      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-14-00381-CR



                                Eric Alan Moore, Jr., Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
            NO. 67109, HONORABLE JOHN GAUNTT, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Eric Alan Moore, Jr. appeals the district court’s judgment adjudicating guilt, revoking

his probation, and sentencing him to six years in prison. He contends the revocation of his probation

was an abuse of the court’s discretion because the victim denied the assault occurred and another

witness’s testimony about the assault was not credible. We will affirm the district court’s judgment.


                                         BACKGROUND

               Moore was indicted in 2010 for aggravated assault with a deadly weapon. See

Tex. Penal Code § 22.02. He entered into a plea agreement placing him on deferred-adjudication

probation for ten years. The first condition of his probation was that he “neither commit nor be

convicted of any offense against the laws of the State of Texas.”

               On an early morning in 2014, Moore and his girlfriend Jaquilla Scott got into an

argument. Moore kicked in the door of her apartment, and then the altercation moved outside. The
noise from the quarrel and the cries of the couple’s child woke the neighbors. A few of them went

outside and attempted to stop the altercation. One of the neighbors, Peatreia Spells, testified that

she heard another neighbor, Shanta Britton, yelling “Stop hitting her!” Spells grabbed her gun and

placed it in her jacket pocket before stepping outside her apartment. When she saw that Moore had

Scott by the hair and was punching her, Spells threatened to shoot Moore if he hit Scott again. She

then called the police at Scott’s request. After the police arrived, they took pictures of Scott and the

scene of the argument and spoke with Moore, Scott, and neighbors who witnessed the argument.

The neighbors reported that Moore struck Scott, consistent with Scott’s injuries, including

her “busted lip” that officers saw and photographed. Based on the witnesses’ statements and the

officers’ observations, the officers concluded there was probable cause to believe the assault took

place and arrested Moore.

                The State subsequently filed a motion to adjudicate Moore’s guilt and revoke

his probation, alleging that he violated it by committing the offense of assault family violence. See

Tex. Code Crim. Proc. art. 42.12, § 5(b) (providing adjudication procedure for violation of

condition of community supervision); Tex. Penal Code § 22.01 (defining offense of assault). At the

subsequent hearing on the motion, Moore pled “not true” to the allegations, and in her testimony

Scott denied that Moore hit her. Three neighbors testified otherwise. At the conclusion of the

hearing, the court found the State’s allegations to be true, revoked Moore’s probation, and sentenced

him. Moore then filed this appeal.




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                                           DISCUSSION

                In one issue on appeal, Moore challenges the sufficiency of the evidence supporting

the district court’s judgment, emphasizing Scott’s testimony that he did not assault her and

challenging the credibility of Spells’s testimony.

                We review an appeal from a revocation of probation under an abuse of discretion

standard, taking into account the sufficiency of the evidence supporting the basis for revocation.

Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). Abuse of discretion occurs “only

when the trial judge’s decision was so clearly wrong as to lie outside the zone within which

reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).

A trial court abuses its discretion in revoking probation if the State fails to prove by a preponderance

of the evidence that a violation of probation occurred. Cobb v. State, 851 S.W.2d 871, 874

(Tex. Crim. App. 1993). In this context, “a preponderance of the evidence” means “the greater

weight of the credible evidence which would create a reasonable belief that the defendant violated

a condition of his probation.” Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim App. 2006);

see Moore v. State, No. 03-08-00097-CR, 2008 Tex. App. LEXIS 8138, at *3 (Tex. App.—Austin

Oct. 24, 2008, pet. ref’d) (mem. op., not designated for publication).

                The degree of proof required to establish the truth of the allegation in a motion to

revoke probation is not the same as a criminal prosecution. Hacker, 389 S.W.3d at 865. This means

that a defendant may be acquitted of a crime and still have his probation revoked based on the

same act because a preponderance-of-the-evidence standard—rather than beyond-a-reasonable-

doubt standard—applies to revocation proceedings. See Barrett v. State, 630 S.W.2d 335, 336-37

(Tex. App.—Houston [14th Dist.] 1982, no writ). We do not engage in a “divide and conquer”

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strategy to evaluate the sufficiency of evidence but consider the combined and cumulative force of

all the evidence before the trial court, id. at 873, viewed in the light most favorable to its ruling,

Mauney v. State, 107 S.W.3d 693, 695 (Tex. App.—Austin 2003, no pet.). The trial judge is the

sole judge of the credibility of the witnesses and the weight to be given to their testimony. Mauney,

107 S.W.3d at 695.


Sufficiency of evidence supporting violation

                Moore contends that there is insufficient evidence supporting the district court’s

judgment because Scott testified that Moore did not hit her. Because Scott denied the assault, Moore

asserts the court abused its discretion in finding that the assault occurred. We disagree.

                The court heard Scott testify that she did not wish to be at the hearing. She stated that

she lived with Moore, who was her boyfriend and the father of one of her children, and that

Moore cared for her children while she worked. She admitted that she continued to live with

Moore even after their altercation.1 The court also heard an investigating officer2 testify that Moore’s

mother came to the scene and told Scott to tell the police that Moore did not hit her.3 Scott testified

that Moore did not hit her.




       1
         When the first half of the hearing recessed and before Scott testified, the district court
ordered Moore not to have any contact with Scott until the hearing concluded.
       2
          Officer Kyle Moore of the Killeen Police Department testified about the investigation. We
refer to him by his title because he has the same last name as appellant.
       3
         The officer also testified that he showed Scott’s injury to Moore’s mother, “And, then,
that’s when she looked at her lip and she was kind of like, okay, well, maybe he messed up.”

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               But other evidence at the hearing conflicted with Scott’s testimony, including police

photographs of her taken at the scene and the testimony of her neighbors. Police photographs show

Scott’s facial injury, a “busted” lip. When the prosecutor told Scott, “We have seen your busted lip,”

Scott began to cry. She offered no explanation for her injury. Spells testified that she saw Moore

hold Scott by the hair and repeatedly hit her “in her face and in her head” and that he did not stop

until Spells, without drawing her gun, threatened to shoot him. Britton, another of Scott’s neighbors,

similarly testified that Moore hit Scott in “the face area.” And another of Scott’s neighbors, Gina

Erwin, who did not know Moore or Scott, testified that she heard sounds, opened her apartment door,

and saw “the guy get on top of her and start hitting on her,” “just wailing on her head.” When asked

about this testimony, Scott said she did not know why her neighbors would go to court and tell the

judge that they saw Moore hitting her if it had not happened.

               Moore does not challenge the testimony from Britton or Erwin, but he contends that

Spells “embellished” her testimony to justify bringing a gun with her and threatening to shoot him.

However, the district court was entrusted with determining whether the testimony from Scott and

her neighbors was credible and reconciling any conflicts in their testimony. See Hacker, 389 S.W.3d

at 865. After considering the combined and cumulative force of all the evidence, the district court

could have rejected Scott’s denial of the assault as not credible and found that the neighbors’

testimony that Moore hit Scott was credible. See id. at 873. Testimony from Scott’s neighbors also

aligns with the depiction of Scott’s injuries in police photographs.

               Viewing the evidence and reasonable inferences therefrom in the light most favorable

to the district court’s ruling, we conclude that the greater weight of credible evidence in this

record supports the court’s reasonable belief that Moore violated a condition of his probation by

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assaulting Scott. As such, the court did not abuse its discretion by revoking Moore’s probation and

adjudicating his guilt. We overrule Moore’s sole issue on appeal.


                                        CONCLUSION

               We affirm the district court’s judgment.




                                             Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

Affirmed

Filed: June 24, 2015

Do Not Publish




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