                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-16-00007-CR


JUNIOR LEE JOHNSON                                                 APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1374064D

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                        MEMORANDUM OPINION1

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                               I. INTRODUCTION

      Pursuant to a plea bargain, Appellant Junior Lee Johnson pleaded guilty to

assault on a family member. See Tex. Penal Code Ann. § 22.01(a), (b)(2)(A)

(West Supp. 2016). In accordance with the terms of the plea bargain, the trial

court deferred a finding of guilt, placed Johnson on two years of deferred


      1
      See Tex. R. App. P. 47.4.
adjudication community supervision, and assessed a $200 fine. His conditions

for community supervision required, among other things, that he not commit any

further offenses and that he not contact the victim—his estranged wife, Ira2—in a

harmful or injurious manner. The State subsequently filed a petition to proceed

to adjudication, alleging that Johnson had violated those conditions of his

community supervision. Johnson pleaded not true to the allegations, and the trial

court, after conducting an adjudication hearing, found that the allegations were

true, adjudicated Johnson’s guilt, and sentenced him to seven years’

confinement. In two issues, Johnson contends that a recording of a 9-1-1 call

should not have been admitted at the adjudication hearing (his first issue) and

that without the recording of the 9-1-1 call the evidence is insufficient to prove

that he violated the conditions of his community supervision (his second issue).

Because––assuming without deciding that the trial court abused its discretion by

admitting the recording of the 9-1-1 call and excluding it from our review of the

evidence––the evidence is nonetheless sufficient to prove that Johnson violated

a condition of his community supervision, we will affirm the judgment of the trial

court.




        At various times in the record, Ira’s last name is stated as “Johnson,”
         2

“Linen,” and “Linen-Johnson.” For ease of reference, we will refer to her simply
as “Ira.”


                                        2
                                 II. BACKGROUND

      On January 20, 2015, Ira and Johnson were married but living apart. Ira

testified that on that date she called the police three times. The first phone call

originated in the morning after her bedroom window was broken. Ira did not see

who broke the window.       The second call was placed in the afternoon after

Johnson kicked her door and shouted, “Come get your son. Come get your

things.”3

      Ira testified that after Johnson kicked her door, she drove to his house to

pick up her adult son, who was visiting Johnson. She testified that she parked

across the street from Johnson’s house, rather than directly in front of it, because

she wanted to avoid a confrontation. According to Ira, she sat in the vehicle with

the motor running and Johnson approached it, cussed at her, and said, “I’m

going to kill you.”   Ira testified that she told Johnson, “Please do not come

towards my car, leave me alone, let me just pick up my son.” Ira stated that she

then “[moved] up a little further [with her] car,” an action that caused Johnson to

become angrier.

      Ira then called 9-1-1 for the third time that day.4 Ira testified that Johnson

then got in his vehicle, and as she was trying to drive away from him, Johnson



      3
      Ira testified that she knew it was Johnson kicking her door because she
recognized his voice.
      4
       It is the admission of the recording of this third 9-1-1 call at the
adjudication hearing that Johnson complains of in his first issue. We assume,

                                         3
struck her vehicle from behind.5 According to Ira, a chase then ensued. She

testified that her vehicle was struck head-on by Johnson’s vehicle during the

chase.     Ira stated that after the head-on collision she backed up and drove

around Johnson’s vehicle.        Johnson then gave chase, eventually striking her

vehicle a third time, with the front of his vehicle hitting the back of hers.

      In response to Ira’s third 9-1-1 call, Officer James Parsons of the Fort

Worth Police Department was dispatched to the scene. When Officer Parsons

arrived at the scene, he made contact with Johnson. Officer Parsons testified

that Johnson told him that Ira had come to the house to pick up her son and that

Johnson and Ira began arguing while the son was gathering his things. Officer

Parsons testified that Johnson told him that he was upset and that he had

rammed Ira’s vehicle to block her from leaving. Officer Parsons further testified

that Johnson admitted that what he did was wrong. Officer Parsons inspected

Johnson’s vehicle and observed damage to the front end. He also observed

debris at the site where Ira claimed the head-on collision occurred.

      Officer Parsons then went to Ira’s apartment to speak with her because

she had left the scene. Ira told Officer Parsons that she was sore, but she

declined his offer to call for an ambulance. Officer Parsons observed “[m]ajor




without deciding, that the trial court abused its discretion by admitting this
recording and we exclude its contents from our factual recitation here.
      5
         Ira described the contact from this first collision as “soft.”


                                             4
damage to the front end and minor damage to the rear” of Ira’s vehicle. 6 After

speaking with Ira, Officer Parsons went back to Johnson’s home and placed him

under arrest. Johnson was taken to the city jail, read his Miranda rights, and

given the opportunity to make a written statement.        Johnson made a written

statement in which he averred, “I did not do anything wrong. She hit me and I hit

her car.” Officer Parsons testified that when he first made contact with Johnson,

Johnson did not say anything about Ira hitting him.7

      Ira testified that she had a “splitting headache” as a result of the collisions

and that she eventually went to the hospital and was treated for a concussion.

The trial court ultimately found that Johnson violated the conditions of his

community supervision by committing a new offense—assault with a deadly

weapon—and by making contact with Ira in a harmful or injurious manner.




      6
       At the adjudication hearing, the State introduced several photographs
showing significant damage to the front of Ira’s vehicle and minor damage to the
rear of her vehicle. Ira testified that the damage depicted in the photographs
occurred on January 20, 2015, as a result of Johnson striking her vehicle with his
vehicle. She further testified that her vehicle was declared a total loss by her
insurance company.
      7
       Johnson’s community-supervision officer testified at trial that Johnson told
her that his vehicle collided with Ira’s vehicle as he was leaving his house and as
Ira was approaching his house. Johnson’s sister testified that Johnson told her
that the collision was an accident and that his vehicle and Ira’s vehicle “just
happened to ram into each other.”


                                         5
                           III. ADJUDICATION OF GUILT

      In his second issue, Johnson contends that without the recording of the 9-

1-1 call the evidence is insufficient to prove that he committed assault with a

deadly weapon or made contact with Ira in a harmful or injurious manner.

                             A. Standard of Review

      A trial court’s determination on a motion to adjudicate is reviewable in the

same manner as the determination on a motion to revoke community

supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp.

2016).    We review an order revoking community supervision under an

abuse-of-discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.

App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In a

revocation proceeding, the State must prove by a preponderance of the evidence

that the defendant violated the terms and conditions of community supervision.

Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The trial court is

the sole judge of the credibility of the witnesses and the weight to be given their

testimony, and we review the evidence in the light most favorable to the trial

court’s ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172,

174 (Tex. Crim. App. [Panel Op.] 1981). If the State fails to meet its burden of

proof, the trial court abuses its discretion in revoking community supervision.

Cardona, 665 S.W.2d at 493–94.

      Proof by a preponderance of the evidence of any one of the alleged

violations of the conditions of community supervision is sufficient to support a


                                        6
revocation order. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel

Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.]

1980). Consequently, when there is one sufficient ground, we do not need to

address the other contentions. See Sanchez, 603 S.W.2d at 871; Long v. State,

No. 02-12-00090-CR, 2013 WL 1337975, at *2 n.7 (Tex. App.—Fort Worth Apr.

4, 2013, pet. ref’d) (mem. op., not designated for publication).

   B. The Evidence is Sufficient to Support a Finding that Johnson Made
             Contact with Ira in a Harmful or Injurious Manner

      As stated above, one of the conditions of Johnson’s community

supervision was that he not make contact with Ira in a harmful or injurious

manner. Here, there was evidence—apart from the recording of the 9-1-1 call—

that Johnson made contact with Ira in a harmful or injurious manner. Ira testified

that Johnson chased her vehicle with his and struck her vehicle three times.

Officer Parsons also testified that Johnson told him that he had rammed Ira’s

vehicle to block her from leaving and admitted that what he did was wrong.

Officer Parsons observed damage to the front of Johnson’s vehicle, and he also

observed “[m]ajor damage to the front end and minor damage to the rear” of Ira’s

vehicle.   Photographs admitted into evidence confirm this damage, and Ira

testified that the damage to her vehicle was caused by Johnson. Ira also testified

that she had a “splitting headache” as a result of the collisions and that she went

to the hospital and was treated for a concussion.




                                         7
      While Johnson presented contrary evidence to suggest that the collisions

were either an accident or caused by Ira, the trial court, as the sole judge of the

credibility of the witnesses and the weight to be given to their testimony, was

within its discretion to find the testimony of Ira and Officer Parsons credible while

finding Johnson’s contrary statements not credible. See Cardona, 665 S.W.2d at

493; Garrett, 619 S.W.2d at 174.         Viewing the evidence in the light most

favorable to the trial court’s ruling, and deferring to the trial court on questions of

the credibility of witnesses and the weight to be given their testimony, we hold

that the trial court did not abuse its discretion in finding that the State proved by a

preponderance of the evidence that Johnson made contact with Ira in a harmful

or injurious manner, a violation of the conditions of Johnson’s community

supervision.8 We overrule Johnson’s second issue.

      Having determined that––even eliminating the recorded 9-1-1 call from our

analysis––the trial court did not abuse its discretion in finding that the State

proved by a preponderance of the evidence that Johnson made contact with Ira

in a harmful or injurious manner in violation of the conditions of Johnson’s




      8
        Because we hold that the trial court did not abuse its discretion in
adjudicating guilt based on Johnson’s contact with Ira that was in a harmful or
injurious manner, we do not address the other ground for adjudicating guilt,
namely whether Johnson committed assault with a deadly weapon. See Tex. R.
App. P. 47.1; Moore, 605 S.W.2d at 926; Sanchez, 603 S.W.2d at 871; Long,
2013 WL 1337975, at *2 n.7.


                                          8
community supervision, we hold that the trial court’s admission of the recorded 9-

1-1 call into evidence was harmless even if erroneous.9

          We therefore overrule Johnson’s first issue. See Tex. R. App. P. 44.2(b).

                                  IV. CONCLUSION

      Having overruled Johnson’s two issues, we affirm the trial court’s

judgment.



                                                    /s/ Sue Walker
                                                    SUE WALKER
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 27, 2016




      9
       We note that the trial court specifically stated that it was “not relying on
the 9-1-1 call for any purposes of evidence . . . . [and] not relying on it for the—
the burden for the State to use to satisfy their burden of revocation purposes.”


                                          9
