Arturo Hernandez v. State ( 2005 )

                             NUMBER 13-04-00164-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

ARTURO CHAVEZ HERNANDEZ,                                                    Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

    On appeal from the 105th District Court of Kleberg County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

On September 7, 1989, pursuant to a plea agreement, appellant, Arturo Chavez Hernandez, pleaded guilty to the offense of possession of a controlled substance.  In accordance with the plea agreement, the trial court (1) assessed appellant=s punishment at ten years= imprisonment and a $3,000 fine, (2) suspended the prison sentence, and (3) placed him on community supervision for ten years.

On February 9, 1999, the State filed a motion to revoke appellant=s community supervision, alleging various violations.  Appellant pleaded Anot true@ to all of the allegations.  After an evidentiary hearing, the trial court (1) found appellant had violated several conditions of his community supervision, (2) revoked appellant=s community supervision, and (3) assessed his punishment at ten years= imprisonment. The trial court has certified that this is not a plea bargain case, and the defendant has the right of appeal.  See Tex. R. App. P. 25.2(a)(2).  By six points of errors, appellant contends the trial court abused its discretion in revoking his community supervision because (1) the rehearing of a motion to revoke is barred by double jeopardy, (2) the State failed to provide fair notice of the violation alleged in ACount 7,@ and (3) the trial court improperly admitted hearsay evidence.  We affirm.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

                                                        A.  Double Jeopardy

In his first point of error, appellant contends that because the motion to revoke community supervision was originally heard and granted by the trial court, reversed and remanded by this Court, see Hernandez v. State, 55 S.W.3d 701 (Tex. App.BCorpus Christi 2001, pet. granted) (AHernandez I@), and affirmed by the Court of Criminal Appeals, see Hernandez v. State, 116 S.W.3d 26 (Tex. Crim. App. 2003), the trial court=s rehearing of the same motion to revoke constitutes double jeopardy.

Generally, double jeopardy does not attach when a case is reversed by an appellate court because of trial error.  Deason v. State, 786 S.W.2d 711, 718 (Tex. Crim. App. 1990); Franklin v. State, 693 S.W.2d 420, 432 (Tex. Crim. App. 1985).  Distinguishing reversal for trial error as opposed to reversal for evidentiary insufficiency, the United States Supreme Court has stated that the former

does not constitute a decision to the effect that the government has failed to prove its case . . . it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect. . . .  When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.

Burks v. United States, 437 U.S. 1, 98 (1978); see also Ex parte Duran, 581 S.W.2d 683 (Tex. Crim. App. 1979). 

Because the basis of our reversal in Hernandez I was due to trial error, i.e., the erroneous admission of evidence, see Hernandez, 55 S.W.3d at 706, the rehearing of the motion to revoke was not barred by double jeopardy. Appellant=s first point of error is overruled.

                                         B.  Admission of Hearsay Evidence

In his fifth point of error, appellant contends the trial court abused its discretion in revoking appellant=s community supervision because it erroneously admitted hearsay evidence regarding Count 10 of the motion which alleged that he failed to report to his community supervision officer.  Specifically, appellant asserts the State failed to lay any predicate that a document in his community supervision file qualified under the business records exception. We review a trial court's decision to admit evidence under an abuse of discretion standard.  Allen v. State, 108 S.W.3d 281, 285 (Tex. Crim. App. 2003).

Michelle James, a case worker/special services supervisor with the Kleberg County Community Supervision and Corrections Department, testified she was familiar with appellant=s community supervision, reporting, and conditions of community supervision because she supervised appellant=s case when she began with the department in May 1994.   James said she supervises the indirect case worker unit.  She is responsible for the Apaper trail@ of individuals placed on community supervision.  When a case is transferred to an individual=s county of residence, her role is to (1) request progress reports, (2) submit request response forms for specific conditions of supervision, and (3) contact the community supervision officer by telephone and request verbal progress reports.  James testified that appellant=s case was transferred to Willacy County on March 7, 1995.

Early in her testimony, James referred to appellant=s community supervision file to answer certain questions.  She testified that the file was a record that was kept in the regular course of business at the Kleberg County Community Supervision and Corrections Department.  When asked if appellant had reported to his community supervision officer as directed for the months of August, September, and October, 1996, James referred to documented correspondence in appellant=s community supervision file.  She testified that she received a progress report from the Willacy County community supervision officer who was supervising appellant at the time, indicating that appellant had failed to report during those three months. Appellant objected on the grounds that the testimony consisted of hearsay matters not within the record, but the trial court overruled appellant=s objection.

A community supervision record has probative value in a revocation proceeding and constitutes evidence of facts or non‑facts recited in the record.  Hardman v. State, 614 S.W.2d 123, 128 (Tex. Crim. App. 1981).  If a witness testifies that the records were kept in the regular course of business, and the officers who made the entries did have personal knowledge of the facts, the proper predicate has been laid and the witness can testify from the community supervision record. Simmons v. State, 564 S.W.2d 769, 770 (Tex. Crim. App. 1978).  In this case, the State laid the proper predicate.

Moreover, the file does not have to be physically introduced into evidence, but can be read into evidence.  Lumpkin v. State, 524 S.W.2d 302, 304 (Tex. Crim. App. 1975); Williams v. State, 508 S.W.2d 83, 85 (Tex. Crim. App. 1974).  When it is obvious that the witness is testifying from the record, the rule requiring production of the record is complied with if the record is produced and accounted for and available for defendant's counsel.  Alvarez v. State, 508 S.W.2d 100, 102 (Tex. Crim. App. 1974); Cozby v. State, 506 S.W.2d 589, 591 (Tex. Crim. App. 1974). Accordingly, we conclude the trial court did not abuse its discretion in overruling appellant=s hearsay objection.

We hold the trial court did not abuse its discretion in revoking appellant=s community supervision because he failed to report to his community supervision officer as directed.  Appellant=s fifth point of error is overruled.

                                          C.  Failure to Provide Fair Notice

In his second point of error, appellant contends the trial court abused its discretion in revoking his community supervision because it failed to require the State to provide fair notice of the violation contained in Count 7 of the motion to revoke. Because we have held the trial court did not abuse its discretion in revoking appellant=s community supervision because he failed to report to his community supervision officer, we need not consider appellant's second point of error.   See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980) (violation of any one condition is sufficient to support trial court's decision to revoke appellant's community supervision).  For the same reason, we find it unnecessary to address appellant=s remaining points of error.  See Tex. R. App. P. 47.1.

            We affirm the trial court=s order granting the State=s motion to revoke appellant=s community supervision.

FEDERICO G. HINOJOSA

Justice

Do not publish.  See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 21st day of July, 2005.