Opinion
No. 10-03-00204-CR
Opinion delivered and filed January 5, 2005. DO NOT PUBLISH.
Appeal from the 249th District Court, Johnson County, Texas, Trial Court # F34400. Affirmed.
Keith Bradley, Bradley Cain, L.L.C., Cleburne, TX, for Appellant/Relator. Dale S. Hanna, Johnson County District Attorney, David W. Vernon, Johnson County Asst. District Attorney, Cleburne, TX, for Appellee/Respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Chief Justice Gray concurs in the judgment without a separate opinion)
MEMORANDUM OPINION
The trial court revoked Michael James Elam's community supervision for felony driving while intoxicated and imposed the original ten-year sentence. Elam contends in his sole issue that the court abused its discretion by revoking his community supervision because the State failed to prove the allegations of its revocation motion. Because Elam does not challenge every ground on which the court revoked his community supervision and because the State adequately proved that he violated the terms of community supervision, we will affirm. The revocation motion alleges that Elam violated the terms of his community supervision by: (1) committing the offenses of DWI, retaliation, and theft; (2) consuming an alcoholic beverage; and (3) failing to pay his community supervision fees, court costs, and the crime stoppers fee. The trial court found that Elam violated his community supervision by: (1) committing a subsequent DWI; (2) consuming an alcoholic beverage; and (3) failing to pay his community supervision fees and the crime stoppers fee. Elam contends that the court abused its discretion by revoking his community supervision because the State offered hearsay evidence to prove the DWI and retaliation allegations and because the criminal charges were subsequently dismissed. Elam does not challenge the court's findings regarding his consumption of an alcoholic beverage and his failure to pay the required fees. Because Elam does not challenge every ground on which his community supervision was revoked, we cannot say that the court abused its discretion. See Joseph v. State, 3 S.W.3d 627, 640 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Smith v. State, 790 S.W.2d 366, 367 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd). The State must prove alleged violations of community supervision by a preponderance of the evidence. Moreno v. State, 22 S.W.3d 482, 488 (Tex.Crim.App. 1999); Quisenberry v. State, 88 S.W.3d 745, 749 (Tex.App.-Waco 2002, pet. ref'd). The officer who arrested Elam for the subsequent DWI testified that Elam had the "strong smell of alcoholic beverage on his breath." Elam told the officer he had drunk "a couple of beers." Elam's supervision officer testified that Elam had not paid his community supervision fees or the crime stopper's fee. Thus, the State proved the unchallenged allegations by a preponderance of the evidence. Accordingly, we overrule Elam's sole issue and affirm the judgment.
The DWI, retaliation, and theft charges all arose in Wood County. According to documents attached to Elam's brief, the Wood County prosecutor requested the dismissal of the DWI and retaliation charges about 6 months after Elam's community supervision was revoked because he had been sentenced to prison on the revocation. Dismissal of the theft charge was sought "in the interests of justice." But see Hill v. State, 90 S.W.3d 308, 314 (Tex.Crim.App. 2002) (appellate court may not consider documents attached to appellate pleadings but not included in appellate record).