                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-290-CR


JERIMIAH DAVID CHAVANA                                             APPELLANT

                                              V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                   I. INTRODUCTION

      Appellant Jerimiah David Chavana appeals following the adjudication of

his guilt for burglary of a building. In a single point, Chavana argues that the

trial court abused its discretion by adjudicating him guilty of the offense of

burglary of a building because the evidence was insufficient to support the




      1
          … See T EX. R. A PP. P. 47.4.
allegations contained in the State’s motion to proceed to adjudication. We will

affirm.

                           II. P ROCEDURAL B ACKGROUND

      Chavana pleaded guilty to the offense of burglary of a building on

February 27, 2007, and the trial court placed him on deferred adjudication

community supervision for a period of four years.         In accordance with the

conditions of his community supervision, Chavana was required, among other

things, to “[c]ommit no offense against the laws of this State . . . .”; to “[a]void

injurious or vicious habits and abstain from the illegal use of controlled

substances, marijuana, cannabinoids, or the excessive consumption of any

alcoholic beverage”; to “[s]ubmit to an assessment for substance abuse”; to

“successfully complete treatment”; and to “[s]ubmit non-diluted urine for

testing for controlled substances and cannabinoids at the direction of the

supervision officer . . . .” Chavana was required to report no less than monthly

to his supervision officer.

      In June 2007, police arrested Chavana for the offense of murder. The

State thereafter moved to adjudicate Chavana’s guilt on the burglary of a

building offense, alleging that Chavana had violated the terms and conditions

of his deferred adjudication community supervision by (1) committing a new

offense, namely murder; (2) using a controlled substance, namely marijuana; (3)

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failing to submit to an assessment for substance abuse on or about April 30,

2007; (4) failing to submit urine samples on May 23, 2007 and June 1, 2007;

and (5) knowingly possessing a firearm away from his residence.

      At the hearing on the State’s motion to proceed to adjudication, the State

moved forward on only violations two, three, and four. After hearing testimony

from Chavana’s probation officer and reviewing the evidence admitted during

the hearing on the State’s motion to proceed to adjudication, the trial court

stated as follows:

             Mr. Chavana, the Court having received your pleas of not
      true to Paragraphs Two, Three, and 4A as to Paragraph Two, will
      find the allegation to be true, specifically noting that State’s Exhibit
      No. 7 contains a provision that the marijuana use was while on
      probation. Finds Paragraph Two to be true. Paragraph Three, the
      Court will note that State’s Exhibit No. 3 specifically states that
      Defendant did not show up for his assessment and it was not
      merely rescheduled. Find Paragraph Three to be true. As to
      Paragraph Four, the Court will find Subparagraph 4A to be true.

The trial court adjudicated Chavana’s guilt and sentenced him to nine months’

confinement. This appeal followed.

                III. A DJUDICATION OF G UILT S UPPORTED B Y R ECORD

      In his sole point, Chavana contends that the trial court abused its

discretion by adjudicating him guilty of the offense of burglary of a building.

Specifically, Chavana argues that there was insufficient evidence to support the

allegations contained in the State’s motion to proceed to adjudication.

                                         3
      Appellate review of the decision to adjudicate guilt is “in the same

manner” as review of the revocation of community supervision. T EX . C ODE

C RIM. P ROC. A NN. art. 42.12, § 5(b) (Vernon Supp. 2007). 2 Appellate review of

a community supervision revocation is limited to determining whether the trial

court abused its discretion, and we examine the evidence in the light most

favorable to the trial court’s findings. 3 See Cardona v. State, 665 S.W.2d 492,

493–94 (Tex. Crim. App. 1984). The State must prove by a preponderance of

the evidence that appellant violated the conditions of his probation. Cobb v.

State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). The trial judge is the

sole trier of facts and determines the credibility of the witnesses and the weight

to be given to the testimony in a revocation proceeding. See Lee v. State, 952

S.W.2d 894, 897 (Tex. App.—Dallas 1997, no pet.).



      2
        … Effective June 15, 2007, the legislature amended article 42.12,
section 5(b) of the code of criminal procedure to omit the provision that no
appeal may be taken from a trial court’s determination of adjudicating guilt and
to provide that an appellate court can review a trial court’s revocation of
deferred adjudication in the same manner as it reviews revocations in which the
trial court had not deferred an adjudication of guilt. See Act of May 28, 2007,
80th Leg., R.S., ch. 1308, § 5, 2007 Tex. Gen. Laws 4395, 4397 (codified at
T EX. C ODE C RIM. P ROC. A NN. art. 42.12, § 5(b) (Vernon Supp. 2007)).
      3
       … Because the decision to adjudicate guilt is reviewed in the same
manner as the revocation of regular probation, we utilize the same case law in
conducting our review. Wood v. State, No. 05-07-00830-CR, 2008 WL
921497, at *1 n.2 (Tex. App.—Dallas Apr. 7, 2008, no pet.) (not designated
for publication).

                                        4
      In its motion to proceed with adjudication, the State alleged, among other

things, that Chavana violated the terms of his deferred adjudication community

supervision by illegally using marijuana on or about April 9, 2007. During the

hearing on the motion, the State admitted into evidence a “Use of Illegal

Controlled Substance Statement” that states as follows:

      I, Jerimiah Chavana, ACKNOWLEDGE THAT I AM THE PERSON
      ORDERED TO BE SUPERVISED BY THE COMMUNITY
      SUPERVISION & CORRECTIONS DEPARTMENT.
      _____________________________________________________________
                              – STEP ONE –

      A.  ADMISSION        OF   USE   OF   AN    ILLEGAL    CONTROLLED
      SUBSTANCE

      I voluntarily admit that since being ordered to report to community
      supervision (if this is my first report) and/or since the last time I
      reported to my supervision officer, I used the following illegal
      controlled substance(s):

            1.    Name of illegal Controlled Substance:       Marijuana
                  Date(s) or approximate date(s) of use:

The form was signed and dated by Chavana and his supervision officer. Step

Two of the form, a denial of use of an illegal controlled substance, was blank.

      Chavana argues that, because the date-of-use blank on his admission

form was not filled in, the State could not prove by a preponderance of the

evidence that he had used marijuana on April 9, 2007. The State, however,

alleged that Chavana “illegally used a controlled substance, marijuana, or


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cannabinoids, or excessively consumed alcoholic beverages on or about the

dates shown below.” The date shown after that was April 9, 2007—the same

date shown at the top of Chavana’s admission form. Consequently, Chavana’s

admission that he had used marijuana while on probation, since the last time he

reported to his supervision officer, and prior to the date of the admission

form—April 9, 2007—coupled with the requirement that he report no less than

monthly, along with the reasonable inferences from these basic facts,

adequately establishes by a preponderance of the evidence that such marijuana

use occurred on or about April 9, 2007. See Rickels v. State, 202 S.W.3d

759, 764 (Tex. Crim. App. 2006) (recognizing in probation revocation hearing

the trial court could infer ultimate facts from basic, proven facts).

      Chavana also argues that a single drug use is not a violation of condition

two of his community supervision that requires him to avoid “injurious or

vicious habits.” Condition two, however, provides, that Chavana is to “[a]void

injurious or vicious habits and abstain from the illegal use of controlled

substances, marijuana, cannabinoids, or the excessive consumption of any

alcoholic beverage.” [Emphasis added.] The State did not allege a violation of

the first part of condition two relating to injurious or vicious habits but instead

alleged, as set forth above, that Chavana had violated the second portion of

condition two by illegally using marijuana during his probationary period. The

                                        6
evidence referenced above established by a preponderance of the evidence that

Chavana illegally used a controlled substance, namely marijuana, on or about

April 9, 2007. See Herrera v. State, No. 04-97-00102-CR, 1997 WL 716569,

at *1 (Tex. App.—San Antonio Nov. 19, 1997, no pet.) (not designated for

publication) (holding that although a single use of an illegal drug may not be

enough to constitute a “habit” for the purposes of a probation violation, a single

use of cocaine was enough to support a finding that appellant violated condition

2 of his probation by using cocaine).

      We therefore hold that the trial court did not abuse its discretion by

finding that Chavana violated the terms and conditions of his deferred

adjudication community supervision and by proceeding with an adjudication of

Chavana’s guilt. See, e.g., Herrera, 1997 WL 716569, at *1; Wood, 2008 WL

921497, at *1 (holding that trial court did not abuse its discretion by revoking

probation after State proved that police found marijuana in backpack that

appellant was carrying).    Because one sufficient ground for revocation will

support the trial court’s order revoking probation, we need not address the

remaining violations. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim.

App. [Panel Op.] 1980); see also T EX. R. A PP. P. 47.1. We therefore overrule

Chavana’s sole point.




                                        7
                             IV. C ONCLUSION

      Having overruled Chavana’s sole point, we affirm the trial court’s

judgment.




                                               SUE WALKER
                                               JUSTICE

PANEL A:     CAYCE, C.J.; GARDNER and WALKER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: June 26, 2008




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