AFFIRMED; Opinion Filed July 8, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00976-CR
No. 05-13-00977-CR
JOSHUA DERMAIN MALONE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause Nos. F10-56581-H and F10-60705-H
MEMORANDUM OPINION
Before Justices Moseley, Francis, and Lang
Opinion by Justice Moseley
Joshua Dermain Malone appeals from the adjudication of his guilt for two first-degree
felony drug offenses. Malone brings two issues on appeal, complaining the trial court: (1)
abused its discretion by finding the alleged violation of community supervision true; and (2)
reversibly erred by admitting hearsay evidence.
The background of the case and the evidence adduced at trial are well known to the
parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in
law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial
court’s judgments.
Malone was charged with possession with intent to deliver cocaine, in an amount of four
grams or more but less than 200 grams, and delivery of heroin, in an amount of four grams or
more but less than 200 grams. Malone waived his right to a jury trial and pled guilty to both
offenses pursuant to a plea agreement. The plea agreement placed Malone on community
supervision for ten years and deferred adjudication of guilt. The State later moved to adjudicate
guilt, alleging Malone violated the conditions of his community supervision by assaulting his
wife. The trial court found the allegation true and adjudicated guilt. The trial court sentenced
Malone to twenty-five years’ imprisonment.
Appellate review of an order revoking community supervision is limited to determining
whether the trial court abused its discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex.
Crim. App. 2006). An order revoking community supervision must be supported by a
preponderance of the evidence, meaning the greater weight of the credible evidence that would
create a reasonable belief that the defendant has violated a condition of probation. Id. at 763–64.
A finding of a single violation of community supervision is sufficient to support revocation. See
Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980). Thus, in order to
prevail, appellant must successfully challenge all the findings that support the revocation order.
See Jones v. State, 571 S.W.2d 191, 193–94 (Tex. Crim. App. [Panel Op.] 1978).
During the hearing on the motion to adjudicate, the trial court heard testimony from
Malone’s wife, Malone’s daughter, and a police officer who responded to the 911 call. Malone’s
wife testified she and Malone got into an argument. It escalated to the point where she asked
their daughter to call 911. While the daughter called 911, Malone grabbed his wife around her
neck and shoved her head against the kitchen wall, leaving a circular dent. Malone’s daughter
testified she heard a booming sound, went into the kitchen, and saw the dent. Malone’s daughter
also testified that her father started the physical part of the fight. After the police arrived, one of
the officers witnessed the dent and informed Deputy Lamar Williams to arrest Malone.
Malone’s wife testified that as a result of the altercation, she had a raspy voice, swelling
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on her hands and inside her mouth, and a mark on her fingernail where it was bent backwards in
the nail bed.
The State alleged Malone violated the conditions of his probation by intentionally,
knowingly, or recklessly causing bodily injury to his wife. Bodily injury means physical pain,
illness, or any impairment of physical condition. TEX. PENAL CODE § 1.07(a)(8). A
preponderance of the evidence in the record supports a reasonable belief that Malone violated a
condition of his probation. See Rickels, 202 S.W.3d at 763-64. It was the trial court’s role, as
the fact finder in this case, to reconcile any conflicts in the evidence and judge the witnesses’
credibility. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); Lee v. State,
952 S.W.2d 894, 897 (Tex. App.—Dallas 1997, no pet.) (en banc). Because the evidence is
sufficient to prove Malone violated a condition of his community supervision, the trial court did
not abuse its discretion by revoking Malone’s community supervision and adjudicating his guilt.
See Rickels, 202 S.W.3d at 763–64; Sanchez, 603 S.W.2d at 871. We overrule Malone’s first
issue.
Malone’s second issue contends the trial court reversibly erred by admitting hearsay
testimony. At trial, Deputy Williams was asked if the other officer mentioned a dent in the wall.
Williams replied, “Yes.” Malone objected on the grounds of hearsay. The court overruled the
objection.
We review a trial court’s decision to admit testimony over a hearsay objection under an
abuse of discretion standard. Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994).
Trial court error due to improper admission of evidence may be rendered harmless if other
evidence is admitted without objection and it proves the same fact or facts that the inadmissible
evidence sought to prove. Mack v. State, 928 S.W.2d 219, 225 (Tex. App.—Austin 1996, pet.
ref’d) (admission of improper evidence is not harmful error if the same or similar evidence
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admitted without objection); see also Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App.
2004) (error in admission of evidence is cured where same evidence comes in elsewhere without
objection).
Williams answered yes to a question regarding whether another officer had mentioned a
dent in the wall. Malone, Malone’s wife, and their daughter all testified that there was in fact a
dent in the wall. The only discrepancy was how the dent was created, a fact Williams did not
testify about. Because Williams’s answer merely affirmed the same fact already submitted to the
court without objection by other witnesses and appellant himself, there is no harmful error. We
overrule Malone’s second issue.
We affirm the trial court’s judgments.
/Jim Moseley/
JIM MOSELEY
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
130976F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOSHUA DERMAIN MALONE, Appellant On Appeal from the Criminal District Court
No. 1, Dallas County, Texas
No. 05-13-00976-CR V. Trial Court Cause No. F10-56581-H.
Opinion delivered by Justice Moseley.
THE STATE OF TEXAS, Appellee Justices Francis and Lang participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 8th day of July, 2014.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOSHUA DERMAIN MALONE, Appellant On Appeal from the Criminal District Court
No. 1, Dallas County, Texas
No. 05-13-00977-CR V. Trial Court Cause No. F10-60705-H.
Opinion delivered by Justice Moseley.
THE STATE OF TEXAS, Appellee Justices Francis and Lang participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 8th day of July, 2014.
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