Brian Paul Saylor v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-401-CR
BRIAN PAUL SAYLOR APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In two points in this revocation case, Appellant Brian Paul Saylor relies on
penal code section 9.22, “Necessity,” to justify his admitted violations of the terms
of his community supervision. See Tex. Penal Code Ann. § 9.22 (Vernon 2003).
W e affirm.
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 See Tex. R. App. P. 47.4.
II. Factual and Procedural History
On August 15, 2002, a jury found Saylor guilty of aggravated assault,
sentenced him to eight years’ confinement and a $1000 fine, and recommended
community supervision. The trial court suspended Saylor’s sentence and placed him
on community supervision for eight years.
On June 22, 2006, the State filed a motion to revoke Saylor’s community
supervision. The State filed an amended motion to revoke on February 8, 2007.
Saylor testified at the revocation hearing on October 7, 2009, and pleaded “not
true” to the State’s allegations. However, during his direct examination, Saylor
agreed that he signed an admission that he had used marijuana and that it was “true
and correct that [he] had marijuana in [his] system.” The trial court admitted State’s
exhibit 1, the admission signed by Saylor that he possessed and used marijuana on
or about July 19, 2005, in evidence.
Saylor also admitted that he had not reported to his community supervision
officer for around three years. He stated that in 2006, his mother was diagnosed
with liver disease and deemed terminally ill. He decided “to stop going to probation
because [of] the[se] circumstances,” and he provided care for his mother until she
died on January 29, 2009. During this period, Saylor failed to inform the authorities
of his whereabouts, and he did not make any payments on his various community
supervision-related fees. In June 2009, five months after his mother’s death, Saylor
turned himself in.
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At the conclusion of the hearing, the trial court found true the following
allegations, which we have paraphrased:
(b-1) Use of marijuana on or about July 19, 2005;
(b-2) Testing positive for use of cannabinoids in a sample taken on or
about April 3, 2006;
(d) Failure to report to his community supervision officer from July 2006
through January 2007;
(e) Failure to pay his monthly $50 supervision fee from May 2005
through December 2005, in February 2006, and from April 2006
through January 2007;
(i) Failure to pay his monthly $15 payment for his $1000 fine, from
February 2005 through December 2005, and in February, April and May
2006;
(k) Failure to pay his $85 monthly payment for his court-appointed
counsel fee from February 2005 through December 2005, and in
February, April, and May 2006;
(t-1) Failure to pay for a urinalysis test; and
(t-2) Failure to submit to a urinalysis test at the request of his
community supervision officer on or about June 12, 2006.
The trial court revoked Saylor’s community supervision and assessed punishment
at eight years’ confinement, the original punishment assessed by the jury. This
appeal followed.
III. Analysis
A. Standard of Review
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W e review an order revoking community supervision for an abuse of
discretion. Rickels v. State, 202 S.W .3d 759, 763 (Tex. Crim. App. 2006); Cardona
v. State, 665 S.W .2d 492, 493 (Tex. Crim. App. 1984); Cherry v. State, 215 S.W .3d
917, 919 (Tex. App.—Fort W orth 2007, pet. ref’d). In a revocation proceeding, the
State must prove by a preponderance of the evidence that the defendant violated the
terms and conditions of community supervision. Cobb v. State, 851 S.W .2d 871,
873 (Tex. Crim. App. 1993); Cherry, 215 S.W .3d at 919. The trial court is the sole
judge of the credibility of the witnesses and the weight to be given their testimony,
and we review the evidence in the light most favorable to the trial court’s ruling.
Cardona, 665 S.W .2d at 493; Garrett v. State, 619 S.W .2d 172, 174 (Tex. Crim.
App. [Panel Op.] 1981); Cherry, 215 S.W .3d at 919. Proof by a preponderance of
the evidence 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. Crim. App. [Panel Op.] 1980); Sanchez v. State, 603 S.W .2d 869,
871 (Tex. Crim. App. [Panel Op.] 1980); Leach v. State, 170 S.W .3d 669, 672 (Tex.
App.—Fort W orth 2005, pet. ref’d.).
B. Analysis
W e need not decide whether necessity would justify Saylor’s community
supervision violations in 2006 because he admitted his 2005 violation for smoking
marijuana. As a single violation of the terms of community supervision is sufficient
to revoke, we hold that the trial court did not abuse its discretion by revoking Saylor’s
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community supervision and sentencing him in accordance with the jury’s original
punishment termination. W e overrule Saylor’s sole point.
IV. Conclusion
Having overruled Saylor’s sole point, we affirm the trial court’s judgment.
PER CURIAM
PANEL: MCCOY, DAUPHINOT, and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 1, 2010
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