Jerry Lee Pickins v. State ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00050-CR
JERRY LEE PICKINS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 54,700-A
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MEMORANDUM OPINION1
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On November 21, 2014, the district court, pursuant to a plea agreement,
adjudicated appellant Jerry Lee Pickins guilty of assaulting a person with whom
he had a dating relationship by impeding her normal breathing or circulation of
the blood and placed him on community supervision for five years. See Tex.
Penal Code Ann. § 22.01(a)(1), (b)(2)(B) (West Supp. 2017). Nearly six months
1
See Tex. R. App. P. 47.4.
later, the State filed a motion to revoke, alleging that Pickins had violated several
of his community supervision terms. Following a hearing, the trial court revoked
Pickins’s community supervision and sentenced him to three years’ confinement.
Pickins appeals in four points. We affirm.
I. BACKGROUND
On January 27, 2015, Wichita County Sherriff’s Office Sergeant Eric Wisch
pulled Pickins over for a broken tail light. Sergeant Wisch learned that Pickins
had an outstanding warrant for a parole violation in Arkansas, so Sergeant Wisch
arrested him and, pursuant to department policy, took steps to impound his car.
Sergeant Wisch conducted an inventory search of the car and found prescription
pills. Pickins told Sergeant Wisch that the pills belonged to him, that he did not
have a prescription for them, and that he gave them out to people he knew.
In its motion to revoke, the State alleged that Pickins had violated several
of his community supervision terms. Specifically, the State alleged that Pickins
had committed the criminal offense of possessing a dangerous drug; failed to
completely abstain from the use or possession of drugs and alcohol; failed to
report to his community supervision officer on three separate occasions; failed to
pay costs relating to his drug testing; failed to provide his community supervision
officer with proof that he had completed at least ten hours of community service
during each month of his supervision; failed to pay two fees associated with his
community supervision; and failed to attend a community supervision orientation
within sixty days of his being placed on community supervision.
2
On February 3, 2017, the trial court held a hearing on the State’s motion to
revoke.2 Following the hearing, the trial court revoked Pickins’s community
supervision, having found all of the State’s allegations true except for its
allegation that Pickins had failed to completely abstain from the use or
possession of drugs and alcohol.
II. THE CONFRONTATION CLAUSE DID NOT APPLY IN PICKINS’S
REVOCATION PROCEEDING
In his first point, Pickins contends the trial court erred by denying his right
to confrontation under the federal and state constitutions. See U.S. Const.
amend. VI; Tex. Const. art. I, § 10. During the revocation hearing, Pickins’s
community supervision officer, Officer Liz Quinonez, testified. Officer Quinonez
had not been assigned to Pickins’s case until December 16, 2016, and thus she
testified in part from information reflected in his community supervision records
that had been recorded by other individuals. Pickins objected to Officer
Quinonez’s testifying from these records, arguing in part that such testimony
deprived him of his constitutional right to cross-examine and confront his
accuser. The trial court overruled that objection.
We first note that Pickins did not segregate into separate grounds his
complaints based on the federal Constitution and the Texas constitution and
2
The nearly two-year delay between the time the State filed its motion to
revoke and the time of the revocation hearing appears to have occurred because
Pickins had been extradited to Arkansas following his January 27, 2015 arrest in
Texas. Pickins served a sentence in Arkansas and was released on December
4, 2015. He was arrested again in Illinois on August 19, 2016.
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provide individual substantive analysis and authorities to support his state
constitutional arguments. Thus, he has waived his arguments to the extent they
are grounded on the Texas constitution, and we need not address those
arguments. See Lilly v. State, 365 S.W.3d 321, 326 (Tex. Crim. App. 2012);
Merrick v. State, No. 02-17-00035-CR, 2018 WL 651375, at *4 (Tex. App.—Fort
Worth Feb. 1, 2018, pet. ref’d). We therefore focus our analysis on Pickins’s
arguments based on the federal Constitution’s Confrontation Clause.
Pickins argues the trial court’s admission of the portions of Officer
Quinonez’s testimony that she based on hearsay statements reflected in his
community supervision records violated the Confrontation Clause. Pickins faces
the initial hurdle of demonstrating the Confrontation Clause applied to the
challenged statements. That clause applied only if the revocation proceeding
was a “criminal prosecution” within the meaning of the Sixth Amendment and the
out-of-court statements Officer Quinonez relayed were themselves testimonial
hearsay. See U.S. Const. amend. VI (providing that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him” (emphasis added)); Sanchez v. State, 354 S.W.3d 476,
485 (Tex. Crim. App. 2011) (“The Sixth Amendment does not bar the admission
of non-testimonial hearsay.” (citing Michigan v. Bryant, 562 U.S. 344, 354
(2011))). Whether the Confrontation Clause applies to a revocation proceeding
and whether a particular hearsay statement is testimonial in nature are both
questions that are subject to de novo review. See Wall v. State, 184 S.W.3d
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730, 742 (Tex. Crim. App. 2006); Diaz v. State, 172 S.W.3d 668, 669 (Tex.
App.—San Antonio 2005, no pet.).
Although whether challenged hearsay statements are testimonial in nature
is the threshold question in any Confrontation Clause analysis, neither Pickins
nor the State addressed that question with respect to the statements Pickins
challenges here either in the trial court or in their briefing in this court. See
Gongora v. State, 214 S.W.3d 58, 62 (Tex. App.—Fort Worth 2006, pet. ref’d)
(noting “the threshold question in any Confrontation Clause analysis is whether
the statements at issue are testimonial or non-testimonial in nature”). Our failure
to consider whether the hearsay statements Pickins challenges are testimonial,
however, could result in an advisory opinion. That is so because, as we have
noted, the Confrontation Clause applies only to hearsay statements that are
testimonial in nature. See Sanchez, 354 S.W.3d at 485; Infante v. State,
404 S.W.3d 656, 664 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Therefore,
if the hearsay statements at issue here are not testimonial in nature, then
rendering an opinion holding the Confrontation Clause applicable in community
supervision revocation proceedings as Pickins asks us to do would have no
bearing on the disposition of his first point. Such an opinion would be advisory.
See Dix v. State, 289 S.W.3d 333, 335 (Tex. App.—Eastland 2009, pet. ref’d).
So we begin our analysis by considering the question of whether the hearsay
statements Pickins challenges were testimonial in nature. See Gilbert v. State,
No. 07-16-00378-CR, 2017 WL 4872787, at *2 (Tex. App.—Amarillo Oct. 25,
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2017, pet. ref’d) (mem. op., not designated for publication) (declining appellant’s
invitation to broadly hold the Confrontation Clause applicable in a pretrial
suppression hearing without addressing whether the challenged statements were
testimonial).
It turns out that is not a difficult task here. Once a defendant objects to the
admission of evidence on Confrontation Clause grounds, the burden shifts to the
State, as the proponent of the objected-to evidence, to establish its admissibility.
De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008). To do so, the
State must establish that the proffered evidence either (1) does not contain
testimonial hearsay statements or (2) does contain testimonial hearsay
statements but that such statements are nevertheless admissible under Crawford
v. Washington, 541 U.S. 36 (2004). De La Paz, 273 S.W.3d at 680–81. If the
State fails to meet its burden, then the Confrontation Clause—if the proceeding is
one in which that clause applies—bars admission of the evidence. See id. Here,
Pickins objected to several out-of-court statements Officer Quinonez relayed in
her testimony, but the trial court overruled those objections before the State
offered any response, and the State never attempted to satisfy its burden by
explaining on the record why the objected-to evidence was admissible. The
State therefore failed to meet its burden under De La Paz. See Langham v.
State, 305 S.W.3d 568, 580 n.40 (Tex. Crim. App. 2010). Accordingly, the
Confrontation Clause would bar the admission of that evidence unless, as the
State now argues, that clause does not apply in a community supervision
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revocation proceeding.3 See De La Paz, 273 S.W.3d at 681. We turn now to
that question.
Pickins argues the Confrontation Clause applies to a community
supervision revocation proceeding. In response, the State points us to a line of
cases holding the Confrontation Clause inapplicable in a revocation proceeding
because it is not a stage of a criminal prosecution under the Sixth Amendment.
See Mauro v. State, 235 S.W.3d 374, 375–76 (Tex. App.—Eastland 2007, pet.
ref’d); Trevino v. State, 218 S.W.3d 234, 239 (Tex. App.—Houston [14th Dist.]
2007, no pet.); Diaz, 172 S.W.3d at 672; Smart v. State, 153 S.W.3d 118, 120–
21 (Tex. App.—Beaumont 2004, pet. ref’d). Pickins acknowledges these cases
but argues their respective holdings were based on court of criminal appeals
precedent that characterized revocation proceedings as administrative hearings
rather than criminal trials. See, e.g., Cobb v. State, 851 S.W.2d 871, 873 (Tex.
Crim. App. 1993); Bradley v. State, 564 S.W.2d 727, 729 (Tex. Crim. App. 1978).
Pickins argues the court of criminal appeals disavowed its characterization of
revocation proceedings as administrative in Ex parte Doan and instead held that
they are judicial proceedings that are subject to the rules governing judicial
3
We emphasize that our conclusion that the Confrontation Clause, if
applicable in a community supervision revocation proceeding, would bar the
admission of the portions of Officer Quinonez’s testimony that Pickins objected to
is necessitated in this case simply and solely by the State’s failure to meet its
burden under De La Paz. We need not and do not address whether community
supervision records contain, in whole or in part, categorically or otherwise,
testimonial hearsay.
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proceedings. See 369 S.W.3d 205, 212 (Tex. Crim. App. 2012). Pickins asserts
that by doing so, Doan “dramatically changed the landscape of community
supervision revocation hearings” such that the Confrontation Clause, which
previously did not apply to such proceedings, now does apply. We disagree.
The starting point for our analysis is the text of the Sixth Amendment’s
Confrontation Clause. In pertinent part, the Confrontation Clause provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI. Thus, based
on its text, whether the Confrontation Clause applies in a community supervision
revocation proceeding turns not on whether such a proceeding is a judicial
proceeding as opposed to an administrative one but rather on whether such a
proceeding is a “criminal prosecution.” See id.; see also United States v. Reese,
775 F.3d 1327, 1329 (11th Cir. 2015) (stating the Sixth Amendment applies only
to criminal prosecutions).
The line of cases the State points to concluded that a community
supervision revocation proceeding is not a stage of a criminal prosecution. See
Mauro, 235 S.W.3d at 376; Trevino, 218 S.W.3d at 239; Diaz, 172 S.W.3d at
672; Smart, 153 S.W.3d at 120–21. Pickins implicitly argues that these cases all
based their conclusions on prior court of criminal appeals decisions
characterizing community supervision revocation proceedings as administrative.
At least two of our sister courts have suggested that as well. See Bacilio v.
State, No. 08-14-00096-CR, 2016 WL 1253420, at *3 (Tex. App.—El Paso Mar.
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30, 2016, pet. ref’d) (mem. op., not designated for publication); Blackman v.
State, No. 01-12-00525-CR, 2014 WL 50804, at *2–3 (Tex. App.—Houston [1st
Dist.] Jan. 7, 2014, pet. ref’d) (mem. op., not designated for publication). But this
is not so. Of the four cases the State cited, only Smart references court of
criminal appeals cases characterizing community supervision revocation
proceedings as administrative. See Smart, 153 S.W.3d at 120. And Smart did
not base its holding only on the proposition that such proceedings are
administrative. To the contrary, it relied principally on two decisions from the
United States Supreme Court—and other federal and Texas cases applying
those two decisions—for the proposition that parole and probation revocation
proceedings are not stages of a criminal prosecution. See id. at 120 (citing
Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v. Brewer, 408 U.S.
471, 480 (1972); United States v. Aspinall, 389 F.3d 332, 342–43 (2d Cir. 2004)).
We agree with the Dallas court of appeals that Doan did not undercut the
line of Texas cases holding that a community supervision revocation proceeding
is not a stage of a criminal prosecution. See Roberts v. State, No. 05-16-00338-
CR, 2017 WL 461354, at *2–3 (Tex. App.—Dallas Jan. 24, 2017, pet. ref’d,
untimely filed) (mem. op., not designated for publication). While Doan did hold
that community supervision revocation proceedings are judicial proceedings and
not administrative ones, see Doan, 369 S.W.3d at 212, it “did not go so far as to
say a revocation proceeding is a criminal prosecution” and did not “state, [or]
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even address, whether such a proceeding is a ‘criminal prosecution’ under the
Sixth Amendment,” Roberts, 2017 WL 461354, at *3.
The United States Supreme Court has stated that parole and probation
revocation proceedings are not criminal prosecutions. Scarpelli, 411 U.S. at 782;
Morrissey, 408 U.S. at 480. Based on that proposition, at least nine of the United
States Circuit Courts of Appeals have concluded that the Sixth Amendment does
not apply in hearings for the revocation of supervised release, probation, or
parole. See Reese, 775 F.3d at 1329 (collecting cases). As noted above, Texas
intermediate appellate courts have held likewise, and contrary to Pickins’s
contention, the court of criminal appeals’ decision in Doan did not undermine
those holdings. Agreeing with the overwhelming weight of authority, therefore,
we conclude that a community supervision revocation proceeding is not a stage
of a criminal prosecution. Accordingly, the Confrontation Clause is inapplicable
in those proceedings, and the trial court did not err by overruling Pickins’s
objections based on that clause and admitting Officer Quinonez’s challenged
testimony.
We overrule Pickins’s first point.
III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY REVOKING
PICKINS’S COMMUNITY SUPERVISION
In his second and third points, Pickins contends the trial court erred by
admitting other pieces of evidence at his revocation hearing. And in his fourth
point, Pickins argues that if the trial court had not admitted any of the evidence
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he challenged in his first three points, there would be insufficient evidence to find
that he violated any of his community supervision terms. As explained below,
Officer Quinonez’s testimony, which we held admissible in our resolution of
Pickins’s first point, is alone sufficient to support the trial court’s revocation
decision. We therefore overrule Pickins’s fourth point and do not reach his
second and third points. See Tex. R. App. P. 47.1.
We review an order revoking community supervision under an abuse of
discretion standard. 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, the State must prove by a preponderance of the evidence
that the defendant violated the terms and conditions of community supervision.
Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The trial court is
the sole judge of the credibility of the witnesses and the weight to be given 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). If the State fails to meet its burden of
proof, the trial court abuses its discretion in revoking the community supervision.
Cardona, 665 S.W.2d at 493–94.
The State alleged Pickins violated several of his community supervision
terms, but the trial court could have revoked his community supervision if it found
the State proved any single alleged violation. See Clay v. State, 361 S.W.3d
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762, 765 (Tex. App.—Fort Worth 2012, no pet.). Among the terms the State
alleged Pickins violated were the requirements that he
• report to the community supervision department immediately after
the hearing at which he was placed on community supervision
and every month thereafter while he was on community
supervision;
• attend an orientation meeting conducted by the community
supervision department within sixty days of being placed on
community supervision;
• complete fifty hours of community service and provide his
supervision officer with written proof of his community service
hours; and
• pay the community supervision department a $50 per month
supervision fee while he was on community supervision.
Officer Quinonez testified that Pickins’s community supervision records
reflected he did not report to the community supervision department in November
2014, January 2015, February 2015, or March 2015. She testified that Pickins
had informed her that he was released from jail in Arkansas in December 2015;
that after his release in December 2015, he had informed another community
supervision officer that he was in Wichita Falls; and that his community
supervision records did not reflect he had attempted to report to the community
supervision department at any time after December 2015. She further testified
that Pickins did not attend his community supervision orientation meeting. She
testified that Pickins had never provided the community service department with
proof of any community service hours he had completed and that as of the time
of the revocation hearing, Pickins was behind on his community service
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requirement by a total of fifty hours—in other words, he was behind on all of it.
And she testified that Pickins did not pay his monthly $50 community supervision
fee and that Pickins had told her that he was able to work and was employed.
The above testimony supports the trial court’s findings that Pickins violated
all four of the community supervision terms set forth above and, thus, its
revocation order. See Clay, 361 S.W.3d at 765.
IV. CONCLUSION
Having overruled Pickins’s first and fourth points, which are dispositive of
this appeal, we affirm the trial court’s judgment without addressing his remaining
points. See Tex. R. App. P. 43.2(a), 47.1.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 19, 2018
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