Kirk Alan Key v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-96-142-CR

KIRK ALAN KEY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 94-784-C

O P I N I O N

In April 1995, Kirk Alan Key was convicted of indecency with a child and placed on eight-years' probation. See Tex. Penal Code Ann. 21.11 (Vernon 1994). The court revoked his probation in June 1996. In a single point, Key asserts that the court abused its discretion in revoking his probation because the evidence was insufficient. We will affirm.

The State filed a motion to revoke Key's probation in February 1996, alleging that he had failed to report to his probation officer as required between July 1, 1995, and January 11, 1996. Key entered a plea of "not true" to the allegations.

Robert W. Cox, Jr., a Tarrant County probation officer, testified that Key's supervision was transferred to Tarrant County from McLennan County in April or May of 1995 and assigned to him. Cox testified that Key reported to him in May 1995 and to another probation officer in June 1995. He testified that Key did not report from July to December of 1995. When Key failed to report in January of 1996, Cox contacted McLennan County authorities.

Cox testified that he was the custodian of Key's Tarrant County probation records, that the records were kept in the regular course of business, that the records were in chronological order, that he or another employee made the entries at or near the time of the event, and that he had the records with him at the revocation hearing. On cross-examination, Cox testified:

[DEFENSE]: Do you know whether or not [Key] could have reported to someone else in the office, other than you?

[COX]: Yes, sir, I would have known. They would have immediately reported that to me.

[DEFENSE]: You are saying, that should have been done if he had reported?

[COX]: It would have been done, yes.

Key argues that although Cox testified that Key did not report to him during the questionable months, he could have reported to other probation officers. Key argues that the evidence is insufficient because the State did not introduce the Tarrant County probation records into evidence, citing Hartsfield v. State, 523 S.W.2d 683 (Tex. Crim. App. 1975) and Davis v. State, 563 S.W.2d 264 (Tex. Crim. App. 1978).

The State must prove by a preponderance of the evidence that Key violated the conditions of his probation. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). We review the trial court's ruling to determine if it abused its discretion in revoking Key's probation. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Brumbalow v. State, 933 S.W.2d 298, 300 (Tex. App. Waco 1996, pet. filed). Cox testified from his records that Key did not report from July 1995 through January 1996. He further testified that he would have known if Key had reported to another probation officer.

We find Key's authorities distinguishable. In Hartsfield, the probation officer testified that Hartsfield was allowed to report to other probation officers. 523 S.W.2d at 685. Over objection, the probation officer was not allowed to answer whether the probation records indicated whether Hartsfield had reported to other officers. Id. The records themselves were not in evidence, and thus the trial record was devoid of any evidence of whether Hartsfield had reported to another officer. Id. Likewise in Davis, the probation officer's testimony was insufficient to prove that the defendant had not reported to another officer when the probation records were not in evidence. Davis, 563 S.W.2d at 266.

The dispositive issue in each case is the insufficiency of the probation officer's testimony, not whether the probation records were admitted into evidence. Here, Cox testified that Key did not report to him, that he would have known if Key had reported to another officer, and that the records would have reflected such. We believe the State proved by a preponderance of the evidence that Key violated the conditions of his probation. Cobb, 851 S.W.2d at 874. Thus, the court did not abuse its discretion in revoking his probation. Cardona, 665 S.W.2d at 493. We overrule the point and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed February 5, 1997

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