Terrell Gerard Brown v. State

Opinion issued May 5, 2005

  In The

Court of Appeals

For The

First District of Texas

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  NO. 01-04-00642-CR

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TERRELL GERARD BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 736085

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MEMORANDUM OPINION

           Appellant, Terrell Gerard Brown, entered a plea bargain with the State and pleaded guilty to the offense of indecency with a child. On October 25, 1996, the trial court assessed punishment at 10 years community supervision and a $700 fine. On January 27, 2004, the State filed a motion to revoke appellant’s probation, alleging that he had committed five violations of the terms of his community supervision. The trial court determined that appellant had committed the violations as alleged by the State, revoked his community supervision, and sentenced him to five years in prison. In five issues, appellant asserts that the evidence was insufficient to find he had committed the five violations. We affirm.

BACKGROUND

           The trial court’s order placing appellant on community supervision required appellant to do, inter alia, the following: (1) report to the court’s community supervision officer on the 25th of each month or “as directed by” the officer, (2) remain within Harris County, Texas unless he received prior written permission to leave Harris County, (3) have no contact with minors under the age of 17, while allowing supervised contact with his biological children, and (4) stay at least 100 yards from a premises where children commonly gather. The State’s motion to revoke alleged that appellant violated these conditions when: (1) he failed to report to his community supervision officer on December 23, 2002 as instructed, (2) he traveled to Galveston County without permission, (3) he had unsupervised contact with his son, (4) he went into a CiCi’s Pizza restaurant where minors commonly gather, and (5) he had contact with minors at the CiCi’s Pizza restaurant.

           Cheryl Walker, appellant’s community supervision officer, testified that, on October 4, 2003, she saw appellant and his wife at a CiCi’s Pizza restaurant. Appellant was sitting near the front of the restaurant, facing toward the restaurant’s video arcade in the back of the restaurant. Walker testified that there were children under the age of 17 present in the restaurant, in the game room, and “running by” appellant. Walker also testified that appellant was to report to her on December 23, 2002, and that he failed to do so. She stated that appellant returned her telephone call and told her that he had thought he was supposed to report on December 24, 2002. Walker said that appellant did report as re-scheduled on December 30, 2002, and had never missed any other scheduled reporting dates. According to Walker’s testimony, on May 9, 2000, appellant admitted to another community supervision officer that he had traveled to Galveston County without permission, and also admitted that he had visited his minor son without supervision.

                                                       DISCUSSION

          We review a trial court’s decision regarding probation revocation for an abuse of discretion and examine the evidence in a light most favorable to the trial court’s order. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). To revoke probation, the State must prove every element of at least one ground for revocation by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 42.12, § 21 (Vernon Supp. 2004-2005); Moore v. State, 11 S.W.3d 495, 498 (Tex. App.—Houston [14th Dist.] 2000, no pet.). The trial court holds very broad discretion over community supervision, its revocation, and its modification. Tex. Code Crim. Proc. Ann. art. 42.12, § 21. Considering the unique nature of the revocation hearing and the trial court’s broad discretion in the proceedings, the general standards for reviewing factual sufficiency do not apply. Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana 2003, no pet.). If the greater weight of credible evidence creates a reasonable belief that appellant violated a condition of his or her probation, the trial court’s order of revocation does not constitute an abuse of its discretion. Id. (citing Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)).

          In his third issue, appellant asserts that “the State failed to prove by sufficient credible evidence that [a]ppellant violated the term of [his] probation prohibiting him from having unsupervised contact with his minor child.” The State’s evidence of this violation consisted entirely of Walker’s testimony that her records reflected that, on May 9, 2000, appellant admitted to Jennifer Martin, a community supervision officer, that he had unsupervised contact with his son, who was under the age of 17 at the time. Rather than attempting to controvert this evidence, appellant attacks the sufficiency of Walker’s testimony by complaining that she testified to a “four year old hearsay[,] conclusionary [sic] statement taken from Appellant’s probation file.” We note that appellant made no objection to this testimony in the trial court. Appellant argues that Walker’s testimony is not “‘credible evidence’ that would support a finding by a preponderance of the evidence,” for the following four reasons: (1) Walker testified to a hearsay statement made to another community supervision officer; (2) the hearsay statement, though not objected to, lacks “reliability” because it could not be confronted by subjecting it “to the crucible of cross examination”; (3) Walker did not provide “underlying details” to support the hearsay statement rendering it conclusory; and (4) even if appellant did violate the terms of his community supervision by having unsupervised visitations with his minor son, too much time had passed for the State to use that violation to revoke his community supervision.

          Appellant’s complaint regarding the hearsay nature of Walker’s testimony is unpersuasive because, as appellant admits, a trial court may consider unobjected to hearsay no differently than other testimony that the fact finder may either accept or reject. Fernandez v. State, 805 S.W.2d 451, 455-56 (Tex. Crim. App. 1991); Jones v. State, 112 S.W.3d 266, 269 (Tex. App.—Corpus Christi 2003, no pet.). Appellant’s complaint that his confrontation rights were violated by the admission of the hearsay statement is equally unpersuasive because a confrontation claim is a trial right, which must be preserved for appeal. Bunton v. State, 136 S.W.3d 355, 368 (Tex. App.—Austin 2004, pet. ref’d ) (quoting Mallory v. State, 752 S.W.2d 566, 569 (Tex. Crim. App. 1988)). Even though appellant did not advance his confrontational claim at trial, he argues on appeal that his claim is supported by the recent decision by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, (2004). In Crawford, the Supreme Court held that out-of-court statements by witnesses that are testimonial are barred under the Confrontation Clause of the Sixth Amendment to the United States Constitution unless the witnesses are shown to be unavailable and the defendant has had a prior opportunity to cross-examine the witnesses, regardless of whether such statements are deemed reliable by the trial court. Id., 541 U.S. at 58-69, 124 S. Ct. at 1369-74. Appellant’s reliance on Crawford is misplaced under the particular circumstances of the instant case, because there is nothing in Crawford that would excuse appellant’s failure to make a confrontation claim at trial. Bunton, 136 S.W.3d at 369.

          Appellant argues that no “details were given as to what facts or words Appellant said that led Jennifer Manning to” conclude that he had unsupervised visits with his minor son. This argument asks us to re-weigh the factual evidence and substitute our opinion for that of the trial court, which we will not do. See Fernandez v. State, 805 S.W.2d 451, 456 (Tex. Crim. App. 1991) (“[T]he Court of Appeals erred when it assumed the duties of the trier of fact and reweighed the comparative probative value of the unobjected to hearsay and the declarant’s in-court testimony . . . [and] stepped outside the limits allowed an appellate court when conducting a sufficiency review.”). In our review of a trial court’s revocation of community supervision for abuse of discretion, the record must simply contain some evidence to support the decision made by the trial court. Herald v. State, 67 S.W.3d 292, 293 (Tex. App.—Amarillo 2001, no pet.); Brumbalow v. State, 933 S.W.2d 298, 300 (Tex. App.—Waco 1996, pet. ref’d). The testimony that appellant admitted that he visited his minor son without supervision, despite the lack of detail, is some evidence supporting the trial court’s decision. Appellant’s final reason, that too much time has passed since the unsupervised visits, is not material to the question of whether or not the violation occurred.

          As an appellate court, our review of appellant’s sufficiency challenge to the trial court’s revocation of his community supervision is restricted. Greer v. State, 999 S.W.2d 484, 489 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (“Although we recognize the evidence is slim at best, we will not substitute our judgment for that of the trial court.”). The trial court is the exclusive judge of the credibility of the witnesses and determines whether the allegations in the motion to revoke are sufficiently demonstrated. Id. We conclude that there is sufficient evidence in the record to sustain the State’s burden of proving by a preponderance of the evidence appellant’s unsupervised visitations with his minor son, violating the term of his community supervision that he have only supervised visits with his minor son. Therefore, we overrule appellant’s third issue.

          Because the State is required to prove only one ground to prevail on its motion to revoke appellant’s community supervision, we need not address appellant’s issues regarding the other alleged violations. Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); see also Tex. Code Crim. Proc. Ann. art. 42.12, § 21 (Vernon Supp. 2004-2005); Moore, 11 S.W.3d at 498. Examining the evidence in a light most favorable to the trial court’s order, we hold that the trial court did not abuse its discretion by revoking appellant’s community supervision.

                                                     CONCLUSION

          We affirm the judgment of the trial court.

                                                             Sam Nuchia

                                                             Justice

Panel consists of Justices Nuchia, Jennings, and Alcala.

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