Stephens v. State

983 S.W.2d 27, 1998 Tex. App. LEXIS 5863, 1998 WL 808235
CourtCourt of Appeals of Texas
DecidedSeptember 17, 1998
DocketNos. 14-96-01440-CR, 14-96-01443-CR
StatusPublished
Cited by7 cases

This text of 983 S.W.2d 27 (Stephens v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stephens v. State, 983 S.W.2d 27, 1998 Tex. App. LEXIS 5863, 1998 WL 808235 (Tex. Ct. App. 1998).

Opinion

OPINION

FOWLER, Justice.

Appellant, Justin Mareelle Stephens (“Stephens”), appeals from an order revoking his probation on two separate cause numbers. We affirm the trial court judgment.

BACKGROUND

In April 1992, Stephens was charged in cause number 626855 with two counts of unauthorized use of a motor vehicle. He entered a plea of guilty without an agreed recommendation as to punishment. The trial court sentenced Stephens to ten years confinement in the Texas Department of Criminal Justice, Institutional Division. The sentence was suspended and Stephens was placed under community supervision for a period of ten years. In addition, the trial court ordered Stephens to pay a $1000 fine.

In August 1992, Stephens was charged in cause number 639144 with possession of a forged driver’s license. He entered a plea of guilty without an agreed recommendation as to punishment. The trial court sentenced Stephens to ten years confinement in the Texas Department of Criminal Justice, Institutional Division. The sentence was suspended and Stephens was placed under community supervision for a period of ten years.

The State filed several motions to revoke probation in each cause of action between August 1992 and January 1996. These motions were either dismissed or overruled. In September 1996, the State filed a motion to revoke probation in each cause of action. In these motions, the State alleged that Stephens had violated the conditions of his probations. The trial court agreed, found Stephens had violated the conditions of his probations, revoked his probations, and assessed punishment in both causes of action at ten years confinement in the Texas Department of Criminal Justice, Institutional Division. The sentences are to be served concurrently. Stephens appeals on five points of error.

STANDARD OF REVIEW

An order revoking probation must be supported by a preponderance of the evidence. See Scamardo v. State, 517 S.W.2d 293, 298 (Tex.Crim.App.1974). The greater weight of the credible evidence must create a reasonable belief that the defendant has violated a condition of his probation. See id. When the sufficiency of the evidence is challenged, the evidence is viewed in a light most [29]*29favorable to the trial court’s findings. See Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1981); Montoya v. State, 832 S.W.2d 138, 140 (Tex.App.-Fort Worth 1992, no pet.). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Naquin v. State, 607 S.W.2d 583, 586 (Tex.Crim.App. [Panel Op.] 1980). Appellate review of an order revoking probation is limited to a determination of whether the trial court abused its discretion. See Flournoy v. State, 589 S.W.2d 705, 709 (Tex.Crim.App. [Panel Op.] 1979).

DISCUSSION AND HOLDINGS

In his first three points of error, Stephens contends there was insufficient evidence to show that he violated the conditions of his probation. In his first point of error, Stephens argues that there was insufficient evidence to support a finding that he committed an offense against the laws of this state or any other state as alleged in paragraph A of the motion to revoke probation.

However, as the record clearly shows, the State abandoned the allegations that Stephens had violated this condition. The trial court agreed to the State’s request to abandon this allegation and the State then proceeded under Paragraph D and the technical violations of the probation conditions. Thus, because the State abandoned these allegations, the trial court did not revoke Stephens’ probation based on these allegations. We overrule Stephens’ first point of error.

In his second and third points of error, Stephens argues that there is insufficient evidence to show he violated his probation by not reporting to his probation officer. This allegation was contained in paragraph D of the motions to revoke probation, which recited the language contained in the two probation orders. In cause number 639144, the State relied only on paragraph D, which stated:

Report immediately in person on November 16, 1992 to the Harris County Adult Probation Department Intake Division, 49 San Jacinto Street, Houston, Texas and thereafter on the 16th of each month to your designated Probation Officer unless different dates within a calendar month are agreed to by you and your Probation Officer;

(emphasis added). In cause number 626855, Paragraph D stated:

Report immediately in person on June 23, 1993 to the Harris County Community Supervision and Corrections Department Intake Division, 49 San Jacinto Street, Houston, Texas and thereafter on the 23rd of each month to your designated Probation Officer unless different dates within a calendar month are agreed to by you and your Probation Officer;

(emphasis added).

Proof by preponderance of the evidence on any one of the alleged violations of the conditions of probation is sufficient to support the order of revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App. [Panel Op.] 1980); Jones v. State, 571 S.W.2d 191, 193 (Tex.Crim.App. [Panel Op.] 1978); Montoya, 832 S.W.2d at 140. When several violations are found by the Court, the order revoking probation shall be affirmed if the proof of any allegation is sufficient. See Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim .App. [Panel Op.] 1980); McCollum v. State, 784 S.W.2d 702, 704-05 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd). The record shows that John Hernandez, Stephens’ probation officer, testified to the following:

1. Stephens failed to report in July, November, and December of 1994.
2. Stephens failed to report between January and November of 1995.
3. The last time Stephens reported in person was October 1994, until he appeared in court for the revocation of probation hearing in February of 1996.
4. In 1996, Stephens reported only once and Hernandez did not see him again until shortly before the revocation proceeding.

The record clearly shows Stephens failed to report to his probation officer as instructed by the trial court. The conditions of his probation required that he report in person each month as indicated or as agreed to with [30]*30his probation officer. Stephens’ probation officer testified that he told Stephens he could pick the day he reported each month, but that he must report each month. In addition, the record shows that Stephens was fully aware of this requirement. Stephens also testified that his failure to appear was because he did not abide by his agreement to appear.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Tyrone Deanta Bell - Brumfield v. State
Court of Appeals of Texas, 2018
Donald Corey Hill v. State
Court of Appeals of Texas, 2016
Tammy McGee Quisenberry v. State
Court of Appeals of Texas, 2014
David Jason Mena v. State
Court of Appeals of Texas, 2013
Cedric Maurice Jackson v. State
Court of Appeals of Texas, 2012
McArthur v. State
1 S.W.3d 323 (Court of Appeals of Texas, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
983 S.W.2d 27, 1998 Tex. App. LEXIS 5863, 1998 WL 808235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephens-v-state-texapp-1998.