James Campbell, Jr. v. The State of Texas--Appeal from 336th District Court of Fannin County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00096-CR
______________________________
JAMES CAMPBELL, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th Judicial District Court
Fannin County, Texas
Trial Court No. 20476
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

James Campbell, Jr., appeals from the revocation of his community supervision. The State filed a motion to revoke based on allegations Campbell had been involved with the delivery of a controlled substance to a confidential informant. Campbell contends the trial court abused its discretion by revoking because the evidence was insufficient to prove he had violated his community supervision.

Our review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In determining questions regarding sufficiency of the evidence in community supervision revocation cases, the State must prove, by a preponderance of the evidence, that the defendant violated a term of his or her community supervision. Rickels, 202 S.W.3d at 763. A preponderance of the evidence exists when the greater weight of the credible evidence creates a reasonable belief that the defendant has violated a condition of his or her community supervision. Id. at 764; Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974).

In this case, the State presented evidence from a confidential informant, the police officer for whom she was working, and a "friend" of the defendant. The officer testified that he took the informant to Campbell's house to make a drug buy and that (after ensuring that the informant had no drugs on her person) he gave her money. The informant testified that she went to the house and that Campbell said, "I'm not doing any business." She walked out, followed by James Cuba, who took her money and went back into the house. She testified that she heard Cuba talking to Campbell and heard Campbell say "just a minute" and that Cuba then came back out and gave her crack cocaine.

Cuba testified that he was there when the informant arrived and that, after Campbell had refused to sell the informant anything, he took her money (less $40.00) to Campbell and got the drugs, which he then gave to her.

Campbell argues that the evidence is insufficient because it does not show he delivered drugs to the confidential informant. He also argues that the evidence is inadequate because the informant's credibility was questionable, her memory was poor, and because she testified that, at one point while she was in the house, she had seen Cuba reaching under a mattress where the cocaine was concealed.

In a community supervision revocation hearing, the trial court is the sole trier of fact and determines the credibility of the witnesses and the weight to be given their testimony. Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.--Fort Worth 2007, pet. ref'd). The court may accept or reject any or all of the witness' testimony. Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987).

In this case, there is no evidence Campbell personally delivered the cocaine to the informant. However, there is substantial evidence he acted as a party and was thus criminally responsible for the unlawful act. See Tex. Penal Code Ann. 7.01, 7.02, 7.03 (Vernon 2003).

Even though there is some testimony that might have been understood to suggest that Cuba was exercising some personal control over the contraband (under the mattress), the finder of fact was not bound to believe this indicated that Cuba had sole control over the contraband. The confidential informant's testimony was not a model of clarity or consistency, but it does provide evidence of the criminal act, which was further supported and strengthened by Cuba's testimony.

Under this state of the record, we find the State's allegations to be supported by the preponderance of the evidence and thus cannot find that the trial court abused its discretion by revoking Campbell's community supervision.

We affirm.

 

Jack Carter

Justice

 

Date Submitted: November 26, 2007

Date Decided: December 19, 2007

 

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