Jerry Wayne Hill v. The State of Texas--Appeal from 188th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00110-CR

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JERRY WAYNE HILL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th Judicial District Court

Gregg County, Texas

Trial Court No. 32052-A

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Jerry Wayne Hill pled guilty to the offense of assault-family violence // on December 3, 2004. Because Hill had been previously convicted of assaulting a family member, he faced the punishment range provided for third-degree felonies. See Tex. Pen. Code Ann. 22.01(b)(2) (Vernon Supp. 2005). The trial court followed Hill's negotiated plea agreement with the State calling for Hill to be released to community supervision for a period of five years. The conditions of Hill's probated sentence included, among other things, that he report to his community supervision officer by the tenth day of each month, that he pay a monthly supervision fee of $50.00, that he pay $10.00 each month toward court costs of $223.00, that he pay $20.00 each month toward his obligation of $455.00 in court-appointed attorney's fees, and that he perform four hours of community service each month as assigned by the Gregg County Community Supervision and Corrections Department. Less than ninety days later, the State filed an application to revoke Hill's community supervision, alleging he had failed to report to his supervision officer each month; failed to pay his monthly supervision fee, court costs, and court-appointed attorney's fees; and had failed to complete any community service. //

At the hearing on the State's application to revoke Hill's community supervision, Hill pled "true" to having violated the conditions of his community supervision, as alleged by the State. The trial court subsequently found the evidence substantiated the State's allegations, revoked Hill's community supervision, and imposed a four-year sentence. Hill now appeals contending the trial court abused its discretion in revoking Hill's community supervision. We affirm.

We review a trial court's judgment revoking community supervision for an abuse of discretion. Herald v. State, 67 S.W.3d 292, 293 (Tex. App. Amarillo 2001, no pet.) (citing Naquin v. State, 607 S.W.2d 583, 586 (Tex. Crim. App. 1980)). A trial court abuses its discretion when it "so deviates from applicable guidelines and principles that the decision falls outside the zone of reasonable disagreement." Breakiron v. State, 79 S.W.3d 103, 106 (Tex. App. Texarkana 2002, no pet.) (referencing Salazar v. State, 38 S.W.3d 141, 153 54 (Tex. Crim. App. 2001)). If the State presents sufficient evidence to prove all the elements of even a single violation of community supervision, as alleged in its motion to revoke, then the trial court has sufficient cause to revoke that community supervision. Watts v. State, 645 S.W.2d 461, 463 (Tex. Crim. App. [Panel Op.] 1983); McDonald v. State, 608 S.W.2d 192 (Tex. Crim. App. [Panel Op.] 1980); Lee v. State, 952 S.W.2d 894, 900 (Tex. App. Dallas 1997, no pet.). At the hearing on the State's application to revoke community supervision, "the trial judge is the sole trier of the facts, the credibility of the witnesses and the weight to be given to particular testimony." Naquin, 607 S.W.2d at 586; Lee, 952 S.W.2d at 897. The State must, however, prove every element of the violations alleged in the application to revoke community supervision, by a preponderance of the evidence, before the trial court may, in its discretion, choose to revoke the individual's community supervision. Naquin, 607 S.W.2d at 586; Lee, 952 S.W.2d at 897. If the defendant has any affirmative defenses to the State's allegation (such as the inability to pay court costs and other fees), then he or she must prove those defenses by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 42.12, 21(c) (Vernon Supp. 2005); Davis v. State, 181 S.W.3d 426, 427 (Tex. App. Waco 2005, no pet.). However, a defendant's plea of "true" is, by itself, sufficient to support a trial court's judgment of revocation. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979); Mitchell v. State, 482 S.W.2d 221, 222 23 (Tex. Crim. App. 1972); Seymour v. State, No. 06-02-00111-CR, 2003 Tex. App. LEXIS 1062, at *7 (Tex. App. Texarkana Feb. 5, 2003, no pet.) (mem. op.) (not designated for publication).

In this case, Hill's plea of "true" was also sufficient evidence to support the trial court's finding that Hill had violated one or more conditions of community supervision. See Cole, 758 S.W.2d at 128. It matters not that the trial court heard subsequent testimony from Hill that might support an affirmative defense (such as the inability to pay). See id. at 127 28 (plea of true was enough, despite subsequent evidence supporting affirmative defense to revocation). Moreover, the trial court, as finder of fact, would have been free to disbelieve any or all of that testimony. Naquin, 607 S.W.2d at 586. Indeed, in this case, it is possible that the trial court completely disbelieved all of Hill's subsequent testimony in light of the State's cross-examination of Hill, during which several factual inconsistencies in Hill's testimony became apparent.

Hill's plea of "true" by itself provides the trial court with sufficient evidence to revoke Hill's community supervision. No abuse of discretion has been shown.

We affirm the trial court's judgment.

Jack Carter

Justice

Date Submitted: May 30, 2006

Date Decided: June 16, 2006

Do Not Publish