RONALD MULLINS v. THE STATE OF TEXAS

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Court of Appeals of Texas, Texarkana.

RONALD MULLINS, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-17-00133-CR

Decided: January 25, 2018

Before Morriss, C.J., Moseley and Burgess, JJ.

MEMORANDUM OPINION

In 2010, Ronald Mullins pled guilty to and was convicted of aggravated sexual assault of a child.1 While the trial court sentenced Mullins to ten years' imprisonment and ordered him to pay a $2,500.00 fine, it suspended the imposition of the sentence in favor of placing Mullins on community supervision for ten years. There were many terms and conditions of Mullins' community supervision, including Term 52C, which provided that unless approved in writing by his community supervision officer (CSO), Mullins was to “[a]void any and all contact with any child under the age of 17” and was prohibited from “socializ [ing] with any person who ha[d] children under the age of 17.” The State filed a motion to revoke Mullins' supervision on the ground that he came into contact with neighborhood children and failed to remove himself from their presence. Following a hearing, the trial court revoked Mullins' community supervision, imposed the previously-suspended sentence, and ordered that it be served consecutively with an identical sentence assessed in cause number 06-17-00134-CR.

On appeal, Mullins argues (1) that the State failed to meet its burden of proof on the allegation contained in its revocation motion and (2) that the trial court erred in cumulating the sentence in this case with the sentence in cause number 06-17-00134-CR. We conclude that the trial court did not abuse its discretion in finding that the State proved by a preponderance of the evidence that Mullins failed to comply with Term 52C. We further find no error in the trial court's decision to cumulate Mullins' sentences. However, because the trial court's judgment mistakenly recites that Mullins pled “true” to the allegation in the State's motion to revoke, we must modify the trial court's judgment to reflect that Mullins pled “not true” to the allegation. As modified, we affirm the trial court's judgment.

I. The Trial Court Did Not Abuse its Discretion in Revoking Mullins' Community Supervision

In its decision to revoke community supervision, the trial court has broad discretion; therefore, the normal standards for reviewing the evidence do not apply. Miles v. State, 343 S.W.3d 908, 913 (Tex. App.—Fort Worth 2011, no pet.) (evidentiary sufficiency challenges on appeal do not apply to decision to revoke community supervision); Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana 2003, pet. ref'd). We review an order revoking community supervision under an abuse-of-discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Hammack v. State, 466 S.W.3d 302, 304 (Tex. App.—Texarkana 2015, no pet.); Pierce, 113 S.W.3d at 436.

The State's burden of proof to revoke community supervision is by a preponderance of the evidence. Rickels, 202 S.W.3d at 763; Pierce, 113 S.W.3d at 436. The revocation order is “supported by a preponderance of the evidence” if the “greater weight of the credible evidence ․ would create a reasonable belief that the defendant has violated a condition of his [community supervision].” Rickels, 202 S.W.3d at 763–64 (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)).

Assessing the witnesses' credibility and the weight to be given their testimony is the role of the trial court. In re T.R.S., 115 S.W.3d 318, 321 (Tex. App.—Texarkana 2003, no pet.) (citing Jones v. State, 787 S.W.2d 96, 97 (Tex. App.—Houston [1st Dist.] 1990, pet. ref'd)). We examine the evidence in the light most favorable to the trial court's judgment. Id. (citing Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983)).

At the revocation hearing, the trial court heard that Mullins came into contact with his neighbor's children after a hog he owned escaped its pen and tore down the neighbor's fence. Mullins testified that he enlisted his neighbor's help to capture and kill the 900-pound hog and that the neighbor's children had ridden on a tractor driven by the neighbor to drag the animal off the property. Mullins insisted that the children never stepped off of the tractor. He added, “I live 20 yards from one side and they live 20 yards on the other side. School bus turns around there and everything. Everybody shares the same driveway. ․ You know, everybody is in and out. But I don't go around them.”

Mullins' testimony was countered by Candice Mead, Mullins' CSO, who testified that Mullins had admitted to being around the children. Specifically, Mead's notes stated, “He has been around his neighbor's kid two to three times per week for agriculture purposes such as slaughtering or having to get stray animals back onto the appropriate land.” Mullins denied being around a child two or three times per week, and insisted that he had an approved chaperone present when he was in the presence of any children. However, Mead's examination elicited the following:

Q. So you're saying specifically that it's in your notes that he had been around these kids two or three times a week?

A. That's what is in my office notes, yes.

Q. Now, in order to elicit this, you had made an agreement that there be some intermediate sanctions where he could spend seven days in the county jail, correct?

A. Yes.

Q. And he agreed to that and signed that; is that correct?

A. Yes.

Q. Now, that was with the representation -- I understand it's not binding on the District Attorney's Office -- that he just do seven days in jail; is that correct?

A. Right.

Although Mead did not have the paperwork at the revocation hearing, her testimony established that Mullins had signed an agreement to serve seven days in jail after discussing conduct which Mead believed violated Term 52C. Mead further testified that her conversations with Mullins established that he was around the children on multiple occasions.2

The trial court was the sole judge of the credibility of the witnesses and the weight to be given their testimony. See T.R.S., 115 S.W.3d at 321. As such, the trial court was free to accept or reject part or all of a witness' testimony. See id. Therefore, the court was under no obligation to believe Mullins' testimony that he had only been around the children one time during a livestock emergency. Instead, the trial court was free to believe Mead's testimony that Mullins had admitted to being around the children on multiple occasions. In light of this evidence, we cannot conclude that the trial court abused its direction in finding that the State proved by a preponderance of the evidence that Mullins failed to abide by Term 52C of the terms and conditions of his community supervision. We overrule Mullins' first point of error.

II. The Trial Court Did Not Err in Cumulating Mullins' Sentences

In 2010, the trial court assessed a sentence of ten years' imprisonment in this case and in companion case 06-17-00134-CR. At the time the imposition of these sentences was suspended, the trial court ordered that they run concurrently. In his second point on appeal, Mullins argues that the trial court erred in cumulating the sentence in this case with the sentence in cause number 06-17-00134-CR following the revocation.

In support, Mullins cites O'Hara v. State, 626 S.W.2d 32 (Tex. Crim. App. [Panel Op.] 1981). There, the Texas Court of Criminal Appeals held “that a court may not add a cumulation order onto a sentence already imposed after a defendant has suffered punishment under the sentence as originally imposed.” Id. at 35. However, the court explained that O'Hara had already suffered punishment because he was placed on shock probation, which required him to serve a portion of the sentence. Id. (“When a court grants shock probation ․ it suspends the execution, rather than the imposition of the sentence.”). The Texas Court of Criminal Appeals clarified that a court is “free to cumulate a sentence with other outstanding sentences when it revoke[s] a probationer's [community supervision] ․ [where] the imposition of sentence [is] suspended at the time the defendant was placed on [community supervision] ․ and [s]entence was imposed for the first time following the revocation.” Id. at 34–35.

Citing to the portion of Mead's testimony excerpted above, Mullins argues that, like O'Hara, he was previously punished because he signed an agreement to go to jail for seven days after discussing conduct which Mead believed violated Term 52C.3 This “intermediate sanction,” however, was not ordered by the trial court and did not result in the imposition of Mullins' suspended sentence. Because the imposition of Mullins' sentence was suspended when he was originally placed on community supervision, and sentence was imposed for the first time following revocation, the trial court was free to cumulate Mullins' sentences under Section 3.03(b)(2) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 3.03(b)(2) (West Supp. 2017).4 Accordingly, we overrule Mullins' second point of error.

III. We Modify the Judgment to Reflect Mullins' Plea of “Not True” to the State's Allegation

We have the authority to modify the judgment to make the record speak the truth when the matter has been called to our attention by any source. TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). “Our authority to reform incorrect judgments is not dependent on the request of any party, nor does it turn on a question of whether a party has or has not objected in trial court; we may act sua sponte and may have a duty to do so.” Rhoten, 299 S.W.3d at 356 (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref'd); see French, 830 S.W.2d at 609).

The trial court's judgment recites that Mullins pled “true” to the allegations in the State's motion. Because our review of the reporter's record establishes otherwise, we modify the trial court's judgment to reflect that Mullins pled “not true” to the State's allegation.

IV. Conclusion

We modify the trial court's judgment to reflect that Mullins pled “not true” to the State's allegation. As modified, we affirm the trial court's judgment.

FOOTNOTES

1.   In companion case number 06-17-00134-CR, Mullins was also convicted of another count of aggravated sexual assault of the same child involved in this case.

2.   Mullins argues that the State failed to meet its burden of proof because there was no evidence that the neighbor's children were under the age of seventeen. However, during his own testimony, Mullins referred to them as “kids.”

3.   The record does not establish that Mullins actually served seven days in jail.

4.   Section 3.03(b)(2)(A) provides that a trial court may order sentences to run consecutively “[i]f the accused is found guilty of more than one offense arising out of the same criminal episode” and each sentence is for a conviction of aggravated sexual assault of a child younger than seventeen years old. TEX. PENAL CODE ANN. § 3.03(b)(2)(A). The offense in this case and the offense in cause number 06-17-00134-CR were committed against the same child victim, and Mullins fails to argue that these offenses did not arise out of the same criminal episode.

Bailey C. Moseley Justice

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