Joshua Dermain Malone v. State

• Court: Court of Appeals of Texas
• Decided: July 8, 2014
• Docket: 05-13-00977-CR
• Status: Published

Opinion

AFFIRMED; Opinion Filed July 8, 2014.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00976-CR No. 05-13-00977-CR

JOSHUA DERMAIN MALONE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause Nos. F10-56581-H and F10-60705-H

MEMORANDUM OPINION Before Justices Moseley, Francis, and Lang Opinion by Justice Moseley

Joshua Dermain Malone appeals from the adjudication of his guilt for two first-degree

felony drug offenses. Malone brings two issues on appeal, complaining the trial court: (1)

abused its discretion by finding the alleged violation of community supervision true; and (2)

reversibly erred by admitting hearsay evidence.

The background of the case and the evidence adduced at trial are well known to the

parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in

law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial

court’s judgments.

Malone was charged with possession with intent to deliver cocaine, in an amount of four

grams or more but less than 200 grams, and delivery of heroin, in an amount of four grams or more but less than 200 grams. Malone waived his right to a jury trial and pled guilty to both

offenses pursuant to a plea agreement. The plea agreement placed Malone on community

supervision for ten years and deferred adjudication of guilt. The State later moved to adjudicate

guilt, alleging Malone violated the conditions of his community supervision by assaulting his

wife. The trial court found the allegation true and adjudicated guilt. The trial court sentenced

Malone to twenty-five years’ imprisonment.

Appellate review of an order revoking community supervision is limited to determining

whether the trial court abused its discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex.

Crim. App. 2006). An order revoking community supervision must be supported by a

preponderance of the evidence, meaning the greater weight of the credible evidence that would

create a reasonable belief that the defendant has violated a condition of probation. Id. at 763–64.

A finding of a single violation of community supervision is sufficient to support revocation. See

Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980). Thus, in order to

prevail, appellant must successfully challenge all the findings that support the revocation order.

See Jones v. State, 571 S.W.2d 191, 193–94 (Tex. Crim. App. [Panel Op.] 1978).

During the hearing on the motion to adjudicate, the trial court heard testimony from

Malone’s wife, Malone’s daughter, and a police officer who responded to the 911 call. Malone’s

wife testified she and Malone got into an argument. It escalated to the point where she asked

their daughter to call 911. While the daughter called 911, Malone grabbed his wife around her

neck and shoved her head against the kitchen wall, leaving a circular dent. Malone’s daughter

testified she heard a booming sound, went into the kitchen, and saw the dent. Malone’s daughter

also testified that her father started the physical part of the fight. After the police arrived, one of

the officers witnessed the dent and informed Deputy Lamar Williams to arrest Malone.

Malone’s wife testified that as a result of the altercation, she had a raspy voice, swelling

–2– on her hands and inside her mouth, and a mark on her fingernail where it was bent backwards in

the nail bed.

The State alleged Malone violated the conditions of his probation by intentionally,

knowingly, or recklessly causing bodily injury to his wife. Bodily injury means physical pain,

illness, or any impairment of physical condition. TEX. PENAL CODE § 1.07(a)(8). A

preponderance of the evidence in the record supports a reasonable belief that Malone violated a

condition of his probation. See Rickels, 202 S.W.3d at 763-64. It was the trial court’s role, as

the fact finder in this case, to reconcile any conflicts in the evidence and judge the witnesses’

credibility. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); Lee v. State,

952 S.W.2d 894, 897 (Tex. App.—Dallas 1997, no pet.) (en banc). Because the evidence is

sufficient to prove Malone violated a condition of his community supervision, the trial court did

not abuse its discretion by revoking Malone’s community supervision and adjudicating his guilt.

See Rickels, 202 S.W.3d at 763–64; Sanchez, 603 S.W.2d at 871. We overrule Malone’s first

issue.

Malone’s second issue contends the trial court reversibly erred by admitting hearsay

testimony. At trial, Deputy Williams was asked if the other officer mentioned a dent in the wall.

Williams replied, “Yes.” Malone objected on the grounds of hearsay. The court overruled the

objection.

We review a trial court’s decision to admit testimony over a hearsay objection under an

abuse of discretion standard. Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994).

Trial court error due to improper admission of evidence may be rendered harmless if other

evidence is admitted without objection and it proves the same fact or facts that the inadmissible

evidence sought to prove. Mack v. State, 928 S.W.2d 219, 225 (Tex. App.—Austin 1996, pet.

ref’d) (admission of improper evidence is not harmful error if the same or similar evidence

–3– admitted without objection); see also Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App.

2004) (error in admission of evidence is cured where same evidence comes in elsewhere without

objection).

Williams answered yes to a question regarding whether another officer had mentioned a

dent in the wall. Malone, Malone’s wife, and their daughter all testified that there was in fact a

dent in the wall. The only discrepancy was how the dent was created, a fact Williams did not

testify about. Because Williams’s answer merely affirmed the same fact already submitted to the

court without objection by other witnesses and appellant himself, there is no harmful error. We

overrule Malone’s second issue.

We affirm the trial court’s judgments.

/Jim Moseley/ JIM MOSELEY JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 130976F.U05

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

JOSHUA DERMAIN MALONE, Appellant On Appeal from the Criminal District Court No. 1, Dallas County, Texas No. 05-13-00976-CR V. Trial Court Cause No. F10-56581-H. Opinion delivered by Justice Moseley. THE STATE OF TEXAS, Appellee Justices Francis and Lang participating.

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

Judgment entered this 8th day of July, 2014.

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

JOSHUA DERMAIN MALONE, Appellant On Appeal from the Criminal District Court No. 1, Dallas County, Texas No. 05-13-00977-CR V. Trial Court Cause No. F10-60705-H. Opinion delivered by Justice Moseley. THE STATE OF TEXAS, Appellee Justices Francis and Lang participating.

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

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