Billy Dan Johnson v. The State of Texas--Appeal from 42nd District Court of Taylor County

11th Court of Appeals

Eastland, Texas

Opinion

Billy Dan Johnson

Appellant

Vs. Nos. 11-02-00159-CR & 11-02-00160-CR -- Appeals from Taylor County

State of Texas

Appellee

Billy Dan Johnson appeals the revocation of his community supervision in two cases. He was placed on community supervision in the first case[1] in 1996, and he was placed on community supervision in the second case[2] in 1999. The trial court revoked his community supervision in both cases on April 26, 2002, and sentenced him to confinement for five years in the first case and to confinement for two years in the second case. The sentences are concurrent. We affirm.

Background Facts

The first indictment charged appellant with burglary of a building on August 31, 1994. Pursuant to a plea bargain agreement, appellant was convicted and sentenced on January 29, 1996, to confinement for five years and a fine of $500. The fine has been paid. The confinement was suspended, and appellant was placed on community supervision for five years. There was a motion to revoke community supervision in that case, and the period of community supervision was extended for one year. The new expiration date was January 29, 2002. The current motion to revoke was filed on October 5, 2001.

The second indictment charged appellant with possession of less than one gram of cocaine on November 8, 1998. Pursuant to a plea bargain agreement, appellant was convicted and sentenced on January 15, 1999, to confinement for two years. No fine was imposed. The sentence was suspended, and appellant was placed on community supervision for five years.

Both motions for revocation were simultaneously heard. There was a hearing on April 19, 2002, involving the alleged Atechnical violations@ and a hearing on April 26, 2002, concerning appellant=s arrest on September 29, 2001, when he was found to be in possession of .01 grams of cocaine.

Points of Error

Appellant presents 6 points of error in the first case and 12 points of error in the second case. Point of Error No. 1 is the same in both cases, and it reads in material part as shown:

The trial court erred in overruling Appellant=s Motion to Suppress Illegally Seized Evidence.

Appellant also argues in each case that the trial court erred in making a finding of Atrue@ to the allegation that he knowingly possessed cocaine on September 29, 2001. Our ruling on these three points Aaddresses every issue raised and necessary to final disposition of the appeal.@ See TEX.R.APP.P. 47.1. Consequently, the other issues will not be discussed.

The Arrest on September 29, 2001

Sergeant Shane Burks of the Abilene Police Department testified about his arrest of appellant on September 29, 2001, at approximately 11:20 p.m. Sergeant Burks identified appellant as the man who was arrested. Sergeant Burks testified that he had been traveling west in the 5500 block of Lockheed Street when he Asaw a van parked in the middle of the roadway.@ The van did not have any lights on it. As the patrol car approached it, the van Aquickly went in reverse, turned sharp, hit the south curb line of Lockheed, [and] ran up over the curb.@ Sergeant Burks said that he stopped the van because of what he had seen. Appellant was the only occupant of the van. When appellant got out of the van to talk to the officer, appellant Aseemed really nervous,@ and Astarted sweating profusely.@ When he checked for outstanding warrants, the officer learned that appellant was on probation. There were no outstanding warrants, and Sergeant Burks gave appellant a verbal warning and told him that he was Afree to go.@ Sergeant Burks=s testimony on direct examination reads in relevant part as shown:

Q: Did you continue to visit with him?

A: Yes, sir, I did. I asked if he wouldn=t mind talking with me further and asked if he had anything illegal in the vehicle or if he had been doing anything illegal that night.

Q: Based upon what you observed?

A: Yes.

Q: What did he tell you, if anything?

A: I don=t recall specifically. When I asked him when was the last time he used any drugs, he said about 30 minutes ago. And I asked if he had anything illegal in his car and he said no. And I asked if he minded if I looked in the car and he said no, go ahead. (Emphasis added)

Sergeant Burks also testified that appellant was wearing women=s lingerie and that appellant said several times: APlease don=t take me to jail dressed like this.@ Sergeant Burks testified that he found Aan off white rock like substance@ on the floor on the driver=s side of the van and that he also found a silver Acrack pipe@ in appellant=s vehicle.

Officer Craig Jordan of the Abilene Police Department testified that he came to the scene of appellant=s arrest, that he heard Sergeant Burks Afinishing his contact@ with appellant, and that he heard Sergeant Burks telling appellant that he Awas going to give him a warning on the parking violations and that he was free to go.@ Officer Jordan supported Sergeant Burks=s testimony that appellant was free to leave and that appellant gave consent for the search of his van.

Officer Roger Lambert of the Abilene Police Department testified that he came to the scene of appellant=s arrest on September 29 to do a preliminary field test on the substance which was found in appellant=s van. He also testified that he took the substance to the Department of Public Safety Laboratory.

William Chandley testified that he is a chemist at the Department of Public Safety Laboratory and that he tested and weighed the substance which was found at the time of appellant=s arrest. It weighed .01 grams and contained cocaine. Chandley also testified that the pipe found in appellant=s van was the kind used for Asmoking crack cocaine.@

The only other witness at the hearing on April 26 was appellant. He testified that he was wearing regular street clothes on the night of September 29 and that he never wore women=s underwear or lingerie. Appellant testified that he was married, that he and his wife had four children, and that he had one other child for which he paid child support. At the time of his arrest, appellant had two jobs. He was a cook for Abuelos Restaurant, and he worked in the warehouse for Independent Groceries. Appellant=s testimony on direct examination reads in relevant part as shown:

Q: On September 29th when you were arrested for possession of cocaine why were you parked at the end of that street?

A: Well, I wasn=t really parked. I ran into the street, a dead end street and I was backing up when I stopped. I stopped because my car got like problems with - - it=s old and I don=t have the money to get it fixed. And when I got to the end of the street it cut out, it stopped. So when I seen the headlights coming from the other car I cranked it up and backed up and that is when he turned on his lights. I really wasn=t stopped. It just went dead. It cuts out on me when I come to a stop sign. It cuts outs. I have problems with my car.

* * *

Q: You have heard the testimony about this evidence that they found in your van?

A: Yes.

Q: Did that evidence belong to you?

A: No, sir.

Q: Had you been smoking crack?

A: Earlier.

Q: Did you believe that...you had the right to leave?

A: He never told me I could leave.

* * *

Q: Did you feel like you had freedom to leave?

A: No, sir.

Q: Why not?

A: Because when the second officer pulled up they patted me down and searched me. He said, ADo you have any drugs on you?@ I said, ANo. What=s the second officer for?@ He said that is for protection, or whatever.

Q: Back up?

A: Yeah. So then he asked me, ACould I search you?@ And I said, AYeah.@ And he said, AWill you stay here while I search your car?@ And I said, ASure.@

* * *

Q: Did you know that the items of evidence that have been admitted, did you know they were in the car?

A: No, sir.

* * *

Q: So that is why you told them to search it?

A: Yes. That is why I gave permission to search the van.

CROSS-EXAMINATION

Q: You knew you weren=t supposed to be smoking cocaine, something you admitted you had done like 30 minutes before that, right?

A: I didn=t say 30 minutes before. I said I smoked some earlier that day. (Emphasis added)

Controlling Authorities

The burden of proof in a revocation proceeding is Aby a preponderance of the evidence.@ Jenkins v. State, 740 S.W.2d 435, 437 (Tex.Cr.App.1983). The decision as to whether community supervision should be revoked Arests in the discretion of the trial judge.@ Wester v. State, 542 S.W.2d 403, 405 (Tex.Cr.App.1976). Proof that Aa condition of probation has been violated@ is sufficient to support the revocation. Taylor v. State, 604 S.W.2d 175, 179 (Tex.Cr.App.1980). The trial court could believe all or any part of the testimony of any witness. Garrett v. State, 619 S.W.2d 172, 174 (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, 709 (Tex.Cr.App.1979).

The testimony by Sergeant Burks supports the trial court=s ruling. There is no showing that the traffic stop was illegal. The record shows that appellant gave voluntary consent to the search of his vehicle and that the cocaine was found in his vehicle. Appellant admitted that he had smoked cocaine earlier that day, and the trial court was not required to believe appellant=s claim that he did not know that cocaine was in his vehicle. In any event, appellant had to have had possession of cocaine earlier that day in order to smoke it, and this was a violation of the terms of his community supervision. The trial court did not abuse its discretion in granting the State=s motions to revoke appellant=s community supervision.

The points which have been discussed are overruled. Pursuant to Rule 47.1, the other points need not be discussed.

This Court=s Ruling

The judgments of the trial court are affirmed in both cases.

BOB DICKENSON

SENIOR JUSTICE

May 8, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

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

Wright, J., and Dickenson, S.J.[3]

[1]This was Cause No. 18,037-A in the 42nd District Court of Taylor County and Cause No. 11-02-00159-CR in this court.

[2]This was Cause No. 19,477-A in the 42nd District Court of Taylor County and Cause No. 11-02-00160-CR in this court.

[3]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.