Christopher Colt Nalley v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-89-237-CR

No. 10-89-238-CR

CHRISTOPHER COLT NALLEY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 16,374 & 16,375

O P I N I O N

Appellant was convicted of two counts of indecency with a child and placed on probation for ten years. Thereafter, the State filed a motion in each case to revoke his probation, alleging that he had exposed himself to a group of children. The court revoked his probation and sentenced him to ten years in prison. The complaint on appeal is that the court abused its discretion in revoking his probation.

Once granted, probation should not be arbitrarily withdrawn by the court; the court is not authorized to revoke probation absent a showing that the probationer has violated a condition imposed by the court. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987). In a revocation proceeding, the state must prove the allegations of the motion by a preponderance of the evidence. Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1987). The burden is met when the greater weight of the credible evidence creates a reasonable belief that a condition of probation has been violated as alleged. Id. Even when the court finds the allegations of the motion to revoke the probation to be true, it has wide discretion to modify, continue, or revoke the probation. Ex parte Tarver, 725 S.W.2d 195, 200 (Tex. Crim. App. 1986). We review an order revoking probation by determining whether the court abused its discretion. See Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).

The child testified that she knew to tell the truth, that she and some friends were going to the basketball court at the apartments where she lived, that she saw a "guy" with no clothes on in his apartment, that he said "hey, girls" and "dick," that she could see his private parts because he was naked, that he touched his private parts, and that Appellant was the "guy."

Appellant concedes that he did not object to the competency of the eight-year old as a witness. See Tex. R. Crim. Evid. 601(a)(2). When the child testified, the duty rested on the court as the sole trier of the facts to assess the credibility of her testimony and to determine the weight to give it. Tarver, 725 S.W.2d at 198; Diaz v. State, 516 S.W.2d 154, 156 (Tex. Crim. App. 1974).

Thus, based on the testimony of the child, the court could have determined that the greater weight of the credible evidence created a reasonable belief that Appellant exposed his genitals to the children with intent to gratify a sexual desire and that he was reckless about whether another was present who would be offended or alarmed by his acts. See Jenkins, 740 S.W.2d at 437; Tarver, 725 S.W.2d at 198; Tex. Penal Code Ann. 21.08 (Vernon 1989). In so finding, the court could conclude that Appellant had violated a condition of his probation by committing an offense against the laws of the state. See Jenkins, 740 S.W.2d at 437; Tex. Penal Code Ann. 21.08 (Vernon 1989). Because Appellant violated a condition of his probation, we cannot say that the court abused its discretion in revoking Appellant's probation. See Tarver, 725 S.W.2d at 200; Cardona, 665 S.W.2d at 493.

We affirm the judgment in each case.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed December 4, 1991

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