Quincy Calhoun v. State ( 2015 )

Affirmed and Memorandum Opinion filed August 25, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00658-CR
QUINCY CALHOUN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 1262446
MEMORANDUM OPINION
Appellant Quincy Calhoun appeals his conviction for aggravated robbery.
See Tex. Penal Code Ann. § 20.03 (West 2011). In a single issue, appellant
challenges the sufficiency of the evidence to support the trial court’s finding that
appellant violated the conditions of his community supervision. Concluding that
there is sufficient evidence to support the trial court’s finding, we affirm.
BACKGROUND
Appellant entered a plea of guilty to the offense of aggravated robbery
without an agreed recommendation on punishment from the trial court. On May
17, 2011, the trial court signed an order deferring adjudication of appellant’s guilt
and placing appellant on deferred adjudication community supervision for a period
of ten years. As conditions of community supervision, appellant was ordered,
among other things, to:
 Commit no offense against the laws of this or any other State or of
the United States;
 Report immediately, in person, to the Community Supervision
Officer for the 338th District Court on the 17th day of May 2011
and continue to report to the Community Supervision Officer on
the 17th of each month for the duration of the community
supervision term;
 Work faithfully at suitable employment and present written
verification of employment (including all attempts to secure
employment) to the Community Supervision Officer;
 Perform a total of 240 hours of community service at the rate of
eight hours per month;
 Pay a supervision fee of $60.00 per month for the duration of the
term of community supervision;
 Pay a fine of $500.00 and court costs at the rate of $40.00 per
month; and
 Pay laboratory fees of $5.00 per month for the duration of the
community supervision term.
On March 14, 2014, the State filed a motion to adjudicate appellant’s guilt
on the stated basis that appellant had violated the above-listed conditions of
community supervision. The trial court held a hearing on the State’s motion, at
which appellant entered pleas of “not true” to each of the State’s allegations.
Darlene Salazar, a community supervision officer for Harris County,
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testified that the community supervision office received notice that appellant had
been arrested for theft. She also testified that appellant failed to report to the
community supervision office in November 2011 and January 2014. In November
2011, appellant contacted the office and said that he did not report due to
hospitalization, but he failed to report after he was released from the hospital. In
January 2014, appellant failed to report or make contact with the community
supervision office. Over the course of appellant’s community supervision term, he
never reported proof of employment or verification of attempts to secure
employment. Appellant completed no community service hours during the term of
his community supervision. During a portion of the community supervision term,
appellant was physically unable to perform community service. On November 15,
2012, he was released from medical restrictions and permitted to perform
community service. At the time the motion to adjudicate was filed, appellant was
delinquent in the amount of $867.00 in fines and court costs, and $1,253.50 in
supervisory fees.
Officer M. R. Burdick of the Houston Police Department testified that on
September 3, 2013, he was patrolling an area of northeast Houston he described as
a high-crime area. Burdick saw a late-model light-colored Dodge Charger
automobile leave the area at a high rate of speed, and he advised a marked patrol
unit to conduct a traffic stop. The patrol unit stopped the car and identified
appellant as the driver and lone occupant of the vehicle. Appellant had no driver’s
license with him. When searching the car, officers discovered a checkbook not in
appellant’s name, but in the name of a Hispanic female.
Appellant was released, but officers followed up on the checkbook.
Burdick’s investigation revealed that on August 18, 2013, the checkbook had been
reported stolen from a vehicle parked outside a day care center. On September 18,
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2013, the daycare center reported to Burdick that another individual had been
robbed by a person driving a white Dodge Charger. The license plate number
reported by the daycare patron matched the license plate of the car appellant had
been driving on September 3, 2013. Burdick also learned that appellant previously
had been arrested for burglarizing another vehicle at an elementary school in
Houston. At the time of that arrest, appellant was driving the same white Dodge
Charger. Appellant was not charged with the offense committed at the elementary
school. The Dodge Charger was not registered in appellant’s name, but
maintenance documents found inside the vehicle revealed that appellant had been
obtaining service on the vehicle for approximately eight to ten months. The vehicle
was registered to appellant’s mother-in-law.
Burdick determined that appellant had committed several burglaries of
motor vehicles, mostly outside of daycare centers in the early morning when
mothers of small children tended to leave their belongings in their vehicles. One of
the victims, Tonya Fielder, reported a stolen mobile phone. Burdick found the
individual who purchased that phone, Elizabeth Pineda, and showed her a
photospread lineup. Pineda identified appellant as the person who sold her the
mobile phone.
Tonya Fielder testified that she was dropping off her four-month-old at the
daycare center on the morning of September 18, 2013. As she drove toward the
daycare she saw a man driving a white Dodge Charger with the driver’s window
open. Fielder noticed the car because it was almost identical to her own car. She
drove to the front door of the daycare center, left the car running and took the child
inside. When Fielder returned to her car, she noticed that her phone and purse were
gone. Fielder reported the theft to the daycare director, who accessed the
surveillance video of the front door. The video showed a man drive a white Dodge
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Charger to the front door of the daycare, get out, and pretend to get a child out of
the back seat. When another patron of the daycare left the driveway the man very
quickly went to Fielder’s car and removed her phone and purse. The man then got
back into the white Dodge Charger and drove away. Fielder identified appellant as
the man she had seen driving the white Dodge Charger.
Fielder immediately canceled her credit cards and suspended her mobile
phone number. After one or two days, Fielder re-activated her phone number and
dialed it. When Pineda answered the phone Fielder asked how she had obtained the
phone. Pineda told Fielder she purchased the phone on Craig’s List from a young
man driving a white Dodge Charger. Fielder researched the postings on Craig’s
List and discovered that the man was selling several mobile phones on the website,
including hers. Fielder then reported what she had learned to Officer Burdick.
Appellant testified on his own behalf. He denied stealing Fielder’s phone
and purse and denied meeting Pineda and selling her a phone. Appellant admitted
missing two appointments with the community supervision officer, but explained
that he missed them due to a medical condition. Appellant further testified that his
medical condition prevented him from obtaining employment or performing
community service. Appellant testified that his doctor was supposed to send a
medical excuse to the community supervision officer, but Salazar reported that she
had not received a medical excuse. Appellant claimed he did not pay his fines and
supervision fees because he was unable to work. Appellant testified that his wife
used the white Dodge Charger to drive to and from her place of employment, and
that he did not have access to the car during her working hours.
At the conclusion of appellant’s evidence, the trial court found true the
allegations that appellant committed theft, failed to obtain employment, failed to
perform community service, and failed to pay fines and fees. The trial court found
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not true the allegation that appellant failed to report to the community supervision
office.
ANALYSIS
In a single issue, appellant argues that the trial court abused its discretion in
revoking his community supervision because there was insufficient evidence
presented at the hearing on the motion to adjudicate guilt to support the allegations
made in the motion. Our review of the trial court’s order revoking community
supervision is limited to determining whether the trial court abused its discretion.
See Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). When a trial
court finds several violations of probationary conditions, we affirm the order
revoking probation if the proof of any single allegation is sufficient. See Moore v.
State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980) (“We need not address
appellant’s other contentions since one sufficient ground for revocation will
support the court’s order to revoke probation.”); Hart v. State, 264 S.W.3d 364,
367 (Tex. App.—Eastland 2008, pet. ref’d); Greer v. State, 999 S.W.2d 484, 486
(Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). In his issue on appeal,
appellant challenges the sufficiency of the evidence to “support the allegations
made in the motion.” However, appellant presents arguments challenging only the
sufficiency of the evidence to support the misdemeanor theft allegation. Because
we need not address the sufficiency of the evidence to support all grounds for
revocation, we will address appellant’s contention concerning the misdemeanor
theft allegation.
In community supervision revocation cases, a claim of insufficient evidence
is limited to the traditional legal-sufficiency analysis, in which we view the
evidence in the light most favorable to the decision to revoke. See Hart, 264
S.W.3d at 367. The State has the burden to establish by a preponderance of the
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evidence that appellant committed a violation of the terms and conditions of
community supervision. 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 fails to meet its burden,
it is an abuse of discretion for the trial court to issue a revocation order. Cardona,
665 S.W.2d at 493–94. In a revocation proceeding, the trial judge is the sole trier
of the facts, the credibility of the witnesses, and the weight to be given their
testimony. Diaz v. State, 516 S.W.2d 154, 156 (Tex. Crim. App. 1974).
The State alleged, among other violations, that appellant violated his
community supervision by committing the offense of misdemeanor theft. A person
commits theft if he unlawfully appropriates property with intent to deprive the
owner of it. Tex. Penal Code Ann. § 31.03(a) (West Supp. 2014).
Appellant contends that the State’s proof fell short because the State only
proved that appellant occasionally drove a white Dodge Charger that did not
belong to him, and that someone driving a white Dodge Charger burglarized
Fielder’s vehicle. Appellant discounts both Fielder’s identification of him as the
individual who burglarized her vehicle and Pineda’s identification of appellant as
the individual who sold her the stolen phone.
Appellant’s argument amounts to an attack on the credibility of the State’s
evidence. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).
Fielder testified that she recognized appellant as he drove by the daycare center
before she dropped her child off. She also recognized appellant and his vehicle in
the surveillance video despite the grainy nature of the video recording. Pineda
testified that appellant sold her a phone from an internet posting on Craig’s List.
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Fielder testified that the phone Pineda purchased was the one stolen from her car at
the daycare center. Fielder recognized scratches on the back of the phone, and her
phone number was still connected to the phone. The factfinder is the sole judge of
the credibility of the witnesses and strength of the evidence, and we must presume
that the factfinder resolved any conflicts in favor of the prevailing party. Bargas v.
State, 252 S.W.3d 876, 887 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
We conclude the greater weight of credible evidence before the trial court
supports the trial court’s reasonable belief that it is more probable than not that
appellant violated a condition of community supervision by committing theft. We
overrule appellant’s sole issue.
We affirm the trial court’s judgment.
/s/ J. Brett Busby
Justice
Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
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