
                             NO. 07-08-00255-CR

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL D

                               APRIL 21, 2010




                      THOMAS ALBERT ARENDER, APPELLANT


                                     v.


                        THE STATE OF TEXAS, APPELLEE



                FROM THE 40TH DISTRICT COURT OF ELLIS COUNTY;

                  NO. 27480CR; HONORABLE GENE KNIZE, JUDGE



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


                             MEMORANDUM OPINION


      Appellant Thomas Albert Arender appeals from the  order  revoking  his
community supervision, adjudicating him guilty of two counts  of  aggravated
sexual assault of a child,  and  imposing  a  sentence  that  includes  life
imprisonment for each count in  the  Institutional  Division  of  the  Texas
Department of Criminal Justice.  By his eight  points  of  error,  appellant
contends that the trial court abused its discretion in revoking  appellant(s
community supervision and adjudicating him guilty because the  evidence  did
not prove at least one alleged violation by a preponderance of the  evidence
and was factually insufficient to prove the violations.  Finding  sufficient
evidence to support the trial court(s judgment, we affirm  the  judgment  as
modified.

                                 Background

      In September 2003, appellant was charged  by  a  two-count  indictment
with the offense of aggravated sexual assault  of  a  child.[1]    In  April
2004, appellant plead guilty.  The trial court entered  an  order  deferring
adjudication, placed appellant on community supervision for a  term  of  ten
years and imposed a  $5000  fine.   Appellant(s  deferred  adjudication  was
conditioned on his compliance with specified terms and conditions.

       The State filed its second amended motion to revoke in October  2007,
alleging  numerous  violations  including  the  commission  of  a   criminal
offense, use of illicit substances and alcohol, leaving the  county  without
permission, failing to pay fees, costs, restitution and fines despite  being
employed, failure to comply with curfew,  having  unsupervised  visits  with
young children, failing to successfully complete sexual offender  treatment,
viewing pornography, and tampering with  an  electronic  monitoring  device.
After hearing the evidence presented  at  the  hearing,  the  court  revoked
appellant(s community supervision  and  sentenced  him  as  we  have  noted.
Appellant timely appealed.

                                  Analysis

      In each of appellant(s first seven  issues,  he  contends  the  trial
court abused its discretion in finding the evidence  presented  proved  the
violations by a preponderance of the evidence.  We disagree.



Applicable Law

      In a community supervision  revocation  hearing,  the  State  has  the
burden of proving by a preponderance of the evidence  that  a  condition  of
community supervision has been violated.  Rickels v. State, 202 S.W.3d  759,
763 (Tex.Crim.App. 2006); Jenkins v. State, 740  S.W.2d  435  (Tex.Crim.App.
1983).  Proof of one violation of the  terms  and  conditions  of  community
supervision is sufficient to support the  revocation.   McDonald  v.  State,
608 S.W.2d 192  (Tex.Crim.App.  1980);  Taylor  v.  State,  604  S.W.2d  175
(Tex.Crim.App. 1980).  The trial  court  is  the  trier  of  the  facts  and
determines the weight and credibility of the testimony.   Garret  v.  State,
619 S.W.2d 172 (Tex.Crim.App.  1981);  Barnett  v.  State,  615  S.W.2d  220
(Tex.Crim.App. 1981).  Appellate  review  of  an  order  revoking  community
supervision is limited to the issue of whether the trial  court  abused  its
discretion.  Speth v. State, 6 S.W.3d 530, 533 (Tex.Crim.App. 1999),  citing
Flournoy v. State, 589 S.W.2d 705, 707 (Tex.Crim.App. 1979).  If  the  State
does not meet its burden of proof, the trial court abuses its discretion  by
revoking the defendant's probation. Cardona v. State, 665 S.W.2d  492,  493-
94 (Tex.Crim.App.1984).

Trial Court Did Not Abuse Its Discretion In Revoking Appellant's  Community
Supervision

      At the hearing, the State introduced a certified copy of the  judgment
and sentence relating to appellant(s no  contest  plea  in  August  2006  in
connection with the offense of driving with an invalid  license.  The  State
also presented a fingerprint expert to connect appellant with this  offense.


      The State also introduced  evidence  to  show  that  during  the  pre-
sentence investigation in September 2007, appellant admitted using  cocaine,
heroin, marijuana and LSD while on  probation.   Appellant  tested  positive
for illegal substances on at  least  one  occasion.   Appellant(s  community
supervision officer testified appellant admitted  to  drinking  alcohol  and
the  officer  observed  empty  beer  cases  and  cans   around   appellant(s
residence.

      The officer also testified that in July 2007, he discovered a  "tamper
warning" from appellant(s electronic ankle  monitor  and  on  examining  the
unit, found it appeared the band had been stretched to the  point  where  it
could be removed.  The officer stated that even after  changing  appellant(s
electronic monitor to a GPS unit, there was evidence of tampering.

      We find ample evidence to show appellant failed to follow at least one
of the terms and conditions of his community  supervision.  See  Trevino  v.
State, 218 S.W.3d 234, 240 (Tex.App.(Houston [14th  Dist.]  2007,  no  pet.)
citing Greer v. State, 999 S.W.2d 484, 486  (Tex.App.(Houston  [14th  Dist.]
1999, pet. ref(d) (proof of one violation of the  terms  and  conditions  of
community  supervision  is  sufficient  to  support  the  revocation).   The
preponderance of the evidence supports the trial court's revocation  and  we
find no abuse of discretion.  We overrule appellant(s issues 1-7.

Factual Insufficiency Not Applicable

      In appellant(s eighth issue, he contends the evidence presented at the
hearing was factually insufficient to support the trial court(s ruling.   As
noted, we review a trial court(s decision to  revoke  community  supervision
for an abuse of discretion.   Rickels,  202  S.W.3d  at  763.   The  general
standards for reviewing the factual  sufficiency  of  the  evidence  do  not
apply to appeals from the revocation of community  supervision.   Pierce  v.
State, 113 S.W.3d 431, 436 (Tex.App.(Texarkana 2003,  pet.  ref(d);  Cochran
v. State, 78 S.W.3d 20, 27 (Tex.App.(Tyler 2000, no pet.); 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).  See also Duhon v. State, No. 07-07-0064-CR, 2007 WL  2847315
(Tex.App.(Amarillo Oct. 2, 2007, no  pet.),  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). Rather, we  review  the  decision  to  revoke
community supervision in the light most favorable to  the  judgment,  giving
deference to the trial court as the sole trier of facts, the credibility  of
the witnesses, and the  weight  to  be  given  to  the  evidence  presented.
Garret,  619  S.W.2d  at  174;  Jones  v.   State,   787   S.W.2d   96,   97
(Tex.App.(Houston [1st Dist.] 1990, pet. ref(d).  A  trial  court  does  not
abuse its discretion if the greater weight of credible  evidence  creates  a
reasonable belief  that  a  defendant  violated  a  condition  of  community
supervision.  Rickels, 202 S.W.3d at 764.

      As we concluded with regard  to  appellant(s  first  seven  points  of
error, the trial court(s revocation  of  appellant(s  community  supervision
and adjudication of guilt was supported by a preponderance of the  evidence.
 We overrule appellant(s eighth point of error.



Reformation of Judgment

      In our review of the  record,  it  came  to  our  attention  that  the
judgment includes a clerical error.  Page  two  of  the  judgment  indicates
appellant plead "true" to the State's allegations.   The  reporter's  record
indicates appellant plead "not true" to the State's allegations.

      This court has the power to modify the judgment of the court below  to
make the record speak the truth when we have the  necessary  information  to
do so. Tex. R. App. P. 43.2(b);  Bigley  v.  State,  865  S.W.2d  26,  27-28
(Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526,  529-30  (Tex.App.--
Dallas 1991, pet. ref'd). "The authority of an appellate court to reform  an
incorrect judgment is not dependent upon the request of any party, nor  does
it turn on the question of whether a party has or has not  objected  in  the
trial court." Asberry, 813 S.W.2d at 529-30.

      Because the record unambiguously indicates appellant plead "not  true"
to the State's allegations, we modify the judgment  to  correct  the  error.
As modified, we affirm the judgment of the trial court.


                                             James T. Campbell
                                                   Justice

Do not publish.

-----------------------
      [1]See Tex. Penal Code Ann. ( 22.021 (Vernon 2007).



