Rito L. Perez v. State

NO. 07-07-0384-CR and 07-07-0385-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 13, 2008

______________________________

RITO L. PEREZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 121ST DISTRICT COURT OF YOAKUM COUNTY;

NO. 2525, 2526; HONORABLE KELLY G. MOORE, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ON MOTION TO DISMISS

          Before the Court is appellant’s motion to dismiss his appeals pursuant to Rule 42.2 of the Texas Rules of Appellate Procedure. Rule 42.2 states that at any time before the appellate court’s decision, the court may dismiss an appeal upon the appellant’s motion. Tex. R. App. P. 42.2(a). The appellant and his attorney must sign the written motion to dismiss. Id.

          All of the requirements of Rule 42.2(a) have been satisfied. The Court has considered appellant’s motion and concludes the motion should be granted and the appeals should be dismissed.

          Accordingly, the appeals are dismissed. No motion for rehearing will be entertained and our mandates will issue forthwith.

 

                                                                           Mackey K. Hancock

                                                                                     Justice

Do not publish.

. R. App. P. 26.2(a). Thus, the trial judge would know, or could reasonably suppose, "that an appeal or a motion for new trial had not in fact been filed because the time for filing would have expired." Id. (citing Jordan v. State, 36 S.W.3d 871, 876 n.35 (Tex.Crim.App. 2001)). Since the finality of the first assault conviction of family violence was ascertainable at the time the trial court rendered judgment on the second family violence assault, the second assault on a family member was properly enhanced to a third degree felony and the district trial court had jurisdiction. Id. at 753. We overrule appellant's first issue.

Probation Revocation

A probation revocation proceeding is neither a criminal nor a civil trial, but is rather an administrative proceeding. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). The State must prove by a preponderance of the evidence that a defendant violated the terms of his community supervision. See id. Our review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. See Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984).

In its amended motion to revoke community supervision, the State alleged that appellant violated his community supervision in that: (1) "the defendant has failed to successfully complete the Substance Abuse Felony Treatment Facility; TO WIT . . . the defendant was unsuccessfully discharged from the Substance Abuse Felony Treatment Facility Billy Meeks Transition Treatment Center," and (2) "the defendant [failed] not [to] use any controlled substances; TO WIT: A urine sample submitted by the defendant . . . did test positive for cocaine." Appellant contends that the evidence is factually insufficient to establish either violation.

The trial court had evidence that appellant's urine tested positive for cocaine while on community supervision. Evidence of a positive urine sample is sufficient evidence to establish that appellant has failed to refrain from use of controlled substances as required by community supervision. See Stevens v. State, 900 S.W.2d 348, 352 (Tex.App.-Texarkana 1995, pet. ref'd). A single violation of the conditions of community supervision is sufficient to support a trial court's revocation of the community supervision order. Id. Hence, the trial court did not abuse its discretion in finding that appellant had violated the terms of his community supervision.

Conclusion

For the foregoing reasons, we affirm.

Mackey K. Hancock

Justice

Do not publish.

1. Although an assault on a family member is generally a class A misdemeanor, a second conviction for assault on a family member is considered a third degree felony. See Tex. Penal Code Ann. § 22.01(b)(2) (Vernon Supp. 2006).