### 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. 03-10-00813- CR

Lucian o Reye s Jaim es, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 390 TH JUDICI AL DISTRICT NO. D-1 -DC- 05- 3022 70, H ONO RAB LE JULIE H . K OCUREK , JUDGE P RESIDING

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

The district court g rante d the State’s motion to re v o k e L uciano Rey es J aimes’s community supervision, adjudicate d him gu i lty of t he offense of ag g ravated assault with a deadly

wea pon, and sentenc ed him to 18 y ear s’ imprisonment. I n his sole point of err or, J aimes asser ts that the district court a

bused its discretion in revoking his community supervision. We will affirm the district court’s judg ment.

BACK GR OUND

I n October 2005, J aimes shot his former wife’ s curr ent husband afte r an alterc ation rega rd i n g t he car e of J aimes’s daug hter. I n Fe bruar y 2007, J aimes pleade d g uilty to ag g ravated assault with a deadly wea po n , and the district court place d J aimes on defe rre d adjudication community supervision for seven y ear s. The conditions of J ai me s ’ s c o mm u n it y s u p e r v is io n inc luded restitution in the amount of $22,720.53, with monthly pay ments of $300 un t i l t h e total was paid,pay

ment of a $500 fine, pay

ment of a supervision fe e o f $ 6 0 p er month, and pay ment of a Crime Stoppers Fe e of $30. J aimes was also require d to serve 90 day s in the Travis County J ail and to repor t to his community supervision offic er on the second Wedne sday of ea ch mont h at 9: 00 a.m. and at a ny subsequent time as instructe d by that office r. On Aug ust 9, 2007, the State filed a motion to proce ed with an adjudication of g uilt. The State alleg ed that J aimes violated the terms and conditions of his probati o n b y (1 ) failing to repor t to his c ommunity supervision office r in the month of J uly 2007; ( 2) failing to pa y $58.63 of the $500 fine; (3) failing to pay $58.64 in court costs; (4) failing to pay $403.64 owed for supervision fee s; (5) failing to pay $1,759.09 of the restitution owed; and (6) fa i l i n g to pay the $30 Crime Stoppers fee

. The district court issued a war rant of arr est, which was executed in Aug ust 2010 when J aimes was arr ested in Austin. At the November 2010 hear ing on the motion to adjudicate , J aimes pleade d not true to the State’s alleg ations. The district court then proce eded to hear evidenc e from the State. At the conclusion of the hear ing, the district court g rante d the motion to adjudicate g uilt and sente nced Jaimes to 18 y ear s’ imprisonment. This appeal f ollowed.

DISCUSSIO N We revie w a trial court’s decision to revoke probation for abuse of discretion. Ricke ls

v. State , 202 S.W .3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State , 665 S.W .2d 492, 493 (Tex. Crim. App. 1984). Abuse of discretion occur s “only when the trial judge ’s decision was so clea rly wrong as to lie outside the zone within which rea so n ab l e m i n ds might disag ree .” Cantu v. State , 842 S.W .2d 667, 682 (Tex. Crim. App. 1992). I n probation re vocation proc eeding s, the State has the burden of proving a violation of the ter m s o f p ro bation by a preponde ranc e of the evidenc e. 2Ricke ls , 202 S.W .3d at 763-64; Cobb v. State , 851 S.W .2d 871, 873 (Tex. Crim. App. 1993); W illis

v. State , 2 S.W .3d 397, 399 (Tex. App.—Austin 199 9 , n o p et

. ). The State satisfies this standard when the g reater weig ht of the cre dible evidenc e befor e the c ourt cre ates a rea sonable belief that a condition of probation has bee n violated as a lleg ed. Ricke ls , 202 S.W .3d at 764; Jenk ins v. Stat e , 740 S.W .2d 435, 437 (Tex. Crim. App. 1983). I f the State fails to meet its burden of proof, the trial court abuses its discretion in revoking community supervision. Cardona , 665 S.W .2d at 4 9 3-94; Cherry v. State , 215 S.W .3d 917, 919 (Tex. App.—For t Worth 2007, pet. ref’d)

. The trial court is the judge of the cr ed i b i l i t y of the witnesses and the weig ht to be g iven their testimony

. Gar rett v. State , 619 S.W .2d 172, 174 (Tex. Crim. App. 1981); Mauney

v. State , 107 S.W .3d 693, 695 (Tex. App.—Austin 2003, no pet.). We view the evidenc e prese nted in a revoc ation proce ed i n g in the light most favor able to the trial court’s ruling

. See Garrett , 619 S.W .2d at 174; Mauney , 107 S.W .3d at 695. When more than one violation of the conditions of community

supervision is found by the t rial court, proof by a prepondera nce of the evidenc e of any one of the alleg ed violations is sufficie nt t o s u pport a revoc ation order

. Moore v. State , 605 S.W .2d 924, 926 (Tex. Crim. App. 1980); Leach v. State , 170 S.W .3d 669 , 672 (Tex. App.—For

t Worth 2005, pet. ref’d)

. Her e, one of the State’s alleg ations was that J aimes failed to repor t to community supervision for the month of J uly 2007. At the hear ing, the State prese nted evidenc e to support the alleg ation. Kathy Holt, an employ ee of the Travis County Communi ty Supervision and Correc tions Depa rtment, testified that she signe d the d o cu m ent setting forth the conditions of community supervision for J aimes in Fe bruar y 2007. She testified t h at the conditions wer e revie wed with

3J aimes. The document includes an ac k n o wl ed gment, signe d by J aimes, st ating that he rece ived a

copy of the conditions of community supervision, that they wer e rea d to him by his attorney , and that he understood and ag ree d to obey them

. On e o f t he conditions require d J aimes to repor t to his community supervision office r on the second Wednesday of each m o n t h at 9:00 a.m. and at any subsequent time as instructed by that office r. Holt testified that while J aimes did repor t for his initial office visit on March 1, 2007, he did not re port afte r that, including in J uly 2007. Holt fu rt h er t es t ified that J aimes repor ted to jail to serve his 90 day s on Marc h 9, 2007, and at that time “ther e was an I CE or I NS hold place d on him.” Holt testified that she believed that J aimes was deporte d “during that time.” Holt also confirme d that althoug h J aimes was arr ested in Austin in Aug ust 2010, and had there fore clea rly ret u rn ed t o the United States, he had never contac ted hi s community supervision offic er. The re w as no evidence reg arding when J aimes was actua lly deporte d, nor was there any evidenc e reg arding how or when J aimes returne d to the United States. J aimes did not testify at the hear ing. On this rec ord we cannot say that the trial court abused its discretion in concluding that the State met its burden of proving that J aimes failed to repor t to his community

supervision offic er in July 2007 and that Jaimes failed to disprove this alleg ation. J aimes ar g ues that the e vidence does not suppor t the revoc ation order

beca use “the evidenc e was clea

r that [J aimes] ha d been in the custody of the Travis County Sheriff with a n I CE d et ai n er and that [J aimes] would be taken into custody of I CE upon completion of his 90 d ay commitment and had in fa ct bee n taken into custody .” Jaimes contends that this case is similar to Vidal v. State , 167 S.W .3d 897 (Tex. App.—Austin 2005, n o pet.). I n Vidal , we reve rsed a

revoc ation order afte r having conclude d that the State failed to prove that the defe ndant had violated

4a cond i t i on of supervision direc ting him to repor t to his supervision office r when and if he was rele ased from I

NS custody and returne d to the United States. Id. at 898. We held that this provision modified the monthly repor ting require ment, and conseque n t l y t h e State had to prove more than simply that the defe ndant failed to repor t, but also that he failed to repor t monthly “upon his return to the United States.” Id. at 899. Be cause there was no evidenc e of when Vidal was rele ased from I NS cus t o d y o r when he had returne d to the United States, we held that the State did not meet its burden of proving by a preponde ranc e of the evidenc e that Vidal failed to repor t to his supervision office r during a month in which he was require d to—i.e., afte r his rele ase from I NS custody and afte r having returne d to the United States. Id

. The prese nt case is distinguishable beca use the condition J aimes is alleg ed to have violated was one requiringhim to report monthly , not one re quiring him to repor t monthly only after he was outside I NS or I CE custody and had returne d to th e Un i ted States. Consequently , the State in the prese nt case was not require d to prove that J aimes was either outside of I

NS or I CE custody and/or in the United States in J uly 2007 in order for his failure to repor t to be a violation of one of the conditions of his community supervision. J aimes also appea

rs to argue that the evidenc e establishes that he could not repor t to his community supervision office r in J uly 2007 beca use he was either in I CE custody or, having been deporte d, was o u t s ide the country

. There is no conclusive evidenc e, howeve r, that J aimes was outside the country in J uly 2007. The evidenc e prese nted was simply that J aimes repor ted to jail on Marc h 9, 2007 to serve his 90 day s’ imprisonment and that there was an I CE or I NS hold place d on him at that time. Even assuming J aimes was deporte d on J une 7, 2007, af ter having se rved his 90 day s of confinement, he could have returne d to the Unit ed S tates at any time there afte r, i ncluding

5in J uly 2007. J aimes, who was prese nt at the revoc ation hear ing, did not testif y as to his wher eabouts during J uly 2007, and the evidenc e does not e stablish that he was una ble to repor

t to his community supervision office at that time. The require ment that J aimes repor t to his community supervision office r on the second Wed n es d ay of eac h month, including J uly 2007, was a clea r, expli cit, and unambig uous term of his community supervision, which he acknow ledg ed was rea d to him by his attorney

and which he ag ree d to obey

. On this rec ord, viewing the evidenc e in the light most favor able to the district court’s ruling , we c onclude that the State satisfied its burden to pr ove by a preponde ranc e of the evidenc e that J aimes failed to repor t to his community supervision office r i n J u l y 2007 as ordered. As this g round is sufficie nt to support the district court’s order revoking J aimes’s community supervision, we need not addre ss the State’s alleg ations of other violations of the conditi ons of hi s community supervision. We overr

ule J aimes’s sole point of e rror .

CONCLUSION We affir m the judgme nt of the district court.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Affir med Filed: F ebrua

ry 10, 2012 Do Not Publish
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