      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-01-00017-CR



                             Oscar Ismael Martinez, Jr., Appellant

                                                 v.

                                   The State of Texas, Appellee



  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
        NO. A-97-0627-S, HONORABLE DICK ALCALA, JUDGE PRESIDING



               Appellant Oscar Ismael Martinez, Jr. appeals the trial court’s judgment revoking his

probation. Appellant raises four issues on appeal, arguing that: (1) the trial court improperly

delegated its authority to impose probation conditions; (2) the trial court abused its discretion when

it found that appellant violated the community service restitution condition of his probation; (3) the

probation condition requiring a curfew was an invalid condition; and (4) the trial court abused its

discretion when it found that appellant violated his curfew. We affirm the trial court’s judgment.


                                         BACKGROUND

               Appellant pleaded guilty to the offense of organized crime, and the trial court imposed

shock probation. See Tex. Pen. Code Ann. § 71.02 (West Supp. 2001). Appellant was initially sent

to boot camp as part of his sentence, but the sentence was later probated and appellant was placed

on probation for ten years. Among the conditions of his probation, appellant was restricted to his
home between the hours of 10:00 p.m. and 6:00 a.m. and was ordered to perform ten hours per

month of community service until a total of two hundred forty hours were performed.

               On July 6, 1999, the State filed a motion to revoke probation, alleging that appellant

violated both of the aforementioned conditions of his probation. Following a hearing during which

both parties presented evidence, the trial court found that appellant violated the conditions of his

probation. The court then abated the revocation proceedings pending resolution of a related criminal

indictment. When the trial court reconvened, it announced its decision to revoke appellant’s

probation.


                                           DISCUSSION

               By his third issue, appellant argues that the imposed curfew was an invalid condition

of his probation. He contends there is no evidence to indicate that: (1) the curfew was related to the

crime committed; (2) the curfew deters future criminal activity or serves community supervision

statutory objectives; or (3) being away from one’s residence after 10:00 p.m. is a criminal activity.

               Probation conditions are reasonable if the conditions have a reasonable relationship

to the treatment of the accused and the protection of the public. Tamez v. State, 534 S.W.2d 686,

691 (Tex. Crim. App. 1976); Johnson v. State, 672 S.W.2d 621, 623 (Tex. App.—Corpus Christi

1984, no pet.). A probationary condition is invalid if: (1) it has no relationship to the crime; (2) it

relates to conduct that is not in itself criminal; and (3) it forbids or requires conduct that is not

reasonably related to the future criminality of the defendant and does not serve the statutory

objectives of the community supervision. Lacy v. State, 875 S.W.2d 3, 5 (Tex. App.—Tyler 1994,

pet. ref’d). The imposition of a curfew may be a reasonable condition of probation. Salinas v. State,


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514 S.W.2d 754, 755 n.1 (Tex. Crim. App. 1974). The court of criminal appeals has upheld the

imposition of a curfew for the purpose of preventing “unproductive activities and potentially

deleterious associations.” Id.

                In this case, appellant was on probation following a plea of guilty to the offense of

organized crime, which arose from a drive-by shooting. As in Salinas, under these circumstances,

the trial court could have imposed the curfew restriction in an effort to prevent potentially deleterious

associations and unproductive activity. The trial court has broad discretion in selecting the terms and

conditions of probation. Id. We conclude the trial court did not abuse its discretion in imposing a

10:00 p.m. curfew as a condition of appellant’s probation and overrule his third issue.

                In his fourth issue, appellant argues the trial court abused its discretion when it found

that appellant violated his curfew. The decision to revoke probation is within the trial court’s

discretion. Wester v. State, 542 S.W.2d 403, 405 (Tex. Crim. App. 1976); Allen v. State, 946

S.W.2d 115, 116 (Tex. App.—Texarkana 1997, no pet.). The trial court is not authorized to revoke

probation without a showing that the probationer violated a condition of probation, Degay v. State,

741 S.W.2d 445, 449 (Tex. Crim. App. 1987); a trial court does not abuse its discretion if sufficient

evidence exists to support a finding that a condition of probation has been violated. Stevens v. State,

900 S.W.2d 348, 351 (Tex. App.—Texarkana 1995, pet. ref’d). The State need only prove by a

preponderance of the evidence that the terms of probation were violated. Cardona v. State, 665

S.W.2d 492, 494-95 (Tex. Crim. App. 1984). Proof of a single violation is sufficient to support

revocation of probation. O’Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App. 1981).

                In this case, appellant was accused of violating his curfew after he was found at a local

park at 10:04 p.m. on July 4, 1999. Appellant testified that, on that night, he and his girlfriend went

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to the lake to view a fireworks display. He left the lake at about 9:15, before the fireworks display

ended, in an effort to avoid traffic and arrive at his house by his 10:00 p.m. curfew. Under normal

conditions, appellant would have reached his house from the lake within twenty minutes. However,

as appellant departed for home, police officers began stopping every vehicle within the lake’s

vicinity,1 searching for a suspect in the death of an individual at the lake and traffic became congested.

Appellant argues that he could not have foreseen that the traffic would be so congested when he left

the lake, and the trial court therefore abused its discretion in revoking his probation for violating his

curfew.

                The State disputes appellant’s account of the events on July 4, 1999. Johnny

Matheny, a police officer with the San Angelo Police Department, testified that in his opinion, if

appellant had left before the fireworks display ended, as appellant claims he did, he could have

“[gotten] out of the lake area pretty quickly, pretty easily.” After hearing the testimony, the trial

court found “he wasn’t near home.” The trial court is the sole trier of fact in a motion to revoke

hearing and may resolve inconsistencies in the evidence. Kulhanek v. State, 587 S.W.2d 424, 426

(Tex. Crim. App. 1979). The trial court did not abuse its discretion in resolving the inconsistent

testimony of appellant and Matheny in favor of the State.




     1
         There is some indication that the officers were searching for appellant, suspecting his
involvement in the death of the individual at the lake. During the evidentiary hearing, appellant asked
if the police were looking for him; he answered, “possibly.” When they found him at 10:04, they
arrested him. Appellant was later convicted of criminally negligent homicide as a result of that death.
However, this conviction was not recited as one of the bases for his probation revocation. Although
appellant was initially charged with reckless homicide as one of the three grounds for violation of
probation, the State abandoned this ground.

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                Even without Matheny’s testimony, however, appellant conceded that he was not at

home by his curfew on the night of July 4. His contention is that, based on the circumstances of that

evening, his failure to comply with his curfew was an insufficient basis to revoke his probation. A

trial court’s decision to revoke probation will not be disturbed for an abuse of discretion so long as

the State has met its burden of proving a violation by a preponderance of the evidence. Jimmerson

v. State, 957 S.W.2d 875, 878 (Tex. App.—Texarkana 1997, no pet.). Preponderance of the

evidence is the greater weight and degree of credible testimony. Id. In this case, appellant does not

dispute that he violated a condition of his probation, and thus, the trial court was within its discretion

in revoking his probation based on this violation. Appellant’s fourth issue is overruled.

                Because proof of a single violation is sufficient to support revocation of probation,

resolution of appellant’s first two issues will not affect the outcome of this appeal and we therefore

do not reach them. O’Neal, 623 S.W.2d at 661; see also Tex. R. App. P. 47.1 (court of appeals

should address every issue raised and necessary to final disposition of appeal). Accordingly, we

affirm the trial court’s judgment.




                                                Jan P. Patterson, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: January 10, 2002

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Do Not Publish




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