
                                 NOS. 07-08-00282-CR, 07-08-00283-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL D

                                            APRIL 21, 2010




                                      JARMAL BRISCOE, APPELLANT


                                                  v.


                                     THE STATE OF TEXAS, APPELLEE



                           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY;

                            NO. 0929049D; HONORABLE MOLLEE WESTFALL, JUDGE



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


                                          MEMORANDUM OPINION


      Appellant Jarmal Briscoe appeals from the trial court(s judgment  adjudicating  him  guilty  of
aggravated robbery in two separate causes, revoking his community supervision, and sentencing him  to
two concurrent twenty-year terms in the Institutional Division of the Texas  Department  of  Criminal
Justice.  By two issues, appellant contends the trial court abused its  discretion  in  revoking  his
community supervision because the  evidence  presented  at  the  hearing  was  insufficient  to  show
appellant committed misdemeanor assault as alleged in the State(s petition.  Finding  the  court  did
not abuse its discretion, we affirm.

                                              Background

      On July 22, 2004, the State indicted appellant, in two causes, for aggravated  robbery  with  a
deadly weapon, a firearm.[1]  The record shows that appellant, on an open plea to  the  court,  plead
guilty in each cause.  The trial court suspended imposition of appellant(s sentences and  placed  him
on deferred adjudication community supervision for a period of eight  years.   Appellant(s  community
supervision was subject to certain terms and conditions, including that appellant commit  no  offense
against the State of Texas.  See Tex. Code Crim. Proc. Ann. art. 42.12, (( 2(2), 3, 11(a)(1)  (Vernon
Supp. 2007).

      After the conditions of community supervision were once modified, the State  filed  its  Second
Petition to Proceed to Adjudication alleging appellant committed a new offense of assault on  January
7, 2008.[2]

      Appellant plead (not true( to each of the State(s allegations.  The only allegation at issue is
the allegation appellant assaulted another man in January 2008.  In support of its  allegations,  the
State presented the testimony of the victim and two other witnesses who said they  saw  the  assault.
Appellant and Jennifer Downs, the mother of his  children,  presented  his  version  of  the  events.
Testimony indicated an altercation ensued when appellant visited the home of Ms. Downs, who then  was
dating the victim.   The State’s evidence showed appellant hit the victim in the  head  with  a  beer
bottle.  Appellant’s evidence asserted appellant did not initiate the contact and he acted  in  self-
defense.  The court heard this evidence  and  found  the  State(s  allegation  to  be  true,  revoked
appellant(s community supervision, and sentenced him as noted. This appeal followed.

                                               Analysis

        In appellant(s issues, he contends the trial court abused  its  discretion  in  revoking  his
community supervision because the  evidence  presented  at  the  hearing  failed  to  establish  that
appellant committed the January 2008 assault.  We disagree, finding the State  satisfied  its  burden
and the trial court did not abuse its discretion.

      Appellate review of an order revoking community supervision is limited to review for abuse of a
trial court(s discretion.  Rickels v. State,  202  S.W.3d  759,  763  (Tex.Crim.App.  2006),  quoting
Cardona v. State, 665 S.W.2d 492, 493  (Tex.Crim.App.  1984).   In  determining  questions  regarding
sufficiency of the evidence in community supervision revocation cases, the burden of proof  is  by  a
preponderance of the evidence.  Id.  An order revoking community supervision must be supported  by  a
preponderance of the evidence; in other words, that greater weight of  the  credible  evidence  which
would create a reasonable belief that the  defendant  has  violated  a  condition  of  his  community
supervision.  Id. at 763-64, citing Scamardo v. State, 517 S.W.2d 293, 298 (Tex.Crim.App. 1974).   We
must view the evidence in a light most favorable to the verdict.  Garrett v. State, 619  S.W.2d  172,
174 (Tex.Crim.App. 1981).  See also Browder v. State, 109 S.W.3d 484, 485 (Tex.Crim.App.  2003).   At
the hearing of a motion to revoke community supervision, the judge is the  sole  fact-finder  and  in
that  role  is  empowered  to  make  credibility  determinations.   Garrett,  619  S.W.2d  172,   174
(Tex.Crim.App. 1981), Duhon v. State, No. 07-07-0064-CR, 2007 WL 2847315 (Tex.App.(Amarillo  Oct.  2,
2007, no pet.) (mem. op., not designated for publication).

      Appellant(s argument regarding the application of the law to the facts  of  his  case  concedes
that several Texas appellate courts hold that evidence supporting a revocation  finding  may  not  be
reviewed  for  factual  sufficiency.   See,  e.g.,   Pierce   v.   State,   113   S.W.3d   431,   436
(Tex.App.(Texarkana 2003, pet. ref(d); Becker v. State, 33 S.W.3d 64, 66 (Tex.App.(El Paso  2000,  no
pet.) (so holding).  This court, and the Fort Worth  Court  of  Appeals  from  which  this  case  was
transferred,[3]  are  among  them.    Newton  v.  State,   No.   07-08-0136-CR,   2008   WL   4901244
(Tex.App.(Amarillo Nov. 14, 2008, no pet.) (mem. op., not designated  for  publication)  (considering
the administrative nature of a revocation proceeding and the  trial  court(s  broad  discretion,  the
general standards for reviewing factual sufficiency do not apply); Johnson v. State,  2  S.W.3d  685,
687 (Tex.App.(Fort Worth 1999, no pet.).  See also Duhon, No. 07-07-0064-CR, 2007 WL 2847315,  citing
Davila v. State, 173 S.W.3d 195, 198 (Tex.App.(Corpus  Christi  2005,  no  pet.)  (collecting  cases)
(factual sufficiency review  is  inapplicable  to  the  hearing  of  a  motion  to  revoke  community
supervision).  However,  citing  to  a  child  custody  case,  In  re  S.W.H.,  72  S.W.3d  772,  776
(Tex.App.(Fort Worth 2002, no pet.), appellant urges us to consider  factual  sufficiency  here.   We
decline to do so.  We will instead review the evidence presented at the hearing to determine  whether
the State satisfied its burden of proving at least one violation by a preponderance of the evidence.

      As noted, at the hearing, the State presented evidence appellant hit the victim with a  bottle.
Its evidence showed appellant arrived at the apartment of Ms. Downs,  his  former  girlfriend,  where
three other individuals, one other female and two males, were present.  At the time,  Downs  and  the
victim were dating.  Appellant came to the apartment to retrieve some of his belongings.  The  victim
was sitting on the couch when  appellant  reached  around  him  to  take  a  picture  off  the  wall.
According to the victim and two other  individuals  present,  appellant  (bumped(  the  victim.   The
victim said he offered to move if necessary but appellant (got mad  or  whatever,  and  then  he  hit
[Downs], and he hit me with a bottle.(  The victim testified that appellant hit the left part of  the
victim(s head with the bottle and the bottle broke, causing  him  pain.  The  State  introduced  four
photographs in conjunction with the victim(s testimony.   The  two  other  individuals  present  that
evening also testified that appellant hit the victim with a bottle and that the  victim  did  nothing
to provoke appellant(s assault.

      As the State acknowledges, Downs testified appellant did not hit  the  victim  with  a  bottle.
However, she admitted at the  hearing  she  had  given  police  different  versions  of  the  events,
including telling police appellant pulled a bottle out of his pocket and  hit  the  victim  with  it.
She acknowledged she also had told police appellant had  hit  her.   Her  testimony  at  the  hearing
included the assertion the victim (swung  at  and  went  after(  appellant.[4]   She  explained  this
version came (from me and not from what other people are telling me to say.(

      Appellant testified he did not assault the victim with the bottle.  He agreed he went to Downs’
apartment to retrieve his belongings.  When he got there, four people were  present.   One  of  them,
the victim, was sitting on the couch when appellant reached over his head to get a  picture  off  the
wall. Appellant testified the victim  said  he  should  have  asked  him  to  move.   Appellant  then
testified the victim (stood up in [his] face or whatever, and we exchanged words, and he  pushed  me(
. . . and I hit him . . . [with] my fist.(  Appellant denied having a bottle or  hitting  the  victim
with the bottle but acknowledged he and the victim (were in a fight.(  He  stated  he  was  defending
himself and agreed that the victim was bigger and  weighed  more  than  he.   Appellant  also  denied
hitting, striking or pushing Downs that night.

      On cross-examination, appellant denied bumping the victim, denied hitting him  with  a  bottle,
and denied hitting Downs.  He did admit to throwing and breaking a phone, an event  testified  to  by
other witnesses.  He again  testified  that  the  victim  began  pushing  and  hitting  him  with  no
provocation from appellant at all.  He maintained he acted in  self-defense.  At  the  close  of  the
evidence and after hearing counsel(s arguments, the court found the State(s allegation regarding  the
assault to be (true,( found appellant violated the  terms  of  his  probation,  and  adjudicated  him
guilty of the underlying offense of aggravated robbery with a deadly weapon.

      As noted, reviewing the sufficiency of evidence supporting revocation of probation, we view the
evidence in a light most favorable to the trial court’s action.  Bearing that standard in  mind,  and
recalling that at such a hearing the trial court, as fact-finder, determines the credibility  of  the
witnesses, we find the trial court  here  reasonably  could  have  believed  the  version  of  events
described by the victim and two witnesses and disbelieved the  version  recounted  by  appellant  and
Downs.  We overrule appellant(s issues and affirm the judgment of the trial court in each cause.



                                             James. T. Campbell
                                                   Justice



Do not publish.





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      [1]  See Tex. Penal Code Ann. ( 29.03 (Vernon 2003).

      [2]  The State alleged appellant (did then and there intentionally or  knowingly  cause  bodily
injury to [male], by hitting him with a bottle, or punching him with his fist, or  hitting  him  with
his hand.( The State also alleged appellant failed to pay required fees  and  costs,  and  failed  to
participate and complete required community service.  The trial court did not find these  allegations
to be true.

      [3] See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005).
      [4]  Evidence at the hearing  indicated  appellant  and  Downs  reconciled  shortly  after  the
incident in question.



