Honofre Soto v. State ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-99-00596-CR



Honofre Soto, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT NO. CR93-0479-A, HONORABLE DICK ALCALA, JUDGE PRESIDING

Appellant Honofre Soto appeals the order of the district court revoking his probation. The motion to revoke alleged that appellant used and possessed alcohol during the probationary period. Finding that appellant failed to abide by the terms and conditions of his probation, the trial court revoked appellant's probation and sentenced him to four years imprisonment. In a single issue, appellant contends that the trial court abused its discretion in revoking his probation because there is no evidence that he used alcohol in addition to possessing it as alleged in the State's motion. We affirm the order revoking probation.

In 1993, appellant was placed on deferred adjudication probation after he was convicted of possession of cocaine. Appellant's probation was subsequently revoked and he was sentenced to five years imprisonment which was probated. The terms of his probation prohibited his use or possession of alcohol. On December 13, 1998, appellant's probation officer observed him leaving a convenience store with beer. The State filed a motion to revoke his probation, alleging that appellant "on or about the 13th day of December, 1998, used and possessed alcohol, and said use and possession of alcohol was not upon the prescription of a reputable licensed physician." Appellant pleaded not true to these allegations.

At the revocation hearing, the probation officer testified that, when he approached appellant leaving the convenience store with beer, appellant told him that he was buying beer for someone else. Appellant testified on his own behalf that he lived with his ex-wife and her boyfriend. Because the boyfriend did not have his wallet, appellant agreed to buy beer for them. Appellant's ex-wife testified that she sent appellant to the store to buy beer for her boyfriend and that appellant was not buying the alcohol for his own use. Although appellant admitted that he possessed alcohol, he contends on appeal that the State failed to carry its burden to show that he used alcohol.

The State shoulders the burden of proof in a probation revocation hearing. See Battle v. State, 571 S.W.2d 20, 21-22 (Tex. Crim. App. 1978). To satisfy this burden, the State must prove by a preponderance of the evidence that the probationer violated a condition of probation as alleged in the motion to revoke. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). When a defendant attacks the sufficiency of the evidence supporting the revocation, we review the order revoking probation under an abuse of discretion standard. See Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In conducting our review to determine whether the evidence is sufficient to support revocation, we view the evidence in the light most favorable to the trial court's ruling. See Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981).

Appellant challenges the sufficiency of the evidence supporting the allegation that he possessed and used alcohol in December 1998. By his own testimony, appellant admitted to the purchase of alcohol. Because the evidence clearly establishes that he possessed alcohol, his sole contention on appeal is that the State is required to prove both use and possession as alleged in the State's motion. We disagree.

It is undisputed that no evidence was presented to show that appellant actually consumed the alcohol. An indictment, however, may allege different ways of committing an offense in the conjunctive. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991); Pinkerton v. State, 660 S.W.2d 58, 62 (Tex. Crim. App. 1983). Proof of either use or possession, therefore, is sufficient; the court need not consider whether the evidence is also sufficient to prove the alternative theory. See Kitchens, 823 S.W.2d at 258. Moreover, the pleadings in a motion to revoke need not meet the particularity requirements of an indictment. See Mitchell v. State, 608 S.W.2d 226, 228-29 (Tex. Crim. App. 1980). A motion to revoke probation must simply afford the probationer due process by fair notice of the alleged probation violation so he can prepare a defense. See Labelle v. State, 720 S.W.2d 101, 103 (Tex. Crim. App. 1986); see also Bradley v. State, 564 S.W.2d 727, 729 (Tex. Crim. App. 1978) (procedural and evidentiary requirements are not enforced as strictly in revocation hearing). Proof that appellant either used or possessed alcohol is therefore sufficient.

When there is sufficient evidence to support a finding that the probationer has violated a condition of community supervision, the trial court does not abuse its discretion in revoking supervision. See Cardona, 665 S.W.2d at 493. Proof of any alleged violation of a condition is sufficient to support revocation. See Moses v. State, 590 S.W.2d 470, 470 (Tex. Crim. App. 1979).

We hold that the district court did not abuse its discretion in revoking appellant's probation. We find the evidence presented to the court was sufficient to prove, by a preponderance of the evidence, that appellant violated a condition of his probation. Accordingly, we overrule appellant's issue and affirm the district court's order.

Jan P. Patterson, Justice

Before Justices Jones, Yeakel and Patterson

Affirmed

Filed: August 10, 2000

Do Not Publish

ence store with beer, appellant told him that he was buying beer for someone else. Appellant testified on his own behalf that he lived with his ex-wife and her boyfriend. Because the boyfriend did not have his wallet, appellant agreed to buy beer for them. Appellant's ex-wife testified that she sent appellant to the store to buy beer for her boyfriend and that appellant was not buying the alcohol for his own use. Although appellant admitted that he possessed alcohol, he contends on appeal that the State failed to carry its burden to show that he used alcohol.

The State shoulders the burden of proof in a probation revocation hearing. See Battle v. State, 571 S.W.2d 20, 21-22 (Tex. Crim. App. 1978). To satisfy this burden, the State must prove by a preponderance of the evidence that the probationer violated a condition of probation as alleged in the motion to revoke. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). When a defendant attacks the sufficiency of the evidence supporting the revocation, we review the order revoking probation under an abuse of discretion standard. See Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In conducting our review to determine whether the evidence is sufficient to sup