Degetreion Latrell Scott v. State ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Degetreion Latrell Scott

Appellant

Vs.                   No. 11-01-00276-CR B Appeal from Dallas County

State of Texas

Appellee

This is an appeal from a judgment revoking appellant=s community supervision.  Appellant was originally indicted for the capital murder of Arnold Gaston.  The jury convicted appellant of the lesser included offense of murder, assessed his punishment at confinement for 10 years, found that appellant exhibited or used a deadly weapon, and recommended that the imposition of the sentence be suspended. The trial court suspended the sentence and placed appellant on community supervision for 10 years.  After a hearing on the State=s motion to revoke, the trial court found that appellant had violated the terms and conditions of his community supervision, revoked his community supervision, and imposed the original sentence of confinement for 10 years.  We modify and affirm.

Appellant=s court-appointed counsel has filed a brief in which he states that,  after a diligent review of the record and applicable law, he has concluded that the appeal is frivolous and without merit. Counsel has furnished appellant with a copy of the brief and has advised appellant of his right to review the record and file a pro se brief.  Counsel has complied with the procedures outlined in Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969).

Appellant has filed a pro se brief raising four points of error.  In his first three points, appellant contends that the evidence was insufficient to support the trial court=s findings that he violated the terms and conditions of his community supervision by using cocaine, by failing to report as directed, and by failing to pay fees as directed. 

In a community supervision revocation hearing, the State has the burden of proving by a preponderance of the evidence that a condition of community supervision has been violated. Jenkins v. State, 740 S.W.2d 435 (Tex.Cr.App.1983).  Proof of one violation of the terms and conditions of community supervision is sufficient to support the revocation.  McDonald v. State, 608 S.W.2d 192 (Tex.Cr.App.1980); Taylor v. State, 604 S.W.2d 175 (Tex.Cr.App.1980); Moses v. State, 590 S.W.2d 469 (Tex.Cr.App.1979).  The trial court is the trier of the facts and determines the weight and credibility of the testimony.  Garrett v. State, 619 S.W.2d 172 (Tex.Cr.App.1981); Barnett v. State, 615 S.W.2d 220 (Tex.Cr.App.1981).  Appellate review of an order revoking community supervision is limited to the issue of whether the trial court abused its discretion.  Flournoy v. State, 589 S.W.2d 705 (Tex.Cr.App.1979).

The State alleged that appellant committed three violations of the terms and conditions of his community supervision:  that he used cocaine, that he failed to report as ordered, and that he failed to make court-ordered payments.  At the hearing, the State withdrew its allegation that appellant had used cocaine. Therefore, appellant=s first point is moot. 

Tangerla Mayhew testified that she had been appellant=s probation officer.  Mayhew identified appellant and stated that he had failed to report on October 31 and November 6 of 2000.  Mayhew also testified that appellant was $200 in arrears.  Mayhew further stated that appellant was Arude,@ Adisrespectful,@ and Anot cooperative.@  Appellant did not report on time and had to be rescheduled three times.  Appellant became upset when she discussed his offense with him.  Appellant changed his attitude when Mayhew informed him that a urine specimen would be taken.  Mayhew stated that she saw appellant twice:  on October 25 and October 30 of 2000. 

The trial court did not abuse its discretion.  The second and third points are overruled.

In his last point, appellant contends that he was denied the effective assistance of counsel at his community supervision revocation hearing.  Appellant contends that his counsel failed to call a AMr. Morgan@ as a witness, that counsel failed to subpoena expert testimony concerning the urinalysis, that counsel failed to make timely objections to hearsay testimony, that counsel failed to interview Mr. Morgan, and that counsel failed to interview someone from the lab that tested appellant=s urine. 

In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors.  Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999).  We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Cr.App.1991).

The record does not support appellant=s contentions. Appellant states in his brief that Mr. Morgan was the technician Awho the State alleged took the urinalysis from appellant.@ However, the record before this court does not mention a AMr. Morgan.@  The State dismissed its allegation concerning appellant=s use of cocaine; therefore, appellant=s complaints concerning the urinalysis are not relevant to this appeal. The record reflects that trial counsel actively participated in the revocation hearing.  Appellant has not established that trial counsel failed to render reasonably effective assistance.   This point is overruled. 

Following the procedures outlined in Anders, we have independently reviewed the record.  We agree that the appeal is without merit.

The State requests in its brief that the judgment of the trial court revoking community supervision be modified to reflect that the jury determined in the trial on the merits that appellant used or exhibited a deadly weapon in the commission of the murder. The trial court=s revocation judgment is modified to reflect the deadly weapon finding.

As modified, the judgment of the trial court is affirmed.

PER CURIAM

April 25, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.