Charles Earl Davis Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 6, 2022
• Docket: 05-21-00748-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed May 6, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00748-CR

CHARLES EARL DAVIS JR., Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 196th District Court Hunt County, Texas Trial Court Cause No. 31045

MEMORANDUM OPINION Before Justices Molberg, Reichek, and Garcia Opinion by Justice Garcia Appellant was charged with possession of a firearm by a felon, a third-degree

felony. See TEX. PENAL CODE ANN. §46.04. After appellant pleaded guilty to the

charge, the trial court sentenced him to ten years in prison probated for ten years,

one hundred hours of community service, and a $1,000 fine.

The State later filed a motion to revoke based on appellant’s violation of five

terms and conditions of his community supervision, and following a hearing, the

trial court adjudicated appellant guilty and sentenced him to ten years in prison. On

appeal, appellant argues that the trial court abused its discretion by finding the possession of marijuana violation true because the marijuana was not tested to prove

its THC content. We affirm the trial court’s judgment.

I. BACKGROUND

The State filed a motion to revoke appellant’s community supervision that

was subsequently amended. The State alleged five violations of the terms and

conditions of appellant’s community supervision: (1) possession of marijuana under

two ounces; (2) possession of a controlled substance; (3) tampering with evidence;

(4) driving while intoxicated; and (5) failure to complete court-ordered community

service. At the beginning of the hearing, the State abandoned the second allegation.

Appellant pleaded not true to the remaining allegations.

The court heard testimony from State Trooper Greg Joyner concerning the

marijuana possession. Trooper Mark Page testified about appellant’s arrest for

driving while intoxicated and said that during the search incident to arrest, a

substance believed to be marijuana was found in the car. Appellant’s community

supervision officer also testified about appellant’s community supervision and

records from the community supervision department were admitted into evidence.

When the hearing concluded, the court found allegations one, four, and five

true and allegation three not true. Appellant’s community supervision was revoked,

and he was sentenced to ten years in prison.

–2– II. ANALYSIS

Appellant’s sole issue challenges the sufficiency of the evidence to find that

he possessed marijuana. According to appellant, recent legislative changes provide

that an individual is only criminally responsible under the Texas Controlled

Substances Act if he possesses marijuana plant material containing an excess of

0.3% of THC by dry weight. See TEX. HEALTH & SAFETY CODE ANN. §

481.002(26)(f). The material here was not tested, and appellant argues that the

trooper’s testimony is insufficient to establish that the material in his possession met

the statutory definition.

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

evidence that the defendant violated a condition of community supervision as

alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim.

App. 1993). In a revocation context, “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 community supervision].” Rickels v.

State, 202 S.W.3d 759, 764 (Tex. Crim. App. 2006). The finding of a single violation

of community supervision is sufficient to support revocation. Garcia v. State, 387

S.W.3d 20, 26 (Tex. Crim. App. 2012).

Here, appellant challenges only one of the alleged violations—marijuana

possession. But the court also found that he committed the offense of Driving While

Intoxicated and failed to perform community service hours, both of which are

–3– violations of the terms and conditions of his probation. The evidence supports these

findings. Accordingly, the trial court did not abuse its discretion by revoking

appellant’s community supervision. See Moore v. State, 605 S.W.2d 924, 926 (Tex.

Crim. App. 1980) (no abuse of discretion if the evidence is sufficient to find any one

of the alleged violations true).

Appellant’s issue is overruled. We affirm the trial court’s judgment.

/Dennise Garcia/ DENNISE GARCIA JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 210748F.U05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

CHARLES EARL DAVIS JR., On Appeal from the 196th District Appellant Court, Hunt County, Texas Trial Court Cause No. 31045. No. 05-21-00748-CR V. Opinion delivered by Justice Garcia. Justices Molberg and Reichek THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered May 6, 2022

–5–