Jimenez v. State

• Decision Date: 04 September 2014
• Docket Number: No. 01–13–00955–CR.,01–13–00955–CR.
• Citation: 446 S.W.3d 544
• Parties: Julio Garcia JIMENEZ, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

446 S.W.3d 544

Julio Garcia JIMENEZ, Appellant

v.The STATE of Texas, Appellee.

No. 01–13–00955–CR.

Court of Appeals of Texas, Houston (1st Dist.).

Sept. 4, 2014.

Joseph Kyle Verret, The Law Office of Kyle Verret, PLLC, Pearland, TX, for Appellant.

Jackroady, Criminal District Attorney, Allison Lindblade, Assistant Criminal District, Galveston, TX, for Appellee.

Panel consists of Justices JENNINGS, BLAND, and MASSENGALE.

OPINION

JANE BLAND, Justice.

After finding that Julio Garcia Jimenez violated the terms of his deferred-adjudication community supervision by illegally re-entering the United States, the trial court adjudicated him guilty of aggravated sexual assault of a child and assessed his punishment at eight years' imprisonment. The trial court also assessed $643.50 in attorney's fees against Jimenez. On appeal, Jimenez contends that the trial court erred in (1) admitting a custodial statement that he had made to his community supervision officer; and (2) failing to order a presentence investigation. Jimenez further contends that (3) insufficient evidence supports the trial court's finding that Jimenez illegally re-entered the United States; and (4) the judgment should be modified to delete the assessment of attorney's fees. The State agrees with Jimenez on issue (4) but disagrees with Jimenez on issues (1), (2), and (3). We modify the trial court's judgment to delete the award for attorney's fees and affirm the judgment as modified.

Background

In November 2010, Jimenez pleaded guilty to aggravated sexual assault of a child stemming from a 2008 incident involving a thirteen-year-old girl. A community supervision officer conducted a presentencing investigation. The trial court deferred adjudication and placed Jimenez on ten years' community supervision. The following month, Jimenez was deported to Mexico.

In January 2011, Jimenez illegally re-entered the United States. In September 2011, a federal district court convicted Jimenez of illegal re-entry, assessed his punishment at thirty-three months' imprisonment, and recommended that he be imprisoned in or near Missouri.

In June 2011, the State moved to adjudicate guilt and to revoke Jimenez's community supervision. The State alleged that Jimenez had violated his community supervision agreement by illegally re-entering the United States. In May 2013, the Galveston County Sheriff's Office transferred Jimenez from a federal prison in Greenville, Illinois to a state prison in Galveston County, Texas.

In June 2013, Karen Saunders, Jimenez's community supervision officer, interviewed Jimenez pursuant to her obligation as his community supervision officer to meet with him every three months. Saunders did not warn Jimenez pursuant to article 38.22 of the Code of Criminal Procedure and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See Tex.Code Crim. Proc. Ann. art. 38.22, §§ 2(a), 3(a)(2) (West 2005). In response to a series of questions listed in a one-page “Probationer's Monthly Report,” Jimenez wrote: “I was deported. I was caught by the river.” Three months later, Saunders interviewed Jimenez again, and Jimenez completed the same form.

Course of proceedings

During the revocation hearing's guilt-innocence phase, the trial court admitted Jimenez's statement to Saunders over Jimenez's objection. The trial court found the State's allegation that Jimenez illegally re-entered the United States to be true and granted the State's motion to adjudicate Jimenez guilty of aggravated sexual assault of a child.

Before the punishment hearing, Jimenez requested a presentence investigation. The trial court implicitly denied Jimenez's request. The trial court assessed his punishment at eight years' imprisonment.

Discussion

I. Admission of evidence

Jimenez contends that article 38.22 of the Code of Criminal Procedure and the Fifth Amendment of the U.S. Constitution bar the admission of his written statement to his community supervision officer, because he gave it during a custodial interrogation without having received the requisite warnings. Jimenez also contends that his Sixth Amendment right to counsel bars the admission of his statement, because the interview with the community supervision officer was a “critical stage” of a criminal proceeding.

Assuming, without deciding, that the admission of this written statement violated article 38.22, the Fifth Amendment, and the Sixth Amendment, we conclude that the trial court's failure to suppress the statement was harmless error. Reversal is required unless we can determine, beyond a reasonable doubt, that the failure to suppress Jimenez's statement did not contribute to his adjudication of guilt. See Jones v. State, 119 S.W.3d 766, 777 (Tex.Crim.App.2003) ; Tex.R.App. P. 44.2(a). We must “judge the magnitude of the error in light of the evidence as a whole to determine the degree of prejudice to the defendant resulting from that error.” Jones, 119 S.W.3d at 777 (quoting United States v. Polanco, 93 F.3d 555, 562–63 (9th Cir.1996) ) (internal quotation omitted). If there is a reasonable likelihood that the error materially affected the judge's deliberations, the error was not harmless. See id. We must “calculate, as nearly as possible, the probable impact of the error ... in light of the other evidence.” McCarthy v. State, 65 S.W.3d 47, 55 (Tex.Crim.App.2001), quoted in Jones, 119 S.W.3d at 777. If the State proffers abundant admissible evidence of a defendant's guilt, then we may find, beyond a reasonable doubt, that the improperly admitted statement did not contribute to a defendant's adjudication of guilt. See Akins v. State, 202 S.W.3d 879, 892 (Tex.App.-Fort Worth 2006, pet. ref'd) (holding that overwhelming evidence of element of crime rendered Miranda error harmless when improperly admitted statement went to same element); Jordy v. State, 969 S.W.2d 528, 533 (Tex.App.-Fort Worth 1998, no pet.) (same); In re J.T.M., 441 S.W.3d 455, 464–65 (Tex.App.-El Paso 2014, no pet.) (applying similar rule in plea bargaining context).

In this case, Jimenez challenges the admission of his response to a series of questions listed in a one-page “Probationer's Monthly Report.” There, he wrote: “I was deported. I was caught by the river.” But, at the revocation hearing, the State proffered, without objection, a federal district court judgment of conviction against Jimenez for illegally re-entering the country. Saunders also testified that Jimenez illegally re-entered the United States on January 6, 2011, was convicted of that crime in federal court, and was sentenced to thirty-three months' imprisonment. Jimenez's stepfather similarly testified that Jimenez was arrested for illegal re-entry “in a town in the border,” and Jimenez's mother testified that Jimenez was arrested by the federal government “close to the river.” Given the abundant evidence of Jimenez's illegal re-entry, we find, beyond a reasonable doubt, that any error in failing to suppress Jimenez's statement did not contribute to the adjudication of his guilt; accordingly, it was harmless. See Jones, 119 S.W.3d at 777 ; Akins, 202 S.W.3d at 892 ; Jordy, 969 S.W.2d at 533 ; J.T.M., 441 S.W.3d at 464–65 ; Tex.R.App. P. 44.2(a).

II. Sufficiency of the evidence

Jimenez further contends that legally insufficient evidence supports the trial court's finding that he violated a condition of his community supervision agreement by illegally re-entering the United States.

Standard of review

To revoke community supervision, the State must prove that a defendant violated a condition of the community supervision agreement by a preponderance of the evidence.

Hacker v. State, 389 S.W.3d 860, 864–65 (Tex.Crim.App.2013). In this context, a preponderance of the evidence means “that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his [community supervision agreement].” Rickels v. State, 202 S.W.3d 759, 764 (Tex.Crim.App.2006), quoted in Hacker, 389 S.W.3d at 865. Evidence is legally sufficient when it is “more than a scintilla” but not when “the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence.” Hacker, 389 S.W.3d at 865 (quoting Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex.2010) ) (internal quotation omitted).

Analysis

To establish that a defendant has been convicted of a prior offense, the State must prove that (1) a prior conviction exists; and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App.2007). The State may prove both of these elements in multiple ways, including (1) a defendant's admission or stipulation; (2) testimony by a person who was present when the person was convicted of the specified crime and who can identify the defendant as that person; or (3) documentary proof, such as a judgment, that contains sufficient information to establish the existence of a prior conviction and the defendant's identity as the person convicted. Id. at 921–22 ; see also Littles v. State, 726 S.W.2d 26, 28 (Tex.Crim.App.1984).

The State proffered, without objection, a federal district court judgment against “Julio Cesar Jimenez–Garcia” for illegally re-entering the country. The State showed that “Julio Jimenez–Garcia” is one of Jimenez's aliases. Jimenez's mother testified that Jimenez's full name is “Julio Cesear Jimenez Garcia.” Saunders testified that Jimenez illegally re-entered the United States on January 6, 2011, was convicted of that crime in federal court, and was sentenced to thirty-three months' imprisonment. Jimenez's mother also testified that Jimenez was arrested by the federal government “close to the river.” Jimenez's stepfather testified that Jimenez was arrested for illegal re-entry “in a town in the border.” In the judgment, the federal district court recommended that the defendant be imprisoned in or near Missouri. The Galveston County Sheriff's Office arrested Jimenez in a federal...