San Miguel, Sylvia v. State

NUMBERS 13-99-373-CR and 13-99-374-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ SYLVIA SAN MIGUEL , Appellant, v. THE STATE OF TEXAS , Appellee. ___________________________________________________________________ On appeal from the 347th District Court of Nueces County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Rodriguez The Honorable Joaquin Villarreal, Judge of the 347th District Court of Nueces County, found that appellant, Sylvia San Miguel, violated conditions of her probation in cause numbers 89-CR-482-H and 89-CR-452-H, and revoked her probation.(1) Proceeding to sentencing, Judge Villarreal reduced appellant's original sentence in each case from ten to five years, with the sentences to run concurrently. Appealing from her revocation hearing,(2) appellant contends (1) that the trial court abused its discretion in finding she violated conditions of her probation,(3) and (2) that she was denied due process and due course of law because she did not have a neutral or detached judge. We affirm. A trial court is vested with discretion to revoke an individual's community supervision. See Herrera v. State, 951 S.W.2d 197, 199 (Tex. App.--Corpus Christi 1997, no pet.). Therefore, appellate review of an order revoking probation is limited to whether the trial court abused its discretion in revoking probation. See Guzman v. State, 923 S.W.2d 792, 725 (Tex. App.--Corpus Christi 1996, no pet.). Violation of a single condition of probation is sufficient to support revocation. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). The State must prove the allegations in its motion to revoke community supervision by a preponderance of the evidence. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). A probation revocation will be reversed on appeal only if appellant can disprove each allegation proven by the State. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980). In a probation revocation hearing, the trial judge is the sole trier of facts, the credibility of witnesses, and the weight to be given to the testimony. See Battle v. State, 571 S.W.2d 20, 21 (Tex. Crim. App. 1978). Further, we review the evidence presented at the hearing in the light most favorable to the trial court's decision. See Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979). By issue one in both appeals, appellant contends the trial court abused its discretion in finding that appellant failed to report to the probation officer as directed. At the revocation hearing, appellant pleaded not true to the allegations contained in the State's motion to revoke probation, including its allegation that appellant failed to report to her supervisor for several months. Relevant to appellant's alleged failure to report, the following evidence was presented. The State called Tom Lavers. He identified himself as a community supervision officer. Lavers testified that appellant was one of the individuals in his case load, and that she was required to report monthly as a condition of her probation. Lavers had reviewed appellant's file and determined appellant failed to report in person to the office in May, July and November 1995; May and November 1996; and June 1998. On cross-examination, Lavers testified that appellant's file contained notations indicating appellant called the office during some of the months she did not appear in person. There were, however, no notations regarding phone calls in November 1995, May 1996 and June 1998, and no notations at all regarding being excused from reporting in person. Lavers stated that appellant had reported regularly since September 1998 when he took over her case, and had been cooperative. Appellant testified she called her supervisor each time she could not report in person, and, on those occasions, was excused from reporting. On cross-examination, appellant agreed she knew she was supposed to report in person to probation at least once each month. Appellant testified she was told that and stated that "sometimes [she] didn't." Appellant contends the State failed to establish by a preponderance of the evidence that appellant failed to report as directed. We disagree. The record shows that appellant failed to report in person to her supervisor on six occasions. Appellant acknowledged that she knew she had to report in person every month and did not do so. There was no evidence presented that appellant reported each month as directed. The trial court, as the sole judge of weight and credibility to be given this testimony, was free to accept or disregard appellant's assertions. It is apparent from the record that the trial court chose to accept the testimony of Lavers, which was supported by appellant's own testimony. Viewed in a light most favorable to the trial court's order, this evidence was sufficient to support the trial court's finding that appellant failed to report as directed, a violation of the terms of her community supervision. The State met its burden and appellant failed to disprove this allegation. Thus, the trial court did not abuse his discretion finding that appellant had violated a condition of her probation by failing to report. Appellant's first issue is overruled. When there is evidence to support one or more findings by the trial court of a violation of the conditions of probation, we need not address the remaining grounds of error concerning other probation violations used as grounds for revocation. See Flores v. State, 664 S.W.2d 426, 429 (Tex. App.--Corpus Christi 1983, no pet.). Accordingly, because the first issue is dispositive of all similar grounds, we do not reach appellant's issues involving other community supervision violations, including appellant's second issue in appeal number 13-99-373-CR and her second and third issues in appeal number 13-99-374-CR. By her remaining issue, appellant contends she was denied due process and due course of law because she did not have a neutral or detached judge. Appellant argues that the trial court failed to give consideration to and weigh the evidence before revoking her probation and ordering her confined to prison. A probationer is entitled to certain due process protections in a revocation proceeding including, among others, a "neutral and detached" hearing body. See Ruedas v. State, 586 S.W.2d 520, 523 (Tex. Crim. App. 1979). Appellant contends Judge Villarreal, by making the following comments during the revocation hearing, showed he was not a "neutral and detached" hearing body. 1. If your daughter wanted revenge, she should have just killed the guy, not [the other woman]. 2. I don't want to send the message out that you know what, if your back hurts, you don't have to do anything, you don't have to pay anything. She caused thousands of dollars of damage. She should have never been placed on probation, never. That's one of the biggest mistakes that I made by placing her on probation. 3. To top it off, it cost the county a bunch of money, close to $50,000 in damage. 4. This is a very classic example of fatal attraction. The man didn't want to live with you anymore so he is going to have to die. I don't think you should ever have been placed on probation to start with. The fundamental fairness doctrines of due process apply to probation revocation proceedings. See Wright v. State, 640 S.W.2d 265, 269 (Tex. Crim. App. 1982); Wester v. State, 542 S.W.2d 403, 406 (Tex. Crim. App. 1976). However, as a prerequisite to presenting a complaint for appellate review, the record must show: (1) that the complaint was made known to the trial court in a timely fashion and with sufficient specificity to make the trial court aware of the complaint, and (2) that the trial court ruled or refused to rule on the complaint. See Tex. R. App. P. 33.1(a); Wilson v. State, 7 S.W.3d 136, 144 (Tex. Crim. App. 1999). The record clearly shows appellant failed to object to the trial judge's comments. A defendant may waive any trial error, even virtually all constitutional errors, by failing to object properly or to request appropriate relief. See Little v. State, 758 S.W.2d 551, 563-64 (Tex. Crim. App. 1988); see also Hawkins v. State, 964 S.W.2d 767, 770-71 (Tex. App.--Beaumont 1993, pet. ref'd) (due process complaints may be waived by non-assertion). An appellant who fails to voice any due process objection to the procedures used by the trial court in a probation revocation waives his complaint. See Rogers v. State, 640 S.W.2d 248, 265 (Tex. Crim. App. [Panel Op.] 1982) (2nd op. on reh'g); see also Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992); Baxter v. State, 936 S.W.2d 479 (Tex. App.--Fort Worth 1996, pet. dism'd, 960 S.W.2d 82 (Tex. Crim. App. 1998) (the contemporaneous objection rule applies to alleged violations of due process in probation revocation hearings). Because appellant did not object to the trial court's comments, we hold her due process complaint has not been preserved for appellate review. We overrule issue three in appeal number 13-99-373-CR and issue four in appeal number 13-99-374-CR. The judgments of the trial court are affirmed. NELDA V. RODRIGUEZ Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 31st day of August, 2000. 1. Appellant entered into plea agreements in which she pleaded nolo contendere to attempted voluntary manslaughter in cause no. 89-CR-482-H (appellate cause no. 13-99-373-CR), and aggravated assault in cause no. 89-CR-452-H (appellate cause no. 13-99-374-CR). In both cases, the trial court suspended the imposition of imprisonment and placed the defendant on probation for a period of ten years, with certain required conditions. Appellant is appealing the court's order revoking her probation in each case. Because our consideration of appellant's issues in each appeal will be dispositive of both appeals, we have consolidated the appeals into this one opinion. 2. A defendant may appeal from a revocation of her probation (community supervision). See Tex. Code Crim. Proc. Ann. art. 42.12, § 23(b) (Vernon Supp. 2000). 3. The trial court found appellant violated the conditions of her probation by: (1) failing to report; (2) failing to pay restitution; and (3) failing to pay probation fees or perform community service hours in lieu of the fees.