Gerson Molina v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 23, 2022
• Docket: 02-22-00017-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-22-00017-CR ___________________________

GERSON MOLINA, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 371st District Court Tarrant County, Texas Trial Court No. 1598024D

Before Womack, Wallach, and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION

The State filed a petition to adjudicate Appellant Gerson Molina guilty, alleging

that he had violated the terms of his deferred-adjudication community supervision.

After a revocation hearing, a criminal law magistrate found that Molina had violated

certain terms of his community supervision, and the district court adjudicated him

guilty and sentenced him to 10 years’ confinement. On appeal, Molina complains that

(1) there were reversible procedural deficiencies related to the transfer of the case to

the magistrate; (2) the State did not prove by a preponderance of the evidence that he

had violated the terms of his community supervision; and (3) he was not given

adequate notice of and an opportunity to object to the terms of his community

supervision. We will affirm.

I. BACKGROUND

A. RELEVANT COMMUNITY SUPERVISION TERMS

When Molina was placed on five years of deferred-adjudication community

supervision for aggravated assault with a firearm, he signed two documents that

outlined its terms and conditions as part of his plea bargain. The first document,

titled “Conditions of Community Supervision,” prohibited Molina from committing

additional criminal offenses and required him to pay fees. The second document,

titled “Supplement/Amendment to Conditions of Community Supervision High

Risk,” required Molina to successfully complete the high-risk gang caseload program,

stated that he could not “possess a firearm or other dangerous or deadly weapon; nor

2 remain in any vehicle where such a weapon is possessed; or remain in the presence of

any armed person,” and prohibited him from associating with known gang members

and staying in places where gang members congregate.1 See Tex. Code Crim Proc.

Ann. art. 42A.301(a).

B. STATE’S PETITION TO PROCEED TO ADJUDICATION

Predicated mainly on allegations that Molina had been involved in an

altercation involving a shooting outside of a Fort Worth home, the State filed its

petition to proceed with Molina’s adjudication and requested that his community

supervision be revoked. The State alleged that Molina had (1) committed the new

offense of engaging in organized criminal activity; (2) possessed a firearm; (3) been in

a vehicle with an armed person and remained in the presence of an armed person;

(4) been discharged from the high-risk caseload program for violating its terms;

(5) associated with known gang members; and (6) failed to pay his community

supervision fees.

C. REVOCATION HEARING

A hearing on the State’s petition was held over three days in front of a criminal

law magistrate. See Tex. Gov’t Code Ann. § 54.656(a)(10). The record does not

contain an order referring the case to the magistrate, but Molina never objected to the

1 The second document appears twice in the record, with one copy bearing the signatures of both Molina and the presiding judge. The second copy is signed by the judge and a supervision officer but not Molina.

3 magistrate’s presiding over the hearing. Molina pleaded not true to all of the

petition’s allegations.

Testimony at the hearing established that Molina had been in an altercation at

a carwash with seventeen-year-old F.V. See Tex. R. App. P. 9.10 (prohibiting use of

minor’s names in court filings). At some point the altercation ended and F.V.

returned to his home in Fort Worth, taking Molina’s cell phone with him. Molina left

the car wash and drove to another location where he picked up several companions,

including two men named Carlos and Isaac. The men then drove to F.V.’s home.

Upon arriving, Molina, Carlos, and Isaac exited Molina’s car and entered the

front yard where F.V. was sitting in his parked truck on the lawn. F.V. then ran from

the truck and into the home. F.V. testified that, as he was running, he heard Carlos

say, “You gonna need a new truck” and then he heard Carlos shoot a gun. F.V.’s

mother and sister, who were watching from inside the home, testified that they heard

gunshots come from the front yard.

F.V.’s sister recorded a short video soon after the three men entered the front

yard. A still image from this video shows Molina, Carlos, and Isaac in the front yard.

Isaac is standing in the foreground with Carlos and Molina behind him. Carlos

appears to be pacing and is openly carrying a handgun at his side in his right hand.

Molina stands a few feet to the left of Carlos and both men are facing the home.

Molina testified that he did not know that anyone was carrying a gun while he

was in F.V.’s front yard. He said that he heard F.V.’s mother yell that someone had a

4 gun and that he and Carlos then immediately ran to Molina’s car and drove away

together. According to Molina, he first learned that Carlos had been carrying a gun in

the yard when he viewed the image taken by F.V.’s sister.

A police detective who interviewed Molina after the incident testified that

Molina told him that he knew that Carlos had a gun while they were in F.V.’s front

yard. Further, Molina told the detective that he did not immediately leave the front

yard when he realized that Carlos was carrying the gun. Molina stated multiple times

to the detective that he knew that he was not allowed to be around guns.

During an investigation of the shooting scene, police found bullet holes in the

sides of the house, F.V.’s truck, and Molina’s car, and they recovered over 25 shell

casings of three different sizes from the street and yard.

The magistrate found orally on the record that it was true that Molina had

(1) engaged in organized criminal activity; (2) been in a vehicle where another

possessed a firearm and remained in the presence of an armed person; and

(3) associated with known gang members. The magistrate also orally adjudicated

Molina guilty and sentenced him to ten years’ confinement. These pronouncements

were also reduced to writing in the magistrate’s handwritten certificate of proceedings

from the revocation hearing. The magistrate did not prepare any formal, written

findings of fact, conclusions of law, or recommendations for the trial court. The trial

court then signed its judgment adjudicating Molina guilty and sentencing him to 10

years’ confinement.

5 II. ANALYSIS

A. NO ERROR WITH MAGISTRATE ACTION

In his first issue, Molina argues that the trial court’s judgment should be

vacated because there was a “complete absence of procedure” related to the

magistrate’s involvement in his case. Citing Davis v. State, Molina alleges two

deficiencies that, particularly when viewed together, constituted more than simple

procedural error: (1) the lack of an order referring the case to the magistrate, and

(2) the magistrate’s failing to prepare any findings of fact, conclusions of law, or

recommendations for the trial court. See 956 S.W.2d 555, 560 (Tex. Crim. App. 1997)

(holding that attacks directed at irregularities in orders referring cases to a magistrate

are procedural attacks that may render a judgment voidable but not automatically

void). We disagree with Molina.

1. Lack of Referral Order

Molina first complains of the lack of an order referring the case to the

magistrate.

A district court may refer to a criminal magistrate certain types of proceedings,

including those related to motions to revoke community supervision or to proceed

with an adjudication of guilt. Tex. Gov’t Code Ann. § 54.656(a)(10) “To refer one or

more cases to a magistrate, a judge must issue an order of referral specifying the

magistrate’s duties.” Id. § 54.657(a). However, a valid objection is required to

preserve complaints about irregularities in the procedure through which a case was

6 referred to a magistrate. Hoag v. State, 959 S.W.2d 311, 313 (Tex. App.—Fort Worth

1997, no pet.) (holding that appellant did not preserve error when she never objected

to the referral of her case to a magistrate and the referral order was not entered until

six days after the transferred proceeding occurred); see Davis, 956 S.W.2d at 559-60;

Lemasurier v. State, 91 S.W.3d 897, 900 (Tex. App.—Fort Worth 2002, pet. ref’d). This

includes complaints about whether a valid referral order has been entered before the

magistrate presides over the transferred proceeding. Hoag, 959 S.W.2d at 313.

It is undisputed that the record here does not contain an order referring

Molina’s case to the magistrate. It is also undisputed that Molina never objected to

his case’s referral or to the magistrate’s presiding over it.2 Thus, we overrule this

portion of Molina’s first issue because Molina failed to preserve it for our review.3

2 Notably, in the written plea admonishments signed by Molina, he expressly agreed that he had no objection to having a magistrate hear any proceeding in his case. 3 Though Molina acknowledges this court’s precedent requiring an objection in situations like this, he nonetheless requests that we disregard it. The main authority raised by Molina to support this request is an unpublished case from the Dallas court, which held that a trial court’s duty to enter a referral order created a “systemic right” that could not be waived by lack of a valid objection. See Ex parte DeLeon, No. 05-11- 00594-CR, 2011 WL 3690302, at *1–2 (Tex. App.—Dallas Aug. 24, 2011, no pet.) (not designated for publication). But DeLeon is unpersuasive, not only because it is not binding on our decision, but also because it appears to wholly disregard the contrary holding by the Texas Criminal Court of Appeals in Davis that the lack of a referral order is merely a procedural irregularity that does not deprive an otherwise qualified magistrate of its authority to hear a case. See 956 S.W.2d at 559–60.

7 2. Lack of Findings, Conclusions, or Recommendations

Molina next complains that the magistrate failed to prepare any findings of fact,

conclusions of law, or recommendations for the trial court to follow. Without these

findings, conclusions, and recommendations—Molina argues—the trial court’s

judgment was invalid. But, there is no law imposing such a duty upon the magistrate,

and Molina has not pointed to any affirmative proof that the trial court did not review

the magistrate’s actions.

The Texas Government Code provides that a magistrate “may . . . make

findings of fact on evidence,” “formulate conclusions of law,” and “recommend the

rulings, orders, or judgment to be made in a case.” Tex. Gov’t Code Ann.

§ 54.658(a)(8), (9), (11) (emphasis added). There is no requirement that the magistrate

reduce its findings to writing. Christian v. State, 865 S.W.2d 198, 202 (Tex. App.—

Dallas 1993, pet. ref’d). At the conclusion of the proceedings, “a magistrate shall

transmit to the referring court any papers relating to the case, including the

magistrate’s findings, conclusions, orders, recommendations, or other action taken.”

Tex. Gov’t Code Ann. § 54.611. Unless the trial court modifies or otherwise rejects

the action of the magistrate, that action becomes the decree of the court. Tex. Gov’t

Code Ann. § 54.662(b). Appellate courts must apply a presumption of regularity to a

trial court’s adoption of magistrate actions and questions of irregularity may be

entertained only if a party offers affirmative proof that the trial court did not review

8 those actions. Kelley v. State, 676 S.W.2d 104, 108 (Tex. Crim. App. 1984); Christian,

865 S.W.2d at 202.

Thus, the law is clear that, though the magistrate had the discretion to prepare

formal written findings, conclusions, and recommendations, it was under no

obligation to do so. See Tex. Gov’t Code Ann. § 54.658(a)(8), (9), (11). Even still, the

magistrate’s pronouncements are readily apparent in the record from both the record

of the revocation hearing and the magistrate’s written certificate of the proceedings.

Further, Molina does not identify any evidence from the record to suggest that

the trial court did not properly review these pronouncements or any other action of

the magistrate. In fact, the record suggests the opposite. The magistrate found that

Molina had violated certain terms of his community supervision, adjudicated him

guilty, and sentenced him to 10 years’ confinement. The trial court’s judgment is

wholly consistent with these pronouncements.

For these reasons, we conclude that there was no error related to the

magistrate’s actions or the trial court’s adoption of those actions and overrule the

remainder of Molina’s first issue.

B. EVIDENCE SUPPORTED THE FINDINGS OF TRUE

The magistrate found it true that Molina had violated the terms of his

community supervision when he (1) engaged in organized criminal activity; (2) had

been in a vehicle where another possessed a firearm and remained in the presence of

an armed person; and (3) associated with known gang members. Molina argues in his

9 second issue that the evidence did not show beyond a preponderance of the evidence

that he violated any of these terms. We overrule this portion of Molina’s second issue

because the evidence supports revocation on at least one of the magistrate’s findings.

See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980).

We review a trial court’s decision to proceed to an adjudication of guilt and

revoke deferred-adjudication community supervision for an abuse of discretion.

Cantu v. State, 339 S.W.3d 688, 691 (Tex. App.—Fort Worth 2011, no pet.). In a

revocation proceeding, the State must prove by a preponderance of the evidence that

the defendant violated the terms and conditions of his community supervision. Id.

The trial court is the sole judge of the credibility of the witnesses and weight to be

given their testimony, and we review the evidence in the light most favorable to the

trial court’s ruling. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984);

Cantu, 339 S.W.3d at 691. Proof by a preponderance of the evidence of any one of

the alleged violations is sufficient to support a revocation order. Moore, 605 S.W.2d

at 926.

There is sufficient evidence to show that Molina knowingly rode in his car with

Carlos and remained in his presence while Carlos possessed a gun. Molina and Carlos

rode together in Molina’s car to F.V.’s house. A photo plainly shows Molina standing

next to Carlos while Carlos openly carries a gun. Though Molina testified to the

contrary, a detective testified that Molina reported having known about Carlos’s gun

while he stood in F.V.’s yard but did not immediately retreat. The evidence shows

10 that F.V.’s mother then yelled that there was a gun on the scene and shots were fired.

And F.V. heard Carlos say “You gonna need a new truck,” shortly before Carlos

started shooting. Soon after, Molina and Carlos fled together in Molina’s car.

In light of this evidence, we hold that the magistrate did not abuse its discretion

when it found it true that Molina had been in a vehicle where another possessed a

firearm and remained in the presence of an armed person, and we overrule this

portion of Molina’s second issue.

C. MOLINA HAD NOTICE OF HIS COMMUNITY-SUPERVISION TERMS

Finally, Molina contends that, even if the evidence was sufficient to show that

he violated any of these three terms of his community supervision, they were

unenforceable against him because he had no notice of or opportunity to object to

them. Molina argues that he never signed the “Supplement/Amendment to

Conditions of Community Supervision High Risk” document (Supplement), which

contained the terms prohibiting him from being in the presence of an armed person

and known gang members. Because of this, Molina concludes that the magistrate

abused its discretion when it found that he violated these terms. We overrule this

argument because the record reflects that Molina did sign this document and, thus,

had adequate knowledge of his community-supervision terms.

A trial court has broad discretion to impose reasonable community supervision

terms. Tex. Code Crim. Proc. Ann. art. 42A.301(a). A defendant who is fairly

notified of the terms at a hearing at which he has an opportunity to object forfeits any

11 later complaint about those terms. Dansby v. State, 448 S.W.3d 441, 447 (Tex. Crim.

App. 2014).

The record contains two copies of the Supplement document. One copy does

not contain Molina’s signature, but the other copy does. The copy bearing Molina’s

signature is dated April 12, 2021—the same day that the hearing was held at which

Molina entered his original plea of guilty and at which the trial court placed him on

deferred-adjudication community supervision. Thus, the record shows that Molina

was fairly notified of the terms of his community supervision and given fair notice to

object to them. Accordingly, we hold that Molina forfeited any complaint related to

these terms, and we overrule the remainder of his second issue.

III. CONCLUSION

Having overruled both of Molina’s issues, we affirm the trial court’s judgment.

/s/ Brian Walker

Brian Walker Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: November 23, 2022