Kory Kenneth Paul Lyons v. State

NO. 12-18-00242-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
KORY KENNETH PAUL LYONS, § APPEAL FROM THE 273RD
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SABINE COUNTY, TEXAS
MEMORANDUM OPINION
Kory Kenneth Paul Lyons appeals the trial court’s judgment adjudicating him guilty of
aggravated assault with a deadly weapon. In one issue, Appellant argues that the trial court abused
its discretion by adjudicating him guilty and revoking his community supervision. We affirm.
BACKGROUND
Appellant was charged by indictment with aggravated assault with a deadly weapon.
Pursuant to a plea agreement, Appellant pleaded “guilty,” and the trial court deferred a finding of
guilt and placed him on community supervision for a term of three years.
The State subsequently filed a motion to proceed with an adjudication of guilt, alleging a
violation of Appellant’s conditions of community supervision, and then an amended motion
alleging two violations. After a hearing on the amended motion, the trial court found the allegations
true, adjudicated Appellant “guilty” of aggravated assault, and assessed his punishment at
imprisonment for ten years. This appeal followed.
PROPRIETY OF REVOCATION
In Appellant’s sole issue, he argues that the trial court erred by determining that he violated
his conditions of community supervision because the State did not prove the allegations by a
preponderance of the evidence.
Standard of Review and Applicable Law
The determination to proceed with an adjudication of guilt after a defendant is placed on
deferred adjudication community supervision is reviewable in the same manner as a revocation
hearing. TEX. CODE CRIM. PROC. ANN. art. 42A.108(b) (West 2018). In 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 supports a reasonable belief that the defendant violated a condition of
community supervision. Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim. App. 2006). In a
revocation hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses
and the weight to be given their testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App.
1980).
Appellate review of a 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. [Panel Op.] 1980). One sufficient ground for revocation will support a trial
court’s order revoking community supervision. Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim.
App. 2009).
Analysis
At the hearing on the motion to revoke, Appellant pleaded “not true” to the allegations that
he violated conditions of his community supervision by (1) committing the offense of falsifying
drug test results and (2) using methamphetamines. To support the allegations, the State called
Kimberly Smith, community supervision officer John Bruton, and Sabine County Sheriff’s Deputy
Joseph MacDonough as witnesses.
Smith testified that she reported to Bruton one day and became aware that she would be
drug tested. She encountered Appellant in the lobby and asked if he could pass a drug test.
Appellant said he could, so Smith gave him an empty medicine bottle and asked him to fill it with
his urine. Appellant took the bottle into the women’s restroom, filled it with urine, and deposited
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it in the wastebasket. Smith retrieved the bottle and submitted the contents as her own sample.
When Bruton subsequently asked Smith when she last used methamphetamines, she told him that
the urine was not hers.
Bruton testified that Appellant and Smith were present at the community supervision office
at the same time. Bruton’s assistant administered a drug test to Smith and gave Bruton the results,
which were negative. Nonetheless, Bruton suspected that Smith was using methamphetamines and
asked her, “When is the last time you used meth?” She then said the urine was not hers and told
Bruton the story of how “Kenny, the jewelry man” gave her his urine to use. Bruton obtained and
tested a second urine sample from Smith, which revealed positive results for cocaine,
methamphetamines, marijuana, and alcohol. He called the police to report the falsification offense.
Deputy MacDonough testified that he was called to take Smith’s statement.
Bruton further testified that about a week later, when Appellant was arrested for falsifying
drug test results, he obtained a urine sample from him. Bruton tested the sample and obtained
positive results for methamphetamines and amphetamines. He then sent the sample to One Source
Toxicology where the positive methamphetamine result was confirmed.
On appeal, regarding the allegation that he committed the offense of falsifying drug test
results, Appellant argues that the State failed to meet its burden of proof because it produced no
evidence that Appellant was alone in the restroom and placed the bottle of urine in the wastebasket,
Deputy MacDonough testified that Smith is not trustworthy, 1 and the evidence showed that no one
tested the urine to connect it to Appellant. We disagree.
Despite Appellant’s arguments to the contrary, we cannot conclude based on the record
that the trial court erred by finding that Appellant committed the offense of falsifying drug test
results. A person commits falsification of drug test results if he knowingly or intentionally delivers,
possesses with intent to deliver, or manufactures with intent to deliver a substance or device
designed to falsify drug test results. TEX. HEALTH & SAFETY CODE ANN. § 481.133(b) (West 2017).
Here, Smith testified that she asked Appellant for his urine, gave him a medicine bottle, was told
by Appellant that the bottle of urine was in the wastebasket, and found the bottle of urine in the
wastebasket. From this evidence the trial court could reasonably infer that Appellant intentionally
delivered his urine to Smith to falsify her drug test results. For this reason and because the trial
1
We note that although Appellant argues MacDonough testified that Smith is not trustworthy, and defense
counsel attempted to elicit such testimony, the record shows MacDonough did not so testify.
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court is the sole judge of Smith’s credibility and the weight to be given her testimony, we conclude
that the trial court did not abuse its discretion by finding the allegation true by a preponderance of
the evidence. See Taylor, 604 S.W.2d at 179.
Because one sufficient ground for revocation will support a trial court’s order revoking
community supervision, we need not address whether the trial court erred by finding the remaining
allegation true. See Smith, 286 S.W.3d at 342. We conclude that the trial court did not abuse its
discretion by adjudicating Appellant guilty and revoking his community supervision. See id. at
342-43. Accordingly, we overrule Appellant’s sole issue.
DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered July 10, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JULY 10, 2019
NO. 12-18-00242-CR
KORY KENNETH PAUL LYONS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 273rd District Court
of Sabine County, Texas (Tr.Ct.No. CR1607279)
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., Hoyle, J., and Neeley, J.