McHael Dewayne Strambler v. State

Affirmed and Memorandum Opinion filed January 15, 2013.
In The
Fourteenth Court of Appeals
NO. 14-11-01090-CR
MCHAEL DEWAYNE STRAMBLER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Cause No. 57,649
MEMORANDUM OPINION
This is an appeal from a revocation of a probated sentence. In 2008,
appellant pleaded guilty to the possession of a controlled substance in a drug free
zone. He was sentenced to a term of four years’ imprisonment, which the trial
court probated to four years’ community supervision. In 2011, the State moved to
revoke the probated sentence, alleging in twenty-one paragraphs that appellant had
violated the terms and conditions of his community supervision. Appellant pleaded
true to two of the allegations. After a hearing, the trial court found a total of four
allegations to be true, executed appellant’s sentence, and credited him for time
already served. In his sole issue, appellant challenges the trial court’s finding with
respect to one of the four allegations. We affirm.
In his felony supervision order, appellant was ordered, among other things,
to commit no offense against the laws of this State, to totally abstain from
alcoholic beverages and illegal substances, and to complete a supervised drug
treatment program. In its petition for revocation, the State alleged that appellant
violated each of these conditions. The allegations specifically stated that appellant
failed to abstain from marijuana in March 2009; that he failed to abstain from K2
Spice, a synthetic cannabinoid, in July 2011; that he consumed alcohol in
December 2008; and that he was unsuccessfully discharged from a transition
treatment center in July 2011. Appellant pleaded true to the use of marijuana and
the consumption of alcohol. He pleaded not true to the remaining allegations.
During the revocation hearing, the State produced just a single witness,
appellant’s community supervision officer. The officer testified that appellant
admitted to using K2 Spice, which she described as a ―synthetic marijuana.‖ The
admission was documented on a self-admit form, signed by appellant, where he
wrote that he used the substance on a single occasion because he was ―stressed out
and [having] problems.‖ The officer testified that while she did not know the
chemical composition of K2 Spice, she was certain that it was not a legal drug,
based on her own drug education training.
At the conclusion of the hearing, the trial court orally found that the State’s
allegation was true with respect to appellant’s use of K2 Spice. The court’s docket
sheet conflicts with that oral finding, reflecting instead that the allegation was not
true. Appellant does not address this contradiction in the record. Rather, he argues
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that the evidence is insufficient to support the trial court’s oral finding because the
evidence did not show that K2 Spice was an illegal drug at the time of the alleged
use.
We review a trial court’s decision in a probation revocation proceeding for
an abuse of discretion, and when the sufficiency of the evidence is challenged, we
examine the evidence in the light most favorable to the trial court’s ruling.
Cardona v. State, 665 S.W.2d 492, 493–94 (Tex. Crim. App. 1984); Rodriguez v.
State, 2 S.W.3d 744, 746 (Tex. App.—Houston [14th Dist.] 1999, no pet.). The
State must prove every element of the ground asserted for revocation by a
preponderance of the evidence. Rickels v. State, 202 S.W.3d 759, 763–64 (Tex.
Crim. App. 2006); Moore v. State, 11 S.W.3d 495, 498 (Tex. App.—Houston [14th
Dist.] 2000, no pet.). This burden is satisfied when the evidence creates a belief,
more probable than not, that a condition of probation has been violated as alleged.
Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. [Panel Op.] 1980); Joseph
v. State, 3 S.W.3d 627, 640 (Tex. App.—Houston [14th Dist.] 1999, no pet.). As
the trier of fact, the trial court is the sole judge of the credibility of witnesses and
of the weight given to their testimony, and any inconsistencies in the evidence are
resolved in favor of the judgment. Battle v. State, 571 S.W.2d 20, 21 (Tex. Crim.
App. [Panel Op.] 1978). Proof of any one of the alleged violations is sufficient to
support a revocation of probation. Trevino v. State, 218 S.W.3d 234, 240 (Tex.
App.—Houston [14th Dist.] 2007, no pet.); Alexander v. State, 879 S.W.2d 338,
340 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d).
Appellant’s brief is underdeveloped in this case. In his ―Issue Presented‖
section, appellant seems to frame his argument as one sounding in the Ex Post
Facto Clause. The ―Argument‖ section focuses on an entirely separate matter,
however. In that section, which consists of just two sentences, appellant complains
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about the community supervision officer and whether she was qualified to testify
about K2 Spice. The brief does not contain a single citation to authority, which
only further confounds appellate review.
Based on the inadequate briefing, we offer only the following two responses.
First, to the extent that appellant complains about the officer’s qualifications, we
note that the officer was not called to testify in any capacity that would require
expert knowledge of K2 Spice, its chemical composition, or the methods for
detecting it in a person’s body. The officer merely testified that appellant admitted
to her to having used the substance. She was competent to testify about this fact,
which was also established by the self-admit form admitted into evidence.
Second, even if the K2 Spice finding did present an ex post facto issue,
appellant could not attack the revocation on that basis alone. The trial court found a
total of four allegations to be true—the other three relating to the marijuana, the
alcohol, and the drug treatment program. To overturn a revocation order, a
defendant must successfully challenge each finding on which the revocation is
based. See Jones v. State, 571 S.W.2d 191, 193–94 (Tex. Crim. App. [Panel Op.]
1978); Joseph, 3 S.W.3d at 640. Appellant has not challenged the other three
findings, and the evidence is sufficient to support each of them. As previously
mentioned, appellant pleaded true to the allegations that he failed to abstain from
marijuana and alcohol. A plea of true, standing alone, is sufficient to support the
trial court’s judgment of revocation. See Moses v. State, 590 S.W.2d 469, 470
(Tex. Crim. App. [Panel Op.] 1979); Moore, 11 S.W.3d at 498 n.1. The community
supervision officer also testified that appellant was unsuccessfully discharged from
a drug treatment program for being ―out of place.‖ Because this evidence supports
the trial court’s finding, the trial court could not have abused its discretion in
revoking appellant’s probated sentence.
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The trial court’s judgment is affirmed.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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