No. 04-04-00169-CR
Delivered and Filed: February 16, 2005. DO NOT PUBLISH.
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 1999-CR-0304, Honorable Mary Roman, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Phylis J. SPEEDLIN, Justice.
PHYLIS J. SPEEDLIN, Justice.
Adalbert Castillo appeals the revocation of his community supervision under article 42.12, § 23, of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 42.12, § 23 (Vernon Supp. 2004-05). Castillo contends the trial court abused its discretion in revoking his community supervision because: (1) the State did not file a new motion to revoke after his community supervision was continued; and (2) he was sentenced to "time served" on the federal conviction that constituted the violation of a condition of his community supervision. We overrule Castillo's issues on appeal and affirm the judgment of the trial court.
Background
Castillo was charged with the state jail felony offense of credit card abuse. Tex. Pen. Code Ann. § 32.31 (Vernon Supp. 2004-05). Pursuant to a plea agreement, Castillo pled no contest. On August 30, 1999, Castillo was sentenced to two years in jail, and assessed a $1,000 fine and $3,280.99 restitution. His sentence was suspended, and he was placed on four years community supervision. The State filed a motion to revoke Castillo's community supervision approximately one year later; the court denied the motion and amended the conditions of his community supervision. Subsequently, on August 15, 2003, the State filed a second motion to revoke alleging that Castillo had violated two conditions of his community supervision by committing the federal offense of making a false statement to a federal law enforcement officer, and by failing to complete 400 hours of community service. At a hearing on October 27, 2003, the trial court set a $20,000 bond on the federal charge and amended the term of Castillo's community supervision by extending it for two additional years. Castillo, who was represented by counsel, did not enter a plea on the motion to revoke and no evidence was received on the alleged violations. With no objection from Castillo, the court reset the revocation hearing for sixty days in view of Castillo's pending federal charge. On March 1, 2004, Castillo pled "true" to the violation of condition no. 1 of his community supervision, i.e., commission of the federal offense of which he had by then been convicted. The trial court revoked Castillo's community supervision and sentenced him to two years confinement in the state jail. Castillo filed an appeal to this court. Standard of Review
Our review of a trial court's order revoking community supervision is limited to a determination of whether the trial court abused its discretion. Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim.App. 1983); Hays v. State, 933 S.W.2d 659, 660 (Tex.App.-San Antonio 1996, no pet.). The State must prove by a preponderance of the evidence that the probationer violated a term or condition of his community supervision. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App. 1993). "In a probation revocation proceeding, the trial court is the sole trier of the facts, the credibility of the witnesses, and the weight to be given to the evidence presented." Hays, 933 S.W.2d at 660. In determining whether the trial court abused its discretion, we view the evidence in the light most favorable to the court's findings. Id. Analysis
In his first issue, Castillo argues that his due process rights were violated when the trial court revoked his community supervision based on the August 15, 2003 motion to revoke, because the court had already acted on the motion when it modified the term of his community supervision to extend it for two years. Citing Furrh v. State, he asserts that due process requires a new motion to revoke and a finding that he violated a condition of his community supervision after it was continued. See Furrh v. State, 582 S.W.2d 824, 827 (Tex.Crim.App. [Panel Op.] 1979) (opin. on reh'g). The State replies that Castillo failed to raise any objection in the trial court, and has thus waived any error. We agree. The general rule that an appellate court will not consider any error that was not called to the attention of the trial court at the time when it could have been avoided or corrected also applies to constitutional error. Tex.R.App.P. 33.1(a)(1); see Marin v. State, 851 S.W.2d 275, 280 (Tex.Crim.App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex.Crim.App. 1997); see also Rogers v. State, 640 S.W.2d 248, 264 (Tex.Crim.App. 1982) (second opin. on reh'g). The contemporaneous objection rule applies in the context of appeals from orders revoking community supervision. Branch v. State, 477 S.W.2d 893, 895 (Tex.Crim.App. 1972). Failure to raise a due process objection to the procedures used by the trial court in revoking community supervision waives any complaint. Rogers, 640 S.W.2d at 263-64 (probationer waives error if he fails to raise a due process objection in the trial court, "either at the time the judge continues the hearing and/or probation, or at the time of actual revocation or at the time of sentencing"); see also In re J.L.D., 74 S.W.3d 166, 169 (Tex.App.-Texarkana 2002, no pet.) (due process objection in context of probation revocation hearing must be raised in trial court to preserve error for appellate review, even where defendant has a "manifestly meritorious claim"). In his brief, Castillo acknowledges the requirement that even constitutional error must be preserved in order to raise the error on appeal. He argues that the pro se letter he sent to the judge on December 29, 2003, two months after the October 27 hearing, was sufficient to raise a due process objection and to preserve error. In the letter, Castillo states in relevant part, "On Oct. 27 you extended my probation for another 2 years yet you reset the hearing for the MTR i [sic] don't understand how you could in effect rule on the motion yet still reset the hearing." The balance of the letter asks the judge to release him to his family, to reconsider the electronic monitoring condition and to reduce the amount of his bond. The record shows that at the time Castillo sent the letter to the judge and filed his pro se motions, he was represented by an attorney. A criminal defendant has no right to hybrid representation, that is, to both represent himself pro se and be represented by an attorney at the same time. Rudd v. State, 616 S.W.2d 623, 625 (Tex.Crim.App. [Panel Op.] 1981); see also Llano v. State, 16 S.W.3d 197, 198 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (trial court is not required to consider pro se motions filed while defendant is represented by counsel). Moreover, even if we were to consider Castillo's pro se communication to the court to be a sufficiently specific and timely due process objection, the objection was never ruled on by the trial court; therefore, no error was preserved. Tex.R.App.P. 33.1(a)(2); Neal v. State, 150 S.W.3d 169, 175 (Tex.Crim.App. 2004). Neither Castillo nor his counsel brought any objection to the trial court's attention during the October 27, 2003 or March 1, 2004 hearings. We conclude that Castillo forfeited his due process complaint about the revocation proceeding by failing to raise a timely objection in the trial court and obtain an adverse ruling on his objection. Tex.R.App.P. 33.1(a)(1), (2). In his second issue, Castillo asserts the trial court abused its discretion by revoking his community supervision and sentencing him to a term of confinement when he received only "time served" on the federal conviction that formed the basis for the revocation. Castillo concedes that a plea of "true" to a violation of community supervision constitutes sufficient evidence to support revocation. See Hays, 933 S.W.2d at 661; see also Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. [Panel Op.] 1979). He argues, however, that even though there was sufficient evidence to revoke his community supervision, the trial court abused its discretion when it failed to deny the motion to revoke and continue his community supervision. Castillo asserts the court abused its discretion in "extending the period of his incarceration" because he received no prison time to serve on his federal case and he had already been in state custody for several months during the pendency of the revocation proceeding. Once sufficient evidence is presented of a violation of a condition of community supervision, the trial court has almost absolute discretion in choosing whether to continue, modify or revoke the community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, §§ 22, 23 (Vernon Supp. 2004-05); see Hays, 933 S.W.2d at 661 ("When the proceedings are regular and the violation is properly proven, . . . the discretion of the trial court to choose the alternative of revocation is at lease [sic] substantially absolute.") (quoting Flournoy v. State, 589 S.W.2d 705, 708 (Tex.Crim.App. [Panel Op.] 1979)). We hold that because Castillo's plea of true properly supports a finding that he violated a condition of his community supervision, the trial court did not abuse its discretion in choosing to revoke his community supervision. See Gordon v. State, 4 S.W.3d 32, 35 (Tex.App.-El Paso 1999, no pet.). Further, the court did not abuse its discretion in sentencing Castillo to serve a two-year term of confinement, with credit for time served, upon revocation of his community supervision. See Krumboltz v. State, 945 S.W.2d 176, 177 (Tex.App.-San Antonio 1997, no pet.). Based on the foregoing reasons, we overrule Castillo's issues on appeal, and affirm the judgment of the trial court.