Vernon Sam Woodard v. State ( 2004 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Vernon Sam Woodard

Appellant

Vs.                   No. 11-03-00147-CR -- Appeal from Dallas County

State of Texas

Appellee

This is an appeal from a revocation of community supervision.  The trial court originally convicted Vernon Sam Woodard, upon an open plea of nolo contendere, of the offense of possession with intent to deliver cocaine.  The trial court assessed appellant=s punishment at confinement for 10 years and a $1,500 fine but ordered appellant to participate in a state boot camp program under TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 8 (Vernon Pamph. Supp. 2004 - 2005).  The trial court subsequently suspended the imposition of the sentence and placed appellant on community supervision for 10 years.  The State later moved to revoke appellant=s community supervision.  The trial court granted the motion, revoked appellant=s community supervision, and assessed his punishment at confinement for 10 years.  We affirm. 

In his sole point of error, appellant contends that the State failed to prove that he delivered cocaine to AJ. Jackson@ as alleged in the motion to revoke.  Under this point of error, appellant also asserts that his conviction for delivery of cocaine to AT. Jackson@ was not a final conviction and, therefore, could not have been used as a basis to revoke his community supervision.^[1]

We review an order revoking community supervision under an abuse of discretion standard.  Cardona v. State, 665 S.W.2d 492, 493 (Tex.Cr.App.1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex.Cr.App.1983). At a revocation hearing, the State bears the burden of proving by a preponderance of the evidence that the defendant violated the terms and conditions of his community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Cr.App.1993).  Proof of any one of the alleged violations of the conditions of community supervision is sufficient to support a revocation order.  Moore v. State, 605 S.W.2d 924, 926 (Tex.Cr.App.1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Cr.App.1980).  At a revocation hearing, the trial court is the sole judge of the credibility of the witnesses and of the weight to be given their testimony; and, on appeal, the evidence must be viewed in the light most favorable to the trial court=s ruling.  Cardona v. State, supra at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex.Cr.App.1981). 

At the hearing on the motion to revoke, the State specifically Areoffer[ed] the evidence heard during the course of the jury trial@ in which appellant was being tried for delivery of cocaine.   The record from the jury trial shows that Officer Tanya Jackson was working undercover on the afternoon of September 12, 2002.  Officer Jackson testified that she walked up to the chain link fence at 3507 Packard Street in Dallas and yelled:  AHey.@ Appellant walked down the steps from the residence and over to the fence.  Appellant asked Officer Jackson what she wanted.  Officer Jackson told appellant that she wanted Athree quarters,@ which meant $75 worth of crack cocaine. Appellant said that he would have to go inside and Acut it up.@  According to Officer Jackson, appellant went inside and returned a couple of minutes later with three loose rocks of crack cocaine.  Appellant handed Officer Jackson the cocaine, and she gave him $80. Appellant then went inside to get Officer Jackson=s change and returned with a $5 bill. Officer Jackson left with the cocaine and walked to the covert vehicle where another officer was waiting for her. They took the cocaine, field tested it, sealed it in a bag, and checked it into the property room.  The next day, appellant was arrested at the same residence pursuant to a warrant. 

We hold that, although the record shows that appellant purchased cocaine from Officer Tanya Jackson, as opposed to AJ. Jackson,@ the evidence is sufficient to prove by a preponderance of the evidence that appellant violated condition AA@ of his community supervision by committing an Aoffense against the laws@ of this state.   See Fuller v. State, 73 S.W.3d 250, 252-54 (Tex.Cr.App. 2002)(evidence was sufficient to support the conviction even though the State failed to prove the victim=s name exactly as alleged in the indictment). Furthermore, the variance in the officer=s name was not a fatal variance and did not surprise or prejudice appellant.  See Moore v. State, 11 S.W.3d 495, 499-500 (Tex.App. - Houston [14th Dist.] 2000, no pet=n); Dittoe v. State, 935 S.W.2d 164, 165 (Tex.App. - Eastland 1996, no pet=n). The trial court did not abuse its discretion in revoking appellant=s community supervision. 

Appellant also attacks the revocation by asserting that it was based upon a conviction that was not final.  We disagree. The record clearly shows that the State re-offered the evidence of appellant=s delivery of cocaine to Officer Jackson and that the State did not merely rely upon appellant=s conviction for that offense as the basis for revoking his community supervision.  See Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973)(revocation upheld where it was based upon proof of the commission of the offense, not merely upon a non-final conviction for that offense); cf Flores v. State, 102 S.W.3d 336 (Tex.App. - Eastland 2003, pet=n ref=d)(revocation based solely upon non-final conviction cannot stand). Appellant=s sole point of error is overruled. 

The judgment of the trial court is affirmed. 

PER CURIAM

September 23, 2004 

Do not publish.  See TEX.R.APP.P. 47.2(b).

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

Wright, J., and McCall, J.

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^[1]On this same day, we have affirmed appellant=s conviction for delivery of cocaine in Woodard v. State, No. 11-03-00148-CR (Tex.App. - Eastland September 23, 2004)(not designated for publication).