John Boracio v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

No. 04-99-00315-CR
John BAROCIO,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-0500
Honorable Mark Luitjen, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Paul W. Green, Justice

Delivered and Filed: November 22, 2000

AFFIRMED

Appellant, John Boracio, appeals the trial court's revocation of his probation and imposition of imprisonment. In two issues, Barocio challenges the legal and factual sufficiency of the evidence supporting the trial court's finding that he violated the conditions of his probation by possession of cocaine. We affirm the trial court's judgment.

Boracio pled guilty to and was convicted of possession of cocaine, a controlled substance. On May 8, 1998, he was placed on community supervision (probation) for a term of five years. On May 29, 1998, acting on a tip from a reliable informant, police executed a search warrant at Boracio's residence, and a small quantity of cocaine was found. On September 30, 1998, the State filed a motion to revoke probation, alleging Barocio violated the terms of his probation by committing the offense of possession of cocaine.

We review a trial court's decision to revoke probation by an abuse of discretion standard. See Duke v. State, 2 S.W.3d 512, 515 (Tex. App.-San Antonio 1999, no pet.). In reviewing the sufficiency of the evidence to support the revocation, we review the evidence in the 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. See Russell v. State, 685 S.W.2d 413, 419 (Tex. App.-San Antonio 1985, pet. ref'd), cert. denied, Russell v. Texas, 479 U.S. 885 (1986); Duke, 2 S.W.3d at 514. Because a revocation hearing is an administrative hearing rather than a criminal trial, the State is only required to prove a probation violation by a preponderance of the evidence. See Galvan v. State, 846 S.W.2d 161, 162 (Tex. App.-Houston [1st Dist.] 1993, no pet.). Thus, if the greater weight of the credible 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 419, 421 (Tex. Crim. App. 1974).

To prove unlawful possession of illegal drugs, it must be shown that the accused (1) exercised care, control, or custody over the substance, (2) was conscious of his connection with the substance, and (3) knew the substance was contraband. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Castro v. State, 812 S.W.2d 637, 639 (Tex. App.-Houston [14th Dist.] 1991, pet. ref'd). Some evidence, whether direct or circumstantial, that affirmatively links the accused with the drug will suffice for proof that he possessed it knowingly. See Brown, 911 S.W.2d at 747. Among the facts the court may consider are the accused's ownership or right of possession of the place where the controlled substance was found and whether the drugs were found in an enclosed place. See De La Garza v. State, 898 S.W.2d 376, 379 (Tex. App.-San Antonio 1995, no writ).

The testimony before the trial court established that Barocio resided at the house where the drugs were recovered. Although he occasionally had visitors at the residence, there was no evidence that any other adult resided at the house or had access to it. We defer therefore to the trial court's finding that Barocio was in sole possession of the premises where the drugs were found. This is sufficient to support the finding that the drugs were in Barocio's possession. See De La Garza, 898 S.W.2d at 379.

Because we find the evidence factually sufficient to uphold the trial court's judgment by a preponderance of the evidence, we affirm the revocation of probation.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH