                                 IN THE
                         TENTH COURT OF APPEALS

                                  No. 10-07-00358-CR

KODELL FOSTER,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                              From the 19th District Court
                               McLennan County, Texas
                              Trial Court No. 2004-1159-C1


                      MEMORANDUM OPINION
              ON PETITION FOR DISCRETIONARY REVIEW


      As authorized by Rule 50 of the Rules of Appellate Procedure, we issue this

modified opinion within 60 days after Appellant filed a Petition for Discretionary

Review. TEX. R. APP. P. 50.

      Appellant Kodell Foster appeals the trial court’s revocation of his community

supervision. We will affirm the trial court’s judgment.
                                         Background

         Foster was charged by indictment with the second degree felony offense of

possession of a controlled substance, to-wit: cocaine. See TEX. HEALTH & SAFETY CODE

ANN. § 481.115 (Vernon 2003). Pursuant to a plea agreement, Foster pleaded guilty.

The trial court assessed his punishment at ten years’ imprisonment and a $500.00 fine,

but suspended the prison sentence and placed him on community supervision for ten

years.

         Approximately one year and eight months later, the State filed a first amended

motion to revoke Foster’s community supervision, alleging nine grounds for revocation:

         1.       On or about October 3, 2005 consumed marijuana.

         2.       On or about April 17, 2006 failed to abide by 10:00 p.m.-6:00 a.m.
                  curfew.

         3.       On or about January 25, 2007 committed the subsequent offense of
                  possession of marijuana.

         4.       On or about January 25, 2007 committed the subsequent offense of
                  possession of cocaine.

         5.       On or about January 25, 2007 committed the subsequent offense of
                  possession of ecstasy.

         6.       On or about January 25, 2007 committed the subsequent offense of
                  possession of Xanax.

         7.       On or about January 25, 2007 committed the subsequent offense of
                  unlawfully carrying a weapon, to wit; a butterfly knife.

         8.       On or about January 25, 2007 committed the subsequent offense of
                  unlawfully carrying a weapon, to wit; a handgun.

         9.       On or about January 25, 2007 committed the subsequent offense of
                  felon in possession of a firearm.


Foster v. State                                                                        Page 2
At the hearing on the motion, the State called only one witness to testify, the

community supervision officer who had most recently supervised Foster. As to the first

allegation, she testified that Foster had tested positive for marijuana on October 3, 2005,

and although he had claimed he had used the marijuana before being placed on

community supervision, he was verbally admonished at that time and “warned that the

violation would stay.” She stated, “[I]f he was tested positive again, he would be

sanctioned at that time.” As to the second allegation, she testified that a curfew check

was randomly done on Foster on April 17, 2006, and he was found not to be at home.

She testified that Foster received three weekends of incarceration as sanctions for this

violation. Finally, as to the January 25, 2007 allegations, she testified that Foster was

charged and arrested but that she did not know any specific facts about those cases.

The State then offered, and the court admitted, a certified copy of a federal judgment,

signed on September 17, 2007, that showed Kodell Valentino Foster was convicted of

possession with intent to distribute cocaine within 1000 feet of a public school,

possession with intent to distribute marijuana within 1000 feet of a public school,

possession of a firearm during the commission of a drug trafficking crime, and

possession of a firearm by a convicted felon.

        Foster did not testify at the hearing, but both he and his trial counsel informed

the court that the federal conviction was on appeal at that time and thus was not final.

        The trial court found that Foster violated the conditions of his community

supervision as stated in allegations 1-4, 8 and 9 of the State’s motion. The court then



Foster v. State                                                                      Page 3
revoked Foster’s community supervision and assessed his punishment at ten years’

imprisonment and a $500.00 fine.

                                       Discussion

        In his first issue, Foster contends that there is insufficient evidence showing he

consumed marijuana after he was placed on community supervision as alleged in

paragraph 1 of the State’s motion.

        Appellate review of an order revoking community supervision is limited to

whether the trial court abused its discretion. Forrest v. State, 805 S.W.2d 462, 464 n.2

(Tex. Crim. App. 1991); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); see

also Maxey v. State, 49 S.W.3d 582, 584 (Tex. App.—Waco 2001, pet. ref’d). An order

revoking community supervision must be supported by a preponderance of the

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

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

supervision. Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974). The State is

required to sustain the burden of proving the allegations of the motion to revoke

community supervision. Id.; Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).

        Foster first argues that although he tested positive for marijuana on October 3,

2005, the evidence is insufficient to show that he consumed the marijuana while on

community supervision because he admitted he used marijuana three weeks prior to

that date, which was before he was placed on probation, and it is well-documented that

marijuana remains in a person’s system for several weeks after ingestion of the drug.

However, the trial court is the sole judge of the credibility of the witnesses and the


Foster v. State                                                                     Page 4
weight to be given their testimony. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim.

App. [Panel Op.] 1981). Thus, the trial court had the discretion to give no weight to the

testimony that Foster claimed the positive drug test was the result of using marijuana

before he was placed on community supervision.

        Foster also contends that there is insufficient evidence that he consumed

marijuana after he was placed on community supervision because the State introduced

no evidence concerning what type of test was used, its manner of use, the test

reliability, or the credentials of the test operator, but Foster cites no authority to support

this proposition. Foster made no objection to the admission of any testimony at the

revocation hearing; therefore, any complaints about the test (e.g., its reliability or the

qualifications of the test operator) were not preserved for appellate review. See TEX. R.

APP. P. 33.1(a).   We thus conclude that the unobjected-to testimony from Foster’s

community supervision officer that Foster had tested positive for marijuana on October

3, 2005 is sufficient circumstantial evidence to show Foster consumed marijuana after he

was placed on community supervision, and we overrule Foster’s first issue.

        In his third issue, Foster contends that the State was precluded by the principles

of double jeopardy, collateral estoppel, res judicata, and due process from using the

alleged violations in paragraphs 1 and 2 of the State’s motion as grounds for revocation.

Foster argues that each of those violations had already been presented to the

community supervision department, the trial court’s “agent and administrative arm,”

and Foster had been punished for those violations. The State responds in part that

Foster’s double jeopardy argument is not preserved for review.


Foster v. State                                                                         Page 5
         A double jeopardy claim must generally be raised in the trial court to preserve

the error for appellate review. Gonzalez v. State, 8 S.W.3d 640, 643-46 (Tex. Crim. App.

2000); Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.—San Antonio 2005, pet. ref’d).

However, an appellant may raise a double jeopardy claim for the first time on appeal (1)

when the undisputed facts show the double jeopardy claim violation is clearly apparent

from the face of the record, and (2) when enforcement of the usual rules of procedural

default serve no legitimate state purpose. Gonzalez, 8 S.W.3d at 643; Rangel, 179 S.W.3d

at 70.

         Foster did not raise his double jeopardy claim in the trial court. Nor has he

satisfied the Gonzalez test such that he may raise his claim for the first time on appeal.

The Double Jeopardy Clause of the Fifth Amendment protects an accused from being

punished more than once for the same offense. U.S. CONST. amend. V; Littrell v. State,

271 S.W.3d 273, 275 (Tex. Crim. App. 2008). Here, the only evidence introduced about

the consequences that Foster received for allegedly consuming marijuana on or about

October 3, 2005 (the alleged violation in paragraph 1 of the State’s motion) was the

testimony of Foster’s community supervision officer.        She stated that Foster was

verbally admonished for the violation and “warned that the violation would stay. And

if he was tested positive again, he would be sanctioned at that time.” Based on this

limited testimony, we cannot conclude that Foster was “punished” for this alleged

violation such that his double jeopardy claim violation is clearly apparent from the face

of the record. Thus, Foster’s double jeopardy argument as to the alleged violation in

paragraph 1 of the State’s motion is not preserved for review.


Foster v. State                                                                     Page 6
        Likewise, Foster failed to raise his collateral estoppel, res judicata, and due

process claims in the trial court as to the alleged violation in paragraph 1, and they thus

are not preserved for review. See TEX. R. APP. P. 33.1(a); Rogers v. State, 640 S.W.2d 248,

265 (Tex. Crim. App. 1982) (op. on 2d reh’g) (holding due process claim waived on

appeal because no objection made at revocation hearing). Accordingly, we overrule

Foster’s third issue in part.

        Foster raises no other issues challenging the trial court’s finding that he violated

a condition of his community supervision as set out in paragraph 1 of the State’s

motion. One ground for revocation, if proven, is sufficient to revoke a defendant’s

community supervision. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980);

Holmes v. State, 752 S.W.2d 700, 701 (Tex. App.—Waco 1988, no pet.). Thus, we hold

that the trial court did not abuse its discretion in revoking Foster’s community

supervision. We need not address Foster’s second issue, fourth issue, or the part of his

third issue that concerns the alleged violation in paragraph 2 of the State’s motion. TEX.

R. APP. P. 47.1.

                                        Conclusion

        We affirm the trial court’s judgment. Our opinion and judgment dated June 3,

2009, are withdrawn, and this opinion is substituted as the opinion of the court. TEX. R.

APP. P. 50(a).



                                                  REX D. DAVIS
                                                  Justice



Foster v. State                                                                       Page 7
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed January 27, 2010
Do not publish
[CR25]




Foster v. State                                Page 8
