Marcus Lee Rocha v. State of Texas ( 2001 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Marcus Lee Rocha

Appellant

Vs.                   No.  11-00-00291-CR C Appeal from Scurry County

State of Texas

Appellee

This is an appeal from an order revoking appellant=s community supervision.  Appellant was originally convicted by a jury of aggravated assault and punishment was assessed at five years confinement.  The imposition of punishment was suspended, and appellant was placed on community supervision for five years.  The State filed a motion to revoke appellant=s community supervision on January 6, 2000, alleging that appellant violated four conditions of his community supervision.  On March 13, 2000, the trial court entered an order amending the terms of appellant=s community supervision.  In the amended terms, the trial court ordered appellant to Aenter and participate in the Community Supervision and Corrections Jail Work Program (Orange Crew) for a period of FOUR (4) months.@  The order stated that appellant was required to follow the rules of the work program and of the Scurry County Jail.  On June 29, 2000, the State filed a motion to revoke appellant=s community supervision, alleging that appellant failed to comply with the terms and conditions of his community supervision that he not commit an offense against the laws of the State and that he participate in the work program for four months. After a hearing on the motion, the trial court found that appellant had violated the terms and conditions of his community supervision, revoked appellant=s community supervision, and sentenced appellant to five years confinement.  We affirm.

In his first issue on appeal, appellant contends that the State failed to prove by a preponderance of the evidence that he violated the terms and conditions of his community supervision.  The trial court found that appellant violated the terms of his community supervision in that he:

[D]id fail to obey the laws of the State of Texas and by causing bodily injury to Toby Zamora by hitting him in the mouth with his fist; [appellant] did fail to complete a period of Four (4) months in the Community Supervision and Corrections Jail Work Program, by being negatively terminated from the program; [appellant] did fail to obey the rules of the Scurry County Jail by fighting.

In a community supervision revocation hearing, the State has the burden of proving by a preponderance of the evidence that a condition of community supervision has been violated.  Jenkins v. State, 740 S.W.2d 435 (Tex.Cr.App.1983).  The trial court is the trier of fact, and it determines the weight and credibility of the testimony.  Garrett v. State, 619 S.W.2d 172 (Tex.Cr.App.1981).  Appellate review of an order revoking community supervision is limited to the issue of whether the trial court abused its discretion. Flournoy v. State, 589 S.W.2d 705 (Tex.Cr.App.1979).  Proof of one alleged violation is sufficient to support an order revoking community supervision.  McDonald v. State, 608 S.W.2d 192 (Tex.Cr.App.1980); Taylor v. State, 604 S.W.2d 175 (Tex.Cr.App.1980).

At the hearing on the motion to revoke community supervision, David Tate, the Work Program Coordinator for the Adult Probation Office, testified that on May 9, 2000, he was supervising appellant, Adam Viscano, and Toby Zamora as they were filling a hole with dirt after a water leak had been repaired.  Tate stated that they were hauling some dirt off and that, as Zamora returned to the area, he and appellant were Amouthing@ at each other.  Tate said that he then looked up and saw appellant hit Zamora in the mouth.  Tate grabbed Zamora and pulled him away and then took appellant into the jail and placed him in the Aholding tank.@

Tate further testified that appellant was terminated from the work program and placed Aback into population.@  Tate stated that, at the time of the incident, the work program followed the Scurry County Jail Rules and that appellant received a copy of those rules at the time he was booked into the jail.  Tate stated that it was a violation of the Scurry County Jail Rules to fight.

Zamora testified that on May 9, 2000,  he was an inmate at the Scurry County Jail as part of the work program.  Zamora testified that, on that day while they were working at the jail, appellant Asucker-punched@ him. 

Appellant testified at the hearing that, on the day of the incident, he was shoveling dirt into a wheelbarrow and Zamora was hauling it off.  Appellant stated that Tate told them they could go in early if they finished their work early.  Appellant told Zamora to Ahurry up,@ and Zamora grabbed appellant=s shovel out of his hand giving appellant a blister.  Appellant stated that he hit Zamora and that it Awas like a reaction.@ Appellant further testified that he did not receive a rule book from the Scurry County Jail until two weeks before the revocation hearing. 

Appellant contends that the State failed to prove by a preponderance of the evidence Athe absence of an accidental act@ when he hit Zamora, appellant=s negative termination from the work program, and his failure to comply with the jail rules. The trial court heard evidence that appellant intentionally and knowingly hit Zamora in the mouth.  Tate testified that, as a result of appellant fighting with Zamora, he was negatively terminated from the work program.  The trial court also heard evidence that appellant received a copy of the jail rules when he was booked into the jail and that fighting was a violation of those rules.  Appellant has not shown that the trial court abused its discretion in revoking his community supervision.  Appellant=s first issue on appeal is overruled.

In his second issue on appeal, appellant complains that the trial court erred in refusing to allow his court-appointed counsel ten days to prepare for the hearing, citing TEX. CODE CRIM. PRO. ANN. art. 1.051(e) (Vernon Supp. 2001) as authority.  The record shows that, on the day of the hearing, appellant=s attorney, Lealand Greene, appeared and stated that he had received notice of the hearing two days before and that that is why he appeared but that he had not been employed to represent appellant.  Greene stated that he had talked to appellant on two or three occasions and told appellant his fee but that appellant had not been able to pay him to appear on his behalf.

The trial court informed Greene that appellant had indicated at an earlier docket call that he had employed Greene to represent him.  The trial court attempted to appoint an attorney for appellant, but he insisted that Greene had been hired to represent him.  The prosecutor stated that she had notified Greene of the hearing and that, when she was not told otherwise, she assumed Greene was representing appellant.  The prosecutor stated that she had seven witnesses prepared to testify at the hearing.

The trial court then appointed Greene to represent appellant.  Greene requested ten days to prepare for the hearing and indicated that he had not reviewed the motion to revoke.  The trial court overruled appellant=s objection and proceeded with the revocation hearing.

Article 1.051(e) states that an appointed counsel Ais entitled to 10 days to prepare for a proceeding.@ However, TEX. CODE CRIM. PRO. ANN. art. 42.12 (Vernon Supp. 2001) governs community supervision and revocation procedures.  Article 42.12, section 21(d) provides that a defendant has a right to counsel at a revocation hearing.  Article 42.12, section 21(d) does not require that counsel at a revocation hearing be provided ten days to prepare for the hearing.  The Court of Criminal Appeals has held that, absent a showing of harm,  nothing in Article 42.12 requires ten days of preparation for a revocation hearing.  Detrich v. State, 545 S.W.2d 835 (Tex.Cr.App.1977); Hill v. State, 480 S.W.2d 200 (Tex.Cr.App.1971), cert. den=d,  409 U.S. 1078 (1972); see and compare Rojas v. State, 943 S.W.2d 507 (Tex.App. - Dallas 1997, no pet=n).

Appellant admitted at the revocation hearing that he hit Zamora.  The record shows that, as a result of his actions, appellant was terminated from the work program, a violation of the terms and conditions of his community supervision.  Appellant has not shown that he was harmed by his counsel not having ten days to prepare for the hearing.  Appellant=s second issue on appeal is overruled.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

November 15, 2001 

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.