Daniel Rodriguez, Jr. v. The State of Texas--Appeal from 161st District Court of Ector County

Opinion filed March 22, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-05-00218-CR

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DANIEL RODRIGUEZ, JR., Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B-31,182

O P I N I O N

Daniel Rodriguez, Jr. appeals from the trial court=s order revoking his community supervision and sentencing him to one year confinement in a state jail facility. We affirm.

Background Facts

The trial court convicted appellant of the state jail felony of evading detention and sentenced him to one year confinement in the State Jail Division of the Texas Department of Criminal Justice. The trial court suspended appellant=s sentence and placed him on community supervision for a period of three years. As part of the community supervision, appellant had to abide by certain conditions including: (1) be home each night from 10:00 p.m. until 6:30 a.m. Sunday through Saturday and remain at his residence unless his work required him to be out later; and (2) avoid persons or places of disreputable or harmful character and stay out of bars, lounges, dance halls, liquor stores, private clubs licensed by the Texas Alcoholic Beverage Commission, places where alcoholic beverages are served or dispensed, pool halls, and sexually oriented businesses.

In April 2005, the State filed a motion to revoke appellant=s community supervision alleging that appellant had violated four conditions of his probation. The State proceeded on two of the allegations. Appellant pleaded not true to the allegations, and the trial court conducted a hearing. The first allegation was that appellant failed to remain at his residence from 10:00 p.m. until 6:30 a.m. The second allegation was that appellant failed to avoid places of disreputable or harmful character. The court found these allegations to be true and sentenced appellant to one year in the State Jail Division of the Texas Department of Criminal Justice. Appellant appeals from the trial court=s findings.

Issue on Appeal

Appellant asserts that the trial court abused its discretion in revoking his community supervision because there was insufficient evidence to support a finding that he violated any conditions of his community supervision. Appellant also asserts that the trial court abused its discretion in considering extraneous matters in making its decision.

Standard of Review

We review the trial court=s order revoking community supervision for an abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The State must prove by a preponderance of the evidence that the defendant violated a condition of his community supervision. Id.at 763-64. A preponderance of the evidence means that the greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of his community supervision. Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974). The State need only prove one violation to revoke a defendant=s community supervision. Canseco v. State, 199 S.W.3d 437, 439 (Tex. App.CHouston [1st Dist.] 2006, pet. filed).

Review of the Evidence

The State offered testimony from Rene Carrasco, an enforcement agent with the Texas Alcoholic Beverage Commission. Officer Carrasco testified that, on March 4, 2005, he saw a Dodge pickup in the parking lot of the Club Mystique. The pickup was peeling its tires in the parking lot and then left the parking lot at a high rate of speed. Officer Carrasco testified that he pursued the pickup in order to make a traffic stop. He further testified that he followed the pickup for a distance and observed another vehicle that appeared to have been run off the road by the Dodge pickup. Officer Carrasco said that he later caught up to the pickup Awrecked out.@ The driver=s side door and the passenger door were open. Officer Carrasco testified that he observed a man, Eric Hernandez, whom he later discovered to be the passenger, on the ground next to the pickup. The man appeared to be disoriented and intoxicated. Officer Carrasco testified that he found a wallet with appellant=s driver=s license in it on the driver=s side of the pickup. Officer Carrasco did not see appellant at the scene of the wreck.

The State next called Hernandez. Hernandez testified that he was at the Club Mystique on March 4, 2005, and that he saw appellant in the parking lot of the club around 1:30 a.m. He testified that he asked appellant for a ride. Hernandez stated that he got into appellant=s red Dodge pickup around 1:45 a.m. and that appellant was driving. Hernandez testified that the pickup appellant was driving was the same pickup that Officer Carrasco followed from the Club Mystique and saw wrecked a few blocks away.

Appellant argues that the evidence is insufficient to support the trial court=s order revoking appellant=s community supervision because (1) Officer Carrasco never saw appellant out past 10:00 p.m. on March 4, 2005, and (2) the testimony of Hernandez was not credible because he was intoxicated and disoriented that night. The trial court is the exclusive judge of the credibility of the witnesses. Canseco, 199 S.W.3d at 439. Hernandez=s testimony clearly showed that appellant was not at his residence after 10:00 p.m. on March 4, 2005. Further, the trial court could infer from Officer Carrasco=s testimony that appellant was at the scene of the wreck and that he left his wallet behind when he fled the scene. This is sufficient for the trial court to find that appellant violated the curfew condition of his community supervision. Because the trial court only needed to find one violation of appellant=s conditions of community supervision to revoke appellant=s supervision, we need not address whether the evidence was sufficient to find a second violation. See Canseco, 199 S.W.3d at 438-39. Furthermore, because we find that the evidence was sufficient without it, we do not address whether the trial court considered extraneous matters in revoking appellant=s probation.

Conclusion

The trial court did not abuse its discretion in revoking appellant=s probation. The trial court=s judgment is affirmed.

RICK STRANGE

JUSTICE

March 22, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.