In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 7-13-00105-CR 

________________________

ALLEN GRAVES, JR., APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

 

On Appeal from the 46th District Court 

Wilbarger County, Texas 

Trial Court No. 11,634; Honorable Dan Mike Bird, Presiding 

 

June 13, 2014 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. 

In May 2012, following an open plea of guilty to the offense of assault against a 

family member by occlusion,1 Appellant, Allen Graves, Jr., entered into a plea bargain 

whereby he was sentenced by the trial court to seven years confinement, suspended for 

five years, and assessed a $1,000 fine. The trial court issued its Judgment of 

 

1

See TEX. PENAL CODE ANN. § 22.01 (West Supp. 2013). As alleged in the indictment of this 

cause, the offense was a second degree felony. Id. at § 22.01(b-1)(3) (West Supp. 2013).
2

Conviction incorporating by reference the conditions of his community supervision

which, among other things, required that Appellant not commit any offense against the 

laws of this State or any other State of the United States (Condition No. 3) and pay his 

fine, court costs and monthly probation service fee (Condition No. 6). 

In March 2013, the State filed its Motion to Revoke Probation alleging Appellant 

committed five new criminal offenses and failed to pay his fine, court costs and monthly 

probation service fee. At the hearing on the State’s motion, the State proceeded on 

only two violations of Condition No. 3 and the violation of Condition No. 6. The two 

violations of Condition No. 3 the State proceeded on alleged Appellant: (1) assaulted a 

prior girlfriend and (2) committed the offense of criminal mischief by damaging a pair of 

window screens. Appellant plead “not true” to the violations of Condition No. 3 and 

“true” to the violation of Condition No. 6.2 At the conclusion of that hearing, the trial 

court found Appellant violated the terms of community supervision,

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revoked the prior 

order suspending imposition of sentence, and imposed the original sentence of seven 

years confinement. The trial court also ordered Appellant to pay his court-appointed 

attorney’s fees of $400. On appeal, Appellant asserts (1) there was insufficient 

evidence of an assault to require revocation and (2) the trial court erred in revoking his

community supervision for non-payment because the uncontroverted facts established 

he had an inability to pay. We modify the trial court’s judgment to delete the order that 

Appellant pay $400 in court-appointed attorney’s fees and affirm as modified. 

 

2 Notwithstanding his plea of true to the violation of Condition No. 6, Appellant did contest his 

financial ability to pay his fine, court costs and supervision fees.

3

The trial court found the allegations of the assault and the non-payment to be true; however, the 

court found the allegations of criminal mischief to be not true. 
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STANDARD OF REVIEW

Our review of an order revoking community supervision is limited to determining 

whether the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763 

(Tex. Crim. App. 2006) (citing Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 

1984)). In an adjudication hearing, the State must prove by a preponderance of the 

evidence that the defendant violated the terms of community supervision. Id. at 763-64; 

Antwine v. State, 268 S.W.3d 634, 636 (Tex. App.—Eastland 2008, pet. ref’d). A 

preponderance 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.” Rickels, 202 S.W.3d at 763–64. In determining the sufficiency of the 

evidence to sustain a revocation, we view the evidence in the light most favorable to the 

trial court’s ruling, Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Jones 

v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979), while recognizing that “[t]he trial 

court is the sole judge of the credibility of witnesses and the weight to be given their 

testimony.” Antwine 268 S.W.3d at 636. Given the unique nature of a revocation 

hearing and the trial court’s broad discretion in the proceedings, the general standards 

for reviewing sufficiency of the evidence do not apply. Pierce v. State, 113 S.W.3d 431, 

436 (Tex. App.—Texarkana 2003, pet. ref’d). When the standard of review is abuse of 

discretion, the record must simply contain some credible evidence to support the trial 

court’s decision. Herald v. State, 67 S.W.3d 292, 293 (Tex. App.—Amarillo 2001, no 

pet.). Finally, we note that a single violation of community supervision is sufficient to 

support revocation. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(b) (West 2012). See 
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Antwine, 268 S.W.3d at 636 (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. 

App. 1980)).

ANALYSIS

ISSUE ONE

At the revocation hearing, Emily Taylor testified she was Appellant’s former 

girlfriend. She testified they lived together for a time and had a child. She further 

testified that on December 24, 2012, Appellant came to her house in violation of a court 

order, struck her in the face and pushed her against a pickup truck. Immediately 

thereafter, her face swelled red in color, and her back hurt. Jason Vandergriff, Chief of 

Police of the City of Chillicothe, corroborated Taylor’s account of her injuries with 

photographs taken shortly after the incident and opined that the knot of swelling on her 

back was consistent with some type of blunt force trauma. Appellant testified the event 

never took place.

Appellant’s account of events on December 24, 2012, clearly conflicts with the 

testimony of Taylor and Vandergriff. However, the trial court is the sole judge of the 

credibility of their testimony and judging from the revocation order, chose to believe 

Taylor and Vandergriff over Appellant. See Antwine, 268 S.W.3d at 636. Viewing the 

evidence in the light most favorable to the trial court’s ruling, we cannot say the trial 

court abused its discretion in finding Appellant violated Condition No. 3 of the terms and 

conditions of his community supervision. Appellant’s first issue is overruled, and his 

second issue is pretermitted. TEX. R. APP. P. 47.3. 
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COURT-APPOINTED ATTORNEY’S FEES

We also note an issue not raised by Appellant regarding the assessment of $400 

in court-appointed attorney fees in the trial court’s Judgment Revoking Community 

Supervision, i.e., “Court Costs - $354.00 PLUS LEGAL FEES.” An attached form filed 

by Appellant’s court-appointed attorney at the revocation hearing shows a claim for 

$400 in fees. In order to assess attorney’s fees, the trial court must first determine that 

the defendant has financial resources that enable him to offset in part or in whole the 

cost of legal fees provided, TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (WEST SUPP. 

2012), and the record must reflect some factual basis to support the determination that 

the defendant is capable of paying attorney’s fees. Barrera v. State, 291 S.W.3d 515, 

518 (Tex. App.—Amarillo 2009, no pet.) (per curiam); Perez v. State, 280 S.W.3d 886, 

887 (Tex. App.—Amarillo 2009, no pet.). 

The judgment requires Appellant pay court costs and attorney’s fees. The clerk’s 

record and hearing transcript reflect, however, the trial court found Appellant indigent 

and unable to afford the cost of legal representation in the trial court proceedings and 

on appeal. It does not appear the trial court made a determination Appellant had 

financial resources enabling him to pay all or any part of the fees paid his courtappointed counsel, and we are unable to see any evidence to support such a 

determination. Accordingly, we conclude the order to pay attorney’s fees was improper 

because the evidence was legally insufficient to support a finding Appellant had the 

financial resources to pay attorney’s fees. See Mayer v. State, 309 S.W.3d 552, 556-57 

(Tex. Crim. App. 2010). Accordingly, we modify the judgment to delete the requirement 
6

that Appellant pay court-appointed attorney’s fees. See Wolfe v. State, 377 S.W.3d 

141, 146 (Tex. App.—Amarillo 2012, no pet.). 

CONCLUSION

We modify the trial court’s judgment to delete the order to pay court-appointed 

attorney’s fees and affirm the judgment as modified.

Patrick A. Pirtle

 Justice

Do not publish.