Ramiro Garcia Lopez Jr. v. State ( 2019 )

NUMBER 13-18-00130-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
RAMIRO GARCIA LOPEZ JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 430th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Justice Longoria
Appellant Ramiro Garcia Lopez Jr. was placed on community supervision for
possession of marijuana. See TEX. HEALTH & SAFETY CODE ANN. § 481.121. The trial
court subsequently revoked his community supervision. By three issues, Lopez argues:
(1) the State’s second amended motion for revocation was barred by collateral estoppel
and res judicata; (2) the evidence was legally insufficient to support the revocation of his
community supervision; and (3) the trial court erred by admitting inadmissible hearsay.
We affirm as modified.
I. BACKGROUND
Lopez was indicted for money laundering in an amount greater than $200,000, a
first-degree felony, and possession of marijuana in an amount greater than fifty pounds
but less than 2,000 pounds, a second-degree felony. See TEX. PENAL CODE ANN.
§ 34.02(e); TEX. HEALTH & SAFETY CODE ANN. § 481.121. Lopez pleaded guilty to the
possession of marijuana charge. On June 16, 2014, Lopez was adjudicated guilty, was
sentenced to ten years’ imprisonment, and ordered to pay a $10,000 fine. Lopez’s
sentence was suspended, and he was placed on ten years of community supervision.
The State then dismissed the money laundering charge.
On October 27, 2017, the State filed a motion to revoke Lopez’s community
supervision. The State alleged Lopez had committed three separate violations of his
community supervision by: (1) committing the offense of alien smuggling; (2) failing to
pay his monthly community supervision fee; and (3) failing to comply with the requirement
for community service hours.
On November 16, 2017, Lopez moved to quash the revocation motion, alleging
that the motion did not track the statutory language or provide notice of “the particular
manner and means that constitute an offense.” Later that day, the State filed an amended
revocation motion, which was the same as the original motion except now it tracked the
elements of the Texas Penal Code for smuggling of persons. See TEX. PENAL CODE Ann.
§ 20.05(a)(1)(A). The case was called in the trial court, and Lopez pleaded not true;
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however, after two witnesses testified, the case was continued without the trial court
having made any findings or rulings.
On November 20, 2017, the State filed a motion to dismiss its motion for
revocation. Three minutes later, the State filed an amended motion for revocation,
alleging Lopez had violated the terms of his community supervision. The allegations were
identical to the allegations made in the original revocation motion except the State now
alleged that Lopez violated the federal law related to alien harboring and smuggling
instead of Texas law. See 8 U.S.C.A. § 1324. Lopez again moved to quash, alleging
that the motion did not track the statutory language or provide notice of “the particular
manner and means that constitute an offense.” Lopez also filed a motion to dismiss the
new revocation motion on double jeopardy grounds. The trial court signed an order
dismissing the State’s first revocation motion filed on November 16, 2017. The State then
filed a new amended revocation set forth the elements of the federal law Lopez allegedly
violated.
Lopez pleaded not true to all of the allegations, but following a hearing, the trial
court found them all true, revoked Lopez’s community supervision, and sentenced Lopez
to five years’ imprisonment. This appeal ensued.
II. COLLATERAL ESTOPPEL
In his first issue, Lopez argues the second revocation motion filed on November
20, 2017 was barred by collateral estoppel and res judicata.
A. Standard of Review and Applicable Law
Generally, to properly preserve issues for appeal, the issues raised on appeal must
comport with the objections at trial. See Bekendam v. State, 441 S.W.3d 295, 300 (Tex.
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Crim. App. 2014). “The doctrine of collateral estoppel is embodied within the
constitutional bar against double jeopardy. But the two are not identical. Double jeopardy
bars any retrial of a criminal offense, while collateral estoppel bars any retrial of specific
and discrete facts that have been fully and fairly adjudicated.” Ex parte Watkins, 73
S.W.3d 264, 267–68 (Tex. Crim. App. 2002). Collateral estoppel bars
successive litigation of an issue of fact or law that is actually litigated and
determined by a valid and final judgment, and . . . is essential to the
judgment. If a judgment does not depend on a given determination,
relitigation of that determination is not precluded. . . . A determination ranks
as necessary or essential only when the final outcome hinges on it.
State v. Waters, 560 S.W.3d 651, 661 (Tex. Crim. App. 2018) (quoting Bobby v. Bies,
556 U.S. 825, 834 (2009)); see York v. State, 342 S.W.3d 528, 553 (Tex. Crim. App.
2011) (Womack, J., concurring) (noting that res judicata “encompasses claim preclusion
and issue preclusion”).
B. Analysis
We first note that Lopez’s trial court objections seemingly do not conform with the
issue he raises on appeal. At the trial court level, Lopez complained solely of double
jeopardy. On appeal, Lopez does not even mention double jeopardy and instead solely
contends that the second motion for revocation should have been barred by res judicata
and collateral estoppel. And as we stated above, double jeopardy and collateral estoppel
are not identical. State v. Akin, 484 S.W.3d 257, 263 (Tex. App.—Corpus Christi 2016,
no pet.).
However, assuming without deciding that Lopez properly preserved his complaint,
we conclude the State’s second motion for revocation was not barred by collateral
estoppel, double jeopardy, or res judicata. In State v. Waters, the Texas Court of Criminal
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Appeals analyzed how double jeopardy and collateral estoppel apply in revocation
proceedings. 560 S.W.3d at 659. The Waters Court made the following observation
concerning double jeopardy:
[I]n a revocation proceeding, the central question is whether the probationer
has violated the terms of her community supervision and whether she
remains a good candidate for supervision, rather than being one of guilt or
innocence of the new offense. Moreover, because guilt or innocence is not
the central issue at a revocation hearing, a defendant does not face
punishment for the newly alleged offense in that proceeding. As we
correctly recognized in Tarver, any punishment she would receive as a
result of the revocation hearing relates back to the original offense for which
she was placed on community supervision, not to the newly alleged
offense. Thus, because there is no possibility of a new conviction and
punishment arising from a revocation hearing, jeopardy does not attach for
any offense that is alleged as a violation of the terms of community
supervision in a revocation hearing, and double jeopardy protections are
inapplicable.
Id. Thus, the second motion for revocation could not be barred by double jeopardy
implications. See id. The Waters Court continued by concluding that a subsequent
motion to revoke would be barred by collateral estoppel only when facts in question in the
first proceeding were “necessarily decided” and “essential to the judgment.” Id. at 661
(concluding that the second motion for revocation was not barred by collateral estoppel
even when the trial court, in the first motion for revocation, found the violation allegation
as “not true” because a trial’s court’s determination of not true or true is not “necessary
or essential” to the judgment such as to invoke collateral estoppel). For the same
reasons, res judicata would not apply in this case because there were no issues or claims
that were decided. See York, 342 S.W.3d at 553.
In the present case, the trial court never made any factual determinations or rulings
on the first motion for revocation. Two witnesses testified, the case was continued, and
then the State moved to dismiss without the trial court ever making a finding. Therefore,
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the State’s second motion for revocation was not barred by collateral estoppel or res
judicata. See id. We overrule Lopez’s first issue.
III. VIOLATION OF THE CONDITIONS OF COMMUNITY SUPERVISION
In his second issue, Lopez asserts the State failed to sufficiently demonstrate that
he violated one of the conditions of his community supervision.
A. Standard of Review and Applicable Law
We review revocation of community supervision for abuse of discretion. See
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Carreon v. State, 548
S.W.3d 71, 77 (Tex. App.—Corpus Christi 2018, no pet.). To revoke a defendant’s
probation, the State need only prove a violation of a condition of the probation by a
preponderance of the evidence. See Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim.
App. 2013). 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.” Id. A single proven violation is all that is needed to affirm a
trial court’s order revoking a defendant’s community supervision. See Smith v. State, 286
S.W.3d 333, 342 (Tex. Crim. App. 2009).
When reviewing an order revoking community supervision, we view all the
evidence in the light most favorable to the trial court’s ruling. See Hacker, 389 S.W.3d at
865. The trial court as fact-finder is the sole judge of the credibility of witnesses and the
weight to be given to their testimony. See id. Thus, if the record supports conflicting
inferences, it must be presumed that the trial court resolved any such conflict in favor of
its findings. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
B. Analysis
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Lopez challenges the sufficiency of the evidence of all three of the alleged
violations. Concerning the allegation that he failed to pay his monthly supervision fees,
he does not dispute that he failed to pay. Rather, he contends the State failed to
demonstrate he was able to pay the fees and that his failure to do so was willful. The
relative statute states:
In a revocation hearing at which it is alleged only that the defendant violated
the conditions of community supervision by failing to pay community
supervision fees or court costs or by failing to pay the costs of legal services
as described by Article 42A.301(11), the state must prove by a
preponderance of the evidence that the defendant was able to pay and did
not pay as ordered by the judge.
See TEX. CODE CRIM. PROC. ANN. art. 42A.751(i) (emphasis added). However, the clear
language of the statute provides that the State only needs to prove the defendant’s ability
to pay when the failure to pay is the only allegation. See id. On the other hand, when
the State alleges more than one allegation at the revocation hearing, as in the present
case, the State is not required to prove the defendant had the ability to pay or that her
lack to do so was willful. See Gipson v. State, 428 S.W.3d 107, 113 (Tex. Crim. App.
2014) (Johnson, J., concurring) (“[T]he legislature’s chosen language indicates that it was
aware of the considerations in revoking a defendant’s community supervision and
decided to make mere failure to pay a revocable offense.”); see also Farr v. State, No.
13-17-00297-CR, 2018 WL 4017118, at *4 (Tex. App.—Corpus Christi Aug. 23, 2018, no
pet.) (mem. op., not designated for publication) (same). Because the State alleged Lopez
committed multiple violations of his community supervision, it was not required to prove
Lopez had the ability to pay. See TEX. CODE CRIM. PROC. ANN. art. 42A.751(i).
Regarding the alien smuggling allegation, Lopez only challenges the knowledge
element of the offense. See 8 U.S.C.A. § 1324(a)(1)(A) (stating that it is illegal to
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transport or conceal aliens if the defendant knows the individual is an alien). In other
words, he argues he “did not know of the presence of the people in the enclosed trailer
nor their legal status to be in the country.” However, between 2010 and 2012, the record
indicates that the State confiscated approximately 13,604 pounds of marijuana from
tractor trailers belonging to Lopez. In all three of these occasions, the marijuana was
concealed in cotton seed; in two of those three instances, Lopez confessed to having
knowledge of the marijuana. Thus, the record shows that Lopez has knowingly concealed
drugs in cottonseed containers in a similar fashion to how the fifteen individuals were
concealed beneath cotton seed in the present case.
Additionally, according to GPS records, Lopez was at the cotton loading facility at
2:00 p.m. on October 3, 2017, when the cotton seed was loaded into the truck. The
individual who signed off on the cotton seed load initialed “R.L.” GPS data showed that
the truck was driven from the cotton loading facility to Lopez’s home. The GPS data
indicates that the truck left Lopez’s home at 2:00 a.m. the following day and did not make
any stops until reaching the checkpoint in Sarita, Texas. Border Patrol Agent Julio Rivera
testified that he was on duty when he observed Lopez drive to the checkpoint. Lopez
was driving a large semi-truck; the attached container had an open top but was covered
tightly by a tarp. Rivera testified that Lopez was stopped for further inspection based on
the continuous canine alerts. Upon x-ray inspection, it was revealed that fifteen people
were concealed in the container full of cotton seed. Viewing all of the evidence in the
light most favorable to the trial court’s finding, we conclude there was sufficient evidence
that Lopez had knowledge concerning the presence and legal status of the fifteen
individuals. See Hacker, 389 S.W.3d at 865.
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Lastly, regarding the community supervision hours, Lopez argues that he had
completed some of the hours and that a medical condition prevented him from completing
the remainder of his community supervision hours. However, the State provided
testimony showing that even though Lopez completed some of the hours, he did not
complete all of the required service. Additionally, the State provided testimony showing
that Lopez failed to complete his community service hours even after he received
clearance from his doctor. Viewing all of the evidence in the light most favorable to the
trial court’s finding, there was sufficient evidence to prove that Lopez did not complete the
required service hours. See Hacker, 389 S.W.3d at 865.
Any one of the three allegations above would have been sufficient on its own to
support revocation. See Smith, 286 S.W.3d at 342. Therefore, the trial court did not
abuse its discretion in revoking his community supervision. See id. We overrule Lopez’s
second issue.
IV. INADMISSIBLE HEARSAY
In his third issue, Lopez argues that the trial court admitted inadmissible hearsay
concerning the legal status of the individuals found in his cotton truck.
A. Standard of Review and Applicable Law
A trial court’s ruling regarding the admissibility of evidence is reviewed for abuse
of discretion. See Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). As long
as the trial court’s decision was within the zone of reasonable disagreement and was
correct under any theory of law applicable to the case, it will be upheld. See Winegarner
v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). Upon finding a non-constitutional
error, the reviewing court will reverse only upon a finding that the error affected the
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substantial rights of the accused. TEX. R. APP. P. 44.2(b); see Barshaw v. State, 342
S.W.3d 91, 94 (Tex. Crim. App. 2011). Substantial rights are not affected if, based on the
record as a whole, this Court has a fair assurance that the erroneous admission of
evidence had either no influence or only a slight influence on the verdict. See Whitaker
v. State, 286 S.W.3d 355, 364 (Tex. Crim. App. 2009); Motilla v. State, 78 S.W.3d 352,
355 (Tex. Crim. App. 2002). In making this assessment, this Court considers everything
in the record, the nature of the evidence supporting the verdict, the character of the
alleged error, and how it relates to other evidence in the record. See Motilla, 78 S.W.3d
at 355. The presence of overwhelming evidence supporting the conviction can be a factor
in the evaluation of harmless error. See id. at 356.
In order to preserve a challenge to the trial court’s admission of evidence, the
complaining party must have lodged a timely and specific objection and have obtained an
adverse ruling. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103. However, a party waives
an objection to the admission of evidence “when other such evidence was received
without objection, either before or after the complained-of ruling.” Leday v. State, 983
S.W.2d 713, 718 (Tex. Crim. App. 1998); Reckart v. State, 323 S.W.3d 588, 596 (Tex.
App.—Corpus Christi 2010, pet. ref’d).
B. Analysis
Lopez complains about the following exchange at trial concerning the fifteen
individuals discovered in the truck:
[Prosecutor]: Now, when you say the fifteen bodies, what happens
to—what happened to those fifteen individuals?
[Border Patrol
Agent]: They were processed accordingly and deported back
to their country.
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[Defense Counsel]: Judge, I will object and ask the Court not to consider
that answer. This is a backdoor hearsay, Judge. The
only way that they would have been deported is to find
out where they’re from and there has been no
testimony as to that, Judge. So I ask the Court to strike
that portion of his testimony.
[Trial Court]: Objection is overruled.
On appeal, Lopez argues this was inadmissible hearsay and that it was harmful
because “it was the closest showing that the individuals were ‘aliens.’” However, identical
evidence was introduced multiple times throughout the trial without any objections from
Lopez. For example, Lopez did not object when Border Patrol Agent Ernesto Reyna
testified, “We responded and we interviewed, my office, the office I work with, we
interviewed the aliens.” Lopez also did not object to the following exchange:
[State’s Counsel]: Did you retrieve any type of documents related to this
case from any of these, the fifteen aliens or even from
the Defendant?
[Agent Reyna]: No, ma’am.
Therefore, Lopez waived his arguments concerning the testimony about the fifteen
individuals’ legal status because the same information was introduced through other
sources. 1 See Leday, 983 S.W.2d at 718; Reckart, 323 S.W.3d at 596. We overrule
Lopez’s third issue.
V. MODIFICATION TO THE TRIAL COURT JUDGMENT
Appellate courts have the power to modify the trial court judgments and affirm them
as modified. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim.
1 For example, Lopez’s counsel made the following comment during his closing argument: “Other
than that, Judge, I submit to the Court that with all the agents that have testified, certainly, there was
evidence of illegal aliens, but not of Mr. Lopez having anything to do with that at least not intentionally.”
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Ohio App. 1993); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.)
(“We have the authority to reform the judgment to make the record speak the truth when
the matter has been called to our attention by any source.”). The first page of the
“Judgment Revoking Community Supervision & Sentence” reflects that Lopez pleaded
true to the allegations of the violations. However, as discussed above, the record, clearly
reflects that Lopez pleaded not true. Accordingly, we modify the judgment to reflect
Lopez’s plea of not true.
VI. CONCLUSION
We affirm the judgment of the trial court as modified.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
6th day of June, 2019.
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