Opinion
No. 10-06-00071-CR
Opinion delivered and filed June 27, 2007. DO NOT PUBLISH.
Appeal from the 220th District Court Hamilton County, Texas Trial Court No. CR07340.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
The trial court revoked Bobby Wayne Chasteen's community supervision for unlawful possession of a firearm and sentenced him to five years in prison. Chasteen challenges this revocation on legal and factual sufficiency grounds. We affirm. A trial court's revocation order is reviewed for abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006). "In determining questions regarding sufficiency of the evidence in probation revocation cases, the burden of proof is by a preponderance of the evidence." Id. at 763-64. This burden is met where the greater weight of the credible evidence creates a reasonable belief that the defendant has violated a condition of his probation. Id. (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex.Crim.App. 1974)). A plea of true to any one alleged violation will support revocation of community supervision. Atchison v. State, 124 S.W.3d 755, 758 n. 4 (Tex.App. — Austin 2003, pet. ref'd); see Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979). The motion to revoke alleged that Chasteen violated the conditions of community supervision by: (1) committing two instances of stalking; (2) admitting smoking marijuana; (3) admitting possessing alcoholic beverages; (4) admitting going to Eddie's Beer Barn; and (5) failing to perform community service as required. Chasteen argues that the conditions of community supervision do not "penalize admitting to such conduct but the actual commission of such a violation." While this may be true, it is difficult to imagine how "admitting to such conduct" would not encompass the commission of an actual violation. Chasteen also contends that he made these admissions while in custody and being interrogated by his probation officer. However, he did not object to the officer's testimony. See TEX. R. APP. P. 33.1. To overturn the court's order, Chasteen "must successfully challenge each finding on which the revocation is based." Harris v. State, 160 S.W.3d 621, 626 (Tex.App.-Waco 2005, pet. dism'd). Chasteen pleaded "true" to allegations two and four. He "cannot challenge a revocation finding on an allegation to which he pleaded `true.'" Id. Relying on Sanders v. State, Chasteen argues that "when insufficient evidence is found as to one count of a motion to revoke community supervision it is not rendered moot by a finding of true on a different count." Sanders does not support this argument. See 657 S.W.2d 817, 820 (Tex.App.-Houston [1st Dist.] 1983, no writ) ("Perhaps this is what the law should be, but we are not persuaded that it is what the law is"). We also decline to do so. See Ex parte Townsend, 137 S.W.3d 79, 82 (Tex.Crim.App. 2004); see also Awadelkariem v. State, 974 S.W.2d 721, 724-26 (Tex.Crim.App. 1998). Because Chasteen pleaded true to two of the five violations of community supervision, the court possessed sufficient evidence by which to revoke Chasteen's community supervision and did not abuse its discretion by doing so. See Moses, 590 S.W.2d at 470; see also Atchison, 124 S.W.3d at 758 n. 4; Lewis v. State, 195 S.W.3d 205, 209 (Tex.App.-San Antonio 2006, no pet.). We overrule Chasteen's sole point of error and affirm the trial court's judgment.
The court found all but one instance of stalking and the failure to perform community service to be "true."
Although he did not brief the issue, Chasteen mentions an ineffective assistance of counsel complaint based on counsel's failure to object. However, Miranda is inapplicable to questioning by probation officers. See Wilkerson v. State, 173 S.W.3d 521, 527-28 (Tex.Crim.App. 2005). "[A] defendant's admission of a violation to a probation officer, by itself, is sufficient to support a revocation." Anthony v. State, 962 S.W.2d 242, 246 (Tex.App.-Fort Worth 1998, no pet.) (citing Cunningham v. State, 488 S.W.2d 117, 119-21 (Tex.Crim.App. 1972), Holmes v. State, 752 S.W.2d 700, 701 (Tex.App.-Waco 1988, no pet.)). Counsel was not obligated to object. See Ladd v. State, 3 S.W.3d 547, 565 (Tex.Crim.App. 1999).