Walker, Michael Joe, Jr. v. The State of Texas--Appeal from 282nd District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MICHAEL JOE WALKER, JR.,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-01-00256-CR

Appeal from

282nd District Court

of Dallas County, Texas

(TC# F-0023362-SMS)

O P I N I O N

Appellant Michael Joe Walker, Jr. appeals from the trial court=s decision to revoke his probation. We affirm.

Summary of the Evidence

On October 5, 2000, Walker pleaded guilty to two counts of burglary of a habitation. The first burglary took place on May 2, 2000, the second on May 17, 2000. At his plea hearing, Walker testified that his role in both burglaries was to act as lookout for his friends who actually entered the homes. Walker was 17 years old at the time of the hearing.

The trial court found Walker guilty and sentenced him to ten years= deferred adjudication probation and a $500 fine on the May 2 burglary charge. At the same time, the trial court sentenced Walker to ten years= confinement and a $500 fine for the May 17 burglary. Sentence was suspended pursuant to an open plea and Walker was ordered to participate in a boot camp program. Upon completion of boot camp, Walker was placed on probation for ten years. He was also required to make restitution in the amount of $4,385, payable in monthly installments of $50 on or before the first day of each month upon his return from boot camp, and pay court costs. Other relevant probation terms imposed on Walker included a requirement that he report to his probation officer Amonthly, twice monthly, or weekly@ with the frequency of those reports to be set by the probation officer.

On April 3, 2001, a capias issued for Walker alleging he violated the terms of both his straight and deferred probation. The State also filed its motion to revoke (Athe Motion@) Walker=s probation alleging he failed to report to his probation officer on a Aweekly, monthly or twice monthly@ basis in March 2001, failed to pay his monthly community supervision fee, and failed to make restitution on a monthly basis.

On May 25, 2001, the trial court held a hearing on the State=s Motion. Walker pleaded Anot true@ to the Motion=s allegations. The only witness presented at the hearing was Walker=s probation officer, Tracy Jennings.

At the hearing, Jennings testified she became Walker=s probation officer upon his release from boot camp in January 2001. She met with Walker twice in February 2001. At that time, he was given instructions to report to Jennings on March 9, 16, and 30. Walker unexpectedly reported to Jennings on March 2. He was instructed by the duty officer to return on March 9. Walker did not report to Jennings on any of those dates. Jennings= attempts to locate Walker were unsuccessful, although she did concede that the March 2 report would have counted towards Walker=s reporting requirements for March.

Although Jennings had no contact with Walker after March 2, she was aware that he was arrested in Richardson on a traffic ticket offense and was in jail from March 16 to March 21. Nevertheless, she testified that Walker was still required to make up any missed visits in March.

Jennings initially could not recall whether Walker had paid any restitution since his release from boot camp. However, on cross-examination and after a review of her file, she admitted that Walker was $150 in arrears on restitution payments since his release from boot camp. In the Motion, the State alleged Walker failed to pay $300 in restitution.

After hearing the evidence and the arguments of counsel, the trial court found Walker guilty on the deferred adjudication case and revoked his probation on the straight probation case. Walker was ordered to serve ten years in prison. This appeal concerning the revocation of the straight probation for the May 17 burglary timely followed.

Standards of Review

Probation may be revoked upon a finding that the probationer has violated a term of his or her probation. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Wilson v. State, 645 S.W.2d 932, 934 (Tex. App. Dallas 1983, no pet.). Our review of a probation revocation proceeding is limited to a determination of whether the trial court abused its discretion. Bennett v. State, 476 S.W.2d 281, 282 (Tex. Crim. App. 1972); Wilson, 645 S.W.2d at 934.

To determine whether the trial court has abused its discretion, we look to whether the State has met its burden of proof. See Cardona v. State, 665 S.W.2d 492, 493 94 (Tex. Crim. App. 1984). That burden is met when the greater weight of the evidence before the court creates a reasonable belief that the probationer violated a condition of probation. Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983), disapproved on other grounds by Saxton v. State, 804 S.W.2d 910, 912 n.3 (Tex. Crim. App. 1991); Williams v. State, 910 S.W.2d 83, 85 (Tex. App.--El Paso 1995, no pet.). In other words, the State=s burden of proof in a probation revocation hearing is by a preponderance of the evidence. Cobb, 851 S.W.2d at 874; Williams, 910 S.W.2d at 85.

In revocation proceedings, the trial judge is the sole trier of the facts, 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); Ross v. State, 523 S.W.2d 402, 403 (Tex. Crim. App. 1975). It is the trial court=s duty to judge the credibility of the witnesses and to determine whether the allegations in the motion to revoke are true or not. Langford v. State, 578 S.W.2d 737, 739 (Tex. Crim. App. 1979). This Court must therefore view the evidence presented at the revocation proceeding in a light most favorable to the trial court=s ruling. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981); Lee v. State, 952 S.W.2d 894, 897 (Tex. App.--Dallas 1997, no pet.).

Failure to Pay Restitution

There is no dispute that the trial court=s original probation order required Walker to begin paying restitution of $50 a month upon his release from boot camp. In its Motion, the State alleged that Walker failed to pay $300 in restitution. The evidence adduced at the revocation hearing was that Walker only owed $150 in restitution.

Based on these facts, Walker contends the trial court abused its discretion in revoking his probation because the State first failed to prove that Walker owed $300 restitution as alleged in the Motion, and second, failed to produce any evidence that Walker did not pay any restitution. With regard to Walker=s first two issues, he specifically alleges that the Motion=s allegation that he failed to pay $300 in restitution constitutes an improper modification of the terms of his probation.

We, however, find that Walker=s claim of improper modification is really a complaint that a variance existed between the evidence adduced at the revocation hearing and the allegations in the State=s Motion. To preserve a variance issue for appellate review, the defendant must timely object to that variance in the trial court or risk waiver of his right to review. Hunt v. State, 5 S.W.3d 833, 835 (Tex. App.--Amarillo 1999, pet. ref=d); In re C.C., 13 S.W.3d 854, 859 (Tex. App.--Austin 2000, no pet.); Tex. R. App. P. 33.1. The instant record reveals that no objection to the variance now complained of was made to the trial court in either written or oral form. As such, Walker has waived his right to object to the revocation of his probation on this ground, and the trial court=s decision to revoke on the failure to pay restitution ground must be affirmed.

We do note that even if Walker had preserved his variance argument, as a substantive matter, the evidence adduced at the hearing proved that Walker failed to pay $150 in restitution. The standard by which the trial court=s decision will be reviewed is whether the greater weight of the evidence before the court creates a reasonable belief that the probationer violated a condition of probation. Jenkins, 740 S.W.2d at 437; Williams, 910 S.W.2d at 85. Jennings testified that Walker failed to pay $150 in restitution. That evidence creates a reasonable belief that Walker violated the terms of his probation. As such, the trial court did not abuse its discretion in revoking his probation on the failure to make restitution ground. For these reasons, we overrule Walker=s first and second issues.

The Other Issues for Review

Proof by preponderance of the evidence on any one of the alleged violations of the conditions of probation is sufficient to support the order of revocation. Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980);Rodriguez v. State, 2 S.W.3d 744, 748 (Tex. App.- Houston [14th Dist.] 1999, no pet.). Having sustained the trial court=s decision to revoke Walker=s probation on the failure to pay restitution grounds, we need not consider Walker=s remaining issues. They are therefore overruled.

Conclusion

The trial court=s judgment revoking Walker=s probation on the May 17 burglary of a habitation count is thus affirmed.

SUSAN LARSEN, Justice

July 25, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)