Louis Willard McConnell v. The State of Texas--Appeal from 161st District Court of Ector County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LOUIS WILLARD MCCONNELL, )

) No. 08-02-00255-CR

Appellant, )

) Appeal from the

v. )

) 161st District Court

THE STATE OF TEXAS, )

) of Ector County, Texas

Appellee. )

) (TC# B-27,939)

)

O P I N I O N

Appellant, Louis Willard McConnell, appeals the revocation of his community supervision. His sole issue on appeal is whether the trial court abused its discretion by revoking his community supervision in light of his advanced age and poor health. We will affirm.

SUMMARY OF THE EVIDENCE

Appellant plead guilty to and was convicted of the felony offense of driving while intoxicated on April 10, 2000.[1] He was sentenced to five years= incarceration, probated for the term of the sentence. On April 10, 2002, the State filed a motion to revoke Appellant=s community supervision. A hearing on the motion was held on May 13, 2002. At that time, Appellant was approximately eighty-one years old. At the conclusion of the hearing, the trial court revoked Appellant=s community supervision. Appellant was then sentenced to four years= incarceration in the Institutional Division of the Texas Department of Criminal Justice. He now appeals the decision of the trial court, arguing the court erred by failing to consider his advanced age and poor health.

DISCUSSION

A trial court possesses broad discretion in supervising those defendants placed on community supervision. See generally Tex.Code Crim.Proc.Ann. art. 42.12 (Vernon Supp. 2003); Becker v. State, 33 S.W.3d 64, 65-6 (Tex.App.--El Paso 2000, no pet.). This broad degree of discretion encompasses the court=s ability to modify, revoke, or continue probation. See Tex.Code Crim.Proc.Ann. art. 42 .12, '' 21-23; Ex parte Tarver, 725 S.W.2d 195, 200 (Tex.Crim.App. 1986); Flournoyv. State, 589 S.W.2d 705, 707 (Tex.Crim.App. 1979). In a community supervision revocation proceeding, the State bears the burden of establishing any 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, 33 S.W.3d at 66. The trial court must determine whether the allegations in the revocation motion are true. Becker, 33 S.W.3d at 66. In so doing, the trial court is the sole trier of facts, and judge of the credibility of witnesses and the weight to be given the testimony. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. 1981); Williams v. State, 910 S.W.2d 83, 85 (Tex.App.--El Paso 1995, no pet.). On appeal, this Court examines the record in the light most favorable to the lower court=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. Williams, 910 S.W.2d at 85. If there is some evidence to support the finding of a violation, the revocation order must be upheld. See Cardona, 665 S.W.2d 492, 493-94 (Tex.Crim.App. 1984); Greer v. State, 999 S.W.2d 484, 486 (Tex.App.--Houston [14th Dist.] 1999, pet. ref=d), cert. denied, 531 U.S. 877, 121 S. Ct. 185, 148 L. Ed. 2d 128 (2000).

Here, the State=s motion to revoke community supervision alleged Appellant committed a criminal offense, consumed alcoholic beverages, and operated a motor vehicle in violation of the court=s order. Appellant pled true to all three of these allegations at the revocation hearing. Appellant=s community supervision officer also testified that Appellant was Anot getting much from probation and he should be revoked.@ He also stated that he did not think Appellant would be receptive to any type of alcohol abuse treatment program. During closing arguments, both attorneys openly addressed Appellant=s age. The State argued that regardless of Appellant=s age, he had failed to follow the terms of community supervision. Appellant=s counsel argued that a long period of incarceration would not benefit his client or society because he would have to be taken care of while in prison. Based on this argument, Appellant=s counsel requested the court continue community supervision, send Appellant to treatment program, or reduce the sentence. At the conclusion of the arguments, the court found all three allegations true, revoked probation, and reduced Appellant=s sentence to a term of four years= incarceration.

Nothing in the record before us indicates an abuse of discretion on the part of the trial court. Appellant pled true to the allegations in the motion to revoke. There was no evidence indicating Appellant was in poor health. The evidence presented indicated Appellant was a repeat offender, not likely to succeed at probation, or benefit from further treatment programs. Appellant offered no contrary testimony or evidence. Accordingly, we conclude the trial court did not abuse its discretion in revoking Appellant=s community supervision. Appellant=s issue on appeal is overruled. The action of the trial court is affirmed.

August 26, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] This was Appellant=s third driving while intoxicated offense.