Adam Garcia v. State

• Court: Court of Appeals of Texas
• Decided: December 4, 2013
• Docket: 04-13-00003-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00003-CR

Adam GARCIA, Appellant

v. The State of The STATE of Texas, Appellee

From the 437th Judicial District Court, Bexar County, Texas Trial Court No. 2007CR11264 Honorable Lori I. Valenzuela, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice

Delivered and Filed: December 4, 2013

AFFIRMED

Appellant Adam Garcia was placed on community supervision for a term of ten years for

the offense of felon in possession of a firearm. The trial court later revoked Garcia’s community

supervision for committing the offense of possession of marijuana and sentenced Garcia to six

years confinement in the Texas Department of Criminal Justice–Institutional Division. On appeal,

Garcia contends the trial court abused its discretion in granting the State’s motion to revoke his

community supervision because the State failed to produce the search warrant establishing the

legality of the search in which the marijuana was found. We affirm the trial court’s judgment. 04-13-00003-CR

BACKGROUND

On April 4, 2011, Garcia was placed on community supervision for a term of ten years for

the offense of felon in possession of a firearm. On August 23, 2012, the State filed a motion to

revoke Garcia’s community supervision, alleging Garcia violated the terms of his community

supervision by committing the offense of possession of marijuana. At the December 19, 2012

hearing on the motion to revoke, Detective Sendejo 1 testified he executed a search warrant on

Garcia’s home. The State did not produce a copy of the search warrant during the hearing.

Detective Sendejo testified that during the search he found two “bricks” of marijuana and a loaded

gun. After the hearing, the trial court revoked Garcia’s community supervision and sentenced him

to six years confinement and assessed a $1,500.00 fine.

ANALYSIS

During a revocation proceeding, the trial court has discretion to revoke community

supervision when a preponderance of the evidence supports at least one of the State’s allegations

that the defendant violated a condition of his community supervision. Hacker v. State, 389 S.W.3d

860, 864–65 (Tex. Crim. App. 2013); Leonard v. State, 385 S.W.3d 570, 576 (Tex. Crim. App.

2012). In the context of a hearing to revoke community supervision, “a preponderance of the

evidence” means “that greater weight of the credible evidence which would create a reasonable

belief that the defendant has violated a condition of his probation.” Hacker, 389 S.W.3d at 865

(quoting Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim. App. 2006)). Additionally, a Texas

community supervision revocation proceeding is a judicial proceeding, to be governed by the rules

established to govern judicial proceedings. Ex parte Doan, 369 S.W.3d 205, 212 (Tex. Crim. App.

1 The State’s witness is referred to only as “Detective Sendejo” in the record, no first name is ever given.

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2012). The Texas Rules of Evidence and the exclusionary rule barring illegally seized evidence

apply fully to the hearing. Id. at 210.

Garcia argues the exclusionary rule barred admission of evidence relating to the seized

marijuana because the State failed to produce the warrant authorizing the search. It is well settled

that when a defendant objects to the court admitting evidence on the ground that it was unlawfully

seized and the State relies on a search warrant, in the absence of a waiver, reversible error will

result unless the record reflects that the warrant was exhibited to the trial judge. Handy v. State,

189 S.W.3d 296, 298 (Tex. Crim. App. 2006) (quoting Cannady v. State, 582 S.W.2d 467, 469

(Tex. Crim. App. 1979)). However, “[i]t is fundamental that a timely objection must be urged at

the first opportunity in order to preserve the error for review.” Porter v. State, 806 S.W.2d 316,

324 (Tex. App.—San Antonio 1991, no pet.) (citing Cisneros v. State, 692 S.W.2d 78, 82 (Tex.

Crim. App. 1985)). The timely objection must identify what is objected to and set forth grounds

for the objection. Id. In order for the court to consider an objection timely, it must be made as

soon as the ground for objection becomes apparent. Thompson v. State, 691 S.W.2d 627, 635

(Tex. Crim. App. 1984).

The record reflects Garcia did not timely object to the admission of evidence seized

pursuant to the search warrant so as to preserve his search warrant issue for appeal. Porter, 806

S.W.2d at 469. Without objection, Detective Sendejo, the sole witness for the State, testified he:

(1) obtained a search warrant for Garcia’s home; (2) executed the search warrant; and (3) found

“two bricks of marijuana and a pistol with live rounds in it” in the home during the search. Garcia

did not object to this testimony. Rather, Garcia first raised the issue regarding the production of

the search warrant at the end of the State’s case-in-chief when he asked the court to deny the State’s

motion to revoke. We hold that raising the issue of the search warrant well after Detective Sendejo

testified to the fruits of the search is not a timely objection. The ground for objection was apparent -3- 04-13-00003-CR

when the detective testified. See Thompson, 691 S.W.2d at 635. Accordingly, we hold Garcia

failed to preserve the issue for our review. See Porter, 806 S.W.2d at 469.

CONCLUSION

Based on the foregoing, we affirm the trial court’s judgment.

Marialyn Barnard, Justice

Do Not Publish

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