Dunte L. Oveal v. The State of Texas--Appeal from 228th District Court of Harris County

Affirmed and Memorandum Opinion filed November 25, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00755-CR

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DUNTE L. OVEAL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 1090058

M E M O R A N D U M O P I N I O N

Appellant Dunte Oveal appeals the trial court=s judgment adjudicating his guilt, revoking his deferred adjudication community supervision, and sentencing him to life imprisonment for the underlying offense of possession with intent to deliver more than four grams and less than two hundred grams of cocaine. In his sole issue, appellant contends that the State failed to prove that he violated the terms of his community supervision by a preponderance of the evidence, rendering the trial court=s Atrue@ finding on the State=s allegation an abuse of discretion. We affirm.

I. Facts

In 2006, appellant was charged with possession with intent to deliver more than four grams and less than two hundred grams of cocaine, and received deferred adjudication community supervision. In 2007, the State filed a motion to adjudicate appellant=s guilt, alleging he violated the terms of his deferred adjudication by murdering Carlos Cantu.

At the hearing on the motion to adjudicate, John Molina, a friend of Cantu, testified for the State. Molina stated that on the day of the murder, he was riding in a car with appellant while Cantu followed directly behind them. Appellant had taken Molina=s necklace, intending to force Molina to sell it to satisfy a drug debt between the two. Molina took the necklace back from appellant and jumped into the car driven by Cantu. Appellant then exited his car and pointed a gun at Molina and Cantu. Molina ducked, but Cantu was struck in the head after appellant fired a shot into the vehicle. Molina escaped by driving from the passenger seat. Upon stopping, he called 911 (but did not identify himself or the shooter) and then fled the scene.

Sergeant Tony Huynh testified regarding the divergent stories of two eyewitnesses at the scene where the car containing Cantu=s body was found: Ms. Hernandez and Barbara Friday. Both witnesses stated they saw an Hispanic man exit the car, walk around to the driver=s side, and flee. But Friday stated that she also saw the man shoot into the driver=s side, while Hernandez did not mention seeing or hearing a shot fired. At the hearing on the motion to adjudicate appellant=s guilt, Friday contradicted both Molina=s testimony and her own prior statement, testifying that she saw two males arguing in the car, saw a Spanish male get out and walk around to the driver=s side, and then heard a gunshot.

Molina called Cantu=s family shortly after fleeing the scene where Cantu=s body was found. He also called the police later that evening, but in both conversations he failed to identify the shooter. Molina threw away the bloody clothes he had been wearing. Nine days after the murder, Molina was brought to the police station and questioned about the shooting by Sergeant Huynh. As part of his investigation, Huynh listened to wiretapped conversations between Molina and appellant. Based upon what he heard, Huynh believed appellant was involved in the murder. An arrest warrant was subsequently issued for appellant, and the State=s motion to adjudicate appellant=s guilt on the underlying drug offense followed.

The trial court found the State=s allegation true, revoked appellant=s community supervision, adjudicated him guilty of the underlying first degree drug offense, and sentenced him to life imprisonment. In his sole issue, appellant contends that the State failed to prove he murdered Cantu by a preponderance of the evidence, rendering the trial court=s Atrue@ finding an abuse of discretion.

II. Analysis

The trial court=s determination on a motion to adjudicate is reviewable in the same manner as a determination on a motion to revoke probation. Tex. Code Crim. Proc. Ann. art. 42.12 ' 5(b) (Vernon Supp. 2008). We review a trial court=s order revoking probation under an abuse of discretion standard, considering all the evidence in the light most favorable to the trial court=s finding to determine whether the trial court could have reasonably found that appellant violated the terms and conditions of his probation by a preponderance of the evidence. See Rickels v. State, 202 S.W.3d 759, 763B64 (Tex. Crim. App. 2006); Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Moore v. State, 11 S.W.3d 495, 498 (Tex. App.CHouston [14th Dist.] 2000, no pet.). The State satisfies the preponderance of the evidence burden of proof when the greater weight of credible evidence before the trial court creates a reasonable belief that it is more probable than not that the defendant has violated a condition of probation. Rickels, 202 S.W.3d at 763B64; Joseph v. State, 3 S.W.3d 627, 640 (Tex. App.CHouston [14th Dist.] 1999, no pet.).

In a probation revocation hearing, it is the trial court=s role to make credibility determinations and resolve evidentiary conflicts. See Garrett, 619 S.W.2d at 174; Moore, 11 S.W.3d at 498. Although our review of that function is highly deferential, the trial court is not given absolute discretion to revoke probation. See Scamardo v. State, 517 S.W.2d 293, 297 (Tex. Crim. App. 1974); Stafford v. State, 63 S.W.3d 502, 508 (Tex. App.CTexarkana 2001, pet. ref=d). If the trial court made reasonable decisions in assessing credibility and resolving conflicts in the testimony, and if viewing the evidence in the light of such determinations the trial court could reasonably believe that, more likely than not, appellant violated his probation, we must uphold the trial court=s decision. See Rickels, 202 S.W.3d at 763B64; Moore, 11 S.W.3d at 498.

Appellant first argues the trial court should not have believed Molina=s testimony because he was on felony probation at the time of Cantu=s murder and had prior felony and misdemeanor convictions involving drugs and firearms. While prior convictions are admissible to impeach the credibility of a witness, see Tex. R. Evid. 609(a), it was for the trial court to determine the weight to give Molina=s testimony. The trial court observed Molina=s demeanor, listened to his account of the incident, and could have reasonably believed his testimony despite his prior convictions.

Appellant also argues that Molina=s testimony was not credible based on his actions during and after the shooting. First, appellant argues that Molina=s claim that he retrieved his necklace without resistance from appellant is unbelievable, but Molina testified he did so while appellant was driving and that appellant reacted by slamming on the brakes. Second, appellant questions Molina=s credibility because he left Cantu (his purported friend) in the car, but Molina explained he fled because he was Awanted,@ had drugs in his pocket, and knew Cantu was dead. Third, appellant challenges Molina=s credibility because (1) he called the police, Cantu=s family, and 911 on the day of the murder without identifying appellant as the shooter, and (2) disposed of his blood-soaked clothes. Finally, appellant points to the lack of witnesses to Molina=s escape from the murder scene by driving erratically from the passenger seat. In short, while appellant points to aspects of Molina=s conduct during and after the murder that might impeach him, other aspects of Molina=s testimony and the hearing evidence tend to support his veracity. For example, Molina=s credibility was bolstered by Sergeant Huynh=s testimony that (1) Molina=s version of the story made sense because Sergeant Huynh believed that Molina had nothing to do with Cantu=s (i.e. Molina=s best friend=s) death and that (2) after listening to conversations between Molina and appellant, Sergeant Huynh suspected appellant of murdering Cantu and began investigating him in that regard. Also, Molina=s story regarding the shooting was consistent with the physical evidence introduced at the hearing: his testimony that a bullet entered through the driver=s window is consistent with the autopsy showing Cantu was struck in the left side of the head. Therefore, we conclude that the trial court could have reasonably determined that Molina was credible despite his conduct during and after the murder. See Garrett, 619 S.W.2d at 174; Moore, 11 S.W.3d at 498 (in a probation revocation hearing, it is the trial court=s role to make credibility determinations and resolve evidentiary conflicts).

Finally, appellant challenges Molina=s credibility based on Barbara Friday=s contradictory testimony. However, her testimony at the hearing contradicted Sergeant Huynh=s account of her statement at the scene. Also, Sergeant Huynh testified that he doubted her account because of her vantage point and physical condition and stated that the second eyewitness at the scene, Ms. Hernandez, did not mention seeing or hearing a shot fired. Moreover, Friday=s testimony was impeached under Texas Rule of Evidence 609(a) when she admitted to prior prostitution convictions. See Holgin v. State, 480 S.W.2d 405, 408 (Tex. Crim. App. 1972) (noting that prostitution is a crime of moral turpitude in Texas and can be used to impeach a witness). Therefore, the trial court could have reasonably discounted some or all of Friday=s testimony.

The trial court observed the demeanor of the witnesses, made reasonable credibility determinations, and resolved conflicting evidence. We conclude that the evidence was sufficient, when viewed in the light most favorable to the trial court=s ruling, for the trial court to reasonably find by a preponderance of the evidence that appellant violated the terms of his deferred adjudication community supervision. Thus, the trial court did not abuse its discretion in finding the allegations true and adjudicating appellant=s guilt. We therefore overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/ Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed November 25, 2008.

Panel consists of Justices Yates, Anderson, and Brown.

Do Not Publish C Tex. R. App. P. 47.2(b).