In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-14-00068-CR
RICHARD W. PIERCE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 371st District Court Tarrant County, Texas Trial Court No. 1325728D, Honorable Mollee Westfall, Presiding
August 29, 2014
MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Richard W. Pierce, appeals the trial court’s judgment adjudicating him
guilty of and sentencing him to sixty years’ imprisonment for the second-degree felony
offense of aggravated assault with a deadly weapon.1 On appeal, he challenges the
trial court’s decision to adjudicate him guilty of said offense on the basis that the
evidence was insufficient to support the trial court’s findings that he violated the terms
and conditions of his deferred adjudication community supervision. We will affirm.
1 See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). Factual and Procedural History
In July 2013, appellant pleaded guilty to charges of aggravated assault with a
deadly weapon. In exchange for his plea of guilty, appellant was placed on deferred
adjudication community supervision for a period of seven years. As a part of his
community supervision, appellant was subject to a number of terms and conditions.
More specifically, the terms and conditions of his deferred adjudication community
supervision ordered him to abide by, inter alia, the following conditions: (1) commit no
offense against the laws of this State or of any other State or of the United States; (2)
do not possess, own, or attempt to purchase a firearm or weapon; (3) serve eight days’
confinement in the Tarrant County Jail, beginning August 30, 2013, and to be served on
weekends when appellant books into jail each Friday at 9:00 p.m. and books out each
Monday at 5:00 a.m.; (4) participate in and successfully complete a batterer’s
intervention and prevention program; (5) submit to urine test at the direction of the
community supervision officer; (6) notify the community supervision officer of a change
in address or employment within five days; and (7) pay $60.00 per month as a
supervision fee.
The State moved to proceed to adjudication on September 26, 2013, alleging
that, by nine acts or omissions, appellant had violated each of the above-referenced
conditions of community supervision.2 Appellant pleaded not true to those allegations,
and a hearing was held on the State’s motion in January 2014, at which the State
2 To clarify, the State alleged that appellant violated the commit-no-criminal-offense condition of his supervision in three different manners: by fleeing from police officers, by possessing a firearm as a convicted felon, and by committing aggravated assault on a public servant, all offenses being in connection with the interaction with officers from the White Settlement Police Department on September 17, 2013, described later.
2 presented evidence of these violations and at the end of which the trial court found true
all nine allegations relating to appellant’s violations of the terms and conditions of his
deferred adjudication community supervision. The trial court imposed a punishment of
sixty years’ incarceration.
Appellant timely appealed the trial court's judgment. On appeal, appellant
contends that the trial court abused its discretion by adjudicating him guilty of the
original charged offense of aggravated assault with a deadly weapon because the
evidence was insufficient to show four of the bases upon which the trial court
adjudicated appellant’s guilt. We will overrule his contentions and affirm the trial court’s
judgment.
Applicable Law and Standard of Review
Given the unique nature of a revocation hearing and the trial court’s broad
discretion in the proceedings, the general standards for reviewing sufficiency of the
evidence do not apply. Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana
2003, pet. ref’d). Instead, we review the trial court’s decision regarding community
supervision revocation for an abuse of discretion and examine the evidence in a light
most favorable to the trial court’s order. See Garrett v. State, 619 S.W.2d 172, 174
(Tex. Crim. App. [Panel Op.] 1981). In determining questions regarding sufficiency of
the evidence in community supervision revocation cases, the burden of proof is by a
preponderance of the evidence. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.
App. 2006) (citing Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984) (en
banc)). A preponderance of the evidence exists when the greater weight of the credible
3 evidence creates a reasonable belief that the defendant has violated a condition of his
or her supervision. See id. at 764; Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim.
App. 1974). The trial judge is the trier of fact and the arbiter of the credibility of the
testimony during a hearing on a motion to adjudicate. See Garrett, 619 S.W.2d at 174.
Proof of a violation of a single term and condition of community supervision is sufficient
to support a trial court’s decision to adjudicate. See Sanchez v. State, 603 S.W.2d 869,
871 (Tex. Crim. App. [Panel Op.] 1980); Antwine v. State, 268 S.W.3d 634, 636 (Tex.
App.—Eastland 2008, pet. ref’d).
Analysis
White Settlement Police Department Sergeant Roger Yount testified at the
hearing, as did Telena Wooden, appellant’s community supervision officer. Appellant
testified as well. The evidence depicts a scenario in which two officers were attempting
to serve a blue warrant on appellant, who was outside in the front of his mother’s house
and who, when he saw the two officers’ vehicles converging on the house, took off
running into the backyard. The officers gave chase and attempted to gain his
compliance by identifying themselves as officers and directing him to stop, but appellant
continued his attempt to escape and took refuge in a shed located in his mother’s
backyard. In the shed, he fired two shots from a nine millimeter pistol—one that he
testified he kept in the shed and not on his person—at least one shot of which was in
the direction of Yount, who had taken shelter behind a tree in the backyard upon
hearing gunfire. Following suicidal pronouncements by appellant and invitations for the
officers to shoot him, appellant finally surrendered by coming out of the shed, removing
4 the gun’s magazine, emptying its chamber, laying the gun on the ground, and then
laying himself on the ground so the officers could arrest him without further incident.
At the conclusion of the testimony presented at the hearing on the State’s
application, the trial court found all nine of the State’s alleged violations to be true:
Mr.
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-14-00068-CR
RICHARD W. PIERCE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 371st District Court Tarrant County, Texas Trial Court No. 1325728D, Honorable Mollee Westfall, Presiding
August 29, 2014
MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Richard W. Pierce, appeals the trial court’s judgment adjudicating him
guilty of and sentencing him to sixty years’ imprisonment for the second-degree felony
offense of aggravated assault with a deadly weapon.1 On appeal, he challenges the
trial court’s decision to adjudicate him guilty of said offense on the basis that the
evidence was insufficient to support the trial court’s findings that he violated the terms
and conditions of his deferred adjudication community supervision. We will affirm.
1 See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). Factual and Procedural History
In July 2013, appellant pleaded guilty to charges of aggravated assault with a
deadly weapon. In exchange for his plea of guilty, appellant was placed on deferred
adjudication community supervision for a period of seven years. As a part of his
community supervision, appellant was subject to a number of terms and conditions.
More specifically, the terms and conditions of his deferred adjudication community
supervision ordered him to abide by, inter alia, the following conditions: (1) commit no
offense against the laws of this State or of any other State or of the United States; (2)
do not possess, own, or attempt to purchase a firearm or weapon; (3) serve eight days’
confinement in the Tarrant County Jail, beginning August 30, 2013, and to be served on
weekends when appellant books into jail each Friday at 9:00 p.m. and books out each
Monday at 5:00 a.m.; (4) participate in and successfully complete a batterer’s
intervention and prevention program; (5) submit to urine test at the direction of the
community supervision officer; (6) notify the community supervision officer of a change
in address or employment within five days; and (7) pay $60.00 per month as a
supervision fee.
The State moved to proceed to adjudication on September 26, 2013, alleging
that, by nine acts or omissions, appellant had violated each of the above-referenced
conditions of community supervision.2 Appellant pleaded not true to those allegations,
and a hearing was held on the State’s motion in January 2014, at which the State
2 To clarify, the State alleged that appellant violated the commit-no-criminal-offense condition of his supervision in three different manners: by fleeing from police officers, by possessing a firearm as a convicted felon, and by committing aggravated assault on a public servant, all offenses being in connection with the interaction with officers from the White Settlement Police Department on September 17, 2013, described later.
2 presented evidence of these violations and at the end of which the trial court found true
all nine allegations relating to appellant’s violations of the terms and conditions of his
deferred adjudication community supervision. The trial court imposed a punishment of
sixty years’ incarceration.
Appellant timely appealed the trial court's judgment. On appeal, appellant
contends that the trial court abused its discretion by adjudicating him guilty of the
original charged offense of aggravated assault with a deadly weapon because the
evidence was insufficient to show four of the bases upon which the trial court
adjudicated appellant’s guilt. We will overrule his contentions and affirm the trial court’s
judgment.
Applicable Law and Standard of Review
Given the unique nature of a revocation hearing and the trial court’s broad
discretion in the proceedings, the general standards for reviewing sufficiency of the
evidence do not apply. Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana
2003, pet. ref’d). Instead, we review the trial court’s decision regarding community
supervision revocation for an abuse of discretion and examine the evidence in a light
most favorable to the trial court’s order. See Garrett v. State, 619 S.W.2d 172, 174
(Tex. Crim. App. [Panel Op.] 1981). In determining questions regarding sufficiency of
the evidence in community supervision revocation cases, the burden of proof is by a
preponderance of the evidence. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.
App. 2006) (citing Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984) (en
banc)). A preponderance of the evidence exists when the greater weight of the credible
3 evidence creates a reasonable belief that the defendant has violated a condition of his
or her supervision. See id. at 764; Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim.
App. 1974). The trial judge is the trier of fact and the arbiter of the credibility of the
testimony during a hearing on a motion to adjudicate. See Garrett, 619 S.W.2d at 174.
Proof of a violation of a single term and condition of community supervision is sufficient
to support a trial court’s decision to adjudicate. See Sanchez v. State, 603 S.W.2d 869,
871 (Tex. Crim. App. [Panel Op.] 1980); Antwine v. State, 268 S.W.3d 634, 636 (Tex.
App.—Eastland 2008, pet. ref’d).
Analysis
White Settlement Police Department Sergeant Roger Yount testified at the
hearing, as did Telena Wooden, appellant’s community supervision officer. Appellant
testified as well. The evidence depicts a scenario in which two officers were attempting
to serve a blue warrant on appellant, who was outside in the front of his mother’s house
and who, when he saw the two officers’ vehicles converging on the house, took off
running into the backyard. The officers gave chase and attempted to gain his
compliance by identifying themselves as officers and directing him to stop, but appellant
continued his attempt to escape and took refuge in a shed located in his mother’s
backyard. In the shed, he fired two shots from a nine millimeter pistol—one that he
testified he kept in the shed and not on his person—at least one shot of which was in
the direction of Yount, who had taken shelter behind a tree in the backyard upon
hearing gunfire. Following suicidal pronouncements by appellant and invitations for the
officers to shoot him, appellant finally surrendered by coming out of the shed, removing
4 the gun’s magazine, emptying its chamber, laying the gun on the ground, and then
laying himself on the ground so the officers could arrest him without further incident.
At the conclusion of the testimony presented at the hearing on the State’s
application, the trial court found all nine of the State’s alleged violations to be true:
Mr. Pierce, based on the evidence presented today, the Court will find Paragraph 1 to be true, Paragraph 2 to be true, Paragraph 3 to be true, Paragraph 4 to be true, Paragraph 5 to be true, Paragraph 6 to be true, Paragraph 7 to be true, Paragraph 8 to be true, and Paragraph 9 to be true, find that you violated the terms and conditions of your probation, and find you guilty of the offense of aggravated assault with a deadly weapon, to-wit: a knife, find the deadly weapon allegation to be true, and find the habitual offender count to be true.
On appeal, appellant contends that the evidence was insufficient to support the trial
court’s findings that appellant violated the terms and conditions of his community
supervision in the following ways: (1) by committing the criminal offense of aggravated
assault of a public servant; (2) by failing to participate and successfully complete the
batterer’s intervention and prevention program; (3) by failing to notify his supervision
officer of a change of address within five days of such change; and (4) by failing to pay
his supervision fees because the State failed to prove that appellant was financially able
to pay such fees. Consequently, he has left unchallenged five of the nine grounds
found true by the trial court and representing several of the trial court’s bases for
revoking appellant’s deferred adjudication community supervision and adjudicating him
guilty of aggravated assault with a deadly weapon, as originally charged.
Appellant leaves unchallenged the trial court’s findings that he committed
criminal offenses by evading arrest or detention when he fled from peace officers and
also by possessing a firearm as a felon. See TEX. PENAL CODE ANN. § 38.04 (West
5 Supp. 2014), § 46.04 (West 2011). Appellant also fails to attack the sufficiency of the
evidence in support of the trial court’s finding that he possessed a firearm in violation of
another express condition of his community supervision. He likewise leaves
unchallenged the trial court’s finding that he failed to serve the required eight days’
confinement in the Tarrant County Jail per the terms and conditions of his supervision.
Also uncontested is the trial court’s finding that appellant failed to submit to a urine test
at the direction of his community supervision officer.
We reiterate that proof of a single violation is sufficient to revoke a defendant’s
community supervision. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App.
[Panel Op.] 1980). From that general proposition, to prevail on appeal, an appellant
must successfully challenge all the findings that support the revocation order. See
Joseph v. State, 3 S.W.3d 627, 640 (Tex. App.—Houston [14th Dist.] 1999, no pet.)
(citing Jones v. State, 571 S.W.2d 191, 193–94 (Tex. Crim. App. [Panel Op.] 1978)).
Here, we have five bases for revocation that are left unchallenged. That said,
appellant has failed to make the requisite showing that the trial court abused its
discretion by revoking appellant’s community supervision and adjudicating him guilty of
aggravated assault with a deadly weapon. See Gobell v. State, 528 S.W.2d 223, 224
(Tex. Crim. App. 1975) (“Since the other finding upon which probation was revoked is
unchallenged, appellant’s contention, even if correct, would not show an abuse of
discretion.”); Loomis v. State, No. 07-06-00281-CR, 2007 Tex. App. LEXIS 82, at *2
(Tex. App.—Amarillo Jan. 8, 2007, no pet.) (per curiam) (mem. op., not designated for
publication) (observing that appellant failed to attack each of the various grounds
justifying trial court’s decision to adjudicate guilt and noting that proof of any one of
6 them is sufficient to support the order revoking probation); see also Smith v. State, 286
S.W.3d 333, 343–44 (Tex. Crim. App. 2009) (in ineffective assistance of counsel
context, finding that appellant could not show prejudice by alleged deficiency because,
even assuming his contentions were true and correct, he challenged only one of three
community supervision violations found true by the trial court); Castro-Marquez v. State,
No. 14-11-00314-CR, 2011 Tex. App. LEXIS 10068, at *5–6 (Tex. App.—Houston [14th
Dist.] Dec. 22, 2011, no pet.) (per curiam) (mem. op., not designated for publication)
(citing Moore, 605 S.W.2d at 926, in support of conclusion that “we can uphold the trial
court’s revocation of probation on those unchallenged grounds”). Accordingly, having
concluded that appellant has failed to show that the trial court abused its discretion, we
overrule appellant’s points of error on appeal.
Conclusion
Having overruled appellant’s points of error on appeal, we affirm the trial court’s
judgment adjudicating appellant’s guilt. See TEX. R. APP. P. 43.2(a).
Mackey K. Hancock Justice
Do not publish.