Alex Theophilus McKinney v. State of Texas--Appeal from 29th District Court of Palo Pinto County

11th Court of Appeals

Eastland, Texas

Opinion

Alex Theophilus McKinney

Appellant

Vs. Nos. 11-00-00357-CR & 11-00-00358-CR B Appeals from Palo Pinto County

State of Texas

Appellee

These are appeals from judgments revoking appellant=s community supervision. In Cause No. 11-00-00357-CR, the jury convicted appellant of aggravated assault with a deadly weapon, assessed his punishment at confinement for 7 years and a $2,000 fine, and recommended that the imposition of the confinement portion of the sentence be suspended and that appellant be placed on community supervision for 7 years. In Cause No. 11-00-00358-CR, the jury convicted appellant of false imprisonment, assessed his punishment at confinement for 5 years and a $2,000 fine, and recommended that the imposition of the confinement portion of the sentence be suspended and that appellant be placed on community supervision for 5 years. After a hearing on the State=s motions to revoke, the trial court found in each case that appellant had violated the terms and conditions of his community supervision, revoked appellant=s community supervision, and imposed the original sentences of confinement for 7 and 5 years respectively and a $2,000 fine in each case. We affirm.

In two points of error, appellant contends that the trial court abused its discretion in revoking his community supervision because the State did not establish by a preponderance of the evidence that he violated any of the terms and conditions of his community supervision and because he was denied due process because he did not have notice of the Aamendment of probation.@ We disagree.

In a community supervision revocation hearing, the State has the burden of proving by a preponderance of the evidence that a condition of community supervision has been violated. Jenkins v. State, 740 S.W.2d 435 (Tex.Cr.App.1983). The trial court is the trier of the facts and determines the weight and credibility of the testimony. Garrett v. State, 619 S.W.2d 172 (Tex.Cr.App.1981); Barnett v. State, 615 S.W.2d 220 (Tex.Cr.App.1981). Appellate review of an order revoking community supervision is limited to the issue of whether the trial court abused its discretion. Flournoy v. State, 589 S.W.2d 705 (Tex.Cr.App.1979).

The trial court found that appellant had violated the terms and conditions of his community supervision by failing to report for the month of July 2000, by failing to pay fines and court costs for the month of July 2000, by failing to pay community supervision fees for the month of July 2000, and by failing to report to the Palo Pinto County Jail on June 19, 2000, as ordered. At the hearing, Ronald Edwards, the director of the Community Supervision and Correction Department for the 29th District Court, testified that appellant did not report to his office during the first 10 days of July 2000, that appellant did not pay either the supervisory fees or the fines and court costs for the month of July 2000, and that appellant failed to report to the Palo Pinto County Jail as ordered. Edwards testified that faxes were received from a Fort Worth hospital showing that on June 19 at 8:00 a.m. appellant reported as an outpatient and that he departed an hour later and from the Bonham VA hospital on June 30 stating that appellant would be admitted on August 23. Edwards stated that appellant was arrested on August 8. Walt Rucker, assistant jail administrator at the Palo Pinto Law Enforcement Center, testified that appellant did not appear or report on June 19 to the Palo Pinto County Jail as ordered.

Appellant testified that he was a disabled veteran; that as of July 2000 he had a 100 percent disability; that he had not told his probation officer about his use of marihuana or Aregular@ cocaine because he and his officer Adidn=t click@; that he had had heart attacks in 1982 and in 1998; and that he suffered from diabetes, hypertension, coronary disease, gout, kidney problems, and flat feet. Appellant stated that he did not show up on June 19 because he was having heart trouble. He first went to a clinic and was then transported by ambulance to a Fort Worth hospital. From there, he was moved to the Dallas VA Hospital and was released on June 22. On June 28 appellant stated that he was admitted to the Bonham VA Hospital where he said he stayed until he was arrested on August 15. Appellant admitted that, between June 22 and 28, he could have reported while he was out of the hospital and staying with his son in Arlington. Instead, he claimed that he called the Palo Pinto Community Supervision office.

Evidence that appellant failed to report to the community supervision office as ordered, failed to make court-ordered court cost and fine payments, and failed to make the court-ordered fine payments was undisputed. Proof of one violation of the terms and conditions of community supervision is sufficient to support the revocation. McDonald v. State, 608 S.W.2d 192 (Tex.Cr.App.1980); Taylor v. State, 604 S.W.2d 175 (Tex.Cr.App.1980); Moses v. State, 590 S.W.2d 469 (Tex.Cr.App.1979). The trial court did not abuse its discretion. The first point of error is overruled.

It is further undisputed that the trial court conducted a hearing on June 16 on prior motions to revoke, that appellant was present at the hearing and was represented by counsel, that the trial court rejected appellant=s request to attend a rehab program at the Bonham VA Hospital and ordered that he participate in the SAFPF, that the trial court afforded appellant time to take care of personal business, and that the trial court ordered appellant to report to the Palo Pinto County Jail 3 days later on the 19th. Appellant testified that, during the time he was at the Bonham VA prior to his arrest, he was in the VA rehab program. It is further undisputed that appellant was not served a written copy of this amendment to his community supervision. Appellant testified at the revocation hearing which is the subject of these appeals that he was present at the June 16 hearing and that he knew he was to report on June 19 to enter the SAFPF program. It is undisputed that appellant had actual notice of his obligation to report as set out in the amendments to his community supervision. The record does not support his claims of denial of due process. The second point of error is overruled.

The judgments of the trial court are affirmed.

PER CURIAM

July 18, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.