COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
REYNALDO JESUS ADAMS, '
No. 08-10-00345-CR
Appellant, '
Appeal from the
v. '
120th District Court
THE STATE OF TEXAS, '
of El Paso County, Texas
'
Appellee.
' (TC#20030D05596)
OPINION
Appellant, Reynaldo Jesus Adams appeals from a judgment revoking his community
supervision. We affirm.
BACKGROUND
On March 17, 2004, pursuant to a plea bargain, Appellant pleaded guilty to the offense of
retaliation. The trial court placed Appellant on seven years’ deferred adjudication community
supervision, and imposed a $500 fine, of which $100 was probated.1 In May 2007, the State filed
a motion to adjudicate guilt. In June 2007, the trial court modified the terms and conditions of
Appellant’s community supervision and extended his probation by an additional three years.
Subsequently, the State again filed a motion to adjudicate alleging in part that Appellant violated
the conditions of his community supervision by committing the offense of unlawful possession of
a controlled substance, cocaine in an amount less than a gram.
The same trial judge who presided over Appellant’s jury trial for the possession case also
1
This sentence was to run concurrently with cause number 20040D01036 in which Appellant entered a guilty plea to
the offense of aggravated robbery.
heard the State’s amended motion to adjudicate. As support for the allegations in its amended
motion to adjudicate, the State offered testimony from Appellant’s probation officer, who testified
that Appellant was arrested for possession of cocaine under one gram on March 19, 2010. The
probation officer also testified that Appellant had failed to pay the $60 monthly supervision fee for
August 2010, and had only paid $20 towards his $500 fine, and $30.60 towards his court costs.
Both Appellant’s arrest on March 19, 2010, and his failure to pay the required supervision fees
violated the terms of his community supervision.
At the State’s request, the trial court took judicial notice of the judgment entered against
Appellant in cause number 20100D01531. The State explained that Appellant was found guilty
by a jury for possession of a controlled substance, was sentenced to eighteen months state jail for
that offense, and was assessed a $5,000 fine. At Appellant’s request, the trial court noted that
Appellant’s conviction was on appeal. The trial court expressly stated that “having heard the
evidence in that case” and having heard all the evidence on revocation, Appellant was “[not] a
good candidate for probation.” At the close of evidence, the court made an affirmative finding
that Appellant committed the offense of unlawful possession of a controlled substance in violation
of condition “a” of the terms and conditions of his community supervision.2
During the punishment stage of trial, Appellant testified that he had been found guilty of
possession of cocaine under one gram, but denied possession. Some of the testimony surrounding
the facts of the possession case were presented to the trial court at the revocation hearing.
Appellant admitted during the revocation hearing that he was delinquent in his probation fees in
the amount of $3,000 and agreed that he had only paid $30.60 toward his court costs.
The trial court revoked Appellant’s community supervision, entered an adjudication of
2
Condition “a” provided in part that Appellant commit no offense against the laws of this state.
2
guilt, and imposed a two-year sentence. This appeal followed.
DISCUSSION
Revocation of Community Supervision
In a single issue on appeal, Appellant argues that the trial court abused its discretion when
it revoked his community supervision because the evidence is insufficient to prove that he
committed the offense of possession of a controlled substance.
Standard of Review
We review a trial court’s decision to revoke community supervision for an abuse of
discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The State must show
the alleged violations of the trial court’s order by a preponderance of the evidence. Cobb v. State,
851 S.W.2d 871, 873 (Tex. Crim. App. 1993). There is a preponderance of the evidence if the
greater weight of the credible evidence creates a reasonable belief that the defendant has violated a
condition of his community supervision. Rickels, 202 S.W.3d at 763-64. On appeal, we view
evidence presented at the revocation hearing in a light most favorable to the trial court’s ruling.
Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981); Martinez v. State, 130
S.W.3d 95, 97 (Tex. App. – El Paso 2003, no pet.). When more than one violation of the
conditions of community supervision is found by the trial court, the revocation order must be
affirmed if a single ground supports the trial court’s order. Moore v. State, 605 S.W.2d 924, 926
(Tex. Crim. App. 1980).
Citing to Barrientez v. State, Appellant contends that his conviction for possession of
cocaine under one gram is on appeal and therefore, cannot be the basis of the revocation.3 500
3
Appellant appealed from his possession conviction in appellate court cause No. 08-10-00235-CR. On this same
day, we issued an opinion affirming the conviction.
3
S.W.2d 474 (Tex. Crim. App. 1973). However, in Barrientez, the Court of Criminal Appeals held
that when the language of the motion and the order is to the effect that the accused committed the
offense, the basis for the revocation of probation is not the conviction, but the commission of the
offense. Id. at 475.
Here, the State’s amended motion to adjudicate alleged Appellant “did then and there,
unlawfully, commit the offense of [u]nlawful [p]ossession of a [c]ontrolled [s]ubstance PG 1 < 1G,
in violation of condition ‘a.’ of the terms and conditions of his community supervision.”
Furthermore, the adjudication order states that Appellant “was previously convicted of a felony
offense” and that he “violated the conditions of community supervision as set out in the State’s
original motion to revoke community supervision . . . .” Therefore, the record shows that the
State sought to allege and prove that Appellant committed the offense, not that he had been
convicted of the offense. See Barrientez, 500 S.W.2d at 475.
Appellant also argues the State failed to introduce any evidence other than the judgment
and the testimony of Appellant’s probation officer to prove that Appellant committed the offense
of possession of a controlled substance and as such the evidence was insufficient to allow the
revocation of his probation. Although the State asked the trial court to take judicial notice of the
judgment, the trial court inferentially announced that it took notice of the evidence presented
during Appellant’s possession trial. See Akbar v. State, 190 S.W.3d 119, 123 (Tex. App. –
Houston [1st Dist.] 2005, no pet.) (when the same trial court presides over both the revocation
hearing and the trial of the underlying offense that is the basis for the State’s motion, the trial court
can take judicial notice of the evidence adduced at the trial); Kubosh v. State, 241 S.W.3d 60,
66-67 (Tex. Crim. App. 2007) (judicial notice by the trial court can be inferred from its actions);
see also Lighteard v. State, No. 04-09-00021-CR, 2010 WL 1997723, at *2 (Tex. App. – San
4
Antonio May 19, 2010, no pet.) (holding that even where State asked for judicial notice of
conviction, the trial court inferred it was taking notice of the evidence and not the conviction where
it found “sufficient evidence to support and grant the State’s motion”).
Here, it is apparent that the trial court inferentially took judicial notice of the evidence
adduced at the possession trial, as opposed to the judgment in the case. The trial court reminded
Appellant that she tried his possession case, and stated that “having heard the evidence in that case
and having considered all of the evidence that I’ve heard here this afternoon, I do not believe that
Mr. Adams is a good candidate for probation . . . [a]nd so, based on all of the evidence that I have
heard . . . I am making a finding that [the allegations] are true.” See Akbar, 190 S.W.3d at 123;
Kubosh, 241 S.W.3d at 66-67; Lighteard, 2010 WL 1997723, at *2. Because the State sought to
prove the commission of the offense of possession and not just the conviction and because the trial
court took judicial notice of the evidence and not the judgment in the possession case over which
she presided, we conclude the trial court did not err in finding that Appellant had committed the
offense of possession of a controlled substance and in revoking Appellant’s community
supervision. See Akbar, 190 S.W.3d at 123; Kubosh, 241 S.W.3d at 66-67; Lighteard, 2010 WL
1997723, at *2. Barrientez, 500 S.W.2d at 475.
Even assuming the trial court only took judicial notice of the judgment and not the
evidence in Appellant’s possession trial, we find no abuse of discretion on the part of the trial
court. The record shows not only that Appellant’s probation officer testified that Appellant
violated the terms and conditions of his probation by failing to pay the supervision fee in August
2010, but that Appellant agreed in court that he was delinquent in paying his probation fees in an
amount of $3,000. The trial court made a finding of true that Appellant failed to pay his $60
supervision fee in violation of “I-1A” of the terms and conditions of his community supervision.
5
Thus, in addition to the evidence judicially noticed by the trial court there was other evidence
establishing Appellant violated the terms and conditions of his community supervision by failing
to pay various fees associated with his community supervision. Proof of Appellant’s failure to
pay his supervision fee in August 2010 supports the trial court’s revocation of Appellant’s
community supervision. Moore, 605 S.W.2d at 926. Finding no abuse of discretion in the
revocation of Appellant’s community supervision, we overrule Appellant’s sole issue.4
CONCLUSION
The trial court’s judgment is affirmed.
GUADALUPE RIVERA, Justice
July 25, 2012
Before McClure, C.J., Rivera, J., and Antcliff, J.
(Do Not Publish)
4
The State maintains that Appellant waived his insufficiency argument under the residual holding of DeGarmo v.
State, 691 S.W.2d 657, 660-61 (Tex. Crim. App.), cert. denied, 474 U.S. 973, 106 S.Ct. 337, 88 L.Ed.2d 322 (1985).
However, because we find the evidence to be sufficient, we need not address the State’s contention.
6
Reynaldo Jesus Adams v. State
Combined Opinion