Opinion
No. 05-15-00947-CR
04-04-2016
NICHOLAS CHARLES PATTERSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F15-23547-T
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Myers and Brown
Opinion by Chief Justice Wright
Nicholas Charles Patterson was convicted, following the adjudication of his guilt, of felony assault involving family violence. The trial court assessed punishment, enhanced by one prior felony conviction, at fifteen years' imprisonment. In a single issue, appellant contends the trial court abused its discretion in revoking his community supervision and adjudicating his guilt. We affirm the trial court's judgment.
Appellant waived a jury, pleaded guilty to felony assault involving family violence by impeding the breath, and pleaded true to one enhancement paragraph. See TEX. PENAL CODE ANN. §22.01(a)(1), (b)(2) (West Supp. 2015); TEX. FAM. CODE ANN. §§ 71.0021, 71.005 (West 2014 & Supp. 2015). Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on five years' community supervision, and assessed a $250 fine. The State later moved to adjudicate guilt, alleging appellant violated condition (a) of his community supervision by committing a new offense of possession of a prohibited weapon and condition (t) by failing to report to the domestic violence program as directed. Appellant pleaded not true to the allegations in a hearing on the motion. At the hearing on the motion to adjudicate, the State proceeded only on the new prohibited weapon offense.
Dallas police officer Kenny Lopez testified that on July 1, 2015, he was dispatched to an apartment complex on a disturbance call. When Lopez arrived on the scene, he saw appellant walking in the parking lot with a woman, who was identified as Maria Labib. Appellant matched the description given to police of the person creating the disturbance. Lopez testified he talked to appellant while his partner talked to Labib. Lopez patted down appellant for weapons. Lopez testified he found brass knuckles, which are a prohibited weapon, in appellant's left-rear pocket. Lopez testified that Labib said the brass knuckles belonged to her. Lopez placed appellant in custody and transported him to the jail.
The trial court found that appellant had violated condition (a) of his community supervision. After hearing testimony from appellant as to punishment, the trial court granted the State's motion, revoked appellant's community supervision, and adjudicated him guilty of assault involving family violence. The trial court assessed punishment, enhanced by the prior conviction, at fifteen years' imprisonment.
Appellate review of a trial court's decision to revoke community supervision and adjudicate guilt 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). An order revoking community supervision must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence that would create a reasonable belief that the defendant has violated a condition of probation. Id. at 763-64.
To show appellant committed the offense of possession of a prohibited weapon, the State had to show appellant intentionally or knowingly possessed a prohibited weapon. TEX. PENAL CODE ANN. § 46.05(a) (West Supp. 2015). "Possession" means actual care, custody, control, or management. Id. § 1.07(a)(39). The possession must be voluntary. Id. § 6.01(a). Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing. Id. § 6.01(b). "Knuckles" are a prohibited weapon. Id. § 46.05(a)(2).
In his sole issue, appellant contends the trial court abused its discretion by revoking his community supervision because the State failed to prove he possessed the brass knuckles. Appellant does not dispute that he had the knuckles in his pocket or that he knew what they were. Rather, he argues that because Labib claimed ownership of the knuckles, the State did not prove appellant possessed them.
The State was not required to prove appellant owned the knuckles; it was required to prove appellant exercised care, custody, and control over them and that he knew they were contraband. See Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled in part on other grounds by Robinson v. State, 466 S.W.3d 166, 173 n.32 (Tex. Crim. App. 2015). When contraband is found in the clothing of an accused, a rational fact finder is warranted in finding the accused exercised care, custody, and control over the contraband. See Frazier v. State, 480 S.W.2d 375, 381 (Tex. Crim. App. 1972). We conclude the trial court did not abuse its discretion in revoking appellant's community supervision and adjudicating his guilt. We resolve appellant's issue against him.
Because the trial court found only the violation of condition (a), we do not address his complaint that the State presented no evidence appellant failed to attend a domestic violence program. --------
We affirm the trial court's judgment adjudicating guilt.
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE Do Not Publish
TEX. R. APP. P. 47
1500974F.U05
JUDGMENT
Appeal from the 283rd Judicial District Court of Dallas County, Texas (Tr.Ct.No. F15-23547-T).
Opinion delivered by Chief Justice Wright, Justices Myers and Brown participating.
Based on the Court's opinion of this date, the trial court's judgment adjudicating guilt is AFFIRMED.
Judgment entered April 4, 2016