Eric Alan Moore, Jr. v. State ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00381-CR
Eric Alan Moore, Jr., Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 67109, HONORABLE JOHN GAUNTT, JUDGE PRESIDING
MEMORANDUM OPINION
Eric Alan Moore, Jr. appeals the district court’s judgment adjudicating guilt, revoking
his probation, and sentencing him to six years in prison. He contends the revocation of his probation
was an abuse of the court’s discretion because the victim denied the assault occurred and another
witness’s testimony about the assault was not credible. We will affirm the district court’s judgment.
BACKGROUND
Moore was indicted in 2010 for aggravated assault with a deadly weapon. See
Tex. Penal Code § 22.02. He entered into a plea agreement placing him on deferred-adjudication
probation for ten years. The first condition of his probation was that he “neither commit nor be
convicted of any offense against the laws of the State of Texas.”
On an early morning in 2014, Moore and his girlfriend Jaquilla Scott got into an
argument. Moore kicked in the door of her apartment, and then the altercation moved outside. The
noise from the quarrel and the cries of the couple’s child woke the neighbors. A few of them went
outside and attempted to stop the altercation. One of the neighbors, Peatreia Spells, testified that
she heard another neighbor, Shanta Britton, yelling “Stop hitting her!” Spells grabbed her gun and
placed it in her jacket pocket before stepping outside her apartment. When she saw that Moore had
Scott by the hair and was punching her, Spells threatened to shoot Moore if he hit Scott again. She
then called the police at Scott’s request. After the police arrived, they took pictures of Scott and the
scene of the argument and spoke with Moore, Scott, and neighbors who witnessed the argument.
The neighbors reported that Moore struck Scott, consistent with Scott’s injuries, including
her “busted lip” that officers saw and photographed. Based on the witnesses’ statements and the
officers’ observations, the officers concluded there was probable cause to believe the assault took
place and arrested Moore.
The State subsequently filed a motion to adjudicate Moore’s guilt and revoke
his probation, alleging that he violated it by committing the offense of assault family violence. See
Tex. Code Crim. Proc. art. 42.12, § 5(b) (providing adjudication procedure for violation of
condition of community supervision); Tex. Penal Code § 22.01 (defining offense of assault). At the
subsequent hearing on the motion, Moore pled “not true” to the allegations, and in her testimony
Scott denied that Moore hit her. Three neighbors testified otherwise. At the conclusion of the
hearing, the court found the State’s allegations to be true, revoked Moore’s probation, and sentenced
him. Moore then filed this appeal.
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DISCUSSION
In one issue on appeal, Moore challenges the sufficiency of the evidence supporting
the district court’s judgment, emphasizing Scott’s testimony that he did not assault her and
challenging the credibility of Spells’s testimony.
We review an appeal from a revocation of probation under an abuse of discretion
standard, taking into account the sufficiency of the evidence supporting the basis for revocation.
Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). Abuse of discretion occurs “only
when the trial judge’s decision was so clearly wrong as to lie outside the zone within which
reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).
A trial court abuses its discretion in revoking probation if the State fails to prove by a preponderance
of the evidence that a violation of probation occurred. Cobb v. State, 851 S.W.2d 871, 874
(Tex. Crim. App. 1993). In this context, “a preponderance of the evidence” means “the greater
weight of the credible evidence which would create a reasonable belief that the defendant violated
a condition of his probation.” Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim App. 2006);
see Moore v. State, No. 03-08-00097-CR, 2008 Tex. App. LEXIS 8138, at *3 (Tex. App.—Austin
Oct. 24, 2008, pet. ref’d) (mem. op., not designated for publication).
The degree of proof required to establish the truth of the allegation in a motion to
revoke probation is not the same as a criminal prosecution. Hacker, 389 S.W.3d at 865. This means
that a defendant may be acquitted of a crime and still have his probation revoked based on the
same act because a preponderance-of-the-evidence standard—rather than beyond-a-reasonable-
doubt standard—applies to revocation proceedings. See Barrett v. State, 630 S.W.2d 335, 336-37
(Tex. App.—Houston [14th Dist.] 1982, no writ). We do not engage in a “divide and conquer”
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strategy to evaluate the sufficiency of evidence but consider the combined and cumulative force of
all the evidence before the trial court, id. at 873, viewed in the light most favorable to its ruling,
Mauney v. State, 107 S.W.3d 693, 695 (Tex. App.—Austin 2003, no pet.). The trial judge is the
sole judge of the credibility of the witnesses and the weight to be given to their testimony. Mauney,
107 S.W.3d at 695.
Sufficiency of evidence supporting violation
Moore contends that there is insufficient evidence supporting the district court’s
judgment because Scott testified that Moore did not hit her. Because Scott denied the assault, Moore
asserts the court abused its discretion in finding that the assault occurred. We disagree.
The court heard Scott testify that she did not wish to be at the hearing. She stated that
she lived with Moore, who was her boyfriend and the father of one of her children, and that
Moore cared for her children while she worked. She admitted that she continued to live with
Moore even after their altercation.1 The court also heard an investigating officer2 testify that Moore’s
mother came to the scene and told Scott to tell the police that Moore did not hit her.3 Scott testified
that Moore did not hit her.
1
When the first half of the hearing recessed and before Scott testified, the district court
ordered Moore not to have any contact with Scott until the hearing concluded.
2
Officer Kyle Moore of the Killeen Police Department testified about the investigation. We
refer to him by his title because he has the same last name as appellant.
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The officer also testified that he showed Scott’s injury to Moore’s mother, “And, then,
that’s when she looked at her lip and she was kind of like, okay, well, maybe he messed up.”
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But other evidence at the hearing conflicted with Scott’s testimony, including police
photographs of her taken at the scene and the testimony of her neighbors. Police photographs show
Scott’s facial injury, a “busted” lip. When the prosecutor told Scott, “We have seen your busted lip,”
Scott began to cry. She offered no explanation for her injury. Spells testified that she saw Moore
hold Scott by the hair and repeatedly hit her “in her face and in her head” and that he did not stop
until Spells, without drawing her gun, threatened to shoot him. Britton, another of Scott’s neighbors,
similarly testified that Moore hit Scott in “the face area.” And another of Scott’s neighbors, Gina
Erwin, who did not know Moore or Scott, testified that she heard sounds, opened her apartment door,
and saw “the guy get on top of her and start hitting on her,” “just wailing on her head.” When asked
about this testimony, Scott said she did not know why her neighbors would go to court and tell the
judge that they saw Moore hitting her if it had not happened.
Moore does not challenge the testimony from Britton or Erwin, but he contends that
Spells “embellished” her testimony to justify bringing a gun with her and threatening to shoot him.
However, the district court was entrusted with determining whether the testimony from Scott and
her neighbors was credible and reconciling any conflicts in their testimony. See Hacker, 389 S.W.3d
at 865. After considering the combined and cumulative force of all the evidence, the district court
could have rejected Scott’s denial of the assault as not credible and found that the neighbors’
testimony that Moore hit Scott was credible. See id. at 873. Testimony from Scott’s neighbors also
aligns with the depiction of Scott’s injuries in police photographs.
Viewing the evidence and reasonable inferences therefrom in the light most favorable
to the district court’s ruling, we conclude that the greater weight of credible evidence in this
record supports the court’s reasonable belief that Moore violated a condition of his probation by
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assaulting Scott. As such, the court did not abuse its discretion by revoking Moore’s probation and
adjudicating his guilt. We overrule Moore’s sole issue on appeal.
CONCLUSION
We affirm the district court’s judgment.
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Goodwin and Bourland
Affirmed
Filed: June 24, 2015
Do Not Publish
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