Joseph Hulbert v. State ( 2003 )

Hulbert v. SOT

NUMBER 13-02-00110-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JOSEPH HULBERT, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 130th District Court of Matagorda County, Texas.

O P I N I O N

Before Justices Hinojosa, Yañez, and Garza

Opinion by Justice Hinojosa

This is an appeal from the trial court's order revoking community supervision. Appellant, Joseph Hulbert, pleaded guilty to the felony offense of delivery of a controlled substance. ⁽¹⁾ The trial court found him guilty, assessed his punishment at ten years imprisonment and a $2,000.00 fine. However, the sentence of imprisonment was suspended and appellant was placed on community supervision for a term of ten years.

The State subsequently filed a motion to revoke, alleging appellant had violated three conditions of his community supervision. Appellant pleaded "not true" to each of the allegations in the motion. After an evidentiary hearing, the trial court found that appellant had violated two conditions of his community supervision order, revoked his community supervision, and ordered that appellant serve the originally imposed sentence of ten years imprisonment. 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 two points of error, appellant challenges the sufficiency of the trial court's findings. We affirm.

A. Revocation of Community Supervision

The burden of proof in a probation ⁽²⁾ revocation hearing is by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984). Preponderance of the evidence means the greater weight and degree of credible testimony. Kulhanek v. State, 587 S.W.2d 424, 426 (Tex. Crim. App. 1979); Scamardo v. State, 517 S.W.2d 293, 297 (Tex. Crim. App. 1974). The appellate court construes the evidence in the light most favorable to the trial court's findings. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id.

Appellate review of an order revoking community supervision is limited to a determination of whether the trial court abused its discretion. Forrest v. State, 805 S.W.2d 462, 464 (Tex. Crim. App. 1991). Where the State has failed to meet its burden of proof, the trial court abuses its discretion in issuing an order to revoke community supervision. Cardona, 665 S.W.2d at 493-94. Proof of violation of a single condition of community supervision will support a revocation. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980); Sterling v. State, 791 S.W.2d 274, 276 (Tex. App.-Corpus Christi 1990, pet. ref'd).

B. Analysis

By his first point of error, appellant contends the trial court abused its discretion in finding that appellant had committed the offense of public intoxication, a violation of the terms of his community supervision order.

A person commits the offense of public intoxication if the person appears in a public place while intoxicated to the degree that the person may endanger himself or another. Tex. Pen. Code Ann. § 49.02(a) (Vernon 2003). Relevant to appellant's alleged public intoxication, the following evidence was presented.

The State presented the testimony of Officer Gus Fuentes, a patrol officer with the Bay City Police Department. While on patrol, Fuentes saw appellant in his wheelchair crossing a busy intersection in Bay City. In the officer's opinion, appellant was very intoxicated and very belligerent. Fuentes witnessed appellant speaking very loudly as he was crossing the intersection. Appellant had a strong odor of alcohol on his person and on his breath. In the officer's opinion, appellant was a danger to himself and others. Moreover, on cross-examination, appellant admitted he had pleaded guilty in municipal court to the offense of public intoxication as a result of this very same incident, and the municipal court had found him guilty of said offense.

Viewed in a light most favorable to the trial court's revocation order, we conclude the evidence is sufficient to support the trial court's finding that appellant committed the offense of public intoxication, a violation of the terms of his community supervision order. Accordingly, we hold that the trial court did not abuse its discretion by revoking appellant's community supervision. Appellant's first point of error is overruled.

In light of our disposition of appellant's first point of error, it is unnecessary to address his second point. See Tex. R. App. P. 47.1.

We affirm the trial court's order revoking appellant's community supervision.

FEDERICO G. HINOJOSA

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Opinion delivered and filed this the

21st day of August, 2003.

1. See Tex. Health & Safety Code Ann. § 481.112 (Vernon 2003).

2. In 1993, the Texas Legislature amended the code of criminal procedure, stating: "a reference in the law to 'probation' or 'deferred adjudication' means 'community supervision' as that term is defined in Section 2, Article 42.12, Code of Criminal Procedure." Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 4.04, 1993 Tex. Gen. Laws 3746.