Ricci Darrell Love Jr. A/K/A Ricci Darrell Love v. State ( 2016 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
RICCI DARRELL LOVE, JR., No. 08-13-00128-CR
AKA: RICCI DARRELL LOVE, §
Appeal from the
Appellant, §
372nd District Court
V. §
of Tarrant County, Texas
THE STATE OF TEXAS, §
(TC# 1285361D)
Appellee.
O P I N I O N1
Appellant, Ricci Darrell Love, Jr., appeals the trial court’s judgment adjudicating him
guilty of aggravated assault with a deadly weapon, to-wit: a firearm, and sentencing him to fifteen
years’ confinement. In two issues, Appellant argues the trial court abused its discretion in
revoking his community supervision for violating conditions by finding he committed three new
offenses: (1) robbery; (2) aggravated robbery; and (3) burglary of a habitation, based on legally
insufficient evidence. Appellant urges the evidence is insufficient because: (1) the only two
eyewitnesses were not credible; and (2) the lack of any evidence corroborating the unreliable
eyewitnesses’ testimony. We affirm.
FACTUAL HISTORY AND PROCEDURAL BACKGROUND
Appellant pled guilty and was placed on five years deferred adjudication on June 27, 2012
1
This case was transferred to this Court from the Second Court of Appeals pursuant to an order issued by the Supreme
Court of Texas. See TEX.GOV’T CODE ANN. § 73.001 (West 2013).
for aggravated assault with a deadly weapon, to-wit: a firearm. Two of the conditions of
Appellant’s probation were that he commit “no offense against the laws of this State” and “[d]o not
possess, transport . . . any firearms . . . .”
On December 5, 2012, the State filed a “Petition to Proceed to Adjudication” alleging six
violations. Prior to the revocation hearing, the State waived two of the violation allegations,
leaving four to be heard by the trial court. The pertinent four violations alleged that Appellant in
Tarrant County and the State of Texas on November 15, 2012: (paragraph 1) committed robbery
by threatening or placing Phillip Sadler in fear of imminent bodily injury or death and Appellant
used or exhibited a deadly weapon, to-wit: a firearm; (paragraph 2) committed theft by
threatening or placing Carl Fleetwood in fear of imminent bodily injury or death and Appellant
used or exhibited a deadly weapon, to-wit: a firearm; (paragraph 3) committed burglary of a
habitation without consent of Phillip Sadler with intent to commit aggravated robbery with a
deadly weapon; and (paragraph 4) possessed a firearm. The robbery victims and the two
eyewitnesses, Phillip Sadler and Carl Fleetwood, testified at the hearing. Appellant entered a plea
of not true to the four violations.
Sadler’s Testimony
On November 15, 2012, sometime in the early afternoon, Sadler was in his room at the
Relax Inn in Fort Worth with his step-father, Fleetwood. Sadler had cracked opened the door for
some fresh air, lying on his bed, playing on his PlayStation, when Appellant and an accomplice
burst into the room. Sadler identified Appellant as a person he knew as “Slim,” however, he was
unacquainted with Appellant’s accomplice. According to Sadler, Appellant jumped on top of him
and put a chrome pistol to his head. Appellant began making demands for money and told Sadler
2
“just give it up, just give whatever you have up.” When Sadler responded that he did not have
anything, Appellant pressed the pistol up against Sadler’s left temple area. Sadler finally told
Appellant that there was a safe under the bed and stated “if [you] wants it, [you] can have it.”
Sadler testified he was in fear of being seriously hurt or killed. Sadler observed Appellant was
wearing a plaid red and black jacket. As soon as Sadler informed the duo that the safe was
underneath his bed, Appellant instructed his accomplice to grab it. In addition to making off with
the safe, Appellant grabbed Sadler’s cell phone while his accomplice took Fleetwood’s cell phone
as they ran out of the motel room.
Next, Sadler saw a two-door, gray-colored Mustang with tinted windows leave the motel
parking lot within seconds after Appellant left the room. Sadler stated that in his prior contact
with Appellant, he knew that Appellant was associated with a gray Mustang, very similar to the
one he saw driving out of the motel’s parking lot. Sadler stated there was less than one hundred
dollars in the safe. Sadler called 9-1-1, and the police were able to locate the Appellant within the
hour. Sadler later identified Appellant as one of the individuals that robbed him that day. Sadler
also testified that Appellant was still wearing the same clothes from the time of robbery to when
Sadler later identified him for the Fort Worth police.
Upon cross-examination, Sadler acknowledged that he has known Appellant for years, as
they had been neighbors in the same complex. Further, Sadler testified he had been convicted of
a felony, possession of crack cocaine, in Florida in 2002. Sadler admitted he has smoked
marijuana in the past, however he has never sold marijuana nor purchased it in large quantities.
At this point in the hearing, the prosecutors disclosed to the Court that Sadler had indicated
to them in a pretrial meeting that Sadler “does use marijuana, that he has bought marijuana in large
3
quantities prior to this date and that he has specifically bought marijuana from this defendant,
Slim.” The prosecutors informed the Court that they had instructed Sadler not to volunteer any of
that information or talk about it. The prosecutors also confirmed that Sadler had confirmed those
facts to police. The trial judge declined to admonish Sadler, but advised the prosecutor to ask the
appropriate questions to show whether Sadler was confused about the State’s instructions. The
trial judge stated he would “decide whether he’s [Sadler] confused or mistaken or scared or lying
or any of the other options that are available with inconsistent answers, balancing against the entire
record and testimony.” When Sadler was questioned as to whether he purchased marijuana in
large quantities, he answered “No majorly large quantities to where somebody would want to
come and try to take something, no.” Sadler denied purchasing large quantities of marijuana and
could not recall telling the prosecutor that he had done so. Eventually, Sadler clarified that he
considered two to five ounces a large quantity to him. Sadler reiterated that he had smoked
marijuana in the past and purchased marijuana but not in quantities that he considered large.
Fleetwood’s Testimony
Fleetwood confirmed he was in the motel room with Sadler, his step-son. Fleetwood
observed a gray Mustang creep through the motel parking lot slowly two times. Soon after that,
according to Fleetwood, Appellant “bolted through the door.” Appellant was positively
identified by Fleetwood as the individual who entered the motel room that day. Fleetwood
recalled that Appellant was wearing a red and black checkered jacket or overshirt and holding a
gun in his hand. Fleetwood explained that once Appellant was inside the room, he pushed Sadler
down on the bed and put the gun up against his head, on the left side. Fleetwood stated that
Appellant kept asking “where is it at” and Sadler replying “it’s under the bed[.]” Appellant told
4
Sadler “If it’s not, I am going to shoot.” Fleetwood was on the phone as Appellant and his
accomplice entered the motel room. The accomplice was also holding a weapon. When
Appellant noticed Fleetwood sitting in the room, he told his accomplice, “what is he doing on the
phone, he’s probably calling the police.” Appellant then directed his accomplice “If he moves,
shoot him.” The accomplice then took Fleetwood’s phone. Appellant told the accomplice to get
the safe from underneath the motel bed. Sadler’s cell phone was also taken. Appellant told his
accomplice to “check it out[.]” The accomplice opened the safe and then replied “it’s here, it’s
here.” As Appellant and his accomplice are leaving the room they tell the victims, if either one of
them moved “we’re going to start shooting.”
Fleetwood opened the motel door about fifteen to twenty seconds after Appellant leaves
and saw them go down the breezeway toward the back of the motel. Then he observed the same
gray Mustang from earlier go by in the parking lot, only faster than it did earlier. Fleetwood said
he and Sadler both recognized who was in the gray Mustang. Fleetwood admitted he had been
involved in thefts in 1990, 1993, 2000; burglary of a vehicle in 2002; and a theft under $150 in
2002. Fleetwood conceded that he knew there was marijuana in the safe. Fleetwood also
acknowledged that Sadler had been convicted of a cocaine offense in the past and that Sadler has
been known to sell marijuana, and that people would drop by for short periods of time to the motel
room. Fleetwood testified that he was sixty-three years’ old, born in 1950, had served
twenty-three years in the Marines and fifty-four months in Vietnam. Fleetwood testified he
served in Vietnam from 1963 to 1965 and then 1969 until 1972.
Corroborating Evidence
Sergeant Halfmann testified he was on patrol the day of the robbery. He observed a
5
two-door gray Mustang driving about one to two miles from the Relax Inn, minutes after the call
went out regarding the robbery which referenced a gray Mustang. Sergeant Halfmann followed
the gray Mustang until it voluntarily came to a stop and three individuals exited. He called to
them, “come here a minute” and one took off running down the street, one moved to the driver’s
side door and one stood still. Sergeant Halfmann detained the one individual who did not flee.
The gray Mustang then took off. Sergeant Halfmann could not identify the two individuals who
fled, one by foot and one in the gray Mustang.
Lieutenant Stockton, who was following Halfmann in another vehicle, also observed the
gray Mustang. Stockton saw two individuals run from where the gray Mustang had pulled over,
so he followed them in his vehicle. After about two blocks, Stockton eventually left his vehicle
and pursued one of the individuals on foot. He lost that subject, returned to his vehicle and began
driving in the area. While driving, Stockton observed a tall, slender black male wearing a “black
and red checkered shirt, or jacket . . .” walking down the street. Stockton did not stop or detain
this individual because he did not have any information pertaining to an individual of that
description. However, after being shown State’s Exhibit #1, Stockton identified the individual in
the photograph as the same individual he saw that day. State’s Exhibit #1 is a photograph of
Appellant wearing a checkered red and black plaid shirt. Stockton testified he saw Appellant
walking about fifty yards from a residence in which a gray Mustang, still running, was abandoned
and thirty yards from a backyard where the safe was found.
Officer Edward Martinez arrested Appellant and made a positive identification of him in
the courtroom and identified State’s Exhibit #1 as a photograph of Appellant. Martinez had
received a description from dispatch to look for a tall black male. Martinez made contact with
6
Appellant to obtain some basic information, but let Appellant go when Stockton told him that
Appellant was not the person they were looking for. Soon after, Martinez received an update to
look for a “very tall black male, wearing some type of checkered red jacket[.]” Martinez returned
to search for Appellant and was informed that he was last seen leaving in a van. Martinez found
the van and started following it. The vehicle stopped at a store parking lot and Officer Martinez
approached the van and asked Appellant to step outside the van. Martinez detains Appellant.
The van had stopped less than a quarter mile from the Relax Inn. Martinez responded to the
location where he found the Mustang abandoned in a yard, still running, with the tires blown out.
Detective James Desmarais was the robbery detective assigned to Appellant’s case.
Desmarais identified State’s Exhibit #1 as accurately depicting Appellant on the day of the
robbery. Desmarais spoke with Sadler for a description of the individual involved in the robbery.
Desmarais testified that the individual depicted in the photograph fit the description that Sadler
had given him. Sadler told Det. Desmarais he knew Appellant as “Slim[.]” Desmarais
transported Sadler to the parking lot Appellant was being held. As they approached the parking
lot where Appellant was standing outside, Desmarais said Sadler “immediately started getting
excited and saying, ‘That’s Slim. That’s him right there.’” Sadler positively identified Appellant
as one of the individuals who robbed him that day. Desmarais also noted that the recovered
Mustang matched the vehicle description given by Sadler and Fleetwood.
Desmarais also received a DVD from the Relax Inn of video taken from the premises on
the day of the robbery. The trial judge after reviewing the DVD, stated:
I observed two different camera views. One from an angle showing the parking
lot, showing a gray, silver-greenish Mustang enter and leave the parking lot.
And a different angle showed a row of rooms, which the detective pointed out,
fourth [door] from the left on the bottom. And I observed individuals come from
7
around the corner, rush into the room and out of the room in a span of about 40 to
45 seconds from entry to exit. And then other people later come out of the room,
walk out, look, go in and out of the room a couple of times.
The trial judge also stated that the figures on the DVD were about half inch or less, but
there was “no way you could make a facial identification based” on the video. However, the court
did observe “red and black shirts” on the DVD recording.
Desmarais testified that the abandoned Mustang vehicle was impounded pending a search
warrant. Desmarais also told the trial court that the Mustang in the DVD matched the impounded
vehicle. A search of the vehicle revealed a simulated gun, State’s Exhibit 4, a semi-automatic
45-caliber pistol, State’s Exhibit 5, and two cell phones. The 45-caliber pistol had live rounds
that were removed from the pistol chamber when the weapon was found. A third cell phone was
recovered on Appellant’s person at the time of his arrest.
On cross-examination, Desmarais testified that the faces in the DVD cannot be clearly
seen, however, he believed the tall black male was Appellant. Desmarais stated that Sadler had
admitted he was using marijuana that day, he buys marijuana in large quantities and that he knew
Appellant “through drug dealing[.]”
Appellant’s theory of the case was the night before the robbery, Sadler and he were at
Appellant’s house when Sadler took Appellant’s cell phone, money and marijuana. Further,
Sadler and Appellant knew each other from shooting dice, they had a mutual interest in buying and
selling marijuana, and they had been shooting craps the morning of the robbery. According to
defense counsel, the marijuana in the safe belonged to Appellant, not Sadler, but Sadler’s gun was
in the safe. Defense counsel, through her questioning, posited the gun that was involved belonged
to Sadler, not Appellant. However, no evidence was introduced to support any of Appellant’s
8
assertions.
The trial court after closing weighed the evidence in this fashion:
I have re-reviewed the video. I’ve looked at State’s 1. And I’ve looked at
the -- compared the appearance of the appearance in State’s 1 with the
miniaturized, if you will, people depicted on the face of the surveillance video,
particularly the clothing, particularly the shirts, particularly heights, and locations
relative to door frames. And in all fairness to the Defense position and the
strategies, the argument being made, its mostly, I’m sorry to these people who were
robbed, my client was at Walt Disney World with his friends or watching the ball
game, as opposed to they weren’t robbed. These people are lying about this. This
is a debt dispute or a persona complaint that a robbery allegation is made, for
whatever reason, motive not clear but implied due to gambling debts or other
things, that there is no evidence of, there are just questions asked and answered no.
But to totally be fair to the Defense’s position, using innuendo based upon the
inconsistencies in some of the evidence and statements, particularly the, quite
frankly, unimpressive attitude [to] the Court of the primary, first-named injured
party had even responding to simple request to please quit talking over people and
the eyes rolling independent of the -- not knowing anything about marijuana until
it’s thrown in their face and admitting it.
And there are two clear common sense implications why of the Defendant
[sic] wouldn’t want to talk about the marijuana and one is that it’s not theirs, the
Defendant was doing a repo, and the other is I don’t want to sit here and tell
someone in a black robe in a court and confess to being a drug dealer and end up
with a charge after you are a victim of a robbery and now get charged as a drug
dealer. There’s no immunity, there is no other issues. Quite frankly, if he was a
drug dealer, maybe he needed to talk to a lawyer independently before he testified.
If what his father says is true, maybe in hindsight him already being off the stand
saying no to all those questions, other than possession, which I understand statutes
and limitations and absence of evidence means there’s probably no case, or at least
in a state court.
. . .
On the other hand, his descriptions of Marine Corps issues and description
of weapons is totally consistent with an ex-Marine. . . . [Q]uite frankly, a
description, as I expect from a trained Marine, of a dull gray in color
semi-automatic weapon is a perfect description of what I believe is a training pistol,
not a toy. It’s heavy metal, it’s made to shoot. I believe this weapon that’s
State’s Exhibit 4 is something like you used to train officers, so someone doesn’t
have a real weapon when you’re training people how to react or how to disarm
assailants where someone can’t accidently get shot at or as a slip it through the
airport TSA-type, same weight, same dimensions, same X-ray characteristics. I
9
don’t believe that’s a toy. I believe it’s something that’s designed for training to
look, to mimic a regular weapon. It doesn’t matter that’s not a firearm. That’s
not in dispute. But the description of the father fits it like a glove. The
description of -- if I’m to trust that description of the other person having a black
handgun, a revolver, not an oversized piece of crap, cheap manufactured .45,
loaded or not, I believe if I can trust the -- must trust the description of a dull silver
semi-automatic in the hands of the person who had his son on the bed with a gun at
their head, I cannot trust that description without trusting a black revolver from a
person then I’m asked to trust knows the difference between gun A and gun B.
So gun [State’s Exhibit] five, I do not believe there’s evidence supporting
its use, based on its size and based on its description, which does not mean that the
second suspect did not possess a black revolver that just happened not to be in the
car or recovered, any more than the second suspect, who’s never been recovered or
identified.
. . .
[A]ll types of other things, including a safe and a person in a checkered shirt in the
vicinity.
There’s all kinds of evidence of being phones recovered, but no evidence
any phone was identified by anyone coming from this specific robbery. No one
was shown a phone, independent of the scientific evidence. But having said all
those things, the video shows a person in a black and white checked-type plaid shirt
come around the corner from the area of a vehicle, meeting the description of the
complainants, not walking up to a room in a jovial fashion, but it looked like a
SWAT team raid because of the way they paused and sprung in the room, in and out
in seconds. And you don’t have to be in a hurry to run in and run out, to get back
the marijuana that’s rightfully yours, or collect a gambling debt. You don’t have
to run in and out. And you certainly don’t have to run when a police officer says,
hey, I need to talk to you, you don’t need to run and split, whether there are other
reasonable inferences, other than we just finished a rip-off or we just hit a lick.
Maybe there are inferences that, oops, I’m on probation and hanging around people
with guns and dope or other things and I don’t want to get caught. And I can see
that.
But in the context of the mechanical and the methodical way that the room
was hit on the video, the flight afterwards and within minutes fleeing the officers,
the silver weapon in the floorboard of the vehicle that matches the description and
unrelated weapon in the vehicle, three people fleeing, two people saying they were
threatened with violence, and in all fairness, the last time I looked, after I fell off
my turnip truck in my last 30 years, I have just seen scores and scores of robbery
that ‘give me that’ can mean the dope or the money or both or the jewelry or
whatever is traded for the dope. ‘That’ means what you have. ‘That’ can mean
the safe. But people rip people off every day. And even your own argument,
which I respect, is there were guns to protect the dope from what robbers who’d
10
want to take the dope. And usually I don’t see people pulling armed robberies to
steal ‘not that much’ marijuana. And for the same reason usually you don’t see
people armed selling weed because the consequences of an incredibly serious state
or federal charge for having a gun over a little weed is not worth the risk. You let
them take the weed. And people are generally not shooting up small-time
marijuana deal operations, as opposed to major drug houses where people are afraid
of rival gangs and groups coming in and killing them and taking their property or
their stash, but anything is possible.
So when all is said and done, balancing all the evidence, questioning and
challenging and having concerns about the credibility of the testimony of Phillip
Sadler, including, but not limited to, his inconsistent statements, questioning and
balancing the testimony of Carl Fleetwood, having the fortuitous benefit of a video
of a crime scene showing the before and after and the review of evidence in the
vicinity of the vehicle that the Defendant is not physical evidence tied to but
circumstantially tied to through all the totality of the evidence.
. . .
And I’m telling you what the son said here today, I didn’t see, I didn’t
know, yes, to the cops, no, I don’t know, but I have no doubt of what happened to
Carl, whether Phillip claims to have been aware of it or concerned about his father’s
life or his safety on the stand, Carl didn’t mince words. And I found him to be a
challenge, but credible witness.
Phillip, I found credible enough, in balancing his testimony with all the
evidence, to find the lesser.
. . .
And as to Four, there’s no doubt in my mind that the weapon possessed by
the Defendant is the practice or simulated firearm. The grounds on the petition
says do not possess, transport or purchase -- transport would be an issue, but the
allegation just says possess, it doesn’t say transport. I don’t think the black gun in
the car -- I’m not satisfied at all trusting the Marine being a revolver and clearly
knowing the difference in instruction, I don’t think the black gun in the car might
have been involved, but it wouldn’t surprise me if the driver of the car had a black
gun, the third missing person. But I don’t think the law of parties -- I’m not clear
the law of parties applies to probation violations on possessing. If it does, you’re
clearly -- Paragraph Four is absolutely true based on the actions of what the
co-defendant does as regards to the father.
But as a precaution I’ll err on the side of caution and I’ll find not true the
possession of firearm [paragraph 4]. Because I’m looking at that from a pleading
of what did he exercise immediate care, custody and control over. And if I’m
wrong on this, it should be true if you’re responsible as a party of the other person’s
actions. But I’m just not totally clear that’s the law as to specific -- versus that law
11
violations, which you look to the Penal Code to determine whether law of parties
applies, as opposed to Code of Criminal Procedure rules for the actions of another.
And I’m bending over backwards to be fair about that. And if I’m wrong, it
doesn’t matter. I clearly think you participated in three felonies and it’s moot.
It’s not an issue.
But I’ll err on the side of no clear -- I’m not aware of clear caselaw that says
the law of parties that applies to a technical probation violation.
. . .
So by a preponderance of the evidence, I found you guilty of robbery as a
lesser of the allegation in One, and Paragraphs Two and Three, as charged and as a
party to the actions of the unidentified shorter person with the black revolver.
Discussion
On appeal, Appellant complains that the evidence is legally insufficient to support a
finding of true that he committed three new offenses: (1) robbery; (2) aggravated robbery; and (3)
burglary of a habitation, based on Sadler’s and Fleetwood’s testimony. Appellant asserts the two
witnesses’ dearth of credibility renders the evidence legally insufficient when coupled with the
lack of “significant corroboration[.]”
The State responds that Sadler’s and Fleetwood’s testimony is legally sufficient to uphold
the trial court’s finding of true to the three offenses and the adjudication of Appellant’s guilt.
Second, the State asserts the robbery victims’ testimony is not required to be corroborated.
Standard of Review
We review the trial court’s decision to revoke community supervision for an abuse of
discretion, taking into account the sufficiency of the evidence supporting the basis for revocation.
Hacker v. State, 389 S.W.3d 860, 865 (Tex.Crim.App. 2013); Rickels v. State, 202 S.W.3d 759,
763 (Tex.Crim.App. 2006). Abuse of discretion occurs “only when the trial judge’s decision was
so clearly wrong as to lie outside that zone within which reasonable persons might disagree.”
12
Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992). Probation may not be revoked upon
a finding of any violation of any probationary condition other than that alleged in the motion to
revoke or necessarily included within the allegations contained in the motion. Caddell v. State,
605 S.W.2d 275, 277 (Tex.Crim.App. 1980); Pickett v. State, 542 S.W.2d 868, 870
(Tex.Crim.App. 1976).
“The burden of proof at a probation revocation hearing is by a preponderance of the
evidence.” Cobb v. State, 851 S.W.2d 851, 874 (Tex.Crim.App. 1993); see Hacker, 389 S.W.3d
at 864–65; Little v. State, 376 S.W.3d 217, 219 (Tex.App.--Fort Worth 2012, pet. ref’d). “In the
probation-revocation context, ‘a preponderance of the evidence’ means ‘that greater weight of the
credible evidence which would create a reasonable belief that the defendant has violated a
condition of his probation.’” Hacker, 389 S.W.3d at 865 (quoting Rickels, 202 S.W.3d at 764).
A revocation hearing is not a criminal prosecution and the degree of proof required to
establish the truth of the allegation in a motion to revoke community supervision is not the same.
Hacker, 389 S.W.3d at 864–65; Black v. State, 411 S.W.3d 25, 30 (Tex.App.--Houston [14th Dist.]
2013, no pet.); see also Canseco v. State, 199 S.W.3d 437, 438 (Tex.App.--Houston [1st Dist.]
2006, pet. ref’d). A defendant may be acquitted of a criminal offense and still have his
community supervision revoked based on the same act because the standard of proof in a
revocation proceeding is proof by a preponderance of the evidence, rather than beyond a
reasonable doubt, as in a criminal trial. See Polk v. State, 729 S.W.2d 749, 750 n.1
(Tex.Crim.App. 1987)(“[A]n acquittal in a criminal prosecution will not necessarily mandate a
finding of ‘not true’ to a motion to revoke alleging commission of the identical offense, since the
standard of proof in a revocation proceeding is proof by a preponderance, rather than beyond a
13
reasonable doubt, as in a criminal trial.”); Black, 411 S.W.3d at 30 (defendant’s acquittal of
possession of marijuana charge following revocation of community supervision based on same
act, without more, did not establish that revocation was an abuse of discretion); see also Ex parte
Lane, 806 S.W.2d 336, 339 (Tex.App.--Fort Worth 1991, no pet.)(“[A]n acquittal of a charged
offense would not bar a subsequent revocation of probation based on the same allegation.”).
In a community supervision revocation proceeding, the trial court is the trier of fact and the
sole judge of the credibility of the witnesses and the weight to be given their testimony. Hacker,
389 S.W.3d at 865. We review the evidence in the light most favorable to the court’s ruling.
Cherry v. State, 215 S.W.3d 917, 919 (Tex.App.--Fort Worth 2007, pet. ref’d). If the State fails to
meet its burden of proof, the trial court abuses its discretion by revoking the community
supervision. Id. at 919, (citing Cardona v. State, 665 S.W.2d 492, 493–94 (Tex.Crim.App.
1984)). Proof by a preponderance of the evidence of any one of the alleged violations of the
conditions of community supervision is sufficient to support a revocation order. Moore v. State,
605 S.W.2d 924, 926 (Tex.Crim.App. 1980); Sanchez v. State, 603 S.W.2d 869, 871
(Tex.Crim.App. 1980).
ANALYSIS
The evidence plainly shows the two eyewitnesses positively identify Appellant as one of
the individuals that entered the motel room that day. Sadler and Fleetwood told police they were
robbed of a safe and their phones. The video shows two black males, one tall, wearing a black
checkered shirt, and another shorter individual, creeping with their backs flat to the motel wall
toward a motel room door, then bursting into the room and forty-one seconds later running out to a
Mustang that speeds off. The video corroborates the eye witnesses’ testimony they were robbed.
14
The Mustang in the video is later identified as the same Mustang found abandoned. The
safe and the abandoned Mustang, engine still running, were found not far from the Relax Inn.
Likewise, Appellant was found to be walking thirty to fifty yards from the abandoned Mustang and
safe, wearing the red and black checkered jacket matching Sadler’s description. Once Appellant
was detained, Sadler positively identified him. Not only does the evidence show the proximity in
distance but also in time, Appellant was found and detained within an hour of the 9-1-1 call. The
search of the Mustang reveals two cell phones and two weapons.
The trial judge carefully, cautiously weighed the evidence and credibility of the witnesses,
taking into account Appellant’s position that he was recovering his stolen marijuana. The trial
court’s pronouncements clearly analyze the supporting evidence that the judge found persuasive.
We cannot say that the trial court abused his discretion in finding by a preponderance of the
evidence that Appellant violated his probation.
CONCLUSION
We find no reversible error in the case. The judgment is affirmed.
October 19, 2016
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
15