                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-11-00426-CR


JASON KENT DAVIS                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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      Appellant Jason Kent Davis appeals the trial court’s judgment adjudicating

him guilty of indecency with a child, revoking his community supervision, and

assessing a sentence of twelve years’ confinement. We affirm.

                               I. BACKGROUND

      On December 30, 2009, Appellant pleaded guilty to indecency with a child

under a plea-bargain agreement. The trial court deferred adjudication of guilt for
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       See Tex. R. App. P. 47.4.
the offense and placed Appellant on community supervision for seven years.

The relevant terms of Appellant’s community supervision required him to (1)

abstain from the consumption of alcohol, (2) complete a sex-offender treatment

program, (3) have no unsupervised contact with any individual under the age of

seventeen, and (4) abstain from viewing any sexually explicit material. On July

19, 2010, the trial court entered a supplement to Appellant’s community

supervision and ordered him confined in the Tarrant County Jail for thirty days.

        On July 6, 2011, the State filed a motion to revoke Appellant’s community

supervision and adjudicate his guilt. In the motion, the State raised six grounds

for the revocation: (1) consuming alcohol, (2) failing to complete one-third of his

treatment program within one year, (3) failing to attend sex-offender counseling

on multiple occasions, (4) being unsuccessfully discharged from sex-offender

counseling, (5) having unsupervised contact with minor children, and (6) viewing

pornographic material. 2 Appellant pleaded not true to the allegations.

        The trial court conducted a hearing on the State’s motion to adjudicate.

Appellant’s community supervision officer, Judith Choate, testified that Appellant

admitted to her that he drank alcohol on July 19 and September 4, 2010.

Appellant also told his therapist, Sean Braun, that he drank alcohol on July 19,

2010.




        2
        The State waived a seventh ground—failing to pay his supervision fees.


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      Further, Appellant missed eight group-therapy sessions even though

Choate had explained to Appellant that he could not miss such sessions unless

he was “sick in the hospital, . . . in jail, or . . . dead.” Appellant had explanations

for many of the absences: he was at the dentist, he had to bury his horse using

a tractor, and Braun told him not to go after he failed a polygraph exam.

Appellant also failed to complete one-third of the requirements of his treatment

program within a year. Specifically, he only completed six of the ten goals he

was required to complete by December 2010.

      Appellant admitted to Choate that he had unsupervised contact with his

fifteen-year-old son, but immediately left once he realized there was no

supervision. He also admitted to Braun and Choate that he had unsupervised

contact with his thirteen-year-old daughter. These contacts were the cause of

the trial court’s July 19, 2010 supplemental-confinement order.

      Finally, Appellant admitted to Choate that he viewed four pornographic

videos, but claimed he did so inadvertently. He told Choate that he saw them

only briefly because they were unlabeled and he was trying to determine what

the videos were during a move.

      After the trial court concluded that Appellant had violated the terms and

conditions of his community supervision, adjudicated him guilty, and sentenced

him, Appellant filed a motion for new trial, arguing that the evidence was

insufficient “to support convictions.” The motion was overruled by operation of

law. See Tex. R. App. P. 21.8(c). Appellant now contends on appeal that the


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trial court abused its discretion by finding him guilty, revoking his community

supervision, and denying his motion for new trial because the evidence was

insufficient to show he violated the terms and conditions of community

supervision.

                           II. STANDARDS OF REVIEW

      A trial court’s determination on a motion to adjudicate is reviewable in the

same manner as the determination on a motion to revoke community

supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp.

2012). We review an order revoking community supervision and adjudicating

guilt under an abuse of discretion standard. See Rickels v. State, 202 S.W.3d

759, 763–64 (Tex. Crim. App. 2006). To justify revocation, the State must prove

by a preponderance of the evidence that the defendant violated the terms and

conditions of community supervision. See Hacker v. State, 389 S.W.3d 860,

864–65 (Tex. Crim. App. 2013). The trial court is the sole judge of the credibility

of the witnesses and the weight to be given their testimony; thus, we review the

evidence in the light most favorable to the trial court’s ruling. See id. at 865.

      If the State fails to produce a preponderance of the evidence to support

adjudication and revocation, the trial court abuses its discretion. See Cardona v.

State, 665 S.W.2d 492, 493–94 (Tex. Crim. App. 1984). However, proof by a

preponderance of any one alleged violation is sufficient to affirm an order

revoking community supervision and adjudicating guilt. See Bryant v. State, 391




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S.W.3d 86, 93 (Tex. Crim. App. 2012); Clay v. State, 361 S.W.3d 762, 765 (Tex.

App.—Fort Worth 2012, no pet.).

      Similarly, we review a trial court’s denial of a motion for new trial under an

abuse of discretion standard and view the evidence in the light most favorable to

the trial court’s ruling. See Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim.

App. 2010); Quinn v. State, 958 S.W.2d 395, 402 (Tex. Crim. App. 1997). A trial

court abuses its discretion in denying a motion for new trial only when no

reasonable view of the record could support the trial court’s ruling. See Holden

v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).

                                III. DISCUSSION

      Appellant does not contest the veracity of the allegations that he missed

group-therapy sessions, failed to complete one-third of his treatment program,

and watched the videos; but he asserts that his excuses for the violations should

render the denial of a new trial and the revocation and adjudication an abuse of

discretion. Appellant’s stated reasons for these violations were subject to the

trial court’s ability to make credibility determinations, which it obviously made

against Appellant’s position. We may not tread on the trial court’s discretion in

the manner Appellant invites. The evidence of these violations is sufficient to

support the trial court’s order. Thus, we conclude that the preponderance of the

evidence shows that Appellant violated at least one condition or term of his

community supervision and that the trial court did not abuse its discretion by

revoking Appellant’s community supervision and adjudicating his guilt or by


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denying his motion for new trial. See, e.g., Marcum v. State, 983 S.W.2d 762,

767 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (holding probation officer’s

testimony that appellant did not meet reporting requirement sufficient to revoke);

Lozano v. State, No. 03-07-00597-CR, 2008 WL 3540080, at *2 (Tex. App.—

Austin Aug. 14, 2008, no pet.) (mem. op., not designated for publication)

(recognizing trial court may disbelieve or not accept appellant’s excuses for

failing to comply with community-supervision conditions).

                               IV. CONCLUSION

      Having overruled Appellant’s sole issue, we affirm the trial court’s

judgment. See Tex. R. App. P. 43.2(a).



                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 16, 2013




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