### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00140- CR

Mark Car ey Alexander, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 147 TH JUDICI AL DISTRICT NO. D-1 -DC- 08- 3026 94, H ONO RAB LE WI LF ORD F LOW ERS, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Mark Carey Alexander pleade d g uilty to ag g rava ted assault with a deadly

wea pon and was place d on defe rre d adjudication community supervision. See Tex. Penal Code Ann. § 22.02(a) (1) (West Supp. 2 0 1 0). L ess t han a y ear later, he was adjudge d g uilty and sentenced to twenty y ear s in prison. The trial court found that he violated the terms of his supervision by failing to pay cer tain fee s, failing to complete community service and an ang er manag ement prog ram, and

comm itting a subsequent offe nse, ag g rava ted robber y . Appellant contends that the evidenc e i s insufficient to support the court’s finding s. We conclude that the evidenc e supports the finding that appellant c ommitt ed a subse quent offe nse, and w e af firm the judg ment of convic tion. The decision to proce ed to adjudication of g uilt is revie wable in the same manner as

a revoc ation of “ordina

ry ” comm u n i t y s u p ervision, that is, for an abuse of discretion. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2010); see Cardona v. State , 665 S.W .2d 492, 493(Tex. Crim. App. 1984). An order revoking supervision must be supported by a preponde ranc e of

the evidenc e. Cardona , 665 S.W .2d at 493. We consider the e vidence prese nted at the hear ing in the l ight most fav o ra b l e to the t rial court’s finding s. Garrett v. Stat e , 619 S.W .2d 172, 174 (Tex. Crim. App. 1981). The violation of a sin gl e condit ion of supervision is sufficie nt to support a

revoc ation. Moore v . State , 605 S.W .2d 924, 926 (Tex. Crim. App. 1980).

Among the wit n esses at the adjudication hear ing was Marilla Portill o, the complainant in the alleg ed robber y . Portill o, a teller at a Wells Fa rg o Ba nk office in Austin, testified that on the morning of November 18, 2009, an Afric an Americ an male enter ed the bank wea ring a g ray hooded swea

tshirt and blue jeans, with a red bandanna cover ing the lower part of his fac e. The 1

man approa ched her and demande d money . He then rea ched over the counter , seized approximately $1000 in cash, and ran out of the bank. Portill o testified that she did not see a wea pon, but she said that the man’s a ctions cause d her to fe ar f or her life and sa fety

. Robert Richards was in the bank parking lot that morning

. He testified that he sa w

a man driving a red Chevr olet pickup truck pull into the lot, e nter the bank, and less than a minute later, leave the bank carry ing cash and a gun. R i ch ar d s d es cribe d the weapon as a chrome “Dirty Har ry ” revolve r. Suspecting that the man was a robber , R i ch ar d s fo llowed in his car when the suspect drove awa

y in the pi ckup truck. After sever al bl ocks, t he truck s t o p p ed at an int erse ction and the suspec t got out. As Richar ds backe d awa y , the man fire d a shot. The man returne d to the pickup, and Richards continued to follow him. Eventually , the suspect parke d the truck, took off the

swea tshirt he was we aring , and ra n awa y on foot. Richards c alled the police

.

The re cord shows tha t appellant is an Af rica n Americ an male. 1 2Knowing the direc tion the robber y suspect was moving, Offic er Phill ip Kelly drove to a location wher e he thought the suspect might pass. He soon spotted a man on foot who matched the descr iption of the robber

. Kelly detained the man, identified as appellant, and frisked him. The office r felt a larg e amount of cash in appellant’ s pants pocket and arr ested him. The cash proved to be just over $700.

A red Chevrolet pickup truck was spotted by police office rs a few blocks from wher e appellant was arr ested. Cash, a red bandanna , and a chrome revolve r could be seen inside the cab. Using key s taken from appellant, office rs opened the door o f t h e t ru ck and seized approximately $500 in cash, the bandanna , and the handg un. They also seized a gra y h o o d ed sweatshirt ly ing in the bed of t he truck. The revolver, whic h contained five li ve rounds and one spent car tridg e, was identified by Richards as looking like the wea pon he saw in the robber ’s possession. The cash found

on appellant’ s person and in the truck included ten $20 bills that had been photocopied by the bank for use as “ba it money ” in the eve nt of a robbe ry .

Appellant makes sever al arg uments as to w h y th is e v id e n c e is n o t sufficie nt to support the trial cour

t’s finding that he committed the subseque nt of fense of ag g rava ted robber y . First, he notes that he was not identified at the hear ing by Portill o, Richards, or any other wi t n es s t o the robber y . Howeve r, the evidenc e descr ibed above is more than sufficie nt to circ umstantially identify appellant a s the robber

.

Appellant arg ues that beca use Portill o did not see a wea pon, the State failed to prove that the robber

y was ag g rava

ted by the alleg ed use of a deadly wea pon. But even if the State failed to prove a n ag g rava ted robbe ry , a question we do not dec ide, it proved the le sser include d offe nse

3o f robber

y , and this was sufficie nt to support the decision to adjudicate

. See Jenk ins v. S t a t e , 740 S.W .2d 435, 440 (Tex. Crim. App. 1983).

Next, appellant asser

ts that there is a varia

nce betwee n the motion to adjudicate and the proof. The mot ion was sty led “State of Texas v. Mark Carey Alexander” and bore the correc t

cause number. I n alleg ing the subsequent off ense, how ever , the motion stated that the ag g rava ted robber y was committed by “Mar k Alexander Carey .” Appellant did not raise this issue below. Appellant does not expl ai n how this appar ent transposition of his names g ave rise to a materia l varia

nce and under the circumstances, w e conc lude that i t did not. See Gollihar v. Stat e , 46 S.W .3d 243, 257 (T ex . C ri m. App. 2001). An immaterial varia nce may be disreg arde d in revie wing the sufficie ncy of the evidenc e. Fuller v. State , 73 S.W .3d 250, 254 (Tex. Cr i m . App. 2002). Finally , appellant contends that some of the evidenc e pertinent to the robber y should be disreg arde d beca

use it was unlawfully seized and err oneously admitted at the hear ing. Appellant concede s i n h i s brief that “ther e is case law that runs contra ry to his contentions” reg arding the seizures, and he does not bring forwa rd a poi n t o f err or direc tly challeng ing the admission of the evidenc e. I n deter

mining the sufficie ncy of the evidenc e, we consider all the evidence befor e the trier of fac t. Garcia v. State , 919 S.W .2d 370, 378 (Tex. Crim. App. 1994). The preponde ranc e of the evidenc e supports the trial court’s finding that appellant violated the terms and conditions of his community s u pervision by committing the subsequent offe nse of robber

y . Point of err or six is overr uled. Be cause one violation will support the decision

4to a djudicate, we do not r eac h the other five points of err or, which challeng e the sufficie ncy of the

evidenc e re g arding the other violations.

Finding no abuse of discretion in proce eding to adjudication, we aff irm the judgme nt of convic tion.

__________________________________________ Melissa Goodwin, Jus tice Be fore Chief J ustice Jones, J ustices Henson a nd Goodwin Affir med Filed: June 1, 2011 Do Not Publish

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