NO. 07-09-0197-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C SEPTEMBER 8, 2010

MICHAEL R. MARTINEZ, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 364 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2005-409,347; HONORABLE BRAD UNDERWOOD, JUDGE

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

MEMORANDUM OPINION In 2006, following a plea of guilty to the offense of aggravated assault with a deadly weapon in Cause No. 200 5-409,347, Appellant, Michael R. Martinez, was placed on deferred adjudication community supervision fo r a term of eight years. In 2007, the State filed a motion to proceed alleging mu ltiple violations of the conditions of Appellant's community supervision, including t he commission of the o ffense of "Injury to2 a Child" on July 5, 2007. 1 Arising out of the July 5 incident, Appellant was subsequently charged with the offense of aggravated assault 2 in Cause No. 2 008-419,983, and on May 4, 2009, Appellant proceeded to a jury trial on a plea of "not guilty." Simultaneously with the jury trial in C ause No. 2008-419,983, Appe llant entered a plea of not true to the State's mo tion to proceed in Cause No. 200 5-409,347. The jury trial resulted in a "not guilty" verdict; however , after hearing additional testimony on the alleged violations of community supervision, t he court adjudicated A ppellant guilty of the offense charged in Cause No . 2005-409,347 and assessed pun ishment at twenty years confinement.
Presenting three issues, Appellant asse rts the trial court abused its discretion when it revoked his community supervision becaus e: (1) the State failed to prove by a preponderance of evidence that he committed the offense alleged in the motion to proceed (i.e., injury to a child); (2) he was indigent and unable to make required payments; and (3) although he failed to comple te programs required by the order for

1 The State's motion to proceed alleged that Appellant willfully and intentionally violated the conditions of his community supervision by: (1) committing the offens e of "Injury to a Child" on July 5, 2007; (2) failing to avoid injurious or vicious habits by demonstrati ng a history and consistent pattern of assaultive behavior, to-wit: he "committed a subsequent Assault/In jury to a Child on 07/05/07"; (3) failing to pay community supervision fees for a period of months; (4 ) failing to make required restitution payments; (5) failing to attend and complete counseling deemed necess ary by his community supervision officer; and (6) failing to successfully complete individual anger counseling. The State never specifically pled the elements of the offense of "Injury to a Child" or "Assault/Injury to a Child." See Tex. Penal Code Ann. § 22.04 (Vernon Supp. 2009).

2 The indictment alleged that "on or about July 5, 2007, [Appellant] did t hen and there intentionally, knowingly and recklessly cause serious bodily injury to Thristen [last name omitted] by striking the said [victim], who then and there was a member of the def endant's household or family, and did then and there use a deadly weapon, to-wit: the exact description of wh ich is unknown to grand jurors, that in its manner of use or intended use was capable of caus ing death and serious bodily injury." See Tex. Penal Code Ann. § 22.02 (Vernon Supp. 2009).3 deferred adjudication, there was still sufficient time remaining on his term of community supervision to complete t he programs. We affirm.
Adjudication Hearing
Shortly after receiving the jury's "not guilty" verdict in Cause No. 2008-419,983, the trial court held a hearing to adjudicate Appellant's guilt in Cause No. 2005-409,347. The trial court announced, without objection, that it would "tak e into consideration all of the evidence presented in the jury trial." Afterwards, both parties stated they were ready to commence the proceedings.
Patricia Acosta testified to the facts givi ng rise to the origin al offense charged in Cause No. 2005-409,347. She test ified that in May 2005, wh ile she was at Appellant's house to pick up her son following visita tion, he grabbed her cell phone as she was calling her family to check in, broke the pho ne, and tore her shirt o ff as she was running away. Appellant then took her car keys and to ld her, that if she wanted her son, she would go into his house. After she went into the house, Appellant told her that he was going to kill her and keep her son. He th en threatened her with a knife, punched her in the stomach, got atop her, and hel d a knife to her throat. Afterwards, he forced her and her son into a car and drove them to a park w here he threatened to kill her if she did not come back to him. Eventually, she told hi m she would come back to him and he drove them back to his house. When they pulled into the driveway, her family pulled in behind them. Patricia grabbed her son and ran to her family. Therea fter, the police arrived.
Joanie Jones, Appellant's community supervi sion officer, testified that, including the commission of the offens e alleged to have occurred on July 5, 2007, Appellant4 exhibited a pattern of behavior for continued violence. She testified Appellant failed to pay community supervision fees and restitut ion for a number of m onths when he was employed and had six hundred dollars in disposable in come each month. She also testified that he blamed others for his noncompliance and aggressive behaviors. Although he was referred to anger counseling t wice for specific classes, she testified he failed to complete either class and generally resisted participating in any counseling. She further testified Appellant failed to attend a budgeting class as directed. These infractions continued despite multiple supervision conferenc es and an administrative hearing intended to obtain Appellant's compli ance with the requirem ents of his deferred adjudication order.
Appellant did not testify on his ow n behalf or present any evidence. 3 The trial court subsequently granted the State's motion finding, in pertinent part, as follows:
[T]he State proved by a preponderanc e of the evidence that defendant committed the offense of injury to a child; . . . , defendant failed to pay his supervision fees as alleged; . . . , failed to pay restitution as alleged; . . . , failed to maintain and complete any dr ug, alcohol or any other program as directed and deemed necessary, failed to pay for, attend and successfully complete individual anger counseling.

3 Appellant presented no evidence or financial informat ion to support his claim that he was unable to make the required payments even though he was employed and earned enough to have six hundred dollars a month in disposable income. See Jimerson v. State , 957 S.W.2d 875, 878 (Tex.App.--Texarkana 1997, no pet.). Where a defendant does not testify or otherw ise rebut the State's evidence of his ability to pay or present any justification for non-payment, an inference of intentional non-payment exists. Jackson v. State , 915 S.W.2d 104, 107 (Tex.App.--San Antonio 1996, no pet.). Further, even if there may be sufficient time left in Appellant's term of community supervision to complete counseling and anger management classes, the uncontrovert ed evidence shows Appellant consis tently resisted participation in such classes and failed to "[a]ttend and complete any drug, alcohol, or any other program as directed and deemed necessary by [his] Supervision Officer." See Smith , 932 S.W.2d at 282-83.5 The trial court also found Appell ant used a deadly weapon in the commission of the offense and then sentenced him to twenty y ears confinement. This appeal followed.

Discussion
Although Appellant acknowledge s in his brief that the trial court properly took judicial notice of the evidence introduced in his criminal trial at his subsequent adjudication hearing, he asserts the trial court abused its discr etion by finding the State proved the offense of injury to a child by a preponderance of ev idence when the State introduced no independent evidenc e of that offense during the trial or adjudication hearing. In the alternative, Appellant asserts that, even if there was some evidence supporting the trial court's finding, the evidence was legally insufficient.
Appellant also asserts the trial cour t abused its discretion by proceeding to adjudication when there was insufficient evidence introduced by the State to show he was able to make required payments and ther e was sufficient time remaining in his community supervision term for him to co mplete any necessary programs he had failed to complete.

Standard of Review

On violation of a condition of communi ty supervision imposed under an order of deferred adjudication, a defendant is entitled to a hearing lim ited to the determination of whether the trial court should proceed with an adjudication of guilt on the original charge under section 21 of article 42.12 of the Texas Code of Crimi nal Procedure. Tex. Code Crim. Proc. Ann. art. 42. 12, § 21 (Vernon 2006). See Antwine v. State , 268 S.W.3d6 634, 636 (Tex.App.--Eastland 2008, pet. ref'd). "This hearing is neither a criminal nor a civil trial, but is rather an administrative hearing." Wilkins v. State , 279 S.W.3d 701, 703 (Tex.App.--Amarillo 2007, no pet.) (citing Cobb v. State , 851 S.W.2d 871, 873 (Tex.Crim.App. 1993)).
As such, the State's burden on a motion to revoke community supervision is lower than the burden of proof necessary for criminal conviction. Smith v. State, 932 S.W.2d 279, 281 (Tex.App.--Texar kana 1996, no pet.). The State has the burden of showing by a preponderance of the evidenc e that the defendant co mmitted a violation of the condition(s) of community supervision; Cobb , 851 S.W.2d at 873; and satisfies this burden "when the greater weight of cr edible evidence before the court creates a reasonable belief that it is more probable than not that a condition of probation has been violated as alleged in the [State's] motion." Joseph v. State , 3 S.W.3d 627, 640 (Tex.App.--Houston [14th Dist.] 1999, no pet.) (citing Battle v. State , 571 S.W.2d 20, 21- 22 (Tex.Crim.App. 1978)).
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)). Further, 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; 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 given to their testimony." Antwine , 268 S.W.3d at 636 (citing Cardona , 665 S.W.2d at 493).7 Analysis

At the outset we note that a finding of a single violation of community supervision is sufficient to support revoca tion. Tex. Code Crim. Proc . Ann. art. 42.12, § 21(b) (Vernon 2006); Antwine , 268 S.W.3d at 636 (citing Moore v. State , 605 S.W.2d 924, 926 (Tex.Crim.App. 1980)). See Coffel v. State , 242 S.W.3d 907, 909 (Tex.App.-- Texarkana 2007, no pet.); Nurridin v. State , 154 S.W.3d 920, 924 (Tex.App.--Dallas 2005, no pet.). Based upon the evidence presented, we find the trial court did not err in revoking Appellant's deferr ed adjudication community supervision because the State proved by a preponderance of evidence that Appellant failed to make required payments and complete scheduled counseling/ anger management classes as required under the applicable order of deferred adjudication.
Appellant's second and third issues ar e overruled. Our ruling on Appellant's second and third issues pretermits issue one. See Tex. R. App. P. 47.1; Smith, 932 S.W.2d at 283; Ex parte Brown, 875 S.W.2d 756, 761 (Tex.App .--Fort Worth 1994, no pet.).

Conclusion
The trial court's judgment is affirmed.

Patrick A. Pirtle Justice

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