Guerra, Juan Andres v. State

NUMBERS 13-99-311-CR AND 13-99-312-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

JUAN ANDRES GUERRA

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 92nd District Court of Hidalgo County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez

Opinion by Chief Justice Seerden

Juan Andres Guerra brings these appeals from the trial court's orders revoking probation in two separate causes. We affirm the trial court's judgments.

Background

In the first cause, Guerra pleaded guilty to a second-degree charge of sexual assault. The court deferred further proceedings without entering an adjudication of guilt, and placed Guerra on community supervision for ten years. Under the terms and conditions of probation, Guerra was required to pay a fine, make restitution, and attend treatment or counseling sessions for sex offenders with the Hidalgo County Community Supervision & Corrections Department Sex Offender Program. Guerra was further required to comply with the treatment prescribed by the Sex Offender Program, and obey all rules and regulations of the program.

In the second cause, Guerra pleaded guilty to state jail felony theft. The court deferred further proceedings without entering an adjudication of guilt, and placed Guerra on community supervision for five years, again attaching various conditions to the terms of probation. The cases ran concurrently.

In September of 1998, the State filed motions to adjudicate guilt in both cases, contending that Guerra had committed a sexual assault, failed to pay requisite fines and fees, and failed to comply with the prescribed treatment for sexual offenders. Following a hearing on both cases, the trial court revoked Guerra's community supervision and assessed punishment at ten years of imprisonment for sexual assault and two years of imprisonment for theft. Guerra brings four issues on appeal regarding his probation and the revocation thereof.

Extraneous Offense

Guerra first contends that the trial court erred by admitting evidence of an extraneous offense over defendant's hearsay objection. We note in this regard that the rules of criminal evidence and procedure are generally applicable to probation revocation hearings. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App.1993); Stevens v. State, 900 S.W.2d 348, 351 (Tex. App.--Texarkana 1995, pet. ref'd).

The testimony concerning the extraneous offense was provided by Dr. Gregorio Pena, a psychologist employed by the Hidalgo County Community Supervision & Corrections Department Sex Offender Program. Pena administered treatment to Guerra as a part of Guerra's probation. When asked if Guerra showed a propensity for danger to others, Pena testified that he believed that Guerra was a sexual predator and a danger to other men in the Sex Offender Program and the men in the community. In this regard, Pena specifically testified that another individual receiving group therapy with Guerra told him that Guerra sexually assaulted him. Pena's testimony further suggests the possibility that another incident had occurred.

Defense counsel objected to the foregoing testimony on grounds that it was hearsay. Hearsay is a statement, other than one made by the declarant while testifying, offered in evidence to prove the truth of the matter asserted. See Tex. R. Evid. 801(d). Under this definition, Pena's statements do not constitute hearsay. Pena's testimony was not offered to prove the truth of the matter asserted, that is, that Guerra sexually assaulted other individuals in his group therapy. Rather, Pena's comments regarding the alleged assaults were offered as a basis for his opinion that Guerra constituted a danger to the community, and for his recommendation that Pena's probation be revoked. Moreover, such comments constitute admissible testimony from an expert witness about the basis of his opinion testimony. See Tex. R. Evid. 703; Moranza v. State, 913 S.W.2d 718, 727 (Tex. App.-Waco 1995, pet. ref'd). Thus, we hold that the trial court properly allowed Pena's testimony over the hearsay objection.

Conditions of Probation

Guerra next argues that the terms of his probation are so vague and ambiguous that they are unconstitutional. Guerra specifically complains about the following condition of probation:

Attend the treatment or counseling sessions for sex offenders at the Hidalgo County Community Supervision and Corrections Department Sex Offender Program and report to the Sex Offender Program Supervision Officer 100 E. Cano St., Edinburg, Texas, commencing INSTANTER, comply with the treatment and obey all rules and regulations of the program.

This condition was part of the original terms of probation issued in 1998. The record fails to reflect that Guerra objected to this term of probation until the instant appeal. The Court of Criminal Appeals has recently addressed the question of whether a defendant can object to his conditions of probation for the first time on appeal. Speth v. State, 6 S.W.3d 530, 535 (Tex. Crim. App. 1999). In concluding that objections to the terms of probation must be addressed to the trial court, the Court of Criminal Appeals stated that:

An award of community supervision is not a right, but a contractual privilege, and conditions thereof are terms of the contract entered into between the trial court and the defendant. Therefore, conditions not objected to are affirmatively accepted as terms of the contract. Thus, by entering into the contractual relationship without objection, a defendant affirmatively waives any rights encroached upon by the terms of contract.

Id. at 534. Guerra did not object to the foregoing condition at the time he was placed on probation. The time for direct appeal of the order imposing the condition has long passed. Guerra cannot now complain about it by this appeal. See id. at 534-35. We overrule Guerra's second issue on appeal.

Impeachment Evidence

In his third issue, Guerra contends that the trial court improperly limited his right to cross examine the State's witness, investigating officer Oscar Trevino. In this regard, the record reflects that defense counsel asked Trevino if he had any "problems" within his department, or if there had been any complaints against him. The trial court sustained the State's objection to this line of questioning, although he instructed counsel that he would consider such evidence if it could be tied to the present case. Counsel did not thereafter articulate a rationale for his questions, or make an offer of proof regarding the excluded testimony.

Texas Rule of Evidence 103(a)(2) provides that error may not be predicated upon a ruling of the court excluding evidence unless the substance of the evidence was made known to the court by offer. Tex. R. Evid. 103(a)(2); see Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App.1993). Appellant did not do so. Consequently, any error in the exclusion of the officer's testimony is waived.

Revocation of Probation

Finally, in his fourth issue, Guerra contends that the trial court abused his discretion in adjudicating guilt and revoking probation. Guerra contends that the trial court based its decision on three grounds: the sexual assault of his health care worker, Guerra's failure to pay required fines and fees, and Guerra's failure to comply with the Sexual Offender Program.

We review the trial court's order revoking probation on an abuse of discretion standard. See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984). In making this determination, we examine the evidence in the light most favorable to the trial court's order. See Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981).

In a hearing on a motion to revoke probation, the State must prove every element of the ground asserted for revocation by a preponderance of the evidence. See McCullough v. State, 710 S.W.2d 142, 145 (Tex. App.--Houston [14^th Dist.] 1986, pet. ref'd). The State satisfies its burden of proof when the greater weight of credible evidence before the court creates a reasonable belief that it is more probable than not that a condition of probation has been violated as alleged in the motion to revoke. See Joseph v. State, 3 S.W.2d 627 (Tex. App.--Houston [14^th Dist.] 1999, no pet. h.). Proof of any one of the alleged violations is sufficient to support a revocation of community supervision. Alexander v. State, 879 S.W.2d 338, 340 (Tex. App.--Houston [14^th Dist.] 1994, pet. ref'd), cert. denied, 514 U.S. 1127, 115 S. Ct. 1999, 31 L. Ed. 2d 1000 (1995). In a probation revocation hearing, the trial judge is the sole trier of fact and determines the credibility of the witnesses and the weight to be given to their testimony. See Martin v. State, 571 S.W.2d 20, 22 (Tex. Crim. App. 1978).

With the foregoing standard in mind, we determine that the evidence was sufficient to establish that Guerra failed to attend treatment or counseling sessions for sex offenders as specified in the order placing him on community supervision, and further failed to comply with the required treatment. Dr. Gregorio Pena testified that Guerra failed to comply with his reporting requirements, failed to cooperate in psychological testing, and failed to complete the program for sex offenders. Under these circumstances, we determine that the trial court did not abuse its discretion in revoking probation. Appellant's fourth issue is overruled.

Having overruled each of appellant's four issues on appeal, we affirm the judgments of the trial court.

__________________________________

ROBERT J. SEERDEN, Chief Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 27th day of July, 2000.