Glen Ray Bigham v. The State of Texas--Appeal from 402nd Judicial District Court of Wood County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00215-CR
______________________________
GLEN RAY BIGHAM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 402nd Judicial District Court
Wood County, Texas
Trial Court No. 18,601-2004
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION

On April 22, 2005, Glen Ray Bigham pled guilty to possessing less than one gram of cocaine in trial court cause number 18,601-2004. See Tex. Health & Safety Code Ann. 481.115(b) (Vernon 2003). The trial court assessed Bigham's punishment at two years' imprisonment. But, in accordance with the parties' negotiated plea agreement, the trial court suspended imposition of that sentence and released Bigham to community supervision for a period of five years.

The State filed a motion to revoke Bigham's community supervision on November 10, 2005. That motion was dismissed on January 9, 2006. On that same date, the trial court modified Bigham's community supervision and directed Bigham to attend and successfully complete the Substance Abuse Felony Punishment Facility (SAFPF) drug treatment program. (1)

On June 13, 2006, the State filed a new application to revoke Bigham's community supervision. The State's application alleged that Bigham had violated the conditions of his community supervision in several ways: (1) by failing to report to his community supervision officer on the first and fifteenth days of September and October, 2005, as previously ordered by the trial court; (2) by becoming $125.00 delinquent in the payment of his court costs, as directed by the trial court; and (3) by using illegal narcotics (cocaine) on or about May 20, 2005, June 17, 2005, July 7, 2005, August 11, 2005, and October 31, 2005 (the substance of each of these allegations had, more or less, been made in the November 10 revocation motion). The State subsequently amended the June 13 motion to assert Bigham had further violated his community supervision by using illegal narcotics (cocaine) on or about August 1 and 7, 2006. After conducting a September 5, 2006, hearing on the State's motion, the trial court found all the alleged violations to have been proven by the evidence, revoked Bigham's community supervision, and assessed Bigham's punishment at imprisonment for one year.

In this appeal, Bigham first contends the trial court was without authority to revoke his community supervision because (1) the State's motion to revoke alleged only allegations that were raised in the pre-modification motion and (2) principles of double jeopardy prohibited the trial court from considering the merits of such allegations as a basis to revoke Bigham's community supervision. In his second issue, Bigham acknowledges that his first point of error was not raised before the trial court and normally could not be considered on appeal. However, Bigham alleges the error under his first appellate issue was of such a nature as to cause the trial court's judgment to be void, which, if correct, would now permit him to present that point of error on appeal. See Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001). The thrust of Bigham's argument is this: the State's motion to revoke community supervision was insufficient to invoke the trial court's jurisdiction over the issues raised in that motion because the motion did not allege violations other than those that had been presented in the pre-modification revocation motion. Without an adequate instrument to invoke the trial court's subject-matter jurisdiction, Bigham argues that the trial court's judgment is void based on the post-modification revocation motion.

We addressed this preservation issue in our opinion issued today in Bigham v. State, cause number 06-06-00214-CR. In that case, we held that jeopardy did not bar the State from raising anew the same allegations it had raised in the pre-modification revocation motion and that the trial court's judgment was, therefore, not void. The factual and legal posture of this case is identical to Bigham, cause number 06-06-00214-CR. Therefore, for the reasons stated in that opinion, we similarly conclude Bigham's failure to raise the subject matter of his first point of error at the trial level now precludes our consideration of it at the appellate level.

Yet, even if we considered the merits of Bigham's argument, we would conclude that no error occurred, and we reach that conclusion for the same reasons already expressed in our other opinion issued today in Bigham, cause number 06-06-00214-CR. We overrule Bigham's first and second points of error.

In his final point of error, Bigham contends the evidence is insufficient to support the trial court's decision to revoke his community supervision. We review a trial court's decision to revoke a defendant's community supervision under an abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). Proof of a single violation, by a preponderance of the evidence, will support a trial court's decision to revoke the defendant's community supervision. Id. at 763-64; Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Cochran v. State, 78 S.W.3d 20, 28 (Tex. App.--Tyler 2002, no pet.).

The trial court received testimony at the revocation hearing from both Verlinda McCalla (Bigham's community supervision officer) and Bigham. McCalla testified that Bigham (1) failed to report to his community supervision officer during the months of September and October, 2005; (2) failed to pay his court costs, his fine, and his court-appointed attorney's fees as prescribed in this case; and (3) has repeatedly failed urinalysis tests and has admitted using crack cocaine while on community supervision. During Bigham's testimony, he admitted to the trial court that he had used cocaine as recently as two weeks before the revocation hearing. He also admitted having a positive urinalysis test result for cocaine on August 7. He further affirmed that he had previously admitted to McCalla that he had been using crack cocaine while on community supervision.

In ruling on the State's motion to revoke Bigham's community supervision, the trial court made oral findings of fact and conclusions of law. The trial court found that the State had proved (1) Bigham failed to report to his community supervision officer in September and October, 2005; (2) Bigham had failed to pay his court costs as directed by the trial court and was thereby in arrears; and (3) Bigham had violated his community supervision by using cocaine in violation of the prohibition against using illegal drugs or narcotics. Based on those findings, the trial court revoked Bigham's community supervision.

The testimony heard by the trial court clearly supports the trial court's findings of fact and conclusions of law. The State met its burden of proving at least a single violation by a preponderance of the evidence in that Bigham himself admitted using cocaine while on community supervision. Therefore, the record before us does not demonstrate the trial court abused its discretion by revoking Bigham's community supervision.

For the reasons stated, we overrule each of Bigham's points of error and affirm the trial court's judgment.

 

Bailey C. Moseley

Justice

 

Date Submitted: July 13, 2007

Date Decided: August 1, 2007

 

Do Not Publish

1. See Tex. Code Crim. Proc. Ann. art. 42.12, 14 (Vernon 2006); Tex. Gov't Code Ann. 493.009 (Vernon Supp. 2006).