JOHN KELSEY LUNDY v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

JOHN KELSEY LUNDY, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-09-01192-CR

Decided: May 27, 2010

Before Justices Bridges, FitzGerald, and Fillmore

OPINION

Opinion By Justice Bridges

John Kelsey Lundy appeals the revocation of his community supervision.   In a single issue, appellant contends the trial court erred by adjudicating his guilt and sentencing him to imprisonment in each case.   We affirm the trial court's judgments.

Appellant waived a jury and pleaded guilty to stalking in each case.   See Tex. Penal Code Ann. § 42.072(a) (Vernon 2003).   Pursuant to plea agreements, the trial court deferred adjudicating guilt and placed appellant on eight years' community supervision.   The State later moved to adjudicate guilt, alleging appellant violated the terms of his community supervision.   Appellant pleaded not true to the allegations in a hearing on the motions.   The trial court found one of the allegations true, adjudicated appellant guilty, and assessed punishment at eight years' imprisonment in each case.

Appellate review of an order revoking community supervision is limited to determining whether the trial court abused its discretion.   See Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App.2006).   In determining questions concerning sufficiency of the evidence in revocation cases, the burden of proof is by a preponderance of the evidence.  Id. An order revoking community supervision must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of community supervision.  Id. at 763-64.   A finding of a single violation of community supervision is sufficient to support revocation.   See Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App.1980).   Thus, in order to prevail, appellant must successfully challenge all of the findings that support the revocation order.   See Jones v. State, 571 S.W.2d 191, 193-94 (Tex.Crim.App. [Panel Op.] 1978).   In a revocation proceeding, the trial judge is the sole trier of the facts, and determines the credibility of the witnesses and the weight to be given to the testimony.   See Lee v. State, 952 S.W.2d 894, 897 (Tex.App.-Dallas 1997, no pet.).

Appellant contends the trial court erred by adjudicating his guilt and sentencing him to imprisonment because his and his mother's testimony established that the home monitoring system malfunctioned the first few days of service.   Appellant argues that he cannot be held liable for failures of the probation department's equipment, and that he believed he was in compliance with the monitoring program when he was on a third-floor balcony.   The State responds that the trial court properly revoked appellant's community supervision based upon the evidence presented.

In its motions to adjudicate, the State alleged appellant violated condition (b) by testing positive for “amphetamines/methamphetamines” and condition (q) by failing to follow the rules and regulations of the monitor program.   At a hearing on the motions, the trial court heard testimony from the monitoring technician, appellant's probation officer, appellant's mother, and appellant.   Lauren Roussell, the monitoring technician, testified she placed an ankle monitor on appellant on Wednesday, August 19, 2009.   Roussell explained the monitoring program to appellant, gave him a home monitor unit and GPS tracking cell phone, and explained that appellant was on “lockdown” until he met with his probation officer that following Monday.  “Lockdown” meant appellant was not to cross over the threshold of his front door for any reason until it was time to meet with his probation officer.   Beginning on August 19, 2009, the first day he was put on the program, to August 28, 2009, the day appellant was arrested, appellant had “multiple violations.”   Roussell testified that appellant called her office “multiple times” the first and second day he was on the program, even though she had explained the equipment's use and informed him that he did not need to contact her.   Appellant also came to Roussell's office “multiple times,” making her feel “uncomfortable” about his “very bizarre behavior.”   On August 24, 2009, appellant met with his probation officer for the first time.   That meeting ended around 2:45 p.m. However, at 5:00 p.m., when Roussell was leaving the building, she saw appellant standing outside smoking a cigarette.   Roussell asked a male officer to walk her to her car.

Mary Taylor, appellant's probation officer, testified she was at a conference on the day appellant was connected to a monitor.   Roussell called her two days later and said appellant had numerous violations even though the equipment was working properly, and that he had been calling her “numerous times” and driving by the building.   Taylor testified all probationers placed on monitoring for the first time were on lockdown status until they met with their probation officer.   Appellant was instructed to stay inside his house until he was to leave to meet with Taylor on August 24, 2009.   Taylor testified Roussell told her about appellant's calls and that he had numerous violations within the first two days.   She immediately telephoned appellant and told him he was on lockdown status until he met with her on Monday, August 24, 2009.   At that time, appellant denied doing anything wrong, claiming the equipment was not working.

When Taylor met with appellant on August 24, 2009, she told him not to call Roussell, not to contact Roussell, and that all questions should be directed to his probation officer and not the technician.   She explained to appellant that he could be away from his residence to look for employment on weekdays from 9:00 a.m. to 3:00 p.m., but he was still on lockdown after 3:00 p.m. weekdays and all day on Saturdays and Sundays.   Taylor also conducted a random urinalysis test on appellant at that time.   The test was positive for morphine and methamphetamine.   Appellant denied using illegal drugs, stating he was seeing a psychiatrist.   Appellant offered no proof of a prescription or the doctor's name.   Taylor testified that during their meeting, appellant assured her he understood her instructions.   But, appellant's behavior toward Roussell continued.   Appellant called Roussell on the telephone and showed up at her office to get activity sheets or other minor things.

Melinda Lundy, appellant's mother, testified that she was aware appellant may be violating some of the rules of his community supervision.   According to Lundy, appellant smoked cigarettes while standing on their balcony several times a day, and sometimes he stayed on the balcony for as long as ninety minutes.   Lundy testified she drove appellant wherever he needed to go, and he never left the house without her.   Lundy said appellant had been taking a prescribed amphetamine from the psychiatrist he sees, and she had also given appellant some morphine because he had surgery on his arm.   During cross-examination, Lundy testified she was not with appellant when he met with probation officers about the conditions of his community supervision, but appellant told her about the conditions and she trusted what he told her.   Lundy produced a prescription bottle issued to appellant in February 2009 that contained amphetamine.

Appellant testified he met with a probation officer and a monitoring technician on August 19, 2009.   Appellant understood the conditions of his community supervision and the instructions for the monitoring program.   After he installed the monitoring equipment at his parent's home, he got calls from the probation officer and Roussell saying he was having violations.   Appellant moved the device to a different location in the residence a few times, and also took the equipment back to Roussell a few times to have some of the parts replaced.   Appellant testified he assumed that going out on the third-floor balcony to smoke cigarettes was okay because the balcony was attached to the residence.   When he later found out that going on the balcony registered a violation, he stopped doing it and quit smoking altogether.   Appellant also said some of the violations registered even though he was sitting on the living room couch.   According to appellant, after Taylor told him not to call Roussell, he never called her again.   Appellant said that each time he went to the probation department's building, he was asked to come there and to bring in the equipment.   No one ever said to only come to the building when he had a scheduled meeting with his probation officer.   Appellant testified he has taken prescription Dexedrine for about five years, and that particular drug shows up on tests as methamphetamine.   Appellant said he believed the probation officers were looking at his past case and holding it against him.

The trial court in these cases found the State proved appellant violated condition (q) of his community supervision by failing to follow the rules of the monitoring program.   The court could properly base its decision on the testimony of Roussell and Taylor, who both testified that appellant had “multiple violations” during the nine days he was on community supervision.   Although appellant blamed the violations on malfunctioning equipment, it was the trial court's role, as the fact finder in these cases, to reconcile any conflicts in the evidence and judge the witnesses' credibility.   See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App.2003);  Lee, 952 S.W.2d at 897.

Because the evidence is sufficient to prove appellant violated a condition of his community supervision, the trial court did not abuse its discretion in revoking appellant's community supervision and adjudicating his guilt in each case.   See Rickels, 202 S.W.3d at 763-64;  Sanchez, 603 S.W.2d at 871.   We resolve appellant's sole issue against him.

In each case, we affirm the trial court's judgment.

DAVID L. BRIDGES JUSTICE

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