Xan Ross Ormon v. State ( 2011 )

NO. 07-09-00203-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JUNE 30, 2011
XAN ROSS ORMON, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NO. 47,237-B; HONORABLE JOHN B. BOARD, JUDGE
Before CAMPBELL and HANCOCK, JJ., and BOYD, S.J.1
MEMORANDUM OPINION
The trial court adjudicated appellant Xan Ross Ormon guilty of burglary of a
habitation, revoked his order of community supervision, and sentenced him to four
years confinement in prison. He appeals. We will affirm.
Background
In October 2003, appellant plead guilty to an indicted charge of burglary of a
habitation. The court deferred adjudication of guilt and placed appellant under an order
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
of community supervision for five years. After the State filed its second motion to
proceed to adjudication in March 2008, appellant’s community supervision was
extended until October 2012.
The State filed its third motion to proceed with adjudication of guilt in March
2009. As grounds, the State alleged appellant violated four conditions of his community
supervision order: he traveled beyond the geographic limitation of the order without
court permission; he failed to pay the monthly supervision fee for January and February
2009; he failed to pay restitution for July 2008 through February 2009; and he failed to
pay delinquent probation fees for January 2009 and February 2009.
At the hearing, appellant plead true to the violations alleged. The trial court then
received evidence which included the testimony of a probation officer. According to the
officer, appellant requested permission to travel to New Orleans, outside the geographic
limitation of his community supervision order. The request was denied. The officer then
attempted two home visits but was unable to locate appellant. Following investigative
telephone calls and a visit to appellant’s workplace, the officer received a call from
appellant. He admitted traveling to New Orleans. Concerning appellant’s claim that
financial duress caused his payment arrearages, the probation officer testified that
appellant offered to “overnight” the past due sums if allowed to travel to New Orleans.
Appellant testified in his defense. He explained the purpose of his trip to New
Orleans was to attend a business conference that he considered necessary to his
continued employment. And he fell behind on restitution and fees because of
insufficient income. After close of the evidence, the trial court sentenced appellant to
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four years confinement in prison. In open court, following pronouncement of sentence,
appellant offered to bring current his arrearages if allowed to remain on community
supervision. The trial court declined the offer. Appellant now appeals.
Analysis
Through a single issue, appellant argues the evidence was insufficient to support
revocation of community supervision. A community supervision revocation proceeding
is neither a criminal nor a civil trial, but an administrative proceeding. Cobb v. State,
851 S.W.2d 871, 873 (Tex.Crim.App. 1993). We review an order revoking community
supervision under an abuse of discretion standard. Cardona v. State, 665 S.W.2d 492,
493 (Tex.Crim.App. 1984); Jackson v. State, 645 S.W.2d 303, 305
(Tex.Crim.App.1983). A trial court abuses its discretion if its decision is so clearly
wrong that it lies outside the zone within which reasonable people might disagree.
Wilkins v. State, 279 S.W.3d 701, 703-704 (Tex.App.--Amarillo 2007, no pet.). The trial
judge is the sole trier of fact and determines the credibility of the witnesses and the
weight given their testimony. Allbright v. State, 13 S.W.3d 817, 818-19 (Tex.App.--Fort
Worth 2000, pet. refused).
We review the evidence in the light most favorable to the court’s ruling. Cardona,
665 S.W.2d at 493; Allbright, 13 S.W.3d at 819. Hence a factual sufficiency review is
inapplicable to revocation proceedings. Allbright, 13 S.W.3d at 818. See also Cherry v.
State, 215 S.W.3d 917, 919 (Tex.App.--Fort Worth 2007, pet. refused) (collecting
cases). Appellant makes an argument the evidence supporting revocation was factually
insufficient, and in support cites Pierce v. State. 113 S.W.3d 431, 436 (Tex.App.--
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Texarkana 2003, pet. refused). We do not read Pierce to set forth a different standard
for review of a revocation order than we have stated. To the extent appellant intends
his issue to include a claim that the trial court abused its discretion because the
evidence was factually insufficient to support revocation, we overrule the issue.
The burden is on the State in a revocation proceeding to prove by a
preponderance of the evidence that the defendant is the same individual named in the
judgment and order of community supervision, and the defendant violated a term of
community supervision in the motion to revoke. Cobb, 851 S.W.2d at 873-74. This
standard is met when the greater weight of the credible evidence creates a reasonable
belief that the defendant violated a condition of his or her community supervision as the
State alleged. Martin v. State, 623 S.W.2d 391, 393 n.5 (Tex.Crim.App. 1981) (panel
op.); Allbright, 13 S.W.3d at 819.
A plea of “true” to even one allegation in the State’s motion is sufficient to support
a judgment revoking community supervision. Cole v. State, 578 S.W.2d 127, 128
(Tex.Crim.App. 1979); Lewis v. State, 195 S.W.3d 205, 209 (Tex.App.--San Antonio
2006, no pet.). Here appellant pled true to each violation alleged and the State offered
undisputed proof that appellant traveled beyond the ordered area of supervision without
court authorization. Further, appellant’s attempt to bargain for continued community
supervision by offering to “overnight” payment of restitution and fees and pay the
arrearages is some evidence belying his affirmative claim of inability to pay fees and
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restitution. Finally, the punishment the trial court assessed is within the range
authorized by statute.2
But as we discern it, the core of appellant’s issue is that, despite his plea of true
to the violations the State alleged, the trial court abused its discretion by sentencing him
to confinement rather than continuing his community supervision. It is the general rule
that as long as a sentence is within the proper range of punishment, it will not be
disturbed on appeal. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App. 1984).
See generally Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex.Crim.App. 2006)
(describing essentially “unfettered” sentencing discretion of court). As we have noted,
and as is clear from appellant’s testimony, this was the third hearing of a motion to
proceed in his case. And, asked at this last adjudication hearing by the trial court about
the circumstances of the burglary to which he plead guilty in 2003, appellant told the
court he did not know anything about the offense because “I didn’t do it.” We find the
trial court did not abuse its discretion by revoking appellant’s community supervision
and imposing a sentence within the range authorized by law. Appellant’s issue is
overruled.
2
Generally, burglary of a habitation is classified as a second-degree felony,
punishable by a sentence of two to twenty years’ imprisonment and a fine not to exceed
$10,000. See Tex. Penal Code Ann. §§ 30.02(c)(2); 12.33(a),(b) (West 2011).
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Conclusion
Having overruled appellant’s sole issue, we affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
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