Davila v. State

• Decision Date: 31 August 2005
• Docket Number: No. 13-03-491-CR.,13-03-491-CR.
• Citation: 173 S.W.3d 195
• Court: Texas Supreme Court
• Parties: Johnny Joe DAVILA, Appellant, v. The STATE of Texas, Appellee.

173 S.W.3d 195

Johnny Joe DAVILA, Appellant, v. The STATE of Texas, Appellee.

No. 13-03-491-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

August 31, 2005.

S. Reese Rozzell, Rockport, for appellant.

Michael Hess, Asst. Dist. Atty., Patrick L. Flanigan, Dist. Atty., Sinton, for state.

Before Chief Justice VALDEZ and Justices HINOJOSA and BAIRD.¹

OPINION

Opinion by Justice BAIRD.

Appellant was charged by indictment with the offense of aggravated assault. Pursuant to a plea bargain with the State, appellant pled guilty to the charged offense. The trial judge found appellant guilty and assessed punishment at ten years confinement in the Texas Department of Criminal Justice—Institutional Division and a fine of $1,000. However, the trial judge suspended imposition of the sentence and placed appellant on community supervision for a period of ten years. The State subsequently filed a motion to revoke appellant's community supervision. After conducting a hearing, the trial judge granted the motion, revoked appellant's community supervision, and assessed punishment at ten years confinement. We affirm.

The sole allegation in the State's motion to revoke community supervision was that appellant committed the offense of capital murder. Appellant and his brother were charged with the same offense and tried jointly. Prior to the capital murder trial, the trial judge began the hearing on the State's motion to revoke community supervision. Following appellant's plea of not true, the trial judge recessed the hearing and stated that he would consider the motion while hearing the evidence admitted during the capital murder trial.

The alleged capital murder involved a double murder which occurred following a fight at a birthday party for appellant's niece — the daughter of appellant's brother, Gilbert Davila. The State's theory of prosecution was that appellant left the party with the complainants who were seated in the front seat of Gilbert's vehicle. Appellant and Gilbert returned a short time later, admitted to killing the complainants, bathed, burned their clothes, and altered the interior of the vehicle to remove evidence of the crime. The complainants' bodies were found the following day beside the roadway. Appellant and Gilbert testified they had nothing to do with the murders. The jury accepted the State's theory of prosecution, rejected the defensive testimony, and convicted appellant of capital murder.² The evidence will be developed more fully below.

After that trial, the hearing on the State's motion to revoke appellant's community supervision resumed. The probation officer identified appellant as the person named in the motion to revoke community supervision. The trial judge granted the motion and assessed appellant's punishment at ten years confinement.

Appellant's two points of error challenge the legal and factual sufficiency of the evidence to support the revocation of his community supervision. In a proceeding to revoke community supervision, the burden of proof is on the State to show by a preponderance of the evidence that the probationer violated a condition of probation as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.1993). The State 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 motion to revoke. Joseph v. State, 3 S.W.3d 627, 640 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

In reviewing the legal sufficiency of the evidence to support the revocation, appellate courts review the evidence in the light most favorable to the judgment, giving deference to the trial court as the sole trier of facts, the credibility of the witnesses, and the weight to be given to the evidence presented. Russell v. State, 685 S.W.2d 413, 419 (Tex.App.-San Antonio 1985, pet. ref'd); see Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App.1979). This review is conducted under the abuse of discretion standard. Naquin v. State, 607 S.W.2d 583, 586 (Tex.Crim.App.1980). When the standard of review is abuse of discretion, the record must simply contain some evidence to support the decision made by the trial court. Brumbalow v. State, 933 S.W.2d 298, 300 (Tex.App.-Waco 1996, pet. ref'd).

When a defendant challenges the factual sufficiency of the evidence to support the conviction, we apply the standard announced in Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996), and refined in Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997):(a) we assume the evidence is legally sufficient; (b) we then consider all of the record evidence, not just the evidence which supports the verdict; (c) we review the evidence weighed by the fact-finder which tends to prove the existence of the fact in dispute, and compare it to the evidence which tends to disprove that fact; and (d) we set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Santellan, 939 S.W.2d at 164.

Appellant asks us to apply this standard of review to the trial judge's decision to revoke the community supervision. Several of our sister courts have determined that the Clewis line of cases does not apply to appellate review of the decision to revoke community supervision. Brooks v. State, 153 S.W.3d 124, 126 (Tex.App.-Be...