Rocky Raynell Harvey v. State

• Court: Court of Appeals of Texas
• Decided: May 10, 2019
• Docket: 07-18-00446-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00446-CR

ROCKY RAYNELL HARVEY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 100th District Court Hall County, Texas Trial Court No. 3825, Honorable Stuart Messer, Presiding

May 10, 2019

MEMORANDUM OPINION Before CAMPBELL and PIRTLE and PARKER, JJ.

Appellant Rocky Raynell Harvey appeals from the trial court’s order revoking his

deferred adjudication community supervision, adjudicating him guilty of the second-

degree felony offense of burglary of a habitation,1 and sentencing him to serve twenty

1 TEX. PENAL CODE ANN. § 30.02 (West 2018). years in prison.2 Appellant challenges the trial court’s revocation through four issues. We

will affirm.

Background

When in May 2017 appellant pled guilty to the felony offense of burglary of a

habitation, the court deferred adjudication of his guilt and placed him on community

supervision for a period of four years. After appellant’s community supervision officer

reported violations of several of the terms and conditions of his community supervision,

the State filed a motion to adjudicate guilt. It contained nine alleged violations, including

one alleging appellant consumed marijuana in January 2018 despite the condition

requiring him to “totally abstain” from its possession or use.

At the outset of the hearing on the State’s motion, the State waived one of the

violation allegations and after appellant entered a plea of “not true” to the remaining

allegations, the court received evidence. Several witnesses testified, including

appellant’s community supervision officer and appellant.

The community supervision officer testified to the conditions of appellant’s

community supervision and appellant’s understanding of them, including that requiring

him to abstain from using marijuana. She also described for the court appellant’s January

2018 positive drug test and appellant’s written and verbal admissions of use of marijuana

in January 2018. She also stated she waited to file a report of appellant’s violations to

provide to him a chance to attend drug counseling. She referred appellant to a drug

This is a second-degree felony punishable by any term of imprisonment for not 2

less than two years or more than twenty years and a fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.33 (West 2018).

2 counselor, but testified that when appellant met with the counselor, he refused to admit

his marijuana use was problematical and did not successfully complete the counseling.

The community supervision officer also told the court of appellant’s failure to submit to a

required drug test in December 2017, his failure to complete community service hours

and to attend certain court-ordered classes, and his failure to pay required fines, fees,

and costs, as well as of confrontations she had with appellant over those financial

obligations.

Appellant testified, acknowledging his positive drug test and his admission of use,

but telling the court he attended drug counseling and had provided four negative tests

since then. He also told the court he failed to meet his court-ordered financial obligations

because he needed the money he made from his job to “establish” himself after being

homeless. He further provided explanations for his failure to meet his other court-ordered

obligations. On cross-examination, the State explored those explanations, and reviewed

with appellant his record of prior convictions.

After the hearing, the court found sufficient evidence under the requisite standard

to find appellant violated four of the conditions, including the condition requiring him to

abstain from using marijuana, found appellant guilty of burglary of a habitation, revoked

his community supervision, and sentenced him as noted.

Analysis

Appellant’s four issues address the evidence supporting each of the four terms of

community supervision the trial court found appellant had violated. When moving to

revoke community supervision, the State has the burden of showing by a preponderance

3 of the evidence that the defendant committed a violation of a condition of community

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

satisfies this burden when the “greater weight of credible evidence” creates “a reasonable

belief that the defendant has violated a condition of his probation.” Rickels v. State, 202

S.W.3d 759, 763-64 (Tex. Crim. App. 2006) (citation omitted).

Reviewing the sufficiency of the evidence to sustain a revocation, we view the

evidence in the light most favorable to the trial court’s ruling while recognizing that the

“trial court is the sole judge of the credibility of the witnesses and the weight to be given

to their testimony.” Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). Our

review is limited to determining whether the trial court abused its discretion and proof of

a single violation is sufficient to support revocation. Garcia v. State, 387 S.W.3d 20, 26

(Tex. Crim. App. 2012) (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App.

1980)).

The community supervision officer testified appellant was on community

supervision for a little over a year when he tested positive for marijuana on a drug screen.

After the positive result, appellant admitted his use verbally and in writing. His written

admission was in evidence at the hearing.

Appellant now appeals, arguing with regard to revocation based on his use of

marijuana that his compulsory attendance in drug counseling served as a modification of

his terms of community supervision and thus should not form the basis for revocation.

We cannot agree with appellant’s contention. The record contains no mention of any

modification of the terms and conditions of appellant’s community supervision. And

4 appellant did not satisfactorily complete drug counseling. Appellant cites no case law to

support his contention that such participation constitutes a modification that would render

this ground improper as a basis on which to revoke his community supervision.

The evidence of appellant’s violation of this condition is clear and uncontroverted

and thus sufficient, by a preponderance of the evidence, to support revocation of

appellant’s community supervision. See, e.g., Keelin v. State, No. 07-13-00420-CR, 2014

Tex. App. LEXIS 8936, at *6-7 (Tex. App.—Amarillo Aug. 13, 2014, pet. ref’d) (mem. op.,

not designated for publication) (citing Rickels, 202 S.W.3d at 764) (similar finding).

While sufficient evidence of a single violation supports revocation of community

supervision, Garcia, 387 S.W.3d at 26, we note that the trial court had before it evidence

sufficient to support appellant’s violation of other conditions as well. The community

supervision officer testified appellant failed to enroll in any of the classes required by his

community supervision order. She also testified appellant failed to submit to a random

drug test in December 2017. On that day, appellant told her he did not have time to

complete the test because he needed to get back to work. Appellant admitted to these

failures but provided explanations for each. As fact finder, however, the trial court was

not required to accept appellant’s explanations and was free to accept the supervision

officer’s testimony. See Hacker, 389 S.W.3d at 865 (trial judge is the sole judge of the

credibility of the witnesses and the weight to be given to their testimony) (citation omitted).

For these reasons, we overrule appellant’s issues.

5 Conclusion

Having resolved appellant’s issues against him, we affirm the judgment of the trial

court. See TEX. R. APP. P. 43.2(a).

James T. Campbell Justice

Do not publish.