Wendell Douglas Hudspeth v. The State of Texas--Appeal from County Court at Law No 2 of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-94-342-CR

WENDELL DOUGLAS HUDSPETH,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law No. 2

McLennan County, Texas

Trial Court # 930844 CR

O P I N I O N

Wendell Douglas Hudspeth appeals the revocation of his probation by the County Court at Law No. 2 of McLennan County. We affirm.

On June 7, 1993, Wendell Douglas Hudspeth pled guilty to the misdemeanor offense of driving while intoxicated and was sentenced to a probated 24-month jail term and a $400.00 fine. Tex. Penal Code Ann. 49.04 (Vernon 1994 & Supp. 1996). On November 29, 1994, the trial court found that Hudspeth had violated the terms of his probation by failing to obtain permission to change his residence, failing to report monthly to a probation officer, and failing to pay his monthly probation fee and fine. Hudspeth raises three points on appeal: (1) the evidence is insufficient to support the trial court's finding that he failed to obtain permission from his probation officer before changing his residence; (2) the evidence is insufficient to support the trial court's finding that he failed to report monthly to his probation officer; and (3) the trial court erred in finding that he had failed to timely pay his probation fees when he had made up any delinquency by the time of the revocation hearing. We will address only the third point and affirm.

In a parole revocation hearing the State bears the burden of proving by a preponderance of the evidence that the defendant violated the terms of his probation. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The trial court, alone, weighs the evidence, decides whether a term of probation has been violated, and, if so, determines whether to revoke, continue, or modify the probated sentence. See Forrest v. State, 805 S.W.2d 462, 464 n.2 (Tex. Crim. App. 1991). The trial court's decisions will not be disturbed absent an abuse of discretion. Id.

As a condition of Hudspeth's probation, he was required to pay $25.00 per month in satisfaction of his $400.00 fine and a $30.00 per month probation fee. The State, in its Motion to Revoke Probation filed on April 8, 1994, alleged that Hudspeth was $175.00 behind on his fine installments and $60.00 behind on his probation fee payments. Hudspeth asserts, and the State does not dispute, that by the time of the revocation hearing held on October 29, 1994, he had made up any and all delinquencies. He argues on appeal that by settling his account prior to the hearing the trial court could not use his prior missed payments as a basis upon which to revoke his probation. We disagree.

There was no provision in the trial court's order allowing Hudspeth to miss one or more payments and later make up any resulting delinquency in a subsequent balloon payment. By failing to timely make the required payments, Hudspeth violated the terms of his probation, and the trial court, therefore, acted within its discretion in deciding to revoke. We overrule Hudspeth's third point of error.

One sufficient ground will support a revocation of probation. Jones v. State, 571 S.W.2d 191, 193 (Tex. Crim. App. [Panel Op.] 1978); Hendley v. State, 783 S.W.2d 750, 752 (Tex. App. Houston [1st Dist.] 1990, no pet.). Therefore, we will not consider Hudspeth's remaining points. The judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed March 20, 1996

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