
Opinion issued December 15, 2005









     





In The
Court of Appeals
For The
First District of Texas





NO. 01-04-01094-CR
NO. 01-04-01095-CR




TAREEQ MUHAMMAD AKBAR, Appellant

V.

THE STATE OF TEXAS, Appellee




On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause Nos. 02CR0137 & 01CR1406






O P I N I O N

          The trial court granted motions to revoke the community supervision of
appellant, Tareeq Muhammad Akbar, in two cases: one in which he was convicted of 
possession with intent to deliver four grams or more, but less than 200 grams, of
cocaine (“cocaine case”) and another in which he was convicted of  possession of a
firearm by a felon (“firearm case”).  See Tex. Health & Safety Code Ann. §
481.112 (Vernon 2003); Tex. Pen. Code Ann. § 46.04(a)(1) (Vernon Supp. 2005). 
The trial court assessed punishment at eight years in prison in each case, to be served
concurrently.  We determine whether the trial court erred by (1) considering evidence
admitted in a separate trial thereby denying appellant the right to confront and to
cross-examine his accusers and (2) finding that the evidence was legally sufficient to
prove that appellant committed murder and possession of a firearm by a felon, as
alleged in the motions to revoke community supervision. We affirm.
Background
          Appellant pleaded guilty to a first-degree-felony offense of possession with
intent to deliver four grams or more, but less than 200 grams, of cocaine and,
pursuant to an agreement with the State as to punishment, the trial court assessed
appellant’s punishment at eight years community supervision.  The following year,
appellant was indicted for possession of a firearm by a felon, to which charge
appellant pleaded guilty, and the trial court assessed punishment at eight years in
prison and placed appellant in the State Boot Camp Program.  Appellant’s original
community supervision in the cocaine case was revoked on April 26, 2002.  On July
9, 2002, appellant was released from the State Boot Camp Program, his sentence was
suspended, and he was placed back on community supervision for eight years in both
cases.
          On July 1, 2003, appellant was charged with the murder of Billy Holt.  A jury
trial was held on August 3, 2004.  Eyewitnesses Bryce Hynson and Sedrick Ballard
testified that, on July 1, 2003, Holt, Hynson, and Ballard sat in Hynson’s car, waiting
for Royce Tezno.  Appellant, wearing a black-leather jacket, ski mask, and bandana,
approached the vehicle from behind, opened the passenger door, said some words,
and shot Holt.  Holt got out of the car, scuffled with appellant, and fell into a ditch.
Hynson and Tezno carried Holt into Tezno’s house.   When paramedics and police
arrived, they discovered that Holt had been shot in the right side of his chest, was in
pain, and was bleeding, but was still alive.
          Officer Sedgwick of the Texas City Police Department asked Holt if he knew
who had shot him; Holt responded, “Tareeq Akbar.”  Hynson, Ballard, and Tezno
heard Holt name “Tareeq” and “Cool Breeze” as the shooter.  Appellant was the only
person in La Marque who used the nickname “Cool Breeze.”  Neither Hynson nor
Ballard identified appellant as Holt’s shooter in the statements that they made to the
police on the morning of the shooting.  However, Hynson testified that he recognized
the shooter’s voice, which was distinct and had a Jamaican-like accent, to be that of
appellant.  Ballard testified that he saw the shooter’s face and identified appellant as
the shooter.  Tezno, who had seen the scuffle between appellant and Holt, also
identified appellant as the shooter.  Donald Benefield, who lived at the residence
where appellant was picked up for questioning, gave Officer Ronald Hall a gun
wrapped in a white towel and told Officer Hall that appellant had given him the gun. 
The gun was later identified by a forensic firearms examiner, Calvin Story Jr., as the
murder weapon used to kill Holt.  A jury acquitted appellant of the murder charge.
          The State then filed motions to revoke community supervision in appellant’s
cocaine and firearm cases.  Appellant pleaded not true to the allegations in the State’s
motions to revoke community supervision.  On September 2, 2004, the trial court held
a revocation hearing in appellant’s cocaine case.  The trial court granted the State’s
motion to take judicial notice of the testimony and documents in appellant’s murder
trial.  On September 16, 2004, the trial court held a revocation hearing in appellant’s
firearm case. The trial court granted the State’s motion to take judicial notice of the
testimony and documents in appellant’s murder trial and of the evidence from the
September 2, 2004 revocation hearing.  
          In both of the revocation hearings, the State alleged that appellant had violated
the terms and conditions of his community supervision
 by committing the following
acts, which we number as did the State in its  revocation motions: (1A) committing
the offense of unlawful possession of a firearm by a felon; (1B) committing the
offense of murder; (12) failing to pay supervision fees as ordered and being $289 in
arrears on them; (13) failing to pay court costs and being $130 in arrears on them;
(15) failing to pay restitution as ordered and being $71 in arrears in it; (16) failing to
reimburse Galveston County for compensation of appointed counsel as ordered and
being $110 in arrears in that regard; (16A) failing to pay the Crime Stoppers
Program’s payment as ordered and being $25 in arrears on that payment; (19)
submitting to a drug test and testing positive for marijuana; and (28) failing to attend 
 
 
and to successfully complete a drug education program pursuant to Transportation
Code section 521.374.

          On September 16, 2004, the trial court revoked appellant’s community
supervision in both cases, finding allegation 19 to be  not true and allegations 1A, 1B,
12, 13, 15, 16, 16A, and 28 to be true.Standard of Review and the Law
           We review a trial court’s order revoking community supervision for abuse of
discretion.  Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).  A
revocation hearing is not a criminal trial; it is an administrative hearing.  Bradley v.
State, 608 S.W.2d 652, 656 (Tex. Crim. App. 1980) (citations omitted).  As a result,
no jury is required, and the standard of proof needed to show the truth of an allegation
is less than that in a criminal trial.  Scamardo v. State, 517 S.W.2d 293, 297 (Tex.
Crim. App. 1974); Bradley, 608 S.W.2d at 656. 
          The State must prove by a preponderance of the evidence that the person on
community supervision violated the terms and conditions of his community
supervision.  Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983); Smith
v. State, 790 S.W.2d 366, 367 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d).  This
standard is met when the greater weight of the credible evidence creates a reasonable
belief that the defendant violated a condition of his community supervision, as the
State alleged.  Jenkins, 740 S.W.2d at 437 (citing Martin v. State, 623 S.W.2d 391,
393 n.5 (Tex. Crim. App. 1981)).   We must examine the evidence in the light most
favorable to the trial court’s order.  Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim.
App.1981) (citing Fernandez v. State, 564 S.W.2d 771 (Tex. Crim. App. 1978)); 
Galvan v. State, 846 S.W.2d 161, 162 (Tex. App.—Houston [1st Dist.] 1993, no pet.);
 Jones v. State, 787 S.W.2d 96, 97 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d). 
When the State has failed to meet its burden of proof, the trial court abuses its
discretion by revoking community supervision.  Cardona, 665 S.W.2d at 493-94.  To
support the court’s order to revoke community supervision, the State need only
establish one sufficient ground for revocation.   Moore v. State, 605 S.W.2d 924, 926
(Tex. Crim. App. 1980). 
          When the same trial court presides over both the revocation hearing and the
trial of the offense that is the basis for revocation, the trial court can take judicial
notice of the evidence introduced in that prior proceeding.  Barrientez v. State, 500
S.W.2d 474, 475 (Tex. Crim. App. 1973); see Vaughn v. State, 608 S.W.2d 237, 238
(Tex. 1980).  In a revocation hearing, the trial court is the sole trier of the facts. 
Jones, 787 S.W.2d at 97.  The trial court weighs the credibility of the witnesses from
that prior proceeding and determines whether the allegations in the motion to revoke
are true or not.  Garrett, 619 S.W.2d at 174.  Although a jury may not have found
defendant guilty beyond a reasonable doubt in the prior trial, it is not constitutional
error for the trial court to revoke community supervision based upon the same
evidence presented in the prior trial because the standard of proof at a revocation
hearing is proof by a preponderance, rather than proof beyond a reasonable doubt. 
Bradley, 608 S.W.2d at 656; see Haile v. State, 556 S.W.2d 818, 820 (Tex. 1977).
The application of the Barrientez rule is not a denial of the right to confront and to
cross-examine witnesses.  Barrientez, 500 S.W.2d at 475; see Bradley, 608 S.W.2d
at 656; Stephenson v. State, 500 S.W.2d 855, 857 (Tex. Crim. App. 1973). 
Revocation of Community Supervision
          In 10 points of error, appellant argues that the trial court abused its discretion
by granting the motion to revoke community supervision in his cocaine case.  In 15
points of error, appellant argues that the trial court abused its discretion by granting
the motion to revoke community supervision in his firearm case.
A.      Due Process
          In his first and second points of error in both cases, appellant contends that the
trial court denied him due process of law in the revocation hearing by not allowing
him to confront and to cross-examine his accusers regarding State’s allegation 1A
(felon in possession of a firearm) and 1B ( murder) because the trial court took
judicial notice of the testimony and evidence in appellant’s murder trial.
          Appellant contends that “[t]he trial court did not notify Appellant that [it] was
deciding the revocation during a jury trial denying Appellant an opportunity to defend
himself.”  Although he had a opportunity to cross-examine witnesses in the murder
trial, appellant argues that he presented a defense customized for the jury in that case,
without having had the opportunity to consider the trial court as a fact finder. 
However, it is not an abuse of discretion by the trial court in a revocation proceeding
to admit, to hear, and to reconsider testimony that the court has heard during a 
murder trial.  See Bradley, 608 S.W.2d at 656; Haile, 556 S.W.2d at 820; Stephenson,
500 S.W.2d at 857.  Moreover, the court’s doing so does not violate a defendant’s
constitutional right to confront and to cross-examine witnesses or due process of law. 
See Barrientez, 500 S.W.2d at 475; see also Haile, 556 S.W.2d at 820. 
          In the present case, the same trial court that presided at the murder trial heard
the motions to revoke community supervision.  It was within the province of the trial
court to take judicial notice of the evidence from these prior proceedings and
appellant’s constitutional right’s were not violated thereby.  See Barrientiz, 500
S.W.2d at 475; see also Haile, 556 S.W.2d at 820.  Therefore, we hold that appellant
was not denied due process of law or his right to confront and to cross-examine
witnesses by the trial court’s taking such judicial notice.
          We overrule appellant’s first and second points of error in appellant’s cocaine
and his firearm cases.
B.      Legal Sufficiency
          In the remaining eight points of error in his cocaine case and the remaining 13
points of error in his firearm case, appellant asserts that the evidence was legally
insufficient to establish that (1) he was the person who committed the offenses of
unlawful possession of a firearm by a felon or murder; (2) he failed to make certain
payments required by the conditions of his community supervision; and (3) he failed
to attend and to complete a drug-education program successfully, as required by the
conditions of his community supervision. 
          Appellant contends that the evidence was legally insufficient to sustain the
court’s finding of “true” that he was the person who committed the offenses of
unlawful possession of a firearm by a felon and murder.  Appellant thus attacks the
sufficiency of the evidence proving his identity.  
          To prove murder, the State had to show that appellant intentionally or
knowingly caused the death of an individual.  See Tex. Pen. Code Ann. § 19.02(b)(1)
(Vernon 2003).  To establish that appellant unlawfully possessed a firearm, the State
had to prove that appellant was a convicted felon who possessed a firearm before the
fifth anniversary of his release from community supervision. See Tex. Pen. Code
Ann. § 46.04(a)(1). 
          Viewed in the light most favorable to the trial court’s decision, the evidence
shows that appellant was the person who murdered Holt and possessed the firearm. 
Hynson testified that appellant leaned in the door,  pointed a gun through the window,
waved the gun around in the car, and shot Holt.  Hynson testified that he had known
appellant for eight years and that, when the shooter spoke, Hynson recognized the
voice as appellant’s.  Ballard also identified appellant as the person who shot Holt. 
Tezno testified that, after the shooting, he had seen Holt and appellant scuffling in the
street.  Hynson, Ballard, Tezno, and Officer Sedgwick heard Holt identify appellant
as the person who shot him.  Benefield gave Officer Hall a gun wrapped in a white
towel and told Officer Hall that appellant had given him the gun. The gun was later
identified by Story as the murder weapon used to kill Holt.   Although the jury
apparently did not believe that the evidence was sufficient to find appellant guilty
beyond a reasonable doubt, the trial court could have found that the State proved by
a preponderance of the evidence that appellant committed murder with a firearm, thus
violating the terms and conditions of his community supervision.  See Bradley, 608
S.W.2d at 656.  Therefore, we hold that the evidence is legally sufficient for a trial
court to have concluded by a preponderance of the evidence that appellant was the
murderer and the possessor of the firearm.  See Vaughn, 608 S.W.2d at 238;Bradley,
608 S.W.2d at 656; Haile, 556 S.W.2d at 820.
          We overrule appellant’s third and fourth points of error in his cocaine and
firearm cases.
          Appellant also contends that the evidence was legally insufficient to support
a finding of “true” that he failed to pay a community-supervision fee (allegation 12),
court costs (allegation 13), restitution (allegation 15), reimbursement for his
appointed attorney (allegation 16), or Crime Stoppers’s program payment (allegation
16A) and that he failed to complete a drug-education program because the State
offered no evidence to support the allegations.  As noted above, the State need only
establish one sufficient ground for revocation in order to support the court’s order to
revoke community supervision.  See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim.
App. 1980).  
          Thus, appellant’s fifth through tenth points of error of his cocaine case and his
fifth through fifteen points of error of his firearm case need not be addressed to affirm
the trial court’s rulings.
 
 
Conclusion
          We affirm the judgments of the trial court.
 
 
                                                   Tim Taft
                                                   Justice

Panel consists of Justices Taft, Keyes, and Hanks.
Publish. See Tex. R. App. P. 47.2(b).
