David Randall Drake Jr. A/K/A David Drake A/K/A David Drake Jr. v. State

• Court: Court of Appeals of Texas
• Decided: January 8, 2014
• Docket: 09-12-00522-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________ NO. 09-12-00522-CR ____________________

DAVID RANDALL DRAKE JR. A/K/A DAVID DRAKE A/K/A DAVID DRAKE JR., Appellant

V.

THE STATE OF TEXAS, Appellee _______________________________________________________ ______________

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 10-09227 ________________________________________________________ _____________

MEMORANDUM OPINION

This is an appeal from the trial court’s judgment revoking David Randall

Drake Jr.’s 1 community supervision. In a single issue, Drake challenges the legal

sufficiency of the evidence supporting the trial court’s determination that he

violated the conditions that governed his placement on community supervision. We

affirm the trial court’s judgment.

1 Drake is also known as David Drake and as David Drake Jr. 1 In carrying out a plea bargain agreement, Drake pled guilty to aggravated

assault. See Tex. Penal Code Ann. § 22.02 (West 2011). The trial court found the

evidence sufficient to find Drake guilty, then deferred further proceedings, placed

Drake on community supervision for five years, and assessed a fine of $1,000.

Subsequently, the State filed a motion to revoke Drake’s placement on

unadjudicated community supervision. Drake pled “not true” to the State’s

allegations that he had violated the terms governing his community supervision.

After conducting an evidentiary hearing, the trial court found that Drake had

violated two of the conditions described in the community supervision order, found

Drake guilty of committing aggravated assault, and assessed Drake’s punishment

at ninety-nine years in prison.

Drake argues the evidence is legally insufficient to support the trial court’s

determination that he violated the conditions of the community supervision order.

In its motion to revoke, the State alleged that on or about October 4, 2012, Drake

violated the community supervision order by threatening to beat and dismember

S.S., his mother, a terroristic threat under the Penal Code. See id. § 22.07 (West

2011) (explaining that a person commits the offense of making a terroristic threat

“if he threatens to commit any offense involving violence to any person . . . with

intent to[] place any person in fear of imminent serious bodily injury”). The motion

2 also alleged that on or about October 4, 2012, Drake consumed whiskey, violating

another condition of the trial court’s community supervision order, which required

that he abstain from the use of intoxicating substances.

Drake’s mother, S.S., testified at the hearing on the motion to revoke.

According to S.S., before Drake threatened her, Drake went to the liquor store and

then returned with a bottle of whiskey. S.S. testified that she saw Drake drink from

the bottle. Also, according to S.S., she argued with Drake about his drinking; at

that point, Drake said that “he was going to take a hammer and beat my head and

face in to where I couldn’t be recognized and that he was going to dismember me

and spread my body parts all over where I never be found.” When asked whether

she feared that Drake might “try to make good on[]” his threat, S.S. responded:

“Well, he - - that’s the second time that I’m - - I’m afraid that a third time that he

may.” There was also evidence when Drake made the threat at issue, he was

serving community supervision based on his guilty plea to an indictment alleging

that he had previously assaulted his mother with a deadly weapon. S.S. also

explained that after Drake made the threat that is now at issue, Drake broke her

phone as she attempted to call the police. After that, she picked up her coffee pot,

hit him on the head with it, ran outside the house, and then called the police.

3 During the revocation hearing, Drake gave the trial court a different account

than his mother gave of the incident. According to Drake, he hid S.S.’s medicine

from her because she had taken too many pills. When S.S. argued with him about

hiding her medicine, she threw a cup of coffee on him; he retaliated by throwing

his cup of coffee at her. At that point, Drake explained that S.S. grabbed the coffee

pot, hit him in the face with it, and she then ran outside and called the police.

Drake denied that he was drinking and denied knowing anything about a bottle of

whiskey. He also denied that he ever threatened S.S.

Drake argues that S.S.’s response about whether she feared Drake when he

threatened her shows that she was not placed in imminent fear of him. According

to Drake, S.S.’s response about whether she was in fear indicates that S.S.

understood his threat to mean that he might harm her in the future; he concludes

that S.S. did not believe that his threat was imminent.

At a revocation hearing, the State has the burden to establish the alleged

violations by a preponderance of the evidence. Rickels v. State, 202 S.W.3d 759,

763-64 (Tex. Crim. App. 2006); Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim.

App. 1993). The trial court is the sole trier of facts and judge of the credibility of

the witnesses, and the trial court decides what weight to give to the testimony.

Cochran v. State, 78 S.W.3d 20, 28 (Tex. App.—Tyler 2002, no pet.). We review a

4 trial court’s decision to revoke community supervision for an abuse of discretion.

Rickels, 202 S.W.3d at 763. The trial court abuses its discretion only if its decision

“was so clearly wrong as to lie outside that zone within which reasonable persons

might disagree.” Wilkins v. State, 279 S.W.3d 701, 704 (Tex. App.—Amarillo

2007, no pet.). We view the evidence in the light most favorable to the trial court’s

ruling. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). Proof of a

single violation of the terms of a defendant’s placement on community supervision

is sufficient to support revocation. Moore v. State, 605 S.W.2d 924, 926 (Tex.

Crim. App. 1980).

A threat of harm that is conditioned on a future occurrence does not

necessarily mean that the threatened consequences are not sufficiently imminent to

fulfill the requirements of Penal Code section 22.07(a)(2). Tex. Penal Code Ann. §

22.07(a)(2) (providing that a person commits an offense if he threatens to commit

any offense involving violence to any person with intent to place any person in fear

of imminent serious bodily injury); see Phillips v. State, 401 S.W.3d 282, 292

(Tex. App.—San Antonio 2013, pet. ref’d); In re A.C., 48 S.W.3d 899, 904 (Tex.

App.—Fort Worth 2001, pet. denied). “The focus of the intent inquiry is on the

intended reaction.” Phillips, 401 S.W.3d at 292. In other words, it is the

5 defendant’s intent, not the victim’s reaction that matters. The defendant’s intent

may be inferred from his acts, words, or conduct. Id. at 293.

The circumstances S.S. described and that the trial court reasonably found

credible allowed the trial court to infer that Drake made the threat at issue to place

S.S. in fear of imminent serious bodily injury so that she would not continue to

interfere with his drinking. Based on S.S.’s testimony that Drake went to the liquor

store, returned with a bottle of whiskey, and drank from the bottle, the trial court

could also infer that Drake was drinking whiskey. Although Drake gave a different

account of the events, the trial court, as the trier of the facts and the judge of the

credibility of the witnesses, was entitled to accept S.S.’s account of the events; it

could reasonably reject Drake’s account of them. We conclude that the evidence

was sufficient to support the trial court’s finding that on October 4, 2012, Drake

violated two conditions of his community supervision by making a terroristic threat

against S.S. and by consuming alcohol. See Rickels, 202 S.W.3d at 763-64; Moore,

605 S.W.2d at 926; Cochran, 78 S.W.3d at 28. Because the trial court did not

abuse its discretion by revoking Drake’s community supervision, we overrule

Drake’s sole issue and affirm the trial court’s judgment.

6 AFFIRMED.

______________________________ HOLLIS HORTON Justice

Submitted on December 2, 2013 Opinion Delivered January 8, 2014 Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.