                                 NO. 07-09-0197-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                 SEPTEMBER 8, 2010




                        MICHAEL R. MARTINEZ, APPELLANT

                                           v.

                         THE STATE OF TEXAS, APPELLEE



            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 2005-409,347; HONORABLE BRAD UNDERWOOD, JUDGE




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


                              MEMORANDUM OPINION

      In 2006, following a plea of guilty to the offense of aggravated assault with a

deadly weapon in Cause No. 2005-409,347, Appellant, Michael R. Martinez, was placed

on deferred adjudication community supervision for a term of eight years. In 2007, the

State filed a motion to proceed alleging multiple violations of the conditions of

Appellant's community supervision, including the commission of the offense of "Injury to
a Child" on July 5, 2007.1 Arising out of the July 5 incident, Appellant was subsequently

charged with the offense of aggravated assault2 in Cause No. 2008-419,983, and on

May 4, 2009, Appellant proceeded to a jury trial on a plea of "not guilty."

Simultaneously with the jury trial in Cause No. 2008-419,983, Appellant entered a plea

of not true to the State's motion to proceed in Cause No. 2005-409,347. The jury trial

resulted in a "not guilty" verdict; however, after hearing additional testimony on the

alleged violations of community supervision, the court adjudicated Appellant guilty of the

offense charged in Cause No. 2005-409,347 and assessed punishment at twenty years

confinement.


        Presenting three issues, Appellant asserts the trial court abused its discretion

when it revoked his community supervision because: (1) the State failed to prove by a

preponderance of evidence that he committed the offense alleged in the motion to

proceed (i.e., injury to a child); (2) he was indigent and unable to make required

payments; and (3) although he failed to complete programs required by the order for




1
 The State's motion to proceed alleged that Appellant willfully and intentionally violated the conditions of
his community supervision by: (1) committing the offense of "Injury to a Child" on July 5, 2007; (2) failing
to avoid injurious or vicious habits by demonstrating a history and consistent pattern of assaultive
behavior, to-wit: he "committed a subsequent Assault/Injury to a Child on 07/05/07"; (3) failing to pay
community supervision fees for a period of months; (4) failing to make required restitution payments; (5)
failing to attend and complete counseling deemed necessary by his community supervision officer; and
(6) failing to successfully complete individual anger counseling. The State never specifically pled the
elements of the offense of "Injury to a Child" or "Assault/Injury to a Child." See Tex. Penal Code Ann. §
22.04 (Vernon Supp. 2009).
2
 The indictment alleged that "on or about July 5, 2007, [Appellant] did then and there intentionally,
knowingly and recklessly cause serious bodily injury to Thristen [last name omitted] by striking the said
[victim], who then and there was a member of the defendant's household or family, and did then and there
use a deadly weapon, to-wit: the exact description of which is unknown to grand jurors, that in its manner
of use or intended use was capable of causing death and serious bodily injury." See Tex. Penal Code
Ann. § 22.02 (Vernon Supp. 2009).


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deferred adjudication, there was still sufficient time remaining on his term of community

supervision to complete the programs. We affirm.


                                  Adjudication Hearing


       Shortly after receiving the jury's "not guilty" verdict in Cause No. 2008-419,983,

the trial court held a hearing to adjudicate Appellant's guilt in Cause No. 2005-409,347.

The trial court announced, without objection, that it would "take into consideration all of

the evidence presented in the jury trial." Afterwards, both parties stated they were

ready to commence the proceedings.


       Patricia Acosta testified to the facts giving rise to the original offense charged in

Cause No. 2005-409,347. She testified that in May 2005, while she was at Appellant's

house to pick up her son following visitation, he grabbed her cell phone as she was

calling her family to check in, broke the phone, and tore her shirt off as she was running

away. Appellant then took her car keys and told her, that if she wanted her son, she

would go into his house. After she went into the house, Appellant told her that he was

going to kill her and keep her son. He then threatened her with a knife, punched her in

the stomach, got atop her, and held a knife to her throat. Afterwards, he forced her and

her son into a car and drove them to a park where he threatened to kill her if she did not

come back to him. Eventually, she told him she would come back to him and he drove

them back to his house. When they pulled into the driveway, her family pulled in behind

them. Patricia grabbed her son and ran to her family. Thereafter, the police arrived.


       Joanie Jones, Appellant's community supervision officer, testified that, including

the commission of the offense alleged to have occurred on July 5, 2007, Appellant

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exhibited a pattern of behavior for continued violence. She testified Appellant failed to

pay community supervision fees and restitution for a number of months when he was

employed and had six hundred dollars in disposable income each month. She also

testified that he blamed others for his noncompliance and aggressive behaviors.

Although he was referred to anger counseling twice for specific classes, she testified he

failed to complete either class and generally resisted participating in any counseling.

She further testified Appellant failed to attend a budgeting class as directed. These

infractions continued despite multiple supervision conferences and an administrative

hearing intended to obtain Appellant's compliance with the requirements of his deferred

adjudication order.


        Appellant did not testify on his own behalf or present any evidence.3 The trial

court subsequently granted the State's motion finding, in pertinent part, as follows:


        [T]he State proved by a preponderance of the evidence that defendant
        committed the offense of injury to a child; . . . , defendant failed to pay his
        supervision fees as alleged; . . . , failed to pay restitution as alleged; . . . ,
        failed to maintain and complete any drug, alcohol or any other program as
        directed and deemed necessary, failed to pay for, attend and successfully
        complete individual anger counseling.



3
 Appellant presented no evidence or financial information to support his claim that he was unable to make
the required payments even though he was employed and earned enough to have six hundred dollars a
month in disposable income. See Jimerson v. State, 957 S.W.2d 875, 878 (Tex.App.--Texarkana 1997,
no pet.). Where a defendant does not testify or otherwise rebut the State's evidence of his ability to pay
or present any justification for non-payment, an inference of intentional non-payment exists. Jackson v.
State, 915 S.W.2d 104, 107 (Tex.App.--San Antonio 1996, no pet.). Further, even if there may be
sufficient time left in Appellant's term of community supervision to complete counseling and anger
management classes, the uncontroverted evidence shows Appellant consistently resisted participation in
such classes and failed to "[a]ttend and complete any drug, alcohol, or any other program as directed and
deemed necessary by [his] Supervision Officer." See Smith, 932 S.W.2d at 282-83.




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       The trial court also found Appellant used a deadly weapon in the commission of

the offense and then sentenced him to twenty years confinement. This appeal followed.


                                        Discussion


       Although Appellant acknowledges in his brief that the trial court properly took

judicial notice of the evidence introduced in his criminal trial at his subsequent

adjudication hearing, he asserts the trial court abused its discretion by finding the State

proved the offense of injury to a child by a preponderance of evidence when the State

introduced no independent evidence of that offense during the trial or adjudication

hearing. In the alternative, Appellant asserts that, even if there was some evidence

supporting the trial court's finding, the evidence was legally insufficient.


       Appellant also asserts the trial court abused its discretion by proceeding to

adjudication when there was insufficient evidence introduced by the State to show he

was able to make required payments and there was sufficient time remaining in his

community supervision term for him to complete any necessary programs he had failed

to complete.


                                    Standard of Review


       On violation of a condition of community supervision imposed under an order of

deferred adjudication, a defendant is entitled to a hearing limited to the determination of

whether the trial court should proceed with an adjudication of guilt on the original charge

under section 21 of article 42.12 of the Texas Code of Criminal Procedure. Tex. Code

Crim. Proc. Ann. art. 42.12, § 21 (Vernon 2006). See Antwine v. State, 268 S.W.3d


                                              5
634, 636 (Tex.App.--Eastland 2008, pet. ref'd). "This hearing is neither a criminal nor a

civil trial, but is rather an administrative hearing." Wilkins v. State, 279 S.W.3d 701, 703

(Tex.App.--Amarillo 2007, no pet.) (citing Cobb v. State, 851 S.W.2d 871, 873

(Tex.Crim.App. 1993)).


       As such, the State's burden on a motion to revoke community supervision is

lower than the burden of proof necessary for criminal conviction. Smith v. State, 932

S.W.2d 279, 281 (Tex.App.--Texarkana 1996, no pet.). The State has the burden of

showing by a preponderance of the evidence that the defendant committed a violation

of the condition(s) of community supervision; Cobb, 851 S.W.2d at 873; and satisfies

this burden "when the greater weight of credible evidence before the court creates a

reasonable belief that it is more probable than not that a condition of probation has been

violated as alleged in the [State's] motion."      Joseph v. State, 3 S.W.3d 627, 640

(Tex.App.--Houston [14th Dist.] 1999, no pet.) (citing Battle v. State, 571 S.W.2d 20, 21-

22 (Tex.Crim.App. 1978)).


       Our review of an order revoking community supervision is limited to determining

whether the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763

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

1984)). Further, 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 "[t]he trial court is

the sole judge of the credibility of witnesses and the weight given to their testimony."

Antwine, 268 S.W.3d at 636 (citing Cardona, 665 S.W.2d at 493).



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                                           Analysis


         At the outset we note that a finding of a single violation of community supervision

is sufficient to support revocation.     Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b)

(Vernon 2006); Antwine, 268 S.W.3d at 636 (citing Moore v. State, 605 S.W.2d 924,

926 (Tex.Crim.App. 1980)).        See Coffel v. State, 242 S.W.3d 907, 909 (Tex.App.--

Texarkana 2007, no pet.); Nurridin v. State, 154 S.W.3d 920, 924 (Tex.App.--Dallas

2005, no pet.). Based upon the evidence presented, we find the trial court did not err in

revoking Appellant's deferred adjudication community supervision because the State

proved by a preponderance of evidence that Appellant failed to make required

payments and complete scheduled counseling/anger management classes as required

under the applicable order of deferred adjudication.


         Appellant's second and third issues are overruled.       Our ruling on Appellant's

second and third issues pretermits issue one. See Tex. R. App. P. 47.1; Smith, 932

S.W.2d at 283; Ex parte Brown, 875 S.W.2d 756, 761 (Tex.App.--Fort Worth 1994, no

pet.).


                                         Conclusion


         The trial court's judgment is affirmed.




                                                   Patrick A. Pirtle
                                                       Justice



Do not publish.


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