Rudolfo Mata v. State

Opinion issued February 23, 2012. In The Court of Appeals For The First District of Texas ———————————— NO. 01-11-00498-CR ——————————— Rudolfo Mata, Appellant V. State of Texas, Appellee On Appeal from the 230th Judicial District Court Harris County, Texas Trial Court Case No. 1228384 MEMORANDUM OPINION Appellant Rudolfo Mata pleaded guilty to the offense of indecency with a child. The trial court deferred adjudication of guilt, placed Mata on community supervision for five years and assessed a fine of $200.00. Subsequently, the State filed a motion to adjudicate guilt. After finding true two allegations that Mata had violated the terms of his community supervision, the court adjudicated him guilty and sentenced him to four years’ imprisonment. On appeal, Mata argues that (1) the conditions of his community supervision violated his constitutional right to associate with his family and are unconstitutionally vague and (2) the trial court abused its discretion by adjudicating Mata’s guilt because the State did not establish by a preponderance of the evidence that Mata had forbidden contact with any of the persons contemplated by the conditions of his community supervision. Background On May 25, 2011, the trial court held a hearing on the State’s motion to adjudicate Mata guilty on the basis that Mata failed to comply with three conditions of his community supervision. Specifically, the State alleged that Mata violated condition twelve by failing to pay fees, fines and costs and violated conditions nineteen and twenty by having contact with his children, including his daughter M.M., the complainant in the underlying indecency charge, and his minor granddaughter. The applicable conditions stated: (19) You are not to contact the complainant, [M.M.], in person, in writing, by telephone, via the Internet, a third party or any other means for any reason except as specifically permitted by the Court. (20) You are to have no contact with any minor under the age of seventeen (17) beginning 03/26/2010 for any reason except as specifically permitted by the Court. At the hearing, the State offered the testimony of Kwanna Harrelson, Mata’s community supervision officer. Harrelson testified that, at the time the motion to adjudicate was filed, Mata had failed to pay or was behind on payments for eight separate fees or costs.[1] Harrelson also testified that she had received notarized letters from Mata’s daughter, M.M., and Blanca Mata, who is M.M.’s mother and Mata’s wife, and that the contents of the letters caused her to become concerned that Mata may have had contact with M.M. or other minors.[2] Harrelson testified that on February 21, 2011, she called Mata and asked him if he had been around his children and the victim, M.M. According to Harrelson, Mata admitted that he had, but stated that he thought he was allowed to see his children as long as his wife was present. Harrelson testified that she told Mata that his statements were inconsistent with the conditions of his deferred adjudication. She then read condition twenty to Mata. Mata responded that, although he had read that condition, he thought that he had also read that he could have contact with his children as long as an adult was present. Harrelson testified that during the phone conversation Mata also admitted to seeing his granddaughter, a minor, on February 19, 2011. Harrelson testified that she filed a violation form on February 22, 2011. Mata testified at the hearing. He explained that he was behind on his fee payments because his wife stole his social security checks. Mata denied having any contact with M.M. or any of his minor children or grandchildren and testified that the only one of his children that he had seen was his twenty-two year old daughter Jennifer. Mata testified that the conversation in which Harrelson claims he admitted to violating his community supervision actually took place in two separate phone calls. According to Mata, during one conversation he told Harrelson that he was with Jennifer, and they were on the way to the hospital because Jennifer had received a call that her daughter, a minor, was being taken there. Although Mata, his wife, and Jennifer drove to the hospital together, Mata testified that he did not see the granddaughter. Mata denied that he had left voicemails for his daughter, M.M., or that he had contacted her by phone. Mata offered the testimony of Secret Service Agent Nicholas Smith, who testified that Mata had reported that his wife was stealing his social security checks. According to Smith, when he spoke with Blanca, she claimed to have been given permission by Mata to use the checks. Smith testified that Mata later agreed that he had given Blanca permission to use the checks, and Smith closed the investigation. Mata also offered the testimony of Eva Szego and G.G. Hillman, who were involved in Mata’s mandatory therapy. Both testified that based on Mata’s statements, they felt that he had a tumultuous relationship with Blanca. Hillman testified he believed that Blanca was abusive to Mata. Szego testified that Mata made inconsistent statements in group therapy and she did not feel that Mata was always a truthful person. The court found not true the allegation that Mata failed to pay the required fees. The court found true the allegations that Mata violated condition nineteen by having contact with his daughter, M.M., and violated condition twenty by having contact with minors under the age of seventeen, specifically his children and granddaughter. Constitutionality of Mata’s Conditions of Community Supervision In his first point of error, Mata contends that the trial court abused its discretion by adjudicating his guilt based on his violation of conditions nineteen and twenty of his community supervision. Specifically, Mata argues that the word “contact” contained in both conditions is vague and ambiguous. In addition, Mata asserts that the prohibition of contact with his minor children violates the due process clause of the Fourteenth Amendment, is an unconstitutional infringement on his familial rights and does not bear a reasonable relationship to the purpose of community supervision. Community supervision is an arrangement in lieu of the sentence. Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999). A trial court’s decision to grant community supervision is “wholly discretionary” and the trial court also has broad discretion to determine the conditions of community supervision. Id. at 533. “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.” Id. at 534. If the defendant does not object to the community supervision conditions, those conditions are “affirmatively accepted as terms of the contract” and the defendant waives “any rights encroached upon by the terms of the contract.” Id. Thus, “[a] defendant who benefits from the contractual privilege of probation . . . must complain at trial to conditions he finds objectionable.” Id.; Ledet v. State, 177 S.W.3d 213, 221 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (appellant who failed to object to conditions of community supervision at trial or file motion for new trial could not object to conditions for first time on direct appeal). This is consistent with the requirement of Texas Rule of Appellate Procedure 33.1(a), which requires a defendant to make a timely and specific objection to preserve his complaint on appeal. See Tex. R. App. P. 33.1(a). There is no showing in the record, and Mata does not claim on appeal, that he objected to the complained of conditions in the trial court. In addition, as part of his plea agreement Mata acknowledged in writing that he understood that the court determines the terms and conditions of the supervision. He also acknowledged with his signature the written conditions themselves. Because Mata did not object to the community supervision provisions in the trial court or in a motion for new trial, he has failed to preserve this issue for review. See Tex. R. App. P. 33.1(a); Speth, 6 S.W.3d at 534–35; Ledet, 177 S.W.3d at 221 (by failing to object to community supervision conditions at trial or file motion for new trial appellant waived right to complain about conditions on direct appeal). We overrule Mata’s first point of error. Violation of Community Supervision Conditions In his second point of error Mata contends that the trial court abused its discretion by adjudicating him guilty when the State did not prove, by a preponderance of evidence, that he had contact with his daughter, M.M., or that he had contact with a child under the age of seventeen. A. Standard of Review A trial court’s determination on a motion to adjudicate is reviewable in the same manner as a determination of a motion to revoke community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2011). At a revocation hearing, the State must prove by a preponderance of the evidence that the defendant has violated a condition of his community supervision. Canseco v. State, 199 S.W.3d 437, 438–39 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Proof of a single violation is sufficient to support a revocation. Id. at 439. Our review of the evidence is limited to determining whether the trial court abused its discretion by concluding that appellant violated a condition of his community supervision. Id. We view the evidence in the light most favorable to the trial court’s judgment. Id. The trial court is the exclusive judge of the credibility of the witnesses and must determine whether the allegations in the motion to revoke are sufficiently demonstrated. Id. B. Analysis On appeal, Mata argues that the court erred in finding true the State’s allegations that Mata violated two conditions of community supervision: that he had contact with his daughter, M.M., in violation of condition nineteen, and that he had contact with a child under the age of seventeen, in violation of condition twenty. Specifically, Mata contends that Harrelson did not provide sufficient details to establish that Mata had contact with M.M. or his with granddaughter. According to Mata, without testimony from Harrelson regarding his physical proximity to a minor or proof that he touched or communicated with a minor, the evidence is insufficient to show contact. The State argues that Harrelson’s testimony that Mata admitted to having contact with his children and that he saw his minor granddaughter is sufficient for the court to have found Mata had prohibited contact in violation of conditions nineteen and twenty. We agree with the State. The State’s evidence consists entirely of Harrelson’s testimony that Mata admitted that he had been physically present around his children with his wife present and physically present with his granddaughter. Harrelson’s testimony, though not detailed, is some evidence supporting the trial court’s decision. Although Mata denied having made these admissions, the trial court, which is the exclusive judge of the credibility of the witnesses, resolved conflicting testimony against him. See Greer v. State, 999 S.W.2d 484, 489 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (“Although we recognize the evidence is slim at best, we will not substitute our judgment for that of the trial court.”). We conclude that the evidence supports the trial court’s finding by a preponderance of the evidence that Mata violated condition twenty of his supervision, and that the trial court did not abuse its discretion in revoking Mata’s community supervision and adjudicating his guilt. See Brown v. State, 01-04-00642-CR, 2005 WL 1111415, at *3 (Tex. App.—Houston. [1st Dist.] May 5, 2005, no pet.) (mem. op., not designated for publication) (“The testimony that appellant admitted that he visited his minor son without supervision, despite the lack of detail, is some evidence supporting the trial court’s decision.”); see also Marcum v. State, 983 S.W.2d 762, 767 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (probation officer’s testimony from probation record that appellant failed to meet reporting requirement was sufficient to revoke probation). Because the State is required to prove a violation of only one condition of community supervision to prevail on its motion to revoke community supervision and adjudicate guilt, we need not address Mata’s claims with regard to condition nineteen. See Canseco, 199 S.W.3d at 439. We overrule Mata’s second point of error. Conclusion We affirm the judgment of the trial court. Rebeca Huddle Justice Panel consists of Justices Jennings, Massengale, and Huddle. Do not publish. Tex. R. App. P. 47.2(b). [1] Specifically, Harrelson testified that Mata was behind in paying his supervisory fee, court costs, his offender identification card fee, Crime Stoppers fee, sexual assault program fund fee, DNA testing fee, Children’s Assessment Center fee, and the Youth Victim/Witness Program fee. [2] The letters were not offered into evidence during the hearing.