Kenneth Ray-Beck Clifford v. State
07-16-00260-CR
| Tex. App. | Nov 9, 2016Background
- Appellant Kenneth Ray-Beck Clifford was convicted in Oct. 2015 (plea bargain) of possession of <1g methamphetamine and placed on 3 years community supervision; original sentence two years in state jail suspended and $750 fine assessed.
- In Feb. 2016 the State moved to revoke community supervision, alleging six violations including: new controlled-substance offense (possession), failure to avoid injurious/vicious habits, and failures to pay fines, restitution, supervision fees, and a Crime Stoppers fee.
- Officers arrested Clifford at a Walmart after loss-prevention identified him; officers found a small pink baggie with crushed crystal-like substance (0.3 g), an orange straw with residue, a used hypodermic needle with residue, and a pharmacy bag containing ten new needles.
- A field test administered by an officer was positive for methamphetamine; the officer on cross‑examination stated DPS crime-lab results also confirmed methamphetamine, but the lab report was not produced at the hearing.
- The State’s witnesses at the revocation hearing were the arresting officer (testified about the field test and his belief) and Clifford’s community‑supervision officer (testified he was delinquent on fees and restitution); Clifford did not object at trial to the officer’s testimony about the field test or the lab result statements.
- The trial court revoked supervision and imposed the original sentence; on appeal Clifford raised four issues (challenging sufficiency of evidence re: possession and methamphetamine confirmation, sufficiency re: injurious/vicious habits, and willfulness of nonpayment). The court affirmed based on the possession finding supported by unobjected-to testimony.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Clifford) | Held |
|---|---|---|---|
| 1. Whether a presumptive field test alone suffices to prove possession of a controlled substance at a revocation hearing | Field test and officer testimony (including cross‑statement that lab confirmed meth) constitute sufficient evidence by a preponderance when unobjected to | Field test is insufficient without certified lab report or expert confirmation | Court held evidence (field test + officer testimony) was sufficient; revocation affirmed |
| 2. Whether possession of methamphetamine requires DPS lab report/ certified analysis | Unobjected-to hearsay about lab confirmation and field test have probative value under current rules | Without the lab report or expert, State failed to prove substance was methamphetamine | Court rejected as distinct issue because unobjected-to statements carried probative weight; relied on that evidence to affirm |
| 3. Whether the arrest for possession demonstrates failure to avoid injurious and vicious habits | Arrest and associated drug paraphernalia indicate continued drug involvement, supporting the condition violation | Arrest alone does not conclusively prove injurious/vicious habits | Court did not need to resolve this; one sufficient ground (possession) supports revocation |
| 4. Whether nonpayment of fines/fees was willful given appellant was in custody | Records showed delinquency in probation fees, restitution, Crime Stoppers fee; State alleged willful nonpayment | Clifford argued inability to pay while in custody negates willfulness for nonpayment | Court did not resolve willfulness; again possession ground alone upheld revocation |
Key Cases Cited
- Hacker v. State, 389 S.W.3d 860 (Tex. Crim. App. 2013) (standard of review for revocation is abuse of discretion)
- Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006) (preponderance standard in revocation proceedings)
- Cobb v. State, 851 S.W.2d 871 (Tex. Crim. App. 1993) (State must prove violation by preponderance)
- Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009) (one sufficient ground supports revocation)
- Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984) (trial court abuses discretion if State fails as to every alleged ground)
- Jones v. State, 589 S.W.2d 419 (Tex. Crim. App. 1979) (view evidence in the light most favorable to revocation)
- Curtis v. State, 548 S.W.2d 57 (Tex. Crim. App. 1977) (field tests and unobjected-to hearsay discussed historically regarding probative value)
- Willis v. State, 2 S.W.3d 397 (Tex. App.—Austin 1999) (inadmissible hearsay admitted without objection may have probative value in revocation hearing)