                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo
                                ________________________

                                     No. 7-13-00105-CR
                                ________________________

                             ALLEN GRAVES, JR., APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE



                             On Appeal from the 46th District Court
                                    Wilbarger County, Texas
                  Trial Court No. 11,634; Honorable Dan Mike Bird, Presiding


                                          June 13, 2014

                              MEMORANDUM OPINION
                    Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


       In May 2012, following an open plea of guilty to the offense of assault against a

family member by occlusion,1 Appellant, Allen Graves, Jr., entered into a plea bargain

whereby he was sentenced by the trial court to seven years confinement, suspended for

five years, and assessed a $1,000 fine.             The trial court issued its Judgment of


       1
          See TEX. PENAL CODE ANN. § 22.01 (West Supp. 2013). As alleged in the indictment of this
cause, the offense was a second degree felony. Id. at § 22.01(b-1)(3) (West Supp. 2013).
Conviction incorporating by reference the conditions of his community supervision

which, among other things, required that Appellant not commit any offense against the

laws of this State or any other State of the United States (Condition No. 3) and pay his

fine, court costs and monthly probation service fee (Condition No. 6).


        In March 2013, the State filed its Motion to Revoke Probation alleging Appellant

committed five new criminal offenses and failed to pay his fine, court costs and monthly

probation service fee. At the hearing on the State’s motion, the State proceeded on

only two violations of Condition No. 3 and the violation of Condition No. 6. The two

violations of Condition No. 3 the State proceeded on alleged Appellant: (1) assaulted a

prior girlfriend and (2) committed the offense of criminal mischief by damaging a pair of

window screens. Appellant plead “not true” to the violations of Condition No. 3 and

“true” to the violation of Condition No. 6.2 At the conclusion of that hearing, the trial

court found Appellant violated the terms of community supervision,3 revoked the prior

order suspending imposition of sentence, and imposed the original sentence of seven

years confinement. The trial court also ordered Appellant to pay his court-appointed

attorney’s fees of $400.          On appeal, Appellant asserts (1) there was insufficient

evidence of an assault to require revocation and (2) the trial court erred in revoking his

community supervision for non-payment because the uncontroverted facts established

he had an inability to pay. We modify the trial court’s judgment to delete the order that

Appellant pay $400 in court-appointed attorney’s fees and affirm as modified.


        2
           Notwithstanding his plea of true to the violation of Condition No. 6, Appellant did contest his
financial ability to pay his fine, court costs and supervision fees.
        3
          The trial court found the allegations of the assault and the non-payment to be true; however, the
court found the allegations of criminal mischief to be not true.

                                                    2
                                 STANDARD OF REVIEW


      Our review of an order revoking community supervision is limited to determining

whether the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763

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

1984)). In an adjudication hearing, the State must prove by a preponderance of the

evidence that the defendant violated the terms of community supervision. Id. at 763-64;

Antwine v. State, 268 S.W.3d 634, 636 (Tex. App.—Eastland 2008, pet. ref’d).           A

preponderance of the evidence means “that greater weight of the credible evidence

which would create a reasonable belief that the defendant has violated a condition of his

probation.”   Rickels, 202 S.W.3d at 763–64.        In determining the sufficiency of the

evidence to sustain a revocation, we view the evidence in the light most favorable to the

trial court’s ruling, Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Jones

v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979), while recognizing that “[t]he trial

court is the sole judge of the credibility of witnesses and the weight to be given their

testimony.” Antwine 268 S.W.3d at 636.          Given the unique nature of a revocation

hearing and the trial court’s broad discretion in the proceedings, the general standards

for reviewing sufficiency of the evidence do not apply. Pierce v. State, 113 S.W.3d 431,

436 (Tex. App.—Texarkana 2003, pet. ref’d). When the standard of review is abuse of

discretion, the record must simply contain some credible evidence to support the trial

court’s decision. Herald v. State, 67 S.W.3d 292, 293 (Tex. App.—Amarillo 2001, no

pet.). Finally, we note that a single violation of community supervision is sufficient to

support revocation. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(b) (West 2012). See




                                            3
Antwine, 268 S.W.3d at 636 (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim.

App. 1980)).


                                        ANALYSIS


ISSUE ONE


       At the revocation hearing, Emily Taylor testified she was Appellant’s former

girlfriend. She testified they lived together for a time and had a child.     She further

testified that on December 24, 2012, Appellant came to her house in violation of a court

order, struck her in the face and pushed her against a pickup truck.         Immediately

thereafter, her face swelled red in color, and her back hurt. Jason Vandergriff, Chief of

Police of the City of Chillicothe, corroborated Taylor’s account of her injuries with

photographs taken shortly after the incident and opined that the knot of swelling on her

back was consistent with some type of blunt force trauma. Appellant testified the event

never took place.


      Appellant’s account of events on December 24, 2012, clearly conflicts with the

testimony of Taylor and Vandergriff. However, the trial court is the sole judge of the

credibility of their testimony and judging from the revocation order, chose to believe

Taylor and Vandergriff over Appellant. See Antwine, 268 S.W.3d at 636. Viewing the

evidence in the light most favorable to the trial court’s ruling, we cannot say the trial

court abused its discretion in finding Appellant violated Condition No. 3 of the terms and

conditions of his community supervision. Appellant’s first issue is overruled, and his

second issue is pretermitted. TEX. R. APP. P. 47.3.



                                            4
COURT-APPOINTED ATTORNEY’S FEES


       We also note an issue not raised by Appellant regarding the assessment of $400

in court-appointed attorney fees in the trial court’s Judgment Revoking Community

Supervision, i.e., “Court Costs - $354.00 PLUS LEGAL FEES.” An attached form filed

by Appellant’s court-appointed attorney at the revocation hearing shows a claim for

$400 in fees. In order to assess attorney’s fees, the trial court must first determine that

the defendant has financial resources that enable him to offset in part or in whole the

cost of legal fees provided, TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (W EST SUPP.

2012), and the record must reflect some factual basis to support the determination that

the defendant is capable of paying attorney’s fees. Barrera v. State, 291 S.W.3d 515,

518 (Tex. App.—Amarillo 2009, no pet.) (per curiam); Perez v. State, 280 S.W.3d 886,

887 (Tex. App.—Amarillo 2009, no pet.).


       The judgment requires Appellant pay court costs and attorney’s fees. The clerk’s

record and hearing transcript reflect, however, the trial court found Appellant indigent

and unable to afford the cost of legal representation in the trial court proceedings and

on appeal.   It does not appear the trial court made a determination Appellant had

financial resources enabling him to pay all or any part of the fees paid his court-

appointed counsel, and we are unable to see any evidence to support such a

determination. Accordingly, we conclude the order to pay attorney’s fees was improper

because the evidence was legally insufficient to support a finding Appellant had the

financial resources to pay attorney’s fees. See Mayer v. State, 309 S.W.3d 552, 556-57

(Tex. Crim. App. 2010). Accordingly, we modify the judgment to delete the requirement



                                            5
that Appellant pay court-appointed attorney’s fees. See Wolfe v. State, 377 S.W.3d

141, 146 (Tex. App.—Amarillo 2012, no pet.).


                                     CONCLUSION


      We modify the trial court’s judgment to delete the order to pay court-appointed

attorney’s fees and affirm the judgment as modified.




                                                       Patrick A. Pirtle
                                                           Justice


Do not publish.




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