WILLIAM WASHINGTON, JR., Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRMED as MODIFIED; Opinion Filed September 25, 2006.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00259-CR
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WILLIAM WASHINGTON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F01-74452-UP
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OPINION
Before Justices Moseley, Francis, and Mazzant
Opinion By Justice Moseley
        William Washington, Jr. appeals the revocation of his community supervision. Appellant contends in a single issue that the trial court abused its discretion in revoking his community supervision. We affirm the trial court's judgment as modified.
        Appellant waived a jury and pleaded nolo contendere to assault-family violence, with one prior conviction of assault-family violence. See Tex. Pen. Code Ann. § 22.01(a)(1), (b)(2) (Vernon Supp. 2006). Pursuant to a plea agreement, the trial judge assessed punishment at five years' imprisonment, probated for ten years, and a $1500 fine. Subsequently, the State moved to revoke appellant's community supervision, alleging appellant committed a new family violence assault, along with other violations. After a hearing, the trial judge found the allegations true, revoked appellant's community supervision, and sentenced him to five years' imprisonment.
        Appellant contends the trial court abused its discretion in revoking his community supervision because the evidence is insufficient to support a finding he violated the terms of supervision. Appellant argues the testimony at the revocation hearing established he did not assault his wife or violate the “no contact” prohibition, and that he was unable to pay the fine, fees, and costs due to indigency. The State responds that the trial court did not abuse its discretion because the evidence shows appellant violated the terms of his supervision.
        Appellate review of a probation revocation is limited to determining whether the trial court abused its discretion, and we examine the evidence in the light most favorable to the trial court's findings. See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984). The State must prove by a preponderance of the evidence appellant violated the terms and conditions of his probation. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). In a revocation proceeding, the trial judge is the sole trier of the facts, credibility of the witnesses, and the weight to be given to the testimony. See Lee v. State, 952 S.W.2d 894, 897 (Tex. App.-Dallas 1997, no pet.) (en banc).
        During the revocation hearing, appellant's wife Sonya testified appellant normally visited his son at her mother's house because of the “no contact” requirement of appellant's probation. However, on October 2, 2005, appellant came to her apartment and visited with his son outside. Sonya remained inside. When the son came back inside and said appellant had not given him any money, Sonya went outside and confronted appellant. An argument ensued. According to Sonya, when appellant tried to put the keys in the ignition, she leaned through the open passenger window and grabbed for them, then pulled her arm back, hitting herself on the mouth. Sonya denied that appellant had hit her, but admitted her written statement to police officers stated appellant had hit her on the mouth more than one time. Sonya testified she lied in her written statement because she was mad at appellant, she was hung over from partying the night before, and she thought the officers wanted to know why she had a restraining order against appellant.
        Officer Robert McMillin testified that he responded to a domestic disturbance call at Sonya's apartment and saw appellant standing outside downstairs. Appellant said everything was fine and no one else was there. A couple standing on the other side of the gate began arguing. McMillin went to talk with the couple. While talking with that couple, McMillin heard a commotion coming from the original location. He returned to the original location and saw Sonya at the top of the stairs yelling, “he hit me.” Appellant was standing at the bottom of the stairs. McMillin talked with appellant while his partner talked with Sonya. Appellant told McMillin he did not hit Sonya and “she's just trying to revoke my probation and that's all she is trying to do.” McMillin testified appellant appeared to be sober, but he believed appellant had been drinking that day.
        Officer David Gomez testified that while he and McMillin were talking with a couple who had been arguing at the gate, he heard a woman yelling, “He's back, he's hitting me, he's hitting me.” When Gomez and McMillin returned to the location of the original disturbance call, Gomez saw Sonya standing in an upstairs apartment doorway. Appellant was halfway up the stairs and appeared to be moving towards her. Gomez talked to Sonya while McMillin talked to appellant. Gomez testified Sonya had an injury to her lower lip, appeared frightened, and stated loudly that appellant hit her on the mouth following a “little physical confrontation.” Gomez asked Sonya to fill out a family violence packet, which included a written statement form. Gomez instructed Sonya to fill out the form regarding the incident. Gomez testified he smelled a strong odor of alcoholic beverage on appellant's person, but did not recall Sonya being intoxicated. Photographs of Sonya's injured lip taken at the scene were shown to the trial judge.
        Appellant testified that although he typically visited his son at his mother-in-law's house, he went to Sonya's apartment that day to give his son money for school and expenses. His son was outside the apartment when appellant arrived. Appellant testified he had $200 in his pocket in large bills and had forgotten to get change before visiting his son. He visited his son for about twenty minutes, then said he would be back. His son got angry and ran upstairs to the apartment. A few seconds later, Sonya came outside and began arguing with appellant about why he had not given their son any money. Appellant told Sonya he was going to the store to get change and would be back. When Sonya tried to grab appellant's keys, she “snapped back” and hit herself on the mouth. Sonya got angry and said she was going to call the police. Then she left the area.
        When the officers arrived, appellant told them there was nothing going on and no one was home upstairs. The officers left to deal with a couple who were arguing near the outside gate, but they returned after Sonya came back and began screaming. Appellant admitted he was standing at the bottom of the stairs that led to Sonya's apartment when the police returned. According to appellant, he got out of his car only because he wondered where his son went. Appellant testified that whenever he failed to give his son money, Sonya would tell him she was going to call the police or his probation officer.
        Conflicting evidence was presented regarding the new assault offense. The trial judge resolved the conflicts in the evidence and was free to believe or disbelieve any witness's testimony. See Lee, 952 S.W.2d at 897. Reviewing the record under the proper standard, we conclude the trial court did not abuse its discretion in finding appellant violated the terms of his community supervision by committing a new assault-family violence offense. We resolve appellant's sole issue against him. Because proof of one violation is sufficient, we do not address appellant's complaint regarding the remaining violations. See Lee, 952 S.W.2d at 897; see also Tex. Code Crim. Proc. Ann. art. 42.12, § 21 (Vernon Supp. 2006).         In a cross-point, the State asks us to modify the trial court's judgment to show the revocation was based on the State's October 25, 2005 motion to revoke supervision.
        The trial court's judgment recites that the revocation was based on the August 14, 2003 motion to revoke supervision, but the record reflects it was based on the October 25, 2005 motion. Therefore, the judgment is incorrect. We sustain the State's cross-point. We modify the trial court's judgment to show the revocation was based on the October 25, 2005 motion to revoke supervision. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        As modified, we affirm the trial court's judgment.
 
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060259f.u05
 
 

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