Allbright v. State, 13 S.W.3d 817 (Tex. App.—Fort Worth 2000). · Go Syfert
Allbright v. State, 13 S.W.3d 817 (Tex. App.—Fort Worth 2000). Cases Citing This Book View Copy Cite
Quick Summary

A probationer violates a no-contact condition by visiting a victim's residence and possesses prohibited material by keeping it in their home.

The defendant, a sex offender on community supervision, violated conditions prohibiting contact with his stepdaughter and possession of pornography. He visited her residence to mow the lawn while she was absent and allowed a pornographic videotape to remain in his home. The question presented is whether the trial court abused its discretion in revoking supervision based on these actions. The court applies the standard that the state must prove a violation by a preponderance of the evidence and that the trial judge is the sole trier of fact. The court holds that visiting the victim’s residence constitutes prohibited contact and that keeping a video in one’s home constitutes possession. The court affirms the revocation.

205 citation events (204 in the last 25 years) across 1 distinct court.
Treatment trajectory · 2000 → 2026 · click a year to view as-of
2000 2013 2026
Cited for
At page 819 Determining sufficiency of violation for probation revocation73 citing casesTex.App.—Fort Worth 2000, pet. ref’d21 citing courts put it this way · 58 listed here
  • Callie Renee Inman v. State of Texas, No. 13-20-00349-CR (Tex. App.—Corpus Christi–Edinburg Mar. 10, 2022).unpublished
    (Tex. App.—Fort Worth 2000, pet. ref’d)
  • John Henry Austin v. State of Texas, No. 13-20-00444-CR (Tex. App.—Corpus Christi–Edinburg July 15, 2021).unpublished
    (Tex. App.—Fort Worth 2000, pet. ref’d)
  • Robert Saldana v. State, No. 13-20-00408-CR (Tex. App.—Corpus Christi–Edinburg Mar. 25, 2021).unpublished
    (Tex. App.—Fort Worth 2000, pet. ref’d)
  • Carmina Padroz v. State, No. 13-15-00195-CR (Tex. App.—Corpus Christi May 28, 2015).published
    Allbright v. State, 13 S.W.3d 817, 819 (Tex. App.–Fort 5 (citing Rincon v. State, 615 S.W.2d 746, 747 (Tex. Crim.
  • Timothy Bryan Garza v. State, No. 07-13-00137-CR (Tex. App.—Amarillo Jan. 14, 2014).unpublished
    (Tex. App.— Fort Worth 2000, pet. ref’d)
  • Michael Ogbeide v. State, No. 02-11-00146-CR, 2012 WL 3736309 (Tex. App.—Fort Worth Aug. 30, 2012).unpublished 2 cites
    (Tex. App.—Fort Worth 2000, pet. ref’d)
  • Daniel David Bookhamer v. State, No. 02-11-00211-CR (Tex. App.—Fort Worth May 3, 2012).unpublished 2 cites
    (Tex. App.—Fort Worth 2000, no pet.)
  • Ronnie Gabriel Lovell v. State, No. 10-10-00180-CR (Tex. App.—Waco Feb. 15, 2012).unpublished
    (Tex. App.—Fort Worth 2000, pet. ref’d)
  • Uvaldo Cortinas-Ramirez v. State, No. 10-10-00135-CR (Tex. App.—Waco Nov. 2, 2011).unpublished 2 cites
    (Tex. App.—Fort Worth 2000, pet. ref’d)
  • Mario Reyna v. State, No. 10-10-00054-CR (Tex. App.—Waco Oct. 26, 2011).unpublished 2 cites
    (Tex. App.—Fort Worth 2000, pet. ref’d)
Show 48 more citing cases
At page 818 Reviewing trial court's discretion in revocation proceedings36 citing casesTex.App.–Fort Worth 2000, pet. ref’d10 citing courts put it this way · 23 listed here
  • Robert Earl Raymond v. State, No. 08-13-00106-CR (Tex. App.—El Paso June 25, 2014).published
    (Tex.App.--Fort Worth 2000, pet. ref’d)
  • Michael William Brown v. State, No. 08-11-00230-CR (Tex. App.—El Paso Jan. 16, 2013).published
    (Tex. App. – Fort Worth 2000, pet. ref’d)
  • Xan Ross Ormon v. State, No. 07-09-00203-CR (Tex. App.—Amarillo June 30, 2011).unpublished 3 cites
    (Tex.App.--Fort Worth 2000, pet. refused)
  • Jeffrey Earl Lewis v. State, No. 02-09-00187-CR (Tex. App.—Fort Worth June 10, 2010).published
    (Tex. App.—Fort Worth 2000, pet. ref’d)
  • Alan C. Brown v. State, No. 03-08-00452-CR (Tex. App.—Austin Oct. 14, 2009).unpublished 2 cites
    (Tex. App.—Fort Worth 2000, pet. ref’d)
  • Michael G. Baker v. State, No. 07-07-00227-CR (Tex. App.—Amarillo Apr. 20, 2009).unpublished 3 cites
    (Tex.App.–Fort Worth 2000, pet. ref’d)
  • Montez Thomas v. State, No. 04-08-00315-CR (Tex. App.—San Antonio Mar. 11, 2009).unpublished
    (Tex. App.— Fort W orth 2000, pet. ref’d)
  • Eric Maddox v. State, No. 02-08-00020-CR (Tex. App.—Fort Worth Jan. 29, 2009).published 2 cites
    (Tex. App.—Fort Worth 2000, pet. ref’d)
  • Kerry Bollman v. State, No. 02-08-00061-CR, 2009 WL 161032 (Tex. App.—Fort Worth Jan. 22, 2009).unpublished 2 cites
    (Tex. App.—Fort Worth 2000, pet. ref’d)
  • David Uriegas v. State, No. 03-07-00647-CR (Tex. App.—Austin Dec. 30, 2008).unpublished 2 cites
    (Tex. App.—Fort Worth 2000, pet. ref’d)
Show 13 more citing cases
Retrieving the full opinion text from the archive…
Berl Odell ALLBRIGHT, Appellant,
v.
the STATE of Texas, State
2-99-279-CR.
Court of Appeals of Texas.
Feb 17, 2000.
Published opinion
13 S.W.3d 817
2000 Tex. App. LEXIS 1139
2000 WL 190224
Gary Medlin, Fort Worth, for Appellant., Tim Curry, Crim. Dist. Atty., Charles M. Mallin, Asst. Crim. Dist. Atty. and Chief of the Appellate Section, Curtis Jenkins, Ben Leonard and Lloyd Whelchel, Asst. Crim. Dist. Attys., Fort Worth, for Appellee.
Livingston, Holman, Brigham.
Cited by 145 opinions  |  Published

OPINION

DIXON W. HOLMAN, Justice.

Appellant Berl Odell Allbright was indicted on July 29, 1997 for the offense of indecency with a child. Appellant pled guilty and was placed on community supervision for five years. The State filed a motion to revoke Appellant’s community supervision on April 27, 1999. The trial court granted the motion, revoked Appellant’s probation, and sentenced Appellant[*818] to five years’ confinement. Appellant argues that the evidence is both legally and factually insufficient to support the revocation. After examining the evidence in the light most favorable to the trial court’s order, we hold that the trial court did not abuse its discretion. We overrule Appellant’s points and affirm the trial court’s judgment.

BACKGROUND

Appellant was indicted for being indecent with his step-daughter, A.L. The relevant conditions of his community supervision required that Appellant not have any contact whatsoever with A.L. or possess any pornographic material. At the time of the revocation hearing, Appellant and A.L.’s mother, Jean Allbright, were married although they had separate residences and lived apart from one another.

Appellant went to Jean’s house on two occasions to mow the lawn in the backyard. Jean could not start the lawn mower and A.L. was at work from 9:00 a.m. to 7:00 p.m. Jean asked A.L. if she would have a problem with Appellant coming over to help out with the yardwork and A.L. responded that she did not. Appellant had no contact with A.L. on those two occasions.

Jean borrowed a pornographic videotape from a friend to spark her and Appellant’s sex life. Jean brought the videotape- over to Appellant’s apartment on March 2, 1999 and again about two weeks later. Jean and Appellant did not view the videotape the first time she brought it over. The second time Jean brought the videotape over, Appellant told her to turn it off and later explained to her that he could not watch it and that it might violate a term of his community supervision.

STANDARD OF REVIEW

Appellate review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. See Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.1984). An abuse of discretion occurs where the trial judge’s decision was so wrong that it falls outside the zone within which reasonable persons might disagree. See Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992), ce rt. denied, 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993). We must examine the evidence in the light most favorable to the trial court’s order. See Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1981); Galvan v. State, 846 S.W.2d 161, 162 (Tex.App.—Houston [1st Dist.] 1993, no pet.); Jones v. State, 787 S.W.2d 96, 97 (Tex.App.—Houston [1st Dist.] 1990, pet. ref'd).

Although Appellant states that the proper standard of review on appeal from a revocation proceeding is an abuse of discretion, Appellant nevertheless urges us to conduct a factual sufficiency analysis in light of the standards set forth in Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996). Appellant’s reliance on this standard is misplaced. See Johnson v. State, 943 S.W.2d 83, 85 (Tex.App.—Houston [1st Dist.] 1997, no pet.); Brumbalow v. State, 933 S.W.2d 298, 299-300 (Tex.App.—Waco 1996, pet. ref'd). Therefore, we will examine the evidence in the light most favorable to the trial court’s order revoking community supervision. See Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim.App.1983). Any other type of review would effectively attenuate the trial judge’s discretion.

APPLICATION OF LAW AND FACTS

In a revocation hearing, the State must prove by a preponderance of the evidence [1] that the probationer violated the terms and conditions of his community[*819] supervision. See Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.1993); Warmoth v. State, 946 S.W.2d 526, 528 (Tex.App.—Fort Worth 1997, no pet.). This standard is met when the greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of his community supervision as the State alleged. See Martin v. State, 623 S.W.2d 391, 393 n. 5 (Tex.Crim.App.1981). In a community supervision revocation hearing, the trial judge is the sole trier of fact. See Jones, 787 S.W.2d at 97. The trial judge also determines the credibility of the witnesses and the weight to be given to their testimony. See id. He may accept or reject any or all of the witness’ testimony. See Mattias v. State, 731 S.W.2d 936, 940 (Tex.Crim.App.1987).

Appellant admitted to Arthur Loza-no, his sex-offender counselor, that he went to A.L.’s house on two occasions to mow the lawn. Lozano instructed Appellant to consider the impact that those visits had on A.L. because she continued to have nightmares about Appellant. Condition seven of the supplement to Appellant’s community supervision stated that Appellant was not to have any contact with A.L. in any form, including but not limited to passing by her residence. Appellant not only passed by her residence, but he actually went to A.L.’s residence albeit she was not there at the time. A finding of a single violation of community supervision is sufficient to support revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App. [Panel Op.] 1980); Burke v. State, 930 S.W.2d 230, 232 (Tex.App.—Houston [14th Dist.] 1996, pet. ref'd).

Appellant also argues that the terms of his community supervision prevented him from possessing pornography, but not from viewing it. The trial court correctly defined possession as actual care, custody, control, or management. See Tex. Penal Code Ann. § 1.07(a)(39) (Vernon 1994). It also was correct in its finding that Appellant had to possess the pornographic material in order to watch it in his home. For these reasons, the trial court did not abuse its discretion by revoking Appellant’s community supervision.

CONCLUSION

We hold that the trial court could have found by a preponderance of the evidence that Appellant had come in contact with A.L. as prohibited by the terms of his community supervision. We also hold that the trial court correctly found that Appellant possessed pornographic material in order to watch it. Because the trial court did not abuse its discretion, we overrule Appellant’s points and affirm the trial court’s judgment.

1

. A preponderance of the evidence means the greater weight and degree of credible testimony. See 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), pet. dism’d, 841 S.W.2d 7 (Tex.Crim.App.1992).