                             Fourth Court of Appeals
                                    San Antonio, Texas
                               MEMORANDUM OPINION

                                       No. 04-17-00694-CR

                                   Richard Allen WEISBERG,
                                            Appellant

                                                v.

                                      The STATE of Texas,
                                            Appellee

                    From the 227th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2013CR11696
                         Honorable Kevin M. O'Connell, Judge Presiding

Opinion by:      Marialyn Barnard, Justice

Sitting:         Sandee Bryan Marion, Chief Justice
                 Marialyn Barnard, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: December 5, 2018

AFFIRMED

           Richard Allen Weisberg appeals the trial court’s judgment revoking his community

supervision. In his brief, Weisberg asserts the trial court abused its discretion in revoking his

community supervision because: (1) the State did not establish he had the financial means to pay

over $200,000 in supervisory fees, court costs, and restitution, and revoking his community

supervision on this basis unconstitutionally created a “debtor’s prison;” and (2) the evidence

established he drove a vehicle without ignition interlock due to necessity. We affirm the trial

court’s judgment.
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                                                   BACKGROUND

           On June 22, 2015, Weisberg pled no contest to the offense of intoxication assault and was

sentenced to ten years’ imprisonment, a fine of $1,500, and ordered to pay $152,834.55 in

restitution. 1 His sentence was suspended, however, and he was placed on ten years’ community

supervision.

           Beginning in October of 2015, the State filed a series of motions to revoke Weisberg’s

community supervision. The State withdrew several of the motions oftentimes after orders were

entered amending the conditions of Weisberg’s community supervision.

           On April 4, 2017, the State filed its fourth motion to revoke. After a hearing, the trial court

found Weisberg violated five conditions of his probation, revoked his community supervision, and

sentenced him to ten years’ imprisonment. Weisberg appeals.

                                STANDARD OF REVIEW AND APPLICABLE LAW

           We review a trial court’s judgment revoking community supervision under an abuse of

discretion standard. Leonard v. State, 385 S.W.3d 570, 576 (Tex. Crim. App. 2012); Reasor v.

State, 281 S.W.3d 129, 131 (Tex. App.—San Antonio 2008, pet. ref’d). “In a revocation

proceeding, the trial court has discretion to revoke community supervision when a preponderance

of the evidence supports one of the State’s allegations that the defendant violated a condition of

his community supervision.” Leonard, 385 S.W.3d at 576. “The State meets its burden when the

greater weight of the credible evidence creates a reasonable belief that the defendant violated a

condition of his community supervision.” Reasor, 281 S.W.3d at 132. And, “[w]e indulge all

reasonable inferences in a light favorable to the trial court’s ruling.” Id. at 131.




1
    The amount of restitution was based on the complainant’s medical bills.

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                                           DISCUSSION

       One of the violations the trial court found to be true was Weisberg’s operation of a vehicle

without an ignition interlock. In his second issue, Weisberg contends the trial court abused its

discretion in revoking his community supervision “based on the driving of a vehicle without an

interlock due to necessity.” Acknowledging that he had the burden to prove the affirmative defense

of necessity, Weisberg argues the necessity was to return a cable to an interlock device. Weisberg

explains he “had returned the in home device, forgot the cable that went with it, and used his

father’s car to return the cable. If he did not, he would have been charged a lot of money.”

Therefore, Weisberg asserts, “Here, the necessity was to prevent owing more money when he was

already behind.”

       In order to establish the affirmative defense of necessity, one of the elements Weisberg was

required to prove was that he reasonably believed his conduct was “immediately necessary to avoid

imminent harm.” TEX. PENAL CODE ANN. § 9.22. “‘Reasonable belief’ means a belief that would

be held by an ordinary and prudent person in the same circumstances as the defendant.” Stefanoff

v. State, 78 S.W.3d 496, 501 (Tex. App.—Austin 2002, pet. ref’d). “‘Imminent’ has been defined

as ready to take place, near at hand, impending, hanging threateningly over one’s head, menacingly

near.” Henley v. State, 493 S.W.3d 77, 89 (Tex. Crim. App. 2016) (internal quotation omitted).

“Thus, imminent harm is harm that is ready to take place—harm that is coming in the very near

future.” Id. Stated differently, “[h]arm is imminent when there is an emergency situation and it

is ‘immediately necessary’ to avoid that harm.” Pennington v. State, 54 S.W.3d 852, 857 (Tex.

App.—Fort Worth 2001, pet. ref’d). “In other words, a split-second decision is required without

time to consider the law.” Id. “The justification defense of necessity applies when action is needed

‘immediately’ (i.e., now) to avoid ‘imminent’ harm (i.e., harm that is near at hand).” Henley, 493

S.W.3d at 89.
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        Weisberg’s probation officer testified Weisberg was required to have ignition interlock on

his vehicle as a condition of probation and was not allowed to drive a vehicle that was not equipped

with ignition interlock. Agustin Yado, the owner of a company that leases ignition interlock

devices, testified Weisberg drove to his place of business on February 9, 2017, to talk about his

account. Yado saw Weisberg driving a vehicle that did not have ignition interlock. When Yado

asked Weisberg about driving the vehicle, Weisberg apologized, said it was his parent’s vehicle,

he lived close by, and asked Yado not to inform his monitoring authority. In response, Yado

explained he was required to notify the authorities. With regard to the missing cable, Yado testified

Weisberg had returned the in-home device, and his company “had billed him for that component

that was missing and then later on he was bringing that in for credit.” 2 Weisberg’s father testified

Weisberg drove his car only one time because “he had to take a part or the machine to that place

and his car or his truck was out of gas or something to that affect [sic].”

        Indulging all reasonable inferences in a light favorable to the trial court’s ruling, we hold

the greater weight of the credible evidence creates a reasonable belief that Weisberg violated a

condition of his community supervision by driving a vehicle without ignition interlock. Yado’s

testimony established Weisberg had already been billed for the missing component and returning

the missing component did not involve an emergency situation. Furthermore, the trial court could

have reasonably inferred from Weisberg’s response to Yado’s question that his decision to drive

the vehicle was not a split-second decision that was immediately necessary to avoid imminent

harm. Therefore, we overrule Weisberg’s second issue, and because proof of a single probation




2
  In his brief, Weisberg refers to the cable as “expensive” and states he would be charged “a large sum of money” if
he did not return the cable; however, the evidence does not establish the amount Weisberg was billed or whether he
was being charged on a daily basis for failing to return the cable. The evidence only established Weisberg would
receive a credit against the amount previously billed when the cable was returned.

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                                                                                  04-17-00694-CR


violation is sufficient to support a revocation, we need not address Weisberg’s remaining issues.

See Ex parte Lea, 505 S.W.3d 913, 915 (Tex. Crim. App. 2016); Reasor, 281 S.W.3d at 134.

                                         CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Marialyn Barnard, Justice

DO NOT PUBLISH




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