Kevin Wayne Alford v. The State of Texas--Appeal from 82nd District Court of Robertson County

IN THE

TENTH COURT OF APPEALS

No. 10-96-203-CR

KEVIN WAYNE ALFORD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court # 95-10-15822-CR

O P I N I O N

Appellant Alford appeals from a judgment of the trial court revoking his probation and sentencing him to five years in the Texas Department of Criminal Justice, Institutional Division, and a $1,000 fine.

Appellant was convicted for delivery of cocaine on April 16, 1996. He was sentenced to five years in TDCJ-ID, probated for four years.

On June 3, 1996, the State filed a motion to revoke Appellant s probation alleging four violations of his probation: (1) Appellant had committed another offense, i.e., delivery of a simulated controlled substance on April 24, 1996; (2) he failed to pay his probation fees; (3) he failed to pay his crime stoppers fee; and (4) he failed to pay his court costs.

Appellant pled not true to the allegations of probation violation. After a hearing, the trial court held Appellant had violated all four alleged conditions of his probation, revoked his probation and sentenced him to five years in TDCJ-ID.

Appellant appeals on one point of error: The trial court abused its discretion in revoking Appellant s probation when there is insufficient evidence to support the allegations of the motion to revoke.

In a probation revocation hearing the prosecutor s burden of proof is by a preponderance of the evidence. Kulhanek v. State, 587 S.W.2d 424, 426 (Tex. Crim. App. 1979).

The trial judge is the sole trier of facts, the sole judge of the credibility of the witnesses and the weight to be given their testimony. Battle v. State, 571 S.W.2d 20, 21 (Tex. Crim. App. 1978).

The findings, conclusions and orders of the trial judge should not be reversed unless a clear abuse of discretion is shown. Flournoy v. State, 589 S.W.2d 705, 708 (Tex. Crim. App. 1979).

An appellate court will determine whether the lower court abused its discretion by examining the evidence in the light most favorable to the trial court s order. Cordona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984).

Proof of a single violation is sufficient to support the judgment of revocation. Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. 1978).

Officer Shannon of the Hearne Police Department testified Gregory Timmons was doing work for the police department as a confidential informant; that he met with Timmons at 8:01 p.m. on April 24, 1996; that he searched him for contraband and then issued him some currency to be used to purchase contraband. Officer Shannon met with Timmons again about 9:35 p.m. and Timmons gave the officer a chip which appeared to be rock cocaine and advised he had bought it from Appellant. The chip tested negative for cocaine. Officer Shannon filed a complaint and secured an arrest warrant for Appellant for delivery of a simulated controlled substance.

Probation Officer Leaman testified Appellant was on probation for delivery of cocaine and was under his supervision. He further testified Appellant was delinquent in payment of his probation fees, his crime stoppers fee and his court costs; and that Appellant had never made any payments since he was placed on probation.

Gregory Timmons testified he did undercover work for the Hearne Police Department; that his work included going out and buying drugs for them undercover; that he had made six or eight cases for the police. He testified he made a purchase from Appellant of something that was supposedly cocaine; that he paid Appellant $10 or $20; that Appellant had represented that what he sold Timmons was cocaine.

Appellant testified that he did not sell anything to Timmons; that he did not even remember seeing him in April. He further testified he was unemployed and had no money with which to pay his probation fees and obligations. On cross-examination he testified he had made a $5,000 bond in this case and had been paying the bondsman, although his mother was helping him. He also testified he had a car and gave it to the bondsman.

The trial court revoked Appellant s probation and sentenced him to five years in prison. Under the authorities and the evidence, the trial court was authorized to find that Appellant had violated all four conditions of his probation as alleged by the State.

We hold that the trial court did not abuse its discretion in revoking Appellant s probation and that the evidence is sufficient to support all four allegations in the motion to revoke.

Point one is overruled and the judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Cummings and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed June 25, 1997

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