Farrell Dane West v. State

• Court: Court of Appeals of Texas
• Decided: September 3, 2015
• Docket: 11-15-00070-CR
• Status: Published

Opinion

Opinion filed September 3, 2015

In The

Eleventh Court of Appeals __________

No. 11-15-00070-CR __________

FARRELL DANE WEST, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 350th District Court Taylor County, Texas Trial Court Cause No. 9248-D

MEMORANDUM OPINION Appellant, Farrell Dane West, appeals the trial court’s judgment revoking his community supervision for a conviction of possession of a controlled substance with the intent to deliver in a drug-free zone. In one issue on appeal, Appellant argues that due process of law requires that proof of a violation of any condition of community supervision should be beyond a reasonable doubt rather than by a preponderance of the evidence. We affirm. Background Facts The grand jury indicted Appellant on one count of possession of a controlled substance with the intent to deliver in a drug-free zone. Appellant pleaded guilty, and under the terms of the plea agreement, the trial court convicted Appellant, assessed punishment, placed Appellant on community supervision for a term of seven years, and assessed a $1,000 fine. Subsequently, the State filed a motion to revoke Appellant’s community supervision and alleged that Appellant violated multiple conditions of his community supervision. Appellant pleaded true to twenty- five violations. The trial court revoked Appellant’s community supervision and assessed Appellant’s punishment at confinement for a term of seven years and a fine of $1,000. Appellant argues on appeal, “That a person can be sentenced to seven years in the penitentiary for such matters, proved only by a preponderance of the evidence, should shock the conscience.” The State contends that Appellant has waived this argument when he failed to present it to the trial court. Analysis The Court of Criminal Appeals has considered whether a defendant is “entitled to have the question of his revocation decided beyond a reasonable doubt” and has determined that “the standard of proof necessary to revoke probation should [not] be as stringent as the one necessary to support the initial conviction.” Kelly v. State, 483 S.W.2d 467, 469–70 (Tex. Crim. App. 1972); Jones v. State, No. 11-13- 00075-CR, 2015 WL 1471963, at *1 (Tex. App.—Eastland Mar. 26, 2015, pet. ref’d). The State must prove a violation by a preponderance of the evidence, and proof of any one of the alleged violations is sufficient to uphold the trial court’s decision to revoke. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); 2 Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Jones, 2015 WL 1471963, at *1. Because the Court of Criminal Appeals has held otherwise, we decline to hold that a violation of community supervision must be proven beyond a reasonable doubt. We overrule Appellant’s sole issue. This Court’s Ruling We affirm the judgment of the trial court.

JOHN M. BAILEY JUSTICE

September 3, 2015 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J.