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

                                    No. 07-13-00332-CR
                               ________________________

                         PHILLIP LEO TORRES, JR., APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE



                           On Appeal from the 100th District Court
                                     Hall County, Texas
                   Trial Court No. 3616; Honorable Stuart Messer, Presiding


                                      December 15, 2014

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


       In 2012, in exchange for a guilty plea, Appellant, Phillip Leo Torres, Jr., was

granted deferred adjudication community supervision for eight years and assessed a

$1,000 fine for aggravated assault,1 with an affirmative finding on use of a deadly

weapon.     Several months later, the State alleged that Appellant committed a new

offense in violation of the conditions of community supervision and moved to proceed

       1
          TEX. PENAL CODE ANN. 22.02(a)(2) (West 2011). As charged the offense is a second degree
felony. Id. at (b).
with an adjudication of guilt. At a hearing on the State’s motion, Appellant pleaded “not

true” to the allegations and the trial court heard testimony.                      After the State rested,

Appellant did not present any evidence. The trial court ruled Appellant had violated the

conditions of community supervision, adjudicated him guilty of aggravated assault with a

deadly weapon, sentenced him to twenty years confinement and assessed a $1,000

fine. This appeal followed.2 Presenting two issues, Appellant asserts (1) the evidence

is insufficient to establish he violated the conditions of his community supervision and

(2) the trial court abused its discretion in finding he violated a condition of community

supervision not alleged in the State’s motion to adjudicate guilt. We affirm.


                                                 BACKGROUND


        The first condition of Appellant’s community supervision provided that he commit

no new offenses, but if charged or arrested, he was required to notify his community

supervision officer within forty-eight hours. By its motion to adjudicate guilt, the State

alleged Appellant committed simple assault by intentionally, knowingly or recklessly

causing bodily injury to Lorenzo Leo Torres, his son, by kicking him in the face with his

foot and also alleged criminal mischief in the amount of $500 or more but less than

$1,500, a Class A misdemeanor, by damaging Phillip Torres III’s vehicle with a baseball

bat.3


        At the time of the incident giving rise to the State’s motion to adjudicate,

Appellant and Lorenzo were living together. His older son Phillip was living with his

        2
         The trial court entered its Judgment Adjudicating Guilt on December 5, 2012. Although notice of
appeal was not timely filed, the Texas Court of Criminal Appeals ordered that Appellant be permitted to
pursue an out-of-time appeal. See Ex parte Torres, WR-79,218-01, 2013 Tex. Crim. App. Unpub. LEXIS
809 (Tex. Crim. App. July 24, 2013). Notice of appeal was filed on July 11, 2013.
        3
            The State did not allege that Appellant failed to report the charges within forty-eight hours.
                                                        2
girlfriend. In the early morning hours of August 26, 2012, the two sons and girlfriend

had been at a party and all three had become intoxicated. After the party, Phillip and

his girlfriend dropped Lorenzo off at Appellant’s home, drove away and returned

approximately fifteen minutes later.


       Upon returning, they witnessed Appellant and Lorenzo arguing. According to

Phillip’s and his girlfriend’s written statements to law enforcement, they witnessed

Appellant physically assault Lorenzo by kicking and hitting him.                Phillip testified he

pinned Appellant down to protect his younger brother. The three returned to the vehicle

to flee as Appellant was smashing the front and rear windshields with a baseball bat.

Phillip’s girlfriend called 911.


       An officer was dispatched to a domestic disturbance call where he observed a

cut on Phillip’s arm and blood on the vehicle’s passenger door. He testified Lorenzo

had glass shrapnel in one of his eyes from the broken windshield and was reluctantly

treated on the scene by emergency medical personnel.


        During the adjudication hearing, Phillip and his girlfriend denied witnessing the

assault on Lorenzo and testified their written statements were inaccurate. Lorenzo did

not testify.   Phillip admitted he did not want Appellant to be incarcerated and his

testimony did not support the element that criminal mischief of his vehicle was without

his consent.4 At the conclusion of the hearing, the trial court found Appellant committed

the offense of assault against Lorenzo. The trial court did not find as true that Appellant

committed the Class B misdemeanor of criminal mischief based on Phillip’s testimony

       4
        Phillip’s testimony that replacing the windshields cost him $450 was insufficient to support a
Class A misdemeanor ($500 to $1,500) but did support the lesser included offense, a Class B
misdemeanor. TEX. PENAL CODE ANN. § 28.03(b)(2), (3)(A) West 2011).
                                                  3
that Appellant had permission to do whatever he wanted to the vehicle. The trial court

adjudicated Appellant guilty of the original offense of aggravated assault and after

hearing punishment evidence, sentenced him to twenty years confinement with an

affirmative finding on use of a deadly weapon. This appeal ensued.


ISSUE ONE


      Appellant maintains the evidence is insufficient to establish he violated the

conditions of his community supervision. We disagree.


                                 STANDARD OF REVIEW


      An appeal from a trial court's order adjudicating guilt is reviewed in the same

manner as a revocation hearing. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b)

(West Supp. 2014). When reviewing an order revoking community supervision imposed

under an order of deferred adjudication, the sole question before this Court is whether

the trial court abused its discretion. 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); Jackson v.

State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). This appellate standard is less

rigorous than “beyond a reasonable doubt.” Hacker v. State, 389 S.W.3d 860, 865

(Tex. Crim. App. 2013).


      In a revocation proceeding, the State must prove by a preponderance of the

evidence that the probationer violated a condition of community supervision as alleged

in the motion. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). If the State

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

community supervision. Cardona, 665 S.W.2d at 494. In determining the sufficiency of

                                           4
the evidence to sustain a revocation, we view the evidence in the light most favorable to

the trial court's ruling. Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979). It

is the trial court’s duty to judge the credibility of the witnesses and to determine whether

the allegations in the motion to revoke are true. Garrett v. State, 619 S.W.2d 172, 174

(Tex. Crim. App. 1981). Proof of one violation of the terms of community supervision is

sufficient to support revocation. Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim.

App. 1980).


                                          ANALYSIS


       During the hearing, over defense counsel’s objections, both Phillip and his

girlfriend read from their respective written statements generated shortly after the

incident in which they both claimed to have witnessed Appellant assault Lorenzo. They

both claimed, however, that their statements were inaccurate.            Their contradictory

testimony notwithstanding, the trial court was free to judge their credibility.


       The responding officer’s testimony that he observed injuries suffered by Lorenzo

which required medical treatment and blood on the vehicle door support the State’s

allegation of an assault by Appellant against his son.      We conclude the trial court did

not abuse its discretion in revoking Appellant’s community supervision based on the

assault committed against Lorenzo. Issue one is overruled.


ISSUE TWO


       By his second issue, Appellant contends the trial court abused its discretion in

finding he violated a condition of community supervision not alleged in the State’s

motion to adjudicate guilt. We disagree.

                                              5
       The State alleged that Appellant caused bodily injury to Lorenzo by kicking him in

the face. In announcing its ruling that Appellant assaulted Lorenzo as alleged in the

motion to adjudicate, the trial court relied on the witnesses’ statements. The trial court

further found that Lorenzo was assaulted in a manner not alleged in the State’s motion,

i.e., “bodily injury that occurred by using the baseball bat to hit the windshield, causing

glass to shatter into . . . Lorenzo.”


       Proof of one violation of the conditions of community supervision is all that is

required to support a revocation order. Sanchez, 603 S.W.2d at 871. Because the

State established by a preponderance of the evidence that Appellant assaulted Lorenzo

by kicking and hitting him, it is unnecessary to review the assault committed by

Appellant against Lorenzo that caused injury to Lorenzo’s eye.               Issue two is

pretermitted.


                                        CONCLUSION


       Accordingly, the trial court’s judgment is affirmed.




                                                         Patrick A. Pirtle
                                                             Justice


Do not publish.




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