                                        COURT OF APPEALS
                                     EIGHTH DISTRICT OF TEXAS
                                          EL PASO, TEXAS


    REYNALDO ADAMS,                                    '
                                                                          No. 08-10-00346-CR
                                 Appellant,            '
                                                                            Appeal from the
    v.                                                 '
                                                                          120th District Court
    THE STATE OF TEXAS,                                '
                                                                       of El Paso County, Texas
                                                       '
                                 Appellee.
                                                        '                 (TC#20040D01036)



                                                OPINION

         Appellant, Reynaldo Adams appeals from a judgment revoking his community

supervision. We affirm.

                                             BACKGROUND

         On March 17, 2004, pursuant to a plea bargain, Appellant pleaded guilty to the offense of

aggravated robbery. The trial court placed Appellant on seven years’ deferred adjudication

community supervision, and imposed a $500 fine, of which $200 was probated.1 In May 2007,

the State filed a motion to adjudicate guilt. In June 2007, the trial court modified the terms and

conditions of Appellant’s community supervision and extended his probation by an additional

three years. Subsequently, the State again filed a motion to adjudicate alleging in part that

Appellant violated the conditions of his community supervision by committing the offense of

unlawful possession of a controlled substance, cocaine in an amount less than a gram.

         The same trial judge who presided over Appellant’s jury trial for the possession case also


1
  This sentence was to run concurrently with cause number 20030D05596 in which Appellant entered a guilty plea to
the offense of retaliation.
heard the State’s amended motion to adjudicate. As support for the allegations in its amended

motion to adjudicate, the State offered testimony from Appellant’s probation officer, who testified

that Appellant was arrested for possession of cocaine under one gram on March 19, 2010. The

probation officer also testified that Appellant had failed to pay the $60 monthly supervision fee for

August 2010, and had only paid $20 towards his $500 fine, and $30.60 towards his court costs.

Both Appellant’s arrest on March 19, 2010 and his failure to pay the required supervision fees

violated the terms of his community supervision.

           At the State’s request, the trial court took judicial notice of the judgment entered against

Appellant in cause number 20100D01531. The State explained that Appellant was found guilty

by a jury for possession of a controlled substance, was sentenced to eighteen months state jail for

that offense, and was assessed a $5,000 fine. At Appellant’s request, the trial court noted that

Appellant’s conviction was on appeal. The trial court expressly stated that “having heard the

evidence in that case” and having heard all the evidence on revocation, Appellant was “[not] a

good candidate for probation.” At the close of evidence, the court made an affirmative finding

that Appellant committed the offense of unlawful possession of a controlled substance in violation

of condition “a” of the terms and conditions of his community supervision.2

           During the punishment stage of trial, Appellant testified that he had been found guilty of

possession of cocaine under one gram, but denied possession. Some of the testimony surrounding

the facts of Appellant’s possession case were presented to the trial court at the revocation hearing.

Appellant admitted during the revocation hearing that he was delinquent in his probation fees in

the amount of $3,000 and agreed that he had only paid $30.60 toward his court costs.

           The trial court revoked Appellant’s community supervision, entered an adjudication of

2
    Condition “a” provided in part that Appellant commit no offense against the laws of this state.

                                                            2
guilt, and imposed a seven-year sentence. This appeal followed.

                                              DISCUSSION

                                Revocation of Community Supervision

        In a single issue on appeal, Appellant argues that the trial court abused its discretion when

it revoked his community supervision because the evidence is insufficient to prove that he

committed the offense of possession of a controlled substance.

                                            Standard of Review

        We review a 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 State must show

the alleged violations of the trial court’s order by a preponderance of the evidence. Cobb v. State,

851 S.W.2d 871, 873 (Tex. Crim. App. 1993). There is a preponderance of the evidence if the

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

condition of his community supervision. Rickels, 202 S.W.3d at 763-64. On appeal, we view

evidence presented at the revocation hearing in a light most favorable to the trial court’s ruling.

Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981); Martinez v. State, 130

S.W.3d 95, 97 (Tex. App. – El Paso 2003, no pet.). When more than one violation of the

conditions of community supervision is found by the trial court, the revocation order must be

affirmed if a single ground supports the trial court’s order. Moore v. State, 605 S.W.2d 924, 926

(Tex. Crim. App. 1980).

        Citing to Barrientez v. State, Appellant contends that his conviction for possession of

cocaine under one gram is on appeal and therefore, cannot be the basis of the revocation. 3 500


3
  Appellant appealed from his possession conviction in appellate court cause No. 08-10-00235-CR. On this same
day, we issued an opinion affirming the conviction.

                                                      3
S.W.2d 474 (Tex. Crim. App. 1973). However, in Barrientez, the Court of Criminal Appeals held

that when the language of the motion and the order is to the effect that the accused committed the

offense, the basis for the revocation of probation is not the conviction, but the commission of the

offense. Id. at 475.

        Here, the State’s amended motion to adjudicate alleged Appellant “did then and there,

unlawfully, commit the offense of [u]nlawful [p]ossession of [c]ontrolled [s]ubstance PG 1 < 1G,

in violation of condition ‘a.’ of the terms and conditions of his community supervision.”

Furthermore, the adjudication order states that Appellant “violated the terms and conditions of

community supervision as set out in the State’s original motion to adjudicate . . . .” Therefore, the

record shows that the State sought to allege and prove that Appellant committed the offense, not

that he had been convicted of the offense. See Barrientez, 500 S.W.2d at 475.

        Appellant also argues the State failed to introduce any evidence other than the judgment

and the testimony of Appellant’s probation officer to prove that Appellant committed the offense

of possession of a controlled substance and as such the evidence was insufficient to allow the

revocation of his probation. Although the State asked the trial court to take judicial notice of the

judgment, the trial court inferentially announced that it took notice of the evidence presented

during Appellant’s possession trial. See Akbar v. State, 190 S.W.3d 119, 123 (Tex. App. –

Houston [1st Dist.] 2005, no pet.) (when the same trial court presides over both the revocation

hearing and the trial of the underlying offense that is the basis for the State’s motion, the trial court

can take judicial notice of the evidence adduced at the trial); Kubosh v. State, 241 S.W.3d 60,

66-67 (Tex. Crim. App. 2007) (judicial notice by the trial court can be inferred from its actions);

see also Lighteard v. State, No. 04-09-00021-CR, 2010 WL 1997723, at *2 (Tex. App. – San

Antonio May 19, 2010, no pet.) (holding that even where State asked for judicial notice of

                                                   4
conviction, the trial court inferred it was taking notice of the evidence and not the conviction where

it found “sufficient evidence to support and grant the State’s motion”).

       Here, it is apparent that the trial court inferentially took judicial notice of the evidence

adduced at the possession trial, as opposed to the judgment in the case. The trial court reminded

Appellant that she tried his possession case, and stated that “having heard the evidence in that case

and having considered all of the evidence that I’ve heard here this afternoon, I do not believe that

Mr. Adams is a good candidate for probation . . . [a]nd so, based on all of the evidence that I have

heard . . . I am making a finding that [the allegations] are true.” See Akbar, 190 S.W.3d at 123;

Kubosh, 241 S.W.3d at 66-67; Lighteard, 2010 WL 1997723, at *2. Because the State sought to

prove the commission of the offense of possession and not just the conviction and because the trial

court took judicial notice of the evidence and not the judgment in the possession case over which

she presided, we conclude the trial court did not err in finding that Appellant had committed the

offense of possession of a controlled substance and in revoking Appellant’s community

supervision. See Akbar, 190 S.W.3d at 123; Kubosh, 241 S.W.3d at 66-67; Lighteard, 2010 WL

1997723, at *2. Barrientez, 500 S.W.2d at 475.

       Even assuming the trial court only took judicial notice of the judgment and not the

evidence in Appellant’s possession trial, we find no abuse of discretion on the part of the trial

court. The record shows not only that Appellant’s probation officer testified that Appellant

violated the terms and conditions of his probation by failing to pay the supervision fee in August

2010, but that Appellant agreed in court that he was delinquent in paying his probation fees in an

amount of $3,000. The trial court made a finding of true that Appellant failed to pay his $60

supervision fee in violation of “I-1A” of the terms and conditions of his community supervision.

Thus, in addition to the evidence judicially noticed by the trial court there was other evidence

                                                  5
establishing Appellant violated the terms and conditions of his community supervision by failing

to pay various fees associated with his community supervision. Proof of Appellant’s failure to

pay his supervision fee in August 2010 supports the trial court’s revocation of Appellant’s

community supervision. Moore, 605 S.W.2d at 926. Finding no abuse of discretion in the

revocation of Appellant’s community supervision, we overrule Appellant’s sole issue.4

                                               CONCLUSION

        The trial court’s judgment is affirmed.



                                                    GUADALUPE RIVERA, Justice
July 25, 2012

Before McClure, C.J., Rivera, J., and Antcliff, J.

(Do Not Publish)




4
  The State maintains that Appellant waived his insufficiency argument under the residual holding of DeGarmo v.
State, 691 S.W.2d 657, 660-61 (Tex. Crim. App.), cert. denied, 474 U.S. 973, 106 S.Ct. 337, 88 L.Ed.2d 322 (1985).
However, because we find the evidence to be sufficient, we need not address the State’s contention.

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