                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-18-00257-CR
                                No. 10-18-00258-CR

MICHAEL JOHN ZALOBNY,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 21st District Court
                            Burleson County, Texas
                        Trial Court Nos. 14,511 & 14,512


                          MEMORANDUM OPINION


      Pursuant to a plea agreement with the State, appellant, Michael John Zalobny,

pleaded guilty to the offense of unauthorized use of a vehicle in appellate cause number

10-18-00257-CR.   See TEX. PENAL CODE ANN. § 31.07 (West 2016).        In another plea

agreement with the State in appellate cause number 10-18-00258-CR, appellant pleaded

guilty to the offense of unlawful possession of a controlled substance in an amount less

than one gram. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2017). The trial
court accepted the plea agreements, deferred adjudications of guilt, and placed appellant

on community supervision for a period of four years in both appellate cause numbers.

The sentences were ordered to run concurrently.

        Thereafter, the State filed several motions to adjudicate appellant’s guilt and

revoke appellant’s community supervision, alleging numerous violations.            After a

hearing, the trial court determined that appellant had violated five conditions of his

community supervision in each case. As a result, the trial court adjudicated appellant

guilty of the underlying offenses and revoked appellant’s community supervision in both

appellate cause numbers. The trial court sentenced appellant to two years’ imprisonment

in both cases. Once again, the sentences were ordered to run concurrently.

        In five issues in both appellate cause numbers, appellant challenges the revocation

of his community supervision. We affirm.

                                  I.     STANDARD OF REVIEW

        The decision to proceed to an adjudication of guilt and to revoke deferred-

adjudication community supervision is reviewable in the same manner as a revocation of

ordinary community supervision in which the adjudication of guilt was not deferred. See

TEX. CODE CRIM. PROC. ANN. art. 42A.108(b) (West 2018). We review an order revoking

community supervision under an abuse-of-discretion standard. See Rickels v. State, 202

S.W.3d 759, 763-64 (Tex. Crim. App. 2006). To justify revocation, the State must prove by

a preponderance of the evidence that the defendant violated the terms and conditions of


Zalobny v. State                                                                     Page 2
his community supervision. See Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App.

2013). “In the probation-revocation context, ‘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 probation.’” Id. at 865 (quoting Rickels, 202

S.W.3d at 764). The trial court is the sole judge of credibility of the witnesses and the

weight to be given their testimony; thus, we review the evidence in the light most

favorable to the trial court's ruling. See id. If the State fails to produce a preponderance

of the evidence to support a violation of the terms of appellant's community supervision,

the trial court abuses its discretion if it revokes appellant’s community supervision. See

Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984).

                                             II.   ANALYSIS

        In his third issue in both appellate cause numbers, appellant contends that the

State did not prove allegations 2(a) and 2(b) contained in the State’s Third Amended

Motion to Proceed, which corresponded with allegations that appellant tested positive

for methamphetamines on two different occasions. We disagree.

        In its third amended motion to proceed, the State alleged that appellant:

        2a.        Violated Condition 2 of the terms of his probation which requires
                   that he, “Avoid injurious or vicious habits: including, but not
                   limited to, abstain from the use of narcotics or drugs in any form at
                   any time; abstain from the use of alcohol in any form at any time or
                   any substance capable of or calculated to cause intoxication and
                   never become intoxicated,” in that the said MICHAEL JOHN
                   ZALOBNY, tested positive for methamphetamine on March 30,
                   2016. Furthermore, he signed a written admission on March 30, 2016,
Zalobny v. State                                                                           Page 3
                   indicating he used methamphetamine on or about March 26, 2016,
                   and that he had been using it approximately one time per month.

        2b.        Further, the said MICHAEL JOHN ZALOBNY, tested positive for
                   methamphetamine on May 23, 2017. Furthermore, he signed a
                   written admission on May 24, 2017, indicating he used
                   methamphetamine on or about May 19, 2017 or May 20, 2017.

(Emphasis in original).

        At the hearing on the State’s motion, Jason Walker, a probation officer in Burleson

and Washington counties, testified that appellant tested positive for methamphetamines

on two occasions. In support of Walker’s testimony, the State proffered two documents

signed by appellant on March 30, 2016 and May 24, 2017, whereby appellant admitted to

methamphetamine use on or about March 25, 2016 and May 19, 2017 or May 20, 2017.

Additionally, the March 30, 2016 admission includes documentation that appellant used

methamphetamines approximately one time a month. As shown above, appellant’s

methamphetamine use violated the second condition of appellant’s community

supervision in both appellate cause numbers.

        Despite the foregoing, appellant contends that the State’s use of the term

“Furthermore” in allegations 2(a) and 2(b) required the State to prove both positive tests

and the admissions of violations of community supervision. And the failure to do so

limited the State to revoking his community supervision only on the allegations of which

he had notice. We are not persuaded by appellant’s arguments.




Zalobny v. State                                                                     Page 4
        First, Walker testified about two instances where appellant tested positive for

methamphetamines. Second, the usage of “Furthermore” in the State’s third motion to

proceed did not require the State to prove both a positive test and the admission of a

violation of community supervision. Rather, appellant’s admissions constituted formal

concessions that dispensed with the need for proof of these facts. See Bryant v. State, 187

S.W.3d 397, 400 (Tex. Crim. App. 2005) (noting that a defendant may stipulate to evidence

against him and that a stipulation is a kind of judicial admission that has the effect of

withdrawing a fact from issue and dispensing wholly with the need for proof of that fact).

The use of “Furthermore” did not somehow impose an additional duty on the State to go

behind appellant’s admissions and prove that his admissions were indeed true with drug

tests. See id. Much like we do in judicial opinions, the State used the term “Furthermore”

to show that it had additional evidence demonstrating that appellant had violated the

terms and conditions of his community supervision in both cases.             See MERRIAM

WEBSTER’S COLLEGIATE DICTIONARY 474 (10th ed. 1993) (providing that “furthermore”

means “in addition to what precedes”).

        Furthermore, the State’s allegations in the third amended motion to proceed

correspond with the information contained in the admissions signed by appellant. And

finally, though the dates do not exactly line up, the usage of the “on or about” language

in the State’s motion is sufficient to provide appellant with adequate notice of the alleged

violations of his community supervision and, thus, undermines any argument of surprise


Zalobny v. State                                                                      Page 5
or prejudice. See Williams v. State, 565 S.W.2d 63, 64 (Tex. Crim. App. 1978) (noting that

the State “is not bound by the date on or about which the offense is alleged to have been

committed, and that appellant could have been convicted upon proof that the offense was

committed any time within the period of limitation and prior to the return of the

indictment”). Thus, we cannot say that any variance in the charging instrument and the

proof at trial surprised or prejudiced appellant. See Gollihar v. State, 46 S.W.3d 243, 257

(Tex. Crim. App. 2001) (stating that a variance is fatal only if it operated to the defendant’s

surprise or prejudiced him); see also Hammack v. State, 466 S.W.3d 302, 307 (Tex. App.—

Texarkana 2015, no pet.) (“When reviewing a variance, we must determine whether the

charging instrument, as written, informed the defendant of the charge against him or

sufficiently allowed the defendant to prepare an adequate defense at trial and whether

the prosecution under the deficiently drafted instrument would subject the defendant to

the risk of being prosecuted later for the same crime.”); Moore v. State, 11 S.W.3d 495, 499-

500 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (noting that the fatal-variance

doctrine is applicable to revocation of community supervision).

        Viewing the evidence in the light most favorable to the trial court’s ruling, we

conclude that the record contains sufficient evidence to demonstrate by a preponderance

of the evidence that appellant violated condition 2 of his community supervision by using

methamphetamines on at least two occasions. See Hacker, 389 S.W.3d at 864-65. We

therefore cannot say that the trial court abused its discretion by revoking appellant’s


Zalobny v. State                                                                         Page 6
community supervision. See Rickels, 202 S.W.3d at 763-64. Accordingly, we overrule

appellant’s third issue in appellate cause numbers 10-18-00357-CR and 10-18-00358-CR.

        And because proof of a single violation of the terms of community supervision is

sufficient to support revocation, we need not address the remainder of appellant’s issues.

See Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009) (“We have long held that

‘one sufficient ground for revocation would support the trial court’s order revoking’

community supervision.” (quoting Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App.

[Panel Op.] 1978))); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980) (“We need

not address appellant’s other contentions since one sufficient ground for revocation will

support the court’s order to revoke probation.”); Pierce v. State, 67 S.W.3d 374, 377-78 (Tex.

App.—Waco 2001, pet. ref’d); see also TEX. R. APP. P. 47.1, 47.4.

                                       III.    CONCLUSION

        Based on the foregoing, we affirm the judgments of the trial court in appellate

cause numbers 10-18-00357-CR and 10-18-00358-CR.




                                                  JOHN E. NEILL
                                                  Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed July 31, 2019
Do not publish
[CR25]
Zalobny v. State                                                                        Page 7
