Opinion issued October 3, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. No. 01-12-00400-CR ——————————— RACHEL MARIE HARVEY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court Harris County, Texas Trial Court Case No. 1292026
MEMORANDUM OPINION
Rachel Marie Harvey challenges the trial court’s adjudication of her guilt
following the trial court’s finding that she violated two terms of her community
supervision put in place after she plead guilty to possession of marijuana in an amount more than four ounces and less than five pounds. 1 The trial court assessed
punishment at two years’ confinement. In two issues, Harvey contends the trial
court abused its discretion in finding (1) Harvey committed a new offense of
assault because the conduct alleged by the State was justified and (2) Harvey used
marijuana because the finding rested on judicial―rather than
adversarial―questioning. We affirm.
Background
Harvey plead guilty to possession of marijuana in an amount more than four
ounces and less than five pounds. Pursuant to a plea bargain, Harvey was given
two years’ deferred-adjudication community supervision. The State moved to
adjudicate guilt, alleging five violations of Harvey’s community supervision terms.
Harvey plead “not true” to each allegation. After an evidentiary hearing, the trial
court found that Harvey had violated the terms of her community supervision by
committing a new offense of assault and using marijuana. Because this appeal
relates to the two violations found true by the trial court, we limit our recitation of
the evidence to the facts surrounding these findings.
The State’s motion to adjudicate guilt alleged that Harvey violated the terms
of her community supervision by “[c]ommitting an offense against the State of
Texas, to-wit: . . . [Harvey] . . . unlawfully intentionally and knowingly cause[d]
1 See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(3) (West 2009). 2 bodily injury to DIANE JOHNSON . . . by STRIKING [Johnson] with her hand.”
Johnson and Harvey testified about the alleged assault at the adjudication hearing.
Their testimony conflicted.
Johnson testified that she was driving during her lunch break and attempted
to make a U-turn on a busy street. Behind her, Harvey drove in a manner that
Johnson felt was unsafe. Johnson turned into an apartment complex to get away
from Harvey. At the same time, Harvey pulled up to the side of Johnson’s vehicle
and attempted to pass, but instead entered the apartment complex behind Johnson.
Johnson slowed her vehicle to pass over speed bumps in the apartment complex
parking lot. Johnson testified that she slowed and Harvey passed her “at top
speed.” The two vehicles nearly collided. Harvey, who lived in the apartment
complex, parked her vehicle. Johnson followed Harvey to her parking space in
order to “tell her to slow down because there’s a ton of kids that run around there.”
According to Johnson, as she got out of her vehicle to talk to Harvey, Harvey ran
at her. Before she could say anything, Harvey hit Johnson’s face with her fist. The
two women then fought until a delivery truck driver who happened on the scene
was able to separate them. Johnson suffered abrasions, contusions, and a fractured
jaw. Harvey received minor cuts and bruises on her face and legs.
According to Harvey, after failing to pass Johnson before they entered the
apartment complex, she veered around Johnson in the parking lot because she
3 believed Johnson had intentionally stopped her vehicle near the speed bumps “as if
to, like, give me some kind of attitude because she didn’t like that I tried to go
around her.” Harvey testified that Johnson followed her and then parked behind her
vehicle, blocking it in a parking space. Johnson exited her vehicle and began to
cuss at Harvey. Harvey testified that, after she got out of her vehicle, Johnson
raised her hand “as if she was going to hit me.” Harvey acknowledged throwing
the first punch, but she maintains that she acted in self-defense.
The State also presented evidence that Harvey had violated a condition of
her community supervision prohibiting use, possession, or consumption of
controlled substances. Specifically, the State presented evidence that Harvey failed
a drug test administered in connection with the criminal proceeding that resulted
from her altercation with Johnson.
Commission of New Offense
In her first issue, Harvey argues that the trial court erred in finding that she
committed a new crime because the State did not prove beyond a reasonable doubt
that her assaultive conduct was not justified by self-defense.
We review the trial court’s determination that Harvey violated the terms of
her community supervision for abuse of discretion, viewing the evidence in the
light most favorable to the trial court’s ruling and bearing in mind that the trial
judge is the trier of fact and the arbiter of the witnesses’ credibility. See Rickels v.
4 State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Duncan v. State, 321 S.W.3d
53, 56−57 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).
A. State’s burden of proof
Harvey’s argument raises a threshold question about the burden of proof in
adjudication hearings. On violation of a condition of community supervision
imposed under an order of deferred adjudication, the defendant is entitled to “a
hearing limited to the determination by the court of whether it proceeds with an
adjudication of guilt on the original charge.” TEX. CODE CRIM. PROC. ANN. art.
42.12, § 5(b) (West Supp. 2012). This determination is reviewable in the same
manner as a revocation hearing in a case in which an adjudication of guilt has not
been deferred. Id. In a revocation hearing, the State must prove by a preponderance
of the evidence that the defendant violated the terms of her community
supervision. Rickels, 202 S.W.3d at 763−74; Canesco v. State, 199 S.W.3d 437,
438 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Harvey asserts that the same
burden of proof―the preponderance-of-the-evidence standard―should not apply
in an adjudication hearing because the defendant has not yet been found guilty.
According to Harvey, the State should be required to prove the allegations in its
motion to adjudicate guilt beyond a reasonable doubt.
The Court of Criminal Appeals recently reaffirmed that revocation hearings
and adjudication hearings should be governed by the same rules. See Leonard v.
5 State, 385 S.W.3d 570, 572 n.1 (Tex. Crim. App. 2012) (op. on reh’g). The Court
reasoned:
When a defendant is placed on deferred adjudication community supervision, he pleads guilty, but the trial court defers any adjudication of guilt. If the defendant is found to be in violation of the terms of his community supervision, the trial court may proceed to adjudicate him guilty in accord with his plea.
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Opinion issued October 3, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. No. 01-12-00400-CR ——————————— RACHEL MARIE HARVEY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court Harris County, Texas Trial Court Case No. 1292026
MEMORANDUM OPINION
Rachel Marie Harvey challenges the trial court’s adjudication of her guilt
following the trial court’s finding that she violated two terms of her community
supervision put in place after she plead guilty to possession of marijuana in an amount more than four ounces and less than five pounds. 1 The trial court assessed
punishment at two years’ confinement. In two issues, Harvey contends the trial
court abused its discretion in finding (1) Harvey committed a new offense of
assault because the conduct alleged by the State was justified and (2) Harvey used
marijuana because the finding rested on judicial―rather than
adversarial―questioning. We affirm.
Background
Harvey plead guilty to possession of marijuana in an amount more than four
ounces and less than five pounds. Pursuant to a plea bargain, Harvey was given
two years’ deferred-adjudication community supervision. The State moved to
adjudicate guilt, alleging five violations of Harvey’s community supervision terms.
Harvey plead “not true” to each allegation. After an evidentiary hearing, the trial
court found that Harvey had violated the terms of her community supervision by
committing a new offense of assault and using marijuana. Because this appeal
relates to the two violations found true by the trial court, we limit our recitation of
the evidence to the facts surrounding these findings.
The State’s motion to adjudicate guilt alleged that Harvey violated the terms
of her community supervision by “[c]ommitting an offense against the State of
Texas, to-wit: . . . [Harvey] . . . unlawfully intentionally and knowingly cause[d]
1 See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(3) (West 2009). 2 bodily injury to DIANE JOHNSON . . . by STRIKING [Johnson] with her hand.”
Johnson and Harvey testified about the alleged assault at the adjudication hearing.
Their testimony conflicted.
Johnson testified that she was driving during her lunch break and attempted
to make a U-turn on a busy street. Behind her, Harvey drove in a manner that
Johnson felt was unsafe. Johnson turned into an apartment complex to get away
from Harvey. At the same time, Harvey pulled up to the side of Johnson’s vehicle
and attempted to pass, but instead entered the apartment complex behind Johnson.
Johnson slowed her vehicle to pass over speed bumps in the apartment complex
parking lot. Johnson testified that she slowed and Harvey passed her “at top
speed.” The two vehicles nearly collided. Harvey, who lived in the apartment
complex, parked her vehicle. Johnson followed Harvey to her parking space in
order to “tell her to slow down because there’s a ton of kids that run around there.”
According to Johnson, as she got out of her vehicle to talk to Harvey, Harvey ran
at her. Before she could say anything, Harvey hit Johnson’s face with her fist. The
two women then fought until a delivery truck driver who happened on the scene
was able to separate them. Johnson suffered abrasions, contusions, and a fractured
jaw. Harvey received minor cuts and bruises on her face and legs.
According to Harvey, after failing to pass Johnson before they entered the
apartment complex, she veered around Johnson in the parking lot because she
3 believed Johnson had intentionally stopped her vehicle near the speed bumps “as if
to, like, give me some kind of attitude because she didn’t like that I tried to go
around her.” Harvey testified that Johnson followed her and then parked behind her
vehicle, blocking it in a parking space. Johnson exited her vehicle and began to
cuss at Harvey. Harvey testified that, after she got out of her vehicle, Johnson
raised her hand “as if she was going to hit me.” Harvey acknowledged throwing
the first punch, but she maintains that she acted in self-defense.
The State also presented evidence that Harvey had violated a condition of
her community supervision prohibiting use, possession, or consumption of
controlled substances. Specifically, the State presented evidence that Harvey failed
a drug test administered in connection with the criminal proceeding that resulted
from her altercation with Johnson.
Commission of New Offense
In her first issue, Harvey argues that the trial court erred in finding that she
committed a new crime because the State did not prove beyond a reasonable doubt
that her assaultive conduct was not justified by self-defense.
We review the trial court’s determination that Harvey violated the terms of
her community supervision for abuse of discretion, viewing the evidence in the
light most favorable to the trial court’s ruling and bearing in mind that the trial
judge is the trier of fact and the arbiter of the witnesses’ credibility. See Rickels v.
4 State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Duncan v. State, 321 S.W.3d
53, 56−57 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).
A. State’s burden of proof
Harvey’s argument raises a threshold question about the burden of proof in
adjudication hearings. On violation of a condition of community supervision
imposed under an order of deferred adjudication, the defendant is entitled to “a
hearing limited to the determination by the court of whether it proceeds with an
adjudication of guilt on the original charge.” TEX. CODE CRIM. PROC. ANN. art.
42.12, § 5(b) (West Supp. 2012). This determination is reviewable in the same
manner as a revocation hearing in a case in which an adjudication of guilt has not
been deferred. Id. In a revocation hearing, the State must prove by a preponderance
of the evidence that the defendant violated the terms of her community
supervision. Rickels, 202 S.W.3d at 763−74; Canesco v. State, 199 S.W.3d 437,
438 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Harvey asserts that the same
burden of proof―the preponderance-of-the-evidence standard―should not apply
in an adjudication hearing because the defendant has not yet been found guilty.
According to Harvey, the State should be required to prove the allegations in its
motion to adjudicate guilt beyond a reasonable doubt.
The Court of Criminal Appeals recently reaffirmed that revocation hearings
and adjudication hearings should be governed by the same rules. See Leonard v.
5 State, 385 S.W.3d 570, 572 n.1 (Tex. Crim. App. 2012) (op. on reh’g). The Court
reasoned:
When a defendant is placed on deferred adjudication community supervision, he pleads guilty, but the trial court defers any adjudication of guilt. If the defendant is found to be in violation of the terms of his community supervision, the trial court may proceed to adjudicate him guilty in accord with his plea. Thus in such cases the hearing on whether the defendant violated the terms of community supervision may be called an “adjudication hearing,” but it is governed by the same rules as a hearing to revoke community supervision and is, in practical terms, a hearing on whether to revoke the defendant’s deferred adjudication community supervision.
Id. We therefore hold that the trial court did not err when it applied the
preponderance-of-the-evidence standard.
B. Credibility of witnesses
The State’s motion alleged that Harvey “unlawfully intentionally and
knowingly cause[d] bodily injury to DIANE JOHNSON . . . by striking [Johnson]
with her hand.” Johnston testified that she was attempting to speak with Harvey
about the manner in which she was driving when Harvey “came flying out of her
car” and “started pummeling [Johnson] in the face” before Johnson could say
anything. Johnson expressly denied having raised her hand as if to hit Harvey
before Harvey punched her.
Although Harvey’s testimony raised the issue of self-defense, the evaluation
of the witnesses’ credibility was a matter for the trial court’s judgment, and the
trial court was free to weigh the testimony presented and determine one witness to
6 be more reliable than the other. See Rickels, 202 S.W.3d at 763–64. We will not
substitute our collective judgment for the decision of the trial court. See Garrett v.
State, 619 S.W.2d 172, 175 (Tex. Crim. App. 1981). On this record, we hold that
the trial court did not abuse its discretion in revoking Harvey’s community
supervision and adjudicating her guilt. See Rickels, 202 S.W.3d at 763−64.
Accordingly, we overrule Harvey’s first issue. 2
Conclusion
Having concluded that the trial court did not abuse its discretion in revoking
Harvey’s community supervision and adjudicating her guilt, we affirm the trial
court’s judgment.
Harvey Brown Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
2 Because proof of a single violation is sufficient to support a revocation of community supervision, we do not reach Harvey’s second issue challenging the trial court’s finding that she violated the terms of her community supervision by using marijuana. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Canseco v. State, 199 S.W.3d 437, 439–40 (Tex. App.— Houston [1st Dist.] pet. ref’d).