Tony Lozano, Jr. v. State of Texas--Appeal from 259th District Court of Jones County

Opinion filed August 16, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00344-CR

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   TONY LOZANO, JR., Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 259th District Court

Jones County, Texas

Trial Court Cause No. 8541

O P I N I O N

Tony Lozano, Jr. was convicted of felony driving while intoxicated and was given a probated sentence. The State subsequently filed a motion to revoke, contending that Lozano violated one or more conditions of his community supervision. The trial court conducted an evidentiary hearing and found that Lozano intentionally or knowingly engaged in sexual contact with a seven-year-old girl his wife babysat. The trial court revoked Lozano=s community supervision and sentenced him to three years confinement. We affirm.

Lozano challenges the trial court=s revocation order with two issues. Lozano contends first that the evidence is factually insufficient and second that the trial court lacked jurisdiction because there was no proof that it was presented with an indictment.

Lozano has no right to a factual sufficiency review of the trial court=s decision to revoke community supervision. Davila v. State, 173 S.W.3d 195, 198 (Tex. App.CCorpus Christi 2005, no pet.) (citing decisions from several sister courts reaching the same conclusion). But even if Lozano=s issue is treated as a legal sufficiency challenge, the evidence was sufficient to sustain the trial court=s decision.

We review an order revoking community supervision under an abuse-of-discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The State must prove by a preponderance of the evidence that the defendant violated a condition of community supervision as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 873-74 (Tex. Crim. App. 1993). The trial court is the sole trier of fact and determines the credibility of the witnesses and the weight to be given their testimony. Allbright v. State, 13 S.W.3d 817, 818-19 (Tex. App.CFort Worth 2000, pet. ref=d). We review the evidence in the light most favorable to the trial court=s ruling. Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.CFort Worth 2007, pet. ref=d). The trial court does not abuse its discretion if there is some evidence to support its decision. Brumbalow v. State, 933 S.W.2d 298, 300 (Tex. App.CWaco 1996, pet. ref=d).

Lozano contends that the evidence was too unreliable to have any probative value and primarily attacks the minor victim=s credibility. Lozano identifies several potential credibility challenges to her testimony, but whether that testimony is believable is beyond this court=s province to resolve. The victim testified that on several occasions Lozano touched her below the waist (both through and under her clothes) with his hand or fingers and that he placed her hand on his private parts. The State also introduced an outcry witness, Wendy Marie Southerland who was a licensed professional counselor intern with Red River Hospital, and Dr. Paige Hughes LeMasters who was the victim=s pediatrician. Both Southerland and Dr. LeMasters testified that the victim told them that Lozano had touched her inappropriately. This is some evidence that Lozano violated a condition of his community supervision. The trial court, therefore, did not abuse its discretion. Issue one is overruled.

Lozano next argues that the trial court lacked jurisdiction because there was no proof that it was presented with an indictment as required by Tex. Const. art. V, ' 12. Lozano relies upon the fact that his indictment for felony DWI contained a certification form but that this form was not completed by the district clerk. It is abundantly clear, however, that the indictment was presented to the trial court.

It is a well-settled rule that there is a presumption of regularity in the trial court proceedings absent a showing to the contrary by the appealing party. See Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000) (presumption of regularity is a judicial construct that requires a reviewing court, absent evidence of impropriety, to indulge every presumption in favor of the regularity of the proceedings and documents in the lower court); Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986) (there is a presumption of the regularity of the judgment of conviction and the proceedings, absent a showing to the contrary).

The district clerk prepared a clerk=s record for this appeal and certified that it contains Atrue and correct copies of all the proceedings directed by counsel to be included in the transcript.@ Included within the clerk=s record is an indictment for felony driving while intoxicated. The record also includes a judgment of conviction that references the indictment, the charged offense, and Lozano=s waiver of the reading of that indictment and a judgment revoking community supervision that references an indictment. Regardless of whether the district clerk signed the indictment=s authentication section, it is clear that the indictment was presented to the trial court. Lozano=s second issue is overruled.

The judgment of the trial court is affirmed.

RICK STRANGE

JUSTICE

August 16, 2007

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

Panel consists of: Wright, C.J.,

McCall, J. and Strange, J.