Toni D. Kale v. The State of Texas--Appeal from County Court at Law No 2 of Smith County

NO. 12-05-00030-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TONI D. KALE, APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW #2

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Toni Kale appeals the trial court s order revoking her community supervision, following which she was sentenced to confinement for one hundred seventy days. Appellant raises one issue on appeal. We affirm.

Background

Appellant pleaded guilty to the offense of theft by check. The trial court sentenced Appellant to confinement for one hundred eighty days, but probated the sentence and placed Appellant on community supervision for eighteen months. The court further imposed a $2,000.00 fine and ordered Appellant to pay $1,423.28 in restitution. The amount of restitution was subsequently increased to $2,530.91, but was later reduced to $1,620.23. On March 8, 2002, Appellant s community supervision term was extended until March 7, 2005.

On February 26, 2004, Appellant testified before a Smith County Grand Jury concerning the investigation of the death of Edward Erwin. Thereafter, the State filed a motion to revoke Appellant s community supervision. In its motion, the State alleged that Appellant violated the terms of her community supervision in that she (1) failed to obey the law because she observed the commission of a felony under circumstances where a reasonable person would have believed that an offense had been committed and in which serious bodily injury or death may have resulted, and (2) she failed to timely pay a forty dollar per month supervision fee to the Smith County Community Supervision and Corrections Department for October 2004.

Appellant filed a motion to suppress her grand jury testimony contending that she did not intelligently, knowingly, or voluntarily waive her rights prior to testifying. The trial court conducted a hearing on Appellant s motion to suppress on January 19, 2005. After the hearing, the trial court denied Appellant s motion.

Thereafter, the trial court conducted a hearing on the State s motion to revoke. Appellant pleaded true to both allegations in the State s motion. Ultimately, the trial court found the allegations in the State s motion to be true, revoked Appellant s community supervision, and sentenced Appellant to confinement for one hundred seventy days. This appeal followed.

Probation Revocation

In her sole issue, Appellant contends that the trial court erred in denying her motion to suppress. The only question presented in an appeal from an order revoking probation is whether the trial court abused its discretion in revoking the defendant s probation. See Lloyd v. State, 574 S.W.2d 159, 160 (Tex. Crim. App. [Panel Op.] 1978). The standard of proof in a revocation proceeding is a preponderance of the evidence. Id. In order to satisfy its burden of proof, the State must prove that the greater weight of the credible evidence before the trial court creates a reasonable belief that a condition of community supervision has been violated as alleged in the motion to revoke. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). In the instant case, Appellant pleaded true to each of the State s allegations. A plea of true to any one of the alleged violations contained in a motion to revoke is sufficient to support the trial court's order revoking probation. Moore v. State, 11 S.W.3d 495, 498 n. 1 (Tex. App. Houston [14th Dist.] 2000, no pet.). Once a plea of true has been entered, a defendant may not challenge the sufficiency of the evidence to support the subsequent revocation. Id. (citing Rincon v. State, 615 S.W.2d 746, 747 (Tex. Crim. App. [Panel Op.] 1981); Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979); Hays v. State, 933 S.W.2d 659, 661 (Tex. App. San Antonio 1996, no pet.)). Therefore, since Appellant pleaded true to the State s allegations, she may not challenge the sufficiency of the evidence to support the trial court s revocation of her community supervision. We hold that the trial court did not abuse its discretion in revoking Appellant s community supervision.

We iterate that a plea of true to any one of the alleged violations contained in a motion to revoke is sufficient to support the trial court's order revoking probation. See Moore, 11 S.W.3d at 498 n. 1. Since Appellant pleaded true to the State s allegation that she failed to timely pay a forty dollar per month supervision fee to the Smith County Community Supervision and Corrections Department for October 2004, the trial court s revocation of her community supervision is sustainable on that ground alone. Thus, Appellant s grand jury testimony has no bearing on the pertinent question of whether or not the trial court abused its discretion. See Lloyd, 574 S.W.2d at 160; Barrett v. State, 12-03-00192-CR, 2004 WL 368961, at *2 (Tex. App. Tyler February 27, 2004, pet. dism d, untimely filed) (not released for publication) (court declined to address issue related to objection to hearsay testimony contained in exhibits because the evidence was sufficient to support the trial court's revocation of community supervision independent of the exhibits to which the appellant objected). As such, we need not address Appellant s sole issue. See Lloyd, 574 S.W.2d at 160. Appellant s sole issue is overruled.

Disposition

Having overruled Appellant s sole issue, we affirm the trial court s judgment.

DIANE DEVASTO

Justice

Opinion delivered October 31, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)