Jerimiah David Chavana v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-290-CR
JERIMIAH DAVID CHAVANA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Jerimiah David Chavana appeals following the adjudication of
his guilt for burglary of a building. In a single point, Chavana argues that the
trial court abused its discretion by adjudicating him guilty of the offense of
burglary of a building because the evidence was insufficient to support the
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… See T EX. R. A PP. P. 47.4.
allegations contained in the State’s motion to proceed to adjudication. We will
affirm.
II. P ROCEDURAL B ACKGROUND
Chavana pleaded guilty to the offense of burglary of a building on
February 27, 2007, and the trial court placed him on deferred adjudication
community supervision for a period of four years. In accordance with the
conditions of his community supervision, Chavana was required, among other
things, to “[c]ommit no offense against the laws of this State . . . .”; to “[a]void
injurious or vicious habits and abstain from the illegal use of controlled
substances, marijuana, cannabinoids, or the excessive consumption of any
alcoholic beverage”; to “[s]ubmit to an assessment for substance abuse”; to
“successfully complete treatment”; and to “[s]ubmit non-diluted urine for
testing for controlled substances and cannabinoids at the direction of the
supervision officer . . . .” Chavana was required to report no less than monthly
to his supervision officer.
In June 2007, police arrested Chavana for the offense of murder. The
State thereafter moved to adjudicate Chavana’s guilt on the burglary of a
building offense, alleging that Chavana had violated the terms and conditions
of his deferred adjudication community supervision by (1) committing a new
offense, namely murder; (2) using a controlled substance, namely marijuana; (3)
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failing to submit to an assessment for substance abuse on or about April 30,
2007; (4) failing to submit urine samples on May 23, 2007 and June 1, 2007;
and (5) knowingly possessing a firearm away from his residence.
At the hearing on the State’s motion to proceed to adjudication, the State
moved forward on only violations two, three, and four. After hearing testimony
from Chavana’s probation officer and reviewing the evidence admitted during
the hearing on the State’s motion to proceed to adjudication, the trial court
stated as follows:
Mr. Chavana, the Court having received your pleas of not
true to Paragraphs Two, Three, and 4A as to Paragraph Two, will
find the allegation to be true, specifically noting that State’s Exhibit
No. 7 contains a provision that the marijuana use was while on
probation. Finds Paragraph Two to be true. Paragraph Three, the
Court will note that State’s Exhibit No. 3 specifically states that
Defendant did not show up for his assessment and it was not
merely rescheduled. Find Paragraph Three to be true. As to
Paragraph Four, the Court will find Subparagraph 4A to be true.
The trial court adjudicated Chavana’s guilt and sentenced him to nine months’
confinement. This appeal followed.
III. A DJUDICATION OF G UILT S UPPORTED B Y R ECORD
In his sole point, Chavana contends that the trial court abused its
discretion by adjudicating him guilty of the offense of burglary of a building.
Specifically, Chavana argues that there was insufficient evidence to support the
allegations contained in the State’s motion to proceed to adjudication.
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Appellate review of the decision to adjudicate guilt is “in the same
manner” as review of the revocation of community supervision. T EX . C ODE
C RIM. P ROC. A NN. art. 42.12, § 5(b) (Vernon Supp. 2007). 2 Appellate review of
a community supervision revocation is limited to determining whether the trial
court abused its discretion, and we examine the evidence in the light most
favorable to the trial court’s findings. 3 See Cardona v. State, 665 S.W.2d 492,
493–94 (Tex. Crim. App. 1984). The State must prove by a preponderance of
the evidence that appellant violated the conditions of his probation. Cobb v.
State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). The trial judge is the
sole trier of facts and determines the credibility of the witnesses and the weight
to be given to the testimony in a revocation proceeding. See Lee v. State, 952
S.W.2d 894, 897 (Tex. App.—Dallas 1997, no pet.).
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… Effective June 15, 2007, the legislature amended article 42.12,
section 5(b) of the code of criminal procedure to omit the provision that no
appeal may be taken from a trial court’s determination of adjudicating guilt and
to provide that an appellate court can review a trial court’s revocation of
deferred adjudication in the same manner as it reviews revocations in which the
trial court had not deferred an adjudication of guilt. See Act of May 28, 2007,
80th Leg., R.S., ch. 1308, § 5, 2007 Tex. Gen. Laws 4395, 4397 (codified at
T EX. C ODE C RIM. P ROC. A NN. art. 42.12, § 5(b) (Vernon Supp. 2007)).
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… Because the decision to adjudicate guilt is reviewed in the same
manner as the revocation of regular probation, we utilize the same case law in
conducting our review. Wood v. State, No. 05-07-00830-CR, 2008 WL
921497, at *1 n.2 (Tex. App.—Dallas Apr. 7, 2008, no pet.) (not designated
for publication).
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In its motion to proceed with adjudication, the State alleged, among other
things, that Chavana violated the terms of his deferred adjudication community
supervision by illegally using marijuana on or about April 9, 2007. During the
hearing on the motion, the State admitted into evidence a “Use of Illegal
Controlled Substance Statement” that states as follows:
I, Jerimiah Chavana, ACKNOWLEDGE THAT I AM THE PERSON
ORDERED TO BE SUPERVISED BY THE COMMUNITY
SUPERVISION & CORRECTIONS DEPARTMENT.
_____________________________________________________________
– STEP ONE –
A. ADMISSION OF USE OF AN ILLEGAL CONTROLLED
SUBSTANCE
I voluntarily admit that since being ordered to report to community
supervision (if this is my first report) and/or since the last time I
reported to my supervision officer, I used the following illegal
controlled substance(s):
1. Name of illegal Controlled Substance: Marijuana
Date(s) or approximate date(s) of use:
The form was signed and dated by Chavana and his supervision officer. Step
Two of the form, a denial of use of an illegal controlled substance, was blank.
Chavana argues that, because the date-of-use blank on his admission
form was not filled in, the State could not prove by a preponderance of the
evidence that he had used marijuana on April 9, 2007. The State, however,
alleged that Chavana “illegally used a controlled substance, marijuana, or
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cannabinoids, or excessively consumed alcoholic beverages on or about the
dates shown below.” The date shown after that was April 9, 2007—the same
date shown at the top of Chavana’s admission form. Consequently, Chavana’s
admission that he had used marijuana while on probation, since the last time he
reported to his supervision officer, and prior to the date of the admission
form—April 9, 2007—coupled with the requirement that he report no less than
monthly, along with the reasonable inferences from these basic facts,
adequately establishes by a preponderance of the evidence that such marijuana
use occurred on or about April 9, 2007. See Rickels v. State, 202 S.W.3d
759, 764 (Tex. Crim. App. 2006) (recognizing in probation revocation hearing
the trial court could infer ultimate facts from basic, proven facts).
Chavana also argues that a single drug use is not a violation of condition
two of his community supervision that requires him to avoid “injurious or
vicious habits.” Condition two, however, provides, that Chavana is to “[a]void
injurious or vicious habits and abstain from the illegal use of controlled
substances, marijuana, cannabinoids, or the excessive consumption of any
alcoholic beverage.” [Emphasis added.] The State did not allege a violation of
the first part of condition two relating to injurious or vicious habits but instead
alleged, as set forth above, that Chavana had violated the second portion of
condition two by illegally using marijuana during his probationary period. The
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evidence referenced above established by a preponderance of the evidence that
Chavana illegally used a controlled substance, namely marijuana, on or about
April 9, 2007. See Herrera v. State, No. 04-97-00102-CR, 1997 WL 716569,
at *1 (Tex. App.—San Antonio Nov. 19, 1997, no pet.) (not designated for
publication) (holding that although a single use of an illegal drug may not be
enough to constitute a “habit” for the purposes of a probation violation, a single
use of cocaine was enough to support a finding that appellant violated condition
2 of his probation by using cocaine).
We therefore hold that the trial court did not abuse its discretion by
finding that Chavana violated the terms and conditions of his deferred
adjudication community supervision and by proceeding with an adjudication of
Chavana’s guilt. See, e.g., Herrera, 1997 WL 716569, at *1; Wood, 2008 WL
921497, at *1 (holding that trial court did not abuse its discretion by revoking
probation after State proved that police found marijuana in backpack that
appellant was carrying). Because one sufficient ground for revocation will
support the trial court’s order revoking probation, we need not address the
remaining violations. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim.
App. [Panel Op.] 1980); see also T EX. R. A PP. P. 47.1. We therefore overrule
Chavana’s sole point.
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IV. C ONCLUSION
Having overruled Chavana’s sole point, we affirm the trial court’s
judgment.
SUE WALKER
JUSTICE
PANEL A: CAYCE, C.J.; GARDNER and WALKER, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: June 26, 2008
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