Kenneth David Fisher, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: October 13, 2011
• Docket: 02-10-00478-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00478-CR

KENNETH DAVID FISHER, JR. APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

MEMORANDUM OPINION1 ----------

Appellant Kenneth David Fisher, Jr. appeals the trial court’s judgment

adjudicating guilt and revoking Appellant’s deferred adjudication community

supervision. We affirm.

Appellant pleaded guilty to fraudulent use or possession of identifying

information, and the trial court placed him on three years’ deferred adjudication

1 See Tex. R. App. P. 47.4. community supervision, the terms of which included committing no new offenses,

regularly reporting to his community supervision officer, paying fees, and getting

permission from the trial court or his community supervision officer before leaving

the county.

The State filed a petition to adjudicate, alleging that Appellant had illegally

possessed a controlled substance, failed to report to his community supervision

officer, neglected to pay community supervision fees, and left the county without

permission from his supervision officer or the court.

At the hearing on the State’s petition, Appellant pleaded “not true” to the

allegations that he had illegally possessed drugs and failed to report, but “true”

that he had failed to pay fees and left the county without permission. The trial

court found these four allegations true, adjudicated Appellant’s guilt, revoked his

community supervision, and sentenced him to eight years’ confinement.

On appeal, Appellant claims that the trial court erred by sustaining a

hearsay objection and excluding a pharmacy record showing that his sister had a

prescription for the type of drugs he was found to have illegally possessed in

violation of one of the terms of his community supervision.

We review an order revoking community supervision under an abuse of

discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.

2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In a

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

that the defendant violated the terms and conditions of community supervision.

2 Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The trial court is

the sole judge of the credibility of the witnesses and the weight to be given their

testimony, and we review the evidence in the light most favorable to the trial

court’s ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172,

174 (Tex. Crim. App. [Panel Op.] 1981). If the State fails to meet its burden of

proof, the trial court abuses its discretion in revoking community supervision.

Cardona, 665 S.W.2d at 493-94. Proof by a preponderance of the evidence of

any one of the alleged violations of the conditions of community supervision is

sufficient to support a revocation order. Moore v. State, 605 S.W.2d 924, 926

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

(Tex. Crim. App. [Panel Op.] 1980). A plea of true, standing alone, is sufficient to

support the revocation of community supervision. Cole v. State, 578 S.W.2d

127, 128 (Tex. Crim. App. [Panel Op.] 1979); Clapper v. State, 562 S.W.2d 250,

250 (Tex. Crim. App. [Panel Op.] 1978); Alexander v. State, No. 02-10-00500-

CR, 2011 WL 3546625, at *1 (Tex. App.––Fort Worth Aug. 11, 2011, no pet.)

(mem. op., not designated for publication).

Appellant pleaded true to violating two conditions of his community

supervision––failing to pay fees and leaving the county without permission.

Because the trial court may revoke community supervision for a single violation,

and Appellant’s plea of true, standing alone, is sufficient, it was not necessary for

the State to prove additional violations. See Moore, 605 S.W.2d at 926; Cole,

578 S.W.2d at 128. Therefore, we hold that it was within the trial court’s

3 discretion to adjudicate Appellant guilty and revoke his deferred adjudication

community supervision. Accordingly, we overrule Appellant’s sole issue and

affirm the trial court’s judgment.

LEE GABRIEL JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: October 13, 2011