Gerson Molina v. the State of Texas ( 2022 )


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  •              In the
    Court of Appeals
    Second Appellate District of Texas
    at Fort Worth
    ___________________________
    No. 02-22-00017-CR
    ___________________________
    GERSON MOLINA, Appellant
    V.
    THE STATE OF TEXAS
    On Appeal from the 371st District Court
    Tarrant County, Texas
    Trial Court No. 1598024D
    Before Womack, Wallach, and Walker, JJ.
    Memorandum Opinion by Justice Walker
    MEMORANDUM OPINION
    The State filed a petition to adjudicate Appellant Gerson Molina guilty, alleging
    that he had violated the terms of his deferred-adjudication community supervision.
    After a revocation hearing, a criminal law magistrate found that Molina had violated
    certain terms of his community supervision, and the district court adjudicated him
    guilty and sentenced him to 10 years’ confinement. On appeal, Molina complains that
    (1) there were reversible procedural deficiencies related to the transfer of the case to
    the magistrate; (2) the State did not prove by a preponderance of the evidence that he
    had violated the terms of his community supervision; and (3) he was not given
    adequate notice of and an opportunity to object to the terms of his community
    supervision. We will affirm.
    I. BACKGROUND
    A. RELEVANT COMMUNITY SUPERVISION TERMS
    When Molina was placed on five years of deferred-adjudication community
    supervision for aggravated assault with a firearm, he signed two documents that
    outlined its terms and conditions as part of his plea bargain. The first document,
    titled “Conditions of Community Supervision,” prohibited Molina from committing
    additional criminal offenses and required him to pay fees. The second document,
    titled “Supplement/Amendment to Conditions of Community Supervision High
    Risk,” required Molina to successfully complete the high-risk gang caseload program,
    stated that he could not “possess a firearm or other dangerous or deadly weapon; nor
    2
    remain in any vehicle where such a weapon is possessed; or remain in the presence of
    any armed person,” and prohibited him from associating with known gang members
    and staying in places where gang members congregate.1 See Tex. Code Crim Proc.
    Ann. art. 42A.301(a).
    B. STATE’S PETITION TO PROCEED TO ADJUDICATION
    Predicated mainly on allegations that Molina had been involved in an
    altercation involving a shooting outside of a Fort Worth home, the State filed its
    petition to proceed with Molina’s adjudication and requested that his community
    supervision be revoked. The State alleged that Molina had (1) committed the new
    offense of engaging in organized criminal activity; (2) possessed a firearm; (3) been in
    a vehicle with an armed person and remained in the presence of an armed person;
    (4) been discharged from the high-risk caseload program for violating its terms;
    (5) associated with known gang members; and (6) failed to pay his community
    supervision fees.
    C. REVOCATION HEARING
    A hearing on the State’s petition was held over three days in front of a criminal
    law magistrate. See Tex. Gov’t Code Ann. § 54.656(a)(10). The record does not
    contain an order referring the case to the magistrate, but Molina never objected to the
    1
    The second document appears twice in the record, with one copy bearing the
    signatures of both Molina and the presiding judge. The second copy is signed by the
    judge and a supervision officer but not Molina.
    3
    magistrate’s presiding over the hearing.       Molina pleaded not true to all of the
    petition’s allegations.
    Testimony at the hearing established that Molina had been in an altercation at
    a carwash with seventeen-year-old F.V. See Tex. R. App. P. 9.10 (prohibiting use of
    minor’s names in court filings).     At some point the altercation ended and F.V.
    returned to his home in Fort Worth, taking Molina’s cell phone with him. Molina left
    the car wash and drove to another location where he picked up several companions,
    including two men named Carlos and Isaac. The men then drove to F.V.’s home.
    Upon arriving, Molina, Carlos, and Isaac exited Molina’s car and entered the
    front yard where F.V. was sitting in his parked truck on the lawn. F.V. then ran from
    the truck and into the home. F.V. testified that, as he was running, he heard Carlos
    say, “You gonna need a new truck” and then he heard Carlos shoot a gun. F.V.’s
    mother and sister, who were watching from inside the home, testified that they heard
    gunshots come from the front yard.
    F.V.’s sister recorded a short video soon after the three men entered the front
    yard. A still image from this video shows Molina, Carlos, and Isaac in the front yard.
    Isaac is standing in the foreground with Carlos and Molina behind him. Carlos
    appears to be pacing and is openly carrying a handgun at his side in his right hand.
    Molina stands a few feet to the left of Carlos and both men are facing the home.
    Molina testified that he did not know that anyone was carrying a gun while he
    was in F.V.’s front yard. He said that he heard F.V.’s mother yell that someone had a
    4
    gun and that he and Carlos then immediately ran to Molina’s car and drove away
    together. According to Molina, he first learned that Carlos had been carrying a gun in
    the yard when he viewed the image taken by F.V.’s sister.
    A police detective who interviewed Molina after the incident testified that
    Molina told him that he knew that Carlos had a gun while they were in F.V.’s front
    yard. Further, Molina told the detective that he did not immediately leave the front
    yard when he realized that Carlos was carrying the gun. Molina stated multiple times
    to the detective that he knew that he was not allowed to be around guns.
    During an investigation of the shooting scene, police found bullet holes in the
    sides of the house, F.V.’s truck, and Molina’s car, and they recovered over 25 shell
    casings of three different sizes from the street and yard.
    The magistrate found orally on the record that it was true that Molina had
    (1) engaged in organized criminal activity; (2) been in a vehicle where another
    possessed a firearm and remained in the presence of an armed person; and
    (3) associated with known gang members. The magistrate also orally adjudicated
    Molina guilty and sentenced him to ten years’ confinement. These pronouncements
    were also reduced to writing in the magistrate’s handwritten certificate of proceedings
    from the revocation hearing. The magistrate did not prepare any formal, written
    findings of fact, conclusions of law, or recommendations for the trial court. The trial
    court then signed its judgment adjudicating Molina guilty and sentencing him to 10
    years’ confinement.
    5
    II. ANALYSIS
    A. NO ERROR WITH MAGISTRATE ACTION
    In his first issue, Molina argues that the trial court’s judgment should be
    vacated because there was a “complete absence of procedure” related to the
    magistrate’s involvement in his case.       Citing Davis v. State, Molina alleges two
    deficiencies that, particularly when viewed together, constituted more than simple
    procedural error: (1) the lack of an order referring the case to the magistrate, and
    (2) the magistrate’s failing to prepare any findings of fact, conclusions of law, or
    recommendations for the trial court. See 
    956 S.W.2d 555
    , 560 (Tex. Crim. App. 1997)
    (holding that attacks directed at irregularities in orders referring cases to a magistrate
    are procedural attacks that may render a judgment voidable but not automatically
    void). We disagree with Molina.
    1. Lack of Referral Order
    Molina first complains of the lack of an order referring the case to the
    magistrate.
    A district court may refer to a criminal magistrate certain types of proceedings,
    including those related to motions to revoke community supervision or to proceed
    with an adjudication of guilt. Tex. Gov’t Code Ann. § 54.656(a)(10) “To refer one or
    more cases to a magistrate, a judge must issue an order of referral specifying the
    magistrate’s duties.” Id. § 54.657(a). However, a valid objection is required to
    preserve complaints about irregularities in the procedure through which a case was
    6
    referred to a magistrate. Hoag v. State, 
    959 S.W.2d 311
    , 313 (Tex. App.—Fort Worth
    1997, no pet.) (holding that appellant did not preserve error when she never objected
    to the referral of her case to a magistrate and the referral order was not entered until
    six days after the transferred proceeding occurred); see Davis, 
    956 S.W.2d at 559-60
    ;
    Lemasurier v. State, 
    91 S.W.3d 897
    , 900 (Tex. App.—Fort Worth 2002, pet. ref’d). This
    includes complaints about whether a valid referral order has been entered before the
    magistrate presides over the transferred proceeding. Hoag, 
    959 S.W.2d at 313
    .
    It is undisputed that the record here does not contain an order referring
    Molina’s case to the magistrate. It is also undisputed that Molina never objected to
    his case’s referral or to the magistrate’s presiding over it.2 Thus, we overrule this
    portion of Molina’s first issue because Molina failed to preserve it for our review.3
    2
    Notably, in the written plea admonishments signed by Molina, he expressly
    agreed that he had no objection to having a magistrate hear any proceeding in his
    case.
    3
    Though Molina acknowledges this court’s precedent requiring an objection in
    situations like this, he nonetheless requests that we disregard it. The main authority
    raised by Molina to support this request is an unpublished case from the Dallas court,
    which held that a trial court’s duty to enter a referral order created a “systemic right”
    that could not be waived by lack of a valid objection. See Ex parte DeLeon, No. 05-11-
    00594-CR, 
    2011 WL 3690302
    , at *1–2 (Tex. App.—Dallas Aug. 24, 2011, no pet.)
    (not designated for publication). But DeLeon is unpersuasive, not only because it is
    not binding on our decision, but also because it appears to wholly disregard the
    contrary holding by the Texas Criminal Court of Appeals in Davis that the lack of a
    referral order is merely a procedural irregularity that does not deprive an otherwise
    qualified magistrate of its authority to hear a case. See 
    956 S.W.2d at
    559–60.
    7
    2. Lack of Findings, Conclusions, or Recommendations
    Molina next complains that the magistrate failed to prepare any findings of fact,
    conclusions of law, or recommendations for the trial court to follow. Without these
    findings, conclusions, and recommendations—Molina argues—the trial court’s
    judgment was invalid. But, there is no law imposing such a duty upon the magistrate,
    and Molina has not pointed to any affirmative proof that the trial court did not review
    the magistrate’s actions.
    The Texas Government Code provides that a magistrate “may . . . make
    findings of fact on evidence,” “formulate conclusions of law,” and “recommend the
    rulings, orders, or judgment to be made in a case.”           Tex. Gov’t Code Ann.
    § 54.658(a)(8), (9), (11) (emphasis added). There is no requirement that the magistrate
    reduce its findings to writing. Christian v. State, 
    865 S.W.2d 198
    , 202 (Tex. App.—
    Dallas 1993, pet. ref’d). At the conclusion of the proceedings, “a magistrate shall
    transmit to the referring court any papers relating to the case, including the
    magistrate’s findings, conclusions, orders, recommendations, or other action taken.”
    Tex. Gov’t Code Ann. § 54.611. Unless the trial court modifies or otherwise rejects
    the action of the magistrate, that action becomes the decree of the court. Tex. Gov’t
    Code Ann. § 54.662(b). Appellate courts must apply a presumption of regularity to a
    trial court’s adoption of magistrate actions and questions of irregularity may be
    entertained only if a party offers affirmative proof that the trial court did not review
    8
    those actions. Kelley v. State, 
    676 S.W.2d 104
    , 108 (Tex. Crim. App. 1984); Christian,
    
    865 S.W.2d at 202
    .
    Thus, the law is clear that, though the magistrate had the discretion to prepare
    formal written findings, conclusions, and recommendations, it was under no
    obligation to do so. See Tex. Gov’t Code Ann. § 54.658(a)(8), (9), (11). Even still, the
    magistrate’s pronouncements are readily apparent in the record from both the record
    of the revocation hearing and the magistrate’s written certificate of the proceedings.
    Further, Molina does not identify any evidence from the record to suggest that
    the trial court did not properly review these pronouncements or any other action of
    the magistrate. In fact, the record suggests the opposite. The magistrate found that
    Molina had violated certain terms of his community supervision, adjudicated him
    guilty, and sentenced him to 10 years’ confinement. The trial court’s judgment is
    wholly consistent with these pronouncements.
    For these reasons, we conclude that there was no error related to the
    magistrate’s actions or the trial court’s adoption of those actions and overrule the
    remainder of Molina’s first issue.
    B. EVIDENCE SUPPORTED THE FINDINGS OF TRUE
    The magistrate found it true that Molina had violated the terms of his
    community supervision when he (1) engaged in organized criminal activity; (2) had
    been in a vehicle where another possessed a firearm and remained in the presence of
    an armed person; and (3) associated with known gang members. Molina argues in his
    9
    second issue that the evidence did not show beyond a preponderance of the evidence
    that he violated any of these terms. We overrule this portion of Molina’s second issue
    because the evidence supports revocation on at least one of the magistrate’s findings.
    See Moore v. State, 
    605 S.W.2d 924
    , 926 (Tex. Crim. App. 1980).
    We review a trial court’s decision to proceed to an adjudication of guilt and
    revoke deferred-adjudication community supervision for an abuse of discretion.
    Cantu v. State, 
    339 S.W.3d 688
    , 691 (Tex. App.—Fort Worth 2011, no pet.). In a
    revocation proceeding, the State must prove by a preponderance of the evidence that
    the defendant violated the terms and conditions of his community supervision. 
    Id.
    The trial court is the sole judge of the credibility of the witnesses and weight to be
    given their testimony, and we review the evidence in the light most favorable to the
    trial court’s ruling. Cardona v. State, 
    665 S.W.2d 492
    , 493 (Tex. Crim. App. 1984);
    Cantu, 
    339 S.W.3d at 691
    . Proof by a preponderance of the evidence of any one of
    the alleged violations is sufficient to support a revocation order. Moore, 
    605 S.W.2d at 926
    .
    There is sufficient evidence to show that Molina knowingly rode in his car with
    Carlos and remained in his presence while Carlos possessed a gun. Molina and Carlos
    rode together in Molina’s car to F.V.’s house. A photo plainly shows Molina standing
    next to Carlos while Carlos openly carries a gun. Though Molina testified to the
    contrary, a detective testified that Molina reported having known about Carlos’s gun
    while he stood in F.V.’s yard but did not immediately retreat. The evidence shows
    10
    that F.V.’s mother then yelled that there was a gun on the scene and shots were fired.
    And F.V. heard Carlos say “You gonna need a new truck,” shortly before Carlos
    started shooting. Soon after, Molina and Carlos fled together in Molina’s car.
    In light of this evidence, we hold that the magistrate did not abuse its discretion
    when it found it true that Molina had been in a vehicle where another possessed a
    firearm and remained in the presence of an armed person, and we overrule this
    portion of Molina’s second issue.
    C. MOLINA HAD NOTICE OF HIS COMMUNITY-SUPERVISION TERMS
    Finally, Molina contends that, even if the evidence was sufficient to show that
    he violated any of these three terms of his community supervision, they were
    unenforceable against him because he had no notice of or opportunity to object to
    them.     Molina argues that he never signed the “Supplement/Amendment to
    Conditions of Community Supervision High Risk” document (Supplement), which
    contained the terms prohibiting him from being in the presence of an armed person
    and known gang members. Because of this, Molina concludes that the magistrate
    abused its discretion when it found that he violated these terms. We overrule this
    argument because the record reflects that Molina did sign this document and, thus,
    had adequate knowledge of his community-supervision terms.
    A trial court has broad discretion to impose reasonable community supervision
    terms. Tex. Code Crim. Proc. Ann. art. 42A.301(a). A defendant who is fairly
    notified of the terms at a hearing at which he has an opportunity to object forfeits any
    11
    later complaint about those terms. Dansby v. State, 
    448 S.W.3d 441
    , 447 (Tex. Crim.
    App. 2014).
    The record contains two copies of the Supplement document. One copy does
    not contain Molina’s signature, but the other copy does. The copy bearing Molina’s
    signature is dated April 12, 2021—the same day that the hearing was held at which
    Molina entered his original plea of guilty and at which the trial court placed him on
    deferred-adjudication community supervision. Thus, the record shows that Molina
    was fairly notified of the terms of his community supervision and given fair notice to
    object to them. Accordingly, we hold that Molina forfeited any complaint related to
    these terms, and we overrule the remainder of his second issue.
    III. CONCLUSION
    Having overruled both of Molina’s issues, we affirm the trial court’s judgment.
    /s/ Brian Walker
    Brian Walker
    Justice
    Do Not Publish
    Tex. R. App. P. 47.2(b)
    Delivered: November 23, 2022
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