                          NUMBER 13-10-00442-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

GENE SEGURA,                                                           Appellant,

                                        v.

THE STATE OF TEXAS,                                                     Appellee.


                  On appeal from the 148th District Court
                        of Nueces County, Texas.


                       MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
               Memorandum Opinion by Justice Garza
      Appellant, Gene Segura, appeals from the trial court’s revocation of his

community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 23 (West Supp.

2010). By three issues, appellant contends that: (1) the evidence is insufficient to

support the finding that he violated the terms of his community supervision by
committing felony family violence assault1; (2) the trial court abused its discretion in

denying his motion for new trial; and (3) the trial court erred in permitting the State to

amend its motion to revoke after the revocation hearing commenced. We affirm.

                                          I. BACKGROUND

       On June 25, 2009, pursuant to a plea bargain, appellant pleaded guilty to

criminal mischief, a state jail felony offense. See TEX. PENAL CODE ANN. § 28.03(a)(1),

(b)(4)(A) (West Supp. 2010). The trial court accepted appellant’s guilty plea, sentenced

him to two years’ imprisonment and assessed a $500 fine, suspended the prison

sentence, and placed him on community supervision for four years.

       On April 22, 2010, the State filed a motion to revoke appellant’s community

supervision, alleging numerous violations, including that he:        (1) committed family

violence assault; and (2) failed to pay restitution, supervision fees, and various other

fees, set forth as five separate allegations in the motion to revoke. On May 5, 2010,

appellant pleaded ―not true‖ to the allegation of family violence assault and ―true‖ to the

remaining five failure-to-pay allegations. After hearing evidence, the trial court found all

of the State’s allegations ―true,‖ revoked appellant’s community supervision, and

sentenced him to two years’ imprisonment.

                         II. STANDARD OF REVIEW AND APPLICABLE LAW

       In a community supervision revocation hearing, the State need only prove its

allegations by a preponderance of the evidence. Jones v. State, 112 S.W.3d 266, 268

(Tex. App.—Corpus Christi 2003, no pet.); Herrera v. State, 951 S.W.2d 197, 199 (Tex.

App.—Corpus Christi 1997, no pet.) (citing Cobb v. State, 851 S.W.2d 871, 873 (Tex.

Crim. App. 1993)).        This standard is met when the greater weight of the credible
       1
           See TEX. PENAL CODE ANN. § 22.01 (West Supp. 2010).

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evidence creates a reasonable belief that the defendant violated a condition of

probation as the State alleged. In re B.C.C., 187 S.W.3d 721, 724 (Tex. App.—Tyler

2006, no pet.) (citing Cobb, 851 S.W.2d at 873); see also In re M.A.H., No. 13-07-426-

CV, 2008 Tex. App. LEXIS 6864, at *3–4 (Tex. App.—Corpus Christi Aug. 28, 2008, no

pet.) (mem. op.).    Appellate review of an order revoking community supervision is

limited to a determination of whether the court abused its discretion. Canseco v. State,

199 S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).              A single

violation of a probation condition is sufficient to support the trial court's decision to

revoke probation. Id.

       The trial court is the trier of facts in a revocation proceeding and the sole judge of

the credibility of witnesses and the weight to be given to the testimony. Id. We examine

the record of the revocation proceeding in the light most favorable to the trial court's

ruling. Id.

                                      III. DISCUSSION

       By his first issue, appellant contends that the evidence was insufficient to support

the finding that he committed family violence assault, as alleged in the State’s motion to

revoke. By his second issue, appellant contends the trial court erred in denying his

motion for new trial because in the motion, he presented evidence establishing that the

charge of family violence assault had been dismissed. The State responds that, even if

the evidence was insufficient to support the finding that appellant committed family

violence assault, the trial court did not abuse its discretion in revoking appellant’s

community supervision because he pleaded ―true‖ to five of the State’s allegations and




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a single violation is sufficient to support the trial court’s decision to revoke. See id. We

agree.

         With regard to the trial court’s denial of appellant’s motion for new trial, we note

that although appellant asserts that ―evidence was presented‖ showing that the State

dismissed the family violence assault charge, nothing in the record supports appellant’s

claim. No evidence is attached to appellant’s motion and there is no record of the

hearing on the motion for new trial. Moreover, appellant cannot show he was harmed

by the trial court’s denial of his motion for new trial because, even if he established that

the trial court erred in finding that he committed family violence assault, the trial court

did not abuse its discretion in revoking appellant’s community supervision based on his

pleas of ―true‖ to the remaining allegations. See id. We overrule appellant’s first and

second issues.

         By his third issue, appellant contends that the trial court erred in allowing the

State to amend its motion to revoke after the revocation hearing commenced. We find

appellant’s issue to be without merit.

         At the revocation hearing, the trial court read each allegation and asked for

appellant’s plea. The last allegation stated that appellant had failed to pay $24.00 for

urinalysis fees. The trial court questioned the basis for the $24.00 fee. At the trial

court’s invitation, the State asked to amend the allegation to clarify that appellant failed

to pay the $24.00 fee, which represented ―two urine analyses at the cost of $12 each.‖

Appellant and his defense counsel both stated that they had no objection to the

amendment. Appellant then pleaded ―true‖ to the allegation.




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       Appellant contends the trial court erred in permitting the amendment ―after the

commencement of the hearing and testimony of the Appellant had commenced,‖ in

violation of article 42.12, section 21(b) of the code of criminal procedure. See TEX.

CODE CRIM. PROC. ANN. art. 42.12, § 21(b) (West Supp. 2010). That section provides, in

pertinent part:

       In a felony case, the state may amend the motion to revoke community
       supervision any time up to seven days before the date of the revocation
       hearing, after which time the motion may not be amended except for good
       cause shown, and in no event may the state amend the motion after the
       commencement of taking evidence at the hearing. The judge may
       continue the hearing for good cause shown by either the defendant or the
       state.

Id.   The State argues that appellant cannot prevail because:       (1) here, the State’s

motion was amended before the taking of any evidence; (2) appellant waived any error

by affirmatively stating that he had no objection and ―accept[ed] that amendment‖; and

(3) any error is harmless because he pleaded ―true‖ to several other allegations, which

he does not challenge.

       We need not decide whether the motion was amended before the taking of any

evidence or whether appellant waived any error because appellant cannot show that he

was harmed. In Lopez v. State, this Court addressed the harm analysis applicable to an

alleged violation of section 21(b) of article 42.12:

       As the Texas Court of Criminal Appeals has explained, community
       supervision is a contractual privilege, not a systemic right, and Lopez does
       not argue otherwise. In this case, Lopez complains of a statutory
       violation, which is subject to rule 44.2(b)'s harm analysis. Under rule
       44.2(b), we may not reverse a conviction based on error that does not
       affect the defendant's substantial rights. Lopez has not made such a
       showing here.

       When Lopez appeared at the hearing, the trial court asked whether he had
       reviewed the amended motion with his attorney, and Lopez affirmatively

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         represented that he had. Lopez then waived the reading of the motion
         and pleaded ―true‖ to every allegation in the amended motion. There is
         nothing in the record showing that a continuance of five more days to
         allow compliance with the statute would have resulted in a different plea to
         any of the alleged violations of community supervision. See TEX. R. APP.
         P. 44.2(b); see also Brown v. State, No. 04-04-00465-CR, 2005 Tex. App.
         LEXIS 4176, [at *2] 2005 WL 1276401, at *1 (Tex. App.—San Antonio
         June 1, 2005, no pet.) (mem. op., not designated for publication) (holding
         that defendant failed to show harm from violation of article 42.12 section
         21(b) by pleading ―true‖ to at least one of the allegations in the original
         motion).

318 S.W.3d 910, 916–17 (Tex. App.—Corpus Christi 2010, no pet.) (some citations

omitted).

         As in Lopez, appellant pleaded ―true‖ to several of the State’s allegations, which

he does not challenge, and accordingly, he cannot show that he was harmed by any

alleged violation of article 42.12, section 21(b). See id. We overrule appellant’s third

issue.

                                       IV. CONCLUSION

         We affirm the trial court’s judgment.



                                                     DORI CONTRERAS GARZA
                                                     Justice

Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
18th day of August, 2011.




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