No. 05-08-00216-CR
Opinion Filed January 29, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-65552-STN.
Before Justices WRIGHT, O'NEILL, and LANG. Opinion By Justice O'NEILL.
MICHAEL J. O'NEILL, Justice.
Laurencio Hernandez, Jr. appeals following adjudication of guilt for aggravated assault with a deadly weapon. In four points of error, appellant contends the trial court abused its discretion by proceeding to an adjudication of guilt. We affirm.
Background
Appellant waived a jury and pleaded guilty to aggravated assault with a deadly weapon, a knife. See Tex. Penal Code Ann. § 22.02(a) (Vernon Supp. 2008). Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on six years' community supervision, and assessed a $2000 fine. The State later moved to adjudicate guilt, alleging appellant violated several terms of his community supervision, including committing a new aggravated assault offense, failing to pay fees and costs, failing to participate in the safe neighborhood training session as ordered by the court, and failing to participate in anger management class as ordered by the court. In a hearing on the motion, appellant pleaded not true to the allegations. The complainant testified appellant threatened him with a shotgun in retaliation for an altercation between one of the complainant's family members and one of appellant's family members. Appellant's wife and daughter testified they were with appellant the entire evening and he did not commit the alleged offense. Appellant denied he was the person who pointed a shotgun at the complainant, insisting he went with his wife to pick his daughter up from work and then spent the evening with them. George Cowand, a probation officer, testified probationers are counseled on staying away from weapons in the safe neighborhood program. Based upon department records, appellant did not participate in the safe neighborhood training session or the anger management class, as ordered by the court, and did not pay the court costs, fine, and fees ordered by the court. Cowand testified appellant was placed on deferred community supervision on April 6, 2007, and was arrested on allegations he violated his community supervision on September 27, 2007. Appellant testified he had an appointment to attend the anger management class on the morning of September 27, 2007, but was arrested before the class began. For the safe neighborhood training session, appellant needed identification, but he had lost his identification several weeks before the scheduled class. Appellant testified he did not pay court costs and fees because although he was working full-time as a carpenter, he made only enough money to care for his family. The trial court found the State had not proven beyond a reasonable doubt that appellant had committed the new aggravated assault offense, and found appellant not guilty of that offense. The trial court also found the State had proven by a preponderance of the evidence that appellant had violated the terms of his community supervision, granted the State's motion, adjudicated appellant guilty, and assessed punishment at six years' imprisonment. Applicable Law
Appellate review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006). In determining questions concerning sufficiency of the evidence in probation revocation cases, the burden of proof is by a preponderance of the evidence. Id. An order revoking probation must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of probation. Id. at 763-64. A finding of a single violation of community supervision is sufficient to support revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App. 1980); Leach v. State, 170 S.W.3d 669, 672 (Tex.App.-Fort Worth 2005, pet. ref'd.). Thus, in order to prevail, appellant must successfully challenge all the findings that support the revocation order. See Jones v. State, 571 S.W.2d 191, 193-94 (Tex.Crim.App. [Panel Op.] 1978); Harris v. State, 160 S.W.3d 621, 626 (Tex.App.-Waco 2005, no pet.). Discussion
In four points of error, appellant contends the trial court abused its discretion by proceeding to an adjudication of guilt because the evidence is insufficient to show he violated the terms of his community supervision. Appellant asserts that because the State failed to prove he committed a new aggravated assault offense, and he was in jail and could not attend the training session or anger management classes, the trial court should not have adjudicated his guilt. Appellant also contends the State failed to show he was able to pay court costs, fine, and fees. The State responds that the trial court did not abuse its discretion by revoking appellant's community supervision and adjudicating him guilty. Appellant testified he did not attend anger management class because he was arrested before the class began, and he did not attend the safe neighborhood training session because he had lost his identification. The trial court was not required to believe appellant's explanations. See Lee v. State, 952 S.W.2d 894, 897 (Tex.App.-Dallas 1997, no pet.) (establishing trial court determines credibility of witnesses and weight of evidence). Appellant's admissions that he did not attend either the anger management class or safe neighborhood training session, standing alone, are sufficient to support the trial court's judgment revoking community supervision. See Watts v. State, 645 S.W.2d 461, 463 (Tex.Crim.App. 1983); Lewis v. State, 195 S.W.3d 205, 209 (Tex.App.-San Antonio 2006, no pet.). Moreover, the State's burden is to prove by a preponderance of the evidence that appellant was able to pay and did not pay as ordered by the trial court. See Tex. Code Crim. Proc. Ann. art. 42.12, § 21(c) (Vernon Supp. 2008). Appellant testified he worked full-time as a carpenter but made only enough to care for his family. Appellant's testimony regarding his employment satisfied the State's burden to show his ability to pay. Id. We conclude the trial court did not abuse its discretion in revoking appellant's community supervision and adjudicating his guilt. See Rickels, 202 S.W.3d at 763-64. We overrule appellant's four points of error.