NO. 07-12-00134-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 7, 2013
BRAD VINCENT ARANDS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 61,985-E; HONORABLE DOUGLAS WOODBURN, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Brad Vincent Arands, was adjudicated guilty of the misdemeanor
offense of assault causing bodily injury 1 and sentenced to serve one year of
confinement in the Potter County Jail and pay a fine of $1,000.00. Appellant appeals,
contending that the evidence was insufficient for the trial court to enter an order of
adjudication. We will affirm.
1
See TEX. PENAL CODE ANN. § 22.01(a)(1) (West 2011).
Factual and Procedural Background
In 2010, appellant was indicted for the offense of burglary of a habitation.
Appellant entered a plea of guilty to the lesser-included offense of assault causing
bodily injury. Pursuant to the plea bargain agreement, appellant was placed on
deferred adjudication community supervision for a period of two years on May 25, 2011.
On November 7, 2011, the State filed a motion to proceed with adjudication. The
motion to proceed alleged three violations of the order granting community supervision.
Specifically, the motion alleged that appellant had 1) failed to report to his supervision
officer for the months of July 2011 through October 2011, 2) failed to pay his
supervision fees for the months of June 2011 through October 2011, and 3) failed to
make payments to the Potter County Collections Department pursuant to his agreement
to do so.
The trial court conducted a hearing on the State’s motion to proceed with
adjudication on April 4, 2012. At the hearing, the trial court heard the testimony of
Brando Ester, a representative of the Potter County Community Supervision
Department, that appellant was the same person who entered the plea agreement on
May 25, 2011, and that the terms and conditions of community supervision were
explained to appellant and appellant was given written instructions regarding reporting.
Further, appellant was informed that he was scheduled to report on May 31, 2011, for
2
processing. 2 Appellant appeared on May 31 and met with his supervising officer,
Nathan Stidham, and was given his normal reporting dates.
Following appellant’s initial appearance at the Community Supervision
Department, appellant never reported. Stidham testified that appellant failed to appear
for the months of July through October 2011. Additionally, Stidham testified about
attempts to contact appellant following appellant’s failure to appear. Stidham never saw
appellant after the initial report. The trial court also heard testimony that appellant had
agreed to pay his fees in monthly payments but had never made a payment.
Following receipt of the evidence, the trial court adjudicated appellant guilty of
the offense of misdemeanor assault causing bodily injury and assessed punishment at
confinement in the Potter County Jail for one year and a fine of $1,000.00. Appellant
has appealed through two issues, both of which contend that the evidence was
insufficient to support the trial court’s judgment that he failed to report or failed to make
the required payments, respectively. We disagree and will affirm the trial court’s
judgment.
Sufficiency of the Evidence
Standard of Review
On violation of a condition of community supervision imposed under an order of
deferred adjudication, the defendant is entitled to a hearing limited to the determination
2
From the record, it is apparent that the “processing” appointment refers to the
initial appointment that a person placed on community supervision has with his
supervising officer.
3
by the court of whether it proceeds with an adjudication of guilt on the original charge.
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West Supp. 2012). This determination is
reviewable in the same manner used to determine whether sufficient evidence
supported the trial court’s decision to revoke community supervision. Id.; Antwine v.
State, 268 S.W.3d 634, 636 (Tex.App.—Eastland 2008, pet. ref’d). In an adjudication
hearing, the State must prove by a preponderance of the evidence that a defendant
violated the terms of his community supervision. Rickels v. State, 202 S.W.3d 759,
763–64 (Tex.Crim.App. 2006); Antwine, 268 S.W.3d at 636. A preponderance of the
evidence means “that greater weight of the credible evidence which would create a
reasonable belief that the defendant has violated a condition of his probation.” Rickels,
202 S.W.3d at 763–64.
Given the unique nature of a revocation hearing and the trial court’s broad
discretion in the proceedings, the general standards for reviewing sufficiency of the
evidence do not apply. Pierce v. State, 113 S.W.3d 431, 436 (Tex.App.—Texarkana
2003, pet. ref’d). Instead, we review the trial court’s decision regarding community
supervision revocation for an abuse of discretion and examine the evidence in a light
most favorable to the trial court’s order. Garrett v. State, 619 S.W.2d 172, 174
(Tex.Crim.App. [Panel Op.] 1981). When the standard of review is abuse of discretion,
the record must simply contain some evidence to support the trial court’s decision.
Herald v. State, 67 S.W.3d 292, 293 (Tex.App.—Amarillo 2001, no pet.). The trial judge
is the trier of fact and the arbiter of the credibility of the testimony during a hearing on a
motion to adjudicate. See Garrett, 619 S.W.2d at 174. Proof of a violation of a single
4
term and condition of community supervision is sufficient to support a trial court’s
decision to adjudicate. See Antwine, 268 S.W.3d at 636.
Analysis
Regarding appellant’s failure to report, appellant contends that, since the order
placing appellant on deferred adjudication, was neither offered into evidence, nor was
the trial court asked to take judicial notice of same, there is no proof of the specific
terms and conditions of appellant’s community supervision. Therefore, according to
appellant’s theory, there is no proof that appellant violated the terms and conditions of
his community supervision.
The Texas Court of Criminal Appeals has expressed its position that the
documents memorializing the terms and conditions of appellant’s community
supervision should appear in the appellate record but recognized that there is no formal
requirement that such documents be formally proved in a revocation hearing. See
Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim App. 1993) (en banc); see also Horman
v. State, 423 S.W.2d 317, 318 (Tex.Crim.App. 1968) (“We find no merit in the
contention that it was incumbent upon the state to offer as an exhibit the order made by
the same judge in the same court finding appellant guilty; assessing his punishment and
placing him on probation, and showing the conditions imposed.”). Here, the terms and
conditions of appellant’s community supervision do appear in the record before us.
And, while it would have been preferable for the State to also have had the order
placing appellant on community supervision introduced into evidence, the order
containing the terms and conditions of probation was a part of the trial court records in
5
this cause. See Holloway v. State, 666 S.W.2d 104, 108 (Tex.Crim.App. 1984) (en
banc). That being so, the trial court could take judicial notice of its order. See id. (citing
Fleming v. State, 502 S.W.2d 822 (Tex.Crim.App. 1973), and Mason v. State, 495
S.W.2d 248 (Tex.Crim.App. 1973)); see also Turner v. State, 733 S.W.2d 218, 221–22
(Tex.Crim.App. 1987) (en banc) (observing that, in a criminal case, a trial court may
notice judicially all of its own records, including all judgments and convictions entered by
it).
Moreover, “[c]ircumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). Appellant’s
theory discounts the testimony heard by the trial court. Specifically, Ester testified that
appellant was the same person he witnessed being granted deferred adjudication on
the date of entry of the plea of guilty. Further, Ester testified that he explained the terms
and conditions of community supervision to appellant, specifically the requirement to
report, and that appellant signed the order placing him on community supervision.
Appellant’s supervising officer, Stidham, testified that he met with appellant on May 31,
2011, for the processing appointment. As appellant’s supervising officer, he discussed
reporting requirements and instructions. All of this testimony shows that appellant was
made aware of his reporting requirements and that this is the very term that appellant
was charged with violating. When we apply the standard of review to the evidence, we
conclude that there is more than just some evidence to support the trial court’s decision
that appellant violated his terms and conditions of community supervision, particularly
as to the reporting requirement. See Herald, 67 S.W.3d at 293. Finding that appellant
6
violated a single term and condition of his community supervision is sufficient to sustain
an adjudication of guilt. See Antwine, 268 S.W.3d at 636 Accordingly, the trial court
did not abuse its discretion in adjudicating appellant guilty of the misdemeanor offense
of assault causing bodily injury. See Pierce, 113 S.W.3d at 436. Appellant’s first issue
is overruled. Inasmuch as we have overruled appellant’s first issue, we need not
address the second issue. TEX. R. APP. P. 47.1.
Conclusion
Having overruled appellant’s first issue, we affirm the trial court’s judgment.
Mackey K. Hancock
Justice
Do not publish.
7