IN THE
TENTH COURT OF APPEALS
No. 10-09-00140-CR
JEFFREY SCOTT BERSUCH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. F33732
OPINION
Jeffrey Scott Bersuch was convicted of intoxication manslaughter and sentenced
to ten years in prison. See TEX. PENAL CODE ANN. § 49.08 (Vernon Supp. 2009). After
spending a short time in prison, the trial court suspended his sentence and placed
Bersuch on community supervision. Several years later, the trial court revoked
Bersuch’s community supervision and again sentenced him to ten years in prison. We
affirm.
In one issue, Bersuch contends the trial court abused its discretion when it found
he had violated the terms of his community supervision as alleged by the State in its
motion to revoke. In this one issue, Bersuch challenges the court’s finding on each
violation alleged in the motion to revoke.
Bersuch first argues that the trial court abused its discretion when it found he
had violated the terms of his community supervision by relying on a 2006 conviction for
driving while intoxicated. Specifically, Bersuch argues that the trial court could not
consider this conviction as a violation in this motion to revoke hearing because the same
offense had been the subject of a prior motion to revoke filed by the State. To support
this proposition, he relies on an opinion from the Court of Criminal Appeals where the
Court stated
It would be the epitome of arbitrariness for a court first to conduct a
hearing on alleged violations and exercise its discretion to return the
probationer to probation…and then decide several months later to exercise
its discretion in the opposite fashion by revoking the probation without
any determination of a new violation.
Rogers v. State, 640 S.W.2d 248, 252 (Tex. Crim. App. 1981) (op. on 1st reh’g). Rogers
does not apply to this case. The previous motion to revoke did not allege the 2006
conviction as a ground for revocation although it appears the consumption of alcohol
on the prior occasion was alleged in the motion. Regardless, the prior motion was
withdrawn by the State; and so there was no hearing held on that motion. Thus, there
was no exercise of the trial court’s discretion to continue Bersuch on community
supervision and subsequently the “exercise of its discretion in the opposite fashion by
Bersuch v. State Page 2
revoking” community supervision.1 Therefore, the trial court could properly use the
2006 conviction as a basis for revoking Bersuch’s community supervision.
Because one ground for revocation, if proven, is sufficient to revoke a
defendant's community supervision, we need not discuss Bersuch’s remaining
complaints. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980).
Bersuch’s sole issue is overruled, and the trial court’s judgment is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed November 4, 2009
Publish
[CR25]
1 Further, when the judgment of the conviction was introduced into evidence, Bersuch affirmatively
stated that he had no objection to its introduction. A defendant waives any complaint on appeal
concerning the admissibility of evidence when he affirmatively states, "No objection," at the time the
evidence is offered. Holmes v. State, 248 S.W.3d 194, 201 (Tex. Crim. App. 2008); Moody v. State, 827
S.W.2d 875, 889 (Tex. Crim. App. 1992); Wyatt v. State, 162 Tex. Crim. 134, 282 S.W.2d 392, 393 (Tex. Crim.
App. 1955). Any complaint about the trial court’s consideration of Bersuch’s 2006 conviction is waived.
Bersuch v. State Page 3
Jeffrey Scott Bersuch v. State
Combined Opinion