NO. 07-00-0393 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L B SEPTE MBE R 28, 2001

______________________________ JOHN ELW AYNE TURNER, AP PELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE100 TH DISTRICT COURT OF HALL COUNT Y; NO. 3007; HON ORABLEDAVID MCCOY , JUDGE

_______________________________ Before BOYD, C.J., and QUINN and JOHNSON, JJ. Appellant John Elwayn e Turner a ppeals from the revocation of his probation for felony driving while intoxicated, and sentence of five years incarceration. We affir m. BACKGROUND2

On May 27, 199 7, appellant

pled guilty toa felony charg e of driv ing w hile intoxicated. Pursuant to a plea bargain, he was placed on probation for five yea rs and assessed a $1,500 fine.
On Novem ber 5, 1998, the State filed a motion to revoke appel lant’s probation. The mot ion was he ar d o n J ul y 1 9, 20 00 , a t wh i ch ti me the State w aived its allegations as to appellant violating his probation except the allegation thatappellant failed to rgeport to the court through the probation office on the first of each m onth, beginning on June 1, 1997. The State specified that ap pellant did not report f or the mo nths of June, July, A ugust, Septe m ber, and Oc to be r, 19 98 . T he tr i al co ur t f ou nd th at ap pe l l an t v i ol at ed th e t er ms of his probation, revoked the probation and sentenced appellant to five years incarceration in the Texas Departm ent of Crim inal Justice, Institutional Divisi on. Bytwo issues, appell ant chall enges the le gal and factu al suffi ciency of the evidence to support the trial court’s finding that he violated the term s of his probation by w ilfull y or know ingly

failing to report to the trial court through the probation departm ent. In essence, he argues that the ter m s of his pro bat ion a llowed h im to r epo rt e ithe r in p ers on o r in writing. Therefore, he asserts, th e State had the bu rden to prove that he reported neither in writing nor in person, w hich the State failed to prove. A ppellant concludes that because the State failed in its proof, thetria l cou rt a bus ed its dis cre tion in revoking his probation.

LAW3

In a proceeding to revoke probation the burden of proof is on the State to show by a preponderance of the evidence tha t the probationer has violated a condition of probation as alleg ed in the m otion to revoke. Cobb v. State , 851 S.W.2d 871, 873 (Tex.Crim .App. 1993). Pr

oof of a ny o ne o f th e alle ged viol atio ns is enough to support an order to revoke probation. Mosesv. State , 590 S.W.2d 469, 470 (Tex.Crim .App. 1979); Gobell v. State , 528 S. W .2d 223, 224 (Tex .Crim .App. 1975). The only issue presented in an appeal from an order revoking probation is whether the trial cou rt abuse d its discretion. See Naquin v. State , 607 S.W.2d 583, 586 (Tex.Crim .App. 1980); Lloyd v. State , 574 S.W.2d 159, 160 (Tex.Crim .App. 1978). When the standard of review is abuse of discretion, the r ec or d mu st si mpl y c on ta i n s ome evidence to support the decision m ade bythe trial court. Brumbalow v. State , 933 S.W.2d 298, 300 (Tex.App. --W aco 1996, pet. ref’d). In determ ining the sufficiency of the evidence to sustain a probation revocation, we view the evidence in the light most favorable to the t rial court’s ruling. Jones v. State , 589 S .W.2d 419, 421 (Tex.C rim. App. 1 979); Brum balow , 933 S.W.2d at 300.
ANALY SIS Appella nt’s 100th Jud icia l Dist rict probation officer, Michael Moore, testified that appellant last reported to the probation departm ent in writing on May 26, 1998. M oore received a te leph onecall fro m app ellan t on July 6, 1998, in wh ich appellant asked if Moore cou ld “cover

for him” as to report dates appellant m issed with the Terry County probation4

office, which M oore declined to do. Moore w as not contacted at all by appellant after the last written re port in May, 1998, e xcept for the one telep hone call in July. Moore testified that during the m onths of June and July, 1998, which were tw o of the mo nths during which the S tate alleged that appellant did n ot report as he should have, the probation departm ent of the100th Judicial District had transferred appe llan t’s p robation to Terry County, Tex

as, for supervision, and appellant was to report to the Terry County probati on office, as well as reporting in writing to the 100th Judicial District office. According to Moore, the Terry County office closed its supervision of appellant’s probation and transferred supervision back to the 1 00th Judicial District probation office on July 21, 1998. After Terry County returned supervision of appellant’s probation to the 100th Judicial District in J uly, app ellan t w ould not have be en a ble to co m ply with his probation requirement by reporting to anyone in Terry County. Appellant testified that hedid not re port to his Terry County

probation supervisor dur ing s pec ific

dates in Jun e an d Ju ly, 199 8, w hen he w as to re por

t week lyas part

of a rehabilitati on program which he w as undergoing. He claimed to have been hospitalized during part of August, 1998, but did not offer an explanation for the com plete failu re to ca ll or rep ort in writing to the probation office during that tim e. Appellant did not testify that he reported to the 100th Jud icial Dis tric t pr oba tion off

ice e ithe r in p ers on o r in writing at any ti me after

the Terry County pr obation of fice clos ed its s upe rvis ion of his pro bat ion o n Ju ly 21, 1998, and returned superv ision to the 100th Judicial District office.5

There is some evidence that appellant did not report to the trial court m onthly, as he wasrequired to do, in any m anner, after the telephone call to Moore in July, 1998, even if s uch tel ephone call were to be cons idered as a “report.” Viewing the ev idence in the light most favo rable to the trial court’s determ inations, as we m ust, we conc lude that the tria l cou rt’ s de cis ion t hat app ellan t fa iled to re por t in any m ann er, eith er in w ritin g or in person, during one or mo re of the m onths of Augu st, S eptem ber and O ctober, 199 8, w ould be supported by som e evidence. See Brum balow , 933 S .W.2d at 300. E videntiary support for a determ ination that appellant failed to report for any one of the mo nths alleged bythe S t ate is sufficient evidentiary support for revocation. See Moses , 590 S.W.2d at 470. Accordingl y, the trial court did no t abuse its di sc retion in revoking a ppell ant’s probation. Id . W e overrule appellant’s first and second issues.
CONCLUS ION Having concluded that the trial court did not abuse its discretion in finding that appellant violated a term of his probation as alleged by the State, and hav ing overruled both of appellant’s issues, w e affirm thejudgm ent of the trial court.

Phil Johnson Justice
Do not publish.6