 7th day of June 2013;

       2: that the defendant has used substances prohibited by the Texas Controlled
       Substances Act, to-wit: the defendant admitted to the use of methamphetamines
       on or about the 8th day of June 2013;

       3: that the defendant has used substances prohibited by the Texas Controlled
       Substances Act, to-wit: the defendant admitted to the use of methamphetamines
       on or about the 9th day of June 2013;

       4: that the defendant has used substances prohibited by the Texas Controlled
       Substances Act, to-wit: the defendant admitted to the use of methamphetamines
       on or about the 10th day of June 2013;

       5: that the defendant has failed to participate in and successfully complete the
       DWI/Drug Court Program and pay the $400.00 participation fee[.]

       During the hearing on the State’s motion, appellant’s probation officer, Dione Adams,

testified that appellant admitted to her, in an office visit that took place on June 18, 2013, that he

used methamphetamine on June 7, 8, 9, and 10, 2013. Adams testified that appellant admitted

the methamphetamine use both in her office and in drug court. She further testified that he failed

to participate in and complete the DWI/Drug Court Program, and was kicked out of the program

“[a]fter he failed to appear.” The probation officer also testified that appellant did not pay the

$400 participation fee. Adams testified that when appellant admitted using methamphetamine

one weekend, they “talked at length at my office visit about him going into inpatient treatment,”

and that appellant “was given the referrals that Friday to go check himself into Homeward

Bound so he would not have pay for it,” but appellant “did not follow through with that.” When

appellant testified, he insisted that he only admitted using methamphetamine on Sunday, June 9,

2013––one of the dates of methamphetamine use alleged in the motion to revoke.

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       In addition, Adams also testified that appellant tested positive for alcohol on May 11,

2013 and May 15, 2013, and that on May 24, 2013, he tested positive for methamphetamine use.

Appellant’s trial counsel objected that these allegations did not “comport to the petition that’s

before the Court.” The trial court overruled the objection, but noted that if the State failed to

prove the violations alleged in the motion to revoke, “then it doesn’t matter about all this other

stuff.” Following the hearing, the trial court found allegations one through five in the State’s

motion true and sentenced appellant to ten years in prison and a $500 fine.

                                           DISCUSSION

                                      Extraneous Bad Acts

       In his first issue, appellant argues the trial court erred by admitting evidence regarding

violations of the terms and conditions of his community supervision beyond those alleged in the

State’s motion to revoke. That evidence, according to appellant, was irrelevant and inadmissible

under rule 404(b), and it “allowed the State to present to the Court an offense for which appellant

was not prepared.”

       In a hearing on a motion to revoke probation, the State must prove every element of the

ground asserted for revocation by a preponderance of the evidence. Rickels v. State,
202 S.W.3d 759
, 763–64 (Tex. Crim. App. 2006). The trial court is the sole judge of the credibility of the

witnesses and the weight to be given their testimony, and we review the evidence in the light

most favorable to the trial court’s order. Moore v. State,
11 S.W.3d 495, 498
 (Tex. App.––

Houston [14th Dist.] 2000, no pet.); Lee v. State,
952 S.W.2d 894, 897
 (Tex. App.––Dallas 1997,

no pet.) (en banc). Proof of any one of the alleged violations is sufficient to support a revocation

of community supervision. Moore v. State,
605 S.W.2d 924, 926
 (Tex. Crim. App. 1980);

Moses v. State,
590 S.W.2d 469, 470
 (Tex. Crim. App. [Panel Op.] 1979); Moore,
11 S.W.3d at 498
; Lee,
952 S.W.2d at 900
. Our review of an order revoking community supervision is limited

                                                –3–
to determining whether the trial court abused its discretion. Rickels,
202 S.W.3d at 763
.

       The Texas Rules of Evidence provide that evidence is “relevant” if it has “any tendency

to make the existence of any fact that is of consequence to the determination of the action more

or less probable than it would be without the evidence.” TEX. R. EVID. 401. Evidence of other

crimes, wrongs, or bad acts is inadmissible, even if relevant, if it is offered to prove that the

accused acted in conformity therewith. Id. 404(b).

       The State correctly points out that probation revocation hearings are unitary proceedings,

which means the decision of the trial court “is not fixed until it renders judgment on guilt and

punishment after all the evidence and arguments have been heard.” Barfield v. State,
63 S.W.3d 446, 451
 (Tex. Crim. App. 2001) (citing Jones v. State,
797 S.W.2d 33, 34
 (Tex. Crim. App.

1990)); Kelly v. State, No. 08–12–00291–CR,
2014 WL 3853872
, at *3 (Tex. App.––El Paso

Aug. 6, 2014, pet. filed) (not designated for publication). Furthermore, in a unitary proceeding,

as in a punishment hearing, the parties may offer any evidence the court deems relevant to

sentencing, including unadjudicated extraneous offenses and previous bad acts attributable to the

defendant. See Watson v. State,
974 S.W.2d 763, 765
 (Tex. App.––San Antonio 1998, pet.

ref’d); Simonetti v. State, No. 05–08–01568–CR,
2010 WL 2307101
, at *2 (Tex. App.––Dallas

June 10, 2010, pet ref’d) (mem. op., not designated for publication); Pargas v. State, No. 05–04–

01682–CR,
2005 WL 2009567
, at *5–6 (Tex. App.––Dallas Aug. 23, 2005, no pet.) (not

designated for publication). This case is no different. The extraneous bad acts were not offered

to prove the allegations in the motion to revoke. Indeed, when it overruled the defense’s

objection, the trial court reminded the State that if it failed to prove the violations alleged in the

motion to revoke, the extraneous bad acts would be irrelevant. Appellant has not shown that the

trial court abused its discretion by admitting the extraneous bad acts evidence.

       Additionally, even if we were to conclude that the trial court erred by admitting the

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complained-of evidence, appellant was not harmed. See TEX. R. APP. P. 44.2(b). The improper

admission of evidence is non-constitutional error that an appellate court disregards unless the

error affected an appellant’s substantial rights. Id.; Barshaw v. State,
342 S.W.3d 91, 93
 (Tex.

Crim. App. 2011); Casey v. State,
215 S.W.3d 870
, 884–85 (Tex. Crim. App. 2007). We will not

overturn a criminal conviction for non-constitutional error if, after examining the record as a

whole, we have fair assurance that the error did not influence the jury, or influenced the jury only

slightly. Barshaw,
342 S.W.3d at 93
. Assuming the probation officer’s testimony regarding

violations of the terms of probation beyond those alleged in the motion to revoke was

inadmissible, and that the trial court improperly relied on that evidence, there is evidence

appellant used methamphetamine on the four dates alleged in the motion to revoke, and that he

failed to participate in and complete the DWI/Drug Court Program. Appellant did not dispute

that he used methamphetamine on one of the dates alleged in the motion. Any of these violations

was sufficient to support the revocation of appellant’s probation. See Moore,
605 S.W.2d at 926
;

Moses,
590 S.W.2d at 470
; Moore,
11 S.W.3d at 498
; Lee,
952 S.W.2d at 900
. The trial court’s

decision to revoke appellant’s community supervision was, therefore, proper. We overrule

appellant’s first issue.

                                           Article 38.22

        In his second issue, appellant argues that the evidence is insufficient to support finding

paragraphs one through four of the motion to revoke true because “the State failed to corroborate

the admissions on which the State relied to prove a violation under article 38.22 of the code of

criminal procedure.” More specifically, he argues that the only evidence regarding his use of

methamphetamine was the probation officer’s testimony, but his statements to the probation

officer were custodial “by definition” and should have been excluded under article 38.22 and

Miranda.

                                                –5–
       Article 38.22 of the Texas Code of Criminal Procedure provides in part that “[n]o oral or

sign language statement of an accused made as a result of custodial interrogation shall be

admissible against the accused in a criminal proceeding unless,” among other things, prior to

making the statement but during the recording, the accused is given the Miranda warnings

codified in subsection (a) of section 2, “and the accused knowingly, intelligently, and voluntarily

waives any rights set out in the warning.” TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a).

Those statutory warnings include: (1) that the accused has the right to remain silent and any

statement he makes may be used against him at trial; (2) that any statement he makes may be

used as evidence against him in court; (3) that he has the right to have a lawyer present to advise

him during any questioning; (4) that if he is unable to employ a lawyer, he has the right to have a

lawyer appointed to advise him prior to and during any questioning; and (5) that he has the right

to terminate the interview at any time. Id. art 38.22 § 2(a).

       A person is in custody when, “under the circumstances, a reasonable person would

believe that his freedom of movement was restrained to the degree associated with a formal

arrest.” Herrera v. State,
241 S.W.3d 520, 525
 (Tex. Crim. App. 2007) (quoting Dowthitt v.

State,
931 S.W.2d 244, 254
 (Tex. Crim. App. 1996)). The Texas Court of Criminal Appeals has

identified four general situations that may constitute custody: (1) when the person is physically

deprived of his freedom of action in any significant way; (2) when a law enforcement officer

tells the suspect that he cannot leave; (3) when law enforcement officers create a situation that

would lead a reasonable person to believe that his freedom of movement has been significantly

restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell

the suspect that he is free to leave. Dowthitt,
931 S.W.2d at 255
.

       However, the procedural safeguards of Miranda and article 38.22 do not apply to all

custodial questioning. See Wilkerson v. State,
173 S.W.3d 521, 527
 (Tex. Crim. App. 2005);

                                                –6–
Peterson v. State, No. 05–12–01021–CR,
2013 WL 5657772
, at *3 (Tex. App.––Dallas Oct. 16,

2013, no pet.) (not designated for publication). They apply only to custodial interrogation by law

enforcement officers or their agents. Wilkerson,
173 S.W.3d at 527
. The mere fact of state

employment does not make someone a state agent for purposes of custodial interrogation. See

Peterson,
2013 WL 5657772
, at *3 (“Although a CPS worker is an employee of the state, state

employment does not, by itself, make a person a state agent for purposes of defining custodial

interrogation.”) (citing Wilkerson,
173 S.W.3d at 528
). In addition, courts have noted that

statements made to probation officers while not under arrest are not generally subject to the

requirements of article 38.22. Bustamante v. State,
493 S.W.2d 921, 922
 (Tex. Crim. App.

1973); Kirven v. State,
492 S.W.2d 468, 469
 (Tex. Crim. App. 1973); Cunningham v. State,
488 S.W.2d 117, 120
 (Tex. Crim. App. 1972); Holmes v. State,
752 S.W.2d 700
, 700–01 (Tex.

App.—Waco 1988, no pet.) (statements made by defendant to probation officer that he had been

drinking did not occur during custodial interrogation); see also Lockhart v. State, Nos. 07–12–

0077–CR, 07–12–0083–CR,
2012 WL 4039700
, at *1 (Tex. App.––Amarillo Sept. 13, 2012, no

pet.) (mem. op., not designated for publication); Waxler v. State, No. 06–08–00015–CR,
2008 WL 2065513
, at *1 (Tex. App.––Texarkana May 15, 2008, no pet.) (mem op., not designated for

publication). It is only when the probation officer and the police are investigating a criminal

offense in tandem that article 38.22 warnings may be required. See Wilkerson,
173 S.W.3d at 529
 (“When a state-agency employee is working on a path parallel to, yet separate from, the

police, Miranda warnings are not required,” but if those once-parallel paths converge and the

“police and state agent are investigating a criminal offense in tandem, Miranda warnings and

compliance with article 38.22 may be necessary.”); see also Huff v. State, No. 02–10–00477–CR,
2011 WL 2754562
, at *4–5 (Tex. App.—Fort Worth July 14, 2011, no pet.) (mem. op., not

designated for publication).   Furthermore, the person alleging the existence of an agency

                                               –7–
relationship has the burden of proof, and no presumption of agency exists. Wilkerson,
173 S.W.3d at 529
.

       In this case, appellant’s probation officer testified that appellant was not under arrest

when he admitted in front of her that he used methamphetamine on four separate occasions.

There is no evidence showing that the probation officer was acting on behalf of or in conjunction

with law enforcement in investigating a crime. Rather, the statements in question were made

during an office visit, and appellant was required by the terms of his probation to report to the

probation officer as scheduled by the officer.        As the court of criminal appeals stated in

Cunningham, “The purpose of probation would be materially affected and the relationship

between the probation officer and his probationer would be a strained one if upon every contact,

monthly report, or visit, the officer was required to give the Miranda warnings and obtain an

affirmative waiver of the probationer’s rights.” Cunningham,
488 S.W.2d at 120
. Accordingly,

because there has been no showing that appellant was under arrest or otherwise in state custody

when he met with his probation officer, the trial court did not abuse its discretion by allowing the

probation officer to testify that appellant admitted using methamphetamine. Furthermore, those

admissions served as sufficient evidence for the trial court to conclude appellant violated the

terms of his probation. We overrule appellant’s second issue.

                 Failure to Pay the DWI/Drug Court Program Participation Fee

       In his third issue, appellant argues the evidence is insufficient to support finding

paragraph five of the motion to revoke true, which alleged in part that appellant failed to pay the

$400 DWI/Drug Court Program participation fee, because “the State did not show that the

movant had the ability to pay the drug court fee.”

       Article 42.12, § 21(c) of the code of criminal procedure provides part:

       In a community supervision revocation hearing at which it is alleged only that the
       defendant violated the conditions of community supervision by failing to pay
                                                –8–
       compensation paid to appointed counsel, community supervision fees, or court
       costs, the State must prove by a preponderance of the evidence that the defendant
       was able to pay and did not pay as ordered by the judge.

TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(c) (emphasis added).

       This case involves violations of the terms of appellant’s probation other than the failure

to pay the DWI/Drug Court Program participation fee. In addition to appellant’s admitted use of

methamphetamine, the State’s fifth allegation alleged two different violations, i.e., that appellant

failed to participate in and successfully complete the DWI/Drug Court Program, and that he

failed to pay the $400 participation fee. The probation officer testified that appellant did not

participate in or show up for the DWI/Drug Court Program, and that he was kicked out of the

program because “he failed to appear.” Based on the probation officer’s testimony, the trial

court could have concluded that the fifth allegation in the motion to revoke was true without

having to consider appellant’s ability to pay the $400 participation fee. Moreover, even if we

assume that the State failed to prove that appellant failed to participate in or successfully

complete the DWI/Drug Court Program, or that he failed to pay the participation fee, the trial

court did not abuse its discretion because (as discussed above) appellant’s community

supervision could have been revoked on other grounds, and proof of even a single violation will

support revocation. See, e.g., Moore,
605 S.W.2d at 926
. We overrule appellant’s third issue.

                                    Modification of Judgment

       Appellant pleaded not true to the allegations in the State’s motion to revoke. The trial

court found the first five allegations in the motion to be true. The judgment, however, states that

appellant pleaded “true” to the motion to revoke. Because the necessary information is available

in the record, on our own motion we modify the trial court’s judgment to show appellant pleaded

“not true” to the motion to revoke. See TEX. R. APP. P. 43.2(b); Asberry v. State,
813 S.W.2d 526
, 529–30 (Tex. App.––Dallas 1991, pet. ref’d) (providing that an appellate court has the


                                                –9–
authority to modify incorrect judgments sua sponte when the necessary information is available

to do so); see also Tyler v. State,
137 S.W.3d 261
, 267–68 (Tex. App.––Houston [1st Dist.]

2004, no pet.) (authority to modify judgment is not dependent upon a party’s request).

       As modified, the trial court’s judgment is affirmed.



                                                              / Lana Myers/
                                                              LANA MYERS
                                                              JUSTICE

Do Not Publish
TEX. R. APP. P. 47
131535F.U05




                                              –10–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

RODNEY WADE PARKER, Appellant                       On Appeal from the 219th Judicial District
                                                    Court, Collin County, Texas
No. 05-13-01535-CR        V.                        Trial Court Cause No. 219-80444-2013.
                                                    Opinion delivered by Justice Myers.
THE STATE OF TEXAS, Appellee                        Justices Bridges and Francis participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       “Plea to Motion to Revoke: TRUE” is changed to read “Plea to Motion to
       Revoke: NOT TRUE”

As MODIFIED, the judgment is AFFIRMED.               We direct the trial court to enter a new
judgment that reflects this modification.

Judgment entered this 29th day of December, 2014.




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