John Evan Lott v. the State of Texas ( 2024 )

Opinion filed February 15, 2024
In The
Eleventh Court of Appeals
__________
No. 11-22-00067-CR
__________
JOHN EVAN LOTT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 142nd District Court
Midland County, Texas
Trial Court Cause No. CR55889
MEMORANDUM OPINION
Appellant, John Evan Lott, pleaded guilty in 2021 to two counts of aggravated
assault with a deadly weapon, a second-degree felony offense. See TEX. PENAL
CODE ANN. § 22.02(a)(2), (b) (West Supp. 2023). In each judgment, the trial court
deferred a finding of guilt, placed Appellant on community supervision for a term
of ten years, and assessed a fine of $1,000. The State later filed motions to revoke
Appellant’s community supervision and proceed with an adjudication of guilt. The
State initially alleged fifteen violations of the terms and conditions of Appellant’s
community supervision. The State subsequently filed amended motions that alleged
twenty violations of the terms and conditions of his community supervision.
Appellant entered a plea of “not true” to all twenty alleged violations. After
a contested hearing, the trial court found nineteen out of the twenty allegations to be
true, adjudicated Appellant’s guilt, revoked Appellant’s deferred adjudication
community supervision on both counts, and assessed Appellant’s punishment at
confinement for a term of twenty years in the Institutional Division of the Texas
Department of Criminal Justice on each count with the sentences to be served
concurrently.
In his sole issue on appeal, Appellant challenges the revocation of his
community supervision and contends that there was insufficient evidence to support
a finding of true for six of the twenty allegations. 1 We note at the outset that
Appellant’s failure to challenge all of the violations found by the trial court to be
true is dispositive of his appeal. We affirm.
We review a trial court’s decision to revoke community supervision under an
abuse-of-discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.
App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The
State must prove a violation of the terms and conditions of community supervision
by a preponderance of the evidence, and proof of any one of the alleged violations
is sufficient to uphold the trial court’s decision to revoke. Garcia v. State, 387
S.W.3d 20, 26 (Tex. Crim. App. 2012) (“proof of a single violation will support
revocation”); Cardona, 665 S.W.2d at 493 (burden of proof is by a preponderance
of the evidence); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.]
1
Appellant asserts that he is challenging the affirmative findings on allegation nos. 2, 3, 4, 5, 18,
and 19. However, the trial court found “not true” on allegation no. 3. Accordingly, we will not address
allegation no. 3 in this opinion.
2
1980) (“one sufficient ground for revocation will support the court’s order to revoke
probation”); Jones v. State, 472 S.W.3d 322, 324 (Tex. App.—Eastland 2015, pet.
ref’d). Accordingly, “to prevail on appeal, the defendant must successfully
challenge all of the findings that support the revocation order.” Silber v. State, 371
S.W.3d 605, 611 (Tex. App.—Houston [1st Dist.] 2012, no pet.). In this regard, if
a defendant does not challenge all of the grounds on which his community
supervision was revoked, the trial court’s judgment revoking his community
supervision should be affirmed. See Baxter v. State, 936 S.W.2d 469, 472 (Tex.
App.—Fort Worth 1996) (per curiam), pet. dism’d, 960 S.W.2d 82 (Tex. Crim. App.
1998); see also Jimenez v. State, No. 01-06-01101-CR, 2007 WL 3105814, at *1
(Tex. App.—Houston [1st Dist.] Oct. 25, 2007, no pet.) (mem. op., not designated
for publication).
Because Appellant has not challenged the sufficiency of the evidence for the
other thirteen out of the nineteen alleged violations that the trial court found to be
true, we must affirm the judgment revoking community supervision. Baxter, 936
S.W.2d at 472; see Garcia, 387 S.W.3d at 26; Moore, 605 S.W.2d at 926. Moreover,
we disagree with Appellant’s contention that the State presented insufficient
evidence to support the trial court’s finding of “true” to allegation nos. 2, 4, 5, 18,
and 19.
The trial court abuses its discretion by revoking community supervision if the
State failed to meet its burden of proof. Cardona, 665 S.W.2d at 493–94;
Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974). “[A]n order
revoking probation must be supported by a preponderance of the evidence; in other
words, that greater weight of the credible evidence which would create a reasonable
belief that the defendant has violated a condition of his probation.” Scamardo, 517
S.W.2d at 298. The trial court is the sole trier of the facts, the credibility of the
witnesses, and the weight given to their testimony. Naquin v. State, 607 S.W.2d
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583, 586 (Tex. Crim. App. [Panel Op.] 1980). An appellate court must view the
evidence presented at a revocation hearing in the light most favorable to the trial
court’s ruling. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.]
1981).
In allegation no. 2, the State alleged that Appellant committed a new offense:
a theft of property from Bobbitt Construction. Appellant asserts that there was
insufficient evidence to support the affirmative finding as to allegation no. 2 because
there was no testimony that Appellant stole “more than 1 grinder, pipe jacks, a
speaker, a cooler, a pines set, and a jack stand” from Bobbitt Construction as alleged
in the motion to revoke. However, Officer Martin Rodriguez with the Midland
County Sheriff’s Office testified that he was dispatched to a theft call on August 19,
2021, and spoke with the manager of Bobbitt Construction about a theft that had
occurred the night before. Officer Rodriguez reviewed security footage of the theft
and received a list of all the items the manager had reported as stolen. Officer
Rodriguez recognized the white pickup and Appellant in the video because he had
just assisted an officer with Appellant’s arrest for theft of a trailer and illegal
dumping. While Officer Rodriguez did not list every single item listed in the motion
to adjudicate during his testimony, Officer Rodriguez confirmed that the manager
provided a list of all the stolen items, named “a few” of the items, confirmed that
several other items were taken, and confirmed that the total value of the items stolen
was $2,630.
When the State alleges that a probationer violated the law, “it is not necessary
that such an allegation be in the same precise terms as would be necessary in an
indictment allegation.” Bradley v. State, 608 S.W.2d 652, 655 (Tex. Crim. App.
1980). It is sufficient if there is an alleged violation and the probationer had fair
notice. Id. Here, there was sufficient evidence that support the State’s allegation
that Appellant committed theft from Bobbitt Construction.
4
In allegation no. 4, the State alleged that Appellant failed to perform the
requisite number of community service hours. Appellant asserts that there was
insufficient evidence to support the affirmative finding as to allegation no. 4 because
there was “no testimony” regarding whether Appellant had been assigned to
complete a specific community service project at a specific time or place. But
Officer Jessica Silva with the Midland County Community Supervision and
Corrections Department testified that Appellant was sixty hours delinquent on his
community supervision hours. Further, Appellant conceded that, while he
mistakenly believed he only needed to complete his community service hours before
the end of his community supervision, he “wasn’t aware that [he] ha[d] to do ten
hours a month” and that the failure to do so was “[his] bad.”
In allegation no. 5, the State alleged that Appellant failed to attend and
successfully complete a required anger management course. Appellant contends that
the evidence was insufficient to support the affirmative finding on allegation no. 5
because the terms and conditions of his community supervision did not specify a
number of hours or classes Appellant needed to complete in order to fulfill his anger
management requirement, nor did they provide a deadline to complete the classes.
However, Officer Silva confirmed that Appellant was required to complete an anger
management course as a condition of his probation and that the community
Supervision and Corrections Department had not received proof that Appellant had
done so. Further, Appellant testified that he “had an opportunity” to complete an
anger management program, but that he had chosen not to complete it at the time
due to his possible relocation to Mississippi to take care of his parents’ health issues.
In allegation no. 18, the State alleged that Appellant committed the offense of
possession of marihuana within 1,000 feet of a playground. Appellant asserts that
there was insufficient evidence to support the affirmative finding on allegation
no. 18 because there was “no testimony as to the location of the apartment and its
5
proximity to a playground” and that “[a] conclusory statement that a place is a drug-
free zone is not enough to establish the allegation.” Appellant’s assertion that there
was no testimony regarding the apartment’s proximity to a playground is incorrect.
Officer Linvel Mosby with the City of Midland Police Department and the Federal
Bureau of Investigation testified that the apartment complex where Appellant lived
and where he was apprehended was in a drug-free zone because Hogan Park, a venue
with “ballparks,”2 was within “approximately 450 feet from [the apartments.]” This
was sufficient evidence to support the State’s allegation that Appellant committed
the offense of possession of marihuana in a drug-free zone. See Bradley, 608
S.W.2d at 655.
In allegation no. 19, the State alleged that Appellant committed an offense by
damaging and destroying a gray Dodge Charger and White GMC 1500 owned by
the City of Midland. Appellant contends that there was insufficient evidence to
support the affirmative finding on allegation no. 19 because there was no testimony
that a Gray Dodge Charger and/or a White GMC 1500 were damaged; there was no
testimony that the vehicles were owned by the City of Midland; and there was no
“specific testimony” that the damage to the vehicles was between $2,000 and
$30,000 as alleged. This assertion is also incorrect. Officer Mosby testified that,
during Appellant’s attempt to evade arrest in his vehicle, he “proceeded to ram the
Dodge Charger that was directly west of his vehicle, as well as the GMC truck that
was to the south of his vehicle.” Officer Mosby confirmed that both of these vehicles
were police vehicles. Officer Mosby also testified that the current estimates of
damage done to the vehicles was at least over $2,500.
2
Section 481.134 of the Texas Health and Safety Code defines the term “playground” as “any
outdoor facility that is not on the premises of a school and that: (A) is intended for recreation; (B) is open
to the public; and (C) contains three or more play stations intended for the recreation of children.” TEX.
HEALTH & SAFETY CODE ANN. § 481.134(3) (West Supp. 2023).
6
Viewing the evidence presented at the revocation hearing in the light most
favorable to the trial court’s ruling, we conclude that the affirmative findings that
Appellant committed the disputed allegations is supported by a preponderance of the
evidence. See Rickels, 202 S.W.3d at 763–64; Garrett, 619 S.W.2d at 174. The trial
court was able to assess the credibility of the witnesses and to resolve any
inconsistencies in their testimony. See Naquin, 607 S.W.2d at 586. Moreover,
because Appellant has not challenged the sufficiency of the evidence for thirteen out
of the nineteen alleged violations that the trial court found to be true, we must affirm
the judgment revoking community supervision. See Baxter, 936 S.W.2d at 472; see
also Garcia, 387 S.W.3d at 26; Moore, 605 S.W.2d at 926. Accordingly, we
overrule Appellant’s sole issue on appeal.
This Court’s Ruling
We affirm the judgments of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
February 15, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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