Deana Renee Davison v. The State of Texas--Appeal from 123rd District Court of Panola County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00101-CR
______________________________
DEANA RENEE DAVISON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 123rd Judicial District Court
Panola County, Texas
Trial Court No. 1998-C-251
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

Deana Renee Davison appeals the revocation of her community supervision. Davison pled guilty, as part of a plea agreement, to possession of cocaine in an amount greater than or equal to four grams, but less than 200 grams. The trial court sentenced her to ten years' imprisonment and a $2,000.00 fine, but suspended the imposition of her prison sentence (not her fine) and placed her on ten years' community supervision.

One of the terms of Davison's community supervision was that she "enter and successfully complete, including any recommended after-care, the Kirkpatrick Family Center residential program . . . for no less than 6 months nor more than 12 months." The State later moved to have the trial court revoke Davison's community supervision, alleging she "failed to successfully complete the residential substance treatment program at the Kirkpatrick Family Center and was unsuccessfully discharged . . . after admitting to her counselor . . . that she consumed alcohol on the premises of the center." Davison pled true to the State's allegation. The trial court found the allegation true, revoked Davison's community supervision, and sentenced her to ten years' imprisonment.

On appeal, Davison contends the trial court abused its discretion in revoking her community supervision. She contends that the evidence does not show she "consumed" alcohol and that any evidence regarding her consumption of alcohol was inadmissible under Tex. R. Evid. 509(b) and was procured without providing her the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). (1)

The decision whether to continue or revoke community supervision is within the trial court's discretion. Wester v. State, 542 S.W.2d 403, 405 (Tex. Crim. App. 1976); Allen v. State, 946 S.W.2d 115, 116 (Tex. App.-Texarkana 1997, no pet.). We review the trial court's ruling for abuse of discretion. See Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983); Lopez v. State, 46 S.W.3d 476, 482 (Tex. App.-Fort Worth 2001, pet. ref'd).

The trial court cannot revoke community supervision without a showing the defendant violated a condition of his or her supervision. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987); Allen, 946 S.W.2d at 116. When there is sufficient evidence to support a finding the defendant violated a condition of his or her supervision, the trial court does not abuse its discretion by revoking community supervision. See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984); Stevens v. State, 900 S.W.2d 348, 351 (Tex. App.-Texarkana 1995, pet. ref'd). Proof of a single violation is sufficient to support revocation of community supervision. O'Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App. 1981); Myers v. State, 780 S.W.2d 441, 445 (Tex. App.-Texarkana 1989, pet. ref'd).

Davison contends the trial court abused its discretion in revoking her community supervision based on a purported lack of evidence of a violation, but her plea of true, standing alone, is sufficient to support the revocation order. See Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979); Jiminez v. State, 552 S.W.2d 469, 472 (Tex. Crim. App. 1977); Guajardo v. State, 24 S.W.3d 423, 427 (Tex. App.-Corpus Christi 2000, pet. granted). Nevertheless, the trial court did not abuse its discretion because the evidence shows Davison was terminated from the residential program for consuming alcohol and that she did consume alcohol.

Mona Brown, Davison's counselor, testified that Davison agreed to abide by the rules of the facility that she not "drink alcohol of any form"; that she was informed she would be discharged for "the use, introduction, or possession of any narcotic, narcotic paraphernalia, drugs or intoxicants"; and that she admitted consuming "just a little" alcohol from an "airport liquor bottle," which was brought into the facility by another resident. Though in her testimony Davison characterized her consumption as a "taste," we do not believe the amount of alcohol is material to the facility's decision to terminate her from the program.

As for Davison's contention that Brown's testimony was inadmissible under Rule 509(b) and because Davison was not given the Miranda warnings, she did not object to Brown's testimony at the revocation proceeding and has, therefore, waived the issue. See Tex. R. App. P. 33.1(a).

 

We affirm the judgment.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: December 23, 2002

Date Decided: January 30, 2003

 

Do Not Publish

1. Davison also contends the trial court abused its discretion in revoking her community supervision because the record shows she did not fail to "avoid injurious or vicious habits, including abstaining from the use of all intoxicating beverages," as required under the terms of her community supervision. The record is clear, however, that the State did not allege she violated this requirement and that the trial court did not revoke her community supervision for this reason.