### NUMBER 13 - 1 3 - 00 625 - CR 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

- 

## EDINBURG

LANNDON FLOYD SMITH , A ppellant,

v. THE STATE OF TEXAS , Appellee.

On appeal from the 37 7 th District Court o f Victoria County, Texas.


## MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides Memorandum Opinion by Justice Benavides
A ppellant, Lanndon Floyd Smith, pleaded guilty to one count of evading arrest or detention and was placed on deferred adjudication commun ity supervision for two years. See T EX

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. § 38.04 (West, Westlaw through 2013 3d C.S.)

. The State filed a motion to revoke and adjudicate, which the trial court granted. In his sole issue,2

Smith contends the trial court abused its discretion in finding that he violated the terms of
his community supervision by illegally possessing brass knuckles. 1 See id

. § 46.0 5 ( a)(5) (West, Westlaw through 2013 3d C.S.). We affirm.
I. B ACKGROUND On July 8, 2013, Smith pleaded guilty to one count of evading arrest , which was committed on December 13, 2012

. See id. § 38.04. The trial court placed him on deferred adjudication community supervision for two years , assessed a $500 fine and court costs, and ordered forty hours of c ommunity service restitution. On August 12, 2013 , the trial court approved a motion to amend the terms of Smith’s community supervision with the intent to h ave Smith enter the Outpatient Alcohol/Drug Rehabilitation Program at Treatment Assoc iates in Victoria, Texas. On September 17, 2013, the State filed a motion to adjudicate , alleging that Smith had committed the following violations : u nlawful possession of a firearm; manufacture
and delivery of a controlled substance ; possession of a controlled substance ; prohibited
weap on/switchb lade knuckles ; failure to stay away from places where alcoh olic beverages are sold ; failure to pay supervisory fees ; failure to pay to the local cri me stoppers program ; and failure to participate and cooperate in the Treatment Associates Outpatient program.

1 Although Smith also argues the evidence is insufficient to support the trial court’s finding that he committed the offense of possession of a firearm, the trial court did not find Smith violated his terms of community supervision by possessing a firearm. Therefore, we need not address this issue. T EX

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.3

On October 31, 2013, Smith ple a d ed “ not true ” to committing the offense of unlawful possession of a firearm by a felon and committing the offense of possession of

a prohibit ed weapon. See i d. § 46.05(a)(5). The State abandoned all of the other alleged offenses. At the hearing for the motion to revoke, Sergeant Robert Hewes of the Victori a County Sherriff’s Office testified that he responded to a dispatch fo r a disturbance a t the
Adams residence . When Sergeant Hewes arrived, he spoke with Tammy Adams, Smith’s mother

. Sergeant Hewes obtained written consent from Adams to search her house and informed Corporal Daniel Bettes and Deputy Travis Dollins of the Victoria County Sher riff’s O ffice of the consent to search the house. After Sergeant Hewes finished speaking with Adams, he went inside the home and saw various items scattered
about the room where Smith was, but did not see contraband or weapons. Deputy Dollins testified that when he and Corporal Bettes entered a bedroom, he

s aw Smith kneeling on the floor. Smith was alone in the bedroom. Deputy Dollins
observed a set of brass knuckles within Smith’s reach, so he and Corporal Bettes moved Smith away from that t hreat. While Sergeant Hewes placed Smith in the hallway, Deputy
Dollins and Corporal Bettes conducted a search of the bedroom

. Deputy Dollins and Corporal Bettes found a semi

- automatic pistol, ammunition, tobacco, methamphetamine, and several backpacks o f clothes. Smith acknowledged to Deputy Dollins that the property belonged to him. Corporal Bettes affirmed Deputy Dollins ’ testimony that the set of brass knuckles

was within Smith’ s reach and that there was a pistol and ammunition in Smith’s room.4

The defense called Adam s to the stand as a witness. She testified that no one

was living in her house on the day that the police searched it. According to Adams, Smith was living in a motel . Adams further claimed that Smith gave her some rent
money, so that he could stay in the house after he moved out of the motel. Adams stated that she cleaned up the house after the previous tenants had moved out . Adams testified that she put the previous tenant’s property in the bedroom where Smith was found

. Adams claimed the bedroom belonged to no one and that no one slept in that

room. Adams also testified that Smith had arrived at the house on the same day that the police searched it. Adams claimed that “ s quatters ” had been in her house prior to Smith’s arriva l

. Adams also claimed to have found a handgun in the home “right before that evening

— that very day. And [she] didn’t have time to do anything with it.” Adams assumed the gun belonged to the previous renters. In addition, Adams testified that the
brass k nuckles were not brass knuckles, but a belt buckle that was given to her youngest son, not Smith.
The trial court found that Smith was illegally in possession of a prohibited weapon,
brass knuckles, in violation of the terms of his community supervision

. The trial cour t adjudicate d Smith guilty of evading arrest as alleged in the indictment and sentenced Smith to confinement in a state jail for two years , a $1,000 fine, and court costs. This appeal followed.
II. R EVOCATION OF C OMMUNITY S UPERVISION By Smith’s sole issue, he argues that the trial court abused its discretion in finding
that he committed the offense of possession of brass knuckles because the evidence was legally insufficient to support this finding

.5

A. Standard of Review
We review a trial court’s determination to revoke community supervision for an abuse of discretion and view the evidence in the light most favorable to the trial court’s
decision. Canseco v. State , 199 S.W.3d 437, 439 (Tex. App.

— Houston [1st Dist.] 2006, pet. ref'd). An a buse of discretion occurs when the trial court acts without reference to guiding rules or principles or acts arbitrarily or unreasonably. Galliford v. State, 101 S.W.3d 600, 604 (Tex. App.

— Houston [1st Dist.] 2003, pet. ref'd)

. The trial court is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Hacker, 389 S.W.3d at 865.
The State must prove by a preponderance of the evidence that a defendant has
violated a condition of h is community supervision

. Canseco , 199 S.W.3d at 438 (citing Rickels v. State , 202 S.W.3d 759, 763

– 64 (Tex. Crim. App. 2006 ) ) . In the probation

revocation context, a p reponderance of the evidence means “that greater weight of the
credible evidence which would create a reasonable belief that the defendant has violated a condition of his probation.” Hacker v. State, 389 S.W. 3d 8 60, 865 (Tex. Crim. App. 2013). Evidence does not meet this standard when “the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence” or when the finder of fact must “guess whether a vital fact exists.” Id

. For issues governed by the less rigorous burden of proof of “preponderance of the evidence,” the appellate standard of review for legal sufficiency is also less rigorous. Id. Proof of a single violation is sufficient to support a revocation. Canseco, 199 S.W.3d at 439.
B. Discussion The first condition of Smith’s community supervision forbids him from committing6

any offense against the laws of the state of Texas. The twelfth condition forbids him from possessing a weapon. Under the Texas Penal Code, possession must be voluntary to make a person cri minally responsible for an act

. See T EX

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. § 6.01(a) (West, Westlaw through 2013 3d C.S.). “ Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.” Id. § 6.01(b)

. Smith argues that a factfinder could not reasonably have found from the evidence
that Smith was in possession of the brass knuckles. Although Adams testified that the knuckles were in fact a belt buckle that belonged to her youngest son rather than Smith, the trial court as the fact

- finder determined the weight and credibility of each witness’s testimony . See Hacker, 389 S.W. 3d at 865. D eputy Dollins and Corporal Bettes testified that Smith was in close proximity to what they described as brass knuckles and
that the brass knuckles were in plain sight. Moreover, no one else was present in the
room when Deputy Dollins and Corporal Bettes entered the room and found Smith kneeling on the floor. Add itionally, the officers testified that Smith admitted that the propert y in the room belonged to him. It was within the trial court’s discretion to find the testimony of the investigating officers credible and persuasive while finding Adams’s testimony not credible. Id. The trial court is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Id. Accordingly, the trial court did not abuse its discretion in finding that Smith violated
a term of his com munity supervision because there was sufficient evidence to support a finding that Smith was in possession of brass knuckles. We overrule Smith’s sole issue.7 III. C ONCLUSION We affirm the trial court’s judgment.

___________________ __ _____ GINA M. BENAVIDES, Justice

Do not p ublish. T EX

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. Delivered and filed the 24th day of Ju ly , 201 4

.