NO. 07-03-0395-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D AUGUST 16, 2004

______________________________ DERRICK T. PAYTON, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 3 64TH DI STRICT COURT OF LU BBOCK COU NTY; NO. 98-427618; H ONORABLE BRAD LEY S. UND ERWOOD, JUDGE

_______________________________ Before QUINN and REAVIS an d CAMPBELL, JJ.
MEMORA NDUM OPIN ION
Derrick T. Payto n appe als a judgm ent ent ered on Augu st 14, 2003, revoking his
co mmunity

supervis ion and sentenci ng him to ten y ears in the Tex

as Depar

tment o f Criminal Justice, Ins titutional D ivisio n. Appellant w as convic

ted in 1998, pursuant to a pl ea bargain, of the offense of deliver y of a control led substance. H e was senten ced to ten yea rs confinement in th e Texas Department ofCriminal Justice, Institutional Divisio n ,-2-

probated for ten years

under terms and condition s of comm unity super vision. He was ordered to pay

restitutio n in the sum of $820, court costs and fees.
The State filed an a pplicati on to revoke appellant’s commu nity supervision in December 2000, al leging h e had tested positiv e for marijuana i n September 1999, and in Februaryand April of 2000, and a lleging he f ailed to repor t, failed to attend a drug offende r’s program, and failed to pay restitution , court costs and fees. An agreed moti on to modi fy the terms and con ditions of his community super vision w as filed by t he parties and
on May 3 0, 200 2, the court ente red an order i n accordance w ith that motion. Additional conditions were impos ed and appellant was sentenced to 100 days in theLubbock County Jail. Upon r

elease he wa s to be placed on electronic monitoring s upervisi on.
On October 24th , 2002, a second appl ication to r evoke appell ant’s communi t y supervis ion was filed, alleg ing t hat he h ad comm i tted the off ense of evading arrest. This application was amended on A pril 1, 2003, and again on Apr il 10, 2003. The secon d amended applicat ion alleged he had viola ted the terms and conditions of his community supervis ion because he failed to pay court costs, fees and r

estitution, failed to abstain from the use or possession of alcoho lic beverages and drugs, failed to follow the conditionsof electronic monitoring s upervisi on, and evaded ar rest.
Ahearing w

as held on the second amended applicati on on July 9 , 2003. The second amende d application a lleged v iolations oc curring from April of 1999 up to the date of th e heari n g. The court, however, cons idered only violati ons that occurr

ed subsequent tothe1 The second motion torevoke alleged some of the violations that were previously

alleged in the State’s

first motion to revoke. D ue process mandates a new deter mination thata probationer has breached the conditions of probat ion after he has been return ed to probation (or that ther

e is newl y discovered evidence of a previous violati on which w

as not known atthe time of the first revocati on hearing). See Matheson v. Stat e , 694 S.W.2d 661, 662 (Tex .App .–Fort W orth 1985, pet. granted) judgment r eformed , 719 S.W.2d 204 (Tex.Cri m.App. 1986)

. The appellate record reflec ts, however, that here t he revocati on of pro batio n was based o nly on v iolations that occurred su bsequent to the May 2002 modification order

. See Jenkins v. State , 641 S.W.2d 917, 918 (Tex.Cri m.App. 1982). -3- May 2002 modification order. 1 Th e conditio ns of community s upervisi on appellant was alleged to hav

e violated during thi s time period were: a) Commit no offense against the l aws of this or any

other State or

the United States; b) Avoid inj urious or v icious habits; and c) Maintain total abs tinenc e from the use or pos session of alcoholic beverage s and any narcotics or dang erous drugs not prescribed b y a phys ician . . .
Atthe conclusi on of the hearing, the court found appel lant had violated the terms of his community super

vision i n that:
A. On or about the 23 rd day of Octob er 20 02, appellant commi tted the offense of evading arrest, and B. Appellant

tested posit ive fo r ma rijuana on Oc tob er 21, 2002 an d signed a confession on Oc tober 28, 2002 admi tting to smok ing marijuana and dr inking tw o beers on Octobe r 8, 2002.
The court revoked appellant’s commun ity supervision and sentenced him to ten years confinement in the TDC J.-4-

Appellant

presents the followi ng two i ssues for our r eview, both challengi ng the tria l court’s finding that appe llant committed the violat ion of evading arrest: 1) whether appellant had knowledg e that he was being detained by a n officer, and 2) w hether appellant was held for a lawful detention.
The issue on appeal from an order revoking communit y superv ision is w hether the trial court abused i ts discreti on. See Jackson v. State , 915 S.W.2 d 104 , 106 (Tex. App.-- San Antonio 1996, no pet.). In a probation rev ocation proceedi ng, the State mus t show by
a preponderance of the evidence that the probationer

has viol ated at least one condition of probation as al leged in th e revocati on petition. Cobb v. State , 851 S.W.2d 871, 873 (Tex.Cri m.App. 1993). If the State fails to meet that requ irement, the tr ial court abu ses its discretion in revok ing probati on. Cardona v. Stat e , 665 S.W.2d 492, 493-94 (Tex.Cr im.App. 1984).

When more than one violati on of probationary conditionsis found by thetrial cour t, the order revoking probat ion wil l be upheld if thee vidence supp orts any of theviolati ons found by the cour

t. See Alexander v

. State , 879 S.W .2d 3 38, 3 40 (T ex. App.--Houston [14th Dist.] 1994, pet. ref'd), cert. denied , 514 U.S. 1127, 11 5 S. Ct. 1999, 131 L. Ed. 2d 10 00 (1995) (citing Hendley v. St ate , 783 S.W.2d 750, 752 (Tex.A pp.--Houston [1st Dist.] 1990, no pet.)).
In a revocati on pr oceeding, the trial cour t is the sol e trier of fact and, as such, determines the credibili ty of wi tnesses and the w eight to be given t heir testimony

. Moore v.2 Atthe hearing, Kerri Sawyer, appella nt’s probation offic er, test ified t hat even though

appellant

had t este d pos itive for m ariju ana on Oc tobe r 21, 2002 , she would not h ave filed a violati on report had i t not been for the al legation that appellant ha d evaded arr est. Appellant

argues that because this v iolation caus ed the State to file the motion to revoke, if appellant did n ot commit the v iolation of evading arre st, there w ould be no basisto revoke his community

supervis ion. Appellant cites no authority supporting this argument, and we find it

to be wit hout merit. -5- State , 11 S.W.3d 495, 498 (Tex.App.–Houston [14 th Dist.] 2000, no pet.). In deter mi ning whether the evidence is sufficient to sustain a probation revocation, we view the evidence in a light mos t favorable to the trial court' s rul ing. Jones v. State , 589 S.W.2d 419, 421 (Tex.Cri m.App. 1979); Torres v. State , 103 S.W.3d 623, 625 (Tex.App.–San A ntonio 2003, no pet.). Appellant’s brief focuses on one of the two v iolations found by the trial court, the offense of evading arrest, arg uing that appel lant did not have knowledg e h e was being detained and that appellant was not hel d under a law ful detention. 2 While the State’s ini tial ap plication to revoke probation was based solel y upon the offense of evading arre st, t h e State later amended the a pplication al leging a dditional v iolations. I t is not neces sary for us to discuss either of appellant’s issues becaus e he has failed to add ress the other violati ons found by the cour

t which pr

ovided sufficien t grounds for revocatio n of appellant ’s com munity supervis ion. See Moore v. S tate , 605 S.W .2d 924, 926 (Tex.Crim.App . 1980).
The trial court found that app ellant violated the condit ions of hi s community supervis ion by failing to maintain total abstinence from narcoticsand alcohol. The trial court heard testimony t hat appellant had tested posit ive for mari juana on October 21, 2002, and confessed on October 28, 2002, to consuming alcohol and smoki ng marijuana on October-6-

8, 2002. At the hearing, appellant admitted that the allegations of drug and a lcohol use were true. As a part of the modi fication of the terms of his co mmunity super vision, in May of 2002, appella nt was sent e nced to 100 days of “shock time”in the county jail. Appel lant testified that immediately upon bein g rele ased from the j ail f acili ty, he violated his terms of community

supervis ion by

smoking marijuana. That te stimony and t he evidence ap pellant had used alcohol an d marijuana in O ctober of 2002 was sufficie nt for the court to find appellant

committed new violations of the term s of his community sup ervisi on after the April 2002 modification or

der, by usi ng drugs and alcohol. Appellant’s two issues fail to address these violations. Beca use one violat ion of the t erms and conditions of com munity supervision provides sufficient grounds t o revok e appellant’s comm unit y supe rvisio n, we find the court di d not abuse its discretion by revoking appellant’s community sup ervisi on and imposing the origina l sentence of ten years imprisonment. The o rder of the tri al court is affirmed.

James T. Campbell Justice Do not publish

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