Walid, Naim Abdullah v. The State of Texas--Appeal from 346th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

NAIM ABDULLAH WALID,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-00-00542-CR

Appeal from

346th District Court

of El Paso County, Texas

(TC# 20000D02152)

O P I N I O N

This is an appeal from the trial court=s revocation of appellant=s community supervision. The trial court assessed the punishment at six years= confinement at the Institutional Division of the Texas Department of Criminal Justice. We affirm.

Facts

On June 7, 2000, appellant pleaded guilty to robbery and was placed on six years= community supervision. Among the conditions of the community supervision was that he would A[c]ommit no offense against the laws of this state or of any other state (including municipal ordinances), or of the United States of America.@ On August 22, 2000, the State filed a motion to revoke his community supervision. The motion alleged that on July 14, 2000, appellant committed theft and intentionally and knowingly caused bodily injury to Arturo Medina, by striking the body of Arturo Medina with the arm of Naim Abdullah Walid.

At the revocation hearing, the State offered the testimony of two loss prevention employees of the store. The first witness, Angel Armendariz, testified that he had dubbed copies from a multi-plex video recording system to a regular tape so that he could give the copies to authorities. Armendariz was not present for the original recording.

The second witness, Art Medina, testified that he was controlling surveillance on the day appellant walked into the store. He testified that the original recording and the dubbed tape accurately depicted images of the appellant. After giving the copy to the police, Medina could not say for sure that the copy presented at the revocation hearing was the same as the one he originally made recording appellant.

After watching appellant pick up merchandise and leave the store without paying, Medina pursued appellant. Medina testified as follows:

MEDINA: After I left the store, sir, I started proceeding Mr. Walid right behind, and that=s when he kind of went like this with his hand, hit me in the right-hand shoulder with his left hand. I kept pursuing Mr.--

STATE: Hold on a second. When he hit you in your shoulder, did that hurt?

MEDINA: Yes, sir.

STATE: Cause pain?

MEDINA: Yes, sir.

Medina also testified that the blow caused a small red mark. He then pursued appellant to a nearby mall. At this point, Medina saw appellant Astick his hands in his pockets to pull out the merchandise.@ At the revocation hearing, Medina recognized the merchandise through photos presented by the State as the merchandise recovered from appellant. Medina admitted that he could not be sure that the clothes in the photographs were the clothes from the store.

The trial court concluded that the State did not meet its burden to prove by a preponderance of the evidence that appellant had committed theft. However, the trial court also stated that there was enough evidence to prove assault. The trial court therefore found appellant had violated the terms and conditions of his community supervision and accordingly revoked his probation.

Standard of review

Appellate review of an order revoking community supervision is confined to whether the trial court abused its discretion. See Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). The burden of persuasion in determining questions of evidentiary sufficiency in revocation proceedings is by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). The State is required to sustain the burden of proving the allegations of the motion to revoke. See id. at 873. Where a revocation of community supervision is based upon a violation of the condition not to violate the law, the requirements of the allegation are not as stringent as those of an indictment. Jansson v. State, 473 S.W.2d 40, 42 (Tex. Crim. App. 1971) (citing Campbell v. State, 456 S.W.2d 918, 921 (Tex. Crim. App. 1970)). Further, a violation of a single condition of community supervision will support its revocation. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). See also Maxey v. State, 49 S.W.3d 582, 584 (Tex. App.--Waco 2001, pet. ref=d). Moreover, we view the evidence presented at a revocation proceeding in the light most favorable to the trial court=s judgment. See Lee v. State, 952 S.W.2d 894, 897 (Tex. App.--Dallas 1997, no pet.).

Elements of assault

In appellant=s first point of error, he argues that the trial court erred in revoking his community supervision based on a lesser-included offense of assault because the elements of assault were not proven. In support of his argument, appellant argues that the evidence does not meet even the preponderance standard because there is no evidence as to scienter, no evidence that appellant knew Medina would find the touching offensive, and no evidence that a theft had been committed. We disagree.

It is true, as Walid argues, that assault can be an element of robbery under Tex. Penal Code ' 29.02, which provides that A[a] person commits an offense if, in the course of committing theft . . . and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.@ Tex. Penal Code Ann. ' 29.02(a) (Vernon 1994). Assault is also an independent offense under the penal code, however, which occurs when a person Aintentionally, knowingly, or recklessly causes bodily injury to another . . . . @ Tex. Penal Code Ann. ' 22.01(a)(1) (Vernon 1994 & Supp. 2002). Under Texas law, Abodily injury@ means Aphysical pain, illness, or any impairment of physical condition.@ Tex. Penal Code Ann. ' 1.07(a)(8) (Vernon 1994). It is thus possible for evidence to be insufficient to prove a robbery while simultaneously sufficient to prove an assault. Appellant=s argument that there is no evidence of a probation violation because there was no evidence of theft is therefore without merit.

Moreover, the trial court could reasonably infer from the circumstances and Walid=s actions that his striking or pushing Medina was done intentionally, knowingly, and recklessly. See Young v. State, 993 S.W.2d 390, 391 (Tex. App.--Eastland 1999, no pet.); Sharpe v. State, 881 S.W.2d 487, 489 (Tex. App.--El Paso 1994, no pet.). Here, loss prevention employees testified that appellant was seen stealing merchandise from the store and fleeing to prevent capture. In the course of fleeing, Walid hit or pushed a store employee who was pursuing him, causing the employee pain.

Because there is sufficient evidence to prove an assault under Tex. Penal Code ' 22.01(a)(1), we find the trial court did not abuse its discretion in finding appellant had violated the terms of his community supervision. That there was no finding of theft, nor evidence that Medina found the touching offensive as required under Tex. Penal Code ' 22.01(a)(3) was not required in order to sustain the State=s motion to revoke. Accordingly, Point of Error One is overruled.

Having considered and overruled Point of Error One, and thus found that Walid=s probation was properly revoked on Medina=s testimonial evidence proving assault, we need not reach the second point of error concerning the admissibility of the security video tapes.

Conclusion

The judgment of the trial court is affirmed.

SUSAN LARSEN, Justice

July 25, 2002

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)