Martinez, Javier Gutierrez v. State

Affirmed and Memorandum Opinion filed June 30, 2005

Affirmed and Memorandum Opinion filed June 30, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00225-CR

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JAVIER GUTIERREZ MARTINEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 606,541

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M E M O R A N D U M   O P I N I O N

In this appeal of a revocation of community supervision, we determine whether the trial court abused its discretion by finding appellant Javier Gutierrez Martinez violated the terms and conditions of his community supervision. We affirm.

I.  Factual and Procedural Background

In 1994, a jury convicted appellant of murder and sentenced him to a probated sentence of ten years and a $750 fine.^[1]  The State moved to revoke appellant=s community supervision, alleging the following five violations:

(1)       Intentionally avoiding detention by a person he knew to be a police officer;

(2)       Intentionally and knowingly possessing a firearm;

(3)       Using marijuana;

(4)       Failing to submit a urine sample upon the request of the Harris County Adult Probation Department; and

(5)       Delinquency in payment of his community supervision fees. 

Appellant pleaded not true to all five allegations.  After a hearing on the State=s motion to revoke, the trial court found the allegations to be true and assessed punishment at ten years= confinement in the Texas Department of Criminal Justice, Institutional Division.  This appeal ensued.

II.  Discussion

In a single issue, appellant argues the evidence supporting the trial court=s order revoking his community supervision is insufficient because a rational trier of fact could not have found he possessed a firearm and evaded detention. 

In a community supervision revocation proceeding, the State must prove by a preponderance of the evidence that the defendant violated the conditions of his community supervision.  Joseph v. State, 3 S.W.3d 627, 640 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  If the greater weight of credible evidence creates a reasonable belief the defendant violated the terms of his supervision, the State satisfies its burden. See Battle v. State, 571 S.W.2d 20, 21B22 (Tex. Crim. App. 1978); Joseph, 3 S.W.3d at 640.  We review a trial court=s revocation order under an abuse of discretion standard, bearing in mind that proof of a single violation is sufficient to support revocation.  See Cordona v. State, 665 S.W.2d 492, 493B94 (Tex. Crim. App. 1984); Marcum v. State, 983 S.W.2d 762, 766B67 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d).  In a revocation proceeding, the trial court acts as the sole trier of fact, exclusively judging the credibility and weight given to the witnesses= testimony.  McCullough v. State, 710 S.W.2d 142, 145 (Tex. App.CHouston [14th Dist.] 1986, writ ref=d).  We evaluate the trial court=s decision in the light most favorable to its ruling. Id. 

Appellant challenges the evidence supporting only the alleged violations of evading detention and possessing a firearm.  Because a single violation can support revocation, we may affirm the judgment without addressing appellant=s challenges to those violations if we conclude the State met its evidentiary burden on any one of the other, unchallenged violations.  See Jones v. State, 571 S.W.2d 191, 193B94 (Tex. Crim. App. [Panel Op.] 1978) (declining to consider appellant=s challenge to one alleged violation where there was sufficient evidence to support a different alleged violation); see also Joseph, 3 S.W.3d at 640 (noting an appellant must successfully challenge all findings supporting a revocation order to prevail on appeal); Marcum, 983 S.W.2d at 766B67.  We therefore examine the evidence showing appellant violated the terms of his community supervision by using marijuana.

The State=s allegation of marijuana use is supported by a positive urine test.  At the revocation hearing, the State called as a witness Reginald Dunn, appellant=s community supervision officer.  Dunn testified that appellant was restricted from using drugs while on community supervision, and confirmed that on August 27, 2003, appellant tested positive for marijuana.  Appellant did not object to nor contradict this testimony, other than eliciting testimony from Dunn that appellant had taken other drug tests and not tested positive.  Viewing the trial court=s revocation decision in the light most favorable to its ruling, we conclude the State proved by a preponderance of the evidence that appellant violated the conditions of his community supervision by using marijuana.  Thus, we hold the trial court did not abuse its discretion in revoking appellant=s community supervision.  See Flournoy v. State, 589 S.W.2d 705, 708 (Tex. Crim. App. [Panel Op.] 1979) (stating Awhen the finding of a violation of a condition of probation is supported by a preponderance of the evidence and procedural problems are not raised, the discretion of the trial court to choose the alternative of revocation is at least substantially absolute@). 

Because we have concluded the trial court did not abuse its discretion when it found appellant violated the terms of his community supervision through marijuana use, we need not address appellant=s challenges to the sufficiency of the evidence supporting the allegations of evading detention and possession of a firearm.  See Gobell v. State, 528 S.W.2d 223, 224 (Tex. Crim. App. 1975); Jones, 571 S.W.2d at 193B94.  Accordingly, we overrule appellant=s sole issue and affirm the judgment of the trial court.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed June 30, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  In a previous appeal, this Court reformed the judgment to reflect that: (1) appellant=s fine was probated along with his sentence; and (2) the jury found appellant used a deadly weapon in the commission of the offense.  Martinez v. State, 874 S.W.2d 267, 268 (Tex. App.CHouston [14th Dist.] 1994, writ ref=d).