Nos. 05-08-01063-CR, 05-08-01064-CR
Opinion Filed October 26, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause Nos. F05-53226-MH, F05-72336-LH.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
Jermarcus Davis appeals from the revocation of his community supervision in these cases. In two points of error, appellant contends the evidence is insufficient to show he violated his community supervision as alleged in the motions to revoke. We affirm the trial court's judgments.
Procedural Background
Appellant waived a jury and pleaded guilty to two burglary of a habitation offenses. See Tex. Penal Code Ann. § 30.02(a) (Vernon 2003). Pursuant to plea agreements, the trial court assessed punishment at ten years' imprisonment, probated for six years, and a $1000 fine in each case. The State later moved to revoke appellant's community supervision, alleging appellant violated the terms of his community supervision by committing a new robbery offense, failing to pay fees and restitution as directed, and by having a positive urinalysis for marijuana. Appellant pleaded true to the allegations in a hearing on the motions. The trial court granted the motions, revoked appellant's community supervision, and assessed punishment at ten years' imprisonment in each case. 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. An order revoking probation must be supported by a preponderance of the evidence, meaning 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. Additionally, in order to prevail, appellant must successfully challenge all of 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 two points of error, appellant contends the evidence is insufficient to support the revocation of his community supervision because there is a material variance between the trial court's admonishment and his plea concerning the date appellant was convicted and placed on community supervision. The State responds that the trial court did not abuse its discretion in revoking appellant's community supervision in each case because his pleas of true were sufficient. The record shows appellant was convicted and placed on community supervision on November 9, 2005. The State's motions to revoke recite that appellant was convicted and placed on community supervision on November 9, 2005. However, appellant's judicial confessions and stipulations of evidence state appellant was convicted and placed on community supervision on November 19, 2005. At the revocation hearing, the trial judge asked appellant if he was the same person who was placed on community supervision on November 19, 2005, to which appellant responded yes. Appellant asserts his pleas of true to the November 19, 2005 date stated by the trial judge and the written judicial confessions and stipulations of evidence render the evidence insufficient to support the revocations. A variance between the date of judgment of conviction recited in motions to revoke and as written in appellant's plea papers is not reversible error. See Guillot v. State, 543 S.W.2d 650, 652 (Tex. Crim. App. 1976 (holding a variance between date of judgment of conviction and date alleged in State's motion to revoke is not reversible error); see also Moore v. State, 11 S.W.3d 495, 500 (Tex. App.-Hous. (14th Dist.) 2000, no pet.) (variance between alleged serial number on counterfeit bill and the proven serial number was not a material variance and not fatal to the prosecution). Moreover, appellant pleaded true to all of the allegations in the motions to revoke and testified he committed a new robbery offense, failed to make required payments, and used Xanax, ecstacy, and marijuana while on community supervision. 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.). We conclude the evidence is sufficient to show appellant violated the terms of his community supervision, and that the trial court did not abuse its discretion in revoking appellant's community supervision in each case. We overrule appellant's two points of error. We affirm the trial court's judgment in each case.