### 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. 03-14-00381- CR

Eric Alan Moore , Jr., Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT

NO. 671 09, H ONO RAB LE JO HN GAUNTT, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Eric Alan Moore, J r. appe a ls th e d is tr ic t c o u r t’ s judgme nt adjudicating g uilt, revoking his probation, and sentenc ing him to six y ear s in prison. He contends the revoc ation of his probation

was an abuse of the court’s discretion b ec au s e t h e victim denied the assault occurre d and another witness’s testimony about the assault was not cre dible. We will aff irm the district court’s judgme nt.

BACK GR OUND Moore wa s indicted in 2010 for ag g rava ted assault with a deadly wea pon. See Tex. Penal C ode § 22.02. He entere d into a plea ag ree ment placing him on defe rre d-adjudica tion probation for ten y ear s. The first condition of his probation was that he “n ei t her commit nor be convicted of

any offe nse ag ainst the laws of the State of Texas.” On an ear ly morning in 2014, Moore and his g irlfriend J aquilla Scott g ot into an arg ument. Moore kicked in the door of her apar tment, and then the alterc ation moved outside. Thenoise from the quarr el and the crie s of the couple’ s child woke the neig hbors. A few of them went

outside and attempted to stop the alterc ation. One of the neig hb o rs, Peatre ia Spells, testified that she hear d another neig hbor, Shanta Br itton, y elling “Stop hitting her! ” Spells g rabbe d her g un and place d it in her jacke t pocket befor e stepping outside her apar tment. When she saw that Moore had Scott by the hair and was punching her, Spells threa tened to shoot Moore if he hit Scott ag ain. She then called the police at Scott’s reque st. After the police arr ived, they took pictures of Scott and the

scene of t he arg ument and spoke with Moore, Scott, and neig hbors who witnessed the arg ument. The n ei gh b o rs repor

ted that Moore struck Scott, consistent with Scott’s injuries, including her “busted lip” that office rs saw and photogr aphed. Ba sed on the wi t nesses’ statements and the office rs’ observations, the offic ers c oncluded ther e wa s probable cause to believe the assault t ook place and ar

rested Moor e. The State sub s eq u entl y filed a motion to adjudicate Moore’ s g uilt and revoke his probation, alleg ing that he violated it by committing the offe nse of assault family violence. See Tex. Code Crim. Proc. art. 42.12, § 5(b) (providing adj u d i cation proce dure for violation of condition of community supervision); Tex. Penal Code § 22.01 (def ining offe nse of assault). At the

s u b s eq u ent hear ing on the motion, Moore pled “not true” to the alleg ations, and in her tes t i m o n y Scott denied that Moore hit her. Thre e n eig hbors testified otherwise. At the conclusion of the hear ing, the court found the State’s alleg ations to be true, revoke d Moore’ s probation, and sentenc ed him. Moore then filed this appe al.

2DISCUSSIO N I n one issue on appea l, Moore challeng es the sufficie ncy of the evidenc e supporting the district court’s judgme nt, emphasizing Scott’s testimony that he did not as s ault her and challeng ing the cre dibilit y of Spells’s testimony

. We revie w an appea l fr o m a revoc ation of probation under an abuse of discretion standard, taking into acc ount the sufficie ncy of the evidenc e supporting the b as i s fo r revocation. Hack er v. State , 389 S.W .3d 860, 865 (Tex

. C ri m . App. 2013). Abuse of discretion occurs “only when the trial judge ’s decision was so clea rly wrong as to li e o u t s ide the zone within which

rea sonable persons might disag ree .” Cantu v. State , 842 S.W .2d 667, 682 (Tex. Crim. App. 1992). A trial court abuses its discretion in revoking probation if the State fails to prove by a preponde ranc e of the evidenc e that a violation of probation occur red. Cobb v. State , 85 1 S

. W

. 2 d 871, 874 (Tex. Crim. App. 1993). I n this context, “a preponde ranc e of the evidenc e” means “the g rea ter weig ht of the cre dible evidenc e which would cre ate a rea sonable belief that the defe ndant violated

a cond i t i o n o f h i s probation.” Ricke ls v. State , 202 S.W .3d 759, 764 (Tex. Crim App. 2006);

see Moore v. State , No. 03-08-00097- CR, 2008 Tex. App. L EXI S 8138, at *3 (Tex. A pp.—Austin Oct. 24, 2008, pet. r ef’ d) (mem. op., not desig nated f or publication). The deg ree of p ro o f require d to establish the truth of the alleg ation in a motion to revoke probation is not the same as a criminal prosec ution. Hack er , 389 S.W .3d at 865. This means that a defe ndant may be acquitted of a crime and stil l h av e h i s p ro bation revoke d based on the

same act beca

use a preponde ranc e-of

-the-e vidence standard—r ather than bey ond-a- rea sonabledoubt standard—a

pplies to r evoca

tion pr ocee dings. See Barrett v. State , 630 S.W .2d 335, 336-37 (Tex. App.—Houston [14t h Dist.] 1 9 8 2 , n o wr i t ). We do not eng ag e in a “divide and conquer ” 3strateg y to evalua te the sufficie ncy of evidenc e but consider the combined and cumulative forc e of

all the evidenc e befor e the trial court, id

. at 8 7 3 , v iewed in the light most favor able to its ruling , Mauney v. State , 107 S.W .3d 693, 695 (T ex . Ap p . — Au s tin 2003, no pet.). The trial judge is the sole judge of the cre dibilit y of the witnesses and the weig ht to be g iven to their testimony

. Mauney , 107 S.W .3d at 695.

Suf fi ciency of evidence supporting vi olation

Moore contends that there i s i n s u ff icient evidenc e supporting the district court’s judgme nt beca

use Scott testified that Moore did not hit her. Be cause Scott denied the assault, Moore

asser ts the court abuse d its discretion in finding that the a ssault occur red. We disag ree . The court hear d Scott testify that she did not wish to be at the hear ing. She stated that she lived wi t h M o o re , who was her boy friend and the fathe r of one of her children, and that Moore car ed for her ch i l d re n while she worke d. She admitted that she continued to live with Moore even afte r their alterc ation. The court also hear d an investiga ting office r testify that Moore’ s 1 2 mother came to the scene and told Scott to tell the police that Moore did not hit her. Scott testified 3 that Moore did not hit her.

When the first half of the hear ing rec essed and befor e Scott testified, the district court 1 order ed Moore not to have any contac t with Scott unt il the hear ing c oncluded. Offic er Ky le Moore of the Killeen Police Depa rtment testified about the investiga tion. We 2 ref er to him by

his tit le bec ause he has the same last name a s appellant. The office r also testified that he showed S co t t’s injury to Moore’ s mother, “And, then, 3 that’s when she looked at her lip and she wa s kind of like, okay , well, may be he me ssed up.” 4But other evidenc e at the hear ing conflicte d with Scott’s testimony , including police

photogr aphs of her taken at the scene and the testimony of her neig hbors. Police photogr aphs show Scott’s fac ial injury , a “busted” lip. When the prosec utor told Scott, “We have seen y our busted lip,” Scott beg an to cr

y . She offe red no e x planation for he r injury . Spells testified that she saw Moore hold Scott by the hair and repea tedly hit her “in her face and in her head” and that he did not stop until Spells, without draw ing her g un, threa tened to shoot him. Br itton, another of Scott’s neig hbors, simil arly testified t hat M oore hit Scott in “the fac e ar ea.” And another of S cott’s neighbors, Gina Erwin, who did not know Moore or Scott, testified that she hear d sounds, opened her apar tment door, and saw “the g uy g et on top of her and start hitting on her,” “just wailing on her head.” When asked about this testimony , Scott sa id she did not know why her neig hbors would g o to c ourt and tell the judge that they

saw Moore hitting her

if it had not happene d. Moore does not challeng e the testimony from Br itton or Erwin, but he contends that Spells “embe llished” her testimony to justify bring ing a g un with her and threa tening to shoot him. Howeve r, t he dis trict court was entrusted with d et er m ining whether the testimony from S cott and her neig hbors was cre dible and rec onciling any conflicts in their testimony

. See Hack er , 389 S.W .3d at 865. After considering the combined and cumulative forc e of all the evidenc e, the district c ourt

co u l d h av e reje cted Scott’s denial of the assault as not cre dible and found that the neig hb o rs ’ testimony that Moore hit Scott was cre dible. See id

. at 873. Testimony from Scott’s neig hbors also alig ns with the depiction of Scott’s injuries in police photog raphs.

Viewing the evidenc e and rea sonable infere nces the r e f r o m in the light most favor able to the district court’ s ru ling, we conclude that the g rea ter weig ht of cre dible evidenc e in this

re co rd supports the court’s rea sonable belief that Moore violated a condition of his probation b y 5assaulting Scott. As such, the court did not abuse its discretion by revoking Moore’ s probation and

adjudicating his guilt. We overr ule Moore’ s sole issue on appea l.

CONCLUSION We affir m the district court’s judg ment.

J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Bour land Affir med Filed: June 24, 2015 Do Not Publish

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