Opinion issued February 20, 2014




                                   In The

                            Court of Appeals
                                   For The

                       First District of Texas
                          ————————————
                           NO. 01-13-00289-CR
                         ———————————
                   EMANUEL FONTENOT, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee


                On Appeal from the Criminal District Court
                        Jefferson County, Texas *
                     Trial Court Case No. 09-08011


                       MEMORANDUM OPINION

     Appellant Emanuel Fontenot pleaded guilty to forging a check. See TEX.

PENAL CODE ANN. § 32.21 (West 2011). Pursuant to an agreed recommendation,

*
     Pursuant to its docket equalization authority, the Supreme Court of Texas
     transferred the appeal to this Court. See Misc. Docket No. 13–9008 (Tex.
     Jan. 17, 2013); see also TEX. GOV’T CODE ANN. § 73.001 (West 2013)
     (authorizing transfer of cases).
the court deferred adjudication and placed Fontenot on community supervision for

five years. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5 (West 2006). The

State, in a subsequent motion to revoke community supervision, alleged that

Fontenot committed four violations of the conditions of his probation. After a

hearing, the trial judge found all four violations true, revoked community

supervision, and entered judgment sentencing Fontenot to two years in state jail.

      In three appellate issues, Fontenot argues that the State’s written motion to

revoke gave an impermissibly vague description of one of the violations, that the

evidence presented at the hearing was insufficient to prove the violations, and that,

in particular, the State failed to adduce evidence that his failure to make the court-

ordered payments was willful. Because we decide that Fontenot did not preserve

error in the trial court as to vagueness in the State’s motion to revoke and because

we find that the State established the threat to blow up the courthouse by sufficient

evidence, we affirm.

                                    Background

      Fontenot cashed a forged check for $498.10 at a grocery store. He was

indicted for forgery of a check and pleaded guilty pursuant to an agreement with

the State. The trial court deferred adjudication and placed him on community

supervision for five years.




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      On an October morning approximately two years after his guilty plea,

Fontenot called the Jefferson County courthouse seeking information about a

friend’s case. According to Fontenot, the friend’s bondsman had mistakenly

“dropped his bond” for failure to appear in court. Fontenot spoke several times that

morning with personnel of Jefferson County Court at Law No. 2, and he became

frustrated.

      After his latest call was disconnected, Fontenot called again and reached a

receptionist who was responsible for answering the phone and transferring calls at

the Jefferson County Courthouse. Fontenot asked “if there was anyone in County

Court at Law No. 2,” to which the receptionist replied that she had no way of

knowing and could only transfer his call. Fontenot then said, “They are going to

make me come up there and blow up the courthouse.” The receptionist reacted by

writing down the number that appeared on her phone and ending the call. She next

contacted the sheriff’s department to explain what had happened and reported

Fontenot’s words to a passing peace officer. The receptionist regarded Fontenot’s

words as a threat of violence; she felt concerned for the safety of herself and others

in the Jefferson County Courthouse.

      Fontenot later called back and told the receptionist, “[Y]ou know I’m not

going to come down there and do that.”




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      The State moved to revoke community supervision for violation of the

following conditions of community supervision:

         Condition (1): Commit no offense against the laws of this State or
           of any other State or of the United States

         Condition (14): Probationer will dress appropriately and conduct
           himself/herself in a courteous and professional manner at all
           times, especially when interacting with court officers and staff,
           probation officers and staff, law enforcement officers, and
           attorneys.

         Condition (22): Pay the amounts shown in the manner set out:
           FINE $-0; SUPERVISION FEES $66.00 mo.; COURT COSTS
           $-0; PSI FEE $350.00; ATTORNEY FEE $1,000.00; CRIME
           STOPPERS $50.00; RESTITUTION $498.10

The State alleged four violations in its written motion to revoke:

         1). The said EMMANUEL FONTENOT has failed to dress
            appropriately and conduct himself in a courteous an[d]
            professional manner at all times, especially when interacting
            with court officers and staff, probation officers and staff, law
            enforcement officers and attorneys, to wit: by making a
            terroristic threat to a court employee, as directed by the Court,
            in violation of Condition (14) of Defendant’s Deferred
            Adjudication order.

         2). The said EMMANUEL FONTENOT has failed to pay court
            assessed fees as directed by the Court and as of November 2,
            2012 was $2000.00 in arrears, in violation of Condition (22) of
            Defendant’s Deferred Adjudication order.

         3). The said EMMANUEL FONTENOT committed the offense
            of TERRORISTIC THREAT, in that on or about the 16th day of
            October, 2012, in the County of Jefferson, State of Texas, the
            said EMMANUEL FONTENOT did then and there unlawfully
            and with intent to influence the conduct or activities of
            JEFFERSON COUNTY, a political subdivision of the state of
            Texas, threaten to commit an offense involving violence to
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             persons and property, to-wit: to blow up the Jefferson County
             Courthouse, against the peace and dignity of the State, in
             violation of Condition (1) of Defendant’s Deferred
             Adjudication order.

          4). The said EMMANUEL FONTENOT has failed to pay court
             assessed fees as directed by the Court and as of January 2, 2013
             was $2,180.00 in arrears, in violation of Condition (22) of
             Defendant’s Deferred Adjudication order.

Fontenot pleaded true to violations two and four, relating to the nonpayment of

fees, but he denied the others. After a hearing at which an investigating officer, the

receptionist, and Fontenot testified, the trial court found all four allegations true,

revoked probation, and entered a judgment of conviction. This appeal followed.

                                       Analysis

      Fontenot offers three arguments to show that the trial court abused its

discretion in revoking community supervision. He contends that (1) the State’s first

accusation (“failed to . . . conduct himself . . . in a courteous manner”) in its motion

to revoke community supervision was too imprecise to give him the notice

required by constitutional guaranties of due process and due course of law, (2) the

State did not present sufficient evidence to prove that he committed the threat

alleged in violations one and three, and (3) the State did not present any evidence

that his failure to pay fees was willful, a showing essential to revocation pursuant

to violations two and four.




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      We review a trial court’s order revoking community supervision solely for

abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).

We will sustain the trial court’s action so long as one violation was properly

established. Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.]

1980).

I.    Preservation of error

      At the revocation hearing, Fontenot did not object to the description of the

first violation in the motion to revoke. This omission is now fatal to his argument

on appeal. See Martinez v. State, 493 S.W.2d 954, 955 (Tex. Crim. App. 1973).

“[U]nlike an indictment or information, a motion to revoke probation is not

essential to the trial court’s jurisdiction . . . .” Crawford v. State, 624 S.W.2d 906,

907 (Tex. Crim. App. 1981). Accordingly, “the question of the sufficiency of a

motion to revoke probation cannot be raised for the first time on appeal, even

though the motion is in fact defective.” Marcum v. State, 983 S.W.2d 762, 767

(Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (citing Rodriguez v. State, 951

S.W.2d 199, 204 (Tex. App.—Corpus Christi 1997, no pet.)). We overrule

Fontenot’s first issue.

II.   Sufficiency of the evidence

      Fontenot argues that the evidence is insufficient to sustain the trial court’s

findings that he committed violations one and three. He relies upon his own


                                          6
testimony that he actually said, “they are going to make me go up there and blow

up in that courthouse,” and that his statement was directed to a niece who was

standing beside him at home. He also argues that even if he had said “blow up the

courthouse,” he did not utter his words sincerely, as he explained his conduct to

law enforcement and on the witness stand. Finally, Fontenot argues that there is no

evidence that he intended “to influence the conduct or activities of JEFFERSON

COUNTY” as described by the third violation alleged in the motion to revoke.

      “[A]n order revoking probation must be supported by a preponderance of the

evidence; in other words, that greater weight of credible evidence which would

create a reasonable belief that the defendant has violated a condition of his

probation.” Rickels, 202 S.W.3d at 763–64. “[T]he trial judge is the sole judge of

the credibility of the witnesses and the weight to be given to their testimony.”

Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). “When the State

has failed to meet its burden of proof, the trial judge abuses his discretion in

issuing an order to revoke probation.” Cardona v. State, 665 S.W.2d 492, 493–94

(Tex. Crim. App. 1984); accord Hacker, 389 S.W.3d at 865.

      In Hacker, the Court of Criminal Appeals discussed at length challenges to

the legal sufficiency of the evidence at a revocation hearing. See 389 S.W.3d at

864–66. To augment its analysis, the Court drew from decisions of the Supreme

Court of Texas that defined legally sufficient evidence in the context of civil trials.


                                          7
See id. at 865, 874. Evidence is legally sufficient when it is “more than a scintilla”

but not when “the evidence offered to prove a vital fact is so weak as to do no

more than create a mere surmise or suspicion of its existence.” Id. at 865 (quoting

Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010)). Stated another way, if a

“finder of fact must ‘guess whether a vital fact exists,’” the evidence is legally

insufficient. Id. (quoting City of Keller v. Wilson, 168 S.W.3d 802, 813 (Tex.

2005)).

      Insofar as Fontenot relies on his avowals that he actually was telling his

niece he would “blow up in that courthouse” or that his words were not serious, his

arguments ask us to usurp the role of the trial judge by reexamining the credibility

of the witnesses and reweighing the evidence. See Hacker, 389 S.W.3d at 865. The

trial judge could have assessed Fontenot’s credibility and disregard his testimony,

instead crediting the receptionist’s testimony that she heard Fontenot say, “They

are going to make me come up there and blow up the courthouse,” that she

believed that Fontenot had made a threat, and that she reacted as one who had

heard a threat. This evidence was “more than a scintilla” and “more than a

suspicion” that Fontenot committed the first violation alleged in the motion to

revoke. See id.

      Fontenot also claimed that none of the evidence showed an intent to

influence the conduct or activities of Jefferson County, which was alleged as the


                                          8
third violation. However, this allegation was not essential to the first alleged

violation. Even if we were to assume that the reference to “a terroristic threat” in

the description of violation one referred to an offense in the Penal Code, the crime

of terroristic threat may be committed with a mens rea other than intent to

influence the conduct of a unit of government. See TEX. PENAL CODE ANN. § 22.07

(West 2011) (“A person commits an offense if he threatens to commit any offense

involving violence to any person or property with intent to . . . place any person in

fear of imminent serious bodily injury . . . .”). It is thus unnecessary for us to

decide whether the evidence was legally sufficient to support the intent element

specified in the third allegation. See Sanchez, 603 S.W.2d at 871 (holding one

sustained violation sufficient to revoke probation). Fontenot’s second issue is

overruled. Having sustained the trial court’s finding as to the first violation, we

need not address Fontenot’s third issue attacking the lack of evidence at the

hearing that his failure to pay sums required of him as a probationer was willful.

See id.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Michael Massengale
                                             Justice

Panel consists of Chief Justice Radack, Justices Massengale and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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