                                 NO. 07-09-0037-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                FEBRUARY 24, 2010
                            _________________________

                        SHANE TYSON MOORE, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                          __________________________

             FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

                NO. 50,740-C; HONORABLE ANA ESTEVEZ, JUDGE
                         ___________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION


      Appellant, Shane Tyson Moore, appeals the trial court’s revocation of appellant’s

community supervision probation and sentence of 18 months incarceration in the State

Jail Division of the Texas Department of Criminal Justice. We affirm.


      In April of 2005, appellant was charged with the offense of possession of a

controlled substance, methamphetamine, in an amount less than one gram. On April

26, 2005, as part of a plea bargain, appellant judicially confessed that he committed the

charged offense and was sentenced to three years deferred adjudication community
supervision and fined $1,500. In March of 2007, the State filed a motion to proceed to

adjudication. Appellant pled true to the allegations in the State’s motion and, as a

result, the trial court adjudicated appellant guilty and sentenced appellant to two years

incarceration and $1,500 fine, but probated that sentence for a period of three years.

On August 4, 2008, the State filed a motion to revoke community supervision probation

that alleged that appellant had committed 15 violations of the terms and conditions of

his community supervision. Appellant pleaded not true to the allegations, but, after

holding a hearing, the trial court found eight of the alleged violations true and sentenced

appellant to 18 months incarceration.


       By one issue, appellant contends that the trial court’s admission of hearsay

testimony in the revocation hearing violated appellant’s constitutional right of

confrontation.


       In a revocation hearing, the burden is on the State to prove by a preponderance

of the evidence that the probationer violated the terms and conditions of his community

supervision.     Scamardo v. State, 517 S.W.2d 293, 297-98 (Tex.Crim.App. 1974).

However, proof of one violation of the terms and conditions of probation is sufficient to

support a trial court’s order revoking community supervision.        Smith v. State, 286

S.W.3d 333, 342 (Tex.Crim.App. 2009). Upon proof that one or more conditions of

community supervision probation has been violated, the trial court’s decision whether to

revoke probation is discretionary.        Flourney v. State, 589 S.W.2d 705, 707

(Tex.Crim.App. 1979).




                                            2
       In the present case, the State presented evidence that appellant violated the

second condition of his community supervision probation by using marijuana on three

separate occasions. Appellant’s community supervision officer, Katy Coke, testified,

without objection, that appellant admitted to her that he had smoked marijuana on or

about January 1, January 12, and January 25 of 2008.            The second condition of

appellant’s community supervision probation requires that appellant “[a]void injurious

and vicious habits, including but not limited to the use of marijuana, narcotics,

dangerous drugs, inhalants, or the abuse of prescription medication.”1 Appellant did not

object to this testimony during the hearing on the State’s motion to revoke and has not

raised an issue challenging these violations of the conditions of his community

supervision probation. As such, we will affirm the trial court’s order revoking appellant’s

community supervision probation.


       Appellant’s issue challenges the admission of evidence that was used to

establish that appellant had violated reporting and payment conditions of his community

supervision. Assuming, without deciding, that appellant is correct and that, therefore,

the State failed to prove these violations, the unchallenged evidence that appellant used

marijuana on three occasions is sufficient to support the trial court’s order. As such, we

overrule appellant’s sole issue.




       1
         We note that appellant’s consumption of marijuana violates additional conditions
of his community supervision, such as not committing violations of the laws of the State
of Texas.
                                            3
       Having overruled appellant’s issue and concluding that the evidence was

sufficient to support the trial court’s revocation of appellant’s community supervision

probation, we affirm the judgment of the trial court.




                                                        Mackey K. Hancock
                                                             Justice




Do not publish.




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