No. 14-08-00012-CR
Opinion filed April 7, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 262nd District Court Harris County, Texas, Trial Court Cause No. 1112309.
Panel consists of Justices FROST, BROWN, and BOYCE.
WILLIAM J. BOYCE, Justice.
Appellant Mark Thomas appeals the trial court's order adjudicating his guilt, sentencing him to 20 years' confinement, and assessing a fine of $1,000 for the offense of aggravated assault. Appellant contends that the trial court abused its discretion in granting the State's motion to adjudicate based on the testimony the State presented at the adjudication hearing. We affirm.
Background
Appellant pleaded guilty to the offense of aggravated assault on April 26, 2007. The trial court deferred adjudication of guilt for the aggravated assault, in which appellant "pulled a gun on [his common law wife Sharon Turner] and her son." The trial court placed appellant on community supervision for five years and assessed a $1,000 fine. On December 3, 2007, the State filed a motion to adjudicate appellant's guilt alleging that he violated the terms and conditions of community supervision by: (1) committing an offense against the State of Texas on November 29, 2007 and causing "bodily injury to SHARON DENIS TURNER, a MEMBER OF THE DEFENDANT'S HOUSEHOLD . . . by STRIKING THE COMPLAINANT WITH HIS HAND;" (2) failing to participate in the Community Service Restitution Program; (3) failing to pay supervision fees, laboratory processing fees, court costs, and a fine; and (4) failing to participate in an anger management treatment program. The trial court conducted a hearing on the State's motion to adjudicate on December 19, 2007. At the hearing, appellant's common law wife Sharon Turner testified that she and appellant were returning home to their apartment complex on November 29, 2007. As she was entering the apartment complex, she hit the gate with their car because it was dark and she was unable to see well. The complainant testified that she and appellant both got upset about her hitting the gate, but that their argument became physical when they arrived at their apartment. The complainant further testified that appellant struck her on the back and then on her wrist twice with his cane, causing bruising and swelling on her wrist. Appellant also pulled her hair as she was leaving the apartment to go to a gas station to call 9-1-1 for help. The complainant testified that she was upset and crying. Deputy Terrance Burks responded to the call. He testified that when he met the complainant "her clothes were kind of in disarray," "[h]er hair was messed up," and she was crying. He testified that the complainant appeared stressed. He also stated that the complainant told him that "she had an argument with [appellant]," "he was upset because they had a car crash, and [appellant] hit her several times with a closed fist, open hand and with his cane." Deputy Burks observed that her wrist was swollen and that "[s]he had redness, swelling, discoloration to her face." He believed that the swelling to her eye and face were caused by appellant hitting her with his hand, and that the swelling to her wrist was caused by appellant hitting the complainant with his cane. Appellant also testified at the hearing. He denied striking the complainant with his cane or fist and claimed that she suffered her injuries when she hit the gate with the car. According to appellant, the complainant hit her head on the steering wheel. Appellant also claimed that the complainant grabbed his hand as she was leaving the apartment "in order to provoke [him] to do something" because she knew he suffered from rheumatoid arthritis. Appellant testified that the complainant lied when she claimed he assaulted her, and that he was "the victim in this case." Appellant admitted that he "had two prior assaults of a family member cases against [his] wife, [the complainant]" and that he was on deferred adjudication for aggravated assault because he "pulled a gun on [the complainant] and her son." The trial court's liaison officer, Janie Hernandez, also testified at the hearing. She stated that appellant did not comply with the terms and conditions of community supervision because he was delinquent in performing community service hours and paying his supervision fees, laboratory processing fees, court costs, and fine. Hernandez also testified that appellant failed to participate in an anger management program as required by the terms and conditions of community supervision. The trial court found that appellant violated the terms of his community supervision, found appellant guilty of aggravated assault as originally charged, and sentenced him to 20 years' confinement and assessed a $1,000 fine. Appellant timely filed this appeal. Analysis
A defendant may appeal from an imposition of guilt from deferred adjudication occurring after June 15, 2007. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2008). An imposition of guilt is reviewed in the same manner as a revocation of community supervision. Id. We review a trial court's order revoking community supervision under an abuse of discretion standard See Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006); Moore v. State, 11 S.W.3d 495, 498 (Tex.App.-Houston [14th Dist.] 2000, no pet.). In conducting our review, we consider all the evidence in the light most favorable to the trial court's finding to determine whether the trial court reasonably could have found that appellant violated the terms and conditions of his community supervision by a preponderance of the evidence. See Rickels, 202 S.W.3d at 763-64. The State satisfies its burden of proof when the greater weight of credible evidence before the court creates a reasonable belief that it is more probable that the defendant has violated a condition of community supervision. Id.; Joseph v. State, 3 S.W.3d 627, 640 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Proof of any one of the alleged violations is sufficient to support a revocation of community supervision. Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App. [Panel Op.] 1980); Moore, 11 S.W.3d at 498. The trial court is the sole trier of fact and determines the credibility of the witnesses and the weight to be given to their testimony. See Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.]1981). Although the trial court found that appellant committed several specific violations of the terms and conditions of community supervision, appellant challenges only one of the grounds on appeal, devoting his entire argument to his contention that the trial court abused its discretion by adjudicating appellant's guilt based on insufficient evidence of the offense against the laws of the state — the November 29, 2007 assault. Appellant makes a single statement that "[h]is other minor technical violations would not have been sufficient on their own," but he fails to cite to the record or provide any legal authority to support this contention, and therefore he has waived any such argument. See Tex. R. App. P. 38.1(i). Moreover, by failing to challenge the other bases for the trial court's ruling, appellant cannot demonstrate that the trial court abused its discretion in adjudicating his guilt. Proof of any one of the alleged violations will support the trial court's judgment. See O'Neal v. State, 623 S.W.2d 660, 661 (Tex.Crim.App. 1981). Thus, even if appellant were to prevail on the one argument he asserts on appeal, he still could not establish an abuse of discretion because there remain several unchallenged bases for the trial court's judgment. Notwithstanding appellant's waiver and procedural default, in the interest of justice we address his argument that the trial court abused its discretion by granting the State's motion to adjudicate his guilt because he had a reasonable explanation for the complainant's injuries Deputy Burks observed "as well as an explanation for the events that led to this charge." Although appellant acknowledges that the fact finder determines the credibility of the witnesses, he claims that the trial court should not have adjudicated him based upon Deputy Burks's testimony because "the court could not judge [the complainant] herself, only the officer." Contrary to appellant's assertion that the trial court did not hear from the complainant at the hearing and adjudicated appellant's guilt based only upon Deputy Burks's testimony, the record clearly reflects that the complainant herself testified that appellant assaulted her. She stated that appellant pulled her hair, struck her on the back with his cane, and also struck her on the wrist with his cane causing swelling and bruising. Deputy Burks confirmed the complainant's assertions. Although appellant testified that he did not assault the complainant and that she suffered her injuries when she hit the gate with their car, the trial court was free to believe the complainant and disbelieve appellant. Viewing the evidence in the light most favorable to the trial court's finding, we conclude the trial court acted within its discretion in finding that appellant assaulted the complainant in violation of state law and the conditions of community supervision. Accordingly, we overrule appellant's sole issue. Conclusion
The judgment of the trial court is affirmed.