Philip Thomas Muehr v. The State of Texas--Appeal from 183rd District Court of Harris County

MEMORANDUM OPINION
No. 04-03-00125-CR
Philip Thomas MUEHR,
Appellant
v.
The STATE of Texas,
Appellee
From the 183rd Judicial District Court, Harris County, Texas
Trial Court No. 848113
Honorable Joan Huffman, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: May 26, 2004

AFFIRMED

Appellant Philip Thomas Muehr was charged by indictment with the felony offense of driving while intoxicated. Pursuant to a plea bargain, Muehr entered a plea of guilty and was placed under community supervision for a term of four years. Approximately two years after Muehr's plea, the State filed a motion to revoke probation. Following a hearing, the trial court revoked Muehr's probation and sentenced him to four years' imprisonment, finding him to have violated his probation by "failing to avoid injurious or vicious habits." Muehr now appeals the trial court's revocation in three issues.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the revocation in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. In his first and second issues, Muehr argues the trial court erred in revoking his community supervision because the evidence presented at the hearing was insufficient to support the allegations contained in the State's motion to revoke. Specifically, Muehr contends in his first issue that the State failed to meet its burden of proving a violation of the terms of community supervision by a preponderance of the evidence.

Our review of an order revoking probation is limited to a determination of whether the trial court abused its discretion. Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). We review the evidence in the light most favorable to the trial court's judgment. Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979). The State has the burden to create a reasonable belief that a condition of probation has been violated as alleged in the motion to revoke by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993); Torres v. State, 103 S.W.3d 623, 625 (Tex. App.--San Antonio 2003, no pet.). The State satisfies this burden when the greater weight of the credible evidence before the court creates a reasonable belief that a condition of probation has been violated as alleged in the motion to revoke. Battle v. State, 571 S.W.2d 20, 21-22 (Tex. Crim. App. 1978). In a revocation proceeding, the trial court is the sole fact finder and judge of the credibility of the witnesses and weight of the evidence. Naquin v. State, 607 S.W.2d 583, 586 (Tex. Crim. App. 1980); Hays v. State, 933 S.W.2d 659, 660 (Tex. App.--San Antonio 1996, no pet.).

At the hearing on the motion to revoke probation, the State called Muehr's probation officer, Marentha Moss. Moss testified that she received a "positive U/A" for Muehr in early May of 2002, that "he tested positive on April 4th, 2002." She claimed to have met with Muehr on May 9th to discuss the results of his urine analysis, and that "[a]fter about 20 minutes of beating around the bush he finally admitted it, said that he did know." Following their meeting, Moss requested Muehr to take another test, but she did not know if he had given another sample of urine or what the results of any such test were. On cross examination, Moss testified that Muehr had tested positive for the presence of cocaine one time during his probationary period. Muehr also testified, claiming that he had not taken cocaine and explaining to the trial court that he had cooperated with his probation officer and completed a rehabilitation program.

Given the evidence contained in the record, the trial court, as sole judge of the weight of the evidence and credibility of the witnesses, could have found Moss's testimony to be credible and the State to have met its burden of proof. See Naquin, 607 S.W.2d at 586. Reviewing the evidence in the light most favorable to the trial court's judgment, there is evidence sufficient to support the trial court's finding that Muehr violated the terms of his probation. See Jones, 589 S.W.2d at 420. We overrule Muehr's first issue.

2. In his second issue, Muehr argues that, even if the State proved a violation, a single instance of drug use did not constitute a "habit" as alleged in its motion to revoke. In support of his argument, he cites several cases, including Chacon v. State, 558 S.W.2d 874 (Tex. Crim. App. 1977), Morales v. State, 538 S.W.2d 629 (Tex. Crim. App. 1976), and Bolieu v. State, 779 S.W.2d 489 (Tex. App.--Austin 1989, no writ). While these cases support Muehr's contention that the single use of a drug is not a "habit" for the purposes of a condition of community supervision, that principle is inapplicable to his case.

The second condition of Muehr's community supervision states: "Avoid injurious or vicious habits. You are forbidden to use, possess, or consume any controlled substance, dangerous drug, marijuana, alcohol or prescription drug not specifically prescribed to you by lawful prescription. You are forbidden to use, consume, or possess alcoholic beverages." The State's motion to revoke was drafted in terms of failure to avoid injurious or vicious habits, but also included allegations referring to Muehr's use of a controlled substance, namely cocaine. This use is in violation of the above condition of his community supervision, and, as such, the trial court did not abuse its discretion in revoking Muehr's community supervision. See Chacon, 558 S.W.2d at 876. We overrule his second issue.

3. In his third issue, Muehr contends the trial court's revocation of his community supervision violated his right to due process under both the United States and Texas Constitutions. U.S. Const. amend. X, XIV; Tex. Const. art. I, 10, 19. Specifically, Muehr argues that the State deprived him of due process by seeking to revoke his probation after he was ordered to enroll in a drug treatment program.

Once the State has shown that a defendant violated the conditions of his probation by a preponderance of the evidence, the trial court has discretion in determining whether to revoke the community supervision. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The violation of a single condition of community supervision will support its revocation. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). The fact that the court had alternatives to revoking Muehr's supervision does not mean the judge abused her discretion in not choosing one of the alternatives. See Tex. Code Crim. Proc. Ann. art. 42.12 22, 23(a) (Vernon Supp. 2004).

The record shows that Muehr's probation officer, Moss, had a letter on file which stated he had successfully completed an outpatient drug rehabilitation program at West Oaks Outpatient Services. She testified, however, that she had no personal knowledge of his actually completing the program, and Muehr produced no further evidence of his successful completion of the program. Under the conditions of his community supervision, Muehr was to submit to an alcohol or drug evaluation at the Treatment Alternative to Incarceration Program (TAIP) as directed by his probation officer. This condition, however, is separate from the condition requiring him to avoid injurious and vicious habits and forbidding him to use drugs. As stated above, even assuming that Muehr did complete a drug treatment program as requested, the violation of a single condition of his community supervision could still result in its revocation. See Moore, 605 S.W.2d at 926. The trial court, therefore, did not deny Muehr his right to due process by revoking his community supervision without considering an alternative punishment. We overrule Muehr's final issue.

The judgment of the trial court is affirmed.

Paul W. Green, Justice

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