Affirmed and Memorandum Opinion filed August 25, 2016.




                                         In The

                       Fourteenth Court of Appeals

                                 NO. 14-15-00900-CR

                       BOBBY EARL WILLIAMS, Appellant
                                            V.

                          THE STATE OF TEXAS, Appellee

                      On Appeal from the 183rd District Court
                              Harris County, Texas
                          Trial Court Cause No. 1355107

                    MEMORANDUM                      OPINION


      Appellant entered a guilty plea to the offense of assault with a deadly weapon.
The trial court deferred adjudication of appellant’s guilt and placed him on five years’
deferred-adjudication community supervision. Subsequently, the State filed a motion to
adjudicate appellant’s guilt. Following a hearing, the trial court found one of the State’s
allegations “true” and adjudicated guilt. The trial court sentenced appellant to
confinement for ten years. We affirm.

      The record reflects the State moved to adjudicate on the grounds appellant
violated the conditions of his probation by (1) committing aggravated assault; and (2)
failing to pay his fine and court costs. Appellant entered a plea of true to the allegation
of failure to pay and a plea of not true to the allegation of assault. The trial court found
the first of these true, but not the second, as reflected in the judgment and the hearing
record. Appellant’s sole issue on appeal claims the evidence failed to establish by a
preponderance of the evidence that he threatened Cleve Mitchell with a knife.1

       The trial court’s determination whether to proceed with an adjudication of guilt is
reviewable in the same manner used to determine whether sufficient evidence supports
the trial court’s decision to revoke community supervision. Tex. Code Crim. Proc. Ann.
art. 42.12, § 5(b) (West Supp. 2014). In an adjudication hearing, the State must prove by
a preponderance of the evidence that a defendant violated the terms of his community
supervision. Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006). 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. We review the trial court’s decision regarding community supervision
revocation for an abuse of discretion and examine the evidence in a light most favorable
to the trial court’s order. Id.; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App.
[Panel Op.] 1981). The trial court is the trier of fact and the arbiter of the credibility of
the testimony during a hearing on a motion to adjudicate. See Garrett, 619 S.W.2d at
174.

       Appellant, complainant Cleve Mitchell, and David Taylor lived in the same
apartment complex. Taylor testified that on May 20, 2015, he was talking to Mitchell
about a female neighbor’s car trouble when appellant “butted in” on their conversation.
Words were exchanged and appellant “pulled a knife” on Mitchell and threatened to kill

       1
         Although the State contends we can affirm the trial court’s judgment on the basis that
appellant pled true to the failure to pay allegation, the State cites no authority, and we are aware of
none, permitting this Court to affirm on an allegation the trial court did not find “true.”


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him. Taylor said appellant reached to cut Mitchell but Taylor stopped him. According to
Taylor, “if I wouldn’t have grabbed [the knife], [appellant] would have stabbed him.”
Taylor testified that Mitchell picked up a chair to defend himself but did nothing to
threaten appellant.

      Mitchell testified appellant was coming at him with his hand in his pocket and
Mitchell knew appellant always carried a knife. Mitchell felt threatened and picked up
his chair. Appellant walked off and Mitchell sat down. When appellant returned,
Mitchell saw the knife in appellant’s hand with the blade exposed. Appellant was
coming toward Mitchell and swinging the knife in his direction. Appellant came close
enough with the knife that he could have reached Mitchell with it. Mitchell testified that
he feared for his life and believed the knife could hurt him. He agreed it could be used
as a deadly weapon. Mitchell identified a pocket knife as the same knife appellant had
that day. Mitchell denied threatening appellant and said he picked up the chair because
appellant was coming toward him with the knife in his pocket.

      Both appellant and Mitchell called 911. Officer Luis Ontiveros responded to the
call. Appellant and Mitchell gave different versions of the event but Taylor’s
corroborated Mitchell’s. Ontiveros testified that Mitchell was afraid for his life and
Mitchell said appellant “tried to cut me.” Ontiveros recovered a knife from appellant’s
wife and identified it in court. Taylor identified the same knife as the one appellant had
that day.

      Appellant claimed he told Mitchell to “shut up” not because he was angry but
because the neighbor was trying to tell appellant what she wanted to do with her car.
Appellant testified that Mitchell reacted angrily, responding “Nobody tells me to shut
up.” Appellant denied reaching for his back pocket before Mitchell picked his chair up
and threatened appellant. According to appellant, that was when he reached for his
pocket. Appellant then walked away. When appellant walked by again, Mitchell made

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an angry face at him, and appellant “took off and started walking real fast towards
[Mitchell]. And [Mitchell] jumped out of the chair and he went to rear back with it.”
Appellant denied trying to cut Mitchell and testified he never pulled his knife out,
although he admitted to making a motion toward Mitchell as if he had a knife, saying he
was “playing with” Mitchell. Appellant testified Taylor never restrained him, and that
Taylor had been to dialysis that day and was “drogged [sic] out.” According to
appellant, the knife his wife gave to Ontiveros was not appellant’s and he did not know
where his pocket knife went. Appellant admitted that the offense of aggravated assault
with a deadly weapon for which he was on deferred-adjudication community
supervision also involved a pocket knife.

      The trial court heard the conflicting evidence and as the trier of fact determined
credibility. See Garrett, 619 S.W.2d at 174. The testimony of Taylor, Mitchell, and
Ontiveros is some evidence that supports the trial court’s finding that appellant
threatened Mitchell with a knife. We conclude the greater weight of credible evidence
supports the trial court’s reasonable belief that it is more probable than not that
appellant violated a condition of community supervision by threatening Mitchell with a
knife. See Rickels, 202 S.W.3d at 763–64. Accordingly, the trial court did not abuse its
discretion in finding the State’s allegation “true.” Appellant’s issue is overruled and we
affirm the trial court’s judgment.




                                       /s/       John Donovan
                                                 Justice



Panel consists of Justices Busby, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).

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