Johnson v. State

• Decision Date: 27 February 1997
• Docket Number: No. 01-95-01532-CR,01-95-01532-CR
• Citation: 943 S.W.2d 83
• Parties: Randall JOHNSON, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 83

943 S.W.2d 83

Randall JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 01-95-01532-CR.

Court of Appeals of Texas Houston (1st Dist.).

Feb. 27, 1997.

Richard W.B. "Rick" Davis, Bryan, for appellant.

Bill Turner, Brazos, Stephen Keathley, Bryan, for appellee.

Before SCHNEIDER, C.J., and BASS and MIRABAL, JJ.

OPINION

BASS, Justice. ^*

The appellant, Randall Johnson, appeals from an order revoking his probation. We affirm.

In February 1993, the appellant pled guilty to the felony offense of delivery of a controlled substance. ¹ In March 1993, the trial court assessed punishment at 10 years confinement; however, the court suspended the sentence and placed the appellant on probation for 10 years. In addition, the appellant was assessed a fine of $750. The trial court set the following relevant terms and conditions for probation:

(1) Commit no offense against the laws of this State or of the United States;

(9) Pay a $750 fine, $147 restitution, and $82.50 in court costs--all to be paid in monthly installments of $50;

(10) Pay a monthly $40 probation fee; and

(20) Perform 200 hours of community service at the rate of eight hours per month.

In January 1995, the State moved to revoke the appellant's probation. The State alleged (1) on or about December 19, 1994, in Harris County, Texas, the appellant intentionally and knowingly caused bodily injury to Mellody Carol Tate by striking her in the head with his hand; (2) the appellant did not pay his $50 monthly installment for the fine, restitution, and court costs for the months of May 1993, through December 1994; (3) the appellant did not pay his $40 monthly probation fee for the months of May 1993, through January 1995; and (4) the appellant did not perform his community service as directed.

In June 1995, the State filed a motion for continuance because Ms. Tate, the State's key witness, was unavailable for the revocation hearing. The court granted it, and the case was reset.

In July 1995, the appellant was tried for misdemeanor assault in cause number 9512871. A jury found him guilty, and on July 10, 1995, the court in that case sentenced him to 60 days confinement.

In September 1995, after a revocation hearing, the trial court found that the appellant had violated his probation by committing the offense of assault against Ms. Tate in Harris County, Texas. ² The court revoked his probation and sentenced him to five years confinement. The appellant filed a motion for new trial the day after the hearing alleging the evidence was factually insufficient to support the court's finding. ³ The appellant now appeals on the grounds that (1) there was insufficient evidence to support the finding that the appellant committed the offense alleged in the motion to revoke probation; (2) the trial court erred in relying on the judgment convicting the appellant of that offense as a basis for revocation because the appellant involuntarily waived his right to appeal that conviction; and (3) the trial court was equitably estopped from revoking the appellant's probation because the appellant did not pursue his appeal in that case in reliance upon the probation department's misrepresentations.

Applicable Law

The State must prove by a preponderance of the evidence that the probationer violated the terms and conditions of his probation. Jenkins v. State, 740 S.W.2d 435, 437 (Tex.Crim.App.1983); Smith v. State, 790 S.W.2d 366, 367 (Tex.App.--Houston [1st Dist.] 1990, pet. ref'd). This standard is met when the greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of his probation as the State alleged. Jenkins, 740 S.W.2d at 437 (citing Martin v. State, 623 S.W.2d 391, 393 n. 5 (Tex.Crim.App.1981)). In a probation revocation hearing, the trial judge is the sole trier of the facts. Jones v. State, 787 S.W.2d 96, 97 (Tex.App.--Houston [1st Dist.] 1990, pet. ref'd). The trial judge also determines the credibility of the witnesses and the weight to be given to their testimony. Id.

Appellate review of an order revoking probation is limited to determining whether the trial court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App.1984). We must examine the evidence in the light most favorable to the trial court's order. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App.1981) (citing Fernandez v. State, 564 S.W.2d 771 (Tex.Crim.App.1978)); Galvan v. State, 846 S.W.2d 161, 162 (Tex.App.--Houston [1st Dist.] 1993, no pet.); Jones v. State, 787 S.W.2d at 97.

Although conceding that the proper standard of review on appeal from a revocation proceeding is abuse of discretion, the appellant nevertheless urges us to conduct a factual sufficiency analysis in light of the standard set forth in Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996). In that case, the Court of Criminal Appeals held that the proper standard of review for factual sufficiency of the evidence to prove the elements of an offense is as follows:

The court of appeals views all the evidence without the prism of "in the light most favorable to the prosecution" ... [and] set[s] aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Clewis, 922 S.W.2d at 129 (citing Stone v. State, 823 S.W.2d 375, 381 (Tex.App.--Austin 1992, pet. ref'd, untimely filed)) (emphasis added). The appellant's reliance on Clewis in the context of this case is misplaced. First, the appellant in Clewis was not appealing from an order revoking probation. Second, adopting a different standard of review on an appeal from a revocation order would directly conflict with the holding in Garrett and its progeny. Therefore, we will examine the evidence in the light most favorable to the trial court's order revoking probation. Any other type of review would effectively attenuate the trial judge's discretion. See Brumbalow v. State, 933 S.W.2d 298 (Tex.App.--Waco, 1996, no pet. h.) (not yet reported) (declining to extend the Clewis standard to ancillary rulings).

The Assault

To revoke probation, the State must prove, by preponderance of the evidence, every element of the offense that is the basis for the revocation. Jones, 787 S.W.2d at 97. In his first point of error, the appellant argues that there is insufficient evidence to support the trial court's finding that he committed an assault. ⁴ We disagree.

Mellody Tate, the appellant's estranged wife, testified that on the night of December 19, 1994, the appellant came home, woke her up, pulled her up by her night shirt, and began to argue with her about not making it home in time for him to go to work. He then slapped her very hard, tried to force himself on her, choked her with one hand, and accused her of cheating on him. She further testified that he called her a "bitch" and threatened to kill her. After the altercation ended, she waited for him to go to sleep. When he did, she went to work, where she called the police. Later that morning, she went to the hospital, where she was given pain medication and told to apply hot and cold compresses. She felt pain on her face, throat, back, and head. In addition, she had a bruise on her right cheek as well as a swollen mouth. She also went to the Family Violence Center and the district attorney's office in Houston that morning. She stayed with a friend for a week and then took her children with her to Fort Worth. At the appellant's trial for the misdemeanor assault, she testified that he had slapped her about 20 times.

The appellant testified that on December 19, 1994, after he told Ms. Tate he wanted a divorce, she told him she loved him and did not want a divorce. She started to hit him, scratch his arm, and kick him in the groin. He admitted that he pushed her down on the bed.

The appellant also testified about a previous altercation that they had had at Ms. Tate's work place. He was ready to go so he "put her in the car." When they got home, she tried to leave...