Jeffory Mark Taylor v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-96-141-CR

JEFFORY MARK TAYLOR,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 91-359-C

O P I N I O N

Jeffory Mark Taylor appeals the revocation of his community supervision by the 54th District Court of McLennan County. Tex. Code Crim. Proc. Ann. art. 42.12, 21 (Vernon Supp. 1997). We affirm.

On June 28, 1991, Taylor pled guilty to possession of a controlled substance, and the trial court assessed punishment at seven years' incarceration in the Institutional Division of the Texas Department of Criminal Justice, probated for seven years, and a fine of $750. Tex. Health & Safety Code Ann. 481.103(a)(3) (Vernon 1992), 481.116(d) (Vernon Supp. 1997). On June 27, 1996, the trial court found that Taylor had violated the terms of his community supervision by consuming a controlled substance on five different occasions, failing to report monthly to a community supervision officer between August 1994 and June 1996, and failing to attend weekly substance-abuse rehabilitation programs between August 1994 and June 1996. Taylor raises five points on appeal: (1) the evidence is insufficient to support the trial court's finding that Taylor consumed controlled substances during his probationary period; (2) the trial court erred in refusing to allow Taylor to testify for the limited purpose of addressing the voluntariness of his confessions; (3) the trial court erred in failing to allow Taylor to present relevant evidence prior to revoking his community supervision; (4) the evidence is insufficient to support the trial court's finding that Taylor failed to report to a community supervision officer between August 1994 and June 1996; and (5) the evidence is insufficient to support the trial court's finding that Taylor failed to attend substance-abuse rehabilitation programs between August 1994 and June 1996.

In his first point of error, Taylor argues the evidence presented at his revocation hearing was circumstantial and thereby insufficient to support the court's finding that he violated the terms and conditions of his probation by consuming controlled substances. Taylor contends that, when only circumstantial evidence is used by the State to satisfy its burden of proof, the evidence must exclude every reasonable conclusion except that a violation occurred. We disagree.

Taylor's argument is based on an extinct rule of law: the "outstanding reasonable hypothesis" theory. Desselles v. State, 934 S.W.2d 874, 877 (Tex. App. Waco 1996, no pet.); see Brown v. State, 911 S.W.2d 744, 745-46 (Tex. Crim. App. 1995); Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1993). The proper appellate standard of review for a revocation proceeding is whether the trial court abused its discretion in finding that the State proved by a preponderance of the evidence that the defendant violated a term or condition of the imposed community supervision sentence. Brumbalow v. State, 933 S.W.2d 298, 300 (Tex. App. Waco 1996, pet. ref'd); see Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). Absent an abuse of discretion, we will not disturb the trial court's decision. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Brumbalow, 933 S.W.2d at 299.

As a condition of Taylor's probation, he was required to:

Totally avoid the use of narcotics, barbiturates, habit forming drugs, or any controlled substance as defined in the laws of the State of Texas, except as previously prescribed by a Medical Doctor.

The State, in its Motion to Revoke Probation, alleged that Taylor consumed a controlled substance on five different occasions during his probationary period. // The evidence presented at the revocation hearing in support of these allegations was the testimony of Taylor's community supervision officer, Jerry Watson. Watson testified that Taylor admitted to him that he had indulged in the consumption of a controlled substance on the dates alleged in the State's motion.

Admissions made by a probationer to his community supervision officer are sufficient to prove that the probationer violated the terms and conditions of his probation. See Hernandez v. State, 704 S.W.2d 909, 910 (Tex. App. Waco 1986, no pet.); see also Cunningham v. State, 488 S.W.2d 117, 119-20 (Tex. Crim. App. 1972). By consuming controlled substances Taylor violated the terms of his probationary sentence; consequently, the trial court did not abuse its discretion in revoking Taylor's community supervision. Taylor's first point is overruled.

Because one sufficient ground will support a revocation of community supervision we need not consider Taylor's fourth and fifth points of error. Jones v. State, 571 S.W.2d 191, 193 (Tex. Crim. App. [Panel Op.] 1978); Hendley v. State, 783 S.W.2d 750, 752 (Tex. App. Houston [1st Dist.] 1990, no pet.); Aldredge v. State, 703 S.W.2d 354, 355 (Tex. App. Waco 1985, no pet.). We must, however, address Taylor's second and third points of error.

In a multifarious third point, Taylor argues that the trial court abused its discretion in not allowing (1) testimony regarding a negative urinalysis test and (2) testimony as to the hardship which would result if Taylor were incarcerated. // We need not address the first sub-point because we have held that Taylor's admissions to his community supervision officer were sufficient grounds on which the trial court could revoke Taylor's probation and the negative urinalysis test was not offered as proof that Taylor had not consumed a controlled substance on any of the dates alleged in the motion for revocation. // Therefore, we turn to the remaining issue of whether the trial court abused its discretion in refusing to hear evidence as to the hardship which would result if Taylor s community supervision were revoked. We conclude that it did not.

Upon a finding of "true" to any allegation of a defendant's violation of the terms and conditions of his community supervision, the trial court has the sole discretion to either continue, extend, modify, or revoke the defendant's community supervision. See Richardson v. State, 622 S.W.2d 852, 855 (Tex. Crim. App. [Panel Op.] 1981) (citing Ex parte Feldman, 593 S.W.2d 720, 721 (Tex. Crim. App. 1980)); see also Tex. Code Crim. Proc. Ann. art. 42.12, 21(b) (Vernon Supp. 1997). In the present case, the trial court found, among other things, that Taylor had violated the terms and conditions of his community supervision by indulging in controlled substances. Upon making this determination, the trial court was authorized to either continue, extend, modify, or revoke Taylor s community supervision. See Richardson, 622 S.W.2d at 855; see also Tex. Code Crim. Proc. Ann. art. 42.12, 21(b). The trial court chose to revoke. Because the trial court found that Taylor had violated the terms and conditions of his community supervision, we cannot say that the court abused its discretion by revoking Taylor s community supervision without hearing additional evidence as to the hardship which would result from Taylor s incarceration. See Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992); Brumbalow, 933 S.W.2d at 300. Taylor s third point of error is overruled.

In his second point, Taylor contends the trial court erred in not allowing him to testify for the limited purpose of addressing the voluntariness of his admissions of drug use made to his community supervision officer, Watson. Taylor maintains he should have been allowed to explain his motive for making false admissions of drug use without being subjected to unlimited cross-examination by the State. We disagree.

The due process clause protects a defendant from giving statements as the result of coercive interrogation tactics. Rodriquez v. State, 934 S.W.2d 881, 890 (Tex. App. Waco 1996, no pet.); see Colorado v. Connelly, 479 U.S. 157, 163-64, 107 S. Ct. 515, 520 (1986); Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). Taylor makes no allegation that his confessions to Watson were coerced. Because Taylor did not contend that his statements to Watson were involuntary, he had no right to make a limited appearance to refute the voluntariness of his statements. Therefore, the trial court did not err in allowing Taylor to be subjected to unlimited cross-examination by the State. His second point is overruled.

The judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 13, 1997

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