COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-047-CR
EARLY BROWN JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In a single issue, Appellant Early Brown Jr. complains that the evidence
was factually insufficient to support the trial court’s revocation of his
community supervision. We affirm.
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… See Tex. R. App. P. 47.4.
II. Background
In 2007, the trial court issued a protective order against Brown for the
safety of his minor son and the child’s mother, Kaley Allen. Brown was
subsequently arrested and charged with felony assault–family violence against
Allen. In March 2008, he pleaded guilty pursuant to a plea bargain and
received a suspended sentence and community supervision for a period of ten
years.2 In July and August 2008, the State moved to revoke his community
supervision on a number of grounds. Upon revocation, the trial court sentenced
Brown to seven years’ confinement and a $750 fine. This appeal followed.
III. Analysis
Brown’s sole complaint is that the evidence was factually insufficient to
support revocation of his community supervision.
We review an order revoking community supervision under an abuse of
discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.
1984); Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007,
pet. ref’d). In a revocation proceeding, the State must prove by a
preponderance of the evidence that the defendant is the same individual who
2
… The trial court originally sentenced Brown to ten years’ confinement
plus a $750 fine and court costs before suspending that sentence and placing
Brown on community supervision.
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is named in the judgment and order of community supervision and then must
prove that the defendant violated a term of community supervision as alleged
in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim.
App. 1993).
In a community supervision revocation hearing, the trial judge is the sole
trier of fact and determines the credibility of the witnesses and the weight to
be given their testimony. Cherry, 215 S.W.3d at 919; Allbright v. State, 13
S.W.3d 817, 819 (Tex. App.—Fort Worth 2000, pet. ref’d). We review the
evidence in the light most favorable to the trial court’s ruling. Cardona, 665
S.W.2d at 493; Cherry, 215 S.W.3d at 919. If the State fails to meet its
burden of proof, the trial court abuses its discretion by revoking the community
supervision. Cardona, 665 S.W.2d at 493–94.
This court has previously held that a factual sufficiency review is
inapplicable to revocation proceedings. See Cherry, 215 S.W.3d at 919
(declining to address Cherry’s factual sufficiency challenge to revocation of her
community supervision and counting cases holding same). Conversely, the
State has met its burden with respect to evidence of revocation when the
greater weight of the evidence creates a reasonable belief of the necessary
revocation elements. Allbright, 13 S.W.3d at 818–19. A finding of a single
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violation of community supervision is sufficient to support revocation. Id. at
819.
The State alleged ten grounds in its amended motion to revoke Brown’s
community supervision. In its first ground, it alleged that Brown “intentionally
or knowingly violate[d] the terms of [Allen’s August 17, 2007 protective order]
by intentionally or knowingly going to or near [her] residence.”
At the revocation hearing, Brown testified that he went to Allen’s
apartment in violation of the protective order on June 19, 2008.3 Brown also
admitted to other violations of his community supervision that were alleged in
the State’s first amended motion to revoke community supervision, including
approaching Allen on July 8, 2008, in violation of the protective order, and
failing to complete an alcohol and drug evaluation and his counseling classes,
which he attributed to “everything [that] happened at the time between
[Asagba, Allen’s boyfriend] and [Brown],” i.e., a brawl that he blamed on
Asagba that occurred on July 8, 2008 (another of the State’s revocation
allegations). He attempted to excuse his failure to pay community supervision
3
… Allen testified that she was at the apartment pool when Brown went
to her apartment, that her mother was in the apartment, and that Brown and
her mother then went out to the pool area, arguing. Her mother called the
police. Allen testified that Brown was about five feet away from her when he
came out to the pool area.
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fees by stating “[t]hat was due to me being wanted [for the assault on Asagba],
I was trying to save my money . . . [so] I can bond out of jail[.]” The trial court
found true all of the allegations in the State’s first amended motion to revoke
community supervision.
Brown argues that the State failed to prove that he violated the protective
order because Allen induced him to violate it. Although he attempts to
analogize to the defense of “entrapment” (while acknowledging that he cannot
legally rely on the defense here), Brown cites no authority to support his
argument that “the law should not allow Ms. Allen, or someone similarly
situated, to encourage the commission of criminal conduct and subsequently
complain of its commission.” To the contrary, the protective order itself sets
out the warnings required under section 85.026 of the family code, including
the following statement:
NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR
VIOLATE ANY PROVISION OF THIS ORDER. DURING THE TIME IN
WHICH THIS ORDER IS VALID, EVERY PROVISION OF THIS
ORDER IS IN FULL FORCE AND EFFECT UNLESS A COURT
CHANGES THE ORDER.
See Tex. Fam. Code Ann. § 85.026 (Vernon 2008); see also Tex. Penal Code
Ann. § 25.07(d) (Vernon Supp. 2009) (“Reconciliatory actions or agreements
made by persons affected by [a protective] order do not affect the validity of
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the order or the duty of a peace officer to enforce this section.”). Brown’s
admissions, as well as Allen’s testimony about the June 19, 2008 protective
order violation, were sufficient to support the trial court’s decision to revoke his
community supervision. See Allbright, 13 S.W.3d at 818–19. We overrule
Brown’s single issue.
IV. Conclusion
Having overruled Brown’s issue, we affirm the trial court’s judgment.
PER CURIAM
PANEL: MCCOY, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 31, 2009
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