NO. 07-11-0324-CR
NO. 07-11-0325-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 16, 2013
______________________________
WAYNE STEVEN PRICE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 100TH DISTRICT COURT OF CHILDRESS COUNTY;
NOS. 4985 & 5059; HONORABLE DAN MIKE BIRD, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
In February 2008, following pleas of guilty to the felony offenses of possession of
a controlled substance, methamphetamine, 1 and possession of child pornography, 2 in
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TEX. HEALTH & SAFETY CODE ANN. § 481.115 (W EST 2010).
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TEX. PENAL CODE ANN. § 43.26 (W EST SUPP. 2012).
Cause Nos. 4985 and 5059 respectively, Appellant, Wayne Steven Price, was
sentenced to eight years deferred adjudication community supervision. In January of
2011, the State filed its Amended Motion To Adjudicate Guilt of Defendant in each
cause, alleging multiple violations of the conditions of Appellant’s community
supervision, including the commission of the offenses of possession of a usable quantity
of marijuana in an amount of two ounces or less and possession of a controlled
substance, methamphetamine, in an amount of less than one gram in Dallas County,
Texas, on April 18, 2010. 3 In May 2011, Appellant proceeded to a hearing on the
State’s amended motions. The State elected to proceed on violations of the terms of
Appellant’s community supervision related to the possession and use of controlled
substances and Appellant pled “not true.” At the hearing’s conclusion, the trial court
found the State established by a preponderance of the evidence that Appellant had
violated the terms and conditions of his deferred adjudication community supervision by
being in possession of marijuana and methamphetamine on April 18, 2010. As to each
case, the Court then revoked Appellant’s community supervision, entered a finding of
guilt, and assessed punishment at ten years confinement, with the two sentences to run
concurrently.
Presenting four points of error, Appellant asserts the trial court abused its
discretion when it revoked his community supervision because: (1) the trial court erred
by permitting a polygraph examiner to testify to statements made by him regarding his
drug use during a polygraph examination; the State failed to prove by a preponderance
of evidence that he was (2) in possession of marijuana or (3) methamphetamine on
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The Order Imposing Conditions of [Appellant’s] Community Supervision entered February 19, 2008,
prohibited Appellant from committing any “offense against the laws of the State or any other State.”
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April 18, 2010; or (4) that he consumed methamphetamine on or about July 6, 2010.
We affirm.
STANDARD OF REVIEW
On violation of a condition of community supervision imposed under an order of
deferred adjudication, a defendant is entitled to a hearing limited to the determination of
whether the trial court should proceed with an adjudication of guilt on the original charge
under section 12 of article 42.12 of the Texas Code of Criminal Procedure. TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 12 (W EST SUPP. 2012). See Antwine v. State, 268
S.W.3d 634, 636 (Tex.App.—Eastland 2008, pet. ref’d). “Th[e] hearing is neither a
criminal nor a civil trial, but is rather an administrative hearing.” Wilkins v. State, 279
S.W.3d 701, 703 (Tex.App.—Amarillo 2007, no pet.) (citing Cobb v. State, 851 S.W.2d
871, 873 (Tex.Crim.App. 1993)).
As such, the State’s burden on a motion to revoke community supervision is
lower than the burden necessary for criminal conviction. Smith v. State, 932 S.W.2d
279, 281 (Tex.App.—Texarkana 1996, no pet.). The State has the burden of showing
by a preponderance of the evidence that the defendant committed a violation of the
condition(s) of community supervision; Cobb, 851 S.W.2d at 873, and satisfies this
burden “when the greater weight of credible evidence before the court creates a
reasonable belief that it is more probable than not that a condition of probation has been
violated as alleged in the [State’s] motion.” Joseph v. State, 3 S.W.3d 627, 640
(Tex.App.—Houston [14th Dist.] 1999, no pet.) (citing Battle v. State, 571 S.W.2d 20,
21-22 (Tex.Crim.App. 1978)).
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Our review of an order revoking community supervision is limited to determining
whether the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763
(Tex.Crim.App. 2006) (citing Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.
1984)). Further, in determining the sufficiency of the evidence to sustain a 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), while recognizing that “[t]he trial court is
the sole judge of the credibility of witnesses and the weight given to their testimony.”
Antwine, 268 S.W.3d at 636 (citing Cardona, 665 S.W.2d at 493).
POINTS OF ERROR ONE AND TWO
Appellant asserts (1) the trial court erred by permitting a polygraph examiner to
testify to statements made by him regarding his drug use during a polygraph
examination and (2) the State’s evidence was insufficient to establish by a
preponderance that he possessed a usable quantity of marijuana on April 18, 2010. We
disagree.
Logic dictates that we consider Appellant’s second point of error first. At the
revocation hearing, Officer Michael Miles of the City of Irving Police Department testified
that, on April 18, 2010, he responded to a domestic call at Appellant’s address. After
speaking with Appellant and his roommate, Officer Miles conducted a consensual
search of the apartment for narcotics. Officer Miles found no drugs in the roommate’s
bedroom; however, in Appellant’s bedroom he found, in plain view, what he identified as
a bag of methamphetamine setting on the bed and, inside a drawer of Appellant’s night
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stand, a marijuana cigarette, a pipe, spoon, and syringes. 4 He testified that his
conclusions were based on his experience as a police officer and his narcotics training.
He also testified he knew the room belonged to Appellant because Appellant was in the
room when they entered and remained there during the search. He indicated he
knocked on the bedroom door before entering, found Appellant sitting on the bed when
he opened it, and “all of [appellant’s] personal stuff was in [the] room.” Rather than
arrest Appellant, he submitted an offense report because Appellant’s medical issues
prevented him from being booked into jail at that time.
We note that a finding of a single violation of community supervision is sufficient
to support revocation. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(b) (W EST SUPP.
2012); Antwine, 268 S.W.3d at 636 (citing Moore v. State, 605 S.W.2d 924, 926
(Tex.Crim.App. 1980)). See Coffel v. State, 242 S.W.3d 907, 909 (Tex.App.—
Texarkana 2007, no pet.); Nurridin v. State, 154 S.W.3d 920, 924 (Tex.App.—Dallas
2005, no pet.). Based on the evidence presented, we find the trial court did not abuse
its discretion in revoking Appellant’s deferred adjudication community supervision
because the State proved by a preponderance of the evidence that Appellant committed
an offense against the laws of this State. 5
4
In his brief, Appellant questions whether Officer Miles had the experience or training to identify the
substances. To the extent Appellant questions Officer Miles’s qualifications to make such a
determination, there was no objection during his testimony at the hearing based on his qualifications.
Rule 33.1 of the Rules of Appellate Procedure requires, among other things, that the record show the trial
court “ruled on the request, obligation, or motion, either expressly or implicitly.” TEX. R. APP. P.
33.1(A)(2)(a). See Guiterrez v. State, 36 S.W.3d 509, 511 (Tex.Crim.App. 2001). Further, even if the
doctrine of waiver did not apply, the issue of whether Officer Miles’s testimony was credible due to his
experience, or lack thereof, would go to the weight of his testimony—a determination best left for the trial
court. See Antwine, 268 S.W.3d at 636.
5
See TEX. HEALTH & SAFETY CODE ANN. §§ 481,115(b), 481.121, 481.125 (W EST 2010) (illegal possession
of a controlled substance, marijuana or drug paraphernalia, respectively).
5
In addition, no other testimony offered during the hearing, including the contested
testimony of the polygraph examiner who interviewed Appellant, ever contradicted or
otherwise placed Officer Miles’s testimony in issue. “If, after examining the record as a
whole, we determine that any error had a slight or no effect on the jury, then we will not
overturn the trial court’s ruling.” Neal v. State, 256 S.W.3d 264, 284-85 (Tex.Crim.App.
2008), cert. denied, 555 U.S. 1154, 129 S.Ct. 1037, 173 L.Ed.2d 471 (2009). Further,
“the presence of overwhelming evidence of guilt plays a determinative role” in this
analysis. Neal, 256 S.W.3d at 285. Therefore, even assuming without deciding the trial
court erred in admitting the polygraph examiner’s testimony, any error would be
harmless in light of Officer Miles’s testimony.
Appellant’s first and second points of error are overruled. Having found the trial
court did not abuse its discretion in finding at least one violation of the terms and
conditions of Appellant’s community supervision, our ruling pretermits his remaining
points. See TEX. R. APP. P. 47.1.
CONCLUSION
The trial court’s judgments are affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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