Semier v. State , 674 S.W.2d 911 ( 1984 )

OPINION

EVANS, Chief Justice.

Appellant waived a jury trial and pleaded guilty to the offense of felony theft by worthless checks. The court assessed her punishment at five years confinement, probated, and a $500 fine. This is an appeal from an order revoking appellant’s probation.

As one condition of appellant’s probation, the court ordered that she report to her probation officer, in person, on the day of her plea, October 19, 1982, and thereafter on the third Friday of each month. The court’s order further directed that the appellant make restitution to the complainant in the total amount of $1,476.21, such amount to be paid in $100 monthly installments beginning December 19, 1982, that she pay supervisory fees of $15 per month, and that she pay the $500 fine and court costs of $36 on November 19, 1982.

On February 22, 1983, the State filed its motion to revoke appellant’s probation, alleging that she had violated the conditions of her probation by failing to report to the adult probation department on November 19, 1982, and on the third Friday of each month thereafter, that her restitution payment was $200 in arrears as of February 16, 1983, and that she had not paid any portion of the specified fine, supervisory fees, or court costs.

Prior to the hearing on the motion to revoke, appellant’s mother paid the fine, court costs, and the arrearages in the supervisory fees, as well as a partial payment of $200 on the specified amount of restitution. After the hearing, the trial court found that the appellant had violated the terms of her probation in each of the respects alleged, and the court ordered her probation revoked. However, the court reduced the sentence from five years to three years confinement.

Appellant does not contest the sufficiency of the evidence to support the trial court’s findings that appellant failed to report to her probation officer as directed, the first of the five alleged violations. In her brief she recognizes that when a motion to revoke probation alleges several violations, the court’s order revoking probation will be affirmed if the proof of any allegation is sufficient. Sanders v. State, 657 S.W.2d 817 (Tex.App.—Houston [1st Dist.] 1983, no pet.); e.g., Moore v. State, 605 S.W.2d 924 (Tex.Crim.App.1980). Consequently, even if the evidence were insufficient to support a finding on the other allegations, the error would be harmless.

There is evidence in the record from which the trial court, as the trier of fact, could have inferred that as a result of the initial conversations between appellant and her probation officer, appellant was led to believe that the conditions of her probation were somewhat flexible, and that because of her husband’s illness and financial condition, she would not be required to report in person on the specific dates stated in the court’s order. If the evidence was susceptible of that inference alone and no other conclusion could be drawn, the enforcement of the conditions of probation would likely constitute a denial of due process. See Cardona v. State, 665 S.W.2d 492 (Tex.Crim.App.1984). However, we have decided that this was not the only inference that can be drawn from the evidence.

The trial court could have decided that appellant’s version of the matter was untrue, or at least inaccurate, and that the probation officer said nothing which misled appellant about the conditions of her probation. The trial judge was the sole trier of fact, and it was entirely within her province to decide the credibility of the respective witnesses and the weight to be given their testimony. Ross v. State, 523 S.W.2d 402 (Tex.Crim.App.1975). It is not the prerogative of the reviewing court to substitute its judgment for that of the trial court on such matters.

We hold that there is sufficient evidence in the record to support the trial court’s finding that appellant violated the conditions of her probation by failing to report to the adult probation department as directed in the court’s order. For that reason, the trial court’s order must be affirmed. Moore, 605 S.W.2d 924.

Appellant requests that we reform the findings regarding the allegations of her failure to make payments as required based on insufficient evidence to support those findings. We decline; such action would directly contradict the holdings of the Court of Criminal Appeals requiring affirmance when the proof of any allegation is sufficient. Sanders, 657 S.W.2d at 820.

The judgment of the trial court is affirmed.

LEVY, J., dissenting.

Publish. Tex.R.Crim.App.P. 207.