Nelson, Ralph v. The State of Texas--Appeal from Co Crim Ct at Law No 2 of Harris County

Affirmed and Opinion filed November 27, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00143-CR

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RALPH BRUCE NELSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1076789

O P I N I O N

In a single point of error, appellant Ralph Nelson appeals the trial court=s decision to revoke his probation. We affirm.

I. Background

Appellant was charged with driving while intoxicated. He pled guilty and the trial court assessed punishment at 180 days in jail, probated for one year, and a $500 fine. As part of his probation, appellant was assigned to complete community service at the Montgomery County Women=s Center. During the performance of his community service, appellant touched the breast of Wendy Kennedy, another probationer. According to Ms. Kennedy, appellant approached her and told her that she was going to fall off a stool. Ms. Kennedy responded that she did not need help. However, to prevent her from falling, he held her around her waist and then touched her breast underneath her shirt. Ms. Kennedy called him a Adirty, old man,@ and according to her testimony he replied, AI am the one and only dirty, old man.@ At the request of Ms. Morris, the manager of the center, Ms. Kennedy wrote and signed a written statement, describing the incident. Ms. Morris alleged that appellant admitted making a physical advance toward Ms. Kennedy. Appellant admitted that he held Ms. Kennedy=s waist to assist her, but denied touching her breast. He alleges that because her shirt was open, he was holding her around her bare skin, and only touched the side of her bra. Finally, appellant testified that he did not intend to offend Ms. Kennedy.

II. Discussion

We review an order revoking probation under an abuse of discretion standard. See Bennett v. State, 476 S.W.2d 281, 282 (Tex. Crim. App. 1972); Lee v. State, 952 S.W.2d 894, 897 (Tex. App.CDallas 1997, no pet.). In making this determination, we review the evidence in a light most favorable to the judgment, giving deference to the trial court as the sole trier of facts, the credibility of the witnesses, and the weight to be given to the evidence presented. Jackson v. State, 915 S.W.2d 104, 105B06 (Tex. App.CSan Antonio 1996, no pet.); Russell v. State, 685 S.W.2d 413, 419 (Tex. App.CSan Antonio), aff=d, 702 S.W.2d 617 (Tex. Crim. App. 1985). A revocation hearing is an administrative hearing rather than a criminal trial, thus the State is only required to prove a probation violation by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Galvan v. State, 846 S.W.2d 161, 162 (Tex. App.CHouston [1st Dist.] 1993, no pet.). Therefore, if the great weight of the evidence creates a reasonable belief that the defendant violated the conditions of his probation, there is no abuse of discretion. See Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974).

Appellant contends a rational trier of fact could not have found that appellant knew or should have known Ms. Kennedy would regard the contact as offensive or provocative. We disagree. In her statement, Ms. Kennedy asserts that she did not want appellant=s help. Further, according to Mrs. Morris, appellant admitted that he had touched Ms. Kennedy=s breast. At the revocation hearing, appellant admitted touching only the side of Ms. Kennedy=s bra, though he contends that he did so to prevent her from falling. Reviewing the evidence in a light most favorable to the trial court=s findings, we hold that a rational trier of fact could have found by a preponderance of evidence that appellant is guilty of offensive touching, a Class C Misdemeanor. A condition of appellant=s probation was that he not commit another offense. We are guided by the standard that proof of any one alleged violation is sufficient to support revocation. Alexander v. State, 879 S.W.2d 338, 340 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d).

Accordingly, the judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Opinion filed November 27, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.3(b).