Lapaca Jefferson v. State ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00334-CR

Lapaca Jefferson,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 204th District Court

Dallas County, Texas

Trial Court # F98-54768-Q

MEMORANDUM Opinion

This is an appeal from an order revoking community supervision for robbery. Lapaca Jefferson contends: (1) that the trial court erred in permitting inadmissible hearsay evidence; and (2) that the trial court abused its discretion in revoking his community supervision (probation).  We will affirm the revocation order.

FACTS

Jefferson was indicted for aggravated robbery.  In 1998, he pled guilty to the lesser included offense of robbery.  Pursuant to a plea bargain, he was sentenced to ten years’ imprisonment, probated for three years, and a $100 fine as a condition of probation.  In March 2003, the State filed a motion to revoke probation alleging defendant: (1) did not report to the probation officer April through July and September 1999, January through May 2000, October through December 2001, and January through February 2002; (2) failed to pay court costs, a fine in the amount of $51.25, and probation fees in the amount of $650.00; (3) failed to perform community service hours; (4) failed to participate in an anger control counseling program; and (5) failed to successfully complete a psychiatric evaluation. In August 2003, Jefferson pled not true to the allegations of the motion.  The trial court held a hearing and granted the motion to revoke probation, sentencing Jefferson to five years’ imprisonment.

ISSUE ONE: HEARSAY

The State called Todd Hill as its only witness.  Hill did not personally supervise Jefferson but said he was familiar with the probationer.  Before testifying, defense counsel objected, and the State was asked to lay the foundation for admission of the evidence.  Hill testified that in every case, in the ordinary course of business, probation officers keep notes when they meet with probationers and entries are made in the probationer’s record within 48 hours.  Hill did not specifically name the probation officers in Jefferson’s case. When the State asked Hill to state how Jefferson violated his probation, defense counsel again objected as to hearsay and was overruled.

Relying on a narrative summary in the probation file,[1] Hill testified that: (1) it is customary to make a notation when a probationer fails to report and there is no record that Jefferson reported for several months; (2) record of payment of costs and fees is kept in the file and there is no record that Jefferson paid court costs, the fine, or his probation fees;[2] (3) it is Jefferson’s responsibility to submit time cards showing community service hours and there are no time cards in the file; (4) it is customary for the anger control program to document a probationer’s participation in the program and there is no such documentation in Jefferson’s file; and (5) the person performing the psychological evaluation forwards a copy for the record and there is no copy of an evaluation in Jefferson’s file.  After this testimony, the State asked the court, without objection by defense counsel, to take judicial notice of Jefferson’s probation file.

Jefferson testified that he never attended the anger management program, but excuses this failure because he was confused about his reporting to these classes and believed that the probation department would communicate with him through the Salvation Army where he was staying.  He also believed that he fulfilled his community service hours at the Salvation Army. He admitted that he missed many of his monthly reporting dates.

Jefferson argues trial court error in admitting Hill’s testimony at the revocation hearing because Hill could not identify the specific probation officers who made the entries in the probation file.  The State argues that Hill’s testimony was properly admitted under the business records exception to hearsay.  See Tex. R. Evid. 803(6), (7).  The State further argues that it offered sufficient proof by a preponderance of the evidence to establish more than one of the alleged violations in the motion to revoke probation.

The burden of proof in a probation revocation hearing is a preponderance of the evidence.  Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).  The State must prove that the greater weight of credible evidence would create a reasonable belief that the defendant has violated a condition of his probation.  Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974).  Appellate review of a revocation is abuse of discretion.  McDonald v. State, 608 S.W.2d 192, 199 (Tex. Crim. App. 1980).  A court does not abuse its discretion in revoking probation if one violation is proven.  Id. at 200; Dunn v. State, 997 S.W.2d 885, 887 (Tex. App.—Waco 1999, pet. ref’d).

A probation record has probative value in a revocation proceeding and constitutes evidence of facts or non-facts recited in the record.  Hardman v. State, 614 S.W.2d 123, 128 (Tex. Crim. App. 1981).  If a witness testifies that the records were kept in the regular course of business and the officers who made the entries did have personal knowledge of the fact, the proper predicate has been laid where the witness can testify from the probation record.  Simmons v. State, 564 S.W.2d 769, 770 (Tex. Crim. App. 1978).  The testifying witness for a business record need not be the person who created the record or even have personal knowledge of its contents.  Desselles v. State, 934 S.W.2d 874, 876 (Tex. App.—Waco 1996, no pet.).  Rather, the testifying witness must have knowledge of how the report was prepared.  Id.

Rule 803(6) provides that a “report . . .  in any form of acts [or] events” is not excluded by the hearsay rule if the proponent of the evidence otherwise establishes the predicate for the business records exception.  Tex. R. Evid. 803(6).  The State laid that predicate.  See Simmons, 564 S.W.2d at 770; Desselles, 934 S.W.2d at 876.  Hill could properly testify from the probation record without it being admitted.  See Simmons, 564 S.W.2d at 770.  Accordingly, the court properly overruled defense counsel’s hearsay objection.  Thus, we overrule issue one.

ISSUE TWO: ABUSE OF DISCRETION

Jefferson asserts that the trial court abused its discretion in revoking his probation.  He argues that no documents were admitted into evidence and the trial court relied solely on the testimony of Mr. Hill, which he asserts is inadmissible hearsay.  The State argues that any error in the admission of alleged inadmissible hearsay from the file was cured when Jefferson admitted the same facts, and therefore the trial court did not abuse its discretion in granting the motion to revoke.

A probationer’s admission that he has violated a probationary term is sufficient evidence for the trial court to revoke probation.  Espinoza v. State, 486 S.W.2d 315, 317 (Tex. Crim. App. 1972).  Jefferson has admitted that he did not report for many months.  Further, the trial court properly overruled Jefferson’s hearsay objection, and the State has proven violation of the probation condition to report to his probation officer.  Accordingly, we find the trial court did not abuse its discretion by revoking his probation. See McDonald, 608 S.W.2d at 199; Espinoza, 486 S.W.2d at 317; Dunn, 997 S.W.2d at 887.  We overrule issue two.

CONCLUSION

We overrule both of Jefferson’s issues. Therefore, we affirm the revocation of probation.

BILL VANCE

                                                                   Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

          (Chief Justice Gray concurring)

Affirmed

Opinion delivered and filed December 29, 2004

Do not publish

[CR25]

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    [1]           The probation record was not admitted into evidence.

    [2]           On re-direct after a recess, Hill discovered record of payment of $750.00 in fees.