      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-02-00045-CR
                                        NO. 03-02-00046-CR



                                     Arnold Lamotte, Appellant

                                                   v.

                                    The State of Texas, Appellee




        FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
           NOS. 000404 & 950383, HONORABLE BOB PERKINS, JUDGE PRESIDING




                                MEMORANDUM OPINION


                Arnold Lamotte appeals from the revocation of his community supervision probation in two

different causes. He contends that the State failed to show that he was in fact the person who was placed

on probation and that the evidence was insufficient to support the revocation of his probation. We will

affirm the revocation orders.


                                          BACKGROUND
                 On February 24, 1997, appellant pled guilty in trial court cause number 950383 to theft by

check and was placed on deferred adjudication probation. On November 9, 2000, the court revoked that

probation, adjudicated appellant guilty, sentenced him to eight years in prison, but suspended incarceration

and placed him on standard community service probation. On March 30, 2001, the State moved to revoke

the probation, alleging that appellant failed to report to his probation officer after being released from jail.

                 On November 6, 2000, appellant pled guilty in trial court cause number 000404 to causing

bodily injury to a family member, enhanced by a prior conviction for assault with family violence. The court

imposed sentence of five years in prison, but suspended incarceration and placed him on probation. On

April 2, 2001, the State moved to revoke the probation, alleging that appellant failed to report to his

probation officer, failed to pay restitution, and failed to pay attorney=s fees. Appellant pled not true to the

allegations in both cases.

                 The court held several hearings on these cases. Appellant=s probation officer testified that

she never met appellant because she did not attend the hearings at which probation was imposed and he

never came to her office, responded to her inquiries, or otherwise communicated with her. Jorge Sanchez,

an attorney, identified appellant as the man he represented in 2000 when the standard probation was

imposed in both cases; Sanchez testified that he did not represent appellant when the court deferred

adjudication in February 1997. Sanchez testified that, although he went over the terms of probation with

appellant, he did not personally give appellant a copy of the document entitled AConditions of Community

Supervision@ (the Aterms document@). Sanchez also said that he saw appellant sign documents related to

probation, but did not see what name he signed. Travis County Deputy Sheriff David Hughes testified that

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he took fingerprints from appellant shortly before the revocation hearing.1 Hughes testified that the thumb

print he had just taken matched a thumb print on the terms document in cause number 000404. The thumb

print on the terms document appears directly below a signature and a statement acknowledging receipt of a

copy of the terms document; appellant notes that the signature on the line between the acknowledgment and

the thumb print is ACapt. Ryan Lamotte@ and not Arnold Lamotte. The signature on the terms document in

cause number 95-0383 is also ACapt. Ryan Lamotte,@ but the fingerprint space on the signed page is blank.

There is a fingerprint on pages attached to the judgment in cause number 95-0383, but Hughes testified that

he could not determine whether those prints matched any of the prints taken before the final revocation

hearing because the prints with the judgment were partial fingerprints from an unknown part of an unknown

finger. Hughes did not affirmatively testify that the prints failed to match, but could not determine whether

they matched.

                 Appellant introduced an affidavit and testimony from Eduardo Perez. In the affidavit, Perez

asserts that appellant has a twin brother named Captain Ryan Lamotte who was Perez=s neighbor and was

in the Austin area in 1999-2000. Perez avers that the State is improperly charging appellant for his

brother=s wrongdoing. Perez said that Lamotte prepared the statement for him while they were both in

county jail. Perez said he signed the statement without reading it. He testified that his neighbor looked like

appellant, although appellant is taller.


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           Hughes testified that appellant resisted the attempt to take his finger prints by clenching his fists,
pulling his hands away, and trying to smudge the prints taken.




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                The Court found the State=s allegations true, revoked appellant=s probation terms, and

assessed the sentences originally imposed.

                                              DISCUSSION

                Appellant concedes that he did not comply with the terms of probation in either case. He

contends, however, that the State did not prove he was the person placed on probation in either case. He

also argues that he did not receive notice of the terms of probation on the theft conviction.

                In a revocation hearing, the State must prove by a preponderance of the evidence the

identity of the probationer and that the probationer violated the terms of his probation. Moreno v. State,

22 S.W.3d 482, 488 (Tex. Crim. App. 1999); Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App.

1993); Willis v. State, 2 S.W.3d 397, 399 (Tex. App.CAustin 1999, no pet.). The State=s burden of

proof is satisfied if the greater weight of credible evidence creates a reasonable belief that the defendant

violated a condition of his probation as alleged by the State. Scamardo v. State, 517 S.W.2d 293, 297-

98 (Tex. Crim. App. 1974); Ortega v. State, 860 S.W.2d 561, 564 (Tex. App.CAustin 1993, no pet.).

A trial court=s decision to revoke probation is reviewed for an abuse of discretion. Cardona v. State, 665

S.W.2d 492, 493 (Tex. Crim. App. 1984); Willis, 2 S.W.3d at 398-99; Ortega, 860 S.W.2d at 564. A

trial court abuses its discretion if the decision is so clearly wrong as to lie outside the zone within which

reasonable persons might disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992);

Willis, 2 S.W.3d at 399. We view the evidence presented in a revocation proceeding in the light most

favorable to the trial court=s ruling. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981);

Willis, 2 S.W.3d at 399; Ortega, 860 S.W.2d at 564. As the trier of fact, it is left to the trial court to


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judge the credibility of witnesses and the weight to be given their testimony. Garrett, 619 S.W.2d at 174;

Ortega, 860 S.W.2d at 564.


Assault with family violence, appellate cause 03-02-00045-CR, district cause 000404

                Appellant contends in this cause that the State failed to give him a copy of the conditions

and terms of his probation. He also contends that the evidence was insufficient to support the decision to

revoke his probation. His arguments center on his contention that he was not the person placed on

probation.

                Appellant did not preserve his complaint that he did not receive a copy of the terms

document because he did not raise this complaint at the revocation hearings. See Bush v. State, 506

S.W.2d 603, 605 n.1 (Tex. Crim. App. 1974). Although appellant contends that he was not at the

hearings, and so by implication could not have raised the error, as discussed next, the evidence supports the

conclusion that he attended the hearings.

                Even if the complaint were preserved, the evidence supports a finding that he received a

copy of the terms document. Fingerprint evidence supports the conclusion that appellant received a copy.

Hughes testified that the thumb print he took from appellant just before the revocation hearing matched a

thumb print on the document outlining the probation terms. The print on the terms document appears

directly below an acknowledgment of receipt of a copy of the terms document. Although the signature on

the line between the acknowledgment and the thumb print is ACapt. Ryan Lamotte@ and not Arnold

Lamotte, the match of the thumb prints overcomes any discrepancy in the name on the signature line. The

evidence thus supports the conclusion that he received a copy of the terms document.

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                The same evidence also supports the conclusion that appellant is the person placed on

probation. That conclusion is further supported by Sanchez=s testimony that he recognized appellant as the

man he represented for several months and met several times. This testimony, plus the fingerprint evidence,

overcomes Perez=s testimony that the wrong twin brother was being imprisoned.

                The evidence that appellant never appeared at the probation office is undisputed.

                We conclude that the evidence supports the conclusions that appellant was the man placed

on probation, that he received a copy of the terms and conditions of his probation, and that he violated

those terms and conditions by failing to report to his probation officer.


Theft by check offense, appellate cause 03-02-00046-CR, trial cause 950383

                Appellant contends in this cause that he was not the person placed on probation. He also

contends that the district court erred by requiring the State to prove his identity by only a preponderance of

the evidence rather than requiring proof beyond a reasonable doubt.

                We begin by considering the correct standard of proof. Appellant argues that due process

requires that, when a person challenges whether he is the person placed on probation, he not be deprived of

his freedom without proof beyond a reasonable doubtCthe standard of proof for a conviction. Revocation

of standard probation, however, is not a conviction. See Moreno, 22 S.W.3d at 488. Instead, it is the

removal of the suspension of a sentence imposed after a convictionCa suspension contingent on a

defendant=s compliance with certain conditions. See Tex. Code Crim. Proc. Ann. art. 42.12 (West Supp.

2003). In a probation revocation hearing, the State must show by a preponderance of the evidence that a

defendant has violated such conditions. See Moreno, 22 S.W.3d at 488; Scamardo, 517 S.W.2d at 297.

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Identity is one of the elements. See Cobb v. State, 851 S.W.2d at 873. The court of criminal appeals has

not set identity apart from the other elements and required a higher standard of proof; the clear implication is

that identity must be proved by a preponderance like any other element. See Rice v. State, 801 S.W.2d

16, 17 (Tex. App.CFort Worth 1990, pet. ref=d). We conclude that the correct standard of proof for

identity is preponderance of the evidence.

                 Appellant complains that the State failed to prove he was the person placed on probation;

this contention involves both his deferred adjudication probation and his standard probation. His arguments

are either untimely or meritless. A defendant placed on either type of probation may raise issues relating to

the conviction, such as evidentiary sufficiency, only in appeals taken when probation is originally imposed;

he may not wait until the revocation hearing. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App.

1999) (deferred adjudication); Whetstone v. State, 786 S.W.2d 361, 363 (Tex. Crim. App. 1990)

(standard). Appellant cannot now challenge whether the State proved his identity when adjudication was

deferred; not only is such a contention untimely, that probation order was revoked and is not before this

Court. Similarly, he cannot now challenge the finding implicit in the imposition of standard probation that he

was the person who committed the offense and whose adjudication had been deferred. The only identity

question properly at issue is whether he is the person who was placed on standard probation.

                 The testimony regarding identity in this case was similar to that concerning the family

violence case, with the notable exception of the fingerprint expert. Hughes testified that he was unable to

determine whether the print on the judgment imposing probation matched appellant=s prints taken the

morning of the hearing because the print on the judgment was a partial fingerprint from an unknown part of


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an unknown finger. (There was no print on the document explaining the terms of probation.) Hughes did

not affirmatively find that the prints failed to match, but could not decide whether they matched.

                 Despite the inconclusive fingerprint evidence, we conclude that Sanchez=s testimony

identifying appellant as his former client sufficiently proves that appellant was the person placed on

probation.

                 Appellant also contends that the evidence is insufficient to show that he received notice of

the terms of probation. As set out above, appellant waived this issue by not raising it at the revocation

hearing. Bush, 506 S.W.2d at 605 n.1. And, although the signed declaration that appellant received a

copy lacks a thumb print under the signature to compare to appellant=s print, we conclude that the signature,

the evidence that appellant was the person who signed ACapt. Ryan Lamotte,@ and other evidence

preponderates in favor of the finding that appellant received a copy of the terms document.


                                             CONCLUSION

                 We affirm the revocation orders.




                                                  Mack Kidd, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: March 13, 2003

Do Not Publish

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