Matthew Ayala v. State ( 2004 )

  NUMBER 13-03-315-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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MATTHEW AYALA,                                                          Appellant,

v.

THE STATE OF TEXAS,                                                      Appellee.

___________________________________________________________________

On appeal from the 36th District Court

of San Patricio County, Texas.

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MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Rodriguez

         Appellant, Matthew Ayala, appeals from a trial court order revoking his community supervision and assessing a sentence of ten years confinement in the Institutional Division of the Texas Department of Criminal Justice. The trial court has certified that this case “is not a plea-bargain case, and the defendant has the right of appeal.” See TEX. R. APP. P. 25.2(a)(2). By one issue, appellant contends the evidence was insufficient to find that he violated the terms of his community supervision. We affirm.

I. FACTS

         As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See TEX. R. APP. P. 47.4.   

II. SUFFICIENCY OF EVIDENCE  

         Appellant contends the trial court erred by revoking community supervision. Specifically, appellant argues that no credible evidence was presented regarding his unsuccessful discharge from the Substance Abuse Felony Punishment Facility Program.

         Appellate review of an order revoking probation (community supervision) is limited to a determination of whether the trial court abused its discretion. Flournoy v. State, 589 S.W.2d 705, 709 (Tex. Crim. App. 1979). An order to revoke probation must be supported by a preponderance of the evidence. Anderson v. State, 621 S.W.2d 805, 807 (Tex. Crim. App. 1981). Evidence in a probation revocation hearing is sufficient when the greater weight of credible evidence creates a reasonable belief that a condition of the probation has been violated. Pettit v.State, 662 S.W.2d 427, 429 (Tex. App.–Corpus Christi 1983, pet. ref’d).

         The record reflects that appellant did not complete the treatment program required by the terms of his community supervision. This was proven by probation department records admitted into evidence and testimony from the supervising officer. Furthermore, appellant signed a written refusal to continue participation in the treatment program.

         After reviewing the record, we conclude that the trial court could have found by a preponderance of the evidence that appellant violated the terms of his probation. Therefore, the trial court did not abuse its discretion in revoking community supervision. We overrule appellant’s sole issue.  

III. CONCLUSION  

         Accordingly, we affirm the judgment of the trial court.

                                                                        NELDA V. RODRIGUEZ

                                                                        Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 22nd day of July, 2004.