v.
State
NO. 07-11-0325-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 16, 2013
WAYNE STEVEN PRICE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
FROM THE 100TH DISTRICT COURT OF CHILDRESS COUNTY;
NOS. 4985 & 5059; HONORABLE DAN MIKE BIRD, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
In February 2008, following pleas of guilty to the felony offenses of possession of a controlled substance, methamphetamine, 1 and possession of child pornography, 2 in April 18, 2010; or (4) that he consumed methamphetamine on or about July 6, 2010. We affirm.
STANDARD OF REVIEW
On violation of a condition of community supervision imposed under an order of deferred adjudication, a defendant is entitled to a hearing limited to the determination of whether the trial court should proceed with an adjudication of guilt on the original charge under section 12 of article 42.12 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 12 (W EST SUPP. 2012). See Antwine v. State, 268 S.W.3d 634, 636 (Tex.App.—Eastland 2008, pet. ref’d). “Th[e] hearing is neither a criminal nor a civil trial, but is rather an administrative hearing.” Wilkins v. State, 279 S.W.3d 701, 703 (Tex.App.—Amarillo 2007, no pet.) (citing Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993)).
As such, the State’s burden on a motion to revoke community supervision is lower than the burden necessary for criminal conviction. Smith v. State, 932 S.W.2d 279, 281 (Tex.App.—Texarkana 1996, no pet.). The State has the burden of showing by a preponderance of the evidence that the defendant committed a violation of the condition(s) of community supervision; Cobb, 851 S.W.2d at 873, and satisfies this burden “when the greater weight of credible evidence before the court creates a reasonable belief that it is more probable than not that a condition of probation has been violated as alleged in the [State’s] motion.” Joseph v. State, 3 S.W.3d 627, 640 (Tex.App.—Houston [14th Dist.] 1999, no pet.) (citing Battle v. State, 571 S.W.2d 20, 21-22 (Tex.Crim.App. 1978)).
Our review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006) (citing Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984)). Further, in determining the sufficiency of the evidence to sustain a revocation, we view the evidence in the light most favorable to the trial court’s ruling; Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App. 1979), while recognizing that “[t]he trial court is the sole judge of the credibility of witnesses and the weight given to their testimony.” Antwine, 268 S.W.3d at 636 (citing Cardona, 665 S.W.2d at 493).
POINTS OF ERROR ONE AND TWO
Appellant asserts (1) the trial court erred by permitting a polygraph examiner to testify to statements made by him regarding his drug use during a polygraph examination and (2) the State’s evidence was insufficient to establish by a preponderance that he possessed a usable quantity of marijuana on April 18, 2010. We disagree.
Logic dictates that we consider Appellant’s second point of error first. At the revocation hearing, Officer Michael Miles of the City of Irving Police Department testified that, on April 18, 2010, he responded to a domestic call at Appellant’s address. After speaking with Appellant and his roommate, Officer Miles conducted a consensual search of the apartment for narcotics. Officer Miles found no drugs in the roommate’s bedroom; however, in Appellant’s bedroom he found, in plain view, what he identified as a bag of methamphetamine setting on the bed and, inside a drawer of Appellant’s night stand, a marijuana cigarette, a pipe, spoon, and syringes. [4] He testified that his conclusions were based on his experience as a police officer and his narcotics training. He also testified he knew the room belonged to Appellant because Appellant was in the room when they entered and remained there during the search. He indicated he knocked on the bedroom door before entering, found Appellant sitting on the bed when he opened it, and “all of [appellant’s] personal stuff was in [the] room.” Rather than arrest Appellant, he submitted an offense report because Appellant’s medical issues prevented him from being booked into jail at that time.
We note that a finding of a single violation of community supervision is sufficient to support revocation. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(b) (W EST SUPP. 2012); Antwine, 268 S.W.3d at 636 (citing Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App. 1980)). See Coffel v. State, 242 S.W.3d 907, 909 (Tex.App.— Texarkana 2007, no pet.); Nurridin v. State, 154 S.W.3d 920, 924 (Tex.App.—Dallas 2005, no pet.). Based on the evidence presented, we find the trial court did not abuse its discretion in revoking Appellant’s deferred adjudication community supervision because the State proved by a preponderance of the evidence that Appellant committed an offense against the laws of this State. 5 In addition, no other testimony offered during the hearing, including the contested testimony of the polygraph examiner who interviewed Appellant, ever contradicted or otherwise placed Officer Miles’s testimony in issue. “If, after examining the record as a whole, we determine that any error had a slight or no effect on the jury, then we will not overturn the trial court’s ruling.” Neal v. State, 256 S.W.3d 264, 284-85 (Tex.Crim.App. 2008), cert. denied, 555 U.S. 1154, 129 S.Ct. 1037, 173 L.Ed.2d 471 (2009). Further, “the presence of overwhelming evidence of guilt plays a determinative role” in this analysis. Neal, 256 S.W.3d at 285. Therefore, even assuming without deciding the trial court erred in admitting the polygraph examiner’s testimony, any error would be harmless in light of Officer Miles’s testimony.
Appellant’s first and second points of error are overruled. Having found the trial court did not abuse its discretion in finding at least one violation of the terms and conditions of Appellant’s community supervision, our ruling pretermits his remaining points. See TEX. R. APP. P. 47.1.
CONCLUSION
The trial court’s judgments are affirmed.
Patrick A. Pirtle Justice Do not publish.