### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-04-00211- CR

Da nie l Eug e ne P ar dini, App e lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF MILAM COUNTY , 20TH JUDICIAL DISTRICT NO. 20654 , HO NORAB LE EDWARD P. M AGRE, JUDGE P RESIDING

M E M O R

A N D U M O P I N I O N
I n Sept ember 2003, appellant Da niel Eug ene Par dini pleaded guilty to cre dit card abuse. See Te x. Pe n. Code Ann
. § 32. 31 (We st Su pp . 2 00 4- 05 ). Th e dis tr ic t c ourt a dju dg e d h im g uilty and sente nced him to t wo y ear s in state jail. I mpositi on of sentenc e wa s suspended, howe ver, and appellant was place d on community supervision. I n Marc h 2004, the cour t revoke d supervision
an d i mp o s e d s e n t e n c e a f

t e r f i n d i n g t h a t a

p p e l l an t c o m m i t t e d t h e s u b s e qu e n t o f

f e n s e o f b u r g l a r

y . In h i s s o l e p o i n to f e rr o r, ap p el l an tco n t en d s t h at t h e e v i d en ce d o es n o t s u p p o rt t h e tr i al co u rt ’s fi n d i n g. We will affirm the re vocation orde r.

I n a proc eedingto revoke community supervision, the S tate has the burde n of proving a violation of the ter

ms and conditions of supervision by a preponde ranc e of the evidenc e. Cobb v. Sta te , 851 S.W .2d 871, 874 (Tex. C ri m. App. 1993). The State me ets this burden if the g reater weig ht of cre dible evidenc e cr eate s a re asonable belief that the defe ndant violated a c ondition ofScott testified that his fathe r recover ed the na il gun f our or f ive day s later a fter me eting a fr iend, 1 whose identity

his father would not disclose, at a loca l bar.

2 supervision as alleg ed in the motion to revoke. J e nk ins v . S tat e , 740 S.W. 2d 43 5, 43 7 (T e x. Cr im. App. 1987). J ames Scott testified that he hire d appellant in October 2003 to do some remodeling
wo rk on a re nt h ou se Sc ott

ow ns ne ar R oc kd a le . App e lla nt d id not have a ke y to t he ho us e . Sc ott , who lived nea

rby , would unlock the house in the morning so that appellant c ould enter, the n lock the ho us e in the e ve nin g to s e c ur e the too ls a nd e qu ipm e nt. On

on e oc c a sio n, a

pp e lla nt a rr ive d w hil e the house wa s still locked; he e ntere d throug h the front window. Appellant’s last workda y was a bout
o n e w e e k b e f o r e t h e b u r g l ar

y. Around 7:00 a.m. on Saturday , October 11, Scott noticed tra cks in the dew -cove red g rass in fr ont of the re nt house. A vehicle appea red to have drive n up to the house and stopped by the front por ch, just below the fr ont window. I nvestig ating , Scott noticed that the front door knob
wa s lo c ke d, bu t th e de a db olt wa s n ot. Sc ott

we nt i ns ide and dis c ov e re d that an a ir c omp re sso r, na il g un, and cor dless drill were missing. Scott also noticed that the fr ont window lock was br oken. 1 Scott called the sheriff

and De puty

Ronald Whi te ar

rived at the house at a

bout 8:00 a.m. White testified that he noti ced the trac ks in the dew, and said that his boots wer e soake d afte r walking in the g rass. Inside the house, Whit e dis cover ed a footprint on a box sitti ng below the f ront window i n s id e th e h o u s e . Wh it e , w h o te s ti f ie d th a t h e d id

n o t n o ti c e an y

d a ma g e to th e w indow , conclude d that the burg lar had enter ed the house throug h the window and le ft with the stolen g oods throug h the front door. Whi te also desc ribed the g y psum dust from the wallboar d that cover ed3

ever y t h i n g inside the house. White took photogra phs of the footprint on the box and of the tire tr a c ks in t he g ra ss. Scott told Whit e that appellant had been working at t he house and had onc e ente red thr ou g h t h e w i n d o w . B e l i e v i n g t h a t t h i s m a d e a p p e l l an t a s u s p e c t , W h i t e dr o v e t o t h e ho us e in Rockdale w here appellant lived with his mother. He arr ived at about 8:45 a.m. Appe llant’s mother admitted the offic er, who spoke to appe llant in his bedroom. Appellant ag ree d to come to the sh e ri ff ’s of fi c e to g ive Whit e a

state me nt. When appellant ar

rived at the sheriff

’s office t h at morning , Whit e noticed that the cuff s of h i s j ea n s we re w et. Appellant told White that he had last worke d at Scott’s house the pr e vio us Mo nd ay , w he n h e ta pe d a nd fl oate d the wa lls
. B e c a

us e he ha d be e n in and

ou t of the ho us e all that day

but did not have a key , he had locked the front door and enter ed and exit ed throug h the window. Under

the circu m s t an ce s , appellant sa id he was not surpr ised that his foot print and tire trac ks would be found at the house. As for his activities the previous nig ht, appellant said that he watche d television with his mot her, the n walked to Way mond Page ’s house. Appellant said that he watche d a movie with Pag e, then r eturne d home and we nt to bed.

Deputy Whit e spoke to Pag e later that day . Pag e told the offic er, a nd later te stified at the re vocation hea

ring , that appell an t d ro v e t o his house in his mot her’ s car on the nig ht of October 10. Pag e said that a

ppellant tried to sell him an air c ompressor that wa s in the back se at of t h e c ar . P age t es t i fi edt h at h e d i d n o t b u y t h e co mp re s s o r b u tagr ee d t o h el p ap p el l an ts el l i t
. P age
and a pp e lla nt atte mpt e d to se ll the c omp re sso r t o D on a ld Al le n la te r that ni g ht. Al le n c on fi rm e d th is in h is o wn

te sti mony . He sa id t

hat Pa g e , w ho wa s in

a blu e Ol ds mob ile dr ive n b y a man h e c ou ld not see, a pproac hed him on the nig ht of Octobe r 10 and of fer ed to sell him an air c ompressor.4 Appellant’s mother ’s ca

r wa s a blue Oldsmobile. Whit e sear ched the car on October 1 2 wi t h h er

co n s en t
. A go o d

d ea l o f w al l b o ar d

d u s twa s o nt h e b ac k

s ea t , wh i ch h ada l ar ge indentation as if a he avy

object had be en lying there
. Whit e took photog raphs of the interior of the
car and of its tires that we re a dmitted in evidence.

Bill Har ris, a loca l tire deale r, testified that the tre ad patter n of the tires on a

ppellant’s mot he r’ s c ar m a tc he d th e patte rn of the tr e a d ma

rk s f ound a t th e sc e ne of the burg lary . H arr is a lso te sti fi e d, ho we ve r, that th is w a s a ve ry c omm on patte rn , mo st o ft e n f

ound on lig ht t ru c k ti re s. Ap pe lla nt’ s te sti mony a t the he ari ng wa s c on sis te nt w iththe state me nt h e g a ve Whit e
a t th e sh e ri ff

’s of fi c e . H e e xpla ine d th e du st i n h is m oth e r’ s c ar by sa y ing that he dr ov e the c a r t o jobs and t h at h e kept a shop vacuum a

nd dry wall tools in the back seat. Appellant denied
c o m m i t t i n g t h e b u r g l ar

y. As the trier

of fa cts at a r evo ca t i o n h ea ri ng , the trial cour t is the sole judge of the
cre dibilit y

of the witnesse s and t he weight of the evidence. Ga rre tt v . S tat e , 619 S.W .2d 172, 174 (Tex. Crim. App. 1981). Appellate r eview of a revocation order is limit ed to deter mining whe ther the t rial court abused its discretion. Car do na v . S tat e , 665 S.W .2d 492, 495 (Tex. Crim. App. 1984). Be cause the dec ision to revoke is committed t o t h e d i s cretion of the trial cour t, we re view the evidenc e pre sented a t t h e hea ring in the light most favor able to the tria l court’s finding s. Id .; see J oh ns on v . S

tat e , 943 S.W .2d 83, 85 (Tex. App.—Houston [1s t Dist.] 1997, no pet.) (holding that application of f

actua l sufficienc y

revie w to probation revoc ations would conflict with trial cour t’s discretion). A p p e l l an th a d r e c e n t l y w o r

k e d i n t h e h o u s e , h e kn e w h o w t o e n t e r i t w i t h o u t a k e y, and he a dmitted that the shoe print fo u n d o n t h e b o x under the window was his. The tire trac ks5

found in the g rass matc hed those on the car appellant regularly drove, and the back seat of this ca r
wa s c ov e re d in wal lb oa

rd du st l ike that in

the re nt h ou se and

ha d a n in de ntatio n a s if

a he a vy a ir
c o mp r e s s o r

h a d b e e nl yi n g t h e r e . W h e na

p p e l l an tw a s i n t e r

v i e w e d o n t h e m o r

n i n g a f t e r t h e b u r g l a r

y, his jeans wer e we t as they would have been if

he had w alked throug h the dewy g rass. Way

mond Pag e testified that a

ppellant tried to sell him an air c ompressor on the night of the burg lary and that t h e y b o t h t r i e d

t o s e l l t h e c o mp r e s s o r

t o D o n a l d

A l l e n . A l l e nc o r

r o b o r a t e d P a g e ’ s t e s t i m o n y, althoug h he could not identify appellant as the m an with Pag e. Viewing this evidenc e in the lig ht
mos t f a vo ra ble to t he tr ia l c ourt ’s fi nd ing , w e c on c lud e tha t th e pr e po nd e ra

nc e of the c re dib le evidenc e cr eate s a reasonable belief that appellant ente red Scott’s re nt house without his permission and committed theft a s alleg ed in t he mot ion to revoke
. Even if we view the evidenc e in a ne utral light, as a ppellant asks us to do, we believe that the court did not abuse its discretion by finding that the alleg ed violation was prove d by a pre pondera

nce of the evidenc e. We overrule the poi nt of er ror a nd aff irm the order

revokingcommunity

supervision.

__________________________________________ David Pury ear , J ustice Be fore Chief J ustice L aw, Justi ces B . A. Smith and Pury ear Affir med Filed: Apr il 21, 2005 Do No t Pu

bli sh