JUSTIN MICHAEL PENNINGTON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed September 10, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00057-CR
No. 05-08-00058-CR
 
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JUSTIN MICHAEL PENNINGTON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause Nos. F03-57004-PL, F03-74438-VL
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OPINION
Before Justices Moseley, Richter, and Francis
Opinion By Justice Richter
        Justin Michael Pennington appeals following the adjudication of his guilt for unauthorized use of a motor vehicle (UUMV) and aggravated sexual assault of a child. In six points of error, appellant contends the evidence is factually insufficient to prove the allegations in the motions to adjudicate. We affirm the trial court's judgments.
Background
 
        In its amended motions to adjudicate, the State alleged appellant committed four new offenses: evading arrest or detention, theft of an ATM machine and cash, theft of a vehicle, and UUMV; failed to report; and failed to successfully complete a sex offender treatment program. During a hearing on the motions, Jacquelyn Winston, appellant's probation supervisor, testified appellant was placed on probation for seven years in October 2005. Appellant stopped reporting after October 2006. Winston testified appellant was discharged from the sex offender treatment program on two separate occasions because he failed to attended classes, and appellant committed several new offenses.
        Dallas police officer Michael Mondy testified that at approximately 2:00 a.m. on January 22, 2007, he saw a white van pulling an ATM machine through a parking on Lake June Road. Mondy saw appellant, who was wearing a jersey and blue baggy shorts, and two other men jump out of the van and run to a nearby wooded area. Mondy radioed their location to other officers, then stayed with the abandoned van. Other officers, including a K-9 unit, surrounded the wooded area. An officer in a police helicopter using a thermal imaging device located appellant and the other two men. Mondy testified appellant and the other two men stole a van from a day care center, used it to crash into the side of a plasma center, and removed an ATM machine. A surveillance video that recorded the crash and removal of the ATM machine was played for the trial court. Mondy testified the three men shown on the video were the same men he saw jump from the van and run to the wooded area, and appellant was the individual on the video wearing a jersey.
        Officer Jeff Beezley testified he found appellant and two other men lying flat on the ground in the wooded area. There was a “waded up” basketball jersey with the number fifteen on it on the ground next to appellant. There was no one else in the wooded area except for other officers. Beezley testified the surveillance video from the plasma center showed one of the suspects wearing a jersey with the number fifteen on it.
        The trial court found all of the allegations true, granted the motions, adjudicated appellant guilty, and assessed punishment at confinement in a state jail facility for one year for the UUMV and thirty-five years' imprisonment for the aggravated sexual assault of a child.
Applicable Law
 
        Appellate review of a probation revocation is limited to determining whether the trial court abused its discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). We examine the evidence in the light most favorable to the trial court's findings. See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984). An order revoking probation must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence which would create a reasonable belief that a defendant has violated a condition of his probation. See Rickels, 202 S.W.3d at 763-64. In a revocation proceeding, the trial judge is the sole trier of the facts, and determines the credibility of the witnesses and the weight to be given to the testimony. See Lee v. State, 952 S.W.2d 894, 897 (Tex. App.-Dallas 1997, no pet.).
Discussion
 
        Appellant argues the evidence is insufficient to show he committed the new offenses. Appellant also argues the technical violations should not have resulted in the adjudication of his guilt.
        A surveillance video showed a person wearing a jersey with the number fifteen crashing into the side of the plasma center and removing the ATM machine. Mondy testified appellant jumped out of the van and ran into a wooded area. Appellant was wearing a jersey and baggy shorts. Appellant tried to hide from officers, who were attempting to arrest him. Beezley testified that when he apprehended appellant, he saw a jersey with the number fifteen laying on the ground near appellant. Further, appellant's probation supervisor testified appellant failed to report and failed to complete sex offender treatment.
        As the fact-finder in this case, the trial judge was free to believe or disbelieve all or any part of any witness's testimony. See McCray v. State, 861 S.W.2d 405, 407 (Tex. App.-Dallas 1993, no pet.). Having reviewed the evidence under the proper standard, we conclude it is sufficient to prove appellant violated a condition of his community supervision. Therefore, the trial court did not abuse its discretion in revoking community supervision in each case. See Rickels, 202 S.W.3d at 763-64. We overrule appellant's six points of error.
        We affirm the trial court's judgment in each case.
 
 
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
080047F.U05