Gabriel Contreras, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: March 9, 2007
• Docket: 06-06-00108-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-06-00108-CR

GABRIEL CONTRERAS, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law

Harrison County, Texas

Trial Court No. 2005-1945

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

Gabriel Contreras, Jr. entered a guilty plea, pursuant to a plea agreement, to driving while intoxicated. The trial court certified that he had a right to appeal matters raised by written motion filed and ruled on before trial. See Tex. R. App. P. 25.2(a)(2).

Contreras contends on appeal that he filed a motion to cross-examine the State's expert about the operation of the Intoxilyzer 5000, which was denied by the trial court before trial. The clerk's record contains a copy of the motion, which was formally denied by the trial court April 24, 2006, the date of the hearing on the guilty plea. The record of the guilty plea states that the document had been filed before trial, and the court denied the motion before accepting Contreras's plea.

This case is one of eight appeals filed by counsel nearly simultaneously, all of which had to do with cross-examination (or the lack of) of a State's expert about the device used to measure breath alcohol. This case aligns both procedurally and legally with Woodall v. State, No. 06-06-00106-CR, 2006 Tex. App. LEXIS 1304 (Tex. App.--Texarkana Feb. 22, 2007, no pet. h.). Factually, the only difference is that in Woodall, some evidence was heard before the defendant withdrew his plea of not guilty, and in this case, Contreras pleaded before any evidence was offered.

The brief filed by counsel is identical to that filed in Woodall, and we likewise read the brief in this case to assert one error: that the trial court erred in entering the order barring Contreras from conducting any cross-examination of the State's breath-testing expert on the stated issues. The State likewise argues identically in this case, first, that error was not preserved because there was no bill of exceptions made; and second, that the accuracy of the machine was established by caselaw and statute and not subject to attack.

The discussion between counsel and trial court in this case is brief, but informative. Further, the comments made by counsel and the court, and the court's ready acceptance of (and denial of) the motion--which it had seen before and which specifically sets out the areas of questioning that counsel wished to raise--make it quite clear that the court knew exactly the matters that counsel wished to raise. Further, it is apparent that the court was fully aware of the attacks that counsel wanted to make through questioning the State's expert. As in Woodall, and for the reasons stated therein, we find that the issue in this case was also preserved for review.

Again, as in our opinion in Woodall, we also find in this case that complete denial of the right to cross-examination was error, and that because the right to present a defense is a fundamental element of due process of law, and because a violation of that right constitutes constitutional error, we must reverse a trial court's judgment when such an error is present unless we can determine beyond a reasonable doubt that the error did not contribute to the conviction. See Tex. R. App. P. 44.2(a) (requiring reversal of constitutional error unless appellate court determines beyond a reasonable doubt that the error did not contribute to the conviction); see also Davis v. Alaska, 415 U.S. 308, 318 (1974) (holding that denial of effective cross-examination is "constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it").

Contreras entered his plea of guilty after the trial court denied his pretrial motion to permit cross-examination of the State's expert as to the efficacy of the breath-testing machine. Because Contreras pleaded guilty following the trial court's pretrial ruling on his motion and obtained permission to appeal that ruling, on the record before us we cannot determine beyond a reasonable doubt that the trial court's erroneous ruling on Contreras's motion to exclude did not contribute to his guilty plea, that is, his conviction. See Hale v. State, 139 S.W.3d 418, 420 (Tex. App.--Fort Worth 2004, no pet.).

Accordingly, we sustain Contreras's contention of error.

We reverse the judgment and remand the case to the trial court for further proceedings.

Bailey C. Moseley

Justice

Date Submitted: January 25, 2007

Date Decided: March 9, 2007

Do Not Publish

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                             No. 06-10-00202-CR

                               JOHN ANDREW PEDERSON, Appellant

                                       On Appeal from the 336th Judicial District Court

                                                             Fannin County, Texas

                                                      Trial Court No. CR-09-23260

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                                     MEMORANDUM  OPINION

            John Andrew Pederson entered a plea of guilty to aggravated assault and a plea of “true” to the issue of use of a deadly weapon (not a firearm) in the commission of that offense; he then submitted the question of punishment to a jury.  The jury assessed a verdict of ten years’ imprisonment and a $10,000.00 fine, but recommended that Pederson be granted community supervision.  The trial judge sentenced Pederson in accord with the jury’s verdict, placing Pederson on community supervision for ten years.  At the time, Pederson was homeless and the community supervision department helped him gain admission to a program administered by the Veterans Administration (VA).  Pederson’s terms of community supervision were amended to require him to

attend and participate in all Veteran Administration programs eligible and shall reside in a Veteran Administration residential program if eligible.  Defendant shall abide by all rules and regulations of Veteran Administration and follow all recommendations by the Veteran Administration and/or CSCD^[1] Officer . . . .

Pederson failed to complete the program and was “irregularly discharged” from the VA program and a motion to revoke his community supervision was filed less than three months after he was granted that status.  It is from the order of revocation of community supervision that Pederson has appealed.

            In its motion to revoke community supervision, the State alleged four violations of the terms of community supervision.  The only violation^[2] the trial court found to be true was the allegation that Pederson had

failed to attend, participate In all Veteran Administration Programs and failed to reside at the Veterans Residential Program.  Defendant failed to abide by all the rules and regulations of Veteran Administration and failed to follow all recommendations by Veteran Administration and the CSCD Officer.  Defendant failed to notify the CSCD Officer of his whereabouts, thereby violating condition (#39) of the terms and conditions of community supervision.

After a hearing, the trial court entered an order revoking the community supervision and sentencing Pederson to ten years’ imprisonment and the payment of the $10,000.00 fine. 

            In Pederson’s sole issue on appeal, he alleges that the trial court abused its discretion.  He bases his argument on the fact that since the State failed to introduce any of the VA rules and regulations, it failed to “prove by a preponderance of the evidence the specific allegation that Mr. Pederson violated an actual rule or regulation” of the VA.  The State argues that Pederson failed to follow all the recommendations by the VA.^[3]  More to the point here, the State continues that, “even if Appellant did not violate a particular rule or regulation of VA, his behavior was still contrary to the specific instructions of the VA staff, and it was within the trial court’s reasonable discretion to find his behavior violated his conditions of probation.”  We agree with the State.

            We review a trial court’s decision to revoke community supervision under an abuse of discretion standard and examine the evidence in the light most favorable to the trial court’s order. Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.––Texarkana 2003, pet. ref’d).  The State has the burden of proving a violation of community supervision by a preponderance of the evidence.  Antwine v. State, 268 S.W.3d 634, 636 (Tex. App.—Eastland 2008, pet. ref’d).  In a community supervision revocation hearing, the trial court is the sole trier of fact.  Jones v. State, 787 S.W.2d 96, 97 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d).  The trial court also determines the credibility of the witnesses and the weight to be given their testimony.  Id.  It may accept or reject any or all of the witnesses’ testimony.  Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987).  A trial court does not abuse its discretion to revoke a defendant’s community supervision if the State presents sufficient evidence that the defendant violated at least one term of the community supervision agreement as alleged in the State’s motion to revoke.  Tex. Code Crim. Proc. Ann. art. 42.12, § 21 (West Supp. 2009) (State must prove every element of at least one ground for revocation by preponderance of evidence); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Bigham v. State, 233 S.W.3d 118, 121 (Tex. App.––Texarkana 2007, no pet.). 

            The record contains ample evidence that Pederson failed to follow all the recommendations of the VA.  The State introduced business records from the VA which indicate that Pederson failed to obey commands of VA employees and failed to attend classes, attend counseling, and turn in written work assignments, as well as having stolen property from another resident veteran.  When asked, “You didn’t adhere to the requirements of the VA and the program, did you,” Pederson responded, “No, sir.”  Pederson admitted that he had missed two medical appointments^[4] and that he had failed to attend classes regarding credit counseling and anger management.^[5]  Eventually, the VA placed Pederson on “behavioral probation.”  Approximately a week after being placed on “behavioral probation,” Pederson admitted that he removed a lock from another person’s locker and then lied about having done so.   

            Sufficient evidence was presented for the trial court to have concluded, by a preponderance of the evidence, that Pederson violated a term of his community supervision.  We conclude that the trial court did not abuse its discretion in finding that Pederson failed to follow all the recommendations of the VA. 

            For the reasons stated, we affirm the judgment of the trial court.

                                                                        Bailey C. Moseley

Date Submitted:          July 5, 2011

Date Decided:             July 6, 2011

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^[1]Community Supervision Corrections Department.

^[2]The State also alleged Pederson 1) failed to pay community supervision fees, 2) failed to pay court costs, and 3) failed to report by telephone to the community supervision officer.  The trial court found the allegations concerning the fees and court costs not true based on an inability to pay.  Debra Roberts, Director of the Fannin County Community Supervision and Corrections Department, testified, to her knowledge, Pederson did not have any ability to pay the community supervision fee or the court costs.  The trial court also found the allegation that Pederson failed to report to his community supervision officer not true.  Roberts testified there was no indication in Pederson’s file that he reported after arriving at the VA hospital.  Pederson’s community supervision officer had been dismissed for reasons unrelated to this case.  Pederson testified his community supervision officer had provided him with her cell phone number and he had called her on her cell phone.  Pederson testified that she would often not answer the cell phone or return his call, but testified he “figured she’s the one that’s in charge, she knows what she’s doing . . . .”  Pederson testified he had not been provided an office number for his community supervision officer. 

^[3]The State argues Pederson failed to challenge on appeal all of the methods by which Pederson could violate the allegation the trial court found to be true.  The State also argues the trial court could make a “reasonable inference” that Pederson’s conduct violated the rules and regulations of the VA.  The State also argues “[a]lthough the rulebook itself was never put in evidence, it seems reasonable for the trial court to conclude Appellant’s act of taking another’s property was contrary to the established rules of the VA.”  It is not necessary for us to address these arguments.

^[4]Pederson testified he forgot about the appointments. 

^[5]Pederson testified he mistakenly believed the credit counseling classes were not mandatory.  Pederson testified he missed the anger management class for oversleeping, but did not inform the instructor that he overslept.  Pederson admitted he had been reprimanded for “sleeping in past eight o’clock.”