Xavier Estrada v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 17, 2023
• Docket: 07-21-00298-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo No. 07-21-00298-CR

XAVIER ESTRADA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 140th District Court Lubbock County, Texas, Trial Court No. 2018,415,321 Honorable Douglas H. Freitag, Presiding

February 17, 2023 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

This is a revocation of community supervision case. In April 2019, Appellant,

Xavier Estrada, pleaded guilty to the offense of Burglary of a Habitation and was

sentenced to ten years of confinement probated for five years. The trial court’s Judgment

of Conviction required, among other things, that Appellant comply with certain conditions,

stated in relevant part as follows:

(d) Report to the Supervision Officer as directed. * * * Defendant shall report this day in person, and thereafter as directed by the Supervision Officer but at least once every month, in writing, on or before the 21st day of each month hereafter, and each of said days ordered to report is a separate condition of this community supervision; * * *

(m) [S]ubmit a non-dilute urine specimen, or any other specimen, requested to be tested for alcohol, narcotics or dangerous drugs whenever instructed by the Court or the supervision officer. * * *

Three months later, Appellant agreed to an order amending condition (p) of the terms of

his community supervision to include the following:

In addition to the condition of supervision currently in effect and as an alternative to imprisonment, it is therefore ordered that the defendant will be committed to the State Contracted Intermediate Sanction Facility pursuant to Article 42.12, Section 18 of the Texas Code of Criminal Procedure, the defendant shall serve a term of confinement and treatment in a State of Texas Contracted intermediate Sanction Facility for a period of not less than 45 days or more than 120 days.

In June 2021, the State filed its first amended motion to revoke, alleging Appellant

violated, among other terms, the aforementioned conditions of his community

supervision. After holding a hearing in October 2021, the trial court signed a judgment

revoking community supervision and assessing ten years of confinement.

Background

During the revocation hearing, Maria Mata, Appellant’s second supervising

probation officer with the Lubbock County Adult Probation Department, took the stand.

Mata supervised Appellant beginning June 2, 2021, until the hearing. Before then

(beginning in April 2019), Appellant had been supervised by another supervision officer.1

1 The State’s alleged violations arose while Appellant was under the first officer’s supervision.

2 Relying heavily on the “chronologicals” prepared by her predecessor,2 Mata testified

about Appellant’s various failures to comply with the terms of his community supervision.

Appellant’s counsel told the court that if Mata was “going to prove up the

[chronological] record as a business record, that’s fine, and I don’t have objections to

that.” (alteration added). However, counsel did lodge a hearsay objection to Mata reading

from the chronologicals without their being admitted into evidence.3 Mata testified from

her review of the chronologicals to the following:

• Appellant did not report to his supervision officer from August 2019 until June 2021;

• Appellant did not submit to a drug test in May 2019; and

• Appellant did not report to the State Contracted Intermediate Sanction Facility despite his agreement to do so.

Mata agreed with Appellant’s counsel that she had no knowledge of Appellant’s

compliance with the terms of community supervision other than what she was reading

from the entries “put into our system.” On redirect examination, Mata agreed to the

following:

• The chronologicals were made by a person who had personal knowledge of those entries at the time of their entry; and

• It is the practice of the Probation Office to enter entries into the chronologicals “whenever anything of note regarding someone on probation is made [sic].”

2A “chronological” is a document comprised of computer entries made by supervising officers of anything of note occurring regarding a particular supervisee on community supervision.

3 Appellant objected to Mata’s use of information in the chronological as hearsay, hearsay within

hearsay, the confrontation clause, the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article 1, Section 10 of the Texas Constitution. His objection was overruled by the trial court and a running objection was allowed.

3 The trial court determined Appellant violated conditions (d), (m), and (p) of his

conditions of community supervision and granted the State’s amended motion to revoke.

On appeal, Appellant asserts (1) the trial court erred in admitting hearsay evidence and

in violation of Appellant’s right to confrontation, among other violations;4 and (2) the trial

court abused its discretion because the evidence was insufficient.

Analysis

Because a revocation proceeding requires the State to satisfy its burden of proof

by a preponderance of the evidence, our review of the order revoking probation is limited

to whether the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763

(Tex. Crim. App. 2006); Duhon v. State, No. 07-07-00064-CR, 2007 Tex. App. LEXIS

7866, *2–3 (Tex. App.—Amarillo Oct. 2, 2007, no pet.). Evidence of a violation of a single

term or condition of community supervision is sufficient to support a trial court’s decision

to revoke. Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012); Moore v. State,

605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.]1980).

Similarly, we review the trial court’s evidentiary rulings for abused discretion. Ford

v. State, No. 13-10-00478-CR, 2011 Tex. App. LEXIS 2192, at *3 (Tex. App.—Corpus

Christi-Edinburg Mar. 24, 2011, no pet.). So long as the trial court’s ruling was within the

zone of reasonable disagreement and correct under any theory of law applicable to the

case, they must be upheld. Id.

4 Appellant did not segregate into separate grounds his complaints based on the United State’s

Constitution and the Texas Constitution and provide substantive analysis and authorities to support his state constitutional arguments. Thus, he has waived his arguments to the extent they are grounded on the Texas Constitution, and we need not address those arguments. See Lily v. State, 365 S.W.3d 321, 326 (Tex. Crim. App. 2012) (citing DeBlanc v. State, 799 S.W.2d 701, 706 (Tex. Crim. App. 1990)).

4 Objections to Admission of Evidence

In his second issue, Appellant primarily contends the trial court abused its

discretion by admitting inadmissible evidence under the hearsay rule and in violation of

his right to confrontation. Appellant specifically complains that Mata did not have any

personal knowledge regarding the entries and was not the “custodian” of the probation

office’s records, and the State never offered the chronologicals for admission into

evidence.5

Hearsay is an out-of-court statement offered for the truth of the matter asserted in

the statement; TEX. R. EVID. 801(d), and is generally inadmissible. TEX. R. EVID. 802.

However, a record of acts, events, conditions, opinions, or diagnoses is admissible in

spite of the hearsay rule if:

(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted business activity;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness * * *; and

(E) the opponent fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

TEX. R. EVID. 803(6) (ellipses added). The term “business” under this rule “includes every

kind of organized activity whether conducted for profit or not.” Id. Courts have held that

5 Elsewhere, Appellant adds there is no evidence “that the chronos was [a] record regularly kept for a matter like a failure to report by a supervisee.”

5 a chronological file compiled by a probation officer may be admissible as a business

record, even though the testifying witness does not have personal knowledge of the

entries in the file, so long as the person who made the entries did have personal

knowledge of the facts therein. Norman v. State, No. 13-10-00017-CR, 2011 Tex. App.

LEXIS 5391, at *5–6 (Tex. App.—Corpus Christi 2011, no pet.) (citing Simmons v. State,

564 S.W.2d 769, 770 (Tex. Crim. App. 1978)). The business records exception does not

require the State to admit the underlying document as a condition to the witness testifying

about its contents. See Canesco v. State, 199 S.W.3d 437, 439 (Tex. App.—Houston

[1st Dist.] 2006, pet. ref’d) (discussing business records exception for upholding

admission of testimony by probation officer about entries in probation file). See City of

Houston v. Ayala, 628 S.W.3d 615, 623 (Tex. App.—Houston [14th Dist.] 2021, no pet.)

(evidence deemed admissible where party relied on affidavit testimony by operations

supervisor who had personal knowledge of business records).

We examine Appellant’s challenges to the elements underlying the predicate for

the business records exception. Because of its foundational importance, we begin with

the fourth element, i.e., that Mata must be either a “custodian or another qualified

witness.” The rule’s use of the disjunctive word “or” undermines Appellant’s position that

the State was required to prove Mata to be a custodian of the chronologicals. See, e.g.,

Bahena v. State, 634 S.W.3d 923, 929 (Tex. Crim. App. 2021) (“A custodian of records

can be a qualified witness. But a qualified witness need not be a custodian of records.”);

Canseco, 199 S.W.3d 440 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (holding that

testifying witness for predicate under business records exception “need only have

knowledge of how the record was prepared.”). We find Mata met the requirements of a

6 qualified witness based on her personal knowledge about how the chronologicals were

prepared and stored. See Bahena, 634 S.W.3d at 928–29 (based on witness’s personal

knowledge about how inmate calls are recorded and stored, evidence sufficient to

establish police sergeant “as either custodian, another qualified witness, or both”). To

require the testifying witness to possess personal knowledge of the underlying facts would

render unnecessary the purpose of a business records exception. We hold that the State

satisfied element (D).

Second, we find that element (A) was satisfied when Mata affirmatively answered

the question of whether the chronologicals were made by a person who had personal

knowledge of those entries at the time of their entry.

Third, Appellant did not adequately brief any challenge to element (B), i.e., that the

record was kept in the course of a regularly conducted business activity. Accordingly, we

do not address it here. See Love v. State, No. AP-77,085, 2021 Tex. Crim. App. Unpub.

LEXIS 187, at *81 (Crim. App. Apr. 14, 2021).

Fourth, Mata affirmatively answered the question of whether it is the practice of the

Lubbock County Adult Probation Department to enter entries into the chronologicals

“whenever anything of note regarding someone on probation is made [sic].” Although the

question by the State’s counsel was no model of clarity, we find that Mata’s answer

satisfied element (C) in light of her other testimony about the responsibilities of the

Probation Department. Mata testified that one of the responsibilities of Mata and her

peers was to supervise offenders who were placed on community supervision, which

included recording her contacts with Appellant and other offenders “right then and there”

7 in the chronologicals document. When asked by Appellant’s counsel, Mata testified that

all of the matters for which the State sought to revoke Appellant’s supervision would be

recorded in the chronologicals.

Fifth, regarding element (E) – whether “the source of information or the method or

circumstances of preparation indicate a lack of trustworthiness” – Appellant generally

complains (as a part of a discussion about hearsay within hearsay)6 that statements made

by others “which are not part of the probation office” may not satisfy the reliability

requirement and need to independently qualify under their own hearsay exception.7

While this may be true in other circumstances, the violations for which Appellant’s

community supervision was revoked include observations made from within the Lubbock

County Adult Probation Department. Moreover, these violations were “unambiguous

factual matters and [] not issues susceptible to any degree of subjectiveness by a

probation officer.” See Greer v. State, 999 S.W.2d 484, 489 (Tex. App.—Houston [14th

Dist.] 1999, pet ref’d) (similar examples of unambiguous factual matters). We reject

Appellant’s argument that the State failed to meet the elements of the business records

exception and find that the court did not abuse its discretion in admitting Mata’s testimony.

Appellant also argues that permitting Mata’s testimony based on the

chronologicals prepared by others violated his right to confrontation. However, this Court

has held that a Crawford-type right to confrontation “does not apply in the revocation of

6 Appellant fails to explain how discussion of the three violations successfully advanced by the

State contain “hearsay within hearsay,” or how they deprived him of his rights to due process. Lucio v. State, 351 S.W.3d 878, 896–97 (Tex. Crim. App. 2011). 7Appellant does not direct us to any portion of the record in which he argued that Mata’s testimony or any particular facts in the chronological are inaccurate or lack trustworthiness.

8 community supervision arena because a revocation proceeding is not considered a stage

of a criminal prosecution.” Bluntzer v. State, No. 07-11-00389-CR, 2012 Tex. App. LEXIS

4455, *6–7 (Tex. App.—Amarillo 2012, pet. ref’d) (citing Smart v. State, 153 S.W.3d 118,

121 (Tex. App.—Beaumont 2004, pet. ref’d)). Accordingly, we find the trial court did not

abuse its discretion by permitting Mata to testify as to the contents of the chronological.

Sufficiency of the Evidence

Appellant’s first issue affirmatively states that “[t]here is no admissible evidence of

any violation.” We disagree. At the hearing, Mata testified Appellant violated three

conditions of his community supervision, by failing to: (1) report to his probation officer as

required, (2) submit to at least one required drug test, and (3) report for substance abuse

treatment per an agreed order of the court. As noted above, proof of a violation of a single

term or condition of community supervision is sufficient to support a trial court’s decision

to revoke. Garcia, 387 S.W.3d at 26; Moore, 605 S.W.2d at 926.

Instead, the vast majority of Appellant’s complaint about the sufficiency of the

evidence proffers excuses for why Appellant may have failed to comply with the terms of

his community supervision. No evidence of the same was presented during the hearing.

We point out that under the proper standard of review, we are required to view the

evidence in a light most favorable to the trial court’s ruling. Valderas v. State, Nos. 07-

21-00111-CR, 07-21-00112-CR, 2022 Tex. App. LEXIS 5907, at *7 (Tex. App.—Amarillo

Aug. 15, 2022, no pet. h.). Accordingly, even if there is competing evidence or competing

inferences to be drawn from the evidence, we are required to presume the trial court

9 resolved any such conflict in favor of its findings. See Temple v. State, 390 S.W.3d 341,

360 (Tex. Crim. App. 2013).

For example, Appellant complains that the record does not contain a physical

address or phone number of where he was to report to his supervising probation officer.

He then posits that he “may not have been able to report because of incarceration, poor

health, lack of transportation, lack of access to a telephone, or other reasons beyond his

control.” However, in light of the evidence and the proper standard of review, we reject

Appellant’s theory that this constitutes insufficient evidence. When he was paroled to the

Director of the Lubbock Community Supervision office, Appellant was directed to report

to a supervising officer. The record reflects Appellant did initially report to his supervising

officer for approximately four months, April to August 2019. This evidences the fact that

the information imparted was not unreasonably vague and that Appellant knew when and

how to report. Drew v. State, 942 S.W.2d 98, 100 (Tex. App.—Amarillo 1997, no pet.).

See Truitt v. State, Nos. 01-07-01062-CR, No. 01-07-01085-R, 01-07-01086-CR, 2009

Tex. App. LEXIS 5249, at *23–24 (Tex. App.—Houston [1st Dist.] July 9, 2009, pet. ref’d)

(occasional compliance with reporting requirements shows appellant not confused or

uncertain).

Similarly, Appellant also suggests he did not have the financial ability to pay for

transportation or telephone services, which he contends are necessary for reporting to

his supervising officer and for submitting to drug testing. Appellant overlooks the

testimony that he was employed during part of this time; the trial court could reasonably

infer that the lack of resources was not the reason for Appellant’s lack of compliance.

Moreover, Appellant fails to support his defense with any evidence or appropriate citation

10 to legal authority and to the record. TEX. R. APP. 38.1(i).8 He therefore presents nothing

for review. Lucio v. State, 351 S.W.3d 878, 896–97 (Tex. Crim. App. 2011) (citing Busby

v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008)).

We find that the trial court’s order revoking community supervision is supported by

sufficient, admissible evidence and that the trial court did not abuse its discretion. Rickels,

202 S.W.3d at 763–64. We overrule Appellant’s two issues and affirm the judgment of

the trial court.

Lawrence M. Doss Justice

Do not publish.

8 In support, Appellant cites article 26.04(P) of the Texas Code of Criminal Procedure. Article

26.04(P) provides that “[a] defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant’s financial circumstances occurs.” (Emphasis added). The record reflects Appellant was deemed indigent, counsel was appointed to represent him at trial, and on appeal. This article has no application to periods of community supervision preceding a revocation case.