                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-16-00086-CR
                          ____________________

                  LAWRENCE RAY DIRDEN II, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee
________________________________________________________________________

                    On Appeal from the 9th District Court
                        Montgomery County, Texas
                      Trial Cause No. 12-01-00324-CR
________________________________________________________________________

                         MEMORANDUM OPINION

      In four issues, Lawrence Ray Dirden II (“Lawrence” or “Appellant”)

challenges the trial court’s revocation of his community supervision. We affirm.

Lawrence was indicted for Aggregate Theft in an amount in excess of $200,000, a

first degree felony.1 See Tex. Penal Code Ann. §§ 31.03, 31.09 (West 2011 and

Supp. 2016). In the amended indictment, the State alleged that Lawrence


      1
        Lawrence’s wife, Denise Dirden (Denise), was also charged with
Aggregate Theft in an amount in excess of $200,000, and the cases were tried
                                     1
             . . . unlawfully appropriate[d] property, by acquiring or
      otherwise exercising control over the property, to wit: money, in the
      aggregate value of $200,000 or more, from Isaac Martin III, and/or
      Martin Wood Company, Inc. and/or Stoneham Mill, Inc., the owner,
      from account number(s) 1003706 and 1047786 at First Bank of
      Conroe, N.A., with the intent to deprive the owner of the property,
      and said property was obtained pursuant to one scheme or continuing
      course of conduct which began on January 28, 2008[,] and continued
      until on or about December 16, 2008.

On April 28, 2014, the jury returned a guilty verdict against Lawrence as charged

in the indictment. Before the sentencing and entry of a judgment, the State and

Lawrence reached an agreement wherein Lawrence agreed to “10 years probated

over 10 years, [and] $350,000 to be paid within 180 days of [September 17, 2014,]

and $125,000 to be paid over the next 10 years.” On September 17, 2014, pursuant

to the agreement between the State and Dirden, the trial court sentenced Lawrence

to ten years’ confinement in the TDCJ, to be probated, with a list of conditions of

probation and with a requirement as agreed between the parties that Lawrence pay

restitution of $350,000 within 180 days of the date of the hearing, and $125,000 to

be paid over the next ten years.

      Two of the conditions of probation included that Lawrence would:


together. A jury found Lawrence and Denise guilty. We previously issued our
Memorandum Opinion affirming Denise’s conviction, wherein we outlined the
underlying facts and testimony presented at trial. See generally Dirden v. State,
No. 09-14-00330-CR, 2016 Tex. App. LEXIS 9213 (Tex. App.—Beaumont Aug.
24, 2016, no pet.).
                                       2
      c. Not use or consume alcohol or controlled substances; [and]

            ....

      q. Pay $390.00 Court costs; $350,000.00 TO BE PAID WITHIN 180
      DAYS $125,000.00 TO BE PAID OVER 10 YEAR PERIOD ALL
      TO BE PAID INSTANTER restitution for the benefit of
      STONEHAM MILL, INC. P.O. BOX #1828 CLEVELAND, Tx
      77328; $0 Court appointed attorney fees; and $0.00 fine, all in one
      lump sum payment to the Montgomery County District Clerk on the
      day this Judgment is entered <OR> pay in installments, the total sum
      of the foregoing to the Montgomery County District Clerk, including
      $2.00 fee for each payment made (pursuant to Article 102.072,
      T.C.C.P.), as set forth in the Collection Agreement which is
      incorporated herein and made part of this judgment as if copied
      verbatim[.]

      On July 22, 2015, the State filed a Motion to Revoke Community

Supervision alleging Lawrence had violated the terms and conditions of his

community supervision, as follows:

                                         I.

      Defendant failed to pay $350,000.00 restitution within 180 days from
      the date Judgment was signed.

The State requested an order of arrest and that the trial court revoke the community

supervision and pronounce sentence. After his arrest, Lawrence filed a Motion of

Incarcerated Defendant for Prompt Revocation Hearing, wherein he alleged that he

was granted community supervision in his Judgment dated September 17, 2014,

and then later arrested on November 9, 2015, for an act alleged to be a violation of

                                         3
the terms of his community supervision. On December 2, 2015, the trial court

released Lawrence on a Personal Recognizance Bond (PR Bond). After being

notified that the “Defendant tested positive for alcohol in random urinalysis

conducted on January 19, 2016[,]” the trial court then revoked the PR Bond and

issued a capias for Lawrence.

      The State filed an Amended Motion to Revoke Community Supervision

(Amended Motion) dated February 18, 2016, and file stamped by the clerk on

February 19, 2016. In the Amended Motion, the State alleged that on September

17, 2014, Lawrence was convicted and placed on community supervision for a

period of ten years on terms and conditions as set forth in the Judgment and that he

subsequently violated the terms and conditions for his community supervision as

follows:

                                        I.
      Defendant tested Positive for alcohol in random urinalysis conducted
      on January 19, 2016.

                                        II.
      Defendant failed to pay $350,000.00 in restitution within 180 days
      from the date of the judgment as ordered by the Court.

      On February 22, 2016, the parties agreed to set the revocation hearing for

February 25, 2016. On February 25, 2016, the trial court held a revocation hearing,

and the State and Lawrence appeared with their respective attorneys. Lawrence and

                                         4
his trial counsel executed a sworn “Stipulation of Evidence” (Stipulation), which

was filed into the clerk’s record at 4:30 p.m. on the date of the hearing. The

Stipulation, which was signed by Lawrence, his attorney, and the trial court judge,

reads in relevant part as follows:

             . . . I have read the State’s Original Motion to Revoke
      Community Supervision filed with the District Clerk on or about
      February 18, 2016 and I hereby agree and confess that all the acts and
      allegations in Paragraphs I, II thereof are true and correct, and all of
      said conduct constituted violations of the conditions of my community
      supervision and occurred during the period in which the conditions of
      my community supervision were mandatory.

      According to the Reporter’s Record, the following exchange occurred at the

beginning of the revocation hearing:

      THE COURT: . . . Okay. I have the State’s amended motion to revoke
      community supervision dated February 19th, 2016. So is there
      anything more recent than that, Ms. [State’s Attorney]?

      [State’s Attorney]: No, Your Honor.

      THE COURT: Okay. Has the defense been given a copy of that?

      [State’s Attorney]: You have a copy of it, right?

      [Defense Attorney]: We received a copy of it yesterday, yes, sir, Your
      Honor.

      THE COURT: Okay. You received a copy yesterday? So are you --
      you’re saying the State didn’t give you a copy earlier or why didn't
      you have it 10 days?

      [Defense Attorney]: No, sir. We just got it yesterday.
                                        5
      THE COURT: Okay.

      [Defense Attorney]: We’re ready and prepared though, Your Honor.

      THE COURT: Okay. Well, you’re ready to go. State ready?

      [State’s Attorney]: Yes, Your Honor.

      THE COURT: All right. Call your first witness.

      Both attorneys then proceeded to present an opening statement to the trial

court, and the State called its first witness, Anthony Gaskill (Gaskill), a drug test

administrator. Gaskill testified that he works for Davis Investigation Services, the

company that holds a contract with Montgomery County Probation to administer

drug testing and that tests everyone who is on bond or probation. During the

questioning of Gaskill, the following exchange occurred:

      [State’s Attorney]: Okay. Do you have any special training to conduct
      these tests?

      [Gaskill]: Just on-si[te] training.

      [State’s Attorney]: Now, were you asked to conduct a urinalysis
      specimen or urinalysis test on Lawrence Dirden?

      [Gaskill]: Yes, sir.

      [State’s Attorney]: And do you recall when you were requested to
      perform that specimen?
      [Defense Attorney]: May it please the Court? We’re going to object to
      this testimony whatsoever because this is a new allegation that was
      joined on February the 19th, an allegation that allegedly occurred on
      January the 19th. It was filed within 7 days before the date of the
                                        6
      hearing; and therefore, it should not be allowed under section 42.12,
      subparagraph 21.

      [State’s Attorney]: May I respond, Your Honor?

      THE COURT: Sure.

      [State’s Attorney]: Before the hearing, he brought up the issue that he
      had not had 10 day’s [sic] notice. He said he was willing and ready to
      go forward.

      THE COURT: I agree. Objection is overruled.

      [Defense Attorney]: Note our exception, Your Honor?

      THE COURT: Noted.

      Gaskill testified that Lawrence appeared on the date requested for a

urinalysis and that, after Lawrence provided a sample, Gaskill labelled it and sent

the sample to Redwood Laboratory in California for testing. The defense made a

hearsay objection to the testimony, and argued that Gaskill was testifying from a

document not admitted into evidence. The court overruled the objections. Gaskill

testified that alcohol testing was performed on the sample Lawrence provided.

      John Martin (Martin), a toxicologist with the Redwood Laboratory in

California, testified by telephone. Lawrence objected to Mr. Martin’s telephonic

testimony stating that Lawrence was entitled to prior notice of the State’s intent to

admit telephonic testimony. The Court overruled Lawrence’s objection. Martin


                                         7
testified as to the validity of the laboratory test results on Lawrence’s urine sample

and that Lawrence’s test result demonstrated Lawrence had consumed alcohol.

      Lisa Foster (Foster) testified that she is a community supervision officer and

that she did a presentence investigation in 2014 before Lawrence was sentenced.

Foster explained that she met with Lawrence concerning restitution when she

prepared the presentence investigation and also in January of 2016. According to

Foster, when she was preparing her presentence investigation, Lawrence “said he

would do anything necessary to make it right with the victims of the offense. He

said he would sell his assets and do whatever he needed to do to make it right.”

Foster explained that, at that time, Lawrence owned property, a house, a logging

company, and a water business. Foster also testified that, in January of 2016,

Lawrence said he was willing to sign over his interest in his house, but that “his

wife would have to sign off on selling her half; and she’s not willing to do that.”

Foster further testified that she sent him for alcohol testing when she met with him

on January 19, 2016, but that she did not then have reason to believe he was

drinking and she was “shocked” that the test results were positive for alcohol.

Foster also agreed that Lawrence had made monthly restitution payments.

      Isaac Martin (Ike) testified that Lawrence and Denise took Ike’s money and

used it to build a house, which Ike understood was appraised at about $800,000

                                          8
and that there was a $25,000 lien against the house. According to Ike, Lawrence

also owned several parcels of land, totaling about eighty acres. Ike testified that he

understood that Lawrence was going to sign over his interest in the property, and

that Ike had consulted with an attorney regarding Lawrence signing over his

interest, but that Lawrence had failed to sign over his interest and Ike did not

believe Lawrence was willing to do so. According to Ike, Lawrence’s land is listed

for sale but Ike believed that the land was overpriced.

      Robert Clark (Clark), CEO of the Bank of San Jacinto County (the Bank),

testified that Lawrence had been a client of the Bank for a long time and Lawrence

had obtained numerous loans over the years. According to Clark, after September

of 2014, Lawrence attempted to obtain a loan in the amount of $350,000 from the

Bank and the Bank denied the loan. Clark explained that Lawrence owned three

tracts of land that are mortgaged through the Bank, that Lawrence owed about

$130,000 on the land at the time of the hearing, and that Lawrence owed about

$230,000 total debt to the Bank. Clark testified that the approximate value of the

three tracts of land was “in [the] range[]” of $800,000. Clark also testified that

some of Lawrence’s loans were collateralized with equipment or vehicles.

      Lawrence did not testify and he offered no witnesses. At the close of the

hearing, the trial court found the allegations in the motion to revoke “[t]rue[]” on

                                          9
both “paragraphs one and two.” The trial court announced a sentence of ten years

in the TDCJ and ordered that the fine, restitution, and court costs would carry over

from the original case.

                                ISSUES ON APPEAL

      On appeal, Appellant raises four issues challenging the trial court’s

revocation of his community supervision. First, Appellant argues that the State

filed an untimely motion to revoke community supervision which was “an error,

defect, irregularity, or variance that affected appellant’s substantial rights.”

Second, Appellant argues that the trial court abused its discretion in finding the

State’s paragraph one in the Motion to Revoke Community Supervision “true”

because the State’s only evidence for its allegation that Appellant tested positive

for alcohol in random urinalysis was inadmissible. Appellant argues that the trial

court erred in allowing the toxicologist to testify telephonically and contends that

the lab report was not properly authenticated and was admitted erroneously.

Consequently, Appellant contends that there was insufficient evidence to support a

finding that Appellant violated the terms of his community supervision by

ingesting alcohol. Third, Appellant argues that the State failed to prove by a

preponderance of the evidence that Appellant violated the terms of his community

supervision because the State failed to establish that Appellant was “able to pay

                                        10
and did not pay as ordered by the judge when the defendant refused to sell the

homestead[]” and that “the State cannot infer from appellant’s refusal to abandon

his homestead property that he intentionally failed to pay.” And, fourth, Appellant

contends that the “revocation of defendant’s community supervision due to

defendant’s inability to pay the restitution violated the equal protection clause

under the Fourteenth Amendment.”

                                    ANALYSIS

                               Standard of Review

      When reviewing an order revoking community supervision, the sole

question before this Court is whether the trial court abused its discretion. See

Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). In a revocation

proceeding, the State must prove by a preponderance of the evidence that the

defendant violated a condition of community supervision as alleged in the motion

to revoke. Rickels, 202 S.W.3d at 763-64; Cobb v. State, 851 S.W.2d 871, 874

(Tex. Crim. App. 1993). In the context of a revocation proceeding, “a

preponderance of the evidence” means “‘that greater weight of the credible

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

condition of his [community supervision].” Rickels, 202 S.W.3d at 764.



                                        11
      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). The trial court abuses its

discretion only if its decision “was so clearly wrong as to lie outside that zone

within which reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667,

682 (Tex. Crim. App. 1992) (citing Montgomery v. State, 810 S.W.2d 372, 391

(Tex. Crim. App. 1990) (op. on reh’g)). Revocation is appropriate when a

preponderance of the evidence supports at least one of the State’s allegations that

the defendant violated a condition of his community supervision. See Leonard v.

State, 385 S.W.3d 570, 576 (Tex. Crim. App. 2012). A single violation of a term of

community supervision is sufficient to support the trial court’s decision to revoke

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

1980); Bessard v. State, 464 S.W.3d 427, 429 (Tex. App.—Houston [14th Dist.]

2015, pet. ref’d). The trial court is the sole judge of the credibility of the witnesses

and the weight to be given their testimony. Hacker v. State, 389 S.W.3d 860, 865

(Tex. Crim. App. 2013).




                                          12
                           Amended Motion to Revoke

      Article 42.12, section 21(b-2) of the Texas Code of Criminal Procedure

imposes an obligation on the State to file and serve notice of an amended motion to

revoke at least seven days before the revocation hearing.2 Tex. Code Crim. Proc.

Ann. art. 42.12, § 21(b-2) (West Supp. 2016). An untimely motion to amend a

motion to revoke community supervision is a statutory violation and thus subject to

a harm analysis, under which any “error, defect, irregularity, or variance that does

not affect substantial rights must be disregarded.” Tex. R. App. P. 44.2(b); Lopez v.

State, 318 S.W.3d 910, 916-17 (Tex. App.—Corpus Christi 2010, no pet.)

(untimely motion to amend motion to revoke community supervision is statutory

violation, thus subject to Rule 44.2(b) harm analysis); see also Aguirre-Mata v.

State, 992 S.W.2d 495, 499 (Tex. Crim. App. 1999). When evaluating whether a

defendant was harmed under Rule 44.2(b), we look to the record as a whole to

determine whether the defendant’s “substantial rights” were affected. Davison v.

State, 405 S.W.3d 682, 688 (Tex. Crim. App. 2013).


      2
        “In a felony case, the state may amend the motion to revoke community
supervision any time up to seven days before the date of the revocation hearing,
after which time the motion may not be amended except for good cause shown,
and in no event may the state amend the motion after the commencement of taking
evidence at the hearing. The judge may continue the hearing for good cause shown
by either the defendant or the state.” Tex. Code Crim. Proc. Ann. art. 42.12,
§ 21(b-2) (West Supp. 2016).
                                       13
      At the beginning of the revocation hearing, the trial court inquired whether

the defense had received the amended motion to revoke, and the defense

acknowledged it was “ready to go.” The Appellant did not lodge an objection to

the timeliness of the amendment at that time. Appellant argues that his objection

that he made during Gaskill’s testimony preserved his complaint that the Amended

Motion was untimely. We disagree.

      Appellant indicated at the beginning of the proceeding that he was willing to

proceed with the revocation hearing as to the allegations made within the Amended

Motion. Appellant never sought a continuance nor did he ask for additional time to

prepare for the hearing, Appellant did not argue that he was surprised by the

allegations in the Amended Motion, and he did not argue that he would be harmed

by proceeding with the hearing on the Amended Motion. By failing to timely

object to the State’s amendment and by agreeing to proceed with a hearing on the

Amended Motion, the Appellant waived his complaint on appeal that the State’s

amendment was untimely. See Tex. R. App. P. 33.1(a); Burns v. State, 835 S.W.2d

733, 735 (Tex. App.—Corpus Christi 1992, pet. ref’d) (failure to object at the

commencement of a revocation hearing to the State’s amended motion to revoke

waived error for appeal).



                                        14
      A party must make his objection at the earliest possible opportunity, and the

point of error on appeal must comport with the objection made at trial. Yazdchi v.

State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014) (citing Wilson v. State, 71

S.W.3d 346, 349 (Tex. Crim. App. 2002)). In this case, Appellant’s counsel not

only did not object to having received the Amended Motion the day before the

hearing, but expressly stated on the record “[w]e’re ready and prepared[.]” Failure

to lodge a timely objection and the Appellant’s express agreement to proceed with

the hearing constitutes a waiver of any issue regarding the timeliness of the State’s

amended motion. See Burns, 835 S.W.2d at 735. Appellant has not preserved error

on this issue for our review. Id. Accordingly, we overrule Appellant’s first issue.

                    Testimony of Toxicologist and Sufficiency
                         of Evidence Regarding Alcohol

      In his second issue, Appellant complains about the trial court’s admission of

the testimony of the toxicologist who testified at the hearing by telephone.

Appellant contends that the trial court erred in allowing the witness to testify by

telephone, and because such evidence was improperly admitted, the evidence was

insufficient to support a finding that Appellant violated the terms of his community

supervision by ingesting alcohol.

      When reviewing the sufficiency of the evidence, the reviewing court must

consider all evidence in the record, regardless of whether that evidence was
                                      15
admissible or inadmissible. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.

App. 2013) (citing Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006);

Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001); and Dewberry v.

State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)).

      The State argues that Appellant’s challenge regarding the evidence

pertaining to alcohol “is based entirely on arguments regarding the admissibility of

the evidence, and he does not complain that the evidence actually admitted was

insufficient.” To the extent Appellant is challenging the admission of such

evidence at trial, we review a trial court’s decision to admit evidence under an

abuse of discretion standard. See Johnson v. State, 490 S.W.3d 895, 908 (Tex.

Crim. App. 2016) (citing Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.

2011)). A trial court has broad discretion regarding the mode and order of

examining witnesses. See Tex. R. Evid. 611; Dang v. State, 154 S.W.3d 616, 619

(Tex. Crim. App. 2005). This Court has previously acknowledged that a trial court

has the discretion to permit remote testimony in certain instances without violating

the Sixth Amendment, and has further acknowledged that the application of the

Confrontation Clause to a punishment hearing remains an open question. See

Rivera v. State, 381 S.W.3d 710, 713 (Tex. App.—Beaumont 2012, pet. ref’d);

Peluso v. State, No. 09-11-00049-CR, 2012 Tex. App. LEXIS 5122, at **4-7 (Tex.

                                        16
App.—Beaumont June 27, 2012, pet. ref’d) (mem. op., not designated for

publication). We need not engage in a Sixth Amendment or Confrontation Clause

analysis in this matter because Appellant did not make any such objections at trial,

nor does he include such in his appellate brief. See Tex. R. App. P. 33.1(a);

Yazdchi, 428 S.W.3d at 844 (failure to make a timely objection at trial waives error

for appeal).

      The only objection raised by Appellant at trial and now on appeal is that he

was entitled to “previous notice[]” if the State intended to present the witness’s

testimony by telephone. Appellant argues on appeal that Article 39.02 authorized

the State to admit a witness’s testimony by deposition, and Article 39.04 of the

Texas Code of Criminal Procedure explains that the taking of depositions shall be

governed by the rules prescribed in civil cases. Appellant contends that the civil

rules require a party to take a deposition of the witness as a prerequisite to the use

of telephonic testimony, and therefore the State was forbidden from utilizing

telephonic testimony in the revocation hearing without first complying with the

deposition requirement contained in the Texas Civil Practice and Remedies Code.

See Tex. Civ. Prac. & Rem. Code § 30.012 (West 2015). Appellant further cites to

Frangias v. State, 450 S.W.3d 125 (Tex. Crim. App. 2013), to support Appellant’s



                                         17
conclusion that the trial court erred in allowing the State to use telephonic

testimony at the hearing.

      Frangias concerned a claim of ineffective assistance of counsel where the

defendant’s trial counsel sought to have an out-of-town witness testify by

telephone and trial counsel had not deposed the witness prior to trial or sought a

continuance to secure the witness’s testimony. See generally id. The Court of

Criminal Appeals explained that, although the witness was “the only witness who

could directly corroborate the [defendant’s] account[,]” defendant’s trial counsel

had not obtained a sworn affidavit from the witness and had not offered any formal

proof that the witness was incapable of travelling to trial. Id. at 137, 138. The

Court further concluded that trial counsel’s own affidavits showed that defense

counsel should have been able to meet the standard for admitting testimony by

deposition or for requesting a continuance. Id. at 140-44. The Court determined

that the intermediate appellate court erred in concluding that trial counsel’s

performance was not deficient and remanded the case for a determination of

prejudice under Strickland. Id. at 144 (citing Strickland v. Washington, 466 U.S.

668 (1984)).

      We find Frangias inapposite. The State’s use of telephonic testimony in the

case at bar was unrelated to a claim of ineffective assistance or to the

                                       18
guilt/innocence determination on which Lawrence’s original conviction was based.

Rather, the telephonic testimony in this case occurred in a revocation proceeding.

We note that the record also includes Lawrence’s sworn and signed Stipulation to

Evidence, wherein he “waive[d] the appearance, confrontation and cross-

examination of witnesses and consent[ed] to the introduction of testimony by oral

stipulations, affidavits, written statements and other documentary evidence[.]”3

Accordingly, by this Stipulation, Appellant waived any challenge to the

appearance of John Martin and also waived any challenge to the toxicology report,

including Appellant’s argument on appeal that the toxicology report was not

properly authenticated.4

      The Judgment states that the trial court granted the State’s motion to revoke

“[a]fter hearing the State’s motion, Defendant’s plea, the evidence submitted, and


      3
         We also note that, in the sworn and signed Stipulation of Evidence,
Appellant “agree[d] and confess[ed] that all the acts and allegations in Paragraphs I
[and] II” of the “State’s Original Motion to Revoke Community Supervision filed
with the District Clerk on or about February 18, 2016,” are “true and correct, and
all of said conduct constituted violations of the conditions of my community
supervision and occurred during the period in which the conditions of my
community supervision were mandatory.” The Stipulation is signed by Appellant
and his trial attorney.
      4
         Despite the presence in the record of a signed Stipulation of Evidence,
during the trial Appellant objected to State’s Exhibit 1, the toxicology report, on
the basis that it had not been properly authenticated. The trial court overruled the
objection.

                                         19
reviewing the record[.]” The Stipulation constituted a judicial admission and

Appellant thereby “waived his right to put the government to its proof” as to the

evidence to which Appellant stipulated. See Bryant v. State, 187 S.W.3d 397, 402

(Tex. Crim. App. 2005).5 Therefore, we conclude that the evidence was sufficient

to establish that Lawrence violated a condition of community supervision and the

trial court did not abuse its discretion in granting the State’s motion to revoke. See

Rickels, 202 S.W.3d at 763-64.

      We overrule Appellant’s second issue.

                             Nonpayment of Restitution

      Appellant contends in his third issue that there was legally and factually

insufficient evidence to support the trial court’s decision to revoke his community

supervision regarding non-payment of restitution because the State failed to prove

that Appellant was able to pay and did not pay, and that the State failed to establish

that Appellant acted intentionally. And, in his fourth issue, Appellant contends that

it is fundamentally unfair and violates his Fourteenth Amendment right to equal

protection to revoke his community supervision because of his inability to pay. We

need not address issues three and four because a single violation of a term of

community supervision is sufficient to support the trial court’s decision to revoke
      5
       Neither Appellant nor the State discuss or reference the Stipulation of
Evidence in appellate briefs.
                                     20
community supervision. See Moore, 605 S.W.2d at 926; Bessard, 464 S.W.3d at

429. We have already concluded herein that the evidence was sufficient to

establish that Appellant violated a condition of his community supervision by

ingesting or consuming alcohol as alleged by the State. We overrule issues three

and four.

       Having overruled all of Appellant’s issues, we affirm the judgment of the

trial court.

       AFFIRMED.


                                                 _________________________
                                                    LEANNE JOHNSON
                                                          Justice


Submitted on October 11, 2016
Opinion Delivered December 7, 2016
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.




                                          21
