Robert Terrance Dunn v. State

• Court: Court of Appeals of Texas
• Decided: June 2, 2009
• Docket: 14-08-00442-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 2, 2009

Affirmed and Memorandum Opinion filed June 2, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-00442-CR

ROBERT TERRANCE DUNN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1114177

M E M O R A N D U M   O P I N I O N

Appellant Robert Terrance Dunn appeals the trial court=s judgment adjudicating his guilt, revoking his deferred adjudication community supervision, and sentencing him to ten years= imprisonment for the underlying offense of indecency with a child.  In his sole issue, appellant contends that the State failed to prove by a preponderance of the evidence that he violated the terms of his community supervision which rendered the trial court=s finding of Atrue@ on the State=s allegation an abuse of discretion.  We affirm.

Appellant pled Aguilty@ to indecency with a child.  On September 5, 2007, the court sentenced appellant to three years= deferred adjudication community supervision.  The relevant conditions of appellant=s community supervision forbade him from contacting the complainant or going within one thousand feet of a premises where children gather, i.e. a Achild-safety zone.@  On April 21, 2008, the State filed its first amended motion to adjudicate appellant=s guilt alleging that appellant (1) contacted the complainant in person on two occasions at her apartment complex, and (2) the apartment complex was a child-safety zone.

At the hearing on the motion to adjudicate, Janie Hernandez (appellant=s probation officer) and Johnny Hamilton (who performs sex-offender probation compliance checks) testified that the complainant=s entire apartment complex is a child-safety zone.  Hernandez testified that it would be a probation violation for appellant to go within one thousand feet of that zone.

The complainant and her cousin testified that while they waited at the bus stop one morning in late February 2008, they saw someone in a black vehicle staring at the complainant.  The complainant testified that she could not discern whether the person looking at her had a beard and moustache because of the tint of the vehicle=s windows, which were partially rolled down, but her cousin testified that the man had a beard and moustache.  They also testified that one afternoon the same person in the same vehicle entered their apartment complex, swerved, and almost hit a friend with whom they were walking.  Their testimony conflicted, however, regarding whether this incident occurred on the same day as the first incident or at a later date.  The complainant identified appellant as the person in the vehicle in both instances, but complainant=s cousin was unable to identify the driver because she did not see him that well.  Neither the complainant nor her cousin could testify as to whether the person in the vehicle was bald.

Appellant denied the allegations, but admitted driving the same model vehicle the complainant and her cousin claimed to have seen in the two incidents.  Jerry Jones, appellant=s private investigator, testified that the complainant and her cousin had previously described the appellant as bald with a moustache and beard, contradicting the complainant=s testimony that she had never told Jones that appellant was bald.  According to Jones, the complainant=s cousin told him that both incidents occurred on the same day.  However, Jones=s testimony was inconsistent as to whether the complainant told him the incidents happened on the same day or on different days.

The trial court found the State=s allegation true, revoked appellant=s community supervision, and adjudicated him guilty.  Before sentencing, appellant protested that he was not bald at the time of the incidents, relying on the fact that he had Aover an inch@ of hair at the proceedings.  He continued his protests after sentencing.  This appeal followed.

The trial court=s determination on a motion to adjudicate is reviewable in the same manner as a determination on a motion to revoke probation.  Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2008).  We review a trial court=s order revoking probation under an abuse-of-discretion standard, considering all the evidence in the light most favorable to the trial court=s finding to determine whether the trial court could have reasonably found that appellant violated the terms and conditions of his probation by a preponderance of the evidence.  See Rickels v. State, 202 S.W.3d 759, 763B64 (Tex. Crim. App. 2006); Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Moore v. State, 11 S.W.3d 495, 498 (Tex. App.CHouston [14th Dist.] 2000, no pet.).  The State satisfies the preponderance-of-the-evidence burden of proof when the greater weight of credible evidence before the trial court creates a reasonable belief that it is more probable than not that the defendant has violated a condition of probation.  Rickels, 202 S.W.3d at 763B64; Joseph v. State, 3 S.W.3d 627, 640 (Tex. App.CHouston [14th Dist.] 1999, no pet.).

In a probation revocation hearing, it is the trial court=s role to make credibility determinations and resolve evidentiary conflicts.  See Garrett, 619 S.W.2d at 174; Moore, 11 S.W.3d at 498.  Although our review of that function is highly deferential, the trial court is not given absolute discretion to revoke probation.  See Scamardo v. State, 517 S.W.2d 293, 297 (Tex. Crim. App. 1974); Stafford v. State, 63 S.W.3d 502, 508 (Tex. App.CTexarkana 2001, pet. ref=d).  If the trial court made reasonable decisions in assessing credibility and resolving conflicts in the testimony, and if, viewing the evidence in the light of such determinations, the trial court could reasonably believe that, more likely than not, appellant violated his probation, we must uphold the trial court=s decision.  See Rickels, 202 S.W.3d at 763B64; Moore, 11 S.W.3d at 498.

Appellant argues that the State failed to meet its burden because (1) the complainant=s testimony conflicted with her cousin=s testimony regarding the date of the incidents; (2) the complainant=s cousin could not recognize appellant and depended on the complainant=s identification of the person driving the vehicle; (3) the friend who was almost hit in the second incident was never called by the State and reportedly appeared surprised when Jones questioned her about the incident;^[1] (4) both witnesses (appellant and her cousin) described appellant to Jones as bald, though he had grown out his hair by the time of the alleged contacts; and (5) the complainant did not report the incidents for several weeks.^[2]  Despite the inconsistencies pointed out by appellant, the material aspects of the complainant=s and her cousin=s testimony were otherwise consistent.  Both testified that the first incident occurred on a morning in late February 2008, and the complainant=s testimony that the second incident occurred on a later date leaves no dispute as to whether the alleged incidents occurred while appellant was on deferred adjudication community supervision.  The State was not required to prove the exact date of the violation.  See Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997).  Regardless of the cousin=s inability to identify appellant and the friend=s purported Asurprise@ at Jones=s questioning, the trial court could reasonably have based its finding on the complainant=s identification of appellant as the person in the vehicle in both incidents.  See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Davis v. State, 177 S.W.3d 355, 359 (Tex. App.CHouston [1st Dist.] 2005, no pet.).  The complainant=s failure to immediately report the incidents and the conflicting testimony regarding appellant=s baldness and whether his vehicle=s windows were tinted went to the witnesses= credibilityCa matter exclusively within the province of the trial court.  See Garrett, 619 S.W.2d at 174; Moore, 11 S.W.3d at 498 (in a probation revocation hearing the trial court makes credibility determinations and resolves evidentiary conflicts).  The trial court may have simply found the girls= trial testimony more credible than Jones=s and appellant=s, and may reasonably have found the complainant=s testimony credible despite her delayed report.  See Garrett, 619 S.W.2d at 174; Moore, 11 S.W.3d at 498.

The trial court observed the demeanor of the witnesses, made reasonable credibility determinations, and resolved conflicting evidence.  We conclude that the evidence is sufficient, when viewed in the light most favorable to the trial court=s ruling, for the trial court to have reasonably found by a preponderance of the evidence that appellant violated the terms of his deferred adjudication community supervision by contacting the complainant.  Alternatively, the trial court could reasonably have foundCbased on the testimony of the complainant, her cousin, Hernandez, and HamiltonCthat appellant committed a violation by entering the complainant=s apartment complex, a child-safety zone, in the second incident.  See Rickels, 202 S.W.3d at 763B64; Moore, 11 S.W.3d at 498.  Thus, the trial court did not abuse its discretion in finding the allegations true and adjudicating appellant=s guilt.  See Rickels, 202 S.W.3d at 763B64; Garrett, 619 S.W.2d at 174; Moore, 11 S.W.3d at 498. 

We therefore overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/        J. Harvey Hudson

Senior Justice

Panel consists of Chief Justice Hedges, Justice Frost, and Senior Justice Hudson.^*

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant asserts that the investigator=s questioning revealed that this person Aapparently had no recollection of having been almost run over by appellant and did not remember the event.@  However, the record does not contain any evidence supporting those assertions, as appellant=s trial counsel=s questions in that regard were objected to, and the objections were sustained without a response from Jones.

^[2]  Appellant also asserts he was prevented from presenting an alibi defense because the State did not have to prove the specific date of the alleged violations.  However, appellant has waived this argument by failing to support it with citation to or discussion of relevant legal authorities or principles.  See Tex. R. App. P. 38.1(i); Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003).

^*  Senior Justice J. Harvey Hudson sitting by assignment.