No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS. JANET MARIE VICKERS, Appellant

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1 The State Requests Oral Argument Only If Appellant Argues No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS JANET MARIE VICKERS, Appellant I (J) )> 7 _L> --i N G,.!--:! ::0 ;;:;::;. -.} ~ --..) - ~ '" LJ :::.= I,_n ;...) ~ :r 0 S::JJ --!Fn <::)0 "==;;; ~i;l- '':) T) ~ L0 v. THE STATE OF TEXAS, Appellee On appeal from the Criminal District Court No. 2 of Dallas County, Texas Cause No. F l STATE'S BRIEF CRAIG WATKINS Criminfll District Attorney DALLAS COUNTY, TEXAS Counsel of Record: ALEXIS E. HERNANDEZ Assistant District Attorney State Bar No Frank Crowley Bldg. 133 N. Riverfront Blvd., LB. 19 Dallas, Texas (214) I I (214) (FAX) ATTORNEYS FOR THE STATE OF TEXAS

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3 The State Requests Oral Argument Only If Appellant Argues No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS JANET MARIE VICKERS, Appellant v. THE STATE OF TEXAS, Appellee On appeal from the Criminal District Court No. 2 of Dallas County, Texas Cause No. F I STATE'S BRIEF Counsel of Record: CRAIG WATKINS Criminal District Attorney DALLAS COUNTY, TEXAS ALEXIS E. HERNANDEZ Assistant District Attorney State Bar No Frank Crowley Bldg. 133 N. Riverfront Blvd., LB. 19 Dallas, Texas (214) I I (214) (FAX) ATTORNEYS FOR THE STATE OF TEXAS

4 TABLE OF CONTENTS INDEX OF AUTHORITIES... iii STATEMENT OF THE CASE... 1 SUMMARY OF ARGUMENT... 1 ARGUMENT... 1 RESPONSES TO SOLE ISSUE... 2 This appellate court cannot find error in the trial court's imposition of SAFP treatment as a condition of community supervision because Appellant cannot complain of the imposition of the condition for the first time on appeal... 2 The record supports the trial court's implied findings for placing Appellant in SAFP treatment as a condition of community supervision... 2 PRAYER... 9 CERTIFICATE OF SERVICE... 9 ii

5 INDEX OF AUTHORITIES Cases Ice v. State, 914 S.W.2d 694 (Tex. App.- Fort Worth 1996, no pet.)... 7 Kennedy v. State, Nos CR and CR, 2000 Tex. App. LEXIS 1764 (Tex. App.- Dallas Mar. 17, 2000, no pet.) (not designated for publication)... 5, 6 McNeal v. State, No CR, 2012 Tex. App. LEXIS 4417 (Tex. App. Dallas June 4, 2012) (mem. op., not designated for publication)... 6 Manse v. State, Nos CR and CR, 1999 Tex. App. LEXIS 6976 (Tex. App. - Houston [14th Dist.] Sept. 16, 1999, no pet.) (not designated for publication)... 8 Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990)... 8 Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999)... 6 Vela v. State, 871 S.W.2d 815 (Tex. App.- Houston [14th Dist.] 1994, no pet.)... 7 Statutes Tex. Code Crim. Proc. Ann. art (Vernon 2006}... 2, 5, 6 Rules Tex. R. App. P. 33.1(a)... 6, 7 iii

6 TO THE HONORABLE COURT OF APPEALS: The State of Texas submits this brief in reply to the brief of Appellant, Janet Marie Vickers. STATEMENT OF THE CASE On November 10, 2011, Appellant appeared before the court on her open plea of guilty to the allegations of an indictment charging her with aggravated assault with a deadly weapon. (CR:9, 14; RR2:1, 5). Appellant, her attorney, the prosecutor, and the trial judge signed an open plea agreement by which Appellant judicially confessed that she committed the indicted offense. (CR:13-15; See also CR:16). The trial court found that the evidence substantiated Appellant's guilt, deferred a finding of guilt, and placed her on community supervision for seven years and assessed a $2500 fine. (CR:17-18). As a condition of probation, the court ordered Appellant to attend, participate, and successfully complete substance abuse felony program (SAFP) treatment. (CR:14-15, 18; RR2:13). Appellant filed her notice of appeal on January 10, (CR:39). SUMMARY OF ARGUMENT Appellant cannot complain of the imposition of SAFP treatment as a condition of probation for the first time on appeal. Therefore, Appellant's sole point on appeal should be overruled for failure to preserve it for appellate review. If the unpreserved complaint is reviewed, the record supports the implied findings of the trial court. ARGUMENT 1

7 RESPONSES TO SOLE ISSUE This appellate court cannot find error in the trial court's imposition of SAFP treatment as a condition of community supervision because Appellant cannot complain of the imposition of the condition for the first time on appeal. The record supports the trial court's implied findings for placing Appellant in SAFP treatment as a condition of community supervision. Appellant's Contention In her sole point on appeal, Appellant contends: 1) that the trial court abused its discretion by ordering her to substance abuse felony program (hereinafter "SAFP") without making the necessary affirmative findings under Tex. Code Crim. Proc. Ann. art (Vernon 2006), and 2) that the record does not support the presumption of these findings. (App. Br. at pp.4-6). Pertinent Facts During her open plea hearing, although Appellant did not testify directly to drug use, it is very much implied that she has used in the past and that she would benefit from the SAFP program. The record first implies this benefit is needed during the following exchange: [Appellant's Counsel:] You understand that probation is recommending that you enter into the SAFPF program, substance abuse felony program? You understand that? [Appellant:] Yes, ma'am. Q. Now, you don't want to do that, correct? A. No, ma'am. 2

8 Q. Now, you have an open [CPS] case with regards to one or more of your children, correct? A. Just one. Q. And you have been ordered by them when you get out of here to go into a drug treatment facility, correct? A. Yes, ma'am. Q. So that was your intention, was to do outpatient when you got out of jail? A. No. I've got to do inpatient. * * * * Q. All right. So what you're telling the Judge is that you do not want to participate in the recommended SAFPF program that the probation officers are recommending as a condition of your probation, but that you do agree you need treatment. And you're agreeing to do treatment with the CPS program once you are released if the Judge will not send you to the SAFPF program as a condition of your probation? A. Yes, ma'am. (RR2:10-11) (all errors in original). Ultimately, she asked the court not to impose SAFP treatment as a condition of her community supervision because she essentially preferred to attend only the Turtle Creek inpatient facility in relation to her CPS case. [Appellant's Counsel]: Judge, if you could see your way to let her waive the SAFPF and then do the inpatient under CPS, then she'd still get the drug treatment she needs. And we can certainly look into more research with that, and then the State wouldn't be paying for the SAFPF program. There would be another agency that would be, and Ms. Vickers can assure you that she's going to do it and give you-- [Appellant]: Yes. [Appellant's Counsel]: -- some type of guaranty that she would go into this program. 3

9 (RR2:12-13}. [Appellant]: Yes. Because I've already, Your Honor, finished psychological evaluation, individual counsel, drug and alcohol assessment and parenting classes. And I've got to take random drug tests. So I would like to be recommended here. At the conclusion of Appellant's testimony, the trial court took judicial notice of the CATS evaluation and additionally found the evidence substantiated Appellant's guilt, deferred adjudication of guilt, and placed Appellant on community supervision. (RR2: 12-13). SAFP treatment was imposed as a condition of community supervision. (RR2:13). The record reflects that the trial court then made the following findings on the record pursuant to the Code of Criminal Procedure article 42.12, section 14: THE COURT: Well, so is the Court, and that's why I think we'd better go ahead and, based on a criminal record that goes back to at least 1985, give her the most help we can give her and that would be SAFPF. The Court will follow the plea bargain agreement. The Court does find the evidence presented substantiates the defendant's guilt for the offense of aggravated assault as charged in the indictment beyond a reasonable doubt but will not make a finding of guilt at this time and place the defendant on 7 years' unadjudicated community supervision with a $2,500 fine and make SAFPF as a condition of probation. And, Ms. Vickers, hopefully, you're going to complete this because you're looking at 20 years in the-- in the joint. (RR2:13). Appellant did not then object either to the imposition of SAFP or any lack of findings. (RR2: 13-14). Applicable Principles of Law and Conclusions Error not preserved 4

10 Tex. Code Crim. Proc. Ann. art (a), (b) provides that SAFP treatment may be ordered as a condition of community supervision for any felony, other than certain enumerated sex offenses, if the judge makes the requisite findings regarding the role of drug or alcohol abuse in the commission of the offense and that the defendant is a suitable candidate for SAFP. In the present case, the trial court did specify the reason he ordered Appellant to attend, participate in, and successfully complete SAFP treatment: "based on a criminal record that goes back to at least 1985, [to] give her the most help [the court] can give her and that would be SAFPF," and it is the State's position that the record does reflect the two affirmative findings required by the Code. See /d. at 14 (b) (3}. Assuming arguendo, even if the record did not reflect the two affirmative findings required under art , Appellant did not object to the failure of the trial court to make explicit findings on the record or to the imposition of SAFP. Appellant has failed to preserve error for review; it is too late for Appellant to raise her complaint that this condition was improperly imposed. In Kennedy v. State, Nos CR and CR, 2000 Tex. App. LEXIS 1764 (Tex. App.- Dallas Mar. 17, 2000, no pet.) (not designated for publication), Kennedy complained that the trial court erred in each case by making his confinement in a substance abuse treatment facility a condition of his probation. Much like Appellant's current argument, Kennedy argued that the trial court could not impose such a 5

11 condition without making an affirmative finding that drug or alcohol abuse significantly contributed to the commission of the crimes. This Court recognized that under Tex. Code Crim. Proc. Ann. art , 14, a judge may make confinement in a substance abuse treatment facility a condition of a defendant's probation only if the judge makes affirmative findings that (1) drug or alcohol abuse significantly contributed to the commission of the crime and (2) the defendant is a suitable candidate for treatment, as determined by the suitability criteria established by the Texas Board of Criminal Justice.!d. at *2. However, this Court noted that Kennedy did not object to any of his probation conditions after they were imposed at trial or in a motion for new trial.!d. at *3. Therefore, it overruled Kennedy's complaint because he had waived it. See id. citing Tex. R. App. P. 33.1(a); Speth v. State, 6 S.W.3d 530, (Tex. Crim. App. 1999) (finding a defendant who benefits from the contractual privilege of probation, the granting of which does not involve a systemic right or prohibition, must complain at trial to conditions he finds objectionable; because Speth did not object at trial to the imposition of the conditions, the court of appeals erred in holding Speth could complain about the community supervision conditions for the first time on appeal). The State also notes that this Court quite recently upheld this line of logic in an almost identical case to the one at hand. See generally, McNeal v. State, No CR, 2012 Tex. App. LEXIS 4417 (Tex. App. Dallas June 4, 2012) (mem. op., not designated for publication). 6

12 Ultimately, because Appellant did not object to any absence of explicit findings or to the imposition of SAFP treatment when it was imposed as a condition of her community supervision, this Court cannot hear these complaints for the first time on appeal. Tex. R. App. P 33.1(a). Appellant's point should be overruled for failure to preserve it for appellate review. Record supports implied findings If this Court chooses to address this unpreserved allegation of error, it should apply the well established rule that when a trial judge fails to make specific findings of fact and conclusions of law, it is presumed that the court made the necessary findings to support its decision. Vela v. State, 871 S.W.2d 815, (Tex. App. - Houston [14th Dist.] 1994, no pet.) (where no findings of fact on a motion to suppress are filed, the appellate court will presume that the trial court made findings necessary to support its ruling so long as those implied findings are supported by the record); Ice v. State, 914 S.W.2d 694, 695 (Tex. App.- Fort Worth 1996, no pet.) (where the defendant complains of the trial court's failure to make affirmative findings to allow the court to impose SAFP treatment as a condition of community supervision, the appellate court presumed that the trial court made the required findings, so long as those implied findings were supported by the record). In the present case, this Court must determine whether the trial court's imposition of SAFP treatment as a condition of community supervision is supported by the record. The entire record must be reviewed to determine whether 7

13 there are any facts that lend support for any theory upon which the trial court's decision can be sustained. If the implied or actual finding is supported by the record, it must be sustained. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The record shows that the trial court took judicial notice of Appellant's CATS evaluation. (RR2:12). Appellant also agreed twice on the record that she needed drug treatment and testified that she did not want to go to SAFP, "because CPS already had said they were going to place [her] in [] rehab and was paying for it." (RR3:12-13). She subsequently repeated that because she had completed preliminary steps for inpatient treatment that she preferred to attend the Turtle Creek facility. (RR3:12-13). Appellant also submitted a letter to the Court (dated before the punishment hearing and file stamped afterwards) indicating that her "goal is to remain clean and sober and to apply [her] skills to find gainful employment again so that [she] may reunite with [her] daughter." (CR:44-45; see also RR3:13). 1 Viewing the circumstances of the offense and relying on the entire record, this Court may find that by ordering the Appellant to SAFP, the trial judge implicitly found that Appellant is a suitable candidate for treatment in SAFP. See Monse v. State, Nos CR and CR, 1999 Tex. App. LEX IS 6976 (Tex. App. - Houston [14th Dist.] Sept. 16, 1999, no pet.) (not designated for publication) (finding record facts to support implied findings that drug or alcohol abuse 1 Although Appellant indicates that there are 3 pages of her letter, two pages were ultimately scanned into the Clerk's Record. (CR:44-45). Furthermore, Appellant's behavior became more bizarre throughout the plea hearing and she ultimately refused to sign her plea papers. (See generally RR3:12-17). 8

14 significantly contributed to the commission of the offense and that defendant would be a good candidate for SAFP treatment where he was arrested on numerous occasions for public intoxication, he admitted to a long history of alcohol and drug abuse, an evaluation resulted in a recommendation for alcohol and substance abuse and counseling, the pre-sentence investigation report, which was before the judge at sentencing, also reflected a history of extensive drug use, and the offense to which the defendant pleaded guilty was for stealing beer). For all the forgoing reasons, Appellant's point should be overruled. PRAYER The State prays that this Honorable Court will affirm the judgment of the trial court. CRAIG WATKINS Criminal District Attorney Dallas County, Texas Assistant Di t Attor ey State Bar No Frank Crowley Courts B g 133 N. Riverfront Blvd., LB-19 Dallas, Texas (214) / fax I CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing brief was served on GEORGE R. CONKEY, attorney for Appellant, 4347 West Northwest Highway, Suite 120, #132, Dallas, Texas by United StateAmail at the foregoing address, and by at on o~~july

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