Sammy Mendez Garcia v. The State of Texas--Appeal from 194th District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-137-CR

SAMMY MENDEZ GARCIA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 194th District Court

Dallas County, Texas

Trial Court # F93-55903-JM

O P I N I O N

Appellant Garcia appeals from the judgment of the trial court revoking his probation and sentencing him to ten years in the Texas Department of Criminal Justice.

On August 5, 1993, Appellant pled guilty in an open plea (no plea bargain) to possession of cocaine, less than 28 grams. The trial court sentenced him to ten years in prison and probated his sentence. Two of the conditions of probation were (1) that he not use any drugs, and (2) that he report to a drug treatment center in Wilmer, Texas.

The State filed a motion to revoke Appellant's probation on November 5, 1993, alleging that he had violated his probation by using drugs and had tested positive for use of cocaine on five named dates.

Appellant pled "true" to the violations and, at a hearing on November 24, the trial court continued him on probation and ordered him released to await availability of a bed at the Wilmer, Texas, Drug Treatment Center.

On December 15, 1993, the State again filed a motion to revoke Appellant's probation, alleging that he violated his probation by testing positive for toluene on December 1, and had failed to enter the drug treatment center on December 14 as ordered.

On January 4, 1994, the trial court heard the State's second motion to revoke probation; found that he had violated the terms of his probation by sniffing toluene, condition "b" of his probation, and by failing to appear for transfer to the drug treatment center in Wilmer.

Appellant appeals on one point of error: "The trial court abused its discretion by revoking Appellant's probation." Specifically, he asserts that the State never proved by a preponderance of the evidence that he was the same person who was previously placed on probation, and that the State did not prove the violation that Appellant failed to enter the treatment facility as ordered.

In a revocation proceeding the State must prove by a preponderance of the evidence that the defendant is the individual named in the judgment and order of probation, and that he or she violated a term of the probation order as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). When the State does not meet its burden of proof, the trial court abuses its discretion by revoking probation. Carona v. State, 665 S.W.2d 492, 494 (Tex. Crim. App. 1984). The record reflects that Appellant was before the same judge four times in six months. The judge made it clear that he personally knew Appellant as the Sammy Mendez Garcia who was placed on probation in his court. Appellant admitted at the first revocation hearing that he was the same Sammy Garcia who had been placed on probation in this case. Appellant did not contest identity at trial, and does not now assert that he is not the same Sammy Garcia who attended all hearings.

The evidence is sufficient to establish that Appellant is the same person who was placed on probation and whose probation was revoked. Moreover, the issue of identity cannot be raised for the first time on appeal. Barrow v. State, 505 S.W.2d 808, 811 (Tex. Crim. App. 1974).

Assuming, without deciding, that the State did not adequately prove that Appellant had notice to appear for transport to the treatment center, the State did prove that Appellant violated term (b) of his probation by using prohibited drugs. Proof of one ground for revocation will support the court's order to revoke probation. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980).

Appellant's point and contention made thereunder are overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Cummings, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed December 19, 1995

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