                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-09-00043-CR
         ______________________________


          CURTIS W. PORTLEY, Appellant

                           V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 124th Judicial District Court
                 Gregg County, Texas
               Trial Court No. 34995-B




      Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Carter
                                    MEMORANDUM OPINION

       Curtis W. Portley1 pled guilty to driving while intoxicated (DWI). After an adjudication of

guilt, the trial court sentenced him to ten years' imprisonment, suspended imposition of the sentence,

and placed him on community supervision for six years. The trial court found that Portley violated

his community supervision and sentenced him to four years' imprisonment in the Texas Department

of Criminal Justice–Institutional Division.

       Portley challenges the trial court's jurisdiction over the revocation hearing, argues that the

evidence was legally and factually insufficient for the trial court to find he violated his community

supervision by consuming alcohol, and complains that his plea of true to another condition (driving

a motor vehicle without a guardian interlock system) was involuntary. We affirm.

I.         The Trial Court Had Jurisdiction Over the Revocation Proceedings

           "At any time during the period of community supervision the judge may issue a warrant for

violation of any of the conditions of the community supervision and cause the defendant to be

arrested." TEX . CODE CRIM . PROC. ANN . art. 42.12, § 21(b) (Vernon Supp. 2009). It is undisputed

that both the application to revoke Portley's community supervision and the order for arrest were

filed before the expiration of the community supervision period.




       1
         We note in the judgment of the trial court that the appellant's name was misspelled as
"Curtic." We use the spelling of his signature and the spelling of his name on the other documents
in the case, "Curtis," in this opinion.

                                                  2
           Portley's issue is with the timing of the filings. The order of arrest, signed by the trial judge

December 22, 2008, states that the application was presented to him on the 22nd. Yet, both the

application for revocation of community supervision and the order for arrest have a file-mark stamp

of December 24, 2008. Portley believes this proves the arrest was authorized before the application

was even filed. He contends the trial court did not have jurisdiction for this reason. In support of

his contention, Portley cites the following excerpt from Brecheisen v. State:

       Two requirements must be met for a trial court to acquire jurisdiction to revoke
       probation. The State must file with the trial court, before the expiration of the
       probationary period, a motion to revoke probation that alleges the probationer
       violated the terms of the probation judgment. The trial court must then, before the
       expiration of the probationary period, issue a capias based upon this motion that
       orders the arrest of the probationer.2

4 S.W.3d 761, 763 (Tex. Crim. App. 1999) (citations omitted).

           In arriving at this conclusion, the Texas Court of Criminal Appeals quoted Guillot: "in order

for the court to have jurisdiction to revoke probation both the motion to revoke and capias for arrest

must be issued prior to the termination of the probationary period." Guillot v. State, 543 S.W.2d

650, 652 (Tex. Crim. App. 1976). The issue in these cases was whether the State had used diligence

in both filing and issuing an arrest warrant before the probationary period expired, a matter which

is unquestioned in this case.



       2
       In Wheat v. State, we pointed out that the Texas Legislature amended Article 42.12 of the
Texas Code of Criminal Procedure to extend the trial court's continuing jurisdiction to revoke
community supervision after the expiration of the term of community supervision. 165 S.W.3d 802,
805 (Tex. App.—Texarkana 2005, pet. dism'd, untimely filed).

                                                      3
            Here, the trial court's signed order of arrest specifically states the trial court was presented

with an application for revocation of Portley's community supervision December 22, 2008, a fact this

Court will not choose to ignore. There is no requirement that the application for revocation be filed

with the clerk's office before the trial judge issues the warrant of arrest; it is not uncommon for such

applications to be first presented to the judge and then filed with the arrest order. Further, in some

instances district judges are authorized to file pleadings in their court.3 We disagree with Portley that

Brecheisen imposed a sequential requirement for the formal filing of the application and issuance

of the arrest warrant. Instead, it required that in order to revoke community supervision after the

term of community supervision has expired the State must prove that before the expiration of the

community supervision period, (1) the State filed a motion to revoke and (2) a capias or arrest

warrant was issued. TEX . CODE CRIM . PROC. ANN . art. 42.12, § 21(e) (Vernon Supp. 2009).

            We find the trial court had jurisdiction over the revocation proceeding.

II.         Portley's Plea Relating to the Interlock Device Was Not Involuntary

            If a person is placed on DWI community supervision, a court may "require as a condition

of community supervision that the defendant have a device installed, on the motor vehicle owned

by the defendant or on the vehicle most regularly driven by the defendant, that uses a deep-lung



        3
          Generally, documents are filed with the clerk of the court; however, a judge may accept
filing of a paper by noting the filing date thereon and transmitting it to the clerk's office. TEX . R.
CIV . P. 74; Garza v. State, 919 S.W.2d 788, 789 (Tex. App.—Houston [14th Dist.] 1996, no pet.).



                                                      4
breath analysis mechanism," which disables the operation of the vehicle if alcohol is detected. TEX .

CODE CRIM . PROC . ANN . art. 42.12, § 13(i) (Vernon Supp. 2009). "The court shall require the

defendant to obtain the device at the defendant's own cost before the 30th day after the date of

conviction unless the court finds that to so do would not be in the best interest of justice." Id. "If

the court determines the offender is unable to pay for the device, the court may impose a reasonable

payment schedule." Id.

        An award of community supervision is not a right, but a contractual privilege entered into

between a court and a defendant. Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). For

this reason, the law is well-settled that conditions of community supervision not objected to are

affirmatively accepted as terms of the contract, and a defendant cannot challenge a condition of

community supervision for the first time at a revocation proceeding. Id. at 535; Vale v. State, 486

S.W.2d 370 (Tex. Crim. App. 1972); In re V.A., 140 S.W.3d 858, 860 (Tex. App.—Fort Worth 2004,

no pet.) (defendant could not object that condition of community supervision was unreasonable at

revocation hearing); Lopez v. State, 46 S.W.3d 476, 480 (Tex. App.—Fort Worth 2001, pet. ref'd)

("Under Speth, therefore, we are prohibited from hearing on appeal a challenge to the validity of a

condition of community supervision unless an objection to that condition was made at the time the

condition was imposed, presumably at sentencing . . . ."); Anthony v. State, 962 S.W.2d 242, 246

(Tex. App.—Fort Worth 1998, no pet.).




                                                  5
           The trial court's order establishing conditions of community supervision ordered Portley not

to "drive a motor vehicle without a guardian interlock device . . . for three years." Because he now

claims he did not have the financial means, Portley failed to purchase one. He admitted to the court

that he did not abide by this condition of community supervision and pled true to the State's

allegation of violation. He also testified in the revocation hearing that he regularly drove a motor

vehicle without the device. Yet, Portley claimed this plea was involuntary because his counsel did

not discuss the possibility that lack of funds for the device could have been a defense during the

revocation proceedings. We overrule this for several reasons. First, the court did not require Portley

to drive an automobile, but Portley knew that if he owned an automobile or regularly used one, he

was required to install the device and pay for it. In fact, when community supervision was being

assessed, Portley stated he understood fees would be imposed and verified he would pay them.4

Despite that knowledge, Portley elected to drive an automobile without the device.

           Second, Portley never advised the court of his inability to pay for the device in a timely

fashion as contemplated by Article 42.12, Section 13(i) (which allows the trial court to determine

a reasonable payment schedule if the court determines the probationer cannot pay for the device).

       4
         Portley correctly recited that "[i]n a community supervision revocation hearing at which it
is alleged only that the defendant violated the conditions of community supervision by failing to pay
compensation paid to appointed counsel, community supervision fees, or court costs, the state must
prove by a preponderance of the evidence that the defendant was able to pay and did not pay as
ordered by the judge." TEX . CODE CRIM . PROC. ANN . art. 42.12, § 21(c) (Vernon Supp. 2009). This
statute is inapplicable in this revocation hearing since failure to pay for the interlock device, not a
mandated fee under the statute since a defendant can choose not to drive, was not the only reason
why Portley's community supervision was being revoked.

                                                    6
His recent claim of inability to afford the device is substantially weakened since he failed to make

such claim from November 2007, when he was placed on community supervision, until his

revocation proceeding in February 2009. We overrule this point of error.

III.    Evidence Was Sufficient to Revoke Portley's Community Supervision

        The order of community supervision also prohibited Portley from drinking alcoholic or

intoxicating beverages. The trial court found Portley violated this condition. Portley contends the

evidence was legally and factually insufficient to support the court's finding. We disagree.

        A.        Standard of Review

        While the decision to revoke community supervision rests within the discretion of the trial

court, it is not absolute. In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.—Texarkana 2003, no pet.).

To revoke community supervision, the State must prove every element of at least one ground for

revocation by a preponderance of the evidence. Johnson v. State, 943 S.W.2d 83, 85 (Tex.

App.—Houston [1st Dist.] 1997, no pet.); T.R.S., 115 S.W.3d at 320. "'Preponderance of the

evidence' has been defined as the greater weight and degree of credible testimony." T.R.S., 115

S.W.3d at 320. In other words, if the greater weight of credible evidence in this case created a

reasonable belief that Portley violated a condition of community supervision, the standard was met.

Id. at 321 (citing Martin v. State, 623 S.W.2d 391, 393 n.5 (Tex. Crim. App. [Panel Op.] 1981)).

        In a revocation hearing, the trial judge is the sole trier of the facts and determines the

credibility of the witnesses and the weight to be given to the testimony. Id.; Lee v. State, 952 S.W.2d



                                                  7
894, 897 (Tex. App.—Dallas 1997, no pet.); Johnson, 943 S.W.2d at 85. The judge may accept or

reject any or all of a witness' testimony. T.R.S., 115 S.W.3d at 321 (citing Mattias v. State, 731

S.W.2d 936, 940 (Tex. Crim. App. 1987)). Considering the unique nature of a revocation hearing

and the trial court's broad discretion in the proceedings, the general standards for reviewing factual

sufficiency do not apply. Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana 2003, pet.

denied). Instead, 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. T.R.S., 115 S.W.3d at 321; Pierce, 113 S.W.3d at 436 (citing Garrett v. State, 619 S.W.2d

172, 174 (Tex. Crim. App. 1981)). Thus, if the greater weight of credible evidence creates a

reasonable belief a defendant has violated a condition of his or her community supervision, the trial

court's order of revocation did not abuse its discretion and must be upheld. Pierce, 113 S.W.3d at

436 (citing Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)). If the State's proof

is sufficient to prove any one of the alleged community supervision violations, the revocation should

be affirmed. T.R.S., 115 S.W.3d at 321 (citing Stevens v. State, 900 S.W.2d 348, 351 (Tex.

App.—Texarkana 1995, pet. ref'd)).

        B.       Analysis

         At the revocation hearing, Officer Debra Stiles testified she was dispatched to the scene of

an assault where Portley was present. She stated:

       he had the smell of alcohol[ic] beverage coming from his breath. He was unsteady on
       his feet. He wanted to lean against the truck while we were talking, or against the


                                                  8
       house, whatever we were standing close to. His eyes were bloodshot. And he–he
       continually repeated himself as if he had forgotten that he had already said it.

Stiles concluded Portley was under the influence of alcohol and was intoxicated.

        Officer Cody Hargrove was also dispatched to the scene, and he testified that he smelled

alcohol on Portley's breath and that Portley's speech was slurred. The officer recalled that Portley

admitted he had been drinking. Portley denied drinking any alcohol that day.

        Based on the testimony of the officers, we conclude the trial court did not abuse its

discretion in finding, by a preponderance of the evidence, that Portley violated his community

supervision by consuming an alcoholic beverage. Portley's last point of error is overruled.

IV.     Conclusion

        We affirm the trial court's judgment.




                                                     Jack Carter
                                                     Justice

Date Submitted:        October 26, 2009
Date Decided:          November 5, 2009

Do Not Publish




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