Kirk DeWayne McClain v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00058-CR

KIRK DEWAYNE MCCLAIN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 100th District Court
Childress County, Texas
Trial Court No. 6736, Honorable Dale A. Rabe, Presiding

September 30, 2024
MEMORANDUM OPINION
Before QUINN, C.J. and PARKER and DOSS, JJ.

Kirk Dewayne McClain appeals from the trial court’s order revoking his deferred

adjudication, adjudicating him guilty of the offense of aggravated assault of a child,

sentencing him to 80 years in prison, and assessing a fine of $500. Two issues pend for

review. We overrule each, modify the judgment, and affirm the judgment as modified.
Issue Two

We begin our analysis with issue two. Through it, appellant contends that the State

failed to prove he violated a term or condition of his community supervision. We overrule

the issue.

An appeal from a court’s order adjudicating guilt is reviewed in the same manner

as a revocation hearing. See TEX. CODE CRIM. PROC. ANN. art. 42A.108(b). The sole

question is whether the trial court abused its discretion. Hacker v. State, 389 S.W.3d 860,

865 (Tex. Crim. App. 2013). It does if the State fails to establish by a preponderance of

the evidence that the defendant violated a condition or term of his community supervision.

Jones v. State, 07-13-00430-CR, 2014 Tex. App. LEXIS 5694, at *3 (Tex. App.—Amarillo

May 28, 2014, no pet.) (mem. op., not designated for publication) (discussing the State’s

burden of proof). Finally, proving any one purported violation alleged in the State’s motion

to adjudicate guilt permits revocation of community supervision and adjudication of guilt.

Id.; accord, Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012).

Through condition 33 of his community supervision, appellant was barred from,

among other things, “going online or having access to the World Wide Web, internet or

social media.” So too was he required to “immediately delete all social media accounts.”

Yet, evidence of record illustrates that he did not do the latter. It appears in the form of

appellant’s admitting to having at least one registered Facebook account. The admission

was made to a detective charged with monitoring “sex offender registration and

compliance.” And, they constitute the requisite level of evidence proving a violation of

condition 33. Simply put, the State proved appellant failed to delete all his social media

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accounts as ordered. Thus, the trial court did not err in revoking appellant’s probation

and adjudicating his guilt.

Issue One

By his first issue, appellant argues the trial court abused its discretion when it

admitted Facebook messages through the testimony of the victim, his daughter, without

a proper showing of authenticity. The messages came from a Facebook account

registered to “Amy Wood.” We overrule the issue.

Assuming arguendo error occurred, it was harmless. This is so because the “Amy

Wood” account differed from the Facebook accounts registered to appellant and

discussed in Issue Two. Again, he acknowledged that the latter were his. And, proof of

owning them supported the decision to revoke probation irrespective of whether he also

utilized the “Amy Wood” account for any purpose. Thus, admitting evidence of the “Amy

Wood” account did not affect appellant’s substantive rights and, therefore, cause harm.

See TEX. R. APP. P. 44.2(b) (requiring errors of non-constitutional magnitude to affect

substantial rights before a conviction may be reversed); Miller v. State, No. 07-10-0511-

CR, 2011 Tex. App. LEXIS 9247, at *5-6 (Tex. App.—Amarillo Nov. 22, 2011, no pet.)

(mem. op., not designated for publication) (involving an appeal from a judgment

adjudicating guilt and stating that “even if [appellant] had preserved the matter, we would

consider the supposed error harmless, given his admission that he failed to report his

arrest within 48 hours. That [alone] was enough to warrant the trial court’s decision, and

it did not involve the legitimacy of the stop for which the video could be relevant”).

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Modify Judgment

A fine and court costs were assessed in the judgment adjudicating appellant’s guilt

and manifesting his sentence. Yet, neither were orally pronounced in open court.

Appellant argues the judgment should be modified to delete them for that reason. The

State agrees as to the fine but not the costs. We sustain appellant’s complaint regarding

the fine but overrule it as to costs.

Fines and restitution are part of a convicted defendant’s punishment. Weir v.

State, 278 S.W.3d 364, 366 (Tex. Crim. App. 2009). Furthermore, punishment must be

pronounced orally at time of sentencing. Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim.

App. 2004). Because the trial court did not orally pronounce imposition of a fine when

sentencing appellant after adjudicating guilt, inclusion of same in the judgment constituted

error. And, again, the State conceded as much.

The same is not true of the court costs, however. Mandatory court costs do “not

have to be included in the oral pronouncement of sentence . . . as a precondition to their

inclusion in the trial court’s written judgment.” Weir, 278 S.W.3d at 367. Therefore, the

trial court did not err by imposing mandatory court costs in the written judgment without

pronouncing them at sentencing.

We modify the judgment to redact the assessment of the $500 fine on appellant

and affirm the judgment as modified.

Brian Quinn
Chief Justice

Do not publish.

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