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

NO. 03-0 8 -00 128 -CR

Cl ive Ca r so n P e ac oc k , A ppe lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF B ELL COUNTY , 27TH JUDICIAL DISTRICT NO. 5763 9 , HO NORAB LE JO E CARROLL , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N
I n J anuar

y 2006, appellant Clive Carson Pea cock ple aded gu i l t y to felony driving while intox icated. See T ex . P en al Code Ann. § 49.04(a ) (West 2003), § 49.09(b) (2) (West Supp. 2007). Following the plea ba rg ain, the d i s t rict cour

t assessed punishment at fi ve y e ars ’ imp ri so nme nt, su sp e nd e d imp os iti on of se nte nc e , and pla c e d a pp e lla nt on commun ity supervision for te n y ear s. I n J anuar y 2008, afte r a hear ing on the State’s motion to revoke, the c ourt revoke d supervision and imposed sente nce. We a ffirm this order
.

Appellant conte nds that the trial cour t abused its discr etion when it imposed sentenc e by consideringan alleg ed violation of the conditions of supervision that was not prove d by the State. T h e m o t i o nt o r e v o k e a l l e g e d t h a t a p p e l l an t : ( 1 ) c o m m i t t e d

a s u b s e qu e n to f

f e n s e b y i n t e n t i o n a l l y, knowing ly , or re cklessly

causing b o d i l y i n

j ury to Mary J ane B uswell, a membe r of his family or ho us e ho ld, by str iki ng he r ab ou t the he a d an d fa c e ; and (2 ) fa ile d to abs ta in fr om t he us e of a lc oh oli c2

beverage s. At the revoc ation hear ing, a ppellant pleade d true to the sec ond alleg ation and
no t tr ue to t he fi rs t. No lanv ill e Pol ic e Of

fi c e r Wi lli am Ch and le r t e sti fi e d th a t he wa s d is patc he d to
a pp e lla nt’ s r e sid e nc e fo r “ a

vio le nt d ome sti c in p ro g re ss. ” On his wa y , h e wa s n oti fi e d th a t B us we ll, who the off

icer k n ew fr o m prior conta cts, was at another loc ation. Chandler we nt to this other addre ss and found Buswe ll c rying and fra ntic. She had small c uts on her fac e, and blood on her f ace and body . Particles of f

ood wer e in her

hair. S he appear ed to have been drinking. Chandler then went to appe llant’s residenc e and spoke to him. Appellant had spots of blood on his pants, and he appea red to have been drinking
. The house was in disa rra y , and the of

fice r found a

plate with blood and hair on it. W hen Chandler

asked a bout Buswe ll’s injuries, appellant said that “a plate might have hit Ms. B us we ll ove r t he he a d a nd a ft e r s he ha d ma de him

ma d. ” As ke d if

B us we ll l ive d w ith appellant, Chandle r answe red, “ As far as my knowledg e, y es, ma’a

m.” At the conc lusion of the hear ing, the court announce d that it f ound that appellant ha d consumed a lcoholic beve rag es and ha d rec klessly ca u s ed b o d i l y

injury to a family

member. O ne month later, af

ter rece iving a

prese ntence repor

t and hea ring testimony

by appellant’ s daug hter, the court imposed the f

ive-y ear prison term orig inally

assessed. Appellant’s plea

of true t o t h e alleg ation that he fa iled to abstain from the use of alcoholic be vera g es wa s sufficient to prove that alleg ed violation. Se e Col e v . S tate , 578 S.W .2d 127, 128 (Tex. Crim. App. 1979). Proof of a sing l e violation is sufficient to support a re vocation order
. Sa nc he

z v . S tate , 603 S.W .2d 869, 871 (Tex. Crim. App. 1980). Appellant ther efor e does not contend that the e vidence fails to support the court’s de cision to revoke his super vision. I nstead, he3

argues that the a ssault alleg ation was not prove d and that the court should not have considere d it at t h e s e n t e n c i n g p r o c e e d i n g . A p p e l l an t a s s e rt s t h a t t h e S t a t e f a i l e d t o p r o v e t h a t h e a c t e d r e c k l e s s l y, that Buswe ll suffere d a bodily injury , or that B uswell was a member of

his family

or household. Whether or not the State pr oved that B uswell was a member of

appellant’ s family

or household, the evidence is clearly sufficie nt to support a finding that appellant struc k Buswe ll on the head w ith a dinner plate , cutting her fa ce. I n assessing punishment, the trial court may consider a

ny
matte r i t dee ms r e le va

nt t o s e nte nc ing , in c lud ingoth e r c ri me s o r b a d a c ts b y the de fe nd ant. Tex. Code Crim. P roc. A nn. art. 37.07, § 3(a )(1) (West Supp. 2 0 0 7 ). I f the c ourt consider ed appellant’ s conduct on the nig ht in question at the sentencinghear ing, the re w as no er ror. Th e so le iss ue is o verrul ed, an d th e or de r r e vo kin g c omm un ity supervision is affir

med.

__________________ _ _ _ _ _ _ _ __________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: June 20, 2008 Do No t Pu

bli sh