NO. 07-11-00389-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JUNE 5, 2012
KRISTOPHER BLUNTZER, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-425,659; HONORABLE BRADLEY UNDERWOOD, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Kristopher Bluntzer, appeals the judgment of the trial court revoking
his community supervision and sentencing him to two years in a State Jail Facility (SJF)
on each of the two counts of theft to which appellant had initially pleaded guilty. We will
modify and affirm the judgment of the trial court as modified.
Factual and Procedural Background
Appellant was indicted in one indictment with two separate counts of theft of
property of the value of $1,500 but less than $20,000. Appellant entered a plea of guilty as to each count on May 3, 2010, and was placed on community supervision for a
period of four years. At appellant’s request, supervision of his probation was transferred
to DeWitt and Victoria Counties of Texas.1 Subsequently, the State filed a motion to
revoke appellant’s community supervision alleging that appellant had violated a number
of his terms and conditions of community supervision. Specifically, the State alleged
that appellant had violated:
Condition (a), by committing the offense of credit/debit card abuse; Condition (d), by failing to report for the month of April 2011; Condition (g), by leaving DeWitt County and by leaving the State without permission; Condition (k1), by becoming delinquent in the amount of $120.00 in paying supervision fees; Condition (k2), by becoming delinquent in the amount of $57.27 in paying restitution; Condition (n), by failing to complete 15 hours of community service; Condition (s), by failing to abide by the curfew imposed from 12:00 midnight until 6:00 a.m.; Condition (u), by failing to attend and complete, within 120 days of judgment, a theft program.
Appellant entered a plea of not true.
The State offered the testimony of Florita Buchanan, the community supervision
officer charged with supervising appellant’s out-of-county probation. Buchanan was
1 DeWitt and Victoria Counties are adjoining counties that share a community supervision department. 2 permitted to testify from the “chronos”2 as entered by the supervision officer who had
direct supervision over appellant in DeWitt and Victoria Counties. Pursuant to the
“chronos,” appellant admitted taking a trip outside the State of Texas without first
obtaining permission from the community supervision department. Likewise, the
“chronos” revealed that appellant did not report for the month of April 2011 and was not
current in the payment of his supervision fees and restitution at the time the motion to
revoke was filed. Additionally, the records revealed appellant had violated his curfew at
the time he was outside the State of Texas. Finally, the “chronos” revealed appellant
had not completed the theft class at the time the motion to revoke was filed. At the
outset of Buchanan’s testimony, appellant objected, contending that the “chronos” were
hearsay and that he did not have the opportunity to cross-examine the writer of the
events. The trial court overruled the objection.
The State also presented the testimony of Jennifer Foxell, appellant’s fiancée.
Foxell testified that appellant did take a trip outside the State of Texas to Pennsylvania.
Further, Foxell testified that she and appellant went to Port Aransas, Texas, and agreed
that the date of March 19, 2011, seemed to be the correct day they were there.
The State also furnished the testimony of Peter Dlugosch. Dlugosch is
appellant’s uncle and had been appellant’s employer. It was a credit card belonging to
Dlugosch’s business that was the subject of the new offense of credit/debit card abuse.
Dlugosch testified that the truck appellant had operated for his business had a credit
2 The term “chronos” refers to the chronology of events set out in the records from the probation department. Normally, “chronos” include each and every office, field, or collateral contact the probation office has with a probationer. 3 card assigned to it. The testimony reflected that this was credit card number 13. The
credit card receipts indicated that this credit card was used to purchase significant
quantities of fuel during a February trip that appellant took to Pennsylvania. However,
there was no testimony that appellant, as opposed to appellant’s friend, Austin Martinez,
who was with appellant on the trip, had been the person to present the credit card for
the fuel purchases. Yet, the exhibits of the credit card purchases did include three
purchases in Port Aransas, Texas, on March 19, 2011.
Appellant did not testify; however, he presented the testimony of Calvin Pape, a
former co-worker at Dlugosch’s and an employee of appellant’s. The main thrust of
Pape’s testimony was that the credit cards were not controlled in the manner that
Dlugosch had testified and, because of this, it was hard, if not impossible, to ascertain
who had actually used the cards. Additionally, he testified about his perceptions of why
Dlugosch had chosen to pursue the credit/debit card abuse case against appellant.
Additionally, appellant’s mother and Dlugosch’s sister, Linda Dlugosch, testified
for appellant. She testified that Dlugosch was not to be trusted and that his pursuit of
the credit/debit card charges against appellant was due singularly to appellant’s having
stood up to him.
After hearing this evidence, the trial court revoked appellant’s community
supervision on both counts and sentenced appellant to two years in an SJF on each of
the counts. Appellant has appealed, contending that the trial court abused its discretion
in revoking his community supervision because the evidence was insufficient to support
the revocation. We disagree and affirm the trial court’s judgment.
4 Standard of Review
A revocation of community supervision is neither criminal nor civil in nature, but,
rather, an administrative action. See Canseco v. State, 199 S.W.3d 437, 438
(Tex.App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Cobb v. State, 851 S.W.2d 871,
873 (Tex.Crim.App. 1993)). A trial court’s decision to revoke community supervision is
reviewed under an abuse of discretion standard. Id. at 439. A trial court abuses its
discretion in revoking community supervision only when the State has failed to meet its
burden of proof. See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App. 1984)
(en banc). The State’s burden of proof in a revocation of community supervision is by a
preponderance of the evidence. See Rickels v. State, 202 S.W.3d 759, 763
(Tex.Crim.App. 2006). In other words, the greater weight of the credible evidence must
create a reasonable belief that the appellant violated a term and condition of his
community supervision. See id at 763-64. Proof of violation of a single violation is
sufficient to support a revocation order. Canseco, 199 S.W.3d at 439.
Analysis
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NO. 07-11-00389-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JUNE 5, 2012
KRISTOPHER BLUNTZER, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-425,659; HONORABLE BRADLEY UNDERWOOD, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Kristopher Bluntzer, appeals the judgment of the trial court revoking
his community supervision and sentencing him to two years in a State Jail Facility (SJF)
on each of the two counts of theft to which appellant had initially pleaded guilty. We will
modify and affirm the judgment of the trial court as modified.
Factual and Procedural Background
Appellant was indicted in one indictment with two separate counts of theft of
property of the value of $1,500 but less than $20,000. Appellant entered a plea of guilty as to each count on May 3, 2010, and was placed on community supervision for a
period of four years. At appellant’s request, supervision of his probation was transferred
to DeWitt and Victoria Counties of Texas.1 Subsequently, the State filed a motion to
revoke appellant’s community supervision alleging that appellant had violated a number
of his terms and conditions of community supervision. Specifically, the State alleged
that appellant had violated:
Condition (a), by committing the offense of credit/debit card abuse; Condition (d), by failing to report for the month of April 2011; Condition (g), by leaving DeWitt County and by leaving the State without permission; Condition (k1), by becoming delinquent in the amount of $120.00 in paying supervision fees; Condition (k2), by becoming delinquent in the amount of $57.27 in paying restitution; Condition (n), by failing to complete 15 hours of community service; Condition (s), by failing to abide by the curfew imposed from 12:00 midnight until 6:00 a.m.; Condition (u), by failing to attend and complete, within 120 days of judgment, a theft program.
Appellant entered a plea of not true.
The State offered the testimony of Florita Buchanan, the community supervision
officer charged with supervising appellant’s out-of-county probation. Buchanan was
1 DeWitt and Victoria Counties are adjoining counties that share a community supervision department. 2 permitted to testify from the “chronos”2 as entered by the supervision officer who had
direct supervision over appellant in DeWitt and Victoria Counties. Pursuant to the
“chronos,” appellant admitted taking a trip outside the State of Texas without first
obtaining permission from the community supervision department. Likewise, the
“chronos” revealed that appellant did not report for the month of April 2011 and was not
current in the payment of his supervision fees and restitution at the time the motion to
revoke was filed. Additionally, the records revealed appellant had violated his curfew at
the time he was outside the State of Texas. Finally, the “chronos” revealed appellant
had not completed the theft class at the time the motion to revoke was filed. At the
outset of Buchanan’s testimony, appellant objected, contending that the “chronos” were
hearsay and that he did not have the opportunity to cross-examine the writer of the
events. The trial court overruled the objection.
The State also presented the testimony of Jennifer Foxell, appellant’s fiancée.
Foxell testified that appellant did take a trip outside the State of Texas to Pennsylvania.
Further, Foxell testified that she and appellant went to Port Aransas, Texas, and agreed
that the date of March 19, 2011, seemed to be the correct day they were there.
The State also furnished the testimony of Peter Dlugosch. Dlugosch is
appellant’s uncle and had been appellant’s employer. It was a credit card belonging to
Dlugosch’s business that was the subject of the new offense of credit/debit card abuse.
Dlugosch testified that the truck appellant had operated for his business had a credit
2 The term “chronos” refers to the chronology of events set out in the records from the probation department. Normally, “chronos” include each and every office, field, or collateral contact the probation office has with a probationer. 3 card assigned to it. The testimony reflected that this was credit card number 13. The
credit card receipts indicated that this credit card was used to purchase significant
quantities of fuel during a February trip that appellant took to Pennsylvania. However,
there was no testimony that appellant, as opposed to appellant’s friend, Austin Martinez,
who was with appellant on the trip, had been the person to present the credit card for
the fuel purchases. Yet, the exhibits of the credit card purchases did include three
purchases in Port Aransas, Texas, on March 19, 2011.
Appellant did not testify; however, he presented the testimony of Calvin Pape, a
former co-worker at Dlugosch’s and an employee of appellant’s. The main thrust of
Pape’s testimony was that the credit cards were not controlled in the manner that
Dlugosch had testified and, because of this, it was hard, if not impossible, to ascertain
who had actually used the cards. Additionally, he testified about his perceptions of why
Dlugosch had chosen to pursue the credit/debit card abuse case against appellant.
Additionally, appellant’s mother and Dlugosch’s sister, Linda Dlugosch, testified
for appellant. She testified that Dlugosch was not to be trusted and that his pursuit of
the credit/debit card charges against appellant was due singularly to appellant’s having
stood up to him.
After hearing this evidence, the trial court revoked appellant’s community
supervision on both counts and sentenced appellant to two years in an SJF on each of
the counts. Appellant has appealed, contending that the trial court abused its discretion
in revoking his community supervision because the evidence was insufficient to support
the revocation. We disagree and affirm the trial court’s judgment.
4 Standard of Review
A revocation of community supervision is neither criminal nor civil in nature, but,
rather, an administrative action. See Canseco v. State, 199 S.W.3d 437, 438
(Tex.App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Cobb v. State, 851 S.W.2d 871,
873 (Tex.Crim.App. 1993)). A trial court’s decision to revoke community supervision is
reviewed under an abuse of discretion standard. Id. at 439. A trial court abuses its
discretion in revoking community supervision only when the State has failed to meet its
burden of proof. See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App. 1984)
(en banc). The State’s burden of proof in a revocation of community supervision is by a
preponderance of the evidence. See Rickels v. State, 202 S.W.3d 759, 763
(Tex.Crim.App. 2006). In other words, the greater weight of the credible evidence must
create a reasonable belief that the appellant violated a term and condition of his
community supervision. See id at 763-64. Proof of violation of a single violation is
sufficient to support a revocation order. Canseco, 199 S.W.3d at 439.
Analysis
Appellant’s sufficiency of the evidence argument is grounded on one contention:
that the testimony of Buchanan and the admission of the “chronos” violated the Texas
Rules of Evidence prohibition against the use of hearsay. See TEX. R. EVID. 802.3
Appellant seems to imply an objection on the basis of the confrontation clause to the
United States Constitution; however, just as quickly, he then admits that the case law
3 Further reference to the Texas Rules of Evidence will be by reference to “Rule __” or “rule __.” 5 says that a revocation proceeding is not considered a stage of a criminal prosecution
but rather an administrative proceeding. See U.S. CONST. amend. VI; Smart v. State,
153 S.W.3d 118, 120-21 (Tex.App.—Beaumont 2004, pet. ref’d) (citing Gagnon v.
Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). Thus, the rule
regarding confrontation espoused in Crawford v. Washington, 541 U.S. 36, 124 S.Ct.
1354, 158 L.Ed.2d 177 (2004), does not apply in the revocation of community
supervision arena. Smart, 153 S.W.3d at 121.
Accordingly, appellant is left with his objection on the grounds that the “chronos”
are hearsay and, therefore, inadmissible evidence. However, appellant is erroneous in
his contention that the “chronos” are inadmissible hearsay. Rule 803(6) excepts from
the definition of hearsay the following:
[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, . . . . “Business” as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.
See Rule 803(6). Further, the authentication requirement does not mean the person
testifying must be either the creator of the record or to have personal knowledge of the
record. Canseco, 199 S.W.3d at 440. Thus, the testifying witness need only have
knowledge of how the record was prepared. Id. Once this predicate is laid, the
community supervision file is properly admissible. Id. (citing Simmons v. State, 564
S.W.2d 769, 770 (Tex.Crim.App. 1978)).
6 In the case before the Court, Buchanan testified that: 1) she was the custodian of
the records in question, 2) that the records were kept in the normal course of the
Community Supervision department’s business, 3) the entries were made by someone
who had knowledge of the records, and 4) the entries were made at or near the time of
occurrence. From this testimony, the records were proven up to be “records of regularly
conducted activity” and, therefore, a recognized exception to the hearsay rule. Rule
803(6). By these records, the State offered proof of appellant’s failure to report per
condition (d); failure to remain in Lubbock, DeWitt, or Victoria Counties per condition (g);
failure to pay the supervision fees as ordered per condition (k1); failure to pay restitution
as ordered per condition (k2); failure to complete 15 hours of community service per
condition (n); failure to abide by the prescribed curfew per condition (s); and failure to
complete the theft class within 120 days of entry of the judgment per condition (u).
However, even if the trial court was in error about the admissibility of the
“chronos,” through the separate testimony of Foxell and the records of Dlugosch’s
company, the State proved the violations of condition (a), commission of a new offense.
Foxell testified that she and appellant took a trip to Port Aransas on March 19, 2011.
The records of Dlugosch’s company show that the credit card to which appellant had
previously had access, number 13, was used on three occasions in Port Aransas on
that day. Further, the testimony of Foxell was sufficient to show a violation of the
following terms and conditions: condition (g)’s failure to remain within Lubbock, DeWitt,
and Victoria Counties and condition (s)’s failure to abide by the prescribed curfew.
Remembering that proof of only one violation is sufficient to sustain the trial court’s
7 judgment to revoke community supervision, we overrule appellant’s issue. See id. at
439.
Judgment Entered
After finding the allegations against appellant true, the trial court made the
following pronouncement of sentence.
Your probation is revoked. Your punishment is assessed in each count. There are two counts of - - - that - - which you pled guilty to. The Court assesses your punishment in each count at two years in a state jail.
However, the written judgment carries no notation about the counts nor that appellant
was sentenced to two years on each count. The judgment does have a notation that
the sentences are to run concurrently. The record supports the trial court’s
pronouncement because there is a separate judgment placing appellant on community
supervision for each of the two counts contained in the indictment. Further, appellant
executed plea documents to enter pleas of guilty as to each of the counts. Finally, the
motion to revoke refers to the separate pleas as to each count.
When, as here, the oral pronouncement of sentence varies from the written
judgment, the oral pronouncement of sentence controls. Coffey v. State, 979 S.W.2d
326, 328 (Tex.Crim.App. 1998). Therefore, the trial court’s pronouncement that
appellant’s community supervision was revoked as to each count controls. As a Court
of Appeals, we are authorized to issue an opinion that modifies the trial court’s
judgment. See TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609
(TexCrim.App. 1992) (en banc). Therefore, we modify the judgment of the trial court to
8 reflect that appellant’s community supervision was revoked as to Counts I and II, for
which appellant had been placed on community supervision. Appellant is sentenced to
two years in an SJF on each count with all terms of confinement to run concurrently.
Conclusion
Having overruled appellant’s issue, we affirm the trial court’s judgment as
modified.
Mackey K. Hancock Justice
Do not publish.