wayne-pope-and-laura-pope-v-john-kiella-homes-john-kiella-individually ( 2006 )

NO. 07-06-0146-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JULY 25, 2006

______________________________

WAYNE POPE AND LAURA POPE, APPELLANTS

v.

JOHN KIELLA HOMES, JOHN KIELLA, INDIVIDUALLY,

KAM HOME BUILDERS, KIELLA FAMILY, LTD., KIELLA

MANAGEMENT, L.C., AND THE CITY OF TEMPLE, APPELLEES

_________________________________

FROM THE 146^th DISTRICT COURT OF BELL COUNTY;

NO. 203,426-B; HON. RICK MORRIS, PRESIDING

_______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

ORDER OF SEVERANCE

Appellants Wayne Pope and Laura Pope filed their notice of appeal challenging the trial court's judgment in favor of appellees John Kiella Homes, John Kiella, individually, KAM Home Builders, KAM Family, Ltd., Kiella Management, L.C., and the City of Temple. Pending before this court is a Joint Motion to Dismiss Portion of Appeal filed by appellants and appellee the City of Temple in which they request us to "dismiss the portion of the appeal which appeals the judgment in favor of the City of Temple. The parties desire that the judgment in favor of the City of Temple become a final judgment." The moving parties represent this request does not affect the appeal against the other appellees.

Accordingly, we now sever the appeal between appellants and appellee the City of Temple into cause number 07-06-0289-CV for consideration of the motion to dismiss. The appeal between appellants and appellees John Kiella Homes, John Kiella, individually, KAM Home Builders, KAM Family, Ltd., and Kiella Management, L.C. remains pending in cause number 07-06-0146-CV and will proceed in due course.

It is so ordered.

Per Curiam

Appellant was ordered to complete an additional 400 hours of community service after his release from SAFPF in the tampering case.

On July 21, 2004, the State filed a Motion to Revoke Community Supervision in both the drug case and the tampering case. In its Motions, the State alleged the following violations of the terms of appellant's community supervision: (1) appellant failed to avoid controlled substances, specifically (a) on or about June 3, 2004, appellant tested positive for amphetamines, (b) on or about May 19, 2004, appellant used marijuana and amphetamines, (c) on or about May 20, 2004, appellant tested positive for marijuana and amphetamines, and (d) the defendant used amphetamines on May 14 and May 15, 2004; (2) appellant associated with a person with a criminal record on June 16, 2004; (3) appellant failed to pay his fine and court costs, and (4) in the drug case, appellant failed to complete his community service hours.

The trial court held a consolidated hearing on the Motions to Revoke on November 12, 2004, and appellant plead not true to the allegations in the State's Motions to Revoke. The trial court found appellant had violated the terms of his community supervision as alleged in paragraphs one, three and four in the drug case and one and three in the tampering case. In other words, the trial court found appellant had failed to avoid controlled substances, failed to pay fees and costs, and failed to complete his community service hours. The trial court revoked appellant's community supervision and sentenced appellant to two years confinement in the State Jail Division in each case.

Appellant raises the following two issues on appeal: (1) the trial court abused its discretion by finding that appellant used controlled substances and intentionally failed to make payments as required and (2) the term and condition of probation requiring appellant to perform community supervision was in violation of Texas Code of Criminal Procedure article 42.12, section 16(a)(3) and was, therefore, void.

In a proceeding to revoke probation, the burden of proof is on the State to show by a preponderance of the evidence that the probationer violated a condition of probation as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). Proof of any one of the alleged violations is enough to support an order to revoke. Moses v. State, 590 S.W.2d 223, 224 (Tex.Crim.App. 1979); Gobell v. State, 528 S.W.2d 583, 586 (Tex.Crim.App. 1975). The standard by which an order revoking probation is reviewed on appeal is abuse of discretion. Naquin v. State, 607 S.W.2d 583, 586 (Tex.Crim.App. 1980); Lloyd v. State, 574 S.W.2d 159, 160 (Tex.Crim.App. 1978).

When the standard of review is abuse of discretion, the record must simply contain some evidence to support the decision made by the trial court. Herald v. State, 67 S.W.3d 292, 293 (Tex.App.-Amarillo 2001, no pet.); Becker v. State, 33 S.W.3d 64, 66-7 (Tex.App.-El Paso 2000, no pet.); Brumbalow v. State, 933 S.W.2d 298, 300 (Tex.App.-Waco 1996, pet. ref'd). In determining the sufficiency of the evidence, we view the evidence in the light most favorable to the trial court's ruling. Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App. 1979).

When questioned by the State at the November 12, 2004 revocation hearing, appellant's community supervision officer, Marty Mejorado, testified as follows:

Q. Was the defendant ordered to avoid the use of-avoid injurious and vicious habits of any nature, including the use of alcohol, narcotics, controlled substances, harmful drugs, glue, paint, any other chemical which might cause intoxication?

• Yes, sir.

Q. Has the defendant avoided those as he was ordered to do?

A. No, sir.

Q. In what way has he failed to do that?

A. When I spoke to Mr. Ledbetter at an office visit on May 20^th of 2004, a routine office visit, I asked him if he had used any drugs or alcohol. He stated he hadn't. I went to get a urinalysis cup for testing, and at that time he advised me that he had used marijuana and methamphetamines.

Q. Did you test him for the presence of those substances?

A. Yes, sir.

Q. What were the results of that test?

[Objection by counsel sustained by trial court]

Q. The defendant did admit to the use of what?

A. Marijuana and methamphetamines.

Appellant argues this testimony is insufficient to support the trial court's findings "because no evidence regarding urinalysis was ever submitted to the trial court" and because "the State failed to introduce evidence showing that Appellant's drug use took place on or about the dates alleged, or even that the drug use took place during the probationary period." We disagree.

Mejorado's testimony that appellant's May 20, 2004 admission of drug use came on the heels of her retrieval of the urinalysis cup is some evidence that the drug use to which he admitted was sufficiently recent to have been revealed by urinalysis and, therefore, would have fallen within the period of community supervision. ⁽²⁾ Herald, 67 S.W.3d at 293; Becker, 33 S.W.3d at 66-7; Brumbalow, 933 S.W.2d at 300. Viewing the evidence in the light most favorable to the trial court's order, we find the testimony of the community supervision officer sufficiently established appellant violated one of the terms of his community supervision. Jones, 589 S.W.2d at 421. Because the State is required to prove only one ground to prevail on its Motions to Revoke, we need not address appellant's issues regarding the other alleged violations. Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App. 1980). We hold the trial court did not abuse its discretion by revoking appellant's community supervision and affirm the judgment of the trial court. Naquin, 607 S.W.2d at 586.

James T. Campbell

Justice

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