Ulices Ivan Alcala v. State ( 2016 )

Opinion filed October 20, 2016
In The
Eleventh Court of Appeals
__________
Nos. 11-14-00285-CR & 11-14-00286-CR
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ULICES IVAN ALCALA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause Nos. CR37343 & CR37445
MEMORANDUM OPINION
The grand jury returned two indictments against Appellant, Ulices Ivan
Alcala. One indictment was for the offense of burglary of a habitation with the intent
to commit theft and the other was for burglary of a habitation. Appellant pleaded
guilty in both cases. Under the terms of the plea agreement, the trial court deferred
the adjudication of Appellant’s guilt and placed Appellant on deferred adjudication
community supervision for a term of six years in each case. Later, Appellant entered
into an agreement to modify the conditions of his community supervision to include
his placement in a Substance Abuse Felony Punishment Facility (SAFPF).
Subsequently, the State filed a motion to adjudicate Appellant’s guilt and revoke his
community supervision in both cases. The State alleged that Appellant violated
multiple terms of his community supervision. After a hearing, the trial court found
the State’s allegations to be true. The trial court found Appellant guilty of burglary
of a habitation with the intent to commit theft and of burglary of a habitation, and it
assessed Appellant’s punishment at confinement for eight years in each case. The
trial court ordered that the sentences are to run concurrently. We affirm.
In a single issue, Appellant challenges the trial court’s revocation of
Appellant’s deferred adjudication community supervision. Specifically, Appellant
asserts that the trial court abused its discretion and denied him due process because
it failed to properly consider testimony from witnesses Rhonda Carrigan and Shelby
Corbell and failed to consider the recommendation made by the State that Appellant
should be confined for five years.
A determination by a trial court that it will proceed with an adjudication on
the original charge is reviewable in the same manner as we review a revocation of
community supervision under TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21 (West
Supp. 2016). Antwine v. State, 268 S.W.3d 634, 636 (Tex. App.—Eastland 2008,
pet. ref’d). We review a trial court’s decision to revoke community supervision
under an abuse of discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex.
Crim. App. 1984). The trial court is the sole judge of the credibility of the witnesses
and the weight to be given to their testimony, and we review the evidence in the light
most favorable to the trial court’s ruling. Id. We will uphold a trial court’s decision
to revoke if any one of the alleged violations of the conditions of community
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supervision is supported by sufficient evidence. Moore v. State, 605 S.W.2d 924,
926 (Tex. Crim. App. [Panel Op.] 1980).
The State alleged three allegations against Appellant to show that Appellant
violated the terms and conditions of his deferred adjudication community
supervision. In allegation number one in the motion to revoke, the State alleged that
Appellant was unsuccessfully discharged from Clover House, a transitional
treatment center in which Appellant was enrolled as part of his residential substance
abuse continuum of care and aftercare. Rhonda Carrigan, Clinical Program Director
for Clover House, testified that Appellant, as a resident of Clover House, was held
accountable for his behavior inside and outside Clover House. She testified, “They
are to live within the norms of society, be accountable and dependable. They’re
expected to attend groups, to continue their substance abuse counseling . . . to do
chores amongst the house, to abide by the rules, regulations, and expectations of the
program as well as the terms and conditions of their probation.” Appellant had a
total of twenty-six disciplinary entries, or “pull-ups,” during his 50-day stay at
Clover House.
In allegation number two, the State asserted that Appellant admitted that he
possessed or consumed synthetic marihuana, “K2.” Shelby Corbell, SAFPF
Coordinator for the Midland County Community Supervision and Corrections
Department, testified that Appellant, as part of his community supervision, was
required to abstain from the consumption of illegal drugs and alcohol. Appellant
was also subject to random drug tests. Appellant admitted that he used or consumed
synthetic marihuana, “K2,” on May 2, 2014, and March 10, 2014.
In allegation number three, the State alleged that Appellant failed to make
payments for fees assessed against him by the Midland County Community
Supervision and Corrections Department. Corbell confirmed that Appellant was
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$948 in arrears in cause number CR37343 and $287 in arrears in cause number
CR37445.
Appellant argues on appeal that his due process rights were violated when his
deferred adjudication community supervision was “arbitrarily withdrawn.”
Appellant contends that the trial court acted arbitrarily because it failed to properly
consider testimony from witnesses Rhonda Carrigan and Shelby Corbell and failed
to consider the recommendation made by the State that Appellant be confined for
five years. Thus, Appellant claims that the trial court abused its discretion when it
sentenced Appellant to confinement for eight years.
The State contends, however, that Appellant failed to preserve the complaint
that he urges on appeal that his due process rights were violated. In the alternative,
the State asserts that the trial court did not act in an arbitrary manner because
Appellant pleaded true to the three alleged violations in the motion to revoke and
because the trial court had the “benefit of the testimony of the Clinical Program
Director of Clover House and the SAFPF Coordinator for the Midland County
Community Supervision and Corrections Department concerning Appellant’s
violations of the terms of his community supervision.”
We agree with the State that Appellant waived his due process claim. To
preserve error on appeal, the record must show that a complaint was made to the trial
court by a timely request, objection, or motion. TEX. R. APP. P. 33.1(a)(1). A
complaint that a sentence violates due process must be presented to the trial court.
TEX. R. APP. P. 33.1(a); see Benson v. State, 224 S.W.3d 485, 498 (Tex. App.—
Houston [1st Dist.] 2007, no pet.) (en banc) (“An appellant must present to the trial
court a timely, specific objection and obtain an adverse ruling to preserve for appeal
his complaints concerning…violation[s] of due process rights.”). Appellant did not
urge a due process claim in the trial court. Further, although Appellant filed a motion
for new trial, he did not raise a due process issue in the motion; he alleged only that
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the verdict was “contrary to the law and the evidence.” Due process arguments are
subject to forfeiture by failure to object. Anderson v. State, 301 S.W.3d 276, 280
(Tex. Crim. App. 2009). We hold that Appellant has not preserved his due process
issue for appeal. We do note, however, that there is nothing in the record to suggest
that the trial court did not consider the evidence and testimony presented.
Appellant’s sole issue on appeal in cause number 11-14-00285-CR and cause
number 11-14-00286-CR is overruled.
We affirm the judgments of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
October 20, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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