Opinion
No. 08-15-00325-CR
05-23-2018
JOSE ENRIQUEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the 41st District Court of El Paso County, Texas (TC# 20120D05490) OPINION
Jose Enriquez appeals the trial court's order revoking his community supervision. We affirm.
BACKGROUND
In September 2013, Enriquez pleaded guilty to four counts of assault family violence. The district court sentenced him to eight years' confinement, but probated the sentence to eight years' of community supervision.
In July 2015, the State moved to revoke Enriquez's community supervision on multiple grounds. On appeal, the State disclaims several of its original rationales for revocation and instead focuses its argument on three grounds that, in the State's view, could properly support the trial court's order. First, the State alleged that for ten months beginning in 2014 and continuing through 2015, Enriquez failed to report to his probation officer. Second, the State alleged that Enriquez failed to make his monthly supervision fees. And third, the State alleged that in September 2014, the El Paso Police Department responded to a domestic violence call at a home where Enriquez was located, and when police attempted to arrest Enriquez, he resisted, thereby violating the terms of his probation. Enriquez's failure to report to his probation officer began shortly after this arrest.
At the revocation hearing, the State called two witnesses. Adult Probation Officer Miguel Ulloa was Enriquez's probation officer. Enriquez began community supervision on September 24, 2013, and regularly met with Officer Ulloa monthly per the terms of the community supervision order. However, in September 2014, Enriquez stopped reporting to Officer Ulloa. Enriquez did not report to Officer Ulloa again until June 2015. During the non-reporting period, Enriquez did not contact the probation department, and the probation department sent him two letters. Officer Ulloa testified that Enriquez told him the reason he did not report was because he was working out of town. However, Enriquez was required to get prior approval from the court before leaving the city, and Enriquez did not do so.
The State also called El Paso Police Department Officer Luis Gonzalez, who testified about responding to a domestic violence call involving Enriquez. In brief, according to Gonzalez, officers attempted to arrest Enriquez for assault, but he resisted and pulled away. After using Tasers, several officers finally subdued Enriquez, who also at one point allegedly lunged at his wife.
Enriquez did not testify at the revocation hearing, but he did call his mother Hilda Perez as a defense witness. Perez testified that her son lived with her in El Paso and that he worked as an electrician for a company in El Paso. She also described her perspective of the arrest described by Officer Gonzalez in his testimony.
The trial court found the charges were true and revoked Enriquez's community supervision. This appeal followed.
DISCUSSION
In a single appellate issue with multiple parts, Enriquez argues that the trial court abused its discretion because none of the grounds advanced by the State as justifications for probation revocation were meritorious.
Standard of Review
We review the trial court's decision revoking community supervision for abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006). The State must prove the existence of a predicate violation of supervision terms by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). We view the evidence in the light most favorable to the trial court's ruling. Becker v. State, 33 S.W.3d 64, 66-67 (Tex.App.--El Paso 2000, no pet.). Because we may uphold a probation order if the evidence is sufficient as to a single alleged violation, id., and because we determine that the evidence underpinning the failure to report charge is legally sufficient, we will begin and end our discussion with the State's allegations regarding failure to report.
Failure to Report
In sub-point two of Enriquez's sole appellate issue, he maintains that before the State may revoke community supervision for failure to report, the State must first make efforts to track down the absent probationer. Because Officer Ulloa made no effort to find him before the State moved to revoke his community supervision, Enriquez asserts that the trial court could not issue a valid revocation order based on his failure to report to Officer Ulloa for ten months. We disagree.
The due-diligence defense, now codified at TEX.CODE CRIM.PROC.ANN. 42A.109 (West 2018), states:
The due-diligence defense was previously located at TEX.CODE CRIM.PROC.ANN. art. 42.12, § 24. That provision and others were repealed and relocated effective January 1, 2017 as part of a non-substantive recodification of the Code of Criminal Procedure's community supervision provisions into the newly-created Chapter 42A. See Act of June 17, 2015, 84th Leg., R.S., ch. 770, §§ 1.01, 3.01, 2015 TEX.GEN.LAWS. 2321, 2330, 2395 (codified in Chapter 42A of the Texas Code of Criminal Procedure).
For purposes of a hearing under Article 42A.108, it is an affirmative defense to revocation for an alleged violation based on a failure to report to a supervision officer as directed or to remain within a specified place that no supervision officer, peace officer, or other officer with the power of arrest under a warrant issued by a judge for that alleged violation contact or attempt to contact the defendant in person at the defendant's last known residence address or last known employment address, as reflected in the files of the department serving the county in which the order of deferred adjudication community supervision was entered.
The due diligence defense applies in situations where a defendant is arrested for a community supervision violation after the community supervision period has expired; the defense is unavailable if the arrest for the violation is made within the community supervision period. See Garcia v. State, 387 S.W.3d 20, 24 (Tex.Crim.App. 2012); Ballard v. State, 126 S.W.3d 919, 921 (Tex.Crim.App. 2004); DeLeon v. State, No. 13-10-00581-CR, 2012 WL 914950, at *4 (Tex.App.--Corpus Christi-Edinburg Mar. 15, 2012, no pet.)(mem. op., not designated for publication). Contrary to Enriquez's assertions, the statutory due diligence defense does not "create a duty on the State to track him down and make sure that he reports to his community supervision officer as ordered." Roper v. State, No. 06-15-00077-CR, 2016 WL 398401, at *4 (Tex.App.--Texarkana Feb. 1, 2016, no pet.)(mem. op., not designated for publication).
Here, Enriquez was both re-arrested and charged with violating the terms of his community supervision before the community supervision period expired. He does not otherwise contest that he failed to report to his probation officer for multiple months, and Officer Ulloa's testimony confirms that Enriquez failed to meet the requirements of that term, despite the fact that Officer Ulloa sent Enriquez two letters about his failure to report. That testimony is legally sufficient to establish the violation. Given that the State proved a violation by the preponderance of the evidence, the trial court did not abuse its discretion by issuing the revocation order based on Enriquez's failure to report for ten months.
CONCLUSION
We overrule Issue One and affirm the trial court's order on the basis of Enriquez's failure to report. Because this ground, standing alone, is sufficient to support the trial court's decision, we decline to address Enriquez's remaining appellate arguments as unnecessary to the resolution of this appeal. TEX.R.APP.P. 47.1. May 23, 2018
YVONNE T. RODRIGUEZ, Justice Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J. (Not Participating) (Do Not Publish)