Lee, Victor William v. State ( 2002 )

Opinion issued April 25, 2002

In The

Court of Appeals

For The

First District of Texas  

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NO. 01-01-00256-CR

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VICTOR WILLIAM LEE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 837831

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O P I N I O N  

  Appellant, Victor William Lee, appeals from the trial court's judgment revoking his probation and sentencing him to two years confinement in a state jail and a $1,000 fine.

In two points of error, appellant claims the evidence was insufficient to establish that he violated the terms of his probation and the trial court erred in overruling appellant's objection to hearsay testimony.

We affirm.

Facts and Procedural History

In May of 2000, appellant was convicted of unauthorized use of a motor vehicle and sentenced to two years confinement in a state jail, probated for four years, and a $1,000 fine. In January of 2001, the State filed a motion to revoke appellant's probation alleging several grounds, including that appellant had "[c]ommitt[ed] an offense against the State of Texas" by assaulting his fiancée, Lydia Rodriguez. Appellant pleaded not true to the allegations in the State's motion.

Following a hearing on the State's motion to revoke probation, the trial court found all the allegations in the motion true and revoked appellant's probation. However, the trial court signed an order reciting only one finding, that appellant "violated the terms of his probation by committing an offense against the State of Texas."

Sufficiency of the Evidence

In his first point of error, appellant argues the evidence presented at the hearing was insufficient to show he violated the laws of this state by committing assault.

In a hearing on a motion to revoke probation, the State must prove every element of the grounds asserted for revocation by a preponderance of the evidence. Amado v. State, 983 S.W.2d 330, 332 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd). This standard is met when the greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of his probation as the State alleged. Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983). The trial judge acts as the sole trier of fact and may judge the credibility and weight of the testimony. Amado, 983 S.W.2d at 332. On appeal, the court of appeals must view the evidence in the light most favorable to the conclusion of the trial court. Id.

The State alleged in its motion that appellant had violated the conditions of his probation by assaulting Rodriguez. A person commits an offense if the person "causes bodily injury to another" or "threatens another with imminent bodily injury." Tex. Pen. Code Ann. §§ 22.01(a)(1), (a)(2) (Vernon Supp. 2002).

At the hearing on the State's motion to revoke probation, Rodriguez testified she was living with appellant at his house on December 31, 2000. She explained that she and appellant got into an argument that "got a little rough" after appellant accused Rodriguez of stealing his prescription medicine and Rodriguez hit appellant with her shoe. Rodriguez admitted that, during the argument, she sustained injuries including a blackened left eye, a scrape under her right eye, a scar on her forehead, scrapes on the side of her face, and a scrape or bruise on her back. She testified that none of her injuries were caused by appellant hitting or kicking her but were caused when she and appellant accidentally "butted heads" and when she pulled away from appellant and fell over a chair and into a wall. Rodriguez admitted that, following the argument, she called the police and told the responding officer appellant had kicked her in the face and mid-section. However, at the hearing Rodriguez testified these statements were false. Rodriguez, who was three months pregnant at the time of the argument, also testified appellant threatened to kill her if she called the police.

Harris County Deputy Constable Stanley Jolly testified he met with Rodriguez on December 31, 2000 at her friend's house and Rodriguez appeared scared, frightened, teary eyed, and very upset. Constable Jolly observed black and blue marks on Rodriguez's face and back. Jolly testified that Rodriguez told him appellant assaulted her by pulling her hair and kicking her in the face and back and appellant threatened to kill her if she called the police. Jolly stated he spoke to appellant after interviewing Rodriguez, and appellant told him that Rodriguez had hit appellant in the hand with her shoe and appellant then hit her in response. Appellant expressed no remorse to Jolly, and stated Rodriguez "got what she deserved." Jolly observed appellant's hand was swollen but saw no injuries on appellant's face.

Appellant testified that, at the time of the argument with Rodriguez, he had just gotten out of the hospital and "was not in my right frame of mind." Appellant admitted that it was not appropriate, under any circumstances, to "get physical" with a pregnant woman, even when provoked. Appellant denied ever hitting or kicking Rodriguez. On cross-examination, appellant admitted that he had previously pleaded guilty to the following offenses: (1) assaulting another woman; (2) engaging in an act of lewd conduct with a 17-year old female; (3) burglary of a motor vehicle; and (4) retaliation, by threatening to kill a police officer and his family.

Although there was conflicting evidence in this case, reconciliation of those conflicts was within the exclusive province of the trier of fact. Amado, 983 S.W.2d at 333. The trial court was entitled to disregard Rodriguez's recanting of her statements to the constable. Viewing all the testimony presented at the hearing on the motion to revoke probation in the light most favorable to the conclusion of the trial court, we hold the evidence was sufficient to prove by a preponderance of the evidence that appellant committed the offense of assault.

We overrule appellant's first point of error.

Hearsay Testimony

In his second point of error, appellant argues the trial court erred in overruling his objection to hearsay testimony from Constable Jolly.

Over appellant's hearsay objection, Jolly testified Rodriguez told him that appellant had accused Rodriguez of stealing things from his house, pulled her out of bed by her hair, and began kicking her in the face and back. However, the record indicates that both Jolly and Rodriguez testified to essentially the same evidence without objection. Given the testimony in the record from Rodriguez and Jolly to which no objection was raised, and assuming, without deciding, that Jolly's testimony constituted hearsay, we find any error in admitting such testimony was harmless. Tex. R. App. P. 44.2; see Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) ("Inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact the inadmissible evidence sought to prove.").

We overrule appellant's second point of error.

Conclusion

We affirm the judgment of the trial court.

   Terry Jennings

Justice

Panel consists of Justices Mirabal, Hedges, and Jennings.

Do not publish. Tex. R. App. P. 47.