Cody Michael Smith v. The State of Texas--Appeal from 220th District Court of Hamilton County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00277-CR

Cody Michael Smith,

Appellant

v.

The State of Texas,

Appellee

From the 220th District Court

Hamilton County, Texas

Trial Court No. 04-03-07169-HCCR

MEMORANDUM Opinion

Cody Michael Smith appeals from the revocation of his community supervision for possession of 4 grams or more but less than 200 grams of methamphetamine with intent to deliver. Smith s community supervision was revoked because he committed a subsequent offense, tampering with equipment manufactured and used to hold anhydrous ammonia. Smith contends in two points that: (1) the evidence is insufficient to prove he committed the subsequent offense; and (2) the court abused its discretion by denying the motion for mistrial he urged in the trial of the subsequent offense.

We construe Smith s first point as an assertion that the State failed to prove by a preponderance of the evidence that he violated a condition of his community supervision. See Moreno v. State, 22 S.W.3d 482, 488 (Tex. Crim. App. 1999); Brooks v. State, 153 S.W.3d 124, 126 (Tex. App. Beaumont 2004, no pet.). However, this Court found the evidence legally sufficient to prove Smith committed the subsequent offense in Smith s appeal from that conviction. See Smith v. State, No. 10-04-00103-CR (Tex. App. Waco Mar. 23, 2005, no pet.) (not designated for publication). By agreement of the parties, the State offered a transcript of the hearing from the trial of the subsequent offense to prove the violation in the revocation hearing. Because the State presented legally sufficient evidence to prove the subsequent offense, the State necessarily proved that Smith violated a condition of his community supervision by a preponderance of the evidence. See Moreno, 22 S.W.3d at 488; Brooks, 153 S.W.3d at 126. Accordingly, we overrule Smith s first point.

Smith contends in his second point that the court abused its discretion by denying the motion for mistrial he urged during the trial of the subsequent offense. However, Smith did not request a mistrial in the revocation hearing. Because he presents this argument for the first time on appeal, it has not been properly preserved for appellate review. See Tex. R. App. P. 33.1(a)(1). Accordingly, we overrule Smith s second point.

We affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed August 3, 2005

Do not publish

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