Affirmed and Memorandum Opinion filed February 3, 2015.




                                         In The

                       Fourteenth Court of Appeals

                                 NO. 14-14-00098-CR
                                 NO. 14-14-00099-CR

                  LAJOHN FITZGERALD WILSON, Appellant
                                            V.

                         THE STATE OF TEXAS, Appellee

                    On Appeal from the Criminal District Court
                             Jefferson County, Texas
                    Trial Court Cause Nos. 12-13927 & 12-13930

                   MEMORANDUM                        OPINION


      Appellant Lajohn Fitzgerald Wilson appeals the trial court’s revocation of
his probation for aggravated robbery. See Tex. Penal Code Ann. § 29.03(a)(2)
(West, Westlaw through 2013 3d C.S.). In two issues he contends the evidence is
insufficient to support the trial court’s revocation. We affirm. 1


      1
          Appellant initially appealed to the Ninth Court of Appeals. Pursuant to a docket
                                       I. BACKGROUND

       Appellant pleaded guilty to two counts of aggravated robbery in exchange
for ten years’ deferred adjudication probation. The State subsequently filed a
“Motion to Revoke Unadjudicated Probation” in each case in which the State
alleged that appellant violated his probation by committing the offense of burglary
of a habitation.

       At the hearing on the State’s motion to revoke probation, D. M., a thirteen-
year-old boy who lived in the burglarized house, testified that he was in his room
playing a game when he heard a noise that sounded like someone knocking on the
window with a hammer or crowbar. D. M. grabbed the phone, went into his
mother’s bedroom closet and called 911. D. M. heard glass break and heard voices
of more than one person discussing the number of televisions in the house. D. M.
heard the men try to open the locked closet, but did not exit the closet until the
police arrived.

       When police arrived, appellant and his co-defendant, Jarord Johnson, fled
from the house. Officers saw Johnson leave the house carrying a pillowcase. Using
dogs trained to track, officers found appellant hiding under a house, which had a
raised foundation. Officers located Johnson at his residence, which was across the
street from the burglarized house.

       Martha Washington, D. M.’s mother and the complainant in the burglary
charge, testified that appellant approached her in front of her house three days
before the burglary and was in front of her house for approximately twenty
minutes. Appellant told Washington that he had a message from her ex-boyfriend,

equalization order, this appeal was transferred to this court. See Tex. Gov’t Code Ann. § 73.001
(West, Westlaw through 2013 C.S.). We must decide the case in accordance with the precedent
of the Ninth Court of Appeals in the event there is a conflict with precedent from this court. See
Tex. R. App. P. 41.3.

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Eddie. When Washington arrived home on the day of the burglary she discovered a
pillowcase in the driveway, which contained several of D. M.’s electronic game
controllers and a laptop computer.

      In a statement to police appellant stated that he went into Washington’s
house at Johnson’s invitation. Appellant stated he did not know the house belonged
to Washington, but assumed it was Johnson’s house. Although appellant saw
Johnson putting items in a pillowcase, he claimed not to have known a burglary
was taking place. While in the house appellant heard noises coming from the closet
and opened the door. He saw the “little boy,” and asked whether he had called the
police. At that time, appellant looked out of the window, saw the patrol car, walked
outside, heard the police say, “freeze,” and “took off running across the street away
from the officers.”

      At the revocation hearing Johnson testified that he had asked appellant to
come to his house. When appellant arrived Johnson was in the process of
burglarizing the complainant’s house. Johnson testified that appellant did not know
he was burglarizing the house. Johnson testified that he lied to the police at the
time of the burglary, and testified that appellant did not know about the burglary.
This testimony is contrary to Johnson’s prior written statement in which he
averred:

      On 8-20-13 at approximately 1100 am a subject who I know as BJ (La
      john Wilson) came to my house to help him return an item from
      Walmart. I have known BJ for approximately 2 months and met him
      in county jail. I told BJ to come back later. BJ returned to my house at
      approximately 100 pm and knocked on my bedroom window. BJ told
      me the house across the street was unlocked and to help him do this
      LICK. Lick is street slang for burglary. BJ was wearing a white
      muscle shirt and [black] nike slippers.
      When I walked out of my house I observed BJ walk to the back of
      5140 Minnie [Washington’s house] which is directly across the street
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      from my house. I walked to the back of 5140 Minnie and BJ was
      already inside the residence. BJ handed me a tan pillow case threw
      [sic] the back window of the residence. I continued standing outside
      the residence holding the pillow case. After several minutes I
      observed the Police pull up in a SUV and an Officer was walking to
      the back of the residence. I dropped the pillow case in the yard and
      took off running west bound beside the drainage ditch. I then doubled
      back and went back to my house at 5121 Minnie. I went in through
      the back door and changed my wet clothes in the laundry room. I went
      into my room and the Police came and got me several minutes later. I
      was placed under arrest and voluntary [sic] came to the Police station
      to speak with Investigator Croak. I told Investigator Croak the truth
      about what happened.
      At the conclusion of the hearing, the trial court found that the State proved
the allegation of burglary by a preponderance of the evidence. Finding that
appellant violated his probation by committing the offense, the court sentenced
him to confinement for 50 years in the Institutional Division of the Texas
Department of Criminal Justice.

                                   II. ANALYSIS

      In two issues appellant contends the trial court violated his rights to due
process and fundamental fairness because the State did not prove that appellant
committed the offense of burglary of a habitation, and abused its discretion in
revoking his probation because there was insufficient evidence to support the
finding that he violated a condition of probation by committing the offense of
burglary of a habitation. We will address appellant’s issues together.

      Our review of the trial court’s order revoking community supervision is
limited to determining whether the trial court abused its discretion. See Cardona v.
State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). When reviewing the
sufficiency of the evidence to support revocation of probation, we view the
evidence in the light most favorable to the decision to revoke. See Hart v. State,

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264 S.W.3d 364, 367 (Tex. App.—Eastland 2008, pet. ref’d).

      The State’s burden of proof in a revocation proceeding is by a
preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim.
App. 1993). The State satisfies its burden when the greater weight of credible
evidence before the trial court creates a reasonable belief demonstrating it is more
probable than not that the defendant has violated a condition of his probation.
Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim. App. 2006); Staten v. State, 328
S.W.3d 901, 905 (Tex. App.—Beaumont 2010, no pet.). When the State fails to
meet its burden, it is an abuse of discretion for the trial court to issue a revocation
order. Cardona, 665 S.W.2d at 493–94. In a revocation proceeding, the trial court
is the sole trier of the facts, the credibility of the witnesses, and the weight to be
given to witnesses’ testimony. Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim.
App. 1987).

      Appellant’s argument rests on his own testimony and that of his co-
defendant, Johnson. Appellant argues that the trial court erred in crediting the
police officer’s testimony and Johnson’s prior statement over that of appellant, and
Johnson’s testimony at the hearing. As the sole trier of facts and credibility of
witnesses, the trial court was within its discretion in crediting the police officers
and D. M.’s testimony, especially in light of the fact that their testimony was
corroborated by Johnson’s first statement made to the police.

      We conclude the trial court did not abuse its discretion in crediting the
officers’ testimony over that of appellant and his co-defendant. The record contains
sufficient evidence for the trial court to have formed a reasonable belief that
appellant violated the terms of his community supervision by entering the
complainant’s house with the intent to commit theft. The State met its burden of
proving by a preponderance of the evidence that appellant violated the terms of his

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probation. See Johnson v. State, 943 S.W.2d 83, 85 (Tex. App.—Houston [1st
Dist.] 1997, no pet.) (State meets its burden when the greater weight of the credible
evidence creates a reasonable belief that the defendant violated a condition of his
probation as the State alleged).

      We overrule appellant’s two issues and affirm the trial court’s judgment.




                                       /s/       John Donovan
                                                 Justice



Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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