Opinion
No. 11-02-00076-CR.
January 23, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from Stonewall County.
Opinion
Richard Styles, Jr. appeals from the judgment revoking his community supervision. Appellant originally pleaded guilty to the offense of forgery, a state jail felony. The trial court assessed appellant's punishment at confinement in a state jail facility for two years, but the court suspended the imposition of the confinement and placed appellant on community supervision for five years. The State subsequently filed a motion to revoke appellant's community supervision. After a hearing, the trial court revoked appellant's community supervision and assessed punishment at confinement for two years in a state jail facility. We affirm. The trial court found that appellant violated the following conditions of community supervision:
1. Defendant violated Condition No. 3 in that the Defendant failed to avoid injurious or vicious habits in that on or about October 11, 2001, Defendant used cocaine;
2. Defendant violated condition No. 10 in that he failed to remain in Stonewall County, Texas, or any transferred County or jurisdiction and under no circumstances leave said county and state except with the written consent of the Court or the Community Supervision and Corrections Department in that on or about October 9, 2001, Defendant traveled outside of Stonewall County without permission of the Court or the Community Supervision Officer.We agree with appellant that the State failed to prove by a preponderance of the evidence that appellant violated Condition No. 3. Dr. John L. Laseter, a toxicologist, examined appellant's urine and determined from the urine taken on October 11, 2001, that appellant had ingested cocaine within 48 hours prior to October 11. The court in Garcia v. State, 571 S.W.2d 896, 900 (Tex.Cr.App. 1978), acknowledged the established rule that a single instance of the use of a drug cannot be characterized as a "habit." We note that the State did not allege that appellant violated Condition No. 12 which provides:
12. Defendant may not possess, use, sell, or have under his control, any narcotic drugs, controlled substances, deadly weapons, or any type of firearms.The court in Myers v. State, 780 S.W.2d 441, 446 (Tex.App.-Texarkana 1989, pet'n ref'd), when confronted with a similar situation, stated:
The State did not allege that Myers violated the terms of his probation by violating the law by having possession of illegal drugs. Probation may not be revoked on a finding of violation of any probationary condition other than that alleged or necessarily included within the allegations in the motion to revoke probation. Garcia v. State, 571 S.W.2d 896 (Tex.Crim.App. [Panel Op.] 1978). The State instead undertook the difficult burden of proving that Myers did not avoid injurious and vicious habits. A habit is a disposition or condition of the body or mind acquired by custom or a usual repetition of the same act or function. It is a tendency for customary conduct acquired from frequent repetition of the same acts. Campbell v. State, 456 S.W.2d 918 (Tex.Crim.App. 1970), citing, Black's Law Dictionary (4th ed.). Evidence of a single act cannot constitute a habit. Garcia v. State, 571 S.W.2d 896; Morales v. State, 538 S.W.2d 629 (Tex.Crim.App. 1976); Marshall v. State, 466 S.W.2d 582 (Tex.Crim.App. 1971).While the State failed to prove a violation of Condition No. 3, it is well established that one sufficient ground for revocation will support the trial court's order revoking probation. Jones v. State, 571 S.W.2d 191 (Tex.Cr.App. 1978). The State did properly prove that appellant violated Condition No. 10. Appellant admitted that he left Stonewall County and went to Fort Worth on October 9, 2001, without securing the consent of the court or appellant's community supervision officer. Appellant testified that he left Stonewall County in the evening after the probation office had closed. Appellant testified that he had received word that "they" were using his mother's house as a dope house and that he went to Fort Worth to "board it up." He was attempting to save his mother's "stuff." Appellant testified that, while he was cleaning the house, he brushed a towel and that a "needle" stuck in his hand. This was appellant's explanation as to why his urine specimen showed that he had recently used cocaine. The trial court, as the finder of fact, was not required to believe appellant's explanation as to why he went to Fort Worth without getting consent. The State recalled Dr. Laseter who refuted appellant's theory that appellant got the cocaine from an accidental needle sticking. Dr. Laseter stated:
If it goes intermuscular or just into the tissues, the amount you would get would be minuscule and that's why we have these cutoffs, so that we are not looking at some accidental situation, but we are looking at a true exposure in amounts that would indicate addiction to that particular drug.We hold that the trial court did not abuse its discretion in finding that appellant violated Condition No. 10 and in ordering his community supervision revoked. We overrule appellant's contention that his constitutional rights under TEX. CONST. art. I, §§ 3 15, and his rights under U.S. CONST. amends. V XIV were violated. The judgment of the trial court is affirmed.