                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00007-CR

YVONNE CAROL LINDSEY,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 278th District Court
                              Walker County, Texas
                              Trial Court No. 25,743


                          MEMORANDUM OPINION


      In two issues, appellant, Yvonne Carol Lindsey, complains about the revocation

of her community supervision. Specifically, Lindsey contends that the trial court erred

in: (1) allowing the State to taint the proceedings with issues of drug use that were not

included in the State’s motion to revoke; and (2) allegedly speaking with an anticipated

trial witness prior to the hearing on appellant’s punishment. We affirm.
                                          I.       BACKGROUND

        On January 31, 2012, Lindsey was charged by indictment with one count of

unlawful possession of a controlled substance—cocaine—in an amount of one gram or

more but less than four grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West

2010). Lindsey entered into a plea-bargain agreement with the State, wherein she pleaded

guilty to the charged offense in exchange for a punishment recommendation of

community supervision, a fine, and assessments of court costs, attorney’s fees, and

restitution. The trial court accepted Lindsey’s guilty plea; sentenced her to two years’

confinement in the Institutional Division of the Texas Department of Criminal Justice;

suspended the sentence; placed her on community supervision for three years; and

assessed a $600 fine, as well as court costs, attorney’s fees, and restitution.

        Subsequently, on June 13, 2014, the State filed a motion to revoke, alleging that

Lindsey violated numerous terms and conditions of her community supervision. 1

Among the violations alleged was that Lindsey failed to report to her supervision officer




        1 The Clerk’s Record contains an amended motion to revoke filed by the State. On appeal, Lindsey
contends that she did not receive the State’s amended motion to revoke. A review of the trial court’s
judgment revoking Lindsey’s community supervision reveals that the trial court did not consider the State’s
amended motion to revoke; instead, the trial court revoked Lindsey’s community supervision based on the
allegations made in the State’s original motion to revoke that was filed on June 13, 2014.

     Nevertheless, both motions alleged as a ground for revocation a violation of condition (4) of her
community supervision, and the trial court’s judgment is based on a violation of that condition.


Lindsey v. State                                                                                    Page 2
on a monthly basis for the months of December 2013, January 2014, February 2014, April

2014, and May 2014.

        After a hearing, the trial court determined that Lindsey had violated the terms and

conditions of her community supervision by failing to report to her supervision officer.2

Thereafter, the trial court revoked Lindsey’s community supervision and sentenced her

to two years’ incarceration in the Institutional Division of the Texas Department of

Criminal Justice. The trial court certified Lindsey’s right of appeal, and this appeal

followed.

                                      II.     STANDARD OF REVIEW

        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 her 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 the greater weight of the credible

evidence which would create a reasonable belief that the defendant has violated a

condition of [her] probation.’” Id. at 865 (quoting Rickels, 202 S.W.3d at 764). The trial




        Specifically, the trial court’s judgment indicates that Lindsey violated the fourth condition of her
        2

community supervision, which corresponded with her duty to report to her supervision officer on a
monthly basis.


Lindsey v. State                                                                                     Page 3
court is the sole judge of the credibility of the witnesses and the weight to be given to

their testimony; thus, we review the evidence in the light most favorable to the trial

court’s ruling. See id. Proof by a preponderance of any one alleged violation is sufficient

to affirm an order revoking community supervision and adjudicating guilt. 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))); Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort Worth 2012, no pet.); see also

Nathan v. State, No. 10-12-00432-CR, 2013 Tex. App. LEXIS 7511, at *3 (Tex. App.—Waco

June 20, 2013, pet. ref’d) (mem. op., not designated for publication).

                                             III.     ANALYSIS

A.       Issues of Drug Use

        In her first issue and in an attempt to reverse the trial court’s judgment revoking

community supervision, Lindsey alleged that the trial court erred in allowing the State to

taint the proceedings with issues of drug use that were not included in the State’s motion

to revoke.3        At no point in her first issue does Lindsey challenge the trial court’s

conclusion that she violated the terms and conditions of her community supervision by

failing to report to her supervision officer on a monthly basis. Moreover, at the hearing



        3 Interestingly, the first allegation made in the State’s motion to revoke was that Lindsey violated
her community supervision by committing the offense of possession of a controlled substance on May 14,
2014, in Walker County, Texas.
Lindsey v. State                                                                                     Page 4
on the State’s motion to revoke, probation officers Tia Schweitzer and Kim Mynar

testified that Lindsey failed to report for several months despite being required to do so

under her community supervision. Based on our review of the record, we cannot say that

the trial court abused its discretion in concluding that the State proved by a

preponderance of the evidence that Lindsey violated the terms and conditions of her

community supervision. See Hacker, 389 S.W.3d at 864-65; see also Rickels, 202 S.W.3d at

763-64.

        And to the extent that Lindsey implies that the revocation of her community

supervision should be reversed because of alleged references to drug use purportedly not

contained in the State’s motion to revoke, we note that the Court of Criminal Appeals has

considered and rejected a substantially-similar argument. See Rodriguez v. State, 488

S.W.2d 78, 79-80 (Tex. Crim. App. 1972). In Rodriguez, appellant argued that the trial court

erred in revoking his probation on the ground that trial court may have considered his

illegal drug use, though such an allegation was not contained in the motion to revoke. Id.

at 79-80. However, the record in Rodriguez revealed that he had failed to report to his

probation officer on three occasions, despite being required to do so.           Id. at 79.

Accordingly, the Court held that “the trial court had sufficient proof to revoke probation

on the grounds of the failure to report to the probation officer. It is not necessary to

determine whether the court erred in revoking probation on the other ground that was

not alleged in the motion to revoke.” Id. at 79-80.


Lindsey v. State                                                                      Page 5
        In light of the Rodriguez decision and the fact that proof by a preponderance of any

one alleged violation is sufficient to affirm an order revoking community supervision and

adjudicating guilt, we need not address Lindsey’s contention regarding any references to

her drug use in this issue, as it is irrelevant to the revocation ground. See Smith, 286

S.W.3d at 342; Jones, 571 S.W.2d at 193-94; Rodriguez, 488 S.W.2d at 79-80; Clay, 361 S.W.3d

at 765; see also Nathan, 2013 Tex. App. LEXIS 7511, at *3. Accordingly, we overrule

Lindsey’s first issue.

B.      Alleged Conversations Between State’s Witnesses and the Trial Court

        In her second issue. Lindsey asserts that her community supervision should not

have been revoked because “the trial court abused its discretion and committed error in

speaking with at least one anticipated trial witness directly, and then learning, through

that witness the content of an additional trial witness’s future testimony, outside the

presence of the defense attorney and prior to the Appellant’s hearing on punishment.” 4

        Lindsey’s second issue appears to be premised on her interpretation of

handwritten notations by the trial judge on the docket sheet, which merely state that

Schweitzer would testify at the disposition hearing and that Ira Johnson, a probation

officer who serves as a substance abuse counselor, would testify about “drug use.” There

is no further indication in the record as to the substance of any other potential




        4From the Reporter’s Record of the revocation hearing, it appears entries may have been made on
the docket sheet at hearings on the motions to continue the revocation hearing.
Lindsey v. State                                                                                Page 6
communications between the trial court and any trial witnesses. Both Lindsey and the

State assert that they were not present nor do they have any knowledge of the contents

of any alleged discussions the trial court may have had with anyone prior to the

punishment hearing. Without more support from the record, we cannot say that that the

trial court erred.

        And regardless, any error in this issue would be harmless because at this point in

the trial, the trial court had already revoked Lindsey’s community supervision and had

but one option during the punishment hearing—to impose the original two-year prison

sentence, which was at the bottom of the applicable sentencing range. See TEX. CODE

CRIM. PROC. ANN. art. 42.12, § 23(a) (“If community supervision is revoked . . . the judge

may proceed to dispose of the case as if there had been no community supervision, or if

the judge determines that the best interests of society and the defendant would be served

by a shorter term of confinement, reduce the term of confinement originally assessed to

any term of confinement not less than the minimum prescribed for the offense of which

the defendant was convicted.”); TEX. HEALTH & SAFETY CODE ANN. § 481.115(c)

(providing that possession of one gram or more but less than four grams of an unlawful

controlled substance is a third-degree felony); TEX. PENAL CODE ANN. § 12.34 (West 2011)

(providing that the punishment range for third-degree felonies is “for any term of not

more than 10 years or less than 2 years”). Therefore, based on the foregoing, we overrule

Lindsey’s second issue.


Lindsey v. State                                                                    Page 7
                                   IV.    CONCLUSION

        Having overruled both of Lindsey’s issues on appeal, we affirm the judgment of

the trial court.




                                               AL SCOGGINS
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 3, 2016
Do not publish
[CR25]




Lindsey v. State                                                                Page 8
