COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-243-CR
JAMES JOHN KARL APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
------------
MEMORANDUM OPINION 1
------------
Based on a plea agreement, Appellant James John Karl pleaded nolo
contendere to the offense of theft of $500–$1500, 2 and the trial court
sentenced him to one year’s confinement, probated for two years, and a fine
of $1,000. Two conditions of Appellant’s community supervision were that he
1
… See Tex. R. App. P. 47.4.
2
… See Tex. Penal Code Ann. § 31.03(e)(3) (Vernon 2003).
commit no offense against the laws of the State (condition “A”) and that he
furnish a breath or urine sample at the request of any peace officer who has
probable cause to believe that he may have committed an intoxication offense
under chapter 49 of the Texas Penal Code (condition “K”).
During the period of community supervision, Appellant was arrested for
driving while intoxicated (DWI) with an open container. He refused to give a
breath sample when he was arrested. He was subsequently tried for and
acquitted of DWI.
In addition to prosecuting Appellant for DWI, the State moved to revoke
his community supervision, alleging that he had violated the conditions of his
community supervision by committing a new offense, DWI, and by refusing to
give a breath test. At the revocation proceeding, Appellant stood mute before
the trial court, so the trial court entered pleas of “not true” on his behalf. The
trial court heard evidence and pronounced its findings of true on both
allegations. The trial court then heard evidence on punishment and assessed
punishment at 180 days in jail.
Appellant brings three points on appeal, arguing that the trial court erred
by bifurcating the revocation proceeding, admitting victim impact testimony
during a misdemeanor theft revocation proceeding, and revoking his probation
in a matter in which the State failed to meet its burden of proof. Because we
2
hold that the trial court did not reversibly err, we affirm the trial court’s
judgment.
We review an order revoking community supervision under an abuse of
discretion standard.3 A trial court abuses its discretion when its ruling is made
without reference to any guiding rules or principles, rendering the conclusion
ultimately reached so arbitrary and unreasonable that it falls outside the zone
within which reasonable minds may differ.4
In a revocation proceeding, the State must prove by a preponderance of
the evidence that the defendant violated the terms and conditions of community
supervision.5 Proof by a preponderance of the evidence of any one of the
alleged violations of the conditions of community supervision is sufficient to
support a revocation order.6 The trial court is the sole judge of the credibility
of the witnesses and the weight to be given their testimony, and we review the
3
… Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984);
Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983).
4
… Montgomery v. State, 810 S.W.2d 372, 380, 391 (Tex. Crim. App.
1991) (op. on reh’g).
5
… Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).
6
… Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.]
1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.]
1980).
3
evidence in the light most favorable to the trial court’s ruling.7 If the State fails
to meet its burden of proof, the trial court abuses its discretion in revoking
community supervision.8
In his first point, Appellant argues that he was harmed by the trial court’s
bifurcation of the revocation proceeding. The purpose of bifurcation is to
protect a defendant from a jury’s hearing punishment evidence in determining
the question of guilt.9 Bifurcated proceedings are proper only in cases tried
before a jury on a plea of not guilty.10
In the case before us, the trial court heard evidence supporting revocation
and then pronounced its order revoking Appellant’s community supervision.
The trial court then heard additional evidence to determine whether the
sentence should be reduced from one year’s confinement. Appellant timely and
properly objected to the bifurcation. But the evidence admitted after the
revocation order consisted of the testimony of one State’s witness, who added
7
… Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174
(Tex. Crim. App. [Panel Op.] 1981); Allbright v. State, 13 S.W.3d 817, 819
(Tex. App.—Fort Worth 2000, pet. ref’d).
8
… Cardona, 665 S.W.2d at 493–94.
9
… See Davis v. State, 968 S.W.2d 368, 372 (Tex. Crim. App. 1998).
10
… Tex. Code Crim. Proc. Ann. art. 37.07, § 2(a) (Vernon 2006); Barfield
v. State, 63 S.W.3d 446, 449–50 (Tex. Crim. App. 2001).
4
nothing more than a brief rehash of the evidence of the original offense, and the
testimony of two defense witnesses.
Even though the bifurcation was improper, the record does not reflect
that Appellant was harmed by the bifurcation.11 The trial court reduced his
sentence by more than half the term of original confinement assessed. We
overrule Appellant’s first point.
In his second point, Appellant contends that the trial court erred by
admitting the testimony of Eddie Gossage, the complainant in the underlying
theft case. Appellant argues that Gossage did not meet the definition of victim
set out in chapter 56 of the code of criminal procedure.12 The State argues that
because the trial court is permitted to reduce a defendant’s original sentence
upon revocation if it “determines that the best interests of society and the
defendant would be served by a shorter term of confinement,” 13 Gossage’s
testimony about the theft and the fact that all the stolen items were returned
except one was helpful and relevant to the trial court in determining whether
to reduce Appellant’s sentence. After hearing Gossage’s testimony, which did
reveal that almost all the stolen items were returned, the trial court determined
11
… See Tex. R. App. P. 44.2(b); Barfield, 63 S.W.3d at 450.
12
… See Tex. Code Crim. Proc. Ann. art. 56.01(3) (Vernon 2006).
13
… Id. art. 42.12, § 23(a).
5
that it was in the best interest of society and of Appellant to reduce the term
of incarceration from 365 days to 180 days. We therefore cannot say that the
admission of the evidence harmed Appellant.14 We overrule his second point.
In his third point, Appellant contends that the State failed to meet its
burden of proof for revocation. Although Appellant testified that he did not
know that condition “K” was a condition of community supervision, State’s
Exhibit One, which is the judgment of community supervision and which lists
the conditions, contains condition “K,” Appellant’s thumbprint, and his
signature. He testified that he had had a chance to look at the paperwork and
that he believed that he had told the judge at the original plea hearing that he’d
reviewed it. He also testified that he did, indeed, refuse to provide a breath
sample when the police officer arrested him for DWI. In addition to Appellant’s
testimony, the trial court admitted into evidence the DIC-24 statement that
Appellant had signed acknowledging his refusal to submit to a breath test.
Sergeant Stephen Shepherd of the city of Roanoke testified that when he
stopped Appellant’s vehicle for speeding, the odor of an alcoholic beverage,
Appellant’s admission that he had consumed two drinks, and Appellant’s
performance on the field sobriety test provided probable cause to arrest
14
… See Tex. R. App. P. 44.2(b).
6
Appellant for DWI. Sergeant Shepherd testified that he believed that he had
probable cause to believe that Appellant had committed the offense of DWI and
also testified that Appellant refused to provide a breath sample when requested.
Applying the appropriate standard of review, we hold that the State
proved by a preponderance of the evidence that Appellant had violated
condition “K” of the conditions of community supervision as alleged in the
State’s second amended motion to revoke community supervision.
Consequently, we overrule Appellant’s third point.
Having overruled Appellant’s three points, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 11, 2008
7