Edwardo Lee Diaz v. State ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00269-CR
EDWARDO LEE DIAZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 09-01032-CRF-272
MEMORANDUM OPINION
Appellant, Edwardo Lee Diaz, appeals the revocation of his community
supervision. In his sole issue, Diaz argues that the trial court abused its discretion in
revoking his community supervision because the evidence supporting revocation is
insufficient. We affirm.
I. BACKGROUND
Pursuant to a plea agreement with the State, Diaz entered a plea of guilty to a
charge of aggravated assault with a deadly weapon. See TEX. PENAL CODE ANN. §
22.02(a)(2) (West 2011). The State waived the deadly weapon finding. The trial court
subsequently sentenced Diaz to ten years’ incarceration, suspended the sentence, and
placed him on community supervision for a term of eight years.
On January 25, 2011, the State filed a motion to revoke Diaz’s community
supervision, alleging that he violated the conditions of his community supervision by
committing a robbery on June 9, 2010. The State later amended its motion to revoke
alleging, in addition to the June 9, 2010 robbery, several other violations of Diaz’s
community supervision, including: (1) a public-intoxication arrest on June 21, 2009; (2)
a conviction for theft of property valued at more than $50 but less than $500 alleged to
have occurred on October 4, 2009; (3) Diaz’s failure to report these arrests to his
supervising officer; (4) Diaz’s failure to pay restitution from November 2009 to July
2010 and supervision fees from December 2009 to July 2010; and (5) Diaz’s failure to
complete 200 hours of community service.
On May 24, 2011, the trial court conducted a hearing on the State’s motion to
revoke. At the hearing, Diaz pleaded “not true” to all of the allegations contained in the
State’s motion to revoke. After hearing testimony from several witnesses, the trial court
found all of the allegations contained in the State’s motion to revoke to be true and
sentenced Diaz to seven years’ imprisonment in the Institutional Division of the Texas
Department of Criminal Justice. This appeal followed.
II. STANDARD OF REVIEW
We review a trial court's decision to revoke a defendant's community
supervision under an abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763
Diaz v. State Page 2
(Tex. Crim. App. 2006). The State's burden of proof is by a preponderance of the
evidence, and proof of a single violation of community supervision is sufficient to
support revocation. Id. at 763-64; see Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App.
2009). The state meets its burden when the greater weight of the credible evidence
creates a reasonable belief that the defendant violated a condition of community
supervision as alleged. See Rickels, 202 S.W.3d at 764; see also Jenkins v. State, 740 S.W.2d
435, 437 (Tex. Crim. App. 1983).
In a hearing on a motion to revoke community supervision, the trial court is the
sole trier of fact and is also the judge of the credibility of the witnesses and the weight to
be given their testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980); see
Trevino v. State, 218 S.W.3d 234, 240 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
Moreover, on appeal, we examine the evidence in the light most favorable to the trial
court's ruling. See Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008) (stating
that the reviewing court is to defer to the trial court's resolution of disputed facts and
reasonable inferences that can be drawn from those facts); Garrett v. State, 619 S.W.2d
172, 174 (Tex. Crim. App. [Panel Op.] 1981); Duncan v. State, 321 S.W.3d 53, 57 (Tex.
App.—Houston [1st Dist.] 2010, pet. ref'd); see also Pinon v. State, No. 12-10-00400-CR,
2011 Tex. App. LEXIS 7332, at *3 (Tex. App.—Tyler Sept. 7, 2011, no pet.) (mem. op., not
designated for publication).
III. ANALYSIS
In his sole issue on appeal, Diaz contends that the trial court abused its discretion
in revoking his community supervision. Specifically, Diaz argues that the record does
Diaz v. State Page 3
not contain sufficient evidence to demonstrate that he: (1) participated in the alleged
June 9, 2010 robbery; (2) failed to pay restitution and community-supervision fees; and
(3) failed to complete his community service.
However, in his brief, Diaz neither references nor challenges the State’s
allegations pertaining to the June 21, 2009 public-intoxication arrest and the theft
conviction.1 As such, we can uphold the trial court’s revocation of community
supervision on those unchallenged grounds. See, e.g., Moore v. State, 605 S.W.2d 924, 926
(Tex. Crim. App. 1980); Castro-Marquez v. State, No. 14-11-00314-CR, 2011 Tex. App.
LEXIS 10068, at **5-6 (Tex. App.—Houston [14th Dist.] Dec. 22, 2011, no pet.) (mem. op.,
not designated for publication); Ferris v. State, No. 01-09-00676-CR, 2011 Tex. App.
LEXIS 1232, at **5-6 (Tex. App.—Houston [1st Dist.] Feb. 17, 2011, no pet.) (mem. op.,
not designated for publication) (“Thus, in order to prevail on appeal, the defendant
must successfully challenge all of the findings that support the revocation order.”).
Because Diaz does not challenge all of the allegations made by the State in its motion to
revoke, we cannot say that the trial court abused its discretion in revoking Diaz’s
community supervision.2 See Smith, 286 S.W.3d at 342; Rickels, 202 S.W.3d at 763; Moore,
1 The record contains a copy of Diaz’s theft conviction, which transpired after he was placed on
community supervision for the underlying aggravated assault with a deadly weapon charge. Diaz did
not object to the admission of this judgment into evidence.
2 And, even if Diaz had challenged all of the grounds upon which the revocation was based, the
record contains uncontroverted testimony from Vicki Van Liere, an adult probation officer for Brazos
County, who explained Diaz’s community supervision conditions and testified that Diaz failed to
complete any of his community-service hours, pay $6,382.96 in court-ordered restitution, or report his
arrests for theft and public intoxication to his probation officer—all of which supported revocation of
Diaz’s community supervision. See Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009); Rickels v.
State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); see also Ferris v. State, No. 01-09-00676-CR, 2011 Tex.
App. LEXIS 1232, at **13-14 (Tex. App.—Houston [1st Dist.] Feb. 17, 2011, no pet.) (mem. op., not
Diaz v. State Page 4
605 S.W.2d at 926; see also Castro-Marquez, 2011 Tex. App. LEXIS 10068, at **5-6; Rollins,
2011 Tex. App. LEXIS 8974, at *3. Diaz’s issue is overruled.
IV. CONCLUSION
Having overruled Diaz’s sole issue on appeal, we affirm the judgment of the trial
court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed March 14, 2012
Do not publish
[CR25]
designated for publication) (affirming a revocation of community supervision based on appellant’s plea
of true to the allegation that he failed to complete his community-service requirements).
Diaz v. State Page 5