

                                                           COURT OF
APPEALS
                                                   EIGHTH DISTRICT OF
TEXAS
                                                              EL
PASO, TEXAS
 



 
 
LAFONDA GRAY,
 
                                   
  Appellant,
 
v.
 
THE STATE OF TEXAS,
 
                                    Appellee.
  
 


 
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                  No. 08-11-00001-CR
 
                         Appeal from
 
120th District
  Court
 
of EL Paso County,
  Texas
 
(TC # 20050D05755)




 
 


 
 


 
 



                                                                  O
P I N I O N
 
Lafonda Gray appeals his conviction of possession of more than one gram
but less than four grams of cocaine.  We affirm.
FACTUAL SUMMARY
            In 2005, a grand jury indicted Appellant
for possession of more than one gram but less than four grams of cocaine.  Appellant later waived his right to a jury
trial and entered a negotiated plea of guilty. 
The trial court found the evidence sufficient to substantiate
Appellant’s guilt but deferred finding him guilty and placed him on deferred
adjudication community supervision for ten years.  The State filed a motion to adjudicate
alleging that Appellant had on April 16, 2010 committed the offenses of
possession of marihuana and cocaine in violation of the terms and conditions of
probation.  In 2010, a grand jury
indicted Appellant for possession of less than one gram of cocaine (cause
number 20100D01838).  A jury found
Appellant guilty as charged in the indictment in cause number 20100D01838.  During the punishment phase of that case, the
trial court also heard the motion to adjudicate.  The court found that Appellant violated the
terms and conditions of probation as alleged in the motion to adjudicate and sentenced
him to serve a four year term of imprisonment. 

REVOCATION OF COMMUNITY SUPERVISION
            In his sole issue, Appellant argues
that the trial court’s judgment adjudicating guilt should be reversed because
he was acquitted of the possession of marihuana charge (cause number
20100C04142).  
The Standard of Review
We
review the trial court’s decision to revoke community supervision for an abuse
of discretion.  Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006).  The trial court does not abuse its discretion
if the order revoking community supervision is supported by a preponderance of
the evidence; in other words, the greater weight of the credible evidence would
create a reasonable belief that the defendant has violated a condition of his
probation.  Rickels, 202 S.W.3d at 763-64.  In conducting our review, we view the evidence
in the light most favorable to the trial court’s ruling.  Cardona
v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984).  We also defer to the trial court’s resolution
of disputed facts and to any reasonable inferences which can be drawn from
those facts.  Cantu v. State, 253 S.W.3d 273, 282 (Tex.Crim.App. 2008).  If a single ground for revocation is supported
by a preponderance of the evidence and is otherwise valid, then an abuse of
discretion is not shown.  Sanchez v. State, 603 S.W.2d 869, 871
(Tex.Crim.App. 1980); Gordon v. State,
4 S.W.3d 32, 35 (Tex.App.--El Paso 1999, no pet.).


 
Analysis
            The State first responds that the
record does not support Appellant’s claim that he was acquitted of the
marihuana charge.  In his reply brief,
Appellant alleges that the possession of marihuana charge was dismissed on June
3, 2011 because he had been convicted in in cause number 20100D01838.  Appellant’s brief does not contain any record
references where it is shown that the possession of marihuana charge was
dismissed.  See Tex.R.App.P. 38.1(g),
(i).  Since that case was allegedly
dismissed approximately eight months after the revocation hearing and six
months after the clerk’s record was filed in this case, Appellant’s argument is
necessarily based on facts outside of the appellate record.  Generally, an appellate court cannot review contentions
which depend upon factual assertions outside of the record.  Janecka
v. State, 937 S.W.2d 456, 476 (Tex.Crim.App. 1996).  In criminal cases, assertions of fact in an
appellate brief unsupported by the record cannot be accepted as fact.  Davila
v. State, 651 S.W.2d 797, 799 (Tex.Crim.App. 1983); see Tex.R.App.P.
38.1(g)(“In a civil case, the court will accept as true the facts stated unless
another party contradicts them.”).  Given
that the appellate record does not support Appellant’s factual assertions
regarding the dismissal of the possession of marihuana charge (cause number
20100C04142), we will not address the argument raised on appeal.  
            The State also asserts that Appellant
stipulated to the factual predicate for each of the four revocation
grounds.  At the revocation hearing, the State
introduced into evidence two written stipulations signed by Appellant and his
attorney.  The first  stipulation established Appellant’s identity
and the terms and conditions of probation alleged to have been violated.  The second stipulation reflected that
Appellant, on April 16, 2010, committed the offenses of possession of less than
two ounces of marihuana and possession of less than one gram of cocaine.  A stipulation is a judicial admission which
removes the need for proof of the stipulated facts.  Bryant
v. State, 187 S.W.3d 397, 400-02 (Tex.Crim.App. 2005).  By entering into these stipulations, Bryant
waived his right to put the State to the proof required by its motion to
adjudicate and he is precluded from complaining on appeal that the State failed
to prove any of the grounds for adjudication. 
See Bryant, 187 S.W.3d at
400-02 (by stipulating to two prior convictions for driving while intoxicated
(DWI), defendant waived any right to contest the absence of proof on stipulated
element in prosecution for felony DWI; he could not argue that the State failed
to prove its case on an element to which he had stipulated).  Because Appellant stipulated that he violated
the terms and conditions of community supervision, the trial court did not
abuse its discretion by revoking community supervision and adjudicating
Appellant’s guilt.  We overrule the sole
issue presented on appeal and affirm the judgment of the trial court. 
 
 
July 25, 2012                                       ________________________________________________
ANN CRAWFORD
McCLURE, Chief Justice
 
 
Before McClure, C.J., Rivera, and Antcliff, JJ.
(Antcliff, J., not participating)
 
(Do Not Publish)

