Opinion
NO. 01-15-00997-CR NO. 01-15-00998-CR
01-26-2017
JAIRO DANIEL MORENO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court Harris County, Texas
Trial Court Case No. 1373238 & 1373451
MEMORANDUM OPINION
Jairo Daniel Moreno appeals from an order adjudicating his guilt, revoking his community supervision, and sentencing him to twenty years' confinement. In his sole issue, Moreno contends that the trial court erred in admitting into evidence certain out-of-court statements, which were used to prove that he violated the conditions of his community supervision by assaulting his wife, B. Cruz. Because the State presented evidence that Moreno committed other violations of his community supervision and Moreno admitted to committing other violations, we hold that any error in admitting the out-of-court statements was harmless. Therefore, we affirm.
Factual and Procedural Background
In 2012, Moreno robbed two men at gunpoint. Moreno was indicted on two counts of aggravated robbery. He pleaded guilty to both counts without an agreed recommendation. The trial court deferred adjudication of guilt and placed Moreno on community supervision for nine years.
In 2015, Moreno's wife, B. Cruz, called 911 to report that she had been assaulted. When Officer C. Johnson arrived, he found Cruz in a "scared" and "hysterical" state, with "one of the biggest knots" he had ever seen on the left side of her face. Cruz identified Moreno as her assailant, leading to Moreno's arrest. After Moreno's arrest, the State moved to adjudicate guilt, alleging that Moreno had violated various conditions of his community supervision.
At the adjudication and revocation hearing, the State offered the testimony of Officer Johnson to prove that Moreno violated his community supervision by assaulting Cruz. Moreno objected to Johnson testifying about the statements that Cruz made to him on the day of the alleged assault, arguing that admitting such testimony would violate the Confrontation Clause. The trial court overruled Moreno's objection and permitted Johnson to testify about what Cruz had told him.
The State also offered the testimony of Jesus Diaz, Moreno's community supervision officer, to prove various other violations of Moreno's community supervision. Diaz testified that Moreno violated his community supervision by:
• failing to provide written proof of employment;
• failing to perform community service at the court-ordered rate of eight hours per month;
• failing to pay monthly supervision (or probation) fees, monthly laboratory processing fees, and monthly court costs;
• failing to participate in a drug and alcohol abuse treatment program;
• failing to enroll in a General Educational Development ("GED") program; and
• failing to participate in parenting classes.
Moreno pleaded "true" to failing to perform community service at the court-ordered rate, pay the monthly fees and costs, enroll in a GED program, and participate in parenting classes. Moreno pleaded "not true" to assaulting Cruz, failing to provide proof of employment, and failing to participate in a drug and alcohol abuse treatment program.
At the end of the hearing, the trial court found that Moreno had violated the conditions of his community supervision by assaulting Cruz, failing to perform community service, failing to pay the monthly fees and costs, failing to participate in parenting classes, and failing to participate in the drug and alcohol abuse treatment program.
The trial court adjudicated Moreno guilty on both prior counts of aggravated robbery and sentenced him to twenty years' confinement. Moreno timely appealed.
Analysis
In his sole issue, Moreno contends that the trial court violated the Confrontation Clause by admitting, through the testimony of Officer Johnson, Cruz's out-of-court statements that Moreno had assaulted her. The State, in response, contends that any error in admitting Cruz's statements was harmless because the evidence proved various other violations of Moreno's community-supervision conditions, any one of which could independently support the trial court's order.
A. Standard of review and applicable law
We review an order adjudicating guilt and revoking community supervision for an abuse of discretion. Shah v. State, 403 S.W.3d 29, 33 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd); TEX. CODE CRIM. PROC. art. 42.12, § 5(b) (decision to proceed to adjudication of guilt and to revoke deferred adjudication community supervision is reviewable in same manner as revocation of ordinary community supervision).
In a community supervision revocation proceeding, the State must prove by a preponderance of the evidence that the defendant violated the conditions of his community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Williams v. State, 672 S.W.2d 896, 898 (Tex. App.—Houston [1st Dist.] 1984, no pet.). If the State fails to meet its burden of proof, the trial court abuses its discretion in revoking the community supervision. Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984).
In reviewing the trial court's determination that the defendant violated the conditions of his community supervision, we view the evidence in the light most favorable to the trial court's ruling, bearing in mind that the trial court is the trier of fact and the arbiter of the witnesses' credibility. See Duncan v. State, 321 S.W.3d 53, 57 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). We will affirm the trial court's order so long as there is sufficient proof of a single violation, including the defendant's plea of true to an alleged violation. O'Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App. [Panel Op.] 1981); Clapper v. State, 562 S.W.2d 250, 250 (Tex. Crim. App. [Panel Op.] 1978); Shah, 403 S.W.3d at 33.
B. No harm in admitting Cruz's statements to Officer Johnson
Assuming without deciding that the trial court erred in admitting, through the testimony of Officer Johnson, Cruz's out-of-court statements that she had been assaulted by Moreno, we hold that the error was harmless because the evidence proved that Moreno committed various other violations of the conditions of his community supervision.
In addition to assaulting Cruz, the trial court found that Moreno violated the conditions of his community supervision by failing to perform community service at the court-ordered rate, pay monthly fees and costs, participate in the drug and alcohol abuse treatment program, and participate in parenting classes. Each of these findings was supported by the testimony of Diaz, Moreno's community supervision officer, and each of them independently supports the trial court's order. See, e.g., O'Neal, 623 S.W.2d at 661 ("[P]roof of any violation of the terms of probation will support an order revoking probation."); Williams, 672 S.W.2d at 898 ("If any of the violations are supported by the evidence, the order revoking probation will be upheld."); Marcum v. State, 983 S.W.2d 762, 767 (Tex. App.—Houston [14th Dist.] 1998, pet. ref'd) (recognizing that State only need prove one violation of condition of probation and that failure of defendant to report to his community supervision officer as instructed on one occasion is sufficient grounds for adjudication of guilt).
Moreover, Moreno himself admitted to failing to perform community service at the court-ordered rate, pay monthly fees and costs, and participate in parenting classes. Clapper, 562 S.W.2d at 250 ("Appellant's plea of true was alone sufficient to support revocation.").
On the last page of his brief, Moreno states—without citing to any authority or to any part of the record—that "[i]t cannot be determined beyond a reasonable doubt that that the error did not contribute to [his] sentence." To the extent that Moreno contends that the admission of Cruz's out-of-court statements erroneously influenced his sentence, and not just the revocation of his community supervision, we hold that Moreno has inadequately briefed the issue. TEX. R. APP. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011).
Any error in admitting Cruz's out-of-court statements was harmless, as the rest of the evidence established other grounds sufficient to adjudicate Moreno's guilt. Accordingly, we hold that the trial court did not abuse its discretion in adjudicating Moreno's guilt and revoking his community supervision. We overrule Moreno's sole issue.
Conclusion
We affirm the trial court's judgment.
Harvey Brown
Justice Panel consists of Justices Massengale, Brown, and Huddle. Do not publish. Tex. R. App. P. 47.2(b).