Adolfo De Luna v. State ( 2020 )

NUMBER 13-19-00403-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ADOLFO DE LUNA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Justice Perkes
Appellant Adolfo De Luna contends that the trial court abused its discretion by (1)
revoking his community supervision and (2) denying his request for allocution. We affirm.
I. BACKGROUND
In 2015, as part of a plea-bargain agreement with the State, De Luna pleaded guilty
to one count of aggravated sexual assault of a child, a first-degree felony, and two counts
of indecency with a child by contact, second-degree felonies. See TEX. PENAL CODE ANN.
§§ 21.11, 22.021. In accordance with the State’s recommendation made in exchange for
his pleas, the trial court placed De Luna on deferred adjudication community supervision
for five years. See TEX. CODE CRIM. PROC. ANN. art. 42A.102(a). As a sex offender, De
Luna was subject to special conditions of supervision ordered by the trial court, including
the successful completion of a sex offender treatment program. See id. art. 42A.452.
In 2017, the State filed a motion to revoke De Luna’s community supervision. After
the State abandoned two of the allegations, De Luna pleaded “true” to the remaining
violations, including leaving the county without permission and failing to attend the sex
offender treatment program. The trial court accepted an agreed recommendation to retain
De Luna on community supervision, place additional conditions on his supervision, and
sanction him to thirty days in county jail.
In 2019, the State filed its Second Amended Original Motion to Revoke Probation,
alleging forty new violations, including fifteen instances in which De Luna failed to attend
the sex offender treatment program. At the hearing, the State abandoned three of the
alleged violations. De Luna pleaded “not true” to two of the allegations and pleaded “true””
to the remaining thirty-five violations, including fourteen instances of failing to attend the
sex offender treatment program, six instances of leaving the county without permission,
two instances of failing to observe curfew, and failing to complete any community service.
The trial court accepted De Luna’s pleas and found those thirty-five violations to be true.
Although there were two contested allegations, the hearing proceeded largely on
the question of whether to retain or revoke De Luna’s community supervision, with
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testimony from De Luna, his mother, his current and former probation officers, and his
counselor from the sex offender treatment program. His current probation officer testified
that she was recommending revocation based on persistent compliance issues spanning
three years and the seriousness of the underlying crimes. De Luna’s former probation
officer, who served in that capacity for most of the period in question, explained that De
Luna initially had a good attitude after the first motion to revoke. However, De Luna
became “distracted” when his parents began suffering from health issues. The officer
noted that De Luna was required to drive forty-five minutes to an hour to attend his
counseling sessions but often made excuses for why he continually missed sessions.
When the trial court asked the officer if he believed De Luna’s excuses, he replied, “No,
ma’am.” When the trial court asked the officer if he found De Luna to be deceptive, he
replied, “Yes, your Honor.” On cross-examination, the officer agreed that he had no
reason to disbelieve De Luna’s explanations that he left the county without permission
only to take care of his mother or work with his father in a neighboring county.
The sex offender counselor testified that he initially discharged De Luna from the
program because De Luna refused to admit his crimes and displayed a poor attitude. The
counselor accepted De Luna back into the program after he accepted responsibility, but
De Luna’s attendance was “sporadic.” After the State moved to revoke De Luna for the
second time, the counselor described De Luna’s attendance and attitude as “excellent”
during the intervening eight months before the hearing. Saying he had “seen a change”
and “some humility” from De Luna, the counselor believed that De Luna would benefit
from continuing in the treatment program, and therefore the counselor recommended that
De Luna remain on community supervision. The counselor also stated that research
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shows that sending sex offenders to prison increases their chances of reoffending upon
release. Although he believed De Luna’s progress was genuine, the counselor agreed
that “[De Luna] could be pulling the wool over our eyes” and that De Luna’s recent
attendance was largely motivated by the pending revocation hearing. Regardless of De
Luna’s motivations, the counselor reiterated that De Luna had made substantive
progress. Finally, when asked whether De Luna would revert to his previous behavior
once the threat of prison was removed, the counselor responded, “We don’t [know].”
De Luna’s mother testified that due to her health problems, including cancer and
a fall that prevented her from walking for six months, De Luna had been providing her
with daily care. She testified that De Luna also provided care for her husband who is
disabled. She said that De Luna had been living with them for the past year and a half in
Kleberg County, sleeping there each night. She also testified that De Luna had resided in
Brooks County at some point but could not recall the exact time period.
De Luna testified that, on occasion, he left Brooks County without permission to
provide care for his parents, but he denied that he resided in Kleberg County without first
obtaining permission from the probation department. De Luna attributed his absences
from the treatment program to his care provider responsibilities, as well as two car
accidents that required him to take prescribed pain medication and resulted in the total
loss of his vehicle. De Luna stated that those issues have now been resolved. He agreed
with his counselor that he was making progress in treatment, saying “I feel like I have
changed.” He explained that he has accepted responsibility for his crimes and now places
other people’s interests above his own. On cross-examination, after the State questioned
his timeline, De Luna retracted his prior statement that his car accidents contributed to
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his absences. Instead, he insisted that he was attending to his mother on each occasion.
After both sides rested, the trial court announced that it was finding the two
challenged allegations untrue and then said, “I realize that I have taken in all the testimony
unless you have more testimony on punishment. We kind of combined the two.” De Luna’s
counsel responded, “That’s correct.” The trial court then announced that it was taking
judicial notice of the entire testimony for purposes of punishment and both sides
announced that they were resting on punishment.
After each side closed, the following exchange occurred between the trial court
and De Luna:
THE COURT: Because the crime is horrific and because you were
given an opportunity, you have to do everything
perfect. So[,] you come strolling in here on a first
motion to revoke your probation. At that time the
allegations were that you did not go to your treatment
sessions. Once again, you were not where you were
suppose[d] to be. But most troublesome for the court is
that you were not attending your treatment. The State
came to me with the defense and said we are going to
give him another opportunity. We are going to give him
30 days Nueces County jail as a sanction. I went along
with that. I am sure I admonished you at that time to
get back on track, make sure you don’t miss any
treatment sessions. You did not do what you were
suppose[d] to do.
Mr. DeLuna, I feel bad for your mom although she kind
of enabled it.
DE LUNA: Can I speak?
THE COURT: Nope. At this time, I am going to sentence you . . . .
The trial court then revoked De Luna’s community supervision, adjudicated him guilty,
and sentenced him to twenty-year concurrent sentences on each of the three counts. This
appeal followed.
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II. REVOCATION
By his first issue, De Luna argues that the trial court abused its discretion in
revoking his community supervision.
A. Standard of Review
We review a trial court’s decision to revoke community supervision for an abuse of
discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v.
State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In a revocation proceeding, it is the
State’s burden to prove by a preponderance of the evidence that a probationer violated
the terms of his community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim.
App. 1993). A trial court abuses its discretion when it revokes community supervision after
the State has failed to meet its burden of proof. Cardona, 665 S.W.2d at 493–94.
Proof by a preponderance of the evidence of any one of the alleged violations of
the conditions of community supervision will support revocation on appeal. Moore v.
State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Sanchez v. State, 603
S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980). A plea of true, standing alone,
constitutes proof by a preponderance of the evidence. See Jones v. State, 112 S.W.3d
266, 268 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.) (citing Cole v. State, 578
S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979)). The trial judge is the sole judge of
the credibility of the witnesses and the weight given to their testimony, and we review the
evidence in the light most favorable to the trial court’s ruling. Cardona, 665 S.W.2d at
493; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981).
B. Analysis
De Luna does not dispute that the State carried its burden; he pleaded “true” to
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thirty-five violations. See Jones, 112 S.W.3d at 268 (citing Cole, 578 S.W.2d at 128).
Instead, he points to his progress in the treatment program and contends that continuing,
rather than revoking, his community supervision is more consistent with the goals of
community supervision because completing the program would decrease his chances of
reoffending. See TEX. CODE CRIM. PROC. ANN. art. 42A.301(a) (“The judge may impose
any reasonable condition . . . designed to protect or restore the community, protect or
restore the victim, or punish, rehabilitate, or reform the defendant.”). Thus, De Luna
reasons that the trial court abused its discretion by failing to correctly apply the law to the
facts. 1
De Luna assumes that he conclusively established that his progress and continued
commitment to treatment were sincere. His motivations, however, were hotly contested.
As the trier of fact, the trial court was tasked with weighing De Luna’s credibility and
forecasting his future adherence to the conditions of his supervision. See State v. Waters,
560 S.W.3d 651, 659 (Tex. Crim. App. 2018) (explaining that “in a revocation proceeding,
the central question is whether the probationer has violated the terms of [his] community
supervision and whether [he] remains a good candidate for supervision”); Cardona, 665
S.W.2d at 493. After De Luna pleaded “true” to thirty-five violations, the trial determined
that De Luna was no longer a good candidate for community supervision, and it is not our
place to disturb that determination. See Flournoy v. State, 589 S.W.2d 705, 708 (Tex.
Crim. App. [Panel Op.] 1979) (explaining that once a violation is established, “the
discretion of the trial court to choose the alternative of revocation is at least substantially
De Luna acknowledges in his brief that “he has found no cases in which a court of appeals stated
1
a trial court must allow an Appellant to remain on community supervision despite violations of conditions
on the basis that he was making progress in sex offender therapy.”
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absolute.”). We overrule De Luna’s first issue.
III. ALLOCUTION
By his second issue, De Luna complains that the trial court violated his common-
law right of allocution when it denied his request to speak before pronouncing his
sentence. The common-law right of allocution refers to a defendant’s ability to personally
address the trial court in mitigation of punishment. Eisen v. State, 40 S.W.3d 628, 631–
32 (Tex. App.—Waco 2001, pet ref’d) (quoting A DICTIONARY OF MODERN LEGAL USAGE 45
(Bryan A. Garner ed., 2nd ed., Oxford 1995)). The State argues, and we agree, that De
Luna failed to preserve this issue for appeal. 2
To preserve error for appeal, a party is required to make a timely request,
objection, or motion to the trial court and obtain an express or implied ruling. TEX. R. APP.
P. 33.1. This means that De Luna was required to clearly convey to the trial court the
particular complaint he now raises on appeal, including “the precise and proper
application of the law as well as the underling rationale.” Pena v. State, 285 S.W.3d 459,
463–64 (Tex. Crim. App. 2009). To avoid forfeiting an appellate complaint, the
complaining party must “let the trial judge know what he wants, why he thinks he is entitled
to it, and to do so clearly enough for the judge to understand him at a time when the judge
is in the proper position to do something about it.” Id. at 464 (quoting Lankston v. State,
827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).
Although De Luna generally asked, “Can I speak?” before the trial court revoked
2 The State also argues that the common-law right to allocution has been abrogated by Article 42.07
of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 42.07 (requiring the trial
court to ask whether there is any reason why sentence should not be pronounced against the defendant
and limiting such reasons to issuance of a pardon, incompetency, and mistaken identity). We need not
address that issue here. See TEX. R. APP. P. 47.1.
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his probation, adjudicated him guilty, and pronounced his sentence, neither he nor his
counsel clearly conveyed to the trial court a request that De Luna be allowed to exercise
his alleged common-law right of allocution or an objection that the trial court was violating
this alleged right. See Norton v. State, 434 S.W.3d 676, 771 (Tex. App.—Houston [14th
Dist. 2014, no pet.) (concluding that defendant’s request, “Can I talk to you?” before the
trial court revoked her probation and pronounced her sentence failed to preserve alleged
error based on common-law right of allocution). Having determined that De Luna failed to
preserve this alleged error, we overrule his second issue. See TEX. R. APP. P. 33.1.
IV. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
19th day of November, 2020.
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