David Randall Drake Jr. A/K/A David Drake A/K/A David Drake Jr. v. State

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-12-00522-CR
____________________
DAVID RANDALL DRAKE JR. A/K/A DAVID DRAKE A/K/A
DAVID DRAKE JR., Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 10-09227
________________________________________________________ _____________
MEMORANDUM OPINION
This is an appeal from the trial court’s judgment revoking David Randall
Drake Jr.’s 1 community supervision. In a single issue, Drake challenges the legal
sufficiency of the evidence supporting the trial court’s determination that he
violated the conditions that governed his placement on community supervision. We
affirm the trial court’s judgment.
1
Drake is also known as David Drake and as David Drake Jr.
1
In carrying out a plea bargain agreement, Drake pled guilty to aggravated
assault. See Tex. Penal Code Ann. § 22.02 (West 2011). The trial court found the
evidence sufficient to find Drake guilty, then deferred further proceedings, placed
Drake on community supervision for five years, and assessed a fine of $1,000.
Subsequently, the State filed a motion to revoke Drake’s placement on
unadjudicated community supervision. Drake pled “not true” to the State’s
allegations that he had violated the terms governing his community supervision.
After conducting an evidentiary hearing, the trial court found that Drake had
violated two of the conditions described in the community supervision order, found
Drake guilty of committing aggravated assault, and assessed Drake’s punishment
at ninety-nine years in prison.
Drake argues the evidence is legally insufficient to support the trial court’s
determination that he violated the conditions of the community supervision order.
In its motion to revoke, the State alleged that on or about October 4, 2012, Drake
violated the community supervision order by threatening to beat and dismember
S.S., his mother, a terroristic threat under the Penal Code. See id. § 22.07 (West
2011) (explaining that a person commits the offense of making a terroristic threat
“if he threatens to commit any offense involving violence to any person . . . with
intent to[] place any person in fear of imminent serious bodily injury”). The motion
2
also alleged that on or about October 4, 2012, Drake consumed whiskey, violating
another condition of the trial court’s community supervision order, which required
that he abstain from the use of intoxicating substances.
Drake’s mother, S.S., testified at the hearing on the motion to revoke.
According to S.S., before Drake threatened her, Drake went to the liquor store and
then returned with a bottle of whiskey. S.S. testified that she saw Drake drink from
the bottle. Also, according to S.S., she argued with Drake about his drinking; at
that point, Drake said that “he was going to take a hammer and beat my head and
face in to where I couldn’t be recognized and that he was going to dismember me
and spread my body parts all over where I never be found.” When asked whether
she feared that Drake might “try to make good on[]” his threat, S.S. responded:
“Well, he - - that’s the second time that I’m - - I’m afraid that a third time that he
may.” There was also evidence when Drake made the threat at issue, he was
serving community supervision based on his guilty plea to an indictment alleging
that he had previously assaulted his mother with a deadly weapon. S.S. also
explained that after Drake made the threat that is now at issue, Drake broke her
phone as she attempted to call the police. After that, she picked up her coffee pot,
hit him on the head with it, ran outside the house, and then called the police.
3
During the revocation hearing, Drake gave the trial court a different account
than his mother gave of the incident. According to Drake, he hid S.S.’s medicine
from her because she had taken too many pills. When S.S. argued with him about
hiding her medicine, she threw a cup of coffee on him; he retaliated by throwing
his cup of coffee at her. At that point, Drake explained that S.S. grabbed the coffee
pot, hit him in the face with it, and she then ran outside and called the police.
Drake denied that he was drinking and denied knowing anything about a bottle of
whiskey. He also denied that he ever threatened S.S.
Drake argues that S.S.’s response about whether she feared Drake when he
threatened her shows that she was not placed in imminent fear of him. According
to Drake, S.S.’s response about whether she was in fear indicates that S.S.
understood his threat to mean that he might harm her in the future; he concludes
that S.S. did not believe that his threat was imminent.
At a revocation hearing, the State has the burden to establish the alleged
violations by a preponderance of the evidence. Rickels v. State, 202 S.W.3d 759,
763-64 (Tex. Crim. App. 2006); Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim.
App. 1993). The trial court is the sole trier of facts and judge of the credibility of
the witnesses, and the trial court decides what weight to give to the testimony.
Cochran v. State, 78 S.W.3d 20, 28 (Tex. App.—Tyler 2002, no pet.). We review a
4
trial court’s decision to revoke community supervision for an abuse of discretion.
Rickels, 202 S.W.3d at 763. The trial court abuses its discretion only if its decision
“was so clearly wrong as to lie outside that zone within which reasonable persons
might disagree.” Wilkins v. State, 279 S.W.3d 701, 704 (Tex. App.—Amarillo
2007, no pet.). We view the evidence in the light most favorable to the trial court’s
ruling. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). Proof of a
single violation of the terms of a defendant’s placement on community supervision
is sufficient to support revocation. Moore v. State, 605 S.W.2d 924, 926 (Tex.
Crim. App. 1980).
A threat of harm that is conditioned on a future occurrence does not
necessarily mean that the threatened consequences are not sufficiently imminent to
fulfill the requirements of Penal Code section 22.07(a)(2). Tex. Penal Code Ann. §
22.07(a)(2) (providing that a person commits an offense if he threatens to commit
any offense involving violence to any person with intent to place any person in fear
of imminent serious bodily injury); see Phillips v. State, 401 S.W.3d 282, 292
(Tex. App.—San Antonio 2013, pet. ref’d); In re A.C., 48 S.W.3d 899, 904 (Tex.
App.—Fort Worth 2001, pet. denied). “The focus of the intent inquiry is on the
intended reaction.” Phillips, 401 S.W.3d at 292. In other words, it is the
5
defendant’s intent, not the victim’s reaction that matters. The defendant’s intent
may be inferred from his acts, words, or conduct. Id. at 293.
The circumstances S.S. described and that the trial court reasonably found
credible allowed the trial court to infer that Drake made the threat at issue to place
S.S. in fear of imminent serious bodily injury so that she would not continue to
interfere with his drinking. Based on S.S.’s testimony that Drake went to the liquor
store, returned with a bottle of whiskey, and drank from the bottle, the trial court
could also infer that Drake was drinking whiskey. Although Drake gave a different
account of the events, the trial court, as the trier of the facts and the judge of the
credibility of the witnesses, was entitled to accept S.S.’s account of the events; it
could reasonably reject Drake’s account of them. We conclude that the evidence
was sufficient to support the trial court’s finding that on October 4, 2012, Drake
violated two conditions of his community supervision by making a terroristic threat
against S.S. and by consuming alcohol. See Rickels, 202 S.W.3d at 763-64; Moore,
605 S.W.2d at 926; Cochran, 78 S.W.3d at 28. Because the trial court did not
abuse its discretion by revoking Drake’s community supervision, we overrule
Drake’s sole issue and affirm the trial court’s judgment.
6
AFFIRMED.
______________________________
HOLLIS HORTON
Justice
Submitted on December 2, 2013
Opinion Delivered January 8, 2014
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
7