### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-04-00459- CR

Da vid Cl ift on Spu r k, A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF BASTRO P COUNTY , 21ST JUDICI AL DISTRICT NO. 10,393 , HO NORAB LE TERRY L. FLENNI KEN, JUDGE P RESIDING

M E M O R

A N D U M O P I N I O N Appellant David Spurk was ar rested f or assa ult while under c ommunity supervision for the of fense of intox ication manslaug hter. Shortly afte r Spurk’s ar

rest, the State moved to revoke his probation. At his probation revocation hearing , the di strict court found that Spurk had violated the conditions of his probation that re quired him to abstain from the use o f al cohol and to make monthly pay ments for his fi n e, co u rt costs, and probation supervision fee. I n two issues, Spurk
asser ts that the evidenc e is insuffici en t to support revoc ation of his probation and that the district court’s r estitution order denie d him due proce ss of law. We af firm the district cour

t’s order
. BACK GR OUND Spurk was convic ted of intox i ca tion manslaug hter on Apr il 8, 2003. The district
c ourt a sse sse d a

te n- y e a r s e nte nc e a nd

pla c e d Sp ur

k o n c omm

un ity su pe rv isi on fo r te n y e a rs . I t a lso2

or de re d Sp ur

k to pa y a $2 0, 00 0 f

ine , s pe nd

18 0 d a y s ov er ni nety

c on se c uti ve we e ke nd s in ja il, complete 400 hours of community service , and pay restitution “in an amount to be dete rmined.” The
c ourt imp os e d tw e nty -o ne c on dit ion s of pr ob a tio n, inc lud ing c on dit ion s tha t Sp ur k ( 1) no t c omm it any new of fense , (2) abstain fr om the use of a lcohol and other intox icants, (10) pay

his fine and $211.25 court c osts in $200 monthly installments, and (11) pay a probation supervision fee of $40 per month. Spurk appea led hi s conviction and sentence on May 7, 2003, but on J une 25, 2003, he withdre w his appea l. Also on J une 25, the c ourt issue d an orde r modifying the conditions of Spurk ’s c omm

un ity su pe rv isi on . T he or de r p ro hib ite d Sp urk f ro m op e ratin g any

mot or ve hic le without an alcohol-de tecting interlock sy stem and set the amount of restitution at $26,891.89, to be paid in installments of $244.50 per month (Sp u rk ’s fine, c osts, and supervision fee require d a
c omb ine d mo nth ly

pa y me nt o f $ 48 4. 50 ). Th e or de r a lso re c ite d th a t Sp ur k h a d w a ive d h is r ig ht t o
a re vocation hea

ring . Spurk had 90 day s from J u n e 25, 2003, to appe al the modification order. Be cause he did not do so, we do not have a re cord of the evidenc e that the c ourt hea rd in rea ching its decision on the amount of re stitut ion.

Spurk was arrest e d at hi s h ome on May 10 , 2 00 4, a nd

c ha rg e d w itha ssa

ult inghis g ir lf ri e nd . T he a rr e sti ngof

fi c e rs te sti fi e d th a t th e y

sme lle d a lc oh ol on S purk ’s br e a th. Th e State filed a motion to revoke Spurk’s probation, alleging that Spurk had viol ated c onditions (1) and (2) of his pr ob a tio n b y

a ssa ult inghis g ir lf

ri e nd a nd c on sumin g a lc oh ol on May 10
. I t a lso a lle g e d th a t, be fo re May

10 , Sp ur k ha d viol a te d co nd iti on s (10 ) an d (11 ) b y fa ili ngto m a ke mon thl y

pa y me nts as orde red.3 The c ourt held a revoc ation hear ing on July 1, 2004. The c ourt hea

rd testimony

from
sever al witnesses, including Spurk, his girlfr iend, his ex-girlfr iend, his probation offic er, two of the
arr esting office rs, and his g irlfriend’ s mother.

Spurk’s g irlfriend, Me ly ssa Carr oll, testified t h at s he dra nk beer at the home of Spurk ’s br oth e r o n M a y

10 a nd be c a me ve ry

int oxic a te d, bu t Spurk did no t dr ink that nig ht. Carr oll stated that she insisted on driving home, over Spurk’s protests. After arr iving home, Carroll re called pouring a bee r for

herse lf in front of Spurk, “just to upset him.” Spurk told her that if she w as g oing to drink, she had to lea

ve or he would leave . When Spurk started to take he r key s to the house and t h e m ail box , Carroll testified that she thr ew he r cup of beer at him, splashing it on his chest. She said that she attac ked Spurk in an attemp t t o re t ri eve he r key s and he f ended he r off

. During the alterc ation, both of them sustained minor scratches a nd Carroll was bruised. Carr oll testified that she took two knives from the ki tchen, trapped S purk in the bedr oom, and soon afte r, hea rd knocking
a t th e do or . Ca

rr oll “ hurr ie d” to the kit c he n, re tur nin g the kn ive s w hil e Spurk a ns we re d th e do or

—to the police. Fea

ring that she would g o to jail, Carroll st ated that she did not tell t he police a bout the kn i v es or g ive an a ccur ate a ccount of the alter cation. While the police we re still at the sce ne, she completed an “assa

ult victim statement,” identifying Spurk as the ag g ressor and alleg ing that he had choked he r and he ld down her wrists. Carroll re called g iving a nother stateme nt two weeks later, at the re qu e st o f S purk ’s c ouns e l. I n tha t sec on d sta te me nt an d dur ingthe re vo c a tio n h e a ri ng , Ca rr oll
c on tr a dic te d h e r i nit ia l ver sio n of the Ma y 10 inc ide nt, c la imi ngthat th e inf or ma tio n in he r a ssa ult vic timstate me nt w a s in c or re c t.Spurk’s pare nts a nd his ne ighbor testified that they had not see n Spurk drink since he beg an 1 his probation. 4

Spurk testified that he did not drink alco h o l o n May 10 and denie d telling the
arr esting office rs that he had been drinking
. He c orrobor ated Car roll’s testimony

that she had be en int oxic a te d a

nd that sh e ha d th ro wn

a c up of be e r at hi m. Spurk’s ex-gir lfriend, Chelsea Gra ham, testified t h at s he wa s also at the home of Spurk ’s br oth e r o n M a y

10 . Sh e state d th a t Ca

rr oll dr a nk

be e r, be c a me int oxic a te d, and pa sse d o ut, but Spurk had not been pr esent while Car roll was drinking
. Gr ah am t est ified that Spurk did not allow her to drink when she w as with him beca use he c ould not “be ar ound alcohol.” 1 Cin dy Park e r, Spu rk’ s p ro batio n o ff ic e r, te sti fi e d th a t Sp ur

k w a s d e lin qu e nt i n pa y me nt o f h is f

e e s, fi ne s, a nd re sti tut ion
. She state d tha t Spur k pa id a tot a l of $7 40 bu t no ne of

his pay ments wer e for the full monthly amount of $484.50. Ba sed on his delinquent pay ments and the assault offe nse, Parke r opined that Spurk wa s not a g ood candidate to continue on probation.

Offic er Patric ia B rug g eman testified that she and two other police office rs re sponded to t he May 10 do me sti c dis tur

ba nc e c a ll f ro m Sp ur k’ s n eig hb or

that c ulm inate d in

Spurk ’s a rr e st. Once inside S p u rk’s apartment, B rug g eman spoke with Carroll, who did not show any signs of intox ication. B rug g eman r eca lled Carroll iden t i fy ing Spurk a s the ag g ressor a nd stating that he

“ sta rt e d h itt inghe r i n the he a d w ithhis fi ng e rs ” a nd c ho ke d h e r. B ru g g e man a lso te sti fi e d th a t, “ in
a round-a bout w ay ,” Carr oll said that Spurk made her drive him home bec ause he was intox icated. Whe n B ru g g e man s po ke wi th S purk , h e de nie d c ho kin g Carr oll . B ru g g e man no te d that his br e a th5

sme lle d s lig htl y

of a lc oh ol. B ru g g e man d e nie d tha t Spur k’ s clo thi ng or a ny pa

rt of the ru g wa s w e t, contra ry to Ca rroll’s testimony that she had thrown beer on him. When B rug g eman told Spurk that he “w as under

the ag e to be dr inking” and asked him why he was drinking, Spurk r eplied that “he d i d n o tkn o w, ” b u td i d

n o td en y dri n k i n g. Of fi c e r A xel Gol dm an te sti fi e d th a t he a lso pa rt ic ipate d in

Spurk ’s May

10 a rr e st. Go ldm an de nie d de te c tin g a ny sig ns of int oxic a tio n o n Ca

rr oll , b ut h e sa id t

hat Sp ur k h a d a “ pr e tty strong odor” of

alcohol coming from his breath and his ey es we re “ relatively bloodshot and g lassy .” Goldman stated that he was “ absolutely cer tain” that the odor of alcohol came from Spurk’s bre ath. Goldman furthe r testified that Spurk “sa id he had be en drinking .”

De br a Willi a ms, Carr oll ’s mot he r, te sti fi e d th a t C a rr oll ha d a dr ink ingpr ob le m. Willi a ms s a id t

hat he r d a

ug hte r h a d b e e n to “ re ha b, ” re la ps e d, and wa s so met im es ph y sic a lly combative whe n drunk.

At the conc lu s i o n o f t h e hea ring , the cour

t found insufficient e vidence that Spurk violated condition (1) of his probation (prohibiti on ag ainst the commi ssion of any new of fense ). B ut it found sufficient e vidence that Spurk violated conditions (2) (pr ohibition aga inst use of alcohol), (1 0) (p ay me nt o f h is fi ne a nd

c ourt c os ts i n mo nth ly

ins ta llm e nts of

$2 00 ), and

(1 1) (p a y me nt o f h is probation super

vision fee)
. I t t h er ef

ore g rante d the State’s motion to revoke pr obation, order ing Spurk’s incar cer ation for ten y ear s and pay ment of $26,151.89 in restitution. Spurk filed a motion for ne w trial and a motion in arr est of judg ment on Aug ust 2, 2004. Both motions were ove rruled by operation of law. This appe al followed.Se ve ra l of our sis te r c ourt s h a ve c on c lud e d th a t a fa c tua l su ff

ic ie nc y re vie w i s unava ila

ble 2 in probation revoc ation proce eding s. Se e J oh ns on v . S

tat e , 2 S.W .3d 685, 687 (Tex . App.—For t Wor th 1 99 9, no pe t.) ; J

oh ns on v . S

tat e , 943 S.W .2d 83, 85 (Tex. App.—Houston [1s t Dist.] 1997, no pe t.) ; Br um ba lowv . S

tat e , 933 S.W .2d 298, 300 (Tex. App.—Waco 1996, pet. re f’d)
.

6 DI SCU SSIO N On appea l, Spurk contends that the evidenc e is insufficient to support revoc ation of his probation and that he w as denie d due proc ess of law by the district c ourt’s entry of the re stitut ion order
. Stand ard of review

Review of a

n order revokingprobation is limit ed to a determination of whether the trial court abused its discre tion. Car do na v . S tat e , 665 S.W .2d 492, 493 (Tex. Crim. App. 1984); J ac k so n v. Sta te , 64 5 S. W.2 d 3 03 , 3 05 (T e x. Cr im. Ap p. 19 83 ). An a bu se of dis c re tio n o c c ur s “ on ly when the tr ial judge ’s dec ision was so clea rly wr o n g as t o lie outside the zone within which
rea sonable pe rsons might disag ree .” Can tu v . S tat e , 842 S.W .2d 667, 682 (Tex. Crim. App. 1992). Th e tr ia l c ourt

is the jud g e of

the c re dib il it y of th e wi tne sse s and the we ig ht t o b e g ive n th e ir testimony
. G a r r e t t v . Sta te , 61 9 S .W. 2d 17 2, 17 4 ( Te x. Cr im. Ap p. 19 81 ); Ma un e yv . S tat e , 107 S.W .3d 69 3 , 6 9 5 (Tex. App.—Austin 2003, no pet.). We view the e vidence prese nted in a
revoc ation proce eding in a li g ht most favor able to the tria l court’s ruling
. Se e Ga rre tt , 619 S.W .2d
a t 17 4; Mauney , 107 S.W .3d at 695. 27

Suf fi ciency of evidence for re vocation

I n his f irst issue, Spurk argues that there is insuff icient evidenc e to support the district court’s r evoca

tion of his probation. I n probation re vocation proc eeding s, the State has the burde n of proving a violation of the ter ms of probation by

a preponde ranc e of the evidenc e. Cob b v . S tat e , 8 5 1 S
. W
. 2 d 8 7 1 , 8 7 3 ( T e x. C r i m . A p p . 19 93 ); W illis v . S tat e , 2 S. W. 3 d

3 9 7 , 3 9 9 ( T e x. App.—Austin 1999, no pet.). The State satisfies this standard “ when the g reater we ight o f the
cre dible evidenc e bef

ore the court c reates a re asonable belief that a condition of probation has be en violated as a lleg ed.” J

e nk ins v . S tat e , 740 S.W .2d 435, 437 (Tex. Crim. App. 1983). A finding of a sing le violation of the terms of pr obation is sufficient to supp o rt t h e co u rt’s re vocation orde r. Sa nc he z v . S tat e , 603 S.W .2d 869, 871 (Tex. Crim. App. 1980). Thus, if the district court did not
a bu se its dis c re tio n in fin din g that Spur k viol a te d at le a st one c on dit ion of his pr ob a tio n, Spurk ’s fi rs t issue mus t b e o v er rul ed. With these principles in mind, we consider whether sufficie nt evidence
su pp or te d th e c ourt ’s fi nd ingthat Sp ur k v iol a te d his pr ob a tio n by fa ili ng to make mon thl y pa y me nts on his fine, costs, and supe rvision fee
.

Cin dy Parker, Sp ur

k’ s p ro batio n o ff

ic e r, te sti fi e d th a t Sp ur

k w a s d e lin qu e nt i n pa y me nt o f h is f

e e s, fi ne s, a nd re sti tut ion
. She state d that Spurk pa id a tot a l of $7 40 bu t no ne of

his pay ments were for the f

ull monthly amount of $484.50. Ba sed on his de linquent pa y ments and the assault offe nse, Parke r opined that Spurk wa s not a g ood candidate to continue on probation.

Vi e we d in

the lig ht m os t f

a vo ra ble to t he dis tr ict cou rt ’s ruli ng , th is e vid e nc e is leg ally sufficie nt to support a finding that Spurk violated conditions (10) and ( 11) of his probation by failing to make the monthly pay ments as order ed. Having found that there is sufficient evide nce8

to e sta bli shthat Sp ur

k v iol a te d his pr ob a tio n by fa ili ng to make mon thl y pa y me nts on his fi ne , c os ts, and super vision fee, we need not de termine whe ther ther e is suffici ent evidenc e to show that he violated condition (2) by

consuming alcohol. See Sanc hez , 603 S.W .2d at 871. W e over rule Spurk’s first issue.
Due pr oc e ss I n his second issue, Spurk conte nds t h at h e was denied due proc ess by the district court’s res t i t u t ion order. Spurk did not spec ify whether his complaints pertain to the re stitut ion order ed af ter the J une 25, 2003 hear ing, or to the restitution ordere d afte r the July 1, 2004 revoc ation hear ing, or

both. Spurk’s arguments in both contex ts are unpe rsuasive. Spurk’s due proc ess complaints conc erningthe J une 25 h earing are untimely . An appellant must file notice of appea l within 30 day s after sentenc ing, or

if he files a timely

motion for
ne w tri a l, w ith in 9 0 d a y s o f s e nte nc ing . T e x. R. A pp . P. 26 .2 (a ). Th is C ourt la c ks jur isd ic tio n to addre ss the merits of an a ppeal that is n o t timely

perf ecte d. Sla ton v . S

tat e , 981 S.W .2d 208, 210 (Tex. Crim. App. 1998). When a court e nters a r estitution order af ter e ntering a probationary sentenc e, the se ntencing is incomplete until the entry of the restitution or der. Se e Ba ile yv . S tat e , 160 S.W .3d 11, 15 (Tex. Crim. App. 2004)

. He re , Sp ur k c ou ld h a ve a

pp e a le d is su e s ari sin g fr om h is conviction and se ntencing until S eptember 23, 2003, the 90th day

afte r the J une 25, 2003 restituti on hear ing, w hich was the final stag e of his sente ncing
. He cannot now, in his appeal fr om the probation re vocation, cha lleng e an issue conce rning the under ly ing tr ial. See id. a t 1 3 ( c it in g T e x. Code Crim. Proc. Ann. ar

t. 42.12, § 23(b) (West Supp. 2005)). Bec ause Spurk f iled his appea l more9

tha n a y e ar a ft e r h is Jun e 25 res ti tu ti on he a ri ng , it is u nti me ly and we la c k ju

ri sd ic tio n to a dd

re ss i s s u es re l at edt o t h at p ro ce ed i n g.

Spurk’s arguments conce rning the J uly 1 revoc ation hear ing a

re simil arly flawe d. He
c on te nd s th a t th e dis tr ic t c ourt ’s re sti tut ion or de r “ la c ks a fa c tua l bas is in the re c or d. ” To a dd re ss this arg ument, it is helpful to revie w the eve nts of Spurk’s underly ing c onviction. After Spurk’ s jury trial fo r i n t ox ication manslaug hter, the district c ourt place d Spurks on ten y ear s’ probation and order ed him to pay

a $20,000 fine and $26,891.89 in restitution. The c ourt enter ed the r estitution order on J une 25, 2003. Spurk had 90 day s from that date to appea l the order . Be cause he did not do so, we do not have a re cord of the evidenc e that the c ourt hea rd i n re aching its dec ision on the
a mou nt o f r e sti tut ion . B ut the a mou nt of re sti tut ion that the c ourt or de re d is c e rt a in a

nd the tim e to raise a n appellate challeng e to that amount has e x pired. When the court subseque ntly revoke d Spurk’s probation, i t was re quired to ente r the restitution due as of the date of the r evocation. See Tex. Code Crim. P roc. A nn. art. 42.03, § 2(b) ( W es tS u p p . 2 0 0 5 ) ( “In a l l re v o ca t i o n s o f a s u s p en s i o n o f t h e i mp o s i t i o n o f a s en t en ce t h e j u d ge sh all enter the restitut ion or reparation due and owing on the date of t he revocation.”). In this case, the re cord shows that Spurk paid $740 of the total $26,891.89 restitution or dere d by the cour t. On the date of the revoc ation hear ing, Spurk still owed a balanc e of $26,151.89 in re stitut ion, calculated as the diff

er en ce b etwee n the total amount of the c ourt-orde red r estitution and Spurk’s restitution pay ments. The district cour

t entere d this amount whe n it r evoked Spurk’s probation and its ac tions
wer e in ac corda

nce w ith the code of

criminal proc edure
.10 Next, S purk ar g ues that the re stitut ion order should be decla red void b ec au s e the order was not made in Spurk’s prese nce, in ope n court. In support of his argument, Spurk cites the
c o d e o f c r im in a l p r o c e d

u r e ’ s r e qu ir e me n t t

h a t a w r itte n ju d g me n t s h o u ld d e s c r ib e th e r e s ti tution order ed. See id . a

rt . 4 2. 01 , § 1( 25 ) ( West S up p. 2005 ). Se c tio n o ne of a rt ic le 42 .0 1 d e fi ne s a judgme nt as “the w ritten dec laration of the court sig ned by t h e t ri al judg e and e ntere d of re cord showing the c o n v ic ti o n o r a c q u it tal o f the def

endant.” Id . art. 42.01, § 1 (e mphasis added) . A p ro b at i o nre v o ca t i o n p ro ce ed i n g i s an ad m i n i s t ra t i v e h ea ri n g, n o ta c ri m i n al t ri al i n v o l v i n g a conviction or a cquittal. Cobb , 851 S.W .2d at 873. Thus, whil e ar t i cl e 4 2
. 01 applied to the sentenc ing or der in Spurk’s unde rly ing tr ial for intoxi cation mansl au ghter, it did not apply to the subsequent re vocation orde r made the basis of this appea l. We overrule Spurk’ s second issue.
CO NC LU SION Having overr

uled both of Spurk’s issues, we aff irm the district court’s or der.

________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice L aw, Justi ces B . A. Smith and Pemberton Affir med Filed: June 30, 2006 Do No t Pu

bli sh