Opinion
No. 08-01-00356-CR
July 10, 2003 (Do Not Publish)
Appeal from the 70th District Court of Ector County, Texas (TC#A-25,684)
Before Panel No. 3, BARAJAS, C.J., LARSEN, and CHEW, JJ.
OPINION
This is an appeal from a revocation of community supervision. The single issue is whether the trial court abused his discretion because the evidence is legally insufficient to support the revocation. We reverse and remand. In September 1997, Appellant pled guilty to possession of cocaine; he was placed on 10 years' community supervision. In May 2001, the State moved to revoke Appellant's community service. The single allegation was that:
On or about 1-22-01, in Ector County, Texas, Saul Carrasco Lara did commit an offense against the laws of the State of Texas; to wit: Aggravated Sexual Assault. This is a violation of Rule (a) of the defendant's terms and conditions of Community Supervision.At the revocation hearing, the alleged victim of the assault, D.E., testified that he was thirteen years old when he first met Appellant on April 4, 2000. D.E. was on spring break from school and visiting his grandmother in Odessa, Texas. Appellant lived in the same apartment complex and invited D.E. into his apartment to watch television. D.E. testified:
Q: So you went to his apartment to watch TV?
A: Yes, ma'am.
Q: How long were you there?
A: About 30 minutes.
Q: Anything happen wihile you were there?
A: Yes, Ma'am.
Q: What happened?
A: He came and sat next to me on his other couch that I was sitting on from across the room and he just started touching my leg.
Q: How was he touching your leg?
A: Just rubbing it.
Q: With his hand?
A: Yes, ma'am.
Q: Was this over your clothes or under your clothes?
A: Over.
Q: Okay. Did anything else happen?
A: Yes, ma'am.
Q: Can you tell us what happened?
A: He told me to unzip my pants and take them off.
Q: Did you do that?
A: I don't remember.
Q: Okay. Anything else?
A: No. I think I left after that.
Q: You left after that?
A: Uh-huh.
Q: How long were you in Odessa at that time?
A: Just a week.
Q: And did you see Mr. Lara again that week while you were in Odessa?
A: No, ma'am.D.E. turned fourteen years old in July 2000, and he did not see Appellant again until September 2000, when D.E. moved to Odessa to live with his father. About a week after arriving in Odessa, D.E. went to Appellant's apartment. D.E. asked Appellant to buy him some wine and D.E. got drunk. Appellant then had D.E. remove his pants and performed oral sex on the boy. These activities continued frequently until mid-December 2000. We review an order revoking community supervision by determining whether the court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984). If the State fails to meet its burden of proof, the trial court abuses its discretion in issuing a revocation order. Greathouse v. State, 33 S.W.3d 455, 458 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). The State bears the burden to establish the alleged violations of the trial court's order by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993); Becker v. State, 33 S.W.3d 64, 66 (Tex.App.-El Paso 2000, no pet.). It is the trial court's duty to determine whether the allegations in the revocation motion are true. See Langford v. State, 578 S.W.2d 737, 739 (Tex.Crim.App. 1979). In making this determination, the trial court is the sole trier of facts, and the judge of the credibility of the witnesses, and the weight to be given the testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex.Crim.App. [Panel Op.] 1980); Johnson v. State, 2 S.W.3d 685, 687 (Tex.App.-Fort Worth 1999, no pet.). One ground for revocation, if proven, is sufficient to revoke a defendant's community supervision. Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App. 1980). On review, the appellate court examines the record in the light most favorable to the trial judge's ruling to determine whether the State established by a preponderance of the evidence that the defendant violated the terms and conditions of community supervision as alleged. See Jackson v. State, 645 S.W.2d 303, 304 (Tex.Crim.App. 1983); Johnson, 2 S.W.3d at 687. If there is some evidence to support the finding of even a single violation, the order must be upheld. See Becker, 33 S.W.3d at 66-7. The record before this Court reveals at least two violations of Appellant's conditions of community supervision, but for reasons known only to the State, the only violation charged was aggravated sexual assault. The State could have charged the lesser included offense of sexual assault, Tex.Pen. Code Ann. § 22.011 (Vernon 2003); it could have charged that Appellant possessed an "intoxicating beverage" in violation of Rule (j) of the terms and conditions of his community supervision. The elements of the alleged crime, aggravated sexual assault, that the State had to prove by a preponderance of the evidence are that Appellant (1) intentionally or knowingly, (2) caused the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person including the actor, and (3) the victim is younger than fourteen years of age. The evidence is clear that D.E. was less than fourteen years of age when he first met Appellant. There is, however, no evidence that there was any illegal sexual contact at the time. The illegal sexual contacts began in September, and by then the victim was not younger than fourteen years of age. The State argues that evidence is sufficient because: (1) the "continuing predation conduct started when [the victim] was 13;" and (2) it can be inferred that the victim actually took his pants off in April 2000 even though he could not remember what he did after Appellant asked him to unzip and take off his pants. We find both arguments wholly unpersuasive. As noted above, the State's burden of proof in a revocation proceeding is by a preponderance of the evidence. See Cobb, 851 S.W.2d at 873. "Preponderance of the evidence" is the greater weight and degree of credible testimony. Johnson, 2 S.W.3d at 687, citing Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 95 (1935). Where the legal sufficiency of the evidence to support the trial court's order is challenged, we review the evidence in a light most favorable to the trial court's findings. See Jackson, 645 S.W.2d at 304. Proceedings to revoke community supervision forecasts a possible deprivation of liberty; consequently, the application of appropriate due process of law is constitutionally required. Caddell v. State, 605 S.W.2d 275, 277 (Tex.Crim.App. 1980); Ortega v. State, 860 S.W.2d 561, 564 (Tex.App.-Austin 1993, no pet.). Due process requires, among other protections, written notice of the claimed violations and a hearing on the matter. Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656, 661 (1973); Ex Parte Martinez, 742 S.W.2d 289, 290-91 (Tex.Crim.App. 1987); Ex parte Harrington, 883 S.W.2d 396, 401 (Tex.App.-Fort Worth 1994, pet. ref'd). A finding of true on the allegation that Appellant committed the crime of aggravated sexual assault required proof that the child victim was under the age of fourteen years when the indecent assault took place. The burden of the State was to prove on the balance of probabilities that the indecent conduct alleged occurred when the child was less than fourteen years of age. That was not done. The only evidentiary argument made by the State is that the trial court could have inferred from D.E.'s testimony that he did not remember if he unzipped and took off his pants in April 2000 that a sexual assault occurred. We find, however, that D.E.'s testimony about the April 2000 visit is simply not capable of supporting the necessary or reasonable inference to satisfy the onus of proof. Indeed, the evidence is much more conclusive that the indecent sexual assaults first began in September 2000, after D.E. was fourteen years of age and ended in December 2000. The State's second argument that we should look to when the "sexual predation" began rather than when the sexual assault took place is without merit. Fitting the profile of a predatory pedophile is not an element of the crime that Appellant was alleged to have committed. We sustain the Appellant's issue and reverse and remand to the trial court.