                        NOS. 07-08-00282-CR, 07-08-00283-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL D

                                       APRIL 21, 2010


                            JARMAL BRISCOE, APPELLANT

                                             v.

                          THE STATE OF TEXAS, APPELLEE


            FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY;

             NO. 0929049D; HONORABLE MOLLEE WESTFALL, JUDGE


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


                                MEMORANDUM OPINION


       Appellant Jarmal Briscoe appeals from the trial court=s judgment adjudicating him

guilty of aggravated robbery in two separate causes, revoking his community

supervision, and sentencing him to two concurrent twenty-year terms in the Institutional

Division of the Texas Department of Criminal Justice.        By two issues, appellant

contends the trial court abused its discretion in revoking his community supervision

because the evidence presented at the hearing was insufficient to show appellant

committed misdemeanor assault as alleged in the State=s petition. Finding the court did

not abuse its discretion, we affirm.
                                        Background


         On July 22, 2004, the State indicted appellant, in two causes, for aggravated

robbery with a deadly weapon, a firearm. 1 The record shows that appellant, on an open

plea to the court, plead guilty in each cause. The trial court suspended imposition of

appellant=s sentences and placed him on deferred adjudication community supervision

for a period of eight years. Appellant=s community supervision was subject to certain

terms and conditions, including that appellant commit no offense against the State of

Texas. See Tex. Code Crim. Proc. Ann. art. 42.12, '' 2(2), 3, 11(a)(1) (Vernon Supp.

2007).


         After the conditions of community supervision were once modified, the State filed

its Second Petition to Proceed to Adjudication alleging appellant committed a new

offense of assault on January 7, 2008. 2


         Appellant plead Anot true@ to each of the State=s allegations. The only allegation

at issue is the allegation appellant assaulted another man in January 2008. In support

of its allegations, the State presented the testimony of the victim and two other

witnesses who said they saw the assault. Appellant and Jennifer Downs, the mother of

his children, presented his version of the events. Testimony indicated an altercation


         1
             See Tex. Penal Code Ann. ' 29.03 (Vernon 2003).
         2
           The State alleged appellant Adid then and there intentionally or knowingly
cause bodily injury to [male], by hitting him with a bottle, or punching him with his fist, or
hitting him with his hand.@ The State also alleged appellant failed to pay required fees
and costs, and failed to participate and complete required community service. The trial
court did not find these allegations to be true.

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ensued when appellant visited the home of Ms. Downs, who then was dating the victim.

The State’s evidence showed appellant hit the victim in the head with a beer bottle.

Appellant’s evidence asserted appellant did not initiate the contact and he acted in self-

defense. The court heard this evidence and found the State=s allegation to be true,

revoked appellant=s community supervision, and sentenced him as noted. This appeal

followed.


                                          Analysis


     In appellant=s issues, he contends the trial court abused its discretion in revoking

his community supervision because the evidence presented at the hearing failed to

establish that appellant committed the January 2008 assault. We disagree, finding the

State satisfied its burden and the trial court did not abuse its discretion.


       Appellate review of an order revoking community supervision is limited to review

for abuse of a trial court=s discretion.          Rickels v. State, 202 S.W.3d 759, 763

(Tex.Crim.App. 2006), quoting Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.

1984). In determining questions regarding sufficiency of the evidence in community

supervision revocation cases, the burden of proof is by a preponderance of the

evidence.   Id.   An order revoking community supervision must be supported by a

preponderance of the evidence; in other words, that greater weight of the credible

evidence which would create a reasonable belief that the defendant has violated a

condition of his community supervision. Id. at 763-64, citing Scamardo v. State, 517

S.W.2d 293, 298 (Tex.Crim.App. 1974). We must view the evidence in a light most

favorable to the verdict. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. 1981).
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See also Browder v. State, 109 S.W.3d 484, 485 (Tex.Crim.App. 2003). At the hearing

of a motion to revoke community supervision, the judge is the sole fact-finder and in that

role is empowered to make credibility determinations. Garrett, 619 S.W.2d 172, 174

(Tex.Crim.App. 1981), Duhon v. State, No. 07-07-0064-CR, 2007 WL 2847315

(Tex.App.BAmarillo Oct. 2, 2007, no pet.) (mem. op., not designated for publication).


       Appellant=s argument regarding the application of the law to the facts of his case

concedes that several Texas appellate courts hold that evidence supporting a

revocation finding may not be reviewed for factual sufficiency. See, e.g., Pierce v.

State, 113 S.W.3d 431, 436 (Tex.App.BTexarkana 2003, pet. ref=d); Becker v. State, 33

S.W.3d 64, 66 (Tex.App.BEl Paso 2000, no pet.) (so holding). This court, and the Fort

Worth Court of Appeals from which this case was transferred, 3 are among them.

Newton v. State, No. 07-08-0136-CR, 2008 WL 4901244 (Tex.App.BAmarillo Nov. 14,

2008, no pet.) (mem. op., not designated for publication) (considering the administrative

nature of a revocation proceeding and the trial court=s broad discretion, the general

standards for reviewing factual sufficiency do not apply); Johnson v. State, 2 S.W.3d

685, 687 (Tex.App.BFort Worth 1999, no pet.). See also Duhon, No. 07-07-0064-CR,

2007 WL 2847315, citing Davila v. State, 173 S.W.3d 195, 198 (Tex.App.BCorpus

Christi 2005, no pet.) (collecting cases) (factual sufficiency review is inapplicable to the

hearing of a motion to revoke community supervision).          However, citing to a child

custody case, In re S.W.H., 72 S.W.3d 772, 776 (Tex.App.BFort Worth 2002, no pet.),

appellant urges us to consider factual sufficiency here. We decline to do so. We will



       3
           See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005).
                                             4
instead review the evidence presented at the hearing to determine whether the State

satisfied its burden of proving at least one violation by a preponderance of the evidence.


       As noted, at the hearing, the State presented evidence appellant hit the victim

with a bottle. Its evidence showed appellant arrived at the apartment of Ms. Downs, his

former girlfriend, where three other individuals, one other female and two males, were

present.   At the time, Downs and the victim were dating.            Appellant came to the

apartment to retrieve some of his belongings. The victim was sitting on the couch when

appellant reached around him to take a picture off the wall. According to the victim and

two other individuals present, appellant Abumped@ the victim. The victim said he offered

to move if necessary but appellant Agot mad or whatever, and then he hit [Downs], and

he hit me with a bottle.@ The victim testified that appellant hit the left part of the victim=s

head with the bottle and the bottle broke, causing him pain. The State introduced four

photographs in conjunction with the victim=s testimony.          The two other individuals

present that evening also testified that appellant hit the victim with a bottle and that the

victim did nothing to provoke appellant=s assault.


       As the State acknowledges, Downs testified appellant did not hit the victim with a

bottle. However, she admitted at the hearing she had given police different versions of

the events, including telling police appellant pulled a bottle out of his pocket and hit the

victim with it. She acknowledged she also had told police appellant had hit her. Her

testimony at the hearing included the assertion the victim Aswung at and went after@




                                              5
appellant. 4 She explained this version came Afrom me and not from what other people

are telling me to say.@


       Appellant testified he did not assault the victim with the bottle. He agreed he

went to Downs’ apartment to retrieve his belongings. When he got there, four people

were present.    One of them, the victim, was sitting on the couch when appellant

reached over his head to get a picture off the wall. Appellant testified the victim said he

should have asked him to move. Appellant then testified the victim Astood up in [his]

face or whatever, and we exchanged words, and he pushed meB . . . and I hit him . . .

[with] my fist.@ Appellant denied having a bottle or hitting the victim with the bottle but

acknowledged he and the victim Awere in a fight.@ He stated he was defending himself

and agreed that the victim was bigger and weighed more than he.            Appellant also

denied hitting, striking or pushing Downs that night.


       On cross-examination, appellant denied bumping the victim, denied hitting him

with a bottle, and denied hitting Downs. He did admit to throwing and breaking a phone,

an event testified to by other witnesses.        He again testified that the victim began

pushing and hitting him with no provocation from appellant at all. He maintained he

acted in self-defense. At the close of the evidence and after hearing counsel=s

arguments, the court found the State=s allegation regarding the assault to be Atrue,@

found appellant violated the terms of his probation, and adjudicated him guilty of the

underlying offense of aggravated robbery with a deadly weapon.


       4
         Evidence at the hearing indicated appellant and Downs reconciled shortly after
the incident in question.

                                             6
      As noted, reviewing the sufficiency of evidence supporting revocation of

probation, we view the evidence in a light most favorable to the trial court’s action.

Bearing that standard in mind, and recalling that at such a hearing the trial court, as

fact-finder, determines the credibility of the witnesses, we find the trial court here

reasonably could have believed the version of events described by the victim and two

witnesses and disbelieved the version recounted by appellant and Downs. We overrule

appellant=s issues and affirm the judgment of the trial court in each cause.




                                                       James. T. Campbell
                                                            Justice




Do not publish.




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