COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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LAFONDA GRAY, No. 08-11-00002-CR
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Appellant, Appeal from
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v. 120th District Court
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THE STATE OF TEXAS, of EL Paso County, Texas
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Appellee. ' (TC # 20050D04533)
OPINION
Lafonda Gray appeals his conviction of possession of less than one gram of cocaine. We
affirm.
FACTUAL SUMMARY
In 2005, a grand jury indicted Appellant for possession of less than one gram of cocaine.
Appellant later waived his right to a jury trial and entered a negotiated plea of guilty. he trial
court found the evidence sufficient to substantiate Appellant’s guilt but deferred finding him
guilty and placed him on deferred adjudication community supervision for five years. The State
filed a motion to adjudicate alleging that Appellant had on April 16, 2010 committed the
offenses of possession of marihuana and cocaine in violation of the terms and conditions of
probation. In 2010, a grand jury indicted Appellant for possession of less than one gram of
cocaine (cause number 20100D01838). A jury found Appellant guilty as charged in the
indictment in cause number 20100D01838. During the punishment phase of that case, the trial
court also heard the motion to adjudicate. The court found that Appellant violated the terms and
conditions of probation as alleged in the motion to adjudicate and sentenced him to serve twenty-
four months in the state jail.
REVOCATION OF COMMUNITY SUPERVISION
In his sole issue, Appellant argues that the trial court’s judgment adjudicating guilt should
be reversed because he was acquitted of the possession of marihuana charge (cause number
20100C04142).
The Standard of Review
We review the 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 trial court does
not abuse its discretion if the order revoking community supervision is supported by a
preponderance of the evidence; in other words, the greater weight of the credible evidence would
create a reasonable belief that the defendant has violated a condition of his probation. Rickels,
202 S.W.3d at 763-64. In conducting our review, we view the evidence in the light most
favorable to the trial court’s ruling. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.
1984). We also defer to the trial court’s resolution of disputed facts and to any reasonable
inferences which can be drawn from those facts. Cantu v. State, 253 S.W.3d 273, 282
(Tex.Crim.App. 2008). If a single ground for revocation is supported by a preponderance of the
evidence and is otherwise valid, then an abuse of discretion is not shown. Sanchez v. State, 603
S.W.2d 869, 871 (Tex.Crim.App. 1980); Gordon v. State, 4 S.W.3d 32, 35 (Tex.App.--El Paso
1999, no pet.).
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Analysis
The State first responds that the record does not support Appellant’s claim that he was
acquitted of the marihuana charge. In his reply brief, Appellant alleges that the possession of
marihuana charge was dismissed on June 3, 2011 because he had been convicted in in cause
number 20100D01838. Appellant’s brief does not contain any record references where it is
shown that the possession of marihuana charge was dismissed. See TEX.R.APP.P. 38.1(g), (i).
Since that case was allegedly dismissed approximately eight months after the revocation hearing
and six months after the clerk’s record was filed in this case, Appellant’s argument is necessarily
based on facts outside of the appellate record. Generally, an appellate court cannot review
contentions which depend upon factual assertions outside of the record. Janecka v. State, 937
S.W.2d 456, 476 (Tex.Crim.App. 1996). In criminal cases, assertions of fact in an appellate
brief unsupported by the record cannot be accepted as fact. Davila v. State, 651 S.W.2d 797, 799
(Tex.Crim.App. 1983); see TEX.R.APP.P. 38.1(g)(“In a civil case, the court will accept as true
the facts stated unless another party contradicts them.”). Given that the appellate record does not
support Appellant’s factual assertions regarding the dismissal of the possession of marihuana
charge (cause number 20100C04142), we will not address the argument raised on appeal.
The State also asserts that Appellant stipulated to the factual predicate for each of the
four revocation grounds. At the revocation hearing, the State introduced into evidence two
written stipulations signed by Appellant and his attorney. The first stipulation established
Appellant’s identity and the terms and conditions of probation alleged to have been violated.
The second stipulation reflected that Appellant, on April 16, 2010, committed the offenses of
possession of less than two ounces of marihuana and possession of less than one gram of
cocaine. A stipulation is a judicial admission which removes the need for proof of the stipulated
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facts. Bryant v. State, 187 S.W.3d 397, 400-02 (Tex.Crim.App. 2005). By entering into these
stipulations, Bryant waived his right to put the State to the proof required by its motion to
adjudicate and he is precluded from complaining on appeal that the State failed to prove any of
the grounds for adjudication. See Bryant, 187 S.W.3d at 400-02 (by stipulating to two prior
convictions for driving while intoxicated (DWI), defendant waived any right to contest the
absence of proof on stipulated element in prosecution for felony DWI; he could not argue that
the State failed to prove its case on an element to which he had stipulated). Because Appellant
stipulated that he violated the terms and conditions of community supervision, the trial court did
not abuse its discretion by revoking community supervision and adjudicating Appellant’s guilt.
We overrule the sole issue presented on appeal and affirm the judgment of the trial court.
July 25, 2012 ________________________________________________
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
(Antcliff, J., not participating)
(Do Not Publish)
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