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Laughlin v. State5/7/1999
In this case, Dennis Ray Laughlin entered a negotiated guilty plea to the offense of driving while intoxicated. The trial court followed the plea bargain and sentenced appellant to 365 days' confinement, probated for 730 days. The State later moved to revoke appellant's probation. Following a hearing on appellant's pleas of not true, the trial court revoked appellant's probation and sentenced him to 180 days confinement. In his first two points of error, appellant challenges the sufficiency of the evidence to support the revocation of his probation. In his third point of error, appellant contends the probation revocation violates the double jeopardy clause of the United States Constitution. We affirm the trial court's judgment.
In his third point, appellant asserts the probation revocation violated the double jeopardy clause because the grounds for revocation alleged in this case involved the same offenses that served as grounds for revocation of appellant's probation in a separate DWI case. The double jeopardy clause of the United States Constitution provides that no person shall be twice put in jeopardy of life or liberty for the same offense. See Chambers v. State, 700 S.W.2d 597, 598 (Tex. Crim. App. 1985). The double jeopardy clause prohibits a second punishment or a second trial for the same offense. Id. Jeopardy, however, does not attach to offenses cited as grounds for probation revocation because the punishment assessed upon revocation is for the originally probated offense. Id. We overrule appellant's third point of error.
In appellant's first and second points of error, he challenges the legal and factual sufficiency of the evidence to support the revocation of his probation. Specifically, he complains the State's sole witness was insufficiently identified as appellant's probation officer and that his probation was improperly revoked for an offense that he allegedly committed after the State's revocation motion was filed.
To support revocation, the State must prove by a preponderance of the evidence that a defendant violated the terms of his community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). We review the trial court's revocation order for an abuse of discretion. Id. at 493-94. In doing so, we examine the record in the light most favorable to the trial court's decision to determine whether the trial court erred in concluding the State met its burden of proof. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). Contrary to appellant's suggestion, we do not apply the legal sufficiency standard of Jackson v. Virginia, 443 U.S. 307 (1979), nor do we apply the factual sufficiency standard of Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App.1996). See Johnson v. State, 943 S.W.2d 83, 85 (Tex. App._Houston [1st Dist.] 1997, no pet.).
Here, the State alleged appellant violated his probation by leaving Grayson County without permission and by using cocaine. Appellant admitted in direct testimony that he violated these conditions of his probation. Appellant does not challenge the findings about these violations on appeal. Appellant's sworn testimony constitutes a judicial confession that he violated his probation by leaving Grayson County without permission and by using cocaine. See Davenport v. State, 858 S.W.2d 1, 3 (Tex. App._Dallas 1993, no pet.). Moreover, proof of any one alleged violation is sufficient to support revocation. See O'Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App. 1981). We overrule appellant's first and second points of error.
We affirm the trial court's judgment.
JOSEPH B. MORRIS, JUSTICE
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