Opinion
08-20-00193-CR
12-13-2021
JERRY JOSEPH DOMINGUEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
Do Not Publish
Appeal from the 143rd Judicial District Court of Reeves County, Texas (TC# 16-08-08080-CRR)
Before Rodriguez, C.J., Palafox, and Alley, JJ.
OPINION
JEFF ALLEY, JUSTICE
This is an appeal from a trial court's order revoking Appellant Jerry Joseph Dominguez's community supervision. Appellant raises three issues in this appeal, arguing that the court abused its discretion by: (1) admitting a laboratory report over Confrontation Clause, hearsay, and foundation objections; (2) failing to inquire into Appellant's ability to pay fines, and by failing to consider alternatives to imprisonment; and (3) finding that Appellant failed to complete the required number of community service hours. For the reasons below, we affirm.
I. Background
A. Appellant's Guilty Plea and the State's Motion to Revoke
The State charged Appellant by indictment with engaging in organized criminal activity, and further alleged that he had been previously convicted of aggravated assault. Under a plea agreement, Appellant pleaded guilty to engaging in organized criminal activity, and the State 1 abandoned the enhancement allegation as part of a plea deal. The trial court accepted Appellant's plea and sentenced him to eight years' incarceration, but the court probated the sentence for four years, placed him on community supervision, and ordered him to serve up to twelve months in a Substance Abuse Felony Punishment Facility (SAFPF).
Following the plea, the State filed several motions to revoke Appellant's community supervision, leading to the February 7, 2020 motion that serves as the basis for this appeal. In its motion, the State alleged that the Appellant violated the terms of his probation by: (1) committing the offense of evading arrest or detention with a previous conviction; (2) not abstaining from the use of narcotics as shown by testing positive for amphetamine and methamphetamine; (3) possessing amphetamine and methamphetamine; (4) failing to pay court costs, fines, attorney's fees, and other fees associated with his conviction; (5) failing to submit a sworn inability-to-paycosts affidavit to his community supervision officer; and (6) failing to complete the required 350 hours of community service at a rate of at least 20 hours per month.
B. Revocation Hearing
The trial court held a contested hearing to revoke Appellant's community supervision. At the revocation hearing, Appellant pleaded not true to the State's motion to revoke. The State abandoned the paragraph of its motion alleging that Appellant evaded arrest or detention with a previous conviction. Upon the State's request, the trial court took judicial notice of the court's file associated in this case (trial court cause number 16-08-08080-CR).
The State called as its only witness Sam Lujan, a community-supervision officer. Lujan did not directly supervise Appellant here but was familiar with him from a prior case for which he was Appellant's community-supervision officer. Lujan had reviewed the State's motion to 2 revoke prior to his testimony. And specifically, Lujan testified that he was familiar with State's Exhibit 1, a document that contained Appellant's admission that he had used cocaine and methamphetamine on or about January 15, 2020, and State's Exhibit 2, a laboratory report that showed that a sample of Appellant's urine was positive for methamphetamine. Lujan was also present when Appellant admitted to the other community supervision officer that he had used methamphetamine and signed State's Exhibit 1 (which Lujan and the other community supervision officer also signed). Lujan recalled that he wrote the word "methamphetamine" on the admission document. The trial court admitted State's Exhibit 1 without Appellant's objection.
Another community-supervision officer, who was no longer with Lujan's office, had supervised Appellant in this case.
When the State offered State's Exhibit 2, Appellant objected that the laboratory report contained hearsay and violated the Confrontation Clause. The State responded that a statute allowed for the admission of laboratory test results, but the prosecutor admitted that he had possibly not laid the proper foundation for the admission of the results; the trial court sustained Appellant's objection.
As to other grounds for the motion to revoke, Lujan testified that Appellant was delinquent in paying his fine ($861), court costs ($328), restitution ($877.50) and attorney's fees ($400). Appellant was also delinquent in paying $2,360 of community supervision fees and had made only one payment of $100 during his time on community supervision. Lujan did not believe Appellant had ever submitted an affidavit of an inability to pay.
Lujan also testified that Appellant had only performed 10 hours of his required community service out of a required total of 350 hours. Lujan acknowledged that Appellant would not have been able to complete community service hours while he was being treated at the treatment centers from January 2018 through October 2018. Put differently, Lujan testified that Appellant could not perform community service hours for a total of approximately 10 out of 42 months he had been 3 on community supervision, but Appellant nonetheless had an opportunity to perform community service hours and make payments for 32 out of the 42 months he had been on community supervision.
In response, Appellant testified that his signature was present on the State's Exhibit 1 and that his handwriting was evident in every word on the document except "methamphetamine," but that word was not written on the document when he signed it. Rather, Appellant asserted that when he signed the document, only the word "cocaine" was written, and that he had only admitted to using cocaine when he signed the document. Appellant testified that he did not use methamphetamine on January 15 or 17, 2020 (the dates alleged in the motion to revoke).
Appellant testified that he was incarcerated or in the SAFP program for approximately 20 months. During that time, he could not generate income or make any required payments. Since being on probation, he was only able to work as a self-employed pressure washer. His other financial obligations, such as paying rent and providing for his children, impeded his ability to make payments. Appellant also agreed that he was "quite a bit behind" on his community service hours, and further admitted that his incarceration did not fully explain that deficiency.
On cross-examination, Appellant acknowledged that the laboratory report showed that he was positive for amphetamine or methamphetamine use on January 17, 2020. The State reoffered the report as rebuttal evidence to Appellant's testimony, and Appellant again objected that the admission of the report would violate the Confrontation Clause and that the State lacked a foundation for the report's admission. The State responded that it did not need to present a laboratory technician's testimony as a predicate to admitting the report, and that Lujan had testified to the report's authenticity. The trial court overruled Appellant's objection and admitted the report. 4
The trial court found that Appellant had violated these terms and conditions of his community supervision set forth in the State's motion to revoke: (1) using methamphetamine; (2) possessing methamphetamine; (3) failing to pay fines and fees associated with his conviction; (4) failing to file an affidavit of an inability to pay; and (5) failing to perform community service hours. Having found those allegations true, the court revoked Appellant's community supervision and sentenced him to eight years' incarceration. This appeal follows.
II. Discussion
Appellant challenges the trial court's revocation of his community supervision in three issues. In particular, Appellant argues that the trial court abused its discretion by: (1) admitting the laboratory report over his Confrontation Clause, hearsay, and foundation objections; (2) failing to inquire into both Appellant's ability to pay the required fines and fees, and alternatives to imprisonment if Appellant could not pay; and (3) finding that Appellant failed to complete the required number of community service hours. Because sufficient evidence supports the trial court's revocation order based on Appellant's failure to complete community service hours (as set forth in Issue Three) and his use and possession of methamphetamine, we need not address his other appellate issues.
A. Standard of Review
We review a trial court's order revoking probation for an abuse of discretion. Torres v. State, No. 08-19-00214-CR, 2021 WL 2897302, at *2 (Tex.App.--El Paso July 9, 2021, no pet.) (not designated for publication), citing Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984). In probation revocation cases, the State has the burden to prove by a preponderance of the evidence that a condition of supervision was violated. Id., citing Cardona, 665 S.W.2d at 493. This burden is satisfied when the greater weight of the credible evidence creates a reasonable belief 5 that a condition of community supervision has been violated. Id., citing Rickels v. State, 202 S.W.3d 759, 763-64 (Tex.Crim.App. 2006). We review the evidence supporting the revocation order in the light most favorable to the trial court's decision, deferring to the trial court's credibility determinations and to the findings of the violations as true or not. Id., citing Garrett v. State, 619 S.W.3d 172, 174 (Tex.Crim.App. 1981). Proof of a single violation in a revocation hearing is enough to support revocation, and we will not find the trial court abused its discretion if the evidence is sufficient to find as true any one of the alleged violations. McBryde v. State, No. 08-11-00004-CR, 2012 WL 225650, at *2 (Tex.App.--El Paso Jan. 25, 2012, no pet.) (not designated for publication), citing Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App. 1980) and Martinez v. State, 130 S.W.3d 95, 99 (Tex.App.--El Paso 2003, no pet.).
B. Sufficient Evidence Supports the Trial Court's Revocation Order
1. Community service hours
Appellant was placed on community supervision on March 3, 2017. As part of his community supervision, Appellant needed to complete 350 hours of community service at a rate of at least 20 hours per month. Paragraph 8 of the State's motion to revoke alleged that within 30 days of the filing of the motion, Appellant had only completed 10 of the 350 hours of required community service. At the revocation hearing, the State presented Lujan's testimony that Appellant needed to complete 350 hours of community service as a term of his community supervision, but that Appellant had only completed 10 hours of the 350 hours. Lujan acknowledged that for a period of around 10 months, Appellant could not have completed the required community service hours while he was attending SAFPF or residing at an inpatient rehabilitation facility. Even so, Appellant testified on direct examination that his lack of completed community service hours was "not completely to blame on being incarcerated," and 6 although he agreed that the COVID-19 pandemic had made it "difficult" to complete hours, Appellant further acknowledged that he "still [had] quite a bit of hours that [he] need[ed] to get completed."
Based on Lujan's and Appellant's testimony, we find that the trial court did not abuse its discretion by finding by a preponderance of the evidence that Appellant failed to complete the required 350 hours of community service at the required 20 hours-per-month rate. Although acknowledging that there were periods of time that Appellant would have likely been unable to complete his assigned community service hours due to his incarceration or placement in treatment facilities, the record shows that Appellant had other significant periods of time in which he did not complete either the total number of required hours, or complete the hours at anywhere near the necessary monthly rate. Thus, the trial court did not abuse its discretion by finding that Appellant failed to complete the required community service hours. See Irsan v. State, No. 09-17-00044-CR, 2018 WL 3131016, at *4-5 (Tex.App.--Beaumont June 27, 2018, no pet.) (mem. op., not designated for publication) (holding that the trial court did not abuse its discretion by revoking the defendant's community supervision where the defendant had not completed either his community service hours as a total sum, or at the required monthly rate).
Appellant argues that entries in the clerk's record suggests that Appellant was either incarcerated or being held at SAFPF for a total of 497 days between his conviction and the State's motion to revoke, and that Appellant could not complete the assigned community service hours during this period. Even assuming the asserted 497 days is correct, the period between Appellant's placement on community supervision and the State's motion to revoke is approximately 1, 000 days--more than enough time for Appellant to have completed more than 10 hours of community service. And although Appellant contends that the State did not specifically 7 allege a failure to complete 20 hours per month, he concedes that he did not, in fact, complete the required 20 hours per month for any month throughout the time he was on community supervision.
Finally, Appellant contends that the State's motion to revoke was filed before the expiration of the term in which he could have performed the required community service. In support, he cites Dureso v. State, 988 S.W.2d 448, 450 (Tex.App.--Houston [1st Dist.] 1999, pet. ref'd), where the Houston court of appeals held that the trial court abused its discretion by revoking the defendant's community supervision because the State moved to revoke before the expiration of the term in which the defendant could have performed the community service required for the month. However, Dureso is distinguishable. In that case, the defendant had until March 21st to complete 10 hours of community service required for the month beginning February 21st. When that defendant was arrested on March 3rd, he had already registered to start his community service and still had almost three weeks to complete the assignment. Id. The State then moved to revoke based on the defendant's failure to begin community service during that single month period. Id. Here by contrast, the record shows that the State filed its motion to revoke after many months of Appellant's continuous failure to complete the required monthly number of community service hours.
Thus, the record contains sufficient evidence to establish by a preponderance of the evidence that Appellant failed to complete the required community service hours, and this ground alleged in the State's motion to revoke, by itself, is enough to support the trial court's revocation order. See Irsan, 2018 WL 3131016, at *4-5; see also McBryde, 2012 WL 225650, at *2, citing Moore, 605 S.W.2d at 926 and Martinez, 130 S.W.3d at 99. 8
2. Appellant's use or possession of controlled substances
Even if the State had not proved Appellant's failure to complete the required community service hours, the record also supports the State's allegations that Appellant used or possessed amphetamine or methamphetamine. The State established this fact through Lujan's testimony that he overheard Appellant verbally admitting to using methamphetamine, as well as through Appellant's signed confession that the trial court admitted without objection during the revocation hearing. Although Appellant testified that the word "methamphetamine" was written in after he signed the document and that he only admitted to using cocaine by signing the document, the trial court as fact finder was free to reject Appellant's testimony and believe Lujan's testimony that Appellant confessed to using or possessing methamphetamine.
Affording proper deference to the trial court's findings, we find that the State proved Appellant's use or possession of methamphetamine by a preponderance of the evidence, even without considering the laboratory report showing Appellant's positive urine test for methamphetamine. Moreover, Appellant's admission to the use of cocaine could establish his use or possession of narcotics, even if the allegation in the State's motion specifically alleged only methamphetamine. See, e.g., Cunningham v. State, 488 S.W.2d 117, 121-22 (Tex.Crim.App. 1972) (holding that the trial court did not abuse its discretion in revoking the defendant's community supervision based on the defendant's use of narcotics where the State failed to prove the specific allegation of the defendant's heroin use, but presented a community supervision officer's testimony that the defendant had admitted to using "narcotics").
III. Conclusion
In sum, we find that the State proved by a preponderance of the evidence that Appellant violated the terms of his community supervision by: (1) failing to perform the required number of 9 community service hours; and (2) using or possessing methamphetamine. Having found sufficient evidence to support the trial court's revocation order on these bases, we need not consider Appellant's other appellate issues that address the other grounds of the State's motion to revoke. See TEX.R.APP.P. 47.1; see also McBryde, 2012 WL 225650, at *2, citing Moore, 605 S.W.2d at 926 and Martinez, 130 S.W.3d at 99.
Appellant's Issues One, Two, and Three are overruled. The trial court's judgment is affirmed. 10