Julian Garcia v. State ( 2005 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JULIAN GARCIA,                                               )

                                                                              )     No.  08-03-00296-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     346th District Court

THE STATE OF TEXAS,                                     )

                                                                              )     of El Paso County, Texas

Appellee.                           )

                                                                              )     (TC# 20010D04931)

                                                                              )

O P I N I O N

This is an appeal from an order revoking probation. Appellant, Julian Garcia, pled guilty to driving while intoxicated, enhanced to a third-degree felony by two prior DWI convictions.  Appellant was sentenced to 5 years= confinement, probated to 5 years= regular, non-deferred probation.  After two years, Appellant=s probation was revoked and he was sentenced by the trial court to 3 years= confinement.  On appeal, Appellant raises two issues:  (1) whether a condition of his probation was void; and (2) whether the trial court abused its discretion in revoking his probation without sufficient evidence.  We affirm.

On September 22, 2001, Appellant, a citizen of Honduras, was arrested for driving while intoxicated.  Pursuant to a plea agreement, Appellant was placed on five years= confinement, probated to five years= probation.  As part of the terms and conditions of his probation, Appellant was to remain in the Republic of Honduras, and in the event that he returned to El Paso, he was to immediately report to the Community Supervision Corrections Department (ACorrections Department@).

The State filed a Motion to Revoke Probation alleging that Appellant (1) committed the offense of stalking on December 3, 2002^[1], (2) failed to remain in Honduras, and (3) failed to report to the Corrections Department upon arrival to the United States during the months of December 2002 and January 2003.

The trial court revoked Appellant=s probation for violating the following conditions: (1) failing to commit no offense against the laws of this State; (2) failing to remain within the Republic of Honduras; and (3) failing to report to the Corrections Department upon return to El Paso.  The trial court imposed a punishment of three years= confinement.  Thereafter, Appellant timely filed his notice of appeal.

In Issue One, Appellant challenges the trial court=s revocation of his probation for violating a condition which he alleges was void because it violated the supremacy clause of the United States Constitution.  As part of the conditions of his probation, Appellant was to remain in the Republic of Honduras during the five years of his probation period. Appellant argues that a state judge does not have the authority to order a defendant to return and remain in a foreign country.  Therefore, since such a condition was void, Appellant argues that he could not have violated such condition, and his probation should have not been revoked. The State responds that Appellant has waived such argument by failing to object to the condition or to challenge it on appeal immediately after it was imposed.  We agree.

The Court of Criminal Appeals has stated:

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 the contract. A defendant who benefits from the contractual privilege of probation . . . must complain at trial to conditions he finds objectionable.

Speth v. State, 6 S.W.3d 530, 534 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1088, 120 S. Ct. 1720, 146 L. Ed. 2d 642 (2000).  An appellant may not complain about conditions of probation for the first time on appeal.  Speth, 6 S.W.3d at 535; see also Hull v. State, 67 S.W.3d 215, 216‑17 (Tex.Crim.App. 2002); Heiringhoff v. State, 130 S.W.3d 117, 133‑34 (Tex.App.‑-El Paso 2003, pet. ref=d).

There is nothing in the record before us indicating that Appellant objected to the imposition of this condition.  Therefore, we find that Appellant may not raise his complaint for the first time on appeal.  See Speth, 6 S.W.3d at 534 n.10.  We therefore overrule Issue One.

In Issue Two, Appellant asserts that the trial court abused its discretion in revoking Appellant=s probation without sufficient evidence. Specifically, Appellant argues that the State failed to Apresent sufficient evidence to prove that Appellant violated his probation by failing to report to the probation department.@

We review the trial court=s determination to revoke community supervision for an abuse of discretion.  See Bennett v. State, 476 S.W.2d 281, 282 (Tex.Crim.App. 1972); see also Lee v. State, 952 S.W.2d 894, 897 (Tex.App.--Dallas 1997, no pet.).  In a community supervision revocation proceeding, the State=s burden is to establish by a preponderance of the evidence, the alleged violation of the trial court=s order.  Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). Preponderance of the evidence is the greater weight and degree of credible testimony.  See Jimmerson v. State, 957 S.W.2d 875, 878 (Tex.App.--Texarkana 1997, no pet.).  The State satisfies its burden of proof in a probation revocation proceeding when the greater weight of credible evidence before the trial court creates a reasonable belief that a condition of probation has been violated.  Pettit v. State, 662 S.W.2d 427, 429 (Tex.App.‑‑Corpus Christi 1983, pet. ref=d).  It is the trial court=s duty to determine whether the allegations in the revocation motion are true.  Langford v. State, 578 S.W.2d 737, 739 (Tex.Crim.App. 1979).  In making this determination, the trial court is the sole trier of facts, and the judge on the credibility of the witnesses and the weight to be given to the testimony.  Taylor v. State, 604 S.W.2d 175, 179 (Tex.Crim.App. 1980).  On review, we examine the record in the light most favorable to the judge=s ruling to determine whether the State established by a preponderance of the evidence that the defendant violated the terms and conditions of probation as alleged. Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim.App. 1983); Becker v. State, 33 S.W.3d 64, 65 (Tex.App.--El Paso 2000, no pet.).  If there is some evidence to support the finding of even a single violation, the order must be upheld.  See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App. 1984).

A review of the record in the light most favorable to the trial court=s finding reveals that on December 3, 2002, El Paso Police Officer Hector Avila was dispatched to the Northeast Regional Command Center to transport Appellant to the El Paso County Detention Facility. Appellant had warrants for theft, stalking, and indecency with a child.  Officer Avila testified that he transported the Appellant around 10:30 p.m.

George Carreon, custodian of Appellant=s records, testified that Appellant=s file did not contain any record of him reporting to probation upon his return to the United States.  When asked if he had any way of knowing whether or not Appellant ever remained or even went to Honduras, he responded that he had a INS print out that stated that Appellant was deported to Honduras.  Mr. Carreon further testified that on December 3, 2002, he did not know Appellant=s whereabouts, but his records reflected that Appellant was arrested on that day for violation of his probation.  The probation department however, did not find out until January 28, 2003 that Appellant was in the El Paso County Detention Facility.  He agreed with defense counsel that from December 3, 2002 through all of January 2003, Appellant was in fact in the El Paso County Detention Facility.  He testified that he did not know when the Appellant had entered the United States.

The trial court found that Aby the preponderance of the evidence that the State=s motion is well-taken.  That Mr. Garcia has violated his probation.@  From the testimony outlined above, the trial court could have inferred that the Appellant had some opportunity to report to the Corrections Department prior to being arrested and detained at the Northeast Regional Command Center.  The testimony also shows that Appellant had been deported to Honduras and had obviously returned to the United States in some manner and had not reported to the Corrections Department.  Considering the evidence in the light most favorable to the trial court=s finding, the testimony further created a reasonable belief that Appellant violated the condition that upon

re-entry, he was to immediately report to the Corrections Department. Accordingly, we find that the trial court did not abuse its discretion in revoking Appellant=s probation.  Issue Two is therefore overruled. 

We affirm the trial court=s judgment.

June 9, 2005

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

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^[1] On June 5, 2003, the trial court held a hearing on the State=s motion to revoke Appellant=s probation.  Prior to presenting any testimony, the State indicated that they were abandoning the alleged offense of stalking.