Anna Roberts v. State

• Court: Court of Appeals of Texas
• Decided: October 30, 2008
• Docket: 07-08-00151-CR
• Status: Published

Opinion

NO. 07-08-0151-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 30, 2008

______________________________

ANNA ROBERTS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;

NO. 4044; HON. FELIX KLEIN, PRESIDING

_______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Anna Roberts, appellant, appeals a judgment revoking her probation or community

supervision. Via a single issue, she contends the trial court abused its discretion in doing

so. We affirm the judgment as modified. Background

Appellant was convicted of delivering a controlled substance in a drug free zone and

received a ten year sentence. Thereafter, the trial court placed her on “shock” probation

for a period of ten years. Within a year, however, the State moved to revoke her probation.

That attempt being unsuccessful, it filed a second motion seeking the same relief. Through

it, appellant was accused of 1) committing two new offenses and 2) failing to make monthly

payments on her fine, court costs and fees, to complete her community service hours, to

reimburse the county for her court appointed attorney, to attend substance abuse

counseling, and to execute a pauper’s affidavit when she defaulted on her monthly

financial obligations. Appellant pled true to three of the six allegations, and the trial court

found that she had violated her probation by failing to 1) pay the fees due for the months

of June and July of 2007, 2) complete her community service hours, 3) attend substance

abuse counseling, and 4) execute the pauper’s affidavit. The latter three findings

encompassed the allegations to which she pled true. This led to the revocation of her

community supervision.

Issue - Abused Discretion

Appellant contended in her single issue that the trial court abused its discretion in

revoking her probation. This was so because she allegedly was unable to perform the

duties imposed on her due to her purported financial condition, her purported time

commitments, information purportedly given her by her probation officer, and the same

officer purportedly neglecting to ask her to complete the pauper’s affidavit. We overrule

the issue.

2 Standard of Review

Whether to revoke one's probation is a question which lies within the trial court's

considered discretion. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App.1987); Hunt

v. State, 5 S.W.3d 833, 834-35 (Tex. App.–Amarillo 1999, pet. ref’d). Before that

discretion can be exercised in favor of revocation, it must be shown by a preponderance

of the evidence that the individual violated a term of his probation. See Cobb v. State, 851

S.W.2d 871, 873 (Tex. Crim. App. 1993) (requiring proof by a preponderance of the

evidence). Moreover, that burden can be satisfied by the accused pleading true to at least

one of the allegations levied by the State, even if the accused believed and attempted to

prove that he had a viable defense. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim.

App. [Panel Op.] 1979); Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.]

1979).

Analysis

As previously mentioned, appellant pled true to some of the allegations made in the

motion to revoke. Having done so, the trial court had basis to grant the motion. That she

may have had reasons which she believed justified her conduct matters not given her

pleas. More importantly, various of her excuses were subject to debate and dependent

upon her credibility. Thus, the trial court could well have opted not to believe her.

Consequently, we find no abused discretion on the part of the trial court in granting the

State’s motion.

We do note, however, that appellant originally pled guilty to and was convicted of

delivering a controlled substance in a drug free zone. Yet, the judgment revoking her

3 probation described the conviction as possessing a controlled substance within a drug free

zone. Thus, we modify the latter judgment (dated February 8, 2008) to reflect the actual

conviction, that is, the delivery of a controlled substance in a drug free zone.

So modified, we affirm the judgment.

Brian Quinn Chief Justice

Do not publish.