Dakota Ryan Palmer v. State

NUMBER 13-16-00039-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DAKOTA RYAN PALMER, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law No. 1
of McLennan County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Longoria
Memorandum Opinion by Justice Contreras 1
Appellant Dakota Ryan Palmer appeals from the trial court’s revocation of his
community supervision.2 By two issues, appellant contends that the trial court erred in:
1 Justice Dori Contreras, formerly Dori Contreras Garza. See TEX. FAM. CODE ANN. § 45.101 et
seq. (West, Westlaw through 2015 R.S.).
2 See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 23 (West, Westlaw through 2015 R.S.).
(1) exceeding the State’s punishment recommendation based on a urinalysis that did not
comply with the requirements of article 38.35 of the code of criminal procedure, see TEX.
CODE CRIM. PROC. ANN. art. 38.35 (West, Westlaw through 2015 R.S.); and (2) justifying
its failure to follow the State’s punishment recommendation based on appellant’s failure
to comply with a bond condition that was not imposed. We affirm.
I. BACKGROUND3
On October 2, 2014, pursuant to a plea agreement, appellant pleaded guilty to
assault family violence, and the trial court sentenced him to 250 days’ confinement and a
$4,000 fine. See TEX. PENAL CODE ANN. § 22.01(b)(2) (West, Westlaw through 2015 R.S.).
The trial court suspended the sentence and placed appellant on community supervision
for fifteen months. On July 7, 2015, the State filed a motion to revoke, alleging various
violations of the conditions of community supervision.
At a hearing on December 18, 2015, appellant pleaded true to seven of the nine
allegations. Appellant’s counsel called Tiffany Cavazos, a technician with Recovery
Healthcare Corporation, as a witness. Cavazos testified that, as she accompanied
appellant to a male technician who was to administer a urinalysis on appellant, appellant
told her that “he used three weeks ago.” On cross-examination, Cavazos clarified that
appellant did not identify the substance that he used. The trial court asked appellant if he
was ready to provide a urine sample for testing. Appellant responded, “yes.” Following
a short break, the trial court announced that appellant tested positive for THC. 4 The trial
3 This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to
an order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2015 R.S.).
4 THC is a psychoactive compound extracted from marihuana. See http://www.online-medical-
dictionary.org/definitions-t/thc.html, (last visited December 5, 2016).
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court stated that, based on the facts that appellant had not “paid anything” and had not
“kept [himself] clean,” the court granted the motion to revoke and imposed sentence at
“200 days in jail and any fines paid.”
II. STANDARD OF REVIEW AND APPLICABLE LAW
In a community supervision revocation hearing, the State need only prove its
allegations by a preponderance of the evidence. Jones v. State, 112 S.W.3d 266, 268
(Tex. App.—Corpus Christi 2003, no pet.); Herrera v. State, 951 S.W.2d 197, 199 (Tex.
App.—Corpus Christi 1997, no pet.) (citing Cobb v. State, 851 S.W.2d 871, 873 (Tex.
Crim. App. 1993)); see also Massey v. State, No. 10-02-00225-CR, 2004 WL 1485911,
at *1 (Tex. App.—Waco June 30, 2004, no pet.) (mem. op., not designated for
publication). “In the probation-revocation context, ‘a preponderance of the evidence’
means ‘that greater weight of the credible evidence which would create a reasonable
belief that the defendant has violated a condition of his probation.’” Hacker v. State, 389
S.W.3d 860, 865 (Tex. Crim. App. 2013). Appellate review of an order revoking
community supervision is limited to a determination of whether the court abused its
discretion. Canseco v. State, 199 S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006,
pet. ref’d). A single violation of a probation condition is sufficient to support the trial court's
decision to revoke probation. Id. An appellant’s plea of “true” to an allegation, standing
alone, is sufficient to support the trial court's order of revocation. Brooks v. State, 995
S.W.2d 762, 763 (Tex. App.—San Antonio 1999, no pet.); see also Garcia v. State, No.
13-10-00148-CR, 2011 WL 2585965, at *2 (Tex. App.—Corpus Christi June 30, 2011, no
pet.) (mem. op., not designated for publication); Massey, 2004 WL 1485911, at *1.
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The trial court is the trier of facts in a revocation proceeding and the sole judge of
the credibility of witnesses and the weight to be given to the testimony. Canesco, 199
S.W.3d at 439. We examine the record of the revocation proceeding in the light most
favorable to the trial court's ruling. Id.
III. DISCUSSION
By his first issue, appellant complains that the trial court erred in imposing a
sentence that exceeded the State’s 180-day recommended sentence5 based on a
urinalysis that did not comply with the requirements of article 38.35 of the code of criminal
procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.35.6 The State responds that
appellant failed to preserve this issue for appeal. We agree with the State.
When the trial court asked appellant if he was ready to provide a urine sample,
appellant’s counsel objected, “[m]y objection would also be to using the results of a UA
sample as a basis of diverging from the plea agreement.” The trial court overruled the
objection, and appellant responded “yes” to the trial court’s question. After the trial court
announced that appellant tested positive for THC, appellant’s counsel restated her
objection: “I would just like to reurge our objection that, if the results of the urinalysis
performed are—is used as a basis to diverge from the State’s recommendation of 180
days—”. The trial court overruled the objection. At no time did counsel mention the
requirements of article 38.35 or argue that the urinalysis results were inadmissible on the
basis of any failure to comply with the requirements of article 38.35.
5 A “Disclosure of Plea Agreement” dated December 18, 2015, the day of the hearing, is included
in the record. The State recommended a sentence of 180 days in jail. The agreement explicitly states,
“This agreement is not binding on the Court.”
6 Article 38.35 provides, in pertinent part, that a forensic analysis of physical evidence is not
admissible unless the crime laboratory conducting the analysis is accredited. TEX. CODE CRIM. PROC. ANN.
art. 38.35 (West, Westlaw through 2015 R.S.).
4
A general or imprecise objection will not preserve error for appeal unless “the legal
basis for the objection is obvious to the court and to opposing counsel.” Vasquez v. State,
483 S.W.3d 550, 554 (Tex. Crim. App. 2016) (quoting Buchanan v. State, 207 S.W.3d
772, 775 (Tex. Crim. App. 2006) (emphasis in original)). Here, appellant’s counsel’s
objection failed to state any legal basis, and no legal basis was obvious. See id. In
addition, when a complaint on appeal differs from that made at trial, the error is waived.
Cook v. State, 858 S.W.2d 467, 474 (Tex. Crim. App. 1993) (citing Rezac v. State, 782
S.W.2d 869, 870 (Tex. Crim. App. 1990) (“An objection stating one legal basis may not
be used to support a different legal theory on appeal.”)); see also Cox v. State, No. 10-
11-00414-CR, 2013 WL 1286676, at *2 (Tex. App.—Waco March 28, 2013, pet. ref’d
(mem. op., not designated for publication) (same). Appellant complains on appeal that
the urinalysis evidence was inadmissible because it did not comply with the requirements
of article 38.35. However, no objection on that basis was made to the trial court. We
overrule appellant’s first issue.
By his second issue, appellant argues that “[t]he trial court erred in justifying its
deviation [from the State’s recommended sentence] on [a]ppellant’s alleged violation of a
bond condition that was not imposed.” Appellant appears to argue that, because sobriety
was not an explicit condition of appellant’s bond, the trial court lacked authority to conduct
“a retroactive judicial investigation into [appellant’s] compliance with any purported [bond]
conditions.”
The State responds, in part, that any potential issue is inadequately briefed and is
therefore not presented to this Court for review. We agree. As the State correctly notes,
appellant’s brief addressing his second issue “contains no citations to the record and no
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citations [to] any authorities.” An appellant’s brief “must contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to the
record.” TEX. R. APP. P. 38.1(i). The failure to adequately brief an issue waives that issue
on appeal. Brown v. Apex Realty, 349 S.W.3d 162, 167 (Tex. App.—Dallas 2011, pet.
dism’d). We overrule appellant’s second issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
12th day of January, 2017.
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