Opinion issued July 24, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00592-CR ——————————— BRENTON ALLEN HOPE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court Jefferson County, Texas1 Trial Court Case No. 12-14208
MEMORANDUM OPINION
After appellant, Brenton Allen Hope, pleaded guilty to the offense of
delivery of a controlled substance2 with an agreed punishment recommendation
1 The Supreme Court of Texas, pursuant to its docket equalization authority, transferred the appeal to this court. See TEX. GOV’T CODE ANN. §.73.001 (Vernon 2013) (authorizing transfer). from the State, the trial court deferred adjudication of his guilt and placed him on
community supervision for two years. The State subsequently moved to adjudicate
appellant’s guilt, alleging three violations of the conditions of his community
supervision. After a hearing, the trial court found two of the allegations true, found
appellant guilty, and assessed his punishment at confinement for two years. In his
sole issue, appellant contends that the trial court erred in admitting evidence during
the revocation hearing.
We affirm.
Background
On November 5, 2012, the trial court placed appellant on community
supervision subject to certain conditions, including that he commit no new
offenses, abstain from using or possessing “any drug,” and pay fines and fees as
assessed. In its motion to adjudicate appellant’s guilt, the State alleged that he
committed the offense of possession of a controlled substance, tested positive for
“metabolic by-products of cocaine,” and failed to pay $480 in court-assessed fees.
Appellant pleaded “not true” to the allegations.
At a hearing on the State’s motion, Jefferson County Adult Probation
(“JCAP”) Officer J. Kirkpatrick testified that appellant had tested positive for the
use of a controlled substance and failed to pay anything toward his court-assessed
2 See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(8), 481.115(b) (Vernon 2010). 2 fine and fees. JCAP Urinalysis Technician B. Strother testified that on February
28, 2013, appellant tested “positive for cocaine.” And appellant’s laboratory
results, which were admitted into evidence, reflect a positive result for cocaine use.
Beaumont Police Department Officer T. Armstrong testified that on March
17, 2013, he was dispatched to the parking lot of an apartment complex to
investigate a report that three men were selling narcotics from a black Buick
LeSabre automobile. Upon his arrival, he saw appellant getting out of the driver’s
seat of the Buick, and he smelled marijuana coming from the Buick and on
appellant’s breath. After appellant consented to a search of his person, Armstrong
found a large amount of cash in appellant’s pocket; he also saw a marijuana
cigarette laying in plain view on the car’s console. After additional officers
arrived, Armstrong and the officers searched the Buick and found a bottle
containing what they believed to be phencyclidine, or “PCP,” located on the
driver’s seat. And Jefferson County Narcotics Services Forensic Chemist R.
Sweetenham testified that the bottle contained phencyclidine weighing 8.17 grams.
Appellant testified that when Officer Armstrong arrived, he was just getting
a cigarette out of the Buick, which belonged to someone else. He asserted that the
money in his pocket was from his income tax refund and the phencyclidine
belonged to his sister’s friend. Appellant further asserted that the February 2013
3 positive drug test result was inaccurate because he had “just come from the
jailhouse” and had not used cocaine.
At the close of the hearing, the trial court found true the State’s allegations
that appellant had committed a new offense and had tested positive for the use of a
controlled substance. It further found appellant guilty and assessed his punishment
at confinement for two years.
Standard of Review
Appellate review of an order adjudicating guilt is limited to determining
whether the trial court abused its discretion. TEX. CODE CRIM. PROC. ANN. art.
42.12, § 5(b) (Vernon Supp. 2013) (“The determination [to adjudicate guilt] is
reviewable in the same manner as a revocation hearing conducted under Section 21
of this article in a case in which an adjudication of guilt had not been deferred.”);
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) (“Appellate review
of an order revoking probation is limited to abuse of the trial court’s discretion.”).
The trial court’s decision must be supported by a preponderance of the evidence.
Rickels, 202 S.W.3d at 763. The evidence meets this standard when the greater
weight of the credible evidence creates a reasonable belief that a defendant has
violated a condition of his community supervision. Id. at 764.
We examine the evidence in the light most favorable to the trial court’s
order. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). As the sole
4 trier of fact, a trial court determines the credibility of witnesses. See id.; Jones v.
State, 787 S.W.2d 96, 97 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d).
When a trial court finds several violations of community-supervision
conditions, we will affirm if the proof of any single allegation is sufficient. See
Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012); Canseco v. State, 199
S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Thus, to
prevail on appeal, a defendant must successfully challenge all of the findings that
support the trial court’s revocation order. See Garcia, 387 S.W.3d at 26; Moore v.
State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980).
Adjudication of Guilt
In his sole issue, appellant argues that the trial court erred in adjudicating his
guilt because it erroneously admitted into evidence State’s exhibit number two, the
phencyclidine, “in violation of [his] constitutional rights against unreasonable
search and seizure.” Appellant asserts that the “basis of the officer’s detention of
[him], and the subsequent search of the vehicle, were based upon [his]
nervousness,” which “falls short of a constitutionally permissible detention” and
did not support the “subsequent search of the vehicle and discovery of narcotics.”
As noted above, however, the State need only establish one sufficient ground
for revocation to support the trial court’s order to adjudicate guilt. See Garcia, 387
S.W.3d at 26. The record shows that, in addition to ordering that appellant commit
5 no new offense, the trial court ordered that appellant abstain from using or
possessing “any drug.” At the hearing on the State’s motion, Officer Kirkpatrick
testified that appellant tested positive for use of a controlled substance, and
Strother specifically testified that on February 28, 2013, appellant tested “positive
for cocaine.” The trial court admitted into evidence appellant’s laboratory results,
which reflect a positive result for cocaine use on that date.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion issued July 24, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00592-CR ——————————— BRENTON ALLEN HOPE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court Jefferson County, Texas1 Trial Court Case No. 12-14208
MEMORANDUM OPINION
After appellant, Brenton Allen Hope, pleaded guilty to the offense of
delivery of a controlled substance2 with an agreed punishment recommendation
1 The Supreme Court of Texas, pursuant to its docket equalization authority, transferred the appeal to this court. See TEX. GOV’T CODE ANN. §.73.001 (Vernon 2013) (authorizing transfer). from the State, the trial court deferred adjudication of his guilt and placed him on
community supervision for two years. The State subsequently moved to adjudicate
appellant’s guilt, alleging three violations of the conditions of his community
supervision. After a hearing, the trial court found two of the allegations true, found
appellant guilty, and assessed his punishment at confinement for two years. In his
sole issue, appellant contends that the trial court erred in admitting evidence during
the revocation hearing.
We affirm.
Background
On November 5, 2012, the trial court placed appellant on community
supervision subject to certain conditions, including that he commit no new
offenses, abstain from using or possessing “any drug,” and pay fines and fees as
assessed. In its motion to adjudicate appellant’s guilt, the State alleged that he
committed the offense of possession of a controlled substance, tested positive for
“metabolic by-products of cocaine,” and failed to pay $480 in court-assessed fees.
Appellant pleaded “not true” to the allegations.
At a hearing on the State’s motion, Jefferson County Adult Probation
(“JCAP”) Officer J. Kirkpatrick testified that appellant had tested positive for the
use of a controlled substance and failed to pay anything toward his court-assessed
2 See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(8), 481.115(b) (Vernon 2010). 2 fine and fees. JCAP Urinalysis Technician B. Strother testified that on February
28, 2013, appellant tested “positive for cocaine.” And appellant’s laboratory
results, which were admitted into evidence, reflect a positive result for cocaine use.
Beaumont Police Department Officer T. Armstrong testified that on March
17, 2013, he was dispatched to the parking lot of an apartment complex to
investigate a report that three men were selling narcotics from a black Buick
LeSabre automobile. Upon his arrival, he saw appellant getting out of the driver’s
seat of the Buick, and he smelled marijuana coming from the Buick and on
appellant’s breath. After appellant consented to a search of his person, Armstrong
found a large amount of cash in appellant’s pocket; he also saw a marijuana
cigarette laying in plain view on the car’s console. After additional officers
arrived, Armstrong and the officers searched the Buick and found a bottle
containing what they believed to be phencyclidine, or “PCP,” located on the
driver’s seat. And Jefferson County Narcotics Services Forensic Chemist R.
Sweetenham testified that the bottle contained phencyclidine weighing 8.17 grams.
Appellant testified that when Officer Armstrong arrived, he was just getting
a cigarette out of the Buick, which belonged to someone else. He asserted that the
money in his pocket was from his income tax refund and the phencyclidine
belonged to his sister’s friend. Appellant further asserted that the February 2013
3 positive drug test result was inaccurate because he had “just come from the
jailhouse” and had not used cocaine.
At the close of the hearing, the trial court found true the State’s allegations
that appellant had committed a new offense and had tested positive for the use of a
controlled substance. It further found appellant guilty and assessed his punishment
at confinement for two years.
Standard of Review
Appellate review of an order adjudicating guilt is limited to determining
whether the trial court abused its discretion. TEX. CODE CRIM. PROC. ANN. art.
42.12, § 5(b) (Vernon Supp. 2013) (“The determination [to adjudicate guilt] is
reviewable in the same manner as a revocation hearing conducted under Section 21
of this article in a case in which an adjudication of guilt had not been deferred.”);
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) (“Appellate review
of an order revoking probation is limited to abuse of the trial court’s discretion.”).
The trial court’s decision must be supported by a preponderance of the evidence.
Rickels, 202 S.W.3d at 763. The evidence meets this standard when the greater
weight of the credible evidence creates a reasonable belief that a defendant has
violated a condition of his community supervision. Id. at 764.
We examine the evidence in the light most favorable to the trial court’s
order. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). As the sole
4 trier of fact, a trial court determines the credibility of witnesses. See id.; Jones v.
State, 787 S.W.2d 96, 97 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d).
When a trial court finds several violations of community-supervision
conditions, we will affirm if the proof of any single allegation is sufficient. See
Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012); Canseco v. State, 199
S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Thus, to
prevail on appeal, a defendant must successfully challenge all of the findings that
support the trial court’s revocation order. See Garcia, 387 S.W.3d at 26; Moore v.
State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980).
Adjudication of Guilt
In his sole issue, appellant argues that the trial court erred in adjudicating his
guilt because it erroneously admitted into evidence State’s exhibit number two, the
phencyclidine, “in violation of [his] constitutional rights against unreasonable
search and seizure.” Appellant asserts that the “basis of the officer’s detention of
[him], and the subsequent search of the vehicle, were based upon [his]
nervousness,” which “falls short of a constitutionally permissible detention” and
did not support the “subsequent search of the vehicle and discovery of narcotics.”
As noted above, however, the State need only establish one sufficient ground
for revocation to support the trial court’s order to adjudicate guilt. See Garcia, 387
S.W.3d at 26. The record shows that, in addition to ordering that appellant commit
5 no new offense, the trial court ordered that appellant abstain from using or
possessing “any drug.” At the hearing on the State’s motion, Officer Kirkpatrick
testified that appellant tested positive for use of a controlled substance, and
Strother specifically testified that on February 28, 2013, appellant tested “positive
for cocaine.” The trial court admitted into evidence appellant’s laboratory results,
which reflect a positive result for cocaine use on that date. Evidence of a positive
narcotics test is sufficient to establish that appellant failed to abstain from the use
of a controlled substance as required by the trial court’s order. See Stevens v.
State, 900 S.W.2d 348, 352 (Tex. App.—Texarkana 1995, pet. ref’d).
The trial court could have reasonably found, by a preponderance of the
evidence, that appellant violated a term or condition of his community supervision
by using a controlled substance. Thus, we need not address appellant’s challenge
to the evidence supporting the trial court’s finding of true to the State’s allegation
that he had also committed the offense of possession of a controlled substance. See
Garcia, 387 S.W.3d at 26. Accordingly, we further hold that the trial court did not
err in adjudicating appellant’s guilt.
We overrule appellant’s sole issue.
6 Conclusion
We affirm the judgment of the trial court.
Terry Jennings Justice
Panel consists of Justices Jennings, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).