Opinion
No. 10-84-009-CR.
September 13, 1984.
Appeal from the 54th Judicial District Court, McLennan County, George Allen, J.
Whitney E. Fanning, Waco, for appellant.
Vic Feazell, Criminal Dist. Atty., Kenneth R. Bennett, Asst. Crim. Dist. Atty., Waco, for appellee.
OPINION
This is an appeal by appellant Deckard from an order revoking his probation and sentencing him to 3 years in the state penitentiary, and a $1,000 fine.
On June 23, 1983, appellant was convicted on guilty plea for theft, and assessed 3 years in the state penitentiary and a $1,000 fine, and was placed on probation. The terms of his probation included a requirement that he report to the McLennan County Adult Probation Officer immediately and thereafter as he shall direct, but at least once each thirty (30) days; and a requirement that he commit no offense against the laws of Texas.
On October 25, 1983 (amended December 13, 1983), the State filed motion to revoke appellant's probation on 6 grounds including that he failed to report to the Adult Probation Officer as directed, but at least once each 30 days between July 26, 1983, and October 21, 1983; and that he had committed an offense against the laws of the State of Texas.
After hearing the trial court revoked appellant's probation and sentenced him to 3 years confinement and a $1,000 fine.
Appellant appeals on 1 ground of error: "The trial court abused its discretion in revoking probation since there was insufficient evidence in the record to support a finding that the appellant failed to report as directed between July 27, 1983, and October 21, 1983."
To reverse a trial court's revocation of probation a clear abuse of discretion must be shown. Flournoy v. State, Tex.Crim.App., 589 S.W.2d 705. The burden of proof is by a preponderance of the evidence. Kulhanek v. State, Tex.Crim.App., 587 S.W.2d 424. The trial court is the sole trier of facts, witness credibility and weight to be given testimony. Battle v. State, Tex.Crim.App., 571 S.W.2d 20.
In this case the probation officer testified appellant reported July 26, 1983; and that appellant did not report in August, September or October, 1983. Appellant was arrested in Burnet County in October for passing a forged prescription.
Appellant testified he reported in August but admitted he did not report in September; and further testified he plead guilty in Burnet County to a criminal offense.
The trial court did not abuse its discretion in revoking appellant's probation.
Appellant's ground of error is overruled.
AFFIRMED.