ELISO XAVIER NASH, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued October 1, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-10-00287-CR
No. 05-10-00288-CR
No. 05-10-00289-CR
No. 05-10-00290-CR
 
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ELISO XAVIER NASH, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F07-19656-NWQ, F08-54911-TQ, F08-54912-TQ, F08-54913-TQ
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OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Bridges
        Eliso Xavier Nash appeals following the adjudication of his guilt for aggravated assault with a deadly weapon, possession with intent to deliver cocaine, possession with intent to deliver alprazolam, and possession of marijuana. In a single point of error, appellant contends the State failed to prove the alleged violations occurred at the location stated in the motions to adjudicate. We affirm the trial court's judgments.
Background
 
        Appellant waived a jury and pleaded guilty to four offenses: aggravated assault with a deadly weapon, a firearm (cause no. 05-10-00287-CR); possession of a usable quantity of marijuana in an amount of five pounds or less, but more than four ounces (cause no. 05-10-00288-CR); possession with the intent to deliver cocaine in an amount of one gram or more, but less than four grams (cause no. 05-10-00289-CR); and possession with the intent to deliver alprazolam in an amount less than twenty-eight ounces (cause no. 05-10-00290-CR). See Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (West Supp. 2009); Tex. Health & Safety Code Ann. §§ 481.112(a), (c), 481.114(a), (b), 481.121(a), (b)(3) (West Supp. 2009). Pursuant to plea agreements, the trial court deferred adjudicating guilt in each case and placed appellant on five years' community supervision. The trial court also assessed a $2000 fine in the cocaine case. The State later moved to adjudicate guilt, alleging appellant violated ten conditions of his community supervision. Appellant pleaded not true to the allegations in a hearing on the motions. The trial court found seven of the allegations true and three allegations not true. After hearing testimony from appellant's mother and aunt, the trial court adjudicated appellant guilty in each case and assessed punishment at twenty years' imprisonment for the aggravated assault conviction, five years' imprisonment for the possession with intent to deliver cocaine conviction, and two years' confinement in a state jail facility for the possession of marijuana and possession with intent to deliver alprazolam convictions.
Insufficient Evidence
 
        Appellant contends the State failed to prove the alleged probation violations occurred at the location specified in the motions to adjudicate. Appellant asserts the amended motions to adjudicate recite a specific street address where he allegedly possessed a firearm and possessed and sold drugs, but there was no testimony presented about that address. The State responds that the evidence sufficiently proved that appellant violated his community supervision at the location alleged in the motions to adjudicate.         Appellate review of an order revoking community supervision 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). An order revoking community supervision must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of probation. Id. at 763-64. A finding of a single violation of community supervision is sufficient to support revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980). Thus, in order to prevail, appellant must successfully challenge all the findings that support the revocation order. See Jones v. State, 571 S.W.2d 191, 193- 94 (Tex. Crim. App. [Panel Op.] 1978).
        In its motions to adjudicate, the State alleged ten violations, including intentionally possessing a firearm “at Mandalay Apartments located at 7550 Cliff Creek Crossing Apartment No. 1914;” possessing and selling marijuana “at Mandalay Apartments located at 7550 Cliff Creek Crossing Apartment No. 1914;” failing to adhere to his curfew hours by being “at the Mandalay Apartments located at 7550 Cliff Creek Crossing Apartment No. 1914 past 7:00 p.m.;” failing to pay costs and fees; and failing to participate in the Safe Neighborhood Training and GED programs. The trial court heard testimony from Teresa Zarate, appellant's probation officer, who stated appellant was first placed on probation in October 2008, and she first met with him in November 2008. She met with appellant on five occasions between November and December 2008. Appellant did not report in January 2009. Zarate told the trial court that appellant did not complete the Safe Neighborhood class, which was a one-time class lasting two-and-a-half hours, or complete his GED classes. Appellant was delinquent on all of the fees and costs. Zarate testified she knew appellant was not working, but she believed he was “sitting around at home, not really making an effort to find work.”
        Victor Vargas testified that on January 6, 2009, he went to the Mandalay Palms Apartments to purchase marijuana. When he knocked on the door to apartment 1914, appellant opened the door and let him inside. Once inside, Vargas saw appellant lock the front door, and noticed he held a “chrome revolver” in his right hand. Appellant did not point the gun at Vargas. Vargas told appellant he wanted to buy “some weed.” Vargas saw marijuana and ecstasy spread out on the floor in organized rows. Vargas bent down and picked up a small bag of marijuana, then gave appellant a one-hundred-dollar bill. Appellant gave Vargas seventy-five dollars in change, then Vargas left. Vargas said two days later, a police detective questioned him and showed him a photographic lineup. Vargas selected appellant's photograph as the person who had sold him marijuana in apartment 1914.
        Detective Randy Loboda testified he investigated a criminal offense that had occurred at the Mandalay Apartments on January 6, 2009. Loboda testified a 911 call had come into the police station of shots being fired from apartment 1914, which is a “second-floor apartment located at 7550 Cliff Creek Crossing.” Apartment 1914 was a “trap house,” meaning it was used as a place to sell drugs rather than as a residence. There were no furnishings whatsoever inside the apartment except for a mattress and box springs, a television, and a PlayStation in a rear bedroom. There were no sheets on the mattress. During his investigation, Loboda developed appellant's name as a suspect. Police officers searched for appellant, but did not find him. On January 19, 2009, appellant turned himself in to the police, and was questioned by Loboda. A video CD of appellant's interview with Loboda was admitted into evidence and played to the court. During the interview, appellant stated he sold drugs to Vargas on January 6, 2009, he had a gun with him when he sold the drugs to Vargas, and the gun was loaded and in good working order.
        Here, the evidence presented shows the probation violations of possessing and selling marijuana and possessing a firearm occurred at the location specified in the motions to adjudicate. The trial court heard Vargas's testimony that he purchased marijuana from appellant “at the Mandalay Apartments No. 1914,” and Loboda said he went to the “Mandalay Apartments located at 7550 Cliff Creek Crossing Apartment No. 1914” to investigate a criminal offense in which appellant was the suspect.
        We conclude the trial court did not abuse its discretion in revoking appellant's community supervision and adjudicating his guilt in each case. See Rickels, 202 S.W.3d at 763. We overrule appellant's sole point of error.
Modify Judgment
 
        We note that in cause no. 05-10-00289-CR, the record shows the trial court did not orally pronounce a fine when it adjudicated appellant guilty and imposed the five-year sentence. The trial court's judgment, however, recites the fine as “$2000.” When a conflict exists between the oral pronouncement and the written judgment, the oral pronouncement controls. See Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). Accordingly, we modify the trial court's judgment to delete the $2000 fine. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
Conclusion
 
        In cause nos. 05-10-00287-CR, 05-10-00288-CR, and 05-10-00290-CR, we affirm the trial court's judgments adjudicating guilt.
        In cause no. 05-10-00289-CR, we affirm the trial court's judgment adjudicating guilt as modified.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
100287F.U05