Robert Harvey v. State ( 2014 )

NO. 12-13-00191-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ROBERT HARVEY, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Robert Harvey appeals the revocation of his community supervision. In two issues,
Appellant argues there is legally insufficient evidence for the trial court to find each allegation to
be true, and the trial court abused its discretion in revoking his community supervision. We
affirm.
BACKGROUND
Appellant was charged by indictment with driving while intoxicated, a third degree
felony. The indictment also included two jurisdictional enhancement paragraphs. Appellant
entered a plea of “guilty” to the offense charged. Appellant and his counsel signed various
documents in connection with his guilty plea, including a stipulation of evidence in which
Appellant swore that all allegations pleaded in the indictment were true and correct. He also
pleaded “true” to the jurisdictional enhancement paragraphs. The trial court accepted
Appellant’s plea, adjudged him “guilty” of the offense, and assessed his punishment at ten years
of imprisonment. However, the trial court ordered that imposition of Appellant’s punishment be
suspended, and that he be placed on community supervision for ten years.
Later, the State filed a second amended application to revoke community supervision,
alleging in four paragraphs that Appellant had violated the terms of his community supervision.
At the hearing on the application, Appellant pleaded “true” to the first and third paragraphs
contained in the State’s application. However, he pleaded “not true” to the second and fourth
paragraphs. After a hearing, the trial court found the allegations in all four paragraphs to be
“true,” granted the State’s application, revoked his community supervision, and assessed his
punishment at three years of imprisonment. This appeal followed.
EVIDENTIARY SUFFICIENCY
In his first issue, Appellant contends that there is legally insufficient evidence for the trial
court to find the second and fourth paragraphs of the State’s application to be true. In his second
issue, he argues that the trial court abused its discretion in revoking his community supervision.
In community supervision revocation cases, the state has the burden to establish by a
preponderance of the evidence that the terms and conditions of community supervision have
been violated. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The
preponderance of the evidence standard is met when the greater weight of the credible evidence
before the trial court supports a reasonable belief that a condition of community supervision has
been violated. Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim. App. 2006).
When the state has met its burden of proof and no procedural obstacle is raised, the
decision whether to revoke community supervision is within the discretion of the trial court.
Flournoy v. State, 589 S.W.2d 705, 708 (Tex. Crim. App. 1979). Thus, our review of the trial
court’s order revoking community supervision is limited to determining whether the trial court
abused its discretion. Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). When a
trial court finds several violations of community supervision conditions, we affirm the revocation
order if the proof of any single allegation is sufficient. See Hart v. State, 264 S.W.3d 364, 367
(Tex. App.—Eastland 2008, pet. ref’d); Cochran v. State, 78 S.W.3d 20, 28 (Tex. App.—Tyler
2002, no pet.). In other words, if there is some evidence to support the finding of even a single
violation, the revocation order must be upheld. Cochran, 78 S.W.3d at 28 (citing Moore v. State,
605 S.W.2d 924, 926 (Tex. Crim. App. 1980)). A plea of “true,” standing alone, is sufficient to
support a revocation of community supervision. Moses v. State, 590 S.W.2d 469, 470 (Tex.
Crim. App. 1979); Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979).
Indeed, an appellant cannot question the sufficiency of the evidence underlying the decision once
he has pleaded “true.” See Cole, 578 S.W.2d at 128; Moore v. State, 11 S.W.3d 495, 498 n. 1
(Tex. App.—Houston [14th Dist.] 2000, no pet.).
2
Here, Appellant pleaded “true” to two of the four allegations in the State’s application,
i.e., that he violated the terms of his community supervision by operating a motor vehicle that
was not equipped with a deep lung breath analysis mechanism. Appellant’s plea of “true” to any
of these violations is sufficient to support the trial court’s revocation order. See Moses, 590
S.W.2d at 470; Cole, 578 S.W.2d at 128. Therefore, the trial court did not abuse its discretion by
revoking Appellant’s community supervision. Accordingly, we overrule Appellant’s first and
second issues.
DISPOSITION
Having overruled Appellant’s first and second issues, we affirm the judgment of the trial
court.
JAMES T. WORTHEN
Chief Justice
Opinion delivered June 30, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 30, 2014
NO. 12-13-00191-CR
ROBERT HARVEY,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1359-02)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.