In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00080-CV ______________________________
IN THE MATTER OF T.R.S., A JUVENILE
On Appeal from the 115th Judicial District Court Upshur County, Texas Trial Court No. J-21-99
Before Morriss, C.J., Ross and Carter, JJ. Opinion by Justice Ross
O P I N I O N
The trial court found that T.R.S., a juvenile, violated his probation and committed him to the custody of the Texas Youth Commission. T.R.S. contends the trial court erred in: (1) finding the allegation he had broken and entered a van with intent to commit theft was true; (2) finding the allegation he had failed to restrain from the use of illegal drugs was true; and (3) finding the allegation he had possessed a deadly weapon was true. We affirm.
On September 2, 1999, T.R.S. was found to have engaged in delinquent conduct by committing several felony burglaries of a habitation in violation of Tex. Pen. Code Ann. § 30.02 (Vernon 2003), and several misdemeanor burglaries of a vehicle in violation of Tex. Pen. Code Ann. § 30.04 (Vernon 2003). He was placed on juvenile probation. The relevant terms and conditions of his probation provided as follows:
1. Commit no offense against the laws of this or any other State, or any political subdivision thereof, or of the United States.
2. Do not use alcoholic beverages, narcotic and/or illegal drugs. . . . .
. . . .
4. Do not use, sell or possess firearms or any deadly weapon or instrument, that can be used to inflict bodily injury.
. . . .
10. Faithfully attend school each school day during the school year . . . .
The State filed a motion to revoke probation and modify disposition, alleging T.R.S. violated the above reasonable and lawful provisions of his probation. The Texas Family Code provides that "a disposition based on a finding that the child engaged in delinquent conduct that violates a penal law of this state or the United States of the grade of felony . . . may be modified so as to commit the child to the Texas Youth Commission if the court after a hearing to modify disposition finds by a preponderance of the evidence that the child violated a reasonable and lawful order of the court." Tex. Fam. Code Ann. § 54.05(f) (Vernon 2003). The judge committed T.R.S. to the custody and control of the Texas Youth Commission by finding the following allegations true:
3) The Probationer . . . [did] break into or enter a vehicle to-wit: a 1994 Chevy Van or a part thereof, with intent to commit theft, in violation of condition (1);
. . . .
6) The Probationer . . . failed to restrain from use of alcoholic beverages, narcotic and or illegal drugs . . . in violation of condition (2);
. . . .
8) The Probationer . . . failed to restrain from possessing a firearm or deadly weapon or instrument, that can be used to inflict bodily injury in that on or about the 27th day of May, 2000, [T.R.S.] used a pellet gun to shoot the window of a 1992 chevy pickup owned by Marvin Blackwell, in violation of condition (4);
9) The Probationer . . . failed to faithfully attend school each school day during the school year . . . in violation of condition (10).
The trial court's modification of a juvenile disposition is reviewed under an abuse of discretion standard. See In re D.S.S., 72 S.W.3d 725, 727 (Tex. App.-Waco 2002, no pet.); In re H.G., 993 S.W.2d 211, 213 (Tex. App.-San Antonio 1999, no pet.); In re J.L., 664 S.W.2d 119, 120 (Tex. App.-Corpus Christi 1983, no writ). In a probation revocation hearing, the decision whether to revoke rests within the discretion of the trial court. Wester v. State, 542 S.W.2d 403, 405 (Tex. Crim. App. 1976). This discretion is not absolute. Scamardo v. State, 517 S.W.2d 293, 297 (Tex. Crim. App. 1974). The trial court is not authorized to revoke probation without a showing that the probationer has violated a condition of the probation imposed by the court. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987). The burden of proof in a probation revocation hearing is by a preponderance of the evidence. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).
The state's burden of proof on a motion to revoke probation is lower than the burden of proof necessary for criminal conviction. The state need only prove by a preponderance of the evidence that the terms of probation were violated. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Cardona, 665 S.W.2d at 493. "Preponderance of the evidence" has been defined as the greater weight and degree of credible testimony. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 95 (1935); Allen v. State, 786 S.W.2d 738, 741 (Tex. App.-Fort Worth 1989) (op. on reh'g), pet. dism'd, 841 S.W.2d 7 (Tex. Crim. App. 1992); Hill v. State, 721 S.W.2d 953, 954-55 (Tex. App.-Tyler 1986, no pet.); Davenport v. Cabell's, Inc., 239 S.W.2d 833, 835 (Tex. Civ. App.-Texarkana 1951, no writ). It follows that the state is required to establish guilt by the greater weight and degree of credible testimony.
This standard is met when the greater weight of the credible evidence creates a reasonable belief the defendant violated a condition of his or her probation as the state alleged. Martin v. State, 623 S.W.2d 391, 393 n.5 (Tex. Crim. App. [Panel Op.] 1981); Allbright v. State, 13 S.W.3d 817, 819 (Tex. App.-Fort Worth 2000, pet. ref'd). In a probation revocation hearing, the trial court is the sole trier of fact. Jones v. State, 787 S.W.2d 96, 97 (Tex. App.-Houston [1st Dist.] 1990, pet. ref'd). The trial court also determines the credibility of the witnesses and the weight to be given their testimony. Id. It may accept or reject any or all of the witnesses' testimony. Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987). Therefore, we will examine the evidence in the light most favorable to the trial court's order revoking probation. See Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). Any other type of review would effectively attenuate the trial court's discretion.
When the state's proof of any of the alleged violations of probation is sufficient to support a revocation of probation, the revocation should be affirmed. Stevens v. State, 900 S.W.2d 348, 351 (Tex. App.-Texarkana 1995, pet. ref'd). Therefore, we only need to find one allegation where the State proved by a preponderance of the evidence that the terms of probation were violated. Examined in the light most favorable to the trial court's order revoking probation, all of the allegations found true by the trial court that T.R.S. violated his probation were proven by the greater weight of the credible evidence. Since we only need to find one sufficient allegation, we will only discuss one.
Allegation nine alleged T.R.S. failed to faithfully attend school each school day during the school year, in violation of condition ten of his probation. At the hearing on this matter, the assistant principal at Gilmer Junior High testified T.R.S. was absent from school a number of days in January, February, March, April, and all of May 2001. These allegations were not controverted, nor was error as to this allegation contended by T.R.S. on appeal.
We, therefore, find no error and affirm the judgment.
Donald R. Ross
Justice
Date Submitted: March 17, 2003
Date Decided: September 5, 2003
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00013-CV
______________________________
MICHAEL KENNEDY, Appellant
V.
JAMES T. WORTHAM [SIC], ET AL., Appellees
On Appeal from the 369th Judicial District Court
Anderson County, Texas
Trial Court No. XXX-XX-XXXX
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
In the District Court of Anderson County, Michael Kennedy (Kennedy) and Danielle Simpson (Simpson), Texas prison inmates, filed an emergency motion to stay or abate Simpsons execution. The motions caption names as defendants the Honorable James T. Worthen (misnamed Wortham by Kennedy in some places in the record), Chief Justice of the Texas Court of Appeals for the Twelfth Appellate District, and Anderson County District Judge, the Honorable Mark Calhoon (misnamed Calhoun by Kennedy in some places in the record). Acting on its own motion, the trial court, the Honorable Deborah Oakes Evans, dismissed the motion without a hearing, finding that the suit was frivolous or malicious and that Kennedy and Simpson failed to satisfy the requirements of Chapter 14 of the Texas Civil Practice and Remedies Code.[1]
Kennedy appeals from the trial courts dismissal of the motion to stay or abate Simpsons execution. Kennedy filed a single brief,[2] in which he raises an issue common to both of his appeals.[3] On appeal, Kennedy argues that the trial court erred in dismissing his action because the trial judge was a named defendant and thus was disqualified from presiding over this case.
We addressed this issue in detail in our opinion of this date on Kennedys appeal in cause number 06-10-00012-CV.[4] For the reasons stated therein, we likewise conclude in this case that error has not been shown.
We overrule Kennedys point of error and affirm the order of dismissal.
Josh Morriss, III
Chief Justice
Date Submitted: May 14, 2010
Date Decided: May 21, 2010
[1]The trial court also ordered Kennedy to pay court fees and costs in the amount of $229.00.
[2]Simpson did not file an appellate brief.
[3]Defendant appeals from orders of dismissal in cause numbers 06-10-00012-CV and 06-10-00013-CV.
[4]Unlike in the companion appeal, our cause number 06-10-00012-CV, there is a question in this case regarding whether or not Evans is a named defendant. We need not reach that issue, however, because, even if she was a named defendant, she has no direct personal or pecuniary interest in the case, as detailed in our opinion of this date on Kennedys appeal in the companion appeal.