KELVIN DOYLE WALLACE v. THE STATE OF TEXAS--Appeal from 36th District Court of San Patricio County

NUMBER 13-06-194-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

KEVIN DOYLE WALLACE, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court

of San Patricio County, Texas

MEMORANDUM OPINION

 
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Rodriguez

This is an appeal from an order of the trial court following a probation revocation hearing. The trial court found that appellant, Kevin Doyle Wallace, was in possession of marihuana and drug paraphernalia, in violation of the terms of his probation, and ordered his probation revoked. In a single point of error, appellant argues that the trial court abused its discretion in ordering appellant's probation revoked. We affirm.

I. Background

Appellant was convicted of felony possession of marihuana, see TEX. HEALTH & SAFETY CODE ANN. 481.121 (Vernon 2003), sentenced to seven years' incarceration, and ordered to pay a $1,500 fine. The trial court suspended appellant's sentence and placed him on probation for a period of seven years. The State later moved to revoke appellant's probation for violating the terms of his probation. The trial court found that appellant intentionally and knowingly possessed a usable quantity of marihuana, see id., and he intentionally and knowingly used, and possessed with intent to use, drug paraphernalia, see id. at 481.125, thereby violating the term of his probation that he abide by all laws of the State.

II. Revocation of Probation

Appellant contends that the trial court abused its discretion when it ordered his probation revoked. We disagree.

A. Standard of Review and Relevant Law

We review the trial court's revocation order under an abuse of discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984) (en banc). In a hearing to revoke probation, a trial court abuses its discretion in revoking probation if the State has failed to meet its burden of proof, by the preponderance of the evidence, for every element of the offense alleged as grounds for revocation. Id. at 493-94; Nanquin v. State, 607 S.W.2d 583, 586-87 (Tex. Crim. App. 1980). However, the trial court serves as the sole arbiter of fact in proceedings of this nature, and an appellate court must view the evidence presented in a light most favorable to the trial court's order. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981).

In its motion to revoke, the State alleged that appellant unlawfully possessed marihuana, a controlled substance, and so violated the probation term stipulating that he must abide by the laws of the State of Texas. We will restrict our analysis to this allegation alone, since it is sufficient to determine the point of error. See id. at 175 (providing that proof of a single allegation is sufficient to support an order revoking appellant's probation); see also TEX. R. APP. P. 47.1. The State proves this violation if it shows that appellant had exercised care, control, and management over the marihuana, and that he was aware that the substance was, in fact, contraband. Hernandez v. State, 538 S.W.3d 127, 129 (Tex. Crim. App. 1976). Furthermore, the evidence produced must affirmatively link appellant to the marihuana in such a manner, and to such an extent, that a reasonable inference may arise that appellant knew he was in possession of it. Id. at 130. Therefore, if such evidence is presented and is sufficient to prove unlawful possession by a preponderance of the evidence, under a light most favorable to the verdict, the judgment of the trial court will be affirmed.

B. Analysis

The record reflects testimony, presented at the revocation hearing, that appellant admitted to the investigating officer that he had driven to the place of his arrest in a black Oldsmobile and that he had been driving the vehicle "for quite some time" before his arrest. There was also testimony from the investigating officer that he found a small amount of marihuana on the passenger's side floorboard of that vehicle, which was not only in plain view, but also appeared to be "fairly fresh." The officer further testified that appellant told him, "The dope wasn't mine, I was just holding it for Jay. . . ." This clearly offers some evidence that affirmatively links appellant to the marihuana in a way that gives rise to a reasonable inference that appellant was aware of the nature and existence of the marihuana and exercised care, control, and management over it. See id. This evidence also clearly supports a determination, by the preponderance of the evidence and under the light most favorable to the verdict, that the marihuana was unlawfully in appellant's possession. See generally id. Therefore, the trial court acted within its discretion in revoking appellant's probation. We overrule appellant's sole point of error.

III. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and

filed this 14th day of June, 2007.