                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-265-CR


AARON CLARK WHAM                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE

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      FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Aaron Clark Wham appeals from the trial court’s order revoking

his community supervision. He attacks the legal and factual sufficiency of the

evidence to show that he assaulted his wife and argues that the trial court

abused its discretion by revoking his community supervision. We determine




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          … See Tex. R. App. P. 47.4.
that a preponderance of the evidence supports the trial court’s ruling and that

the trial court did not abuse its discretion. We affirm.

      In his first two points of error, Appellant attacks the legal and factual

sufficiency of the evidence to support the order of revocation. Such attacks are

not appropriate for this review.     Rather, we must determine whether a

preponderance of the evidence supports the trial court’s decision. Rickels v.

State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006). The State alleged

that Appellant violated the terms of his community supervision by failing to

begin or complete his forty hours of community service and by committing the

criminal offense of assault of his wife.

      We review an order revoking community supervision under an abuse of

discretion standard. Id. at 763; Cardona v. State, 665 S.W.2d 492, 493 (Tex.

Crim. App. 1984); Cherry v. State, 215 S.W .3d 917, 919 (Tex. App.—Fort

Worth 2007, pet. ref’d). In a revocation proceeding, the State must prove by

a preponderance of the evidence that the defendant violated the terms and

conditions of community supervision. Cobb v. State, 851 S.W.2d 871, 873

(Tex. Crim. App. 1993); Cherry, 215 S.W.3d at 919. The trial court is the sole

judge of the credibility of the witnesses and the weight to be given their

testimony, and we review the evidence in the light most favorable to the trial

court’s ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d

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172, 174 (Tex. Crim. App. [Panel Op.] 1981); Cherry, 215 S.W.3d at 919. If

the State fails to meet its burden of proof, the trial court abuses its discretion

in revoking the community supervision. Cardona, 665 S.W.2d at 493–94.

      Regarding completion of his hours of community service, Appellant’s

probation officer testified that Appellant had not completed any hours of his

community service. This evidence was not contradicted. Thus, we find that

a preponderance of the evidence supports the trial court’s finding that Appellant

failed to complete his community service. Proof of a violation of a condition of

community supervision is sufficient to support the trial court’s order of

revocation. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel

Op.] 1980).

      Appellant does challenge the evidence supporting the trial court’s finding

that he violated his community supervision by committing a new criminal

offense of physical assault on his wife causing bodily injury.        Essentially,

Appellant started drinking in the afternoon of New Year’s Eve 2008. He went

to a neighbor’s residence where he continued drinking.

      Appellant returned home New Year’s Day between 2:00 and 2:30 a.m.,

drunk and stumbling. He argued with his wife, started yelling at his wife, and

then “head-butted” her. After a further struggle she went to the hospital where




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she received seven stitches above her eye.     There, and later at the police

station, she gave statements to the police.

      Appellant said that when he got home in the morning, he and his wife

argued, that she then grabbed his throat, and that he “head-butted” her to get

her to let go. Responding to Appellant’s claim of self-defense, the trial court

noted that even if his claims were true, his use of force was excessive.

      When the issue of self-defense is raised, the State has the burden of

persuasion to disprove self-defense. See Saxton v. State, 804 S.W.2d 910,

913 (Tex. Crim. App. 1991); Manuel v. State, 981 S.W.2d 65, 68 (Tex.

App.—Fort Worth 1998), aff’d, 994 S.W.2d 658 (Tex. Crim. App. 1999). The

issue is whether the State proved, by a preponderance of the evidence, the

offense of assault–family violence. Manuel, 981 S.W.2d at 68.

      A person is justified in using force against another when and to the

degree he reasonably believes the force is immediately necessary to protect

himself against the other’s use or attempted use of unlawful force. See Tex.

Penal Code Ann. § 9.31(a) (Vernon Supp. 2009).

      Regarding this ground for revocation—family violence assault—we again

conclude that a preponderance of the evidence supports the trial court’s

decision.




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     We find no abuse of discretion and therefore affirm the trial court’s order.




                                                 CHARLES BLEIL
                                                 JUSTICE

PANEL: GARDNER and WALKER, JJ.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 31, 2010




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