Opinion issued October 3, 2013

In The

Court of Appeals 

For The 

First District of Texas 

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NO. No. 01-12-00400-CR

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RACHEL MARIE HARVEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court 

Harris County, Texas

Trial Court Case No. 1292026

MEMORANDUM OPINION

Rachel Marie Harvey challenges the trial court’s adjudication of her guilt 

following the trial court’s finding that she violated two terms of her community 

supervision put in place after she plead guilty to possession of marijuana in an 
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amount more than four ounces and less than five pounds.1 The trial court assessed 

punishment at two years’ confinement. In two issues, Harvey contends the trial 

court abused its discretion in finding (1) Harvey committed a new offense of 

assault because the conduct alleged by the State was justified and (2) Harvey used 

marijuana because the finding rested on judicial―rather than 

adversarial―questioning. We affirm.

Background

Harvey plead guilty to possession of marijuana in an amount more than four 

ounces and less than five pounds. Pursuant to a plea bargain, Harvey was given 

two years’ deferred-adjudication community supervision. The State moved to 

adjudicate guilt, alleging five violations of Harvey’s community supervision terms. 

Harvey plead “not true” to each allegation. After an evidentiary hearing, the trial 

court found that Harvey had violated the terms of her community supervision by 

committing a new offense of assault and using marijuana. Because this appeal 

relates to the two violations found true by the trial court, we limit our recitation of 

the evidence to the facts surrounding these findings. 

The State’s motion to adjudicate guilt alleged that Harvey violated the terms 

of her community supervision by “[c]ommitting an offense against the State of 

Texas, to-wit: . . . [Harvey] . . . unlawfully intentionally and knowingly cause[d] 

 1 See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(3) (West 2009).
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bodily injury to DIANE JOHNSON . . . by STRIKING [Johnson] with her hand.” 

Johnson and Harvey testified about the alleged assault at the adjudication hearing. 

Their testimony conflicted.

Johnson testified that she was driving during her lunch break and attempted 

to make a U-turn on a busy street. Behind her, Harvey drove in a manner that 

Johnson felt was unsafe. Johnson turned into an apartment complex to get away 

from Harvey. At the same time, Harvey pulled up to the side of Johnson’s vehicle 

and attempted to pass, but instead entered the apartment complex behind Johnson. 

Johnson slowed her vehicle to pass over speed bumps in the apartment complex 

parking lot. Johnson testified that she slowed and Harvey passed her “at top 

speed.” The two vehicles nearly collided. Harvey, who lived in the apartment 

complex, parked her vehicle. Johnson followed Harvey to her parking space in 

order to “tell her to slow down because there’s a ton of kids that run around there.” 

According to Johnson, as she got out of her vehicle to talk to Harvey, Harvey ran 

at her. Before she could say anything, Harvey hit Johnson’s face with her fist. The 

two women then fought until a delivery truck driver who happened on the scene 

was able to separate them. Johnson suffered abrasions, contusions, and a fractured 

jaw. Harvey received minor cuts and bruises on her face and legs.

According to Harvey, after failing to pass Johnson before they entered the 

apartment complex, she veered around Johnson in the parking lot because she 
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believed Johnson had intentionally stopped her vehicle near the speed bumps “as if 

to, like, give me some kind of attitude because she didn’t like that I tried to go 

around her.” Harvey testified that Johnson followed her and then parked behind her 

vehicle, blocking it in a parking space. Johnson exited her vehicle and began to 

cuss at Harvey. Harvey testified that, after she got out of her vehicle, Johnson 

raised her hand “as if she was going to hit me.” Harvey acknowledged throwing 

the first punch, but she maintains that she acted in self-defense. 

The State also presented evidence that Harvey had violated a condition of

her community supervision prohibiting use, possession, or consumption of 

controlled substances. Specifically, the State presented evidence that Harvey failed 

a drug test administered in connection with the criminal proceeding that resulted 

from her altercation with Johnson. 

Commission of New Offense

In her first issue, Harvey argues that the trial court erred in finding that she 

committed a new crime because the State did not prove beyond a reasonable doubt 

that her assaultive conduct was not justified by self-defense.

We review the trial court’s determination that Harvey violated the terms of 

her community supervision for abuse of discretion, viewing the evidence in the 

light most favorable to the trial court’s ruling and bearing in mind that the trial 

judge is the trier of fact and the arbiter of the witnesses’ credibility. See Rickels v. 
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State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Duncan v. State, 321 S.W.3d 

53, 56−57 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).

A. State’s burden of proof 

Harvey’s argument raises a threshold question about the burden of proof in 

adjudication hearings. On violation of a condition of community supervision 

imposed under an order of deferred adjudication, the defendant is entitled to “a 

hearing limited to the determination by the court of whether it proceeds with an 

adjudication of guilt on the original charge.” TEX. CODE CRIM. PROC. ANN. art.

42.12, § 5(b) (West Supp. 2012). This determination is reviewable in the same 

manner as a revocation hearing in a case in which an adjudication of guilt has not 

been deferred. Id. In a revocation hearing, the State must prove by a preponderance 

of the evidence that the defendant violated the terms of her community 

supervision. Rickels, 202 S.W.3d at 763−74; Canesco v. State, 199 S.W.3d 437, 

438 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Harvey asserts that the same 

burden of proof―the preponderance-of-the-evidence standard―should not apply 

in an adjudication hearing because the defendant has not yet been found guilty. 

According to Harvey, the State should be required to prove the allegations in its 

motion to adjudicate guilt beyond a reasonable doubt.

The Court of Criminal Appeals recently reaffirmed that revocation hearings 

and adjudication hearings should be governed by the same rules. See Leonard v. 
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State, 385 S.W.3d 570, 572 n.1 (Tex. Crim. App. 2012) (op. on reh’g). The Court 

reasoned:

When a defendant is placed on deferred adjudication community 

supervision, he pleads guilty, but the trial court defers any 

adjudication of guilt. If the defendant is found to be in violation of the 

terms of his community supervision, the trial court may proceed to 

adjudicate him guilty in accord with his plea. Thus in such cases the 

hearing on whether the defendant violated the terms of community 

supervision may be called an “adjudication hearing,” but it is 

governed by the same rules as a hearing to revoke community 

supervision and is, in practical terms, a hearing on whether to revoke 

the defendant’s deferred adjudication community supervision.

Id. We therefore hold that the trial court did not err when it applied the 

preponderance-of-the-evidence standard. 

B. Credibility of witnesses 

The State’s motion alleged that Harvey “unlawfully intentionally and 

knowingly cause[d] bodily injury to DIANE JOHNSON . . . by striking [Johnson] 

with her hand.” Johnston testified that she was attempting to speak with Harvey 

about the manner in which she was driving when Harvey “came flying out of her 

car” and “started pummeling [Johnson] in the face” before Johnson could say 

anything. Johnson expressly denied having raised her hand as if to hit Harvey 

before Harvey punched her. 

Although Harvey’s testimony raised the issue of self-defense, the evaluation 

of the witnesses’ credibility was a matter for the trial court’s judgment, and the 

trial court was free to weigh the testimony presented and determine one witness to 
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be more reliable than the other. See Rickels, 202 S.W.3d at 763–64. We will not 

substitute our collective judgment for the decision of the trial court. See Garrett v. 

State, 619 S.W.2d 172, 175 (Tex. Crim. App. 1981). On this record, we hold that 

the trial court did not abuse its discretion in revoking Harvey’s community 

supervision and adjudicating her guilt. See Rickels, 202 S.W.3d at 763−64.

Accordingly, we overrule Harvey’s first issue.2

Conclusion

Having concluded that the trial court did not abuse its discretion in revoking 

Harvey’s community supervision and adjudicating her guilt, we affirm the trial 

court’s judgment.

Harvey Brown

Justice 

Panel consists of Justices Jennings, Sharp, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

 2 Because proof of a single violation is sufficient to support a revocation of 

community supervision, we do not reach Harvey’s second issue challenging the 

trial court’s finding that she violated the terms of her community supervision by 

using marijuana. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 

[Panel Op.] 1980); Canseco v. State, 199 S.W.3d 437, 439–40 (Tex. App.—

Houston [1st Dist.] pet. ref’d).