Chearl Twashynett Byrd v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-99-140-CR

CHEARL TWASHYNETT BYRD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 23721CR

O P I N I O N

Chearl Byrd was charged with securing execution of a document by deception. See Tex. Pen. Code Ann. 32.46 (Vernon Supp. 1999). She entered a plea of guilty and was sentenced to 365 days in jail. The sentence was suspended, and she was placed on community supervision probation. Five months later, the State filed a petition to revoke Byrd s probation, asserting she had: failed to report to the community supervision department; failed to pay supervision fees, court costs, attorney s fees, and restitution; and failed to submit to alcohol and drug testing. The court found the allegations true, revoked the probation, and sentenced Byrd to 365 days in a state jail facility. She appeals, asserting in three issues that the court abused its discretion in revoking probation. Finding no abuse, we will affirm the judgment.

STANDARD OF REVIEW

The State's burden of proof in a revocation proceeding is by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). When the State has failed to meet its burden of proof, the trial court abuses its discretion in issuing an order to revoke probation. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). Evidence of one violation of probation conditions will support the court's order revoking probation. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); Holmes v. State, 752 S.W.2d 700, 701 ( Tex. App. Waco 1988, no pet.). If the evidence supports a finding of one violation, we will affirm the judgment. Stevens v. State, 900 S.W.2d 348, 350 (Tex. App. Texarkana 1995, pet. ref'd); Holmes, 752 S.W.2d at 701.

THE EVIDENCE

Linda Korbelic, a community supervision officer, testified that she was in court on October 6, 1998, the day Byrd was placed on community supervision. She explained the terms and conditions of probation to Byrd, including the need to report monthly, to pay all the fees and restitution ordered by the court, and to submit to drug testing. She further instructed Byrd to go to the supervision department that day to set up her monthly reporting schedule.

Mary Guerra, Byrd s supervising officer, testified that Byrd did not show up at the supervision department on October 6. She said that Byrd did not report until December 4, 1998. At that time she was asked to take a drug test and left the premises without doing so. Byrd never reported again. Guerra further testified that Byrd never made any payments as ordered by the court.

Byrd testified that she did not understand that she was supposed to report to the supervision department on October 6. She testified that she was in a drug rehabilitation program for thirty days around December 12 and that she was arrested on old charges in December as well. She asked the court to consider her children, continue her probation, and put her in a more intensive drug rehabilitation program. Byrd admitted that she had not paid any of the court fees or restitution. She stated that she was unemployed and her only income was child support. She said that she did not report because of a fear and because she wasn t in the right frame of mind. Byrd also said that she left on December 4 without submitting to the drug test because another officer told her she could leave.

ANALYSIS

Byrd s third issue suggests that the court erred in revoking her probation because the State failed to show that her failure to report was intentional and not the result of an inability to report. We note that she does not cite any authority to support this suggestion.

Byrd argues that her testimony that she was in a drug rehabilitation program and that she was incarcerated on another charge shows an inability to report to the supervision department. Our review of the record shows that she was in a rehabilitation program for, at most, thirty days starting around December 12 and that she was incarcerated . . . for old charges for three days, also in December. Byrd testified that she didn t show up for her monthly reports because she wasn t in the right frame of mind and didn t know how to handle the pressure. She never testified that she was unable to report. Thus, failing to report was a proper basis for revoking Byrd s probation.

Because one violation is sufficient to support a decision to revoke probation, the judgment is affirmed. // Holmes, 752 S.W.2d at 701.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed November 3, 1999

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