Opinion
No. 11-18-00194-CR
08-27-2020
FELIX ARGUIJO JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 39th District Court Haskell County, Texas
Trial Court Cause No. 6938
MEMORANDUM OPINION
The trial court found Felix Arguijo Jr., Appellant, guilty, upon his plea of guilty, of possession of a controlled substance, methamphetamine, under one gram. Pursuant to a plea bargain agreement, the trial court assessed Appellant's punishment at confinement in a state jail facility for eighteen months and a fine of $750. The trial court suspended the imposition of the sentence and, on April 12, 2018, placed Appellant on community supervision for three years. Less than two weeks later, on April 24, 2018, the State filed a motion to revoke Appellant's community supervision. In its motion, the State alleged that Appellant had violated two terms or conditions of his community supervision. After a hearing on the motion, the trial court revoked Appellant's community supervision and sentenced him to the punishment originally assessed. We affirm.
In its motion to revoke community supervision, the State alleged that Appellant had violated the terms and conditions of his community supervision when he violated the provisions of a protective order that had been entered against him. The State also alleged that Appellant had failed to report to his community supervision officer as directed.
Appellant presents a single issue on appeal. In that issue, Appellant argues that the State did not meet its burden to prove that he violated the terms of his community supervision as alleged in the motion to revoke his community supervision. Appellant maintains that the trial court therefore abused its discretion when it revoked his community supervision.
When we review a trial court's decision to revoke community supervision, we determine whether, in doing so, the trial court abused its discretion. Shah v. State, 403 S.W.3d 29, 33 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd). If the State fails to meet its burden of proof, the trial court abuses its discretion if it revokes community supervision. Hart v. State, 264 S.W.3d 364, 366-67 (Tex. App.—Eastland 2008, pet. ref'd).
To determine whether the State met its burden of proof, we view the evidence in the light most favorable to the trial court's ruling. Id. at 367. In proceedings to revoke community supervision, the State has the burden to prove, by a preponderance of the evidence, that a defendant violated a term or condition of his community supervision as alleged. Id. at 366. The State satisfies this burden "when the greater weight of the credible evidence before the court creates a reasonable belief that a condition of probation has been violated as alleged." Battle v. State, 571 S.W.2d 20, 22 (Tex. Crim. App. 1978). Further, the trial court is the "sole trier of the facts, the credibility of the witnesses and the weight to be given the testimony." Grant v. State, 566 S.W.2d 954, 956 (Tex. Crim. App. 1978) (quoting Ross v. State, 523 S.W.2d 402, 403 (Tex. Crim. App. 1975)). If the trial court finds multiple violations of community supervision terms or conditions, "we will affirm the order revoking community supervision if the proof of any single allegation is sufficient." Shah, 403 S.W.3d at 33.
At the time of trial, Kitsie Drinnon was the victim assistance coordinator in the Haskell County Attorney's Office. Drinnon's duties included matters that involved protective orders and family violence. She testified that a protective order had been entered against Appellant and that the protective order contained a provision that Appellant was to have no contact with the protected individual named in the order except through Appellant's attorney.
Drinnon testified that Sergeant Stephanie Brinkman of the Bossier City Police Force contacted her and sent her a screenshot of a social media post. There is nothing in the record to show when Sergeant Brinkman contacted Drinnon. The screenshot showed to be a video. Drinnon was able to view the video. The prosecutor asked Drinnon: "Have you had the ability to personally observe any social media posts, communications between [Appellant] and the victim?" Without objection, Drinnon answered in the affirmative. The prosecutor asked Drinnon whether she remembered the date of any of those posts. Drinnon responded that "[t]here was a video post that I recollect for May 1st." Other than that date, there is no evidence in the record to show when the video was posted or when Sergeant Brinkman sent the video to Drinnon. Although the record contains references to a time stamp that apparently appeared on the video, there is no testimony to show what that time stamp revealed as to the date of the post; the video was not introduced into evidence.
As to the screen shot, the prosecutor asked Drinnon: "[Did] it purport to come from [Appellant's] -- one of his social media accounts or platforms or text messages?" Drinnon answered that it did. The prosecutor then asked: "And through the context of that, did it -- did it appear to you that it had come from [Appellant]?" Again, Drinnon answered in the affirmative.
In response to a question by Appellant's trial counsel, Drinnon testified that she was not aware of any forensic testing that had been done in terms of the accuracy of the time stamp on the post. In response to Appellant's trial counsel's inquiry as to whether Drinnon was "aware of the source of -- from which that videotape shot was given to these individuals," Drinnon answered, "I am not aware of that."
At trial, Appellant argued, as he does here, that the State failed to prove that Appellant created the post or that any alleged contact was made by Appellant during the time period that he was on probation. On the record before us, we must agree with Appellant.
As we have indicated, although the post apparently contained a time stamp, there is no indication in the testimony as to what that time stamp revealed about the time and date of the post. Further, the video was not introduced into evidence. Under the circumstances of this case, the content of the video would not have been important except for its value in establishing when the post was made and who created it. The only date testified to was contained in Drinnon's testimony when she testified that she recalled that there was a video post on May 1st. Although Drinnon's testimony did not include a year, regardless of the year to which Drinnon referred, a May 1 post would not have been made during the period of time between Appellant's being placed on community supervision and the date that the State filed its motion to revoke Appellant's community supervision.
We understand the seriousness of protective orders. However, we are also mindful of our duties as a reviewing court and the standards that govern our review. We hold that the State did not meet its burden to prove that Appellant violated the protective order.
In its motion to revoke Appellant's community supervision, the State also alleged that Appellant had failed to report to the "Community Supervision and Corrections Officer" as required in the trial court's "Order Imposing Conditions of Community Supervision." According to the terms and conditions of Appellant's community supervision, Appellant was required to "[r]eport to [his] Community Supervision Department Office on this date and at any subsequent time as instructed by [his] Community Supervision Officer."
Christopher Davis, the chief probation officer of the 39th Judicial District, which includes Haskell County, testified at the hearing on the State's motion to revoke. Davis was in court on the date that Appellant was placed on community supervision. Davis explained the terms and conditions of community supervision to Appellant. On the day of the hearing, Davis instructed Appellant to report to the community supervision office on April 16, 2018, to complete the intake process. Appellant did not report for the scheduled meeting. Rather, Appellant appeared the next day, April 17, 2018.
When Appellant came to the community supervision office on April 17, Davis and Appellant discussed Appellant's failure to report on the previous day. There was some question as to where Appellant was living. Davis had done a home visit and found that Appellant "didn't reside where he identified he was going to reside." Davis testified that he was aware that Appellant did not have his own transportation and that Appellant depended upon family members for transportation.
Davis testified that, on April 20, he and Appellant discussed the possibility of a move to Waxahachie in Ellis County. The community supervision office issued a travel permit under which Appellant was allowed to go to Waxahachie.
Appellant called Frank Jimenez as a witness. Jimenez, Appellant's former father-in-law, lived in Waxahachie. Jimenez testified that he had been good friends with Appellant's dad when they both lived in Haskell. Jimenez said that Appellant contacted him "about four months ago" and "had hit rock bottom" and needed some help. Jimenez went to Haskell and picked up Appellant, and they went to Waxahachie.
According to Davis, the next communication between his office and Appellant occurred on April 23 "when we were concerned about him violating a protective order." At that time, community supervision personnel instructed Appellant to return immediately "to our jurisdiction." However, Davis said that he did not hear anything else from Appellant until May 23 when the Haskell County Sheriff arrested Appellant in relation to the motion to revoke.
In the trial court, Appellant basically argued that he was only one day late and that to revoke community supervision on that ground would be harsh. On appeal, Appellant argues that his lack of transportation resulted in an inability to comply with the reporting provision, that he substantially complied with the directive when he reported only one day late, and that the trial court improperly delegated reporting requirements to community supervision personnel.
Whether revocation on this one ground seems harsh or not, because the evidence shows that Appellant failed to report as ordered and because proof of one violation is sufficient to support a revocation of community supervision, we hold that the trial court did not abuse its discretion when it revoked Appellant's community supervision. We overrule Appellant's sole issue on appeal.
We affirm the judgment of the trial court.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE August 27, 2020 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J. Willson, J., not participating.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.