DocketNumber： 14-08-00328-CR
Filed Date： 2/10/2009
Status： Precedential
Modified Date： 9/15/2015
Affirmed as Modified and Memorandum Opinion filed February 10, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-08-00328-CR
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CHRISTOPHER CHARLES BOLIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Court Cause No. 02-11-07340-CR
M E M O R A N D U M O P I N I O N
Appellant Christopher Charles Bolin appeals the trial court=s order adjudicating his guilt and sentencing him to seven years= confinement for the underlying offense of aggravated assault with a deadly weapon. In two issues, appellant contends (1) the evidence was factually insufficient to prove the allegations in the motion to adjudicate, and (2) the judgment should be modified to correctly reflect the facts of the motion to adjudicate. We modify the judgment, and, as modified, affirm the trial court=s order.
I. Background
Appellant was indicted for aggravated assault with a deadly weapon. On May 20, 2003, the trial court deferred a pronouncement of guilt and placed appellant on deferred adjudication community supervision for seven years. The conditions of appellant=s community supervision required him to, among other things, (1) avoid injurious or vicious habits, including the use of alcohol and controlled substances, (2) work faithfully at suitable employment as far as possible, (3) report to his probation officer at least monthly, (4) submit to medical, chemical, or any other test or examinations for the purpose of determining whether he is using alcohol, narcotics, marijuana, or any other controlled substances, (5) contribute 320 hours of community service restitution, and (6) avoid contact with the victim of the underlying offense.
On July 1, 2004, appellant=s community supervision officer wrote a letter to the trial court explaining that appellant had physical limitations, which prevented him from performing community service. The officer requested postponement for one year of appellant=s community service restitution, waiver of delinquent probation fees, and a reduction in future probation fees. The trial court granted the officer=s request.
On November 8, 2004, the State filed a motion to adjudicate guilt and revoke community supervision alleging that appellant violated the terms and conditions of his community supervision in that he tested positive for marijuana on October 13, 2003, and on October 18, 2004. On January 21, 2005, pursuant to a joint motion of the State and appellant, the trial court amended the conditions of appellant=s community supervision and the State withdrew its motion to adjudicate. On October 15, 2005, the State filed a second motion to adjudicate guilt alleging that in addition to the positive tests for marijuana, appellant tested positive for cocaine on July 5, 2005. The motion further alleged that appellant failed to contribute 320 hours of community service restitution. On November 21, 2005, the trial court again amended appellant=s conditions of community supervision and permitted the State to withdraw its motion to adjudicate.
On April 19, 2007, the State filed a third motion to adjudicate guilt in which it alleged that appellant failed to meet the terms and conditions of community supervision by (1) testing positive for marijuana on October 13, 2003, and October 18, 2004, (2) testing positive for cocaine on July 5, 2005, (3) failing to avoid injurious and vicious habits by failing the aforementioned drug tests, (4) failing to report to the Montgomery County Department of Community Supervision and Corrections for the months of June, July, August, September, October, November, December, 2006 and January, February, and March, 2007, (5) failing to avoid contact with the victim of the underlying offense, and (6) failing to attend substance abuse counseling.
The trial court held a hearing on the State=s motion at which two community supervision officers and appellant testified. Angie Holm, the court liason officer for the Montgomery County Supervision Department, testified that appellant tested positive for marijuana on October 13, 2003, and October 18, 2004, and positive for cocaine on July 5, 2005. Appellant failed to contribute community service hours during the months listed in the motion because he had medical issues and no transportation. Appellant completed anger management classes and one substance abuse class, but failed to complete a second substance abuse class assigned when the trial court amended appellant=s conditions of supervision. Tom Roche, a Montgomery County community supervision officer, testified that after failing to report for three months, appellant was classified as an absconder in September, 2006.
Appellant testified that he was unable to complete substance abuse treatment and community service hours because he does not have transportation. He testified that since he has been on community supervision, he lost his job, his house, and his girlfriend terminated a pregnancy. He absconded because he went to Austin to discuss the terminated pregnancy with his former girlfriend. Appellant admitted that he tested positive for marijuana on October 13, 2003, and October 18, 2004, but denied using cocaine on July 5, 2005.
The trial court found all allegations in the State=s motion to be true with the exception of the allegation that appellant made contact with the victim of the underlying offense. The trial court adjudicated appellant=s guilt and sentenced him to seven years= confinement. Appellant appeals the trial court=s adjudication of his guilt.
II. Standard of Review
We review a trial court=s order revoking community supervision under an abuse of discretion standard. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Moore v. State, 11 S.W.3d 495, 498 (Tex. App.CHouston [14th Dist.] 2000, no pet.). The State=s burden of proof in a revocation proceeding is by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). In conducting our review, we consider all the evidence in the light most favorable to the trial court=s finding to determine whether the trial court could have reasonably found that appellant violated the terms and conditions of his probation by a preponderance of the evidence. See Rickels, 202 S.W.3d at 763B64. The State satisfies its burden of proof when the greater weight of credible evidence before the court creates a reasonable belief that it is more probable that the defendant has violated a condition of probation. Id.; Joseph v. State, 3 S.W.3d 627, 640 (Tex. App.CHouston [14th Dist.] 1999, no pet.). Proof of any one of the alleged violations is sufficient to support a revocation of probation. Moore v. State, 11 S.W.3d at 498.
III. Discussion
A. Sufficiency of the Evidence to Support Revocation of Community Supervision
In his first issue, appellant challenges the State=s evidence supporting the violations of the terms and conditions of his community supervision. Appellant contends that Holm did not testify to the exact dates that he tested positive for marijuana and cocaine, and that she did not have actual knowledge of whether appellant had performed community service. The record reflects the following testimony:
Q.(by the prosecutor): So, I need to ask you now: Did you testify about this particular U[rine] A[nalysis] which was conducted on October 13, 2003?
A. That=s correct.
Q, And was that one of the UAs that was positive for marijuana?
A. That=s correct.
Q. Was there another UA on October 18, 2004, that was positive for marijuana?
A. That=s correct.
Q. And was there another UA, that you=ve already testified to, conducted on July 5, 2005, that was positive for cocaine?
A. That=s correct.
Q. Do your notes indicate if the defendant failed to report in the months of June, July, August, September, October, November, December of 2006; January, February and March of 2007?
A. That is correct.
Q. Did the defendant report during those months?
A. He did not report.
Contrary to appellant=s assertion in his brief, Holm testified to the specific dates on which appellant failed drug tests. She further testified that he did not report to the community supervision office. Moreover, appellant admitted he tested positive for marijuana on the specific dates in October, 2003, and 2004. He further admitted that he traveled to Austin to discuss matters with his former girlfriend and did not report to Montgomery County during that time. Appellant=s admission that he tested positive for marijuana is, by itself, sufficient to support the revocation of community supervision. See Cunningham v. State, 488 S.W.2d 117, 119B21 (Tex. Crim. App. 1972). Because appellant admitted to violating the condition that he avoid illegal drugs, the trial court did not abuse its discretion in revoking appellant=s deferred adjudication probation. Appellant=s first issue is overruled.
B. Modification of the Judgment
In his second issue, appellant contends the judgment should be modified to correctly reflect that he plead not true to all allegations and there was no plea bargain. The State agrees with appellant and we sustain appellant=s issue. The judgment of the trial court is modified to reflect that appellant plead not true to the allegations in the motion to adjudicate and there was no plea bargain agreement. See Tex. R. App. P. 43.2(b).
As modified, the judgment of the trial court is affirmed.
/s/ John S. Anderson
Justice
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).