Rogelio Bernal Sanchez v. State ( 2018 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-17-00115-CR
ROGELIO BERNAL SANCHEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th District Court
Gregg County, Texas
Trial Court No. 42970-A
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
After Rogelio Bernal Sanchez pled guilty to second-degree-felony possession of a
controlled substance, the trial court placed him on ten years’ deferred adjudication community
supervision. After allegedly violating several of the terms of his community supervision, the State
filed a motion to adjudicate Sanchez’ guilt. After a hearing on the State’s motion, the trial court
found the allegations against Sanchez to be true and sentenced him to five years’ confinement.
Sanchez appeals the judgment of conviction against him, maintaining that the trial court erred in
revoking his community supervision because the State failed to prove that it used due diligence in
attempting to locate Sanchez. For the reasons below, we affirm the trial court’s judgment.
I. Background
On January 16, 2014, Sanchez entered an open plea of guilty to possession of a controlled
substance. The trial court deferred a finding of guilt and placed Sanchez on deferred adjudication
community supervision for a period of ten years. On that same day, the trial court entered an order
in which it required Sanchez to, among other things, complete a drug-offender education class,
pay supervision fees, court costs, and restitution.1
On October 2, 2014, the State filed is application for adjudication of guilt, alleging, among
other things, that Sanchez had failed to report to his community supervision officer twice monthly
1
In relevant part, Sanchez was ordered to (1) pay a monthly supervision fee of $60.00, beginning the month of February
2014; (2) pay a fine in the amount of $1,500.00, at the rate of $15.00 per month, beginning the month of February
2014; (3) pay court costs in the amount of $345.00, at the rate of $10.00 per month, beginning the month of February
2014; (4) pay restitution in the amount of $140.00, at a rate of $10.00 per month; (5) report twice a month to his
community supervision officer until it was deemed necessary to change, complete drug offender class within 180 days,
and pay a crime stopper fee of $50.00 within ninety days; and (6) successfully complete 480 hours of community
service work at the rate of four hours a week.
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during the months of July and September 2014. In June 2015, Candy Blackburn, a felony
community supervision officer with the Gregg County Community Supervision Department, sent
Sanchez a letter reminding Sanchez that he needed to pay his fees. In August 2015, Blackburn
sent Sanchez another letter notifying him that he had failed to report to the community supervision
office. Blackburn mailed the letters to the last known address that Sanchez had given her, and the
letters were not returned to the community supervision department. Sanchez never responded to
Blackburn’s correspondence.
On November 23, 2015, the State filed a subsequent application to adjudicate guilt,
alleging, among other things, that Sanchez failed to report and failed to pay his fees, court costs,
fines, and restitution as required by the conditions of his community supervision. On that same
day, the trial court issued a capias for Sanchez’ arrest. On May 8, 2017, Sanchez was arrested in
Smith County and returned to Gregg County.
On May 11, 2017, Sanchez filed a motion to dismiss an application to proceed to a guilty
finding for failure to exercise due diligence in locating him, arguing that one year and five months
had elapsed from the time the State filed its application until the time of his arrest. On May 17,
2017, the State filed an amended application for adjudication of guilt. In addition to its previous
allegations against Sanchez, the State supplemented its original application alleging, among other
things, that Sanchez had failed to successfully complete his court-ordered community service
work. The following day, the trial court held a hearing on Sanchez’ motion to dismiss, and it
determined that the motion should be denied.
3
On June 8, 2017, the trial court proceeded with a hearing on the State’s amended
application to adjudicate guilt. During the hearing, the parties stipulated to a portion of the
documentary evidence, including a written acknowledgment by Sanchez, stating, “All of the
matters and things set forth and alleged in the APPLICATION FOR REVOCATION OF
PROBATION herein are true and correct.” Sanchez then pled true to all of the State’s allegations
against him.2 The trial court accepted Sanchez’ pleas of true, adjudicated him guilty, and sentenced
him to five years’ confinement in prison.3 This appeal followed.
II. Standard of Review
We review a decision to adjudicate guilt in the same manner as we review a decision to
revoke community supervision—for abuse of discretion. Little v. State, 376 S.W.3d 217, 219 (Tex.
App.—Fort Worth 2012, pet ref’d) (citing Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
2006)); see In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.—Texarkana 2003, no pet.). In a
revocation hearing, the trial court is the sole trier of the facts and determines the credibility of the
witnesses and the weight given to their testimony. T.R.S., 115 S.W.3d at 321. A trial court’s
decision to revoke community supervision and to proceed to adjudication is examined in the light
most favorable to the trial court’s judgment. Id.
2
Following the trial court’s pronouncements, Sanchez clarified that he had pled not true to the allegation that he failed
to report in compliance with the conditions of his community supervision, and that he had pled true to the remaining
allegations. The trial court’s judgment states that Sanchez pled “TRUE ALLEGATION 2 THRU 6 NOT TRUE
ALLEGATION 1.” Regardless, the trial court found all of the State’s allegations against Sanchez to be true.
3
After being informed that Sanchez intended to appeal its ruling, the trial court set an appellate bond, precluding the
need for Sanchez to be remanded to custody.
4
The State must prove by a preponderance of the evidence that the defendant violated the
terms and conditions of community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim.
App. 1993). If the State fails to meet its burden of proof, the trial court abuses its discretion in
revoking community supervision. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).
Proof by a preponderance of evidence as to any one of the alleged violations of the conditions of
community supervision is sufficient to support a trial court’s decision to revoke community
supervision. See Marsh v. State, 343 S.W.3d 475, 479 (Tex. App.—Texarkana 2011, pet. ref’d)
(citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980)).
III. Discussion
Sanchez contends that the State failed to prove that it exercised due diligence in an attempt
to timely arrest him. Sanchez claims that the State’s lack of proof constitutes an affirmative
defense to the allegations in the State’s motion to adjudicate. For multiple reasons, Sanchez’
contention is without merit.
At common law, a trial court’s jurisdiction over a motion to revoke community supervision
did not survive the expiration of the community supervision period unless (1) a motion to revoke
was filed before the community supervision period expired, (2) an arrest warrant, capias, or
summons was issued before the community supervision period expired, and (3) the State exercised
due diligence in having a revocation hearing. Peacock v. State, 77 S.W.3d 285, 287–88 (Tex.
Crim. App. 2002), superseded by statute as recognized in Garcia v. State, 387 S.W.3d 20 (Tex.
Crim. App. 2012); see Harris v. State, 843 S.W.2d 34, 35 n.1 (Tex. Crim. App. 1992), overruled
by Bawcom v. State, 78 S.W.3d 360, 363 (Tex. Crim. App. 2002) (due diligence may be shown by
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pre-capias diligence). Under prior caselaw, the State had the burden to prove its due diligence
once the defendant raised the issue. Rodriguez v. State, 804 S.W.2d 516–17 (Tex. Crim. App.
1991) (per curiam).
However, in 2003, the Legislature enacted Section 24 of Article 42.12, which states,
For the purposes of a hearing under Section 5(b) or 21(b), it is an affirmative
defense to revocation for an alleged failure to report to a supervision officer as
directed or to remain within a specified place that a supervision officer, peace
officer, or other officer with the power of arrest under a warrant issued by a judge
for that alleged violation failed to 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 community supervision was entered.
Act of May 28, 2003, 78th Leg., R.S., ch. 250, § 3, 2003 Tex. Gen. Laws 1158, 1158, repealed by
Act of May 26, 2015, 84th Leg., R.S., ch. 770, § 1.01, 2015 Tex. Gen. Laws 2321, 2364 (re-
codified at TEX. CODE CRIM. PROC. art. 42A.756 (West Supp. 2017)). The statute addresses only
revocation proceedings that occur beyond the expiration of the term of community supervision. 4
Garcia v. State, 387 S.W.3d 20, 25 (Tex. Crim. App. 2012). In Garcia, the Court of Criminal
Appeals explained,
The legislative history reveals that the Legislature intended to replace the common-
law requirement with the due-diligence statute to reallocate the burden of proof in
those instances in which the State has timely alleged violations but has not arrested
the defendant before the community-supervision period has expired. Furthermore,
the history suggests that the legislation was intended to enhance the public’s safety
by permitting the government greater leeway to pursue those violators who have
failed to comply with their conditions of community supervision.
4
In this case, Sanchez was arrested prior to the expiration of his ten-year term of community supervision.
6
Id. Among other things, Section 24 of Article 42.12 shifted the burden of proof to the defendant,
and limited its use to allegations of “failure to report to a supervision officer as directed or to
remain within a specified place.” Id. at 23, 26 (quoting TEX. CODE CRIM. PROC. ANN. art. 42.12,
§ 24, which was subsequently repealed and re-codified at TEX. CODE CRIM. PROC. art. 42A.756).
However, the Legislature has since repealed Article 42.12, effective January 1, 2017, and
enacted Chapter 42A, as part of a nonsubstantive revision of the community-supervision laws.
Article 42A.756 states,
For the purposes of a hearing under Article 42A.751(d), 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 to arrest under a warrant issued by a
judge for the alleged violation contacted or attempted 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.
TEX. CODE CRIM. PROC. ANN. art. 42A.756 (West Supp. 2017). As in Section 24 of Article 42.12,
the due diligence defense contained in Article 42A.756 is applicable only to revocations involving
allegations of failure to report or failure to remain within a specified place.
Here, the trial court’s ruling was based on additional violations other than failure to report
or failure to remain in a specified place, namely, the failure to complete community service work
hours and the failure to pay fines, fees, costs, and restitution. Thus, even assuming, without making
a finding, that the State did not exercise due diligence in locating and arresting Sanchez, the trial
court did not abuse its discretion because a due-diligence defense is not available with respect to
allegations involving failure to complete community service work hours or failure to pay fines,
fees, costs, and restitution. In fact, Sanchez pled true to these particular allegations. Proof by a
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preponderance of evidence as to any one of the alleged violations of the conditions of community
supervision is sufficient to support a trial court’s decision to revoke community supervision. See
Marsh, 343 S.W.3d at 479.
For these reasons, we overrule Sanchez’ sole point of error.
IV. Conclusion
We affirm the trial court’s judgment.
Bailey C. Moseley
Justice
Date Submitted: January 23, 2018
Date Decided: January 24, 2018
Do Not Publish
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