Opinion
No. 08-14-00096-CR
03-30-2016
MIGUEL ANGEL BACILIO, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the Criminal District Court No. One of Tarrant County, Texas (TC# 0630576D) OPINION
Miguel Angel Bacilio appeals a judgment adjudicating his guilt of aggravated sexual assault of a child and assessing his punishment at imprisonment for a term of thirty years. For the reasons that follow, we affirm.
FACTUAL SUMMARY
On December 12, 1997, Appellant entered a negotiated plea of guilty to aggravated sexual assault of a child. In accordance with the plea bargain, the trial court placed him on deferred adjudication community supervision for a period of ten years. The State filed a motion to adjudicate Appellant's guilt on June 19, 1998 based on multiple alleged violations of the terms and conditions of community supervision. A warrant was issued for Appellant's arrest, but he was not taken into custody. The State subsequently filed amended motions to adjudicate on October 20, 2000, March 28, 2003, February 25, 2004, and August 16, 2007, and a warrant was issued in connection with each amended motion. The warrants were finally executed on December 5, 2013.
The trial court conducted a hearing on the State's fourth amended motion to adjudicate guilt. Appellant entered a plea of not true to the allegations that he violated the terms and conditions of community supervision by: (1) using cocaine on May 9, 1998; (2) failing to report on May 26, 1998 to the supervision officer; (3) failing to report to the supervision office on multiple occasions from June 1998 through July 2007; (4) failing to notify the supervision officer that he had moved; (5) failing to pay certain fees and costs; (6) failing to comply with sex offender registration procedures; and (7) failing to attend sex offender counseling in April, May, and June of 1998 which resulted in Appellant's termination.
Jeremy Thompson is a probation officer with the Tarrant County Supervision and Corrections Department (CSCD) and he is assigned to the Criminal District Court No. 1. As a result of that assignment, Thompson is the custodian for the business records created by CSCD and he brought to the courtroom the records pertaining to this case. Thompson did not directly supervise Appellant. His testimony regarding Appellant's violations of various conditions of community supervision is based on Appellant's CSCD file, computerized information, and his own efforts to locate Appellant and track his incarceration in other states. Thompson testified that Appellant was drug tested on May 9, 1998. On May 18, 1998, Appellant signed a form admitting that he used cocaine on May 9, 1998. The form is also signed by Appellant's supervision officer. The records also reflect that Appellant was required to report to his supervision officer, David Tankersly, on May 26, 1998, but failed to do so. Appellant was required to report for the months of June through December of 1998 but failed to do so. Appellant did not report at all between 1999 and 2006, nor from January 2007 through July 2007. The records do not reflect whether Appellant reported after July 2007 and his term of probation expired on December 11, 2007. The terms of probation required Appellant to notify his supervision officer when his address or employment changed. On June 11, 1998, the supervision officer made a home visit because Appellant had failed to report and discovered that the house was empty. Appellant was ordered to pay court costs in the amount of $166.50 at the rate of $10 per month, supervision fees in the amount of $40 per month, and a Crime Victims Compensation Act payment in the total amount of $100 at the rate of $10 per month. During the entire ten-year period of probation, Appellant made three payments. Thompson testified that Appellant was required to attend sex offender counseling with Michael Strain and Associates and he failed to attend scheduled counseling in April, May, and June of 1998. Appellant's failure to attend counseling resulted in him being discharged.
In January 2013, Thompson found a notation in the CSCD file that Appellant had written a letter indicating he was incarcerated in the Utah penitentiary system. He confirmed that Appellant was in custody in Utah, and when Appellant's sentence ended on November 25, 2013, he was brought to Texas.
Appellant testified at the revocation hearing and claimed that his original guilty plea was involuntary. He admitted on cross-examination that he had been incarcerated in Utah for murder until December 2013 and prior to that he had been incarcerated in Georgia. According to Appellant, he committed the Utah offense in 2002 and the Georgia offense in 2006. He was arrested in Georgia on a drug charge as well as a fugitive charge from Utah. Appellant repeatedly attempted to invoke his Fifth Amendment privilege during cross-examination when the prosecutor questioned him about the violations of the conditions of community supervision. When the trial court instructed Appellant that he must answer the questions because he had taken the stand, Appellant simply stated he did not remember. He did admit, however, that he did not report to the CSCD in January through December of 2003. The trial court found true the allegations that Appellant used a controlled substance, failed to report to the supervision officer, failed to notify the supervision officer of his change of address, and failed to attend sex offender counseling. The trial court revoked Appellant's community supervision, adjudicated Appellant guilty, and assessed his punishment at imprisonment for a term of thirty years.
HEARSAY AND RIGHT OF CONFRONTATION
In Issue One, Appellant contends that the trial court erred by overruling his hearsay and confrontation objections to the testimony of a supervision officer, Jeremy Thompson, regarding his efforts to locate Appellant and Appellant's violation of the conditions of community supervision based on the CSCD's records.
Hearsay
We will first consider whether Appellant preserved his hearsay complaint. To present a complaint on appeal, a party is required to make a timely and specific objection in the trial court. TEX.R.APP.P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002); Peralta v. State, 338 S.W.3d 598, 609 (Tex.App.--El Paso 2010, no pet.). With two exceptions, a party must continue to object every time inadmissible evidence is offered. Peralta, 338 S.W.3d at 609, citing Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991). The two exceptions require counsel to either (1) obtain a running objection, or (2) request a hearing outside the presence of the jury and object to all of the evidence he deems objectionable on a given subject. Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003); Ethington, 819 S.W.2d at 858-59. Evidentiary error is not preserved when the same evidence is admitted elsewhere without objection. Peralta, 338 S.W.3d at 609.
When the prosecutor asked Thompson whether Appellant was at some point incarcerated in a different jurisdiction, Appellant objected on hearsay grounds. The trial court overruled that objection. Appellant did not obtain a running objection with respect to his hearsay complaint and Thompson continued to testify regarding his efforts to locate Appellant. Consequently, his hearsay complaint is waived. Even if Appellant had preserved his hearsay complaint by continuing to object, it is nevertheless waived because Appellant admitted that he was incarcerated in Utah until December of 2013. See Peralta, 338 S.W.3d at 609 (evidentiary error is not preserved when the same evidence is admitted elsewhere without objection).
Application of Confrontation Clause
to Revocation Proceedings
The State cites several cases holding that the Confrontation Clause does not apply to a revocation proceeding because it is an administrative proceeding. See e.g., Mauro v. State, 235 S.W.3d 374, 376 (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 v. State, 172 S.W.3d 668, 672 (Tex.App.--San Antonio 2005, no pet.); Smart v. State, 153 S.W.3d 118, 120 (Tex.App.--Beaumont 2004, pet. ref'd). In Ex parte Doan, 369 S.W.3d 205, 212 (Tex.Crim.App.2012), the Court of Criminal Appeals held that a community supervision revocation hearing is a judicial proceeding subject to the rules governing judicial proceedings. In reaching this decision, the court overruled its prior decisions holding that a revocation hearing is merely an administrative proceeding. Ex parte Doan, 369 S.W.3d at 212. Doan did not address the question whether a probationer has a right to confront witnesses in a revocation proceeding, but it certainly undercuts the rationale supporting the decisions relied on by the State. Consequently, we decline to follow those decisions, and we will assume without deciding that a probationer may raise a Confrontation Clause objection in a community supervision revocation proceeding.
Preservation of Error -- Confrontation Clause
The State contends that Appellant failed to preserve his complaint because he made a blanket objection to virtually all of Thompson's testimony and he failed to specify any particular portions of the testimony he deemed objectionable. Appellant made a confrontation objection near the beginning of Thompson's testimony when the prosecutor asked him how the CSCD monitored a probationer's compliance with the condition requiring abstinence from the use of controlled substances and alcoholic beverages. The trial court overruled that objection. Appellant objected to the next question on confrontation clause grounds when Thompson testified about Appellant's positive drug test based on documents in Appellant's CSCD file. The trial court overruled that objection, and at Appellant's request, gave him a running objection "to anything referred to in the packet by this witness." Thompson proceeded to testify about Appellant's violations of the conditions of probation and his efforts to locate Appellant. After reviewing Thompson's testimony, we conclude that much of it is not subject to a confrontation clause objection because it is not hearsay or it is not testimonial. When a party objects to an entire exhibit, part of which is admissible, any error in its admission is not preserved for review. See Sonnier v. State, 913 S.W.2d 511, 518 (Tex.Crim.App. 1995). Even though the State did not offer the CSCD file into evidence, we believe the same preservation rule should apply to a blanket objection to all of a witness's testimony. We conclude that Appellant's objection to all of Thompson's testimony, much of which was not objectionable, failed to preserve his complaint.
Even assuming for the sake of argument that Appellant preserved his complaint and the portions of the CSCD record referred to by Thompson were testimonial, we conclude that any violation of Appellant's right to confront is harmless because Appellant admitted under oath that he did not report at any time during 2003. It is well established that proof of a single violation will support a judgment revoking community supervision. See Smith v. State, 286 S.W.3d 333, 342 (Tex.Crim.App. 2009). Appellant's testimony that he failed to report provided the proof necessary to support the trial court's decision to revoke community supervision. Consequently, we are able to conclude beyond a reasonable doubt that the purported violation of Appellant's confrontation rights did not contribute to the revocation of community supervision. See Rubio v. State, 241 S.W.3d 1, 3 (Tex.Crim.App. 2007)(stating that the violation of an appellant's right to confrontation is subject to harmless-error analysis). We overrule Issue One.
LACK OF DUE DILIGENCE
In Issue Two, Appellant argues that the trial court should have dismissed the State's motion to adjudicate guilt for lack of jurisdiction because the State failed to use diligence to apprehend Appellant before the probationary period expired. Article 42.12, § 5(h) provides:
A court retains jurisdiction to hold a hearing under Subsection (b) and to proceed with an adjudication of guilt, regardless of whether the period of community supervision imposed on the defendant has expired, if before the expiration the attorney representing the state files a motion to proceed with the adjudication and a capias is issued for the arrest of the defendant.TEX.CODE CRIM.PROC.ANN. art. 42.12, § 5(h)(West Supp. 2015). The record reflects that the State filed a motion to adjudicate and an arrest warrant was issued prior to the expiration of the probationary period. Consequently, the trial court had jurisdiction to hear the State's motion to proceed with an adjudication of guilt.
A due diligence affirmative defense to revocation is available for an alleged failure to report or to remain within a specified place if a supervision officer, peace officer, or other officer with the power of arrest under a warrant issued by a judge for that alleged violation failed to contact or attempt to contact the defendant in person at the defendant's last known residence address or last known employment address as reflected in the files of the community supervision department serving the county. TEX.CODE CRIM.PROC.ANN. art. 42.12, § 24 (West Supp. 2015). The burden is on the defendant to show a lack of due diligence. See Garcia v. State, 387 S.W.3d 20, 23 (Tex.Crim.App. 2012). Under the statute, due diligence is shown if an officer contacts or attempts to contact the defendant at his last known residential or employment address. TEX.CODE CRIM.PROC.ANN. art. 42.12, § 24; Garcia, 387 S.W.3d at 23. The record reflects that the supervision officer went to Appellant's last known address on June 11, 1998 and found the house empty. The trial court did not err by denying Appellant's motion to dismiss the State's motion to adjudicate guilt. Issue Two is overruled. Having overruled both issues presented, we affirm the judgment of the trial court. March 30, 2016
ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)