AFFIRl; Opinion issued February 5, 2013.
In The Qnitrt ni Apiia1 FiftI! t1itrirt ni at aI1a No. 05-Il-00157CR
AARON LEE MALONE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F08-39160-1
OPINION Before Justices Bridges, Lang, and Richter’ Opinion By Justice Richter
Appellant was charged with aggravated sexual assault and agreed to plead guilty to
the State’s offer of seven years deferred adjudication for a reduced charge of aggravated
assault. Two months later, the State filed a motion to adjudicate guilt alleging that appellant
violated the conditions of his community supervision. Following a hearing, the trial court
found that appellant violated the conditions of community supervision, adjudicated guilt,
and sentenced appellant to sixty years’ imprisonment. In two issues on appeal, appellant
contends the trial court abused its discretion in adjudicating his guilt and revoking his
The Honorable Martin E. Richter, Retired Justice. silting by assignment. community supervision and erred in admitting recordings ofjail telephone calls. Pinding no
reversible error, we affirm the trial court’s judgment.
The Adjudication of Guilt
The State’s motion to adjudicate guilt alleged appellant violated the conditions of his
community supervision by: (I) failing to follow the laws and regulations defining his duty
to register as a sex offender; (2) not complying with scx offender registration; and (3) failing
to notify his probation officer within twenty-four hours of Ms change of address. Appellant
contends the State failed to prove any of these three violations by a preponderance of the
evidence. We disagree.
A trial court’s order revoking probation is reviewed under an abuse of discretion
standard. See Rickels v. State, 202 S.W.3d 759,763 (Tex. Crim. App. 2006). The trial court
abuses its discretion when it acts “without reference to any guiding rules and principles, or
acts in a manner that is arbitrary or capricious.” Montgomery i Slate, 810 S.W.2d 372,392
(Tex. Crim. App. 1990). The State must prove a violation of the conditions of community
supervision by a preponderance of the evidence. Rickels, 202 S.W.3d at 763. In conducting
our review, we view the evidence in the light most favorable to the trial court’s ruling. See
Garrett v. State, 619 S.W.2d 172, 174 (rex. Crim. App. [Panel Op.] 1981).
In a bearing on a motion to revoke probation, the trial court is the sole trier of fact,
and is also the judge of the credibility of the witnesses and the weight to be given their
testimony. Taylor v. State, 604 S.W.2d 175, 179 (rex. Crim. App. 1980). Where more than
one violation is alleged, proof of any one of the violations is sufficient to sustain the trial
—2— court’s order. Smith s’. State, 286 S.W.3d 333. 342 (Tex. Crim. App. 2009).
The general registration requirement is set forth article 62.051 of the Texas Code of
Criminal Procedure and provides that a person with a reportable conviction or who is
required to register as a condition of community supervision must register with the local law
enforcement authority in any municipality where the person resides or intends to reside for
more than seven days. flx. CODE. CRIM. PROC. art. 62.05 1(a) (West 2012 Supp.). If the
person does not reside or intend to reside in a municipality, then the person must register in
the county where the person resides or intends to reside for more than seven days. Id. The
person shall satisfy the requirements of this subsection not later than the later of: (1) the
seventh day after the person’s arrival in the municipality or county or (2) the first date the
local law enforcement authority of the municipality or county by policy allows the person
to register. Id.
At the hearing on the State’s motion to adjudicate guilt, a pre-sentence application
dated May 17 was admitted into evidence in which appellant had handwritten “600
McArthur, Coppell, TX” (the “Coppell address”) in the field entitled “Current address.”
Officer John Craddock, appellant’s probation officer, testified that appellant personally
reported this same address to the court supervision officer, Officer Harold Martin, on May
26 immediately following his release from jail. Officer Craddock informed the trial court
that appellant again reported the Coppell address to him during a visit on June 4. Within a
document entitled “Client’s Monthly Report” dated June, 4, 2010, appellant handwrote the
Coppell address in the spaces designated for his address and circled “no” in response to a
-3- (fuestl(m asking if he had changed his residence. Texas Department ol’ Public Safety ( “DPS’
records admitted into evidence without objection, reflected that appellant did not register in
Coppell. Thus, despite assuming residence in Coppell, the record reflects that as of June 8.
2010. appellant had not registered in Coppell.
But appellant insists the evidence is insufficient because the DPS records are not
credible, According to appellant, the DPS records are missing a notation that he was in
ctistody on May 24, and “an entry showing a ire—reletse noti lication lorm the Court and the
Dallas County Sheriff’s Department.” Appellant fails to explain, however, how the absence
of these records might relate to or impact the integrity of the DPS records that were admitted
into evidence. In the absence ot any correlation, we cannot conclude the evidence that was
admitted is insullicient to support appellant’s conviction.
Appellant also argues that he attempted to register but was not allowed to do so, This
argument is premised on article 62.051(a) of the code of criminal procedure which provides
that one may comply with the registry requirements within either a seven-day window or the
first date the local law enforcement authority of the municipality or county allows the person
to register. See TEx. CODE CRIM. PROC. ANN. art. 62.051(a). In support of this argument,
appellant relies on a note to Detective Barton he left with the Coppell Police Department.
This note, which is dated June 2, states:
I was here to talk to you about the registration. I told you if you didn’t call me back yesterday, I would be up here to see you. You have my address 600 McArthur Blvd. Apt. 1822 Coppell, TX 75019. Call me at your earliest convenience.
-4- Although the note establishes appellant contacted Detective Barton. there is nothing
in the record that demonstrates appellant attempted 10 register and was refused. There is also
no indication that Detective Barton was unable or refused to meet with appellant upon
receipt of the note. Moreover, the note is further evidence that appellant was, in fact.
residing in Coppell. Based on the evidence in the record, the trial court could reasonably
have rejected appellant’s assertion that he was not allowed to register. Viewing all the
evidence in a liiiht most favorable to the trial courts ruling, we conclude the State met its
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AFFIRl; Opinion issued February 5, 2013.
In The Qnitrt ni Apiia1 FiftI! t1itrirt ni at aI1a No. 05-Il-00157CR
AARON LEE MALONE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F08-39160-1
OPINION Before Justices Bridges, Lang, and Richter’ Opinion By Justice Richter
Appellant was charged with aggravated sexual assault and agreed to plead guilty to
the State’s offer of seven years deferred adjudication for a reduced charge of aggravated
assault. Two months later, the State filed a motion to adjudicate guilt alleging that appellant
violated the conditions of his community supervision. Following a hearing, the trial court
found that appellant violated the conditions of community supervision, adjudicated guilt,
and sentenced appellant to sixty years’ imprisonment. In two issues on appeal, appellant
contends the trial court abused its discretion in adjudicating his guilt and revoking his
The Honorable Martin E. Richter, Retired Justice. silting by assignment. community supervision and erred in admitting recordings ofjail telephone calls. Pinding no
reversible error, we affirm the trial court’s judgment.
The Adjudication of Guilt
The State’s motion to adjudicate guilt alleged appellant violated the conditions of his
community supervision by: (I) failing to follow the laws and regulations defining his duty
to register as a sex offender; (2) not complying with scx offender registration; and (3) failing
to notify his probation officer within twenty-four hours of Ms change of address. Appellant
contends the State failed to prove any of these three violations by a preponderance of the
evidence. We disagree.
A trial court’s order revoking probation is reviewed under an abuse of discretion
standard. See Rickels v. State, 202 S.W.3d 759,763 (Tex. Crim. App. 2006). The trial court
abuses its discretion when it acts “without reference to any guiding rules and principles, or
acts in a manner that is arbitrary or capricious.” Montgomery i Slate, 810 S.W.2d 372,392
(Tex. Crim. App. 1990). The State must prove a violation of the conditions of community
supervision by a preponderance of the evidence. Rickels, 202 S.W.3d at 763. In conducting
our review, we view the evidence in the light most favorable to the trial court’s ruling. See
Garrett v. State, 619 S.W.2d 172, 174 (rex. Crim. App. [Panel Op.] 1981).
In a bearing on a motion to revoke probation, the trial court is the sole trier of fact,
and is also the judge of the credibility of the witnesses and the weight to be given their
testimony. Taylor v. State, 604 S.W.2d 175, 179 (rex. Crim. App. 1980). Where more than
one violation is alleged, proof of any one of the violations is sufficient to sustain the trial
—2— court’s order. Smith s’. State, 286 S.W.3d 333. 342 (Tex. Crim. App. 2009).
The general registration requirement is set forth article 62.051 of the Texas Code of
Criminal Procedure and provides that a person with a reportable conviction or who is
required to register as a condition of community supervision must register with the local law
enforcement authority in any municipality where the person resides or intends to reside for
more than seven days. flx. CODE. CRIM. PROC. art. 62.05 1(a) (West 2012 Supp.). If the
person does not reside or intend to reside in a municipality, then the person must register in
the county where the person resides or intends to reside for more than seven days. Id. The
person shall satisfy the requirements of this subsection not later than the later of: (1) the
seventh day after the person’s arrival in the municipality or county or (2) the first date the
local law enforcement authority of the municipality or county by policy allows the person
to register. Id.
At the hearing on the State’s motion to adjudicate guilt, a pre-sentence application
dated May 17 was admitted into evidence in which appellant had handwritten “600
McArthur, Coppell, TX” (the “Coppell address”) in the field entitled “Current address.”
Officer John Craddock, appellant’s probation officer, testified that appellant personally
reported this same address to the court supervision officer, Officer Harold Martin, on May
26 immediately following his release from jail. Officer Craddock informed the trial court
that appellant again reported the Coppell address to him during a visit on June 4. Within a
document entitled “Client’s Monthly Report” dated June, 4, 2010, appellant handwrote the
Coppell address in the spaces designated for his address and circled “no” in response to a
-3- (fuestl(m asking if he had changed his residence. Texas Department ol’ Public Safety ( “DPS’
records admitted into evidence without objection, reflected that appellant did not register in
Coppell. Thus, despite assuming residence in Coppell, the record reflects that as of June 8.
2010. appellant had not registered in Coppell.
But appellant insists the evidence is insufficient because the DPS records are not
credible, According to appellant, the DPS records are missing a notation that he was in
ctistody on May 24, and “an entry showing a ire—reletse noti lication lorm the Court and the
Dallas County Sheriff’s Department.” Appellant fails to explain, however, how the absence
of these records might relate to or impact the integrity of the DPS records that were admitted
into evidence. In the absence ot any correlation, we cannot conclude the evidence that was
admitted is insullicient to support appellant’s conviction.
Appellant also argues that he attempted to register but was not allowed to do so, This
argument is premised on article 62.051(a) of the code of criminal procedure which provides
that one may comply with the registry requirements within either a seven-day window or the
first date the local law enforcement authority of the municipality or county allows the person
to register. See TEx. CODE CRIM. PROC. ANN. art. 62.051(a). In support of this argument,
appellant relies on a note to Detective Barton he left with the Coppell Police Department.
This note, which is dated June 2, states:
I was here to talk to you about the registration. I told you if you didn’t call me back yesterday, I would be up here to see you. You have my address 600 McArthur Blvd. Apt. 1822 Coppell, TX 75019. Call me at your earliest convenience.
-4- Although the note establishes appellant contacted Detective Barton. there is nothing
in the record that demonstrates appellant attempted 10 register and was refused. There is also
no indication that Detective Barton was unable or refused to meet with appellant upon
receipt of the note. Moreover, the note is further evidence that appellant was, in fact.
residing in Coppell. Based on the evidence in the record, the trial court could reasonably
have rejected appellant’s assertion that he was not allowed to register. Viewing all the
evidence in a liiiht most favorable to the trial courts ruling, we conclude the State met its
burden to prove that appellant failed to satisfy his duty to register as a sex offender.
Therefore, the trial court did not abuse its discretion in revoking appellant’s community
supervision and adjudicating appellant’s guilt. Appellant’s first issue is overruled.
In his second issue, appellant argues the trial court erred in admitting two audio
recordings of jail telephone calls into evidence because they were not properly authenticated.
According to appellant, the State did not establish that the male voice in the recordings
belonged to him. We disagree.
We review the trial court’s decision to exclude or admit evidence under an abuse of
discretion standard. McDonald i’. State, 179 S.W.3d 571 576 (Tex. Crirn. App. 2005). “The ,
trial judge does not abuse his or her discretion in admitting evidence where he or she
reasonably believes that a reasonable juror could find that the evidence has been
authenticated or identified.’ Druery v. State, 225 S.W.3d 491,502 (Tex. Crim. App. 2007).
“The requirement of authentication or identification as a condition precedent to admissibility
is satisfied by evidence sufficient to support a finding that the matter in question is what its
—5— proponent claims.” IEX. R. EvID. 901(a); .vee a/co Angleton 1’. Stale. 971 S.W.2d 65. 67
(Tex. Crim A.pp. 1.998).
Exhibits 14 and 15, the exhibits about which appellant complains, are recordings ol
telephone conversations between appellant and Lorraine Robinson, the mother of appellant’s
son Zachary. These telephone conversations occurred while appellant was incarcerated, The
recordings were introduced into evidence through Scott Seacat, the inmate phone technician
for the Dallas County jail. The exhibits list the ‘inmate ID” as ‘2233286” and the “Inmate
Name” as “Malone, Aaron Lee.” Seacat confirmed that Exhibits 14 and 15 are recordings
of calls he downloaded and that the calls are calls made by an inmate named “Aaron
Malone.”
During a voir dire examination of Seacat, appellant established that Seacat could not
identify the voices on the recordings. Seacat also admitted that there are occasions when
inmates steal the numbers of other inmates to make calls. Upon conclusion of the voir dire
examination, the trial court overruled appellant’s objection that the recordings had not been
properly authenticated.
In challenging the admissibility of the evidence, appellant ignores the internal
characteristics of the calls. In each of the recordings, the parties discuss an individual named
“Zachary.” In Exhibit i 4, the male caller states that he registered on June 21, and the record
reflects that appellant registered as a sex offender with the Irving Police Department on June
21. In Exhibit 15, the male caller identifies himself as “Aaron.” Therefore, considering both
the external characteristics of the evidence as described by Seacat and the internal
—6— ch.iractenstics ol the evidence described ahove, we cmnot conclude the trial court erred jn
admitting the recordings into evidence, See Thx. R. EVID, 9O1(h)4) (stating appearance,
contents. suhstance, internal patterns or other distinctive characteristics considered in
authentication). Appellant’s second issue is overruled.
Having resolved all of appellant’s issues against him, we aflrm the trial courts
judgment.
4NR1cH
1)o Not Publish Tix. R. Aip. P.47
I 10157F.U05
—7— 1tiitrt øf iah’ 2fiftI! Thtntt Lit !Iixiu at 1a1kt
JUDGMENT AARON LEE MALONE. Appellant Appeal from the Criminal 1)is trict Court No. 2 of Dallas County, Texas. (Tr.Ct.No. F0— No. 051 l00l57CR V. 39l60-I). Opinion delivered by Justice Richter, THE STATE OF TEXAS, Appellee Justices Bridges and Lang participating.
Based on the Court’s opinion of this date. the judgment of the trial court is AFFIRMEI).
Judgment entered February 5, 2013.
M