                                   NO. 07-08-0193-CR
                                   NO. 07-08-0194-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                      MAY 19, 2009

                          ______________________________


                           RAFAEL FISCAL, JR., APPELLANT

                                           V.

                           THE STATE OF TEXAS, APPELLEE

                        _________________________________

            FROM THE 100TH DISTRICT COURT OF CHILDRESS COUNTY;

            NOS. 5022 & 5076; HONORABLE RICHARD DAMBOLD, JUDGE1

                          _______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      On November 8, 2007, in Cause No. 5022, Appellant, Rafael Fiscal, Jr., pled guilty

to possession of a controlled substance in an amount of less than one gram, enhanced by



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          Sitting by assignment. Tex. Gov’t Code Ann. §75.002(a)(3) (Vernon 2005).
two prior felony convictions, and pursuant to a plea bargain was sentenced to ten years in

prison, with the period of confinement suspended in favor of ten years of community

supervision. On the same day, Appellant also pled guilty to possession of a controlled

substance in an amount of four grams or more but less than two hundred grams with intent

to deliver and was sentenced to ten years deferred adjudication community supervision in

Cause No. 5076. The trial court ordered that the two periods of community supervision

would run concurrent.


      In January 2008, the State filed motions to revoke Appellant’s community

supervision in Cause Nos. 5022 and 50762 alleging Appellant violated the terms and

conditions of his community supervision in each case by using a controlled

substance–methamphetamine. On April 4, 2008, the trial court held a hearing on the

State’s motions and revoked Appellant’s community supervision. The trial court sentenced

Appellant to confinement under two, ten year sentences to run concurrently. Appellant

appealed. We consolidated these appeals because the circumstances underlying the trial

court’s revocation of Appellant’s community supervision is the same in both cases.


      Appellant’s first four points of error can be distilled to a single issue, i.e., whether the

trial court abused its discretion by finding the State produced sufficient evidence to show

that Appellant knowingly and intentionally consumed methamphetamine on or about

December 6, 2007. Appellant’s fifth point of error asks whether the trial court abused its


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           In Cause No. 5076, the State also sought an adjudication of guilt.

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discretion by permitting the State’s witness to compare two sets of fingerprints in order to

identify Appellant as the person convicted of forgery in 2003 for punishment purposes. We

affirm.3


                                         Background


       In Cause Nos. 5022 and 5076, the State filed motions to revoke Appellant’s

community supervision because he used a controlled substance “on or about December

6, 2007" in violation of his Orders of Community Supervision. Condition Twelve of

Appellant’s Orders of Community Supervision required him to abstain from the use of

narcotics or any controlled substance in any form and at any time, unless taken under the

direction of a physician.


       At the hearing, Marcy Mills, a probation officer for the 100th Judicial District Adult

Probation Department, testified that, on December 3, 2007, Appellant reported in

accordance with the terms of his Orders of Community Supervision. At her request, Gary




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         In this proceeding, the State did not file a brief nor request additional time to do so.
Accordingly, we have conducted an independent analysis of the merits of appellant’s claim
of error, limited to the arguments raised at trial by the State, to determine if there was error.
See Little v. State, 246 S.W.3d 391, 397-98 (Tex.App.–Amarillo 2008, no pet.) (collected
cases cited therein). The decision to independently review the merits of Appellant’s issues
should not be construed as an approval of the State’s failure to file a brief. Although the
State is not required to file a brief, the failure to do so requires this Court to expend
valuable judicial resources to determine the parameters of the arguments presented to this
Court for consideration.

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Martin, a probation officer, obtained a urine sample from Appellant and submitted the

sample for testing.


       Dr. John Laseter, Laboratory Director for Accu-Chem Laboratories, testified that

Appellant’s urine sample tested positive for amphetamine and methamphetamine. On

cross-examination, he also testified that a sample taken on December 3, 2007, could not

be tested to determine whether an individual had consumed amphetamines on December

6, 2007.


       Deputy Danny Gillem, Chief Deputy for the Childress County Sheriff’s Department,

compared Appellant’s fingerprints taken the day of the hearing with a fingerprint on a

judgment of conviction on a forgery offense issued on March 24, 2003, and opined that the

fingerprint on the judgment was Appellant’s fingerprint. Deputy Gillem also testified that

he had been with the Childress County Sheriff’s Department three years and, during that

time, had completed forty hours of basic and intermediate study in fingerprint comparison

courses. He also compared fingerprints for the Sheriff’s Department using a computerized

fingerprint retrieval system. This was the first time that Deputy Gillem testified in court.


       At the conclusion of the hearing, the trial court determined that Appellant had

violated the terms of his community supervision, whereupon the court revoked his

community supervision in Cause No. 5022, revoked his deferred adjudication in Cause No.

5076, adjudicated him guilty of the offense charged in Cause No. 5076, and then



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proceeded to sentence him to two, ten year sentences to run concurrently. In addition, the

trial court fined Appellant $1500. Thereafter, Appellant appealed.


                                        Discussion


       Appellant   contends     the   State   failed   to   establish   he   had   consumed

methamphetamine, on or about December 6, 2007, because the State’s only evidence was

a sample taken on December 3, 2007, and tested December 6, 2007. Appellant next

asserts the trial court abused its discretion by permitting Deputy Gillem to offer an opinion

on fingerprint comparison because he was not qualified by the State as an expert.


       I.     Standard of Review


       A probation revocation proceeding is neither a criminal nor a civil trial, but is rather

an administrative proceeding. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993).

In a revocation proceeding, the State bears the burden to prove its allegations by a

preponderance of evidence. Id. at 874. When reviewing an order revoking community

supervision, the sole question before this Court is whether the trial court abused its

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

665 S.W.2d 492 (Tex.Crim.App. 1984). In determining the sufficiency of the evidence to

sustain a revocation, we view the evidence in the light most favorable to the trial court’s

ruling, Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App. 1979), while recognizing that




                                              5
the trial court determines the credibility of the witnesses. Garrett v. State, 619 S.W.2d 172,

174 (Tex.Crim.App. 1981).


         II.   Methamphetamine Consumption


         When an indictment alleges a crime occurred “on or about” a particular date, the

State may prove the offense occurred on a date other than the date specifically alleged in

the indictment so long as the date is anterior to the presentment of the indictment and

within the statutory limitation period. Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App.

1997). The primary purpose of specifying a date “is not to notify the accused of the date

of the offense.” Garcia v. State, 981 S.W.2d 683, 686 (Tex.Crim.App. 1998). Rather, the

date is intended to show that the prosecution is not barred by the statute of limitations and

provide the defendant with sufficient notice to prepare an adequate defense. Id.


         Here, Appellant tested positive for methamphetamine consumption that occurred

anterior to the date specified in the State’s motion to revoke. Moreover, evidence of a

positive urine sample is sufficient to establish that Appellant failed to abstain from use of

a controlled substance as required by his Orders of Community Supervision. See Stevens

v. State, 900 S.W.2d 348, 352 (Tex.App.–Texarkana 1995, pet. ref’d). Hence, we find that

the trial court did not abuse its discretion in finding that Appellant had violated the terms

and conditions of his community supervision and overrule Appellant’s first four points of

error.



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       III.     Fingerprint Comparison


        W e also review a trial court’s decision to admit or exclude evidence for abuse of

discretion, Page v. State, 213 S.W .3d 332, 337 (Tex.Crim.App. 2006), and “will uphold a trial

court’s ruling on admissibility of evidence as long as the trial court’s ruling was at least within

the zone of reasonable disagreement.” Id. See Hernandez v. State, 205 S.W .3d 555, 558

(Tex.App.--Amarillo 2006, pet. ref’d). Given Deputy Gillem’s qualifications, supra at p. 3, we

cannot say that the trial court ventured outside the zone of reasonable disagreement by

permitting Deputy Gillem to render an opinion based upon the comparison of two sets of

fingerprints.


       Accordingly, Appellant’s fifth point of error is overruled.


                                          Conclusion


       We affirm the judgments of the trial court.



                                                     Patrick A. Pirtle
                                                         Justice

Do not publish.




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