                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00482-CR


JESUS SOTO                                                          APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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      Pursuant to a plea bargain, appellant Jesus Soto pleaded guilty to driving

while intoxicated-felony repetition. The trial court convicted him, sentenced him

to ten years’ confinement, but suspended imposition of his sentence and placed

him on community supervision for ten years. The State subsequently filed a

petition to revoke Soto’s suspended sentence on two grounds. The first ground,



      1
       See Tex. R. App. P. 47.4.
and the only one at issue in this case, alleged that Soto had violated his

community supervision by, on or about June 14, 2012, intentionally or knowingly,

without the effective consent of Reshee Soto, the owner thereof, entering a

habitation with intent to commit assault. The second ground alleged that on or

about that same date, Soto consumed an alcoholic beverage in violation of his

community supervision conditions. Soto pleaded not true to both grounds. After

a hearing, the trial court revoked Soto’s community supervision on the first

ground in the State’s motion and did not rule on the second ground. The trial

court sentenced Soto to ten years’ confinement, and Soto brought this appeal,

alleging in one issue that the trial court abused its discretion by revoking his

community supervision.

      We review an order revoking community supervision under an abuse of

discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.

2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). 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). 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 172,

174 (Tex. Crim. App. [Panel Op.] 1981). If the State fails to meet its burden of

proof, the trial court abuses its discretion in revoking the community supervision.


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Cardona, 665 S.W.2d at 493–94. Proof by a preponderance of the evidence of

any one of the alleged violations of the conditions of community supervision is

sufficient to support a revocation order. Moore v. State, 605 S.W.2d 924, 926

(Tex. Crim. App. [Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871

(Tex. Crim. App. [Panel Op.] 1980).

      A person commits the offense of burglary if, without the effective consent

of the owner, the person enters a habitation with intent to commit an assault.

Tex. Penal Code Ann. § 30.02(a)(1) (West 2011). The penal code defines the

term ―owner‖ as a person ―who has title to the property, possession of the

property, whether lawful or not, or a greater right to possession of the property

than the actor.‖ Id. § 1.07(a)(35) (West Supp. 2013).

      In this case, Soto argues that the State failed to prove by a

preponderance of the evidence the ownership element of burglary; that is, Soto

argues that he lived at the house and did not need Reshee’s effective consent to

enter. At the revocation hearing, Reshee testified that she and Soto had been

married for seventeen years but that they separated in June 2011. She moved

from their marital residence in Springtown to Fort Worth and rented a house at

3220 Olive Place. She opened her own checking account at that time, and she

paid rent from that account. She forwarded her mail to the Olive Place address,

and Soto’s mail was forwarded there as well. She maintained contact with Soto

and allowed him to list her address as his address on his community supervision




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documents in order to help him fulfill his community supervision requirements. 2

Soto also had clothes at the house and stayed there a total of approximately one

week during the year that Reshee lived there prior to the burglary in June 2012.

At one point, his and Reshee’s daughter gave him a key, but Reshee took it

back. Reshee changed the locks at some point between March and June 2012.

Soto did not have a key to the Olive Place house at the time of the June 2012

burglary.

      Reshee explained that on June 14, 2012, Soto knocked on her door, and

she told him that he was not welcome and needed to leave. He continued to

bang on the door and said he ―was going to get in one way or the other.‖ He

picked up a cross that was on the front porch and threw it through the front

window. Soto crawled through the window, chased down Reshee, and attacked

her. He put his knee on Reshee’s throat and put his arms around her neck. She

could tell that he had been drinking alcoholic beverages. A man Reshee was

dating at the time was at her house, and he yelled for Soto to get off of Reshee.

Soto chased the man outside, and police—who had been called by someone

else—arrested Soto.




      2
       Soto’s community supervision officer Kanika Lee testified that she
conducted a home visit with Soto at the Olive Place house on April 2, 2012. The
Olive Place address was also the address Lee had on file for Soto.




                                       4
      Soto testified that Reshee moved to Fort Worth after she caught him in an

affair but that he moved in with her at the Olive Place house two weeks later.

According to Soto, he gave Reshee money to pay the rent, and she gave him a

key to the house. He said that on the day of the alleged burglary, he saw a

strange truck at the house and, when he tried to open the door with his key, the

deadlock was locked, preventing him from opening the door.        When no one

answered his knock, he broke the window.

      Viewed in the light most favorable to the judgment, the evidence shows

that Soto did not live at, and had never lived at, the Olive Place house. See

Cardona, 665 S.W.2d at 493; Garrett, 619 S.W.2d at 174. After moving out of

the marital residence to get away from Soto, Reshee rented the Olive Place

house and paid the rent out of her own bank account. Soto did not have a key to

the house at the time of the burglary and stayed there a total of one week in the

year prior to the burglary. Although Soto presented contrary testimony, the trial

court was the sole judge of the credibility of the witnesses. See Cardona, 665

S.W.2d at 493; Garrett, 619 S.W.2d at 174. And the sole fact that Soto and

Reshee were married did not authorize him to break a window to the house

rented and occupied solely by Reshee. See Stanley v. State, 631 S.W.2d 751,

753 (Tex. Crim. App. [Panel Op.] 1982) (so stating).      We conclude that the

preponderance of the evidence shows that Soto violated the condition of his

community supervision prohibiting him from committing an offense by

intentionally or knowingly, without Reshee’s effective consent, entering Reshee’s


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habitation with intent to commit assault.        See Tex. Penal Code Ann. §

30.02(a)(1).   Thus, the trial court did not abuse its discretion by revoking Soto’s

community supervision. We overrule Soto’s sole issue and affirm the trial court’s

judgment.




                                                   SUE WALKER
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

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

DELIVERED: January 9, 2014




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