Lonell Grimes v. The State of Texas--Appeal from 120th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LONELL GRIMES,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-02-00531-CR

Appeal from the

120th District Court

of El Paso County, Texas

(TC# 980D03666)

MEMORANDUM OPINION

Lonell Grimes appeals the trial court s judgment revoking community supervision and imposing the ten-year sentence previously assessed for his robbery conviction. We affirm.

I. FACTUAL SUMMARY

On May 29, 1998, Appellant entered a negotiated plea of guilty to robbery as alleged in Count I of the indictment. In accordance with the plea bargain, the trial court deferred adjudicating Appellant s guilt and placed him on deferred adjudication community supervision for six years. The court subsequently found that Appellant had violated the terms and conditions of community supervision and entered an adjudication of guilt. The court assessed his punishment at imprisonment for ten years and sent Appellant to the Texas Department of Criminal Justice s Special Alternative Incarceration Program (Boot Camp). By December 14, 2000, Appellant had successfully completed Boot Camp; consequently, the trial court suspended his sentence and placed Appellant on community supervision for the remainder of his term. The trial court later modified the terms and conditions of community supervision to require Appellant to participate in the Restitution Center Program (Condition m ). On October 29, 2002, the State filed a motion to revoke Appellant s community supervision alleging that he had violated several rules of the Restitution Center. Following a contested hearing, the trial court revoked the order placing Appellant on community supervision and imposed the sentence previously assessed.

II. REVOCATION OF COMMUNITY SUPERVISION

In two points of error, Appellant contends that the evidence is legally and factually insufficient to sustain the trial court s determination that Appellant violated the terms and conditions of community supervision. He does not state his argument in terms of an abuse of discretion but instead cites the standards of review typically applied to issues involving challenges to the legal and factual sufficiency of the evidence to support the elements of the offense. We have previously determined that a probationer whose community supervision has been revoked is not entitled to a factual sufficiency review of the trial court s findings because a revocation proceeding does not constitute a stage of a criminal prosecution even though it results in the probationer s loss of conditional liberty, and it is essentially an administrative hearing. See Becker v. State, 33 S.W.3d 64, 66 (Tex. App.--El Paso 2000, no pet.). Accordingly, we will review the trial court s order under the traditional analysis.

A. Standard of Review

In a community supervision revocation hearing, the State must establish by a preponderance of the evidence that the defendant violated a condition of his probation. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Becker, 33 S.W.3d at 66. Thus, the State must show that the greater weight of credible evidence before the court creates a reasonable belief that a condition of probation has been violated, as alleged in the motion to revoke. Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983); Williams v. State, 910 S.W.2d 83, 85 (Tex. App.--El Paso 1995, no pet.). It is the duty of the trial court to determine whether the allegations in the motion for revocation are true. Langford v. State, 578 S.W.2d 737, 739 (Tex. Crim. App. 1979) (opin. on reh g); Becker, 33 S.W.3d at 66. In making this determination, the trial court is the sole trier of the facts and the credibility of the witnesses. Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980); Becker, 33 S.W.3d at 66.

When the State has satisfied its burden of proving the allegations by a preponderance of the evidence, the decision whether to revoke community supervision is within the discretion of the trial court. Flournoy v. State, 589 S.W.2d 705, 707 (Tex. Crim. App. 1979); Gordon v. State, 4 S.W.3d 32, 35 (Tex. App.--El Paso 1999, no pet.). Under such circumstances, the trial court s discretion is substantially absolute. Flournoy, 589 S.W.2d at 708; Gordon, 4 S.W.3d at 35. Accordingly, the only question properly presented on appeal is whether the trial court abused its discretion in revoking probation. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Gordon, 4 S.W.3d at 35. If a single ground for revocation is supported by a preponderance of the evidence and is otherwise valid, then an abuse of discretion is not shown. Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980); Gordon, 4 S.W.3d at 35.

B. No Abuse of Discretion

The motion to revoke alleged that Appellant violated Condition m by violating the rules of the Restitution Center in five respects:

(1) by getting a master key and opening the doors at the Restitution Center without authorization;

(2) by failing to maintain employment;

(3) by having unauthorized visitors;

(4) by leaving his job site; and

(5) by taking the property of another resident without permission.

The trial court, however, found only the second and fifth allegations true .

Antonio Gomez, Jr., the probation officer in charge of the Restitution Center, testified at the revocation hearing. Gomez testified without objection that on March 18, 2002, Appellant was not maintaining employment in violation of the Restitution Center rules. This testimony is sufficient to support the trial court s finding that Appellant violated Condition m as alleged in the motion to revoke.

Additionally, Appellant admitted to Gomez that he had another resident s shoes in his locker but claimed he did not know who put them there. The Restitution Center maintained a list of every resident s property and these shoes were not on Appellant s list of property. Further, no other resident has a key to Appellant s locker. The evidence is sufficient to support the court s determination that Appellant violated a Restitution Center rule, and thus, violated Condition m as alleged in the motion to revoke. Accordingly, the trial court did not abuse its discretion in revoking Appellant s community supervision. We overrule Points of Error One and Two and affirm the judgment revoking community supervision.

RICHARD BARAJAS, Chief Justice

August 26, 2004

Before Panel No. 3

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

(Do Not Publish)