Ronald Dale Ledbetter v. State ( 2005 )

NO. 07-04-0552-CR

07-04-0553-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 19, 2005

______________________________ RONALD DALE LEDBETTER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 242^ND DISTRICT COURT OF HALE COUNTY;

NO. B13321-9902, B14090-0106; HONORABLE ED SELF, JUDGE _______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant Ronald Dale Ledbetter appeals from two judgments revoking his community supervision and sentencing him to incarceration. ⁽¹⁾ We will affirm.

On June 18, 1999, appellant plead guilty to the offense of possession of a controlled substance in an amount of less than one gram. The court sentenced him to two years in prison probated for a term of five years and a $1,000 fine. The State filed a Motion to Revoke Community Supervision on July 12, 2001 based, in part, on the offense of tampering with evidence. On August 24, 2001, appellant entered a plea of true to the allegations in the Motion to Revoke Community Supervision. The trial court then continued him on community supervision subject to an additional fine, a two-year extension, and the completion of the Substance Abuse Felony Punishment Facility ("SAFPF") program. Appellant was ordered to complete 400 hours of community service in the drug case which remained in effect upon his community supervision being continued.

On August 24, 2001, appellant also plead guilty to the offense of tampering with evidence. The court sentenced him to two years confinement suspended for five years community supervision, a $1,000 fine, and the completion of the SAFPF program. Appellant was ordered to complete an additional 400 hours of community service after his release from SAFPF in the tampering case.

On July 21, 2004, the State filed a Motion to Revoke Community Supervision in both the drug case and the tampering case. In its Motions, the State alleged the following violations of the terms of appellant's community supervision: (1) appellant failed to avoid controlled substances, specifically (a) on or about June 3, 2004, appellant tested positive for amphetamines, (b) on or about May 19, 2004, appellant used marijuana and amphetamines, (c) on or about May 20, 2004, appellant tested positive for marijuana and amphetamines, and (d) the defendant used amphetamines on May 14 and May 15, 2004; (2) appellant associated with a person with a criminal record on June 16, 2004; (3) appellant failed to pay his fine and court costs, and (4) in the drug case, appellant failed to complete his community service hours.

The trial court held a consolidated hearing on the Motions to Revoke on November 12, 2004, and appellant plead not true to the allegations in the State's Motions to Revoke. The trial court found appellant had violated the terms of his community supervision as alleged in paragraphs one, three and four in the drug case and one and three in the tampering case. In other words, the trial court found appellant had failed to avoid controlled substances, failed to pay fees and costs, and failed to complete his community service hours. The trial court revoked appellant's community supervision and sentenced appellant to two years confinement in the State Jail Division in each case.

Appellant raises the following two issues on appeal: (1) the trial court abused its discretion by finding that appellant used controlled substances and intentionally failed to make payments as required and (2) the term and condition of probation requiring appellant to perform community supervision was in violation of Texas Code of Criminal Procedure article 42.12, section 16(a)(3) and was, therefore, void.

In a proceeding to revoke probation, the burden of proof is on the State to show by a preponderance of the evidence that the probationer violated a condition of probation as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). Proof of any one of the alleged violations is enough to support an order to revoke. Moses v. State, 590 S.W.2d 223, 224 (Tex.Crim.App. 1979); Gobell v. State, 528 S.W.2d 583, 586 (Tex.Crim.App. 1975). The standard by which an order revoking probation is reviewed on appeal is abuse of discretion. Naquin v. State, 607 S.W.2d 583, 586 (Tex.Crim.App. 1980); Lloyd v. State, 574 S.W.2d 159, 160 (Tex.Crim.App. 1978).

When the standard of review is abuse of discretion, the record must simply contain some evidence to support the decision made by the trial court. Herald v. State, 67 S.W.3d 292, 293 (Tex.App.-Amarillo 2001, no pet.); Becker v. State, 33 S.W.3d 64, 66-7 (Tex.App.-El Paso 2000, no pet.); Brumbalow v. State, 933 S.W.2d 298, 300 (Tex.App.-Waco 1996, pet. ref'd). In determining the sufficiency of the evidence, we view the evidence in the light most favorable to the trial court's ruling. Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App. 1979).

When questioned by the State at the November 12, 2004 revocation hearing, appellant's community supervision officer, Marty Mejorado, testified as follows:

Q. Was the defendant ordered to avoid the use of-avoid injurious and vicious habits of any nature, including the use of alcohol, narcotics, controlled substances, harmful drugs, glue, paint, any other chemical which might cause intoxication?

• Yes, sir.

Q. Has the defendant avoided those as he was ordered to do?

A. No, sir.

Q. In what way has he failed to do that?

A. When I spoke to Mr. Ledbetter at an office visit on May 20^th of 2004, a routine office visit, I asked him if he had used any drugs or alcohol. He stated he hadn't. I went to get a urinalysis cup for testing, and at that time he advised me that he had used marijuana and methamphetamines.

Q. Did you test him for the presence of those substances?

A. Yes, sir.

Q. What were the results of that test?

[Objection by counsel sustained by trial court]

Q. The defendant did admit to the use of what?

A. Marijuana and methamphetamines.

Appellant argues this testimony is insufficient to support the trial court's findings "because no evidence regarding urinalysis was ever submitted to the trial court" and because "the State failed to introduce evidence showing that Appellant's drug use took place on or about the dates alleged, or even that the drug use took place during the probationary period." We disagree.

Mejorado's testimony that appellant's May 20, 2004 admission of drug use came on the heels of her retrieval of the urinalysis cup is some evidence that the drug use to which he admitted was sufficiently recent to have been revealed by urinalysis and, therefore, would have fallen within the period of community supervision. ⁽²⁾ Herald, 67 S.W.3d at 293; Becker, 33 S.W.3d at 66-7; Brumbalow, 933 S.W.2d at 300. Viewing the evidence in the light most favorable to the trial court's order, we find the testimony of the community supervision officer sufficiently established appellant violated one of the terms of his community supervision. Jones, 589 S.W.2d at 421. Because the State is required to prove only one ground to prevail on its Motions to Revoke, we need not address appellant's issues regarding the other alleged violations. Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App. 1980). We hold the trial court did not abuse its discretion by revoking appellant's community supervision and affirm the judgment of the trial court. Naquin, 607 S.W.2d at 586.

James T. Campbell

Justice

Do not publish.

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2. ' ' " " -

ing it and was susceptible to prosecution through separate lawsuits. So, the second element of Guaranty is met.

Next, and as previously mentioned, the proceeding consisted of causes asserted by 1) Heard against everyone, 2) Oney and Bryant against Occidental, Lobo and Key, and 3) Occidental against Oney and Bryant. Furthermore, the claims of Oney, Bryant and Heard arise from the act of Lobo dumping mud into the disposal well. This occurred some six weeks after the casing of CLU #41 collapsed purportedly due to the manner in which Oney and Bryant operated the disposal well. Thus, the operative facts underlying the injury described in Occidental's counterclaim are not directly related to or the same as those upon which the claims of Oney, Bryant or Heard are founded. Simply put, Occidental is not complaining about the effect of Lobo dumping mud into the disposal well. Nor does its claim arise from that fact or act. Yet, that is the very fact and misconduct upon which the claims of Heard, Oney, and Bryant are dependent, and that is the fact from which arose their claims. Given this, we cannot say that the severed claim is so interwoven with the remaining action that they involve the same facts and issues.

In sum, the Supreme Court in Liberty National and its predecessors set the standard high in cases involving mandamus. Again, the record must illustrate a clear abuse of discretion. That is, "the relator must show 'that the trial court could reasonably have reached only one decision."' Liberty Nat. Fire Ins. Co. v. Akin, 927 S.W.2d at 629-30 (emphasis added). As described above, circumstances appear of record satisfying the elements specified in Guaranty and Lusk which authorize severance. We cannot say that claims alleged and the myriad of potential facts and controversies surrounding them gave rise to but one reasonable decision for the trial court to make. Thus, it did not fail to comply with guiding rules and principles or abuse of discretion in severing Occidental's counterclaim. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985) (stating that a court abuses its discretion when it acts without reference to any guiding rule or principle or acts arbitrarily or unreasonably).

The petition for writ of mandamus is denied.

Brian Quinn

Justice

1. For simplification, James Oney, Penny Oney, and James Oney d/b/a B & O Enterprises are collectively referred to as Oney.

2.

Occidental cites various cases purporting to hold that a trial court cannot sever and proceed separately with a compulsory counterclaim. See e.g., Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 651 (Tex. App.-Waco 2000, pet. denied); Goins v. League Bank and Trust, 857 S.W.2d 628, 630 (Tex. App.-Houston [1^st Dist.] 1993, no writ). Each, however, is that of an intermediate court of appeal. And, while they may be informative, we are nonetheless bound to follow the dictate of the Texas Supreme Court. Lubbock County v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (requiring intermediate appellate courts to follow Supreme Court precedent and leave to the Supreme Court the matter of abrogating or modifying its own precedent). So, since McGuire was rendered by the Supreme Court, it controls.

Moreover, the test applied when determining the validity of a severance differs from that applicable to assessing whether a counterclaim is compulsory. Concerning the latter, the court must decide, among other things, if the claims arise from the same transaction or occurrence. Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 651-52 (Tex. App.-Waco 2000, pet. denied). And, they do if "some of the facts [are] relevant to both claims." Community State Bank v. NSW Inv., L.L.C., 38 S.W.3d 256, 258 (Tex. App. -Texarkana 2001, pet. dism'd w.o.j.) (emphasis added). However, severance is proper if, among other things, the "severed actions are not so interwoven with the other claims that they involve the same facts and issues." Liberty Nat. Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996) (emphasis added). From this, one can see that the propriety of a severance is dependent upon whether the facts and issues underlying each claim are identical. See Saxer v. Nash Phillips-Corpus Co., 678 S.W.2d 736, 739-40 (Tex. App.-Tyler 1984, writ ref'd n.r.e.) (holding that the trial court did not abuse its discretion in severing the claims because the facts and circumstances necessary to prove one claim were not "identical" to those necessary to prove the other). On the other hand, the facts involved in each claim need not be identical to satisfy the compulsory counterclaim test, but only relevant to each other. Simply put, the test used in determining whether a matter should be joined as a compulsory counterclaim is much more liberal in scope than that used to assess the validity of a severance.