Frank A. Rivera v. State

• Court: Court of Appeals of Texas
• Decided: May 10, 2000
• Docket: 04-99-00119-CR
• Status: Published

Opinion

No. 04-99-00119-CR

Frank RIVERA, Appellant

v.

The STATE of Texas, Appellee

From the 216th Judicial District, Kendall County, Texas Trial Court No. 3307 The Honorable Stephen B. Ables, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: may 10, 2000

AFFIRMED

Nature of the Case

On April 5, 1995, Frank A. Rivera pled guilty to a burglary of a habitation charge. Pursuant to a plea bargain, the trial court sentenced Rivera to ten years imprisonment, probated for ten years, plus a five-hundred dollar fine. However, on January 7, 1999, finding that Rivera failed to abide by the terms and conditions of his probation, the trial court revoked Rivera's probation and sentenced him to six years imprisonment in the Texas Department of Criminal Justice, Institutional Division, and imposed a five-hundred dollar fine. It is from this decision that Rivera appeals.

Rivera challenges the trial court's revocation of his probation in three issues. First, Rivera claims the trial court erred by failing to issue written findings of fact. In his second issue, he claims the evidence was insufficient to support the trial judge's revocation. Finally, Rivera maintains that the trial judge abused his discretion by admitting inadmissible hearsay under the business records exception. We disagree with his assertions and affirm the trial court's judgment.

Findings of Fact

In his first issue, Rivera asserts the trial court erred in failing to enter findings of fact with respect to the revocation. When the trial court revokes a defendant's probation, specific written findings of fact should be entered when the defendant requests they be made. See Whisenant v. State, 557 S.W.2d 102, 105 (Tex. Crim. App. 1977); Joseph v. State, 3 S.W.3d 627, 639 (Tex App.­ Houston [14th Dist.] 1999, no pet. h.). The entering of findings grants a probationer the opportunity to show a trial judge abused his discretion in revoking his or her probation if the proof is insufficient to revoke on the grounds specified in the findings. See Ford v. State, 488 S.W.2d 793, 795 (Tex. Crim. App. 1972). A trial court's failure to comply with the defendant's request may require reversal, particularly where the court's failure to enter the findings hinders appellate review of the trial court's decision. See id.

In his judgment revoking probation, the trial judge found that Rivera violated the terms and conditions of his probation as set forth in the State's Motion to Revoke Probation. The trial judge then incorporated by reference and attached to the judgment as an exhibit the State's list which detailed Rivera's noncompliance with the scheduled probation obligations. That list enumerates eight types of probation violations, including failure to report to the probation officer, failure to pay probation fees, court costs, and a fine, failure to attend the aftercare program at Cornerstone Counseling, and failure to file a financial statement.

Although this list was not generated by the trial judge, we find it is sufficient to comply with Rivera's request for findings of fact. The list adequately informs Rivera of the trial court's grounds upon which it found he violated the terms and conditions of his probation. See Ford, 488 S.W.2d at 795. It also allowed Rivera an opportunity to adequately challenge the court's findings as he does in this appeal. We therefore overrule his first issue.

Sufficiency of the Evidence

In his second issue, Rivera maintains that the evidence against him was insufficient to support the trial court's revocation of his probation. The State shoulders the burden of proof in a probation revocation hearing. See Battle v. State, 571 S.W.2d 20, 21-22 (Tex. Crim. App. 1978); Kaylor v. State, 9 S.W.3d 205, 206 (Tex. App.­San Antonio 1999, no pet. h.). To satisfy this burden, the State must prove by a preponderance of the evidence that more probably than not, the defendant violated a condition of his probation as alleged in the motion to revoke. See id.

When a defendant attacks the sufficiency of the evidence supporting the revocation, we review the order revoking probation under an abuse of discretion standard. See Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983); Duke v. State, 2 S.W.3d 512, 515 (Tex. App.­San Antonio 1999, no pet. h.). In conducting our review, we consider all of the evidence in the light most favorable to the trial court's finding to determine whether any rational trier of fact could have found that appellant violated the terms of his probation by a preponderance of the evidence. See Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. [Panel Op.] 1979); Duke, 2 S.W.3d at 514. If we find the evidence was sufficient to support a finding of a single violation of probation, then that finding is sufficient to support a revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980). The appellant must therefore successfully challenge all the findings that support the revocation in order to prevail. See Jones, 571 S.W.2d at 193-94.

Rivera challenges the sufficiency of the evidence supporting the following alleged violations: his failure to report to his probation officer during the month of September; his failure to pay fees, fines, and court costs; and his failure to attend and comply with the Cornerstone aftercare program. Rivera's probation officer's testimony supports each of the State's allegations. Specifically, Penni Garcia testified that Rivera failed to report to her office in September of 1998, failed to pay probation fees, court costs, and attorney's fees, failed to file financial statements, and failed to attend and comply with the Cornerstone aftercare program. Viewing Ms. Garcia's testimony in a light favorable to the trial judge's findings, we cannot find he abused his discretion in revoking Rivera's probation. Accordingly, we overrule Rivera's second issue.

The Business Records Exception and Hearsay within Hearsay

In his final issue, Rivera challenges the admission of the Community Supervision and Corrections Department Chronological Recordings to prove his failure to attend the aftercare program conducted at Cornerstone. Specifically, he claims that although the recordings fall under the business records exception to the general hearsay exclusion, there are statements within the recordings that are inadmissible hearsay. Rivera contends that the recordings and the hearsay statements therein are hearsay within hearsay and that the State did not establish how each part of the combined statements conforms with an exception to the hearsay rule. He therefore contends the trial court erred in admitting the recordings. See Tex. R. Evid 805.

Texas Rule of Evidence 803(6) allows into evidence records kept in the course of a regularly conducted business activity, in spite of the general hearsay exclusion. Tex. R. Evid. 803(6). To be properly admitted under the business records exception, the proponent must prove the document was made at or near the time of the events recorded, by or from information transmitted by a person with knowledge of the events, and made and kept in the course of a regularly conducted business activity. Id. The proper predicate for the introduction of a business record may be established through the testimony of a records custodian or other qualified witness, or by an affidavit that complies with the Rules of Evidence. See id.; Tex. R. Evid. 902(10). Rule 803(6) does not require the predicate witness to be the record's creator or to have personal knowledge of the contents of the record. See Tex. R. Evid. 803(6); Butler v. State, 872 S.W.2d 227, 238 (Tex. Crim. App. 1994); Kan v. State, 4 S.W.3d 38, 45 (Tex. App.­San Antonio 1999, no pet. h.).

In this case, the State introduced into evidence chronological recordings, which list any correspondence the probation officer had with Rivera and with employees at Cornerstone Counseling. Penni Garcia, Rivera's probation officer, testified that she was the custodian of the records, that the notations in the record were made at or near the time of the events giving rise to the notation, and that the records were kept in the regular course of business at the probation department. Therefore, we cannot find the trial judge abused his discretion in admitting the chronological recordings.

However, there are notations in the recording that are also hearsay. For example, one entry states: "Rec'd call from Cornerstone Counseling, Marie, she stated that [defendant] never showed up for counseling..." Although the source of the information is named, there is neither an indication that Marie had personal knowledge of Rivera's failure to appear for counseling, nor is there an "indicia of reliability" that attached to that statement. See Porter v. State, 578 S.W.2d 742, 746-47 (Tex. Crim. App. 1979) (en banc). In addition, the State did not offer any hearsay exception that this particular statement would fall into and we can find none. It was therefore erroneous for the trial judge to admit the chronological recordings without striking certain statements contained within them.

Although the trial judge erred with respect to admitting portions of the chronological recordings, we find the error was harmless. See Tex. R. App. P. 44.2(b). There was other properly-admitted evidence to support the trial judge's revocation of Rivera's probation, particularly Rivera's failure to report to his probation officer, to pay certain fees and costs, and his failure to provide the State with a financial statement. Accordingly, we overrule Rivera's final issue and affirm the lower court's judgment.

Karen Angelini, Justice

DO NOT PUBLISH