Vicente Ochoa v. State

Opinion

NO. 07-08-0226-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 15, 2008

______________________________

VICENTE OCHOA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

 

_________________________________

FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

NO. CR-06J-146; HONORABLE ROLAND SAUL, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

ABATEMENT AND REMAND

          Appellant, Vicente Ochoa, plead guilty to felony driving while intoxicated in January 2007 and was placed on community supervision. Appellant’s community supervision was revoked in May 2008. He now appeals from the revocation of his community supervision and the resulting sentence of five years in the Institutional Division of the Texas Department of Criminal Justice. The trial court filed its certification representing that appellant has the right of appeal. However, the appellate record reflects that appellant failed to sign the certification, pursuant to Texas Rule of Appellate Procedure 25.2(d), which requires the certification to be signed by appellant and a copy served on him. See Tex. R. App. P. 25.2(d).

          Consequently, we abate the appeal and remand the cause to the 222^nd District Court of Deaf Smith County for further proceedings. On remand, the trial court shall utilize whatever means it finds necessary to secure and file with this Court a certificate of right to appeal that complies with Rule 25.2(d). See Tex. R. App. P. 25.2(d).

          If necessary, the trial court shall execute findings of fact, conclusions of law, and any necessary orders it may enter regarding the aforementioned issues and cause its findings, conclusions, and orders, if any, to be included in a supplemental clerk’s record. The trial court shall file the supplemental clerk’s record and the supplemental reporter’s record, if any, with the Clerk of this Court by November 17, 2008.

          It is so ordered.

 

                                                                           Per Curiam

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NO.  07-09-0201-CR

                                                             

                                                   IN THE COURT OF APPEALS

 

                                       FOR THE SEVENTH DISTRICT OF TEXAS

 

                                                                 AT AMARILLO

 

                                                                     PANEL D

 

                                                          NOVEMBER 17, 2010

 

                                            ______________________________

 

 

                                                   ANGELA LEE MCCLENDON,

 

                                                                                                            Appellant

 

                                                                             v.

 

                                                        THE STATE OF TEXAS,

 

                                                                                                            Appellee

                                              _____________________________

 

                    FROM THE 100th DISTRICT COURT OF CHILDRESS COUNTY;

 

                                  NO. 5190; HON. STUART MESSER, PRESIDING

                                            ______________________________

 

Memorandum Opinion

______________________________

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

            Angela Lee McClendon (appellant) appeals her conviction for possession of a controlled substance.  Through seven issues, appellant contends the trial court abused its discretion when it found she had violated probation, adjudicated her guilty and revoked her community supervision.  We affirm.

 

Background

            Appellant pled guilty to possession of a controlled substance and as part of the plea agreement was placed on deferred adjudication.  Subsequently, the State filed a motion to adjudicate guilt.  In its motion, the State alleged that appellant violated the following conditions of probation:  1) failed to stay within the confines of the 100^th Judicial District which includes Carson, Childress, Collingsworth, Donley and Hall counties, 2) to report monthly, 3) pay a monthly probation fee, 4) pay all costs of court, and 5) appellant was to submit a written financial statement for the months she was unable to meet her financial obligations.  Appellant contends that the evidence is legally and factually insufficient to support the aforementioned violations.

Standard of Review

             We review an order revoking community supervision for an abuse of discretion.  Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).  The State has the burden of showing by a preponderance of the evidence that the defendant committed a violation of the conditions of community supervision.  Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).  If the State fails to meet its burden of proof, the trial court abuses its discretion by revoking community supervision.  Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984).  The trial court is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and the evidence is reviewed in the light most favorable to the trial court's ruling.  Id. at 493.  Proof of one violation of the conditions of community supervision is sufficient to support a revocation order.  Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980).

 

            Analysis

            In regards to her contention that the evidence was insufficient to show that she failed to remain within the confines of the 100^th Judicial District, appellant claims that the testimony by Marci Mills, who was her probation officer, does not rise to the level of “preponderance of the evidence that Appellant left the 100^th Judicial District without permission to do so.”  We disagree and overrule the issue.

            According to the record of the adjudication hearing, Marci Mills testified that appellant had violated her probation when she left the counties of the 100^th judicial district and went to Fort Worth without permission.  Appellant did not present any evidence contradicting this testimony.  Therefore, the evidence was sufficient and the trial court did not abuse its discretion in adjudicating appellant’s guilt.  See Hendley v. State, 783 S.W.2d 750, 752 (Tex. App.–Houston [1^st Dist.] 1990, no pet.) (holding that the evidence supported revocation where the probation officer testified to the violation and there was no contrary evidence and no excuse given for the violation).  We overrule appellant’s first issue.  And, since one ground suffices to support revocation, we need not address appellant’s remaining issues.

            Accordingly, we affirm the judgment of the trial court.

 

                                                                                    Per Curiam

 

 

 

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