Byrnes v. State

Full title: DONNY RAY BYRNES, JR., APPELLANT v. THE STATE OF TEXAS, APPELLEE

Court: Court of Appeals of Texas, Twelfth District, Tyler

Date published: Mar 12, 2003

No. 12-02-00192-CR (Tex. App. Mar. 12, 2003)

Opinion

No. 12-02-00192-CR.

Opinion Delivered March 12, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).

Appeal from the 188th Judicial District Court of Gregg County, Texas.

Before WORTHEN, C.J. and GRIFFITH, J.

MEMORANDUM OPINION

JAMES T. WORTHEN, Chief Justice.

Appellant Donny R. Byrnes, Jr. pleaded guilty to the offense of involuntary manslaughter. The trial court assessed punishment at imprisonment for ten years, probated. Upon the timely motion of the State, the trial court revoked Appellant's probation and sentenced him to six years incarceration in the Texas Department of Criminal Justice — Institutional Division. In his sole issue, Appellant complains that the trial court abused its discretion when it revoked his probation. We affirm.

PROBATION REVOCATION

In a motion to revoke probation, the decision whether to revoke rests within the discretion of the trial court. Barnett v. State, 615 S.W.2d 220, 222 (Tex.Crim.App. 1981). Even so, this discretion is not absolute. Scamardo v. State, 517 S.W.2d 293, 297 (Tex.Crim.App. 1974). The trial court is not authorized to revoke probation without a showing that the probationer has violated a condition of the probation imposed by the court. DeGay v. State, 741 S.W.2d 445, 449 (Tex.Crim. App. 1987). The burden of proof in a probation revocation hearing is by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). An appellant's judicial admission of the violation of the terms of his probation is sufficient evidence to support the revocation of probation. Bush v. State, 506 S.W.2d 603, 605 (Tex.Crim.App. 1974). Violation of a single condition of probation is sufficient to support revocation. Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App. 1980). And when a motion alleges several violations of probation, the court's order revoking probation will be affirmed if the proof on any one of the allegations is sufficient. Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App. 1980).

Policy Argument

Appellant's primary argument on appeal is that the court abused its discretion by failing to consider mitigating circumstances in refusing to maintain Appellant's probation. In his brief, he states the following:

By ordering a term of incarceration the court created a negative economic equation. First the victim now has lost their [sic] restitution. Next the taxpayers have incurred an annual expense of $25,000 to $35,000 to incarcerate the individual. In addition the Appellant is using a limited resource since our prisons are close to capacity. Finally more likely than not his family will require governmental assistance during his period of incarceration. As such in measuring the quantity and quality of the violation of probation against the result rendered by the court, the Appellant submits the court abused it's [sic] discretion.

Appellant's unique economy vs. incarceration policy argument is supported neither by legal authority, nor by citations to show where the above-described "facts" are present in the record. The rules of appellate procedure require a party to include a discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue. See TEX. R. APP. P. 38.1(h). Points on appeal which are not supported by argument or authority present nothing for review. Farmers Tex. County Mut. Ins. Co. v. Griffin, 868 S.W.2d 861, 870 (Tex.App.-Dallas 1993, writ denied).

Sufficiency of the Evidence

The State's motion to revoke probation alleged that Appellant had violated the following condition of his probation: "Commit no offense against the laws of Texas, any other State, or the United States." It also alleged that Appellant had not reported to his probation officer as required, had not paid restitution, and had not abstained from drinking alcohol. At the revocation hearing, Appellant testified that when he was living in Louisiana, he became involved in an altercation with a driver on a Louisiana highway. His wife and child were in the car with him when he collided twice with the other driver's vehicle. The occurrence in question was observed by a Louisiana police officer, who arrested Appellant at the scene. Appellant was subsequently charged with DUI, child endangerment, and criminal damage to property. The DUI and child endangerment charges were dropped, but Appellant admitted that he pleaded guilty to the offense of criminal damage to property. This judicial admission is factually sufficient to support the trial court's discretionary order revoking Appellant's probation. Accordingly, because there is sufficient evidence to support the revocation, and because Appellant fails to argue or support any other cognizable theory for reversing the revocation, we overrule Appellant's sole issue. We affirm the judgment of the trial court.