
                              NO. 07-11-0352-CR

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL B

                              NOVEMBER 1, 2012




                          MICHAEL ARNOLD HERNANDEZ,


                                   Appellant
                                     v.


                             THE STATE OF TEXAS,


                                    Appellee
                        _____________________________

              FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

              NO. 22,016-B; HONORABLE JOHN B. BOARD, PRESIDING



                             Memorandum Opinion



Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
      Michael Arnold Hernandez appeals  from  a  judgment  adjudicating  his
guilt.  He had been placed on deferred adjudication for five years.   During
that term, the State moved to  adjudicate  his  guilt,  contending  that  he
breached the condition of probation obligating him  "to  commit  no  offense
against the laws of this State or of the United States."  In particular,  it
accused appellant of  "intentionally,  knowingly  and  recklessly  caus[ing]
bodily injury to . . . Alonzo Castillo . . . by striking him about the  head
with his hands."   The motion came for hearing, after which the trial  court
granted it, adjudicated appellant guilty of the original aggravated  assault
charge,  and  levied  a  sentence  encompassing  a  fine  and  imprisonment.
Appellant now asserts that the evidence  was  insufficient  to  support  the
finding that he violated the condition in question.  We affirm.
       Castillo  testified  that  he  and  appellant  began   "arguing   and
fighting."  During the incident, appellant bit Castillo on the  neck.   Also
of record is evidence that  appellant  "charged"  Castillo  twice  and  that
Castillo suffered bruising and abrasions around his face and head.   Another
witness (Galicia) testified that he was present at the altercation  and  was
trying to "separate them."  While doing so, he suffered a bump on his head.
      Castillo  and  Galicia  were  intoxicated  when  appellant  confronted
Castillo.  Furthermore,  Castillo  and  appellant  had  a  "very  close  and
personal"  relationship  and  were  considered  "partners,"   according   to
Galicia.  Indeed, Castillo attempted to dissuade appellant from engaging  in
the fight because it  could  affect  his  probation.   And  though  Castillo
claimed that the injuries appearing on his face  and  head  were  "probably"
caused by his falling as opposed  to  suffering  blows  from  appellant,  he
admitted that "there's not a whole lot [he] wouldn't do for"  appellant  and
that he "cared about . . . [appellant] so much and . . . want[ed]  the  best
for him."  The record also discloses that Castillo was  the  victim  of  the
original aggravated assault for which appellant was ultimately convicted.
      The State is required to  prove  the  allegations  in  the  motion  to
revoke by a preponderance of the evidence.  Cobb v. State, 851  S.W.2d  871,
873 (Tex. Crim. App. 1993).  In other words, the greater weight of  credible
evidence must create a reasonable  belief  that  the  defendant  violated  a
condition of his probation.  Rickels v. State, 202  S.W.3d  759,  763  (Tex.
Crim. App. 2006).  Furthermore, the trial court  is  the  sole  judge  of  a
witness' credibility and the weight to be assigned the testimony  proffered.
 Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim.  App.  1981);  Taylor  v.
State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980).  And, we  must  view  the
evidence in a light most favorable to the trial court's  decision.   Cardona
v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.  1984).   Finally,  when  the
State seeks to revoke probation because the  defendant  allegedly  committed
another offense, it need not describe the offense  within  its  motion  with
the same specificity applicable to averring an  offense  in  an  indictment;
the allegation is sufficient if it  alleges  a  violation  of  the  law  and
affords the defendant fair notice of the alleged violation.  See Bradley  v.
State, 608 S.W.2d 652, 655 (Tex. Crim. App. 1980).
      The foregoing description of evidence is enough to enable  a  rational
factfinder to reasonably believe that  appellant  committed  another  crime,
namely another assault upon Castillo through either  the  use  of  hands  or
teeth.  See id. at 655  (upholding  revocation  despite  the  evidence  that
appellant killed his victim via stabbing as opposed to  the  manner  alleged
in the State's motion to revoke, i.e. striking with a hammer).   The  latter
and appellant were in sufficiently close quarters for Castillo to be  bitten
and suffer blows to the head.  Furthermore, the fight was of such  intensity
that a third party intervened to stop it and  came  away  injured  as  well.
The trial court was not obligated to accept the rather over-utilized  excuse
that the bruises suffered around the victim's face and head were  caused  by
a fall.  Instead, it could have  concluded  that  Castillo's  affection  for
appellant  and  willingness  to  do  most  anything  for  him  colored   the
"partner's" testimony, as did Castillo's interest in  not  seeing  appellant
lose his probationary status.
      Accordingly, we affirm the judgment.

                                        Per  Curiam

Do not publish.



