Tommie Loyd Prater v. State ( 2008 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-07-00188-CR ______________________________



TOMMIE LOYD PRATER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 336th Judicial District Court Fannin County, Texas Trial Court No. 21976

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Tommie Loyd Prater appeals from his conviction by a jury for sexual assault of a child with A.C.P. The jury assessed his punishment at twenty years' imprisonment and a $10,000.00 fine. Prater presently has seven other convictions currently on appeal before this Court. ⁽¹⁾    

On appeal, Prater contends the trial court erred in allowing the introduction of hearsay statements through the testimony of Judith Hart, a nurse who examined A.C.P. during her initial hospital visit. Prater argues that her testimony and records were inadmissible because they were hearsay, not made admissible under a medical exception, and that the outcry exception did not apply because Hart was not the outcry witness.

We addressed this issue in detail in our opinion of this date on Prater's appeal in cause number 06-07-00187-CR. For the reasons stated therein, we likewise conclude error has not been shown.

We affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: August 8, 2008

Date Decided: September 15, 2008

Do Not Publish

1. Prater appeals from eight convictions. In cause number 06-07-00187-CR, he appeals from his conviction of indecency with a child (A.C.P.) by sexual contact; in cause numbers 06-07-00188-CR through 06-07-00192-CR, he appeals his convictions of sexual assault of a child (A.C.P.). In each of these cases, Prater was sentenced to twenty years' imprisonment, to run consecutively, and $10,000.00 fines.

Prater appeals his conviction in cause number 06-07-00193-CR of indecency with a child (J.A.P.) by sexual contact. Prater was sentenced in this case to twenty years' imprisonment, to run consecutively, and a $10,000.00 fine.

Prater also appeals his conviction in cause number 06-07-00194-CR of aggravated sexual assault of a child (T.L.P.). He was sentenced to life imprisonment, to run consecutively, and a $10,000.00 fine.

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6) The Probationer . . . failed to restrain from use of alcoholic beverages, narcotic and or illegal drugs . . . in violation of condition (2);

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8) The Probationer . . . failed to restrain from possessing a firearm or deadly weapon or instrument, that can be used to inflict bodily injury in that on or about the 27th day of May, 2000, [T.R.S.] used a pellet gun to shoot the window of a 1992 chevy pickup owned by Marvin Blackwell, in violation of condition (4);

9) The Probationer . . . failed to faithfully attend school each school day during the school year . . . in violation of condition (10).

The trial court's modification of a juvenile disposition is reviewed under an abuse of discretion standard. See In re D.S.S., 72 S.W.3d 725, 727 (Tex. App.-Waco 2002, no pet.); In re H.G., 993 S.W.2d 211, 213 (Tex. App.-San Antonio 1999, no pet.); In re J.L., 664 S.W.2d 119, 120 (Tex. App.-Corpus Christi 1983, no writ). In a probation revocation hearing, the decision whether to revoke rests within the discretion of the trial court. Wester v. State, 542 S.W.2d 403, 405 (Tex. Crim. App. 1976). This discretion is not absolute. Scamardo v. State, 517 S.W.2d 293, 297 (Tex. Crim. App. 1974). The trial court is not authorized to revoke probation without a showing that the probationer has violated a condition of the probation imposed by the court. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987). The burden of proof in a probation revocation hearing is by a preponderance of the evidence. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).

The state's burden of proof on a motion to revoke probation is lower than the burden of proof necessary for criminal conviction. The state need only prove by a preponderance of the evidence that the terms of probation were violated. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Cardona, 665 S.W.2d at 493. "Preponderance of the evidence" has been defined as the greater weight and degree of credible testimony. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 95 (1935); Allen v. State, 786 S.W.2d 738, 741 (Tex. App.-Fort Worth 1989) (op. on reh'g), pet. dism'd, 841 S.W.2d 7 (Tex. Crim. App. 1992); Hill v. State, 721 S.W.2d 953, 954-55 (Tex. App.-Tyler 1986, no pet.); Davenport v. Cabell's, Inc., 239 S.W.2d 833, 835 (Tex. Civ. App.-Texarkana 1951, no writ). It follows that the state is required to establish guilt by the greater weight and degree of credible testimony.

This standard is met when the greater weight of the credible evidence creates a reasonable belief the defendant violated a condition of his or her probation as the state alleged. Martin v. State, 623 S.W.2d 391, 393 n.5 (Tex. Crim. App. [Panel Op.] 1981); Allbright v. State, 13 S.W.3d 817, 819 (Tex. App.-Fort Worth 2000, pet. ref'd). In a probation revocation hearing, the trial court is the sole trier of fact. Jones v. State, 787 S.W.2d 96, 97 (Tex. App.-Houston [1st Dist.] 1990, pet. ref'd). The trial court also determines the credibility of the witnesses and the weight to be given their testimony. Id. It may accept or reject any or all of the witnesses' testimony. Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987). Therefore, we will examine the evidence in the light most favorable to the trial court's order revoking probation. See Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). Any other type of review would effectively attenuate the trial court's discretion.

When the state's proof of any of the alleged violations of probation is sufficient to support a revocation of probation, the revocation should be affirmed. Stevens v. State, 900 S.W.2d 348, 351 (Tex. App.-Texarkana 1995, pet. ref'd). Therefore, we only need to find one allegation where the State proved by a preponderance of the evidence that the terms of probation were violated. Examined in the light most favorable to the trial court's order revoking probation, all of the allegations found true by the trial court that T.R.S. violated his probation were proven by the greater weight of the credible evidence. Since we only need to find one sufficient allegation, we will only discuss one.

Allegation nine alleged T.R.S. failed to faithfully attend school each school day during the school year, in violation of condition ten of his probation. At the hearing on this matter, the assistant principal at Gilmer Junior High testified T.R.S. was absent from school a number of days in January, February, March, April, and all of May 2001. These allegations were not controverted, nor was error as to this allegation contended by T.R.S. on appeal.

We, therefore, find no error and affirm the judgment.

Donald R. Ross

Justice

Date Submitted: March 17, 2003

Date Decided: September 5, 2003