IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
SEPTEMBER 28, 2001
______________________________
JOHN ELWAYNE TURNER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 100TH DISTRICT COURT OF HALL COUNTY;
NO. 3007; HONORABLE DAVID MCCOY, JUDGE
_______________________________
Before BOYD, C.J., and QUINN and JOHNSON, JJ.
Appellant John Elwayne Turner appeals from the revocation of his probation for felony driving while intoxicated, and sentence of five years incarceration. We affirm.
BACKGROUNDOn May 27, 1997, appellant pled guilty to a felony charge of driving while intoxicated. Pursuant to a plea bargain, he was placed on probation for five years and assessed a $1,500 fine.
On November 5, 1998, the State filed a motion to revoke appellant's probation. The motion was heard on July 19, 2000, at which time the State waived its allegations as to appellant violating his probation except the allegation that appellant failed to rgeport to the court through the probation office on the first of each month, beginning on June 1, 1997. The State specified that appellant did not report for the months of June, July, August, September, and October, 1998. The trial court found that appellant violated the terms of his probation, revoked the probation and sentenced appellant to five years incarceration in the Texas Department of Criminal Justice, Institutional Division.
By two issues, appellant challenges the legal and factual sufficiency of the evidence to support the trial court's finding that he violated the terms of his probation by wilfully or knowingly failing to report to the trial court through the probation department. In essence, he argues that the terms of his probation allowed him to report either in person or in writing. Therefore, he asserts, the State had the burden to prove that he reported neither in writing nor in person, which the State failed to prove. Appellant concludes that because the State failed in its proof, the trial court abused its discretion in revoking his probation.
LAW
In a proceeding to revoke probation the burden of proof is on the State to show by a preponderance of the evidence that the probationer has violated a condition of probation as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). Proof of any one of the alleged violations is enough to support an order to revoke probation. Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979); Gobell v. State, 528 S.W.2d 223, 224 (Tex.Crim.App. 1975).
The only issue presented in an appeal from an order revoking probation is whether the trial court abused its discretion. See Naquin v. State, 607 S.W.2d 583, 586 (Tex.Crim.App. 1980); Lloyd v. State, 574 S.W.2d 159, 160 (Tex.Crim.App. 1978). When the standard of review is abuse of discretion, the record must simply contain some evidence to support the decision made by the trial court. Brumbalow v. State, 933 S.W.2d 298, 300 (Tex.App.--Waco 1996, pet. ref'd). In determining the sufficiency of the evidence to sustain a probation revocation, we view the evidence in the light most favorable to the trial court's ruling. Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App. 1979); Brumbalow, 933 S.W.2d at 300.
ANALYSIS
Appellant's 100th Judicial District probation officer, Michael Moore, testified that appellant last reported to the probation department in writing on May 26, 1998. Moore received a telephone call from appellant on July 6, 1998, in which appellant asked if Moore could "cover for him" as to report dates appellant missed with the Terry County probation office, which Moore declined to do. Moore was not contacted at all by appellant after the last written report in May, 1998, except for the one telephone call in July.
Moore testified that during the months of June and July, 1998, which were two of the months during which the State alleged that appellant did not report as he should have, the probation department of the100th Judicial District had transferred appellant's probation to Terry County, Texas, for supervision, and appellant was to report to the Terry County probation office, as well as reporting in writing to the 100th Judicial District office. According to Moore, the Terry County office closed its supervision of appellant's probation and transferred supervision back to the 100th Judicial District probation office on July 21, 1998. After Terry County returned supervision of appellant's probation to the 100th Judicial District in July, appellant would not have been able to comply with his probation requirement by reporting to anyone in Terry County.
Appellant testified that he did not report to his Terry County probation supervisor during specific dates in June and July, 1998, when he was to report weekly as part of a rehabilitation program which he was undergoing. He claimed to have been hospitalized during part of August, 1998, but did not offer an explanation for the complete failure to call or report in writing to the probation office during that time. Appellant did not testify that he reported to the 100th Judicial District probation office either in person or in writing at any time after the Terry County probation office closed its supervision of his probation on July 21, 1998, and returned supervision to the 100th Judicial District office.
There is some evidence that appellant did not report to the trial court monthly, as he was required to do, in any manner, after the telephone call to Moore in July, 1998, even if such telephone call were to be considered as a "report." Viewing the evidence in the light most favorable to the trial court's determinations, as we must, we conclude that the trial court's decision that appellant failed to report in any manner, either in writing or in person, during one or more of the months of August, September and October, 1998, would be supported by some evidence. See Brumbalow, 933 S.W.2d at 300. Evidentiary support for a determination that appellant failed to report for any one of the months alleged by the State is sufficient evidentiary support for revocation. See Moses, 590 S.W.2d at 470. Accordingly, the trial court did not abuse its discretion in revoking appellant's probation. Id. We overrule appellant's first and second issues.
CONCLUSION
Having concluded that the trial court did not abuse its discretion in finding that appellant violated a term of his probation as alleged by the State, and having overruled both of appellant's issues, we affirm the judgment of the trial court.
Phil Johnson
Justice
Do not publish.
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NO. 07-11-00046-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 28, 2011
IN THE INTEREST OF D. C., JR.
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2002-517,897; HONORABLE JOHN J. MCCLENDON, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
This is the attempted appeal of matters arising in a family law case. D.C., Sr. (the father), an inmate appearing pro se, filed in this court a handwritten document complaining of the trial courts January 20, 2011, oral rulings on certain motions and its vacation of a prior order referring the case to a mediation hearing.[1]
On our own motion, we questioned our jurisdiction and by letter offered the father an opportunity to file documents or matters he considered necessary to our jurisdictional determination. The father filed a response on February 17, consisting of a factual narrative, a letter in which he states he intended his original filing to be a notice of appeal and a copy of a pleading submitted to the clerk of the trial court on February 9, 2011. In the latter document, the father indicates he takes exception with three rulings of the trial court: (1) the denial of a mediation hearing; (2) the denial of a motion to modify (apparently the portion of a decree in a suit affecting parent-child relationship concerning access to a child); and (3) the denial of a motion to enforce a divorce decree (in an unspecified manner).
An appeal generally may be taken only from a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (stating rule). [W]hen there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties. An order that adjudicates only the plaintiffs claims against the defendant does not adjudicate a counterclaim, cross-claim, or third party claim, nor does an order adjudicating claims like the latter dispose of the plaintiffs claims. Id. at 205. If the judgment or order in question is not final, it is interlocutory. Appeal can be taken from interlocutory orders only when authorized by statute. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992); see, e.g., Tex. Civ. Prac. & Rem. Code § 51.014 (West 2008). We have no appellate jurisdiction to review an interlocutory order granting or denying referral of a matter to mediation. See Banc of America Investment Services, Inc. v. Lancaster, No. 02-04-0223-CV, 2004 Tex. App. Lexis 7577, at *1-*2 (Tex.App.--Fort Worth Aug. 4, 2004, no pet.) (per curiam, mem. op.) (dismissing for want of jurisdiction attempted interlocutory appeal of order referring case to mediation).
In a suit to modify support or conservatorship, a modification order is final and appealable. See Bilyeu v. Bilyeu, 86 S.W.3d 278, 282 (Tex.App.--Austin 2002, no pet.) (noting legislature has designated such action a new suit); Normand v. Fox, 940 S.W.2d 401, 403, 403 n.3 (Tex.App.--Waco 1997, no writ). However, on this courts inquiry, the clerk of the trial court has advised us that the trial court has not filed an order in the fathers case since January 1, 2011. The fathers original filing in this court indicates he is appealing rulings reported to him by the trial court in a telephone conference. Absent a signed written order disposing of all issues and all parties, the trial court retains jurisdiction, preventing attachment of this courts appellate jurisdiction. Grant v. American Natl Ins. Co., 808 S.W.2d 181, 184 (Tex.App.--Houston [14th Dist.] 1991, no writ). Under the circumstances reflected in the documents before us, in the absence of a signed written order of the trial court, we have nothing to review. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (The appellate timetable does not commence to run other than by a signed, written order, even when the signing of such an order is purely ministerial) (emphasis in original); Tex. R. App. P. 26.1.
Because an interlocutory order denying referral of a case to mediation is not immediately appealable, and because it appears the trial court has issued no signed written orders containing any of the rulings the father seeks to appeal, we have no jurisdiction to consider his attempted appeal. Accordingly, we dismiss the appeal for want of appellate jurisdiction. Tex. R. App. P. 42.3(a).
Per Curiam
[1] Based on a factual narrative filed by the father in this case, and our prior disposition of In re D.C., Jr., No. 07-09-0320-CV, 2010 Tex. App. Lexis 7825 (Tex.App.--Amarillo Sept. 23, 2010, no pet.) (mem. op.), it appears the fathers base issue concerns the parent-child relationship between him and his son, D.C., Jr.