Opinion
Number 13-01-138-CR.
Opinion Delivered and Filed March 13, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 36th District Court of San Patricio County, Texas.
Before Justices YAÑEZ, CASTILLO, and GARZA.
OPINION
Edwardo Buentella Hawkins appeals from an order revoking his community supervision that resulted in punishment of five years confinement for felony driving while intoxicated. We affirm. On May 23, 1996, appellant entered an "open" plea of no contest to the felony of driving while intoxicated. On June 24, 1996, the trial court found appellant guilty and set punishment at five years confinement with a $2,000 fine. In that judgment, the trial court granted appellant's application for community supervision and set forth twenty-nine conditions for appellant to follow. On December 22, 1999, the State filed its first motion to revoke appellant's community supervision, in which it alleged two violations. On January 10, 2000, the State amended the motion to add another violation. The motion to revoke asserted appellant had violated the following terms of his community supervision:
Neither commit nor be convicted of any offense against the Laws of the State of Texas, any other State or of the United States of America;
Abstain from the consumption of alcohol in any form during the term of Community Supervision;Report, within two Community Supervision and Correction Department working days, any change of address, change of job or arrest to the Supervision Officer of San Patricio County, Texas. After a hearing on January 28, 2000, the trial court continued appellant's community supervision but added two new conditions-sixty days confinement and a fine. On December 27, 2000, the State filed its second motion to revoke on grounds that appellant had committed arson, a violation of the first condition of his community supervision quoted above. After a hearing on January 19, 2001, the trial court revoked appellant's community supervision and imposed the original five-year sentence. This appeal ensued.
TEX. PENAL. CODE ANN. §§ 49.04, 49.09 (Vernon 2003).
Applicable Law and Standard of Review
A community supervision revocation proceeding is neither a criminal trial nor a civil trial but rather an administrative hearing. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). In a community supervision revocation hearing, the State need only prove its allegations by a preponderance of the evidence. Herrera v. State, 951 S.W.2d 197, 199 (Tex.App.-Corpus Christi 1997, no pet.) (citing Cobb, 851 S.W.2d at 873). This standard is met when the greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of his probation as the State alleged. Johnson v. State, 943 S.W.2d 83, 85 (Tex.App.-Houston [1st Dist.] 1997, no pet.). In a revocation hearing, the trial judge is the sole trier of the facts. Id. "The trial judge also determines the credibility of the witnesses and the weight to be given to their testimony." Id. Appellate review of an order revoking community supervision is limited to a determination of whether the court abused its discretion. Id. (citing Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App. 1984)). The trial court does not abuse its discretion unless "it applies an erroneous legal standard, or when no reasonable view of the record could support [its] conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion." Dubose v. State, 915 S.W.2d 493, 497-98 (Tex.Crim.App. 1996) (emphasis added).Analysis
By his second point of error, appellant contends the State failed to prove the allegations of the motion to revoke by a preponderance of the evidence and there is a fatal variance between its allegations and the proof offered at the hearing. We disagree. The allegation in the State's motion to revoke, which closely follows the language of the penal code, states:On or about the 18th day of December, 1999, in the County of Jim Wells, State of Texas, the said Edwardo Hawkins, did then and there, with intent to damage and destroy a habitation located in Jim Wells County and State of Texas, intentionally and knowingly start a fire to, or cause an explosion in, said habitation by burning the habitation, knowing the said habitation was within the city limits of an incorporated city or town namely Alice, Texas, against the peace and dignity of the state.Appellant argues that the State's evidence fails to prove by a preponderance: (1) who started the fire; (2) how the fire was started; (3) that the fire was started intentionally; and (4) that the habitation was within the city limits of an incorporated city or town. We disagree. Three witnesses (appellant, his wife, and an expert for the State) testified regarding the four elements appellant challenges. As for the first three elements, appellant's wife testified that appellant had threatened her shortly before the fire by saying he was going to burn her, her house, her car, everything. She said she and appellant's grand-daughter had gone to bed (not in the master bedroom) before the fire started. She stated she heard appellant go in and out of the garage a few times. She said shortly thereafter she realized the house was on fire when appellant came in to take their grand-daughter outside. Then, the State's expert witness testified, in his opinion, the fire was intentionally set. He stated he believed the fire was started on or around the bed of the master bedroom with an open flame device. Finally, appellant testified he could have accidentally started the fire by leaving papers next to the stove while he was cooking. He stated he left the kitchen for a few minutes to stomp out a few pieces of paper that had caught on fire, and when he returned he saw large amounts of smoke. As for evidence regarding the last challenged element, that the habitation was within the city limits of an incorporated city or town, the State's expert and appellant's wife testified the fire occurred at an address within the city of Alice. The State's expert further testified Alice was an incorporated city. Appellant himself testified he bought their home in Alice. Appellant argues that the State's expert recanted his testimony on cross-examination. The following exchange took place between appellant's counsel and the State's expert during cross-examination:
Q: Have you seen the city charter for the City of Alice to know where the corporate lines are?
A: As far as the city limit signs? No, sir.
Q: No, not city, where the corporate lines of the city are —
A: No, Sir.
Q: So you don't know whether that house, from your personal knowledge, was in an incorporated city or not, did (sic) you?
A: No, sir.This line of questioning does not speak to the element at issue, specifically whether or not the habitation was within the city limits of an incorporated city or town. Instead, the questioning concerns an ancillary issue-whether the State's expert had personal knowledge of the corporate boundaries of Alice. Simply stated: on direct examination, the State's expert testified Alice is an incorporated city; while on cross-examination, the same expert testified he did not have personal knowledge as to whether the house was in an incorporated city or not. These answers reveal only that the expert did not come by the knowledge of Alice's incorporation on his own. The cross-examination does not negate the expert's answer on direct, as the expert could have learned of Alice's incorporation through any number of sources other than personally investigating the city charter. Furthermore, these answers do not negate the State's other testimonial evidence that the habitation is within the city limits of Alice. The State established, through appellant's wife and the expert, the fire took place in a habitation located in Alice. In sum, the testimony of the three witnesses reveals some evidence to rebut each of appellant's challenges to the elements of arson proven by the State. Additionally, the combination of the alleged threats and conflicting explanations by the State's expert and appellant offer some evidence in support of the motion to revoke on grounds of arson. After examining the evidence in a light most favorable to the trial court's order, we hold that the trial court did not abuse its discretion in revoking the appellant's community supervision on the ground he committed the offense of arson. The testimony of the witnesses at the revocation hearing is sufficient for the trial court, as the sole judge of the credibility of the witnesses, to have found by a preponderance of the evidence every element of the offense of arson, which was the basis for the revocation. Appellant's second point of error is overruled. By his third point of error, appellant contends the revocation is based on legally and/or factually insufficient evidence. Insofar as appellant's complaint urges a factual sufficiency review under the standard enunciated in Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996), we note that the Clewis standard does not apply to ancillary proceedings such as community supervision revocation hearings. Johnson, 943 S.W.2d at 85; Brumbalow v. State, 933 S.W.2d 298, 300 (Tex.App.-Waco 1996, pet. ref'd). Thus, our review of the trial court's rulings, both as to the facts and the legal significance of those facts, is limited to a determination of whether the trial court abused its discretion. Brumbalow, 933 S.W.2d at 300 (citing Dubose, 915 S.W.2d at 496). We already have held that the trial court did not abuse its discretion in granting the motion to revoke. Appellant's third point of error is also overruled. By his fifth point of error, appellant contends the trial court should have granted a directed verdict or motion for new trial. We disagree. "On appeal, our review of the trial court's refusal to grant the motion [for directed verdict] is limited to the specific grounds stated in the motion." American Petrofina Co. v. Panhandle Pet. Prod., Inc., 646 S.W.2d 590, 593 (Tex.App.-Amarillo 1983, no writ); see Cooper v. Lyon Fin. Servs., 65 S.W.3d 197, 207 (Tex.App.-Houston [14th Dist.] 2001, no pet.). At the hearing, counsel stated, "At this time . . . I would move that based on the fact that there is no evidence that Mr. Hawkins started the fire or anything else, that the Court give us a directed verdict." We already have concluded it was within the trial court's discretion to find some evidence that appellant started the fire. It was not error for the trial court to deny the motion for directed verdict. The trial court's ruling on a motion for new trial "will not be disturbed on appeal in the absence of a showing of an abuse of discretion." Director v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). As grounds for this motion, appellant offers, "[t]he Judgment of Conviction and Sentence imposed . . . should be set aside and a new trial granted as the State . . . failed to prove, beyond a reasonable doubt, the guilt of the Defendant, either as a matter of law or as a matter of fact, as alleged in the original indictment." However, at a community supervision revocation hearing, the State need not prove the guilt of the defendant as alleged in the original indictment. Rather, the State need only prove its allegations by a preponderance of the evidence. Herrera, 951 S.W.2d at 199 (citing Cobb, 851 S.W.2d at 873). Appellant's motion for new trial attacks the State's evidence as to the original indictment, a totally different matter than whether the State met its burden to prove its motion to revoke. Appellant has asserted a burden of proof the State did not bear in proving its motion to revoke. Apparently, after having his community supervision revoked, appellant filed a motion for new trial in an attempt to challenge the earlier judgment five years later. The trial court was correct in denying the motion for new trial. See Jordan v. State, 54 S.W.3d 783, 786 (Tex.Crim. App. 2001); Whetstone v. State, 786 S.W.2d 361, 363 (Tex.Crim. App. 1990) (regular probationers are generally prevented from attacking the original plea in a revocation hearing). Appellant's fifth point of error is overruled. By his fourth point of error, appellant contends trial counsel was ineffective in protecting his interests. Specifically, appellant points to trial counsel's failure to: (1) challenge the testimony of the State's expert witness and; (2) show that appellant's wife, Anita, testified untruthfully. Strickland v. Washington, 466 U.S. 668 (1984), sets forth the standard of review for effectiveness of counsel. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Strickland requires a two-part inquiry. The defendant must first show that counsel's performance was deficient, in that it fell below an objective standard of reasonableness. Thompson, 9 S.W.2d at 812. Second, the defendant must further prove there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id. An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating the effectiveness. Id. The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Davis v. State, 930 S.W.2d 765, 767 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). To defeat the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Given the standard of review for ineffectiveness of counsel, appellant has not met his burden to prove trial counsel's representation fell below an objective standard of reasonableness and the deficient performance prejudiced his defense. Here, the record reflects, although counsel did not object to the State's expert's testimony during direct examination, he did challenge the expert's opinions during cross-examination. Regarding appellant's claim that counsel did not attempt to impeach appellant's wife, the record demonstrates otherwise. Counsel repeatedly questioned her about previous statements she had made concerning appellant and the fire in question. Thus, the evidence is not sufficient to rebut Strickland's presumption that the challenged action of trial counsel was the result of "sound trial strategy." Strickland, 466 U.S. at 689. Appellant's fourth point of error is overruled. In a related issue, by his first point of error, appellant contends the trial court erred by allowing expert testimony that was not reliable, relevant, or sufficiently connected to the facts. However, appellant failed to preserve any error for the court to review regarding the admissibility of expert testimony. To preserve a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely objection. TEX. R. APP. P. 33.1(a)(1). At no time during the hearing on the motion to revoke appellant's community supervision did trial counsel object to the admissibility of the State's expert's testimony. Therefore, this point of error is waived. Appellant blames this failure to object on ineffective assistance from his trial counsel. Having already concluded that appellant did not satisfy his burden to prove counsel's ineffectiveness, this explanation does not operate to negate the waiver. We have considered all of appellant's points, and they are all overruled or waived. The judgment of the trial court is affirmed.