No. 05-08-01011-CR
Opinion issued May 29, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 203rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F05-72673-NP.
Before Justices WRIGHT, BRIDGES, and FRANCIS. Opinion By Justice WRIGHT.
CAROLYN WRIGHT, Justice.
Curtis Dabney appeals from his conviction for assault-family violence and with a prior conviction for assault-family violence. After revoking appellant's community supervision, the trial court assessed punishment at five years' imprisonment and a $1000 fine. In two points of error, appellant contends the trial court abused its discretion by revoking his community supervision and by imposing a prison term that violates the objectives of the penal code. We affirm.
Background
Appellant waived a jury, pleaded guilty to assault-family violence, with a prior conviction for assault-family violence, and pleaded true to one enhancement paragraph. See Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2008). Pursuant to a plea agreement, the trial court found appellant guilty and assessed punishment at five years' imprisonment, probated for two years, and a $1000 fine. The State later moved to revoke appellant's community supervision, alleging appellant violated six conditions of community supervision. In a hearing on the motion, appellant pleaded not true to the allegations. The trial court found five of the allegations true, revoked appellant's community supervision, and assessed punishment at five years' imprisonment. Applicable Law
Appellate review of an order revoking community supervision 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). In determining questions concerning sufficiency of the evidence in probation revocation cases, the burden of proof is by a preponderance of the evidence. Id. "Preponderance of the evidence" to support an order revoking community supervision means the greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of probation. Id. at 763-64. A finding of a single violation of community supervision is sufficient to support revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App. 1980); Leach v. State, 170 S.W.3d 669, 672 (Tex.App.-Fort Worth 2005, pet. ref'd.). Thus, in order to prevail, appellant must successfully challenge all the findings that support the revocation order. See Jones v. State, 571 S.W.2d 191, 193-94 (Tex.Crim.App. [Panel Op.] 1978); Harris v. State, 160 S.W.3d 621, 626 (Tex.App.-Waco 2005, no pet.). Discussion
In his first point of error, appellant contends the trial court abused its discretion in revoking his community supervision because the evidence was insufficient that he violated any of the conditions of community supervision alleged by the State. Appellant asserts the complainant's testimony was "completely unreliable," and there was no evidence he did not pay costs and fees. The State responds that the evidence was sufficient to show appellant violated some of the conditions of his community supervision and, thus, the trial court acted within its discretion in revoking his community supervision. In its motion to revoke, the State alleged appellant violated condition (a) by committing a new assault offense, condition (h) by failing to pay court costs, fine, and attorney fees, condition (j) by failing to pay supervision fees, condition (k) by failing to pay Crime Stoppers fees, condition (r) by failing to have no contact with the complainant, and condition (s) by failing to register for and attend the Batterer Intervention Prevention Program (BIPP). During the revocation hearing, T.C., the complainant, testified she has three sons, one of whom is also appellant's son. T.C. testified appellant assaulted her on February 21, 2008, while he was on probation for an assault against her. Although she knew appellant had a "no contact" order to stay away from her, she saw appellant whenever he came to see their son. T.C. said not all of the contact with appellant "had been invited." On February 21, 2008, appellant came to her house to retrieve his wallet, which he had left on a previous visit. T.C. opened the door for appellant, then lay back down on the living room couch. She and appellant "had words," after which appellant got upset and "jumped" on her. Appellant "straddled" T.C. and hit her with his fists repeatedly. T.C. covered her face and head with a blanket. When she was able to get off the couch, she ran into the bathroom, where she called the police on her cell phone. Appellant was apprehended as he ran from the house. T.C. sustained "a few scratches" to her face and "maybe a headache." Photographs of her face were shown to the trial judge. T.C. admitted she called appellant's family members and employer on a regular basis trying to get them to help her with appellant. She testified she did not want to be in a relationship with appellant, but appellant told her she "better try to find a way to accept it because [she] was going to have to be with him." T.C. further testified she was the victim in appellant's prior assault convictions in March 1999, August 1999, and September 2007. C.C. is T.C.'s son. C.C. testified he was in a back room when appellant came to the house. He heard his mother and appellant arguing, but did not recall what was said. He also heard "bumping." When he came out of the room and went to the kitchen, he saw T.C. and appellant "in the front room." Appellant was trying to find his keys, and his mother was crying. Appellant "left in a hurry." C.C. also testified he did not see any scratches or bruises on his mother's face, but he saw that her hair "was messed up." Probation officer Juan Bedolla testified he had written documentation from the officer who supervised appellant. According to their records, appellant did not make any payments after being placed on probation although he was gainfully employed. Appellant was delinquent in fees, including $1440 in probation fees, $50 in Crime Stoppers fees, and $200 in urine analysis fees. Appellant also failed to enroll in and attend BIPP classes. Bedolla testified their records do not contain information about court costs or fines, but he could get access to those records if necessary. Peter Brown, appellant's employer, testified appellant was a "good worker." Brown received frequent calls and text messages from T.C. about appellant. The calls "increased dramatically" over time. At one point, Brown told T.C. he would call the police if she did not stop calling. As far as Brown knew, appellant made an effort to get into the court-ordered class. On cross-examination, Brown testified appellant never talked to him about rearranging his schedule to attend the class during the six months that appellant was on community supervision. As the fact finder in this case, it was the trial judge's role to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). We conclude the trial court did not abuse its discretion in revoking appellant's community supervision. See Jones, 571 S.W.2d at 193-94; Harris, 160 S.W.3d at 626. We overrule appellant's first point of error. In his second point of error, appellant argues the punishment assessed by the trial court violates the objectives of the penal code because it is not necessary to prevent a likely recurrence of his criminal behavior, and he could be successfully rehabilitated through probation. The State responds that appellant has failed to preserve his complaint for appellate review and, alternatively, the record does not support his claim. Appellant did not complain about the sentence either at the time it was imposed or in a motion for new trial. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Moreover, the trial court imposed punishment within the statutory range for the offense. See Tex. Pen. Code Ann. § 12.34(Vernon 2003); Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd). We conclude the trial court did not abuse its discretion in assessing the five-year prison term. See Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App. 1984). We overrule appellant's second point of error. We affirm the trial court's judgment.