Morrison v. State
| Decision Date | 30 May 2013 |
| Docket Number | No. 11-11-00191-CR,11-11-00191-CR |
| Parties | JARED MORRISON, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Jared Morrison appeals the trial court's decision to revoke community supervision and proceed to adjudicate guilt for the offense of sexual assault of a child. See TEX. PENAL CODE ANN. § 22.011 (West 2011). Upon adjudication, the trial court assessed Appellant's punishment at confinement for sixteen years, to runconsecutively to his federal sentence. In five issues, Appellant challenges the trial court's revocation order, an evidentiary ruling, the decision to stack his sentences, the assessed punishment, and conflicts between the trial court's oral pronouncement and its written judgment. We modify and affirm.
In a signed judicial confession, Appellant admitted that he "intentionally and knowingly cause[d] the penetration of the female sexual organ of [M.M.]" by Appellant's sexual organ and that M.M. was "younger than 17 years of age." Pursuant to a plea bargain, the trial court deferred adjudicating Appellant's guilt and placed him on community supervision for nine years. Less than a year later, in March 2005, the State moved to proceed to adjudicate his guilt. Appellant entered into yet another plea agreement with the State where he agreed, among other things, to enter a plea of true to the allegations, to extend his community supervision for an additional two years, to serve ninety days in jail as an additional condition of community supervision, and to enroll in the Treatment Alternative Incarceration Program (TAIP) until he successfully completed the program and was discharged by a TAIP counselor.
In April 2010, the State once again moved to proceed to revoke Appellant's community supervision and to adjudicate his guilt. In that motion, the State alleged that Appellant violated five conditions of community supervision. In March 2011, the State amended its motion to add two additional violations. The State alleged that Appellant (1) failed to pay fees, (2) failed to report a change of address, (3) possessed and used marihuana, (4) failed to pay for drug and alcohol testing, (5) failed to verify registration as a sex offender, (6) was convicted in federal court of failing to register as a sex offender, and (7) failed to report in person. The State abandoned allegations 3, 4, and 6 at the hearing, and the trial court found the remaining four allegations to be true. The court revokedAppellant's community supervision, adjudicated him guilty of the offense of sexual assault of a child, assessed punishment at confinement for sixteen years, and ordered that the sentence run consecutively to Appellant's sentence on federal charges.
Appellant challenges the legal and factual sufficiency of the evidence supporting the violations alleged by the State. When a defendant violates a condition of community supervision that was imposed under an order of deferred adjudication, the defendant is entitled to a hearing before the trial court determines whether to proceed to adjudicate guilt on the original charge. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West Supp. 2012). We review a trial court's decision to proceed to adjudicate guilt in the same manner that we review the decision to revoke community supervision after a finding of guilt and suspended sentence. Id.; Connolly v. State, 983 S.W.2d 738, 745 n.11 (Tex. Crim. App. 1999).
We review a trial court's order in which the trial court revokes community supervision for an abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The trial judge is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). We review the evidence in the light most favorable to the trial court's ruling. Id. The State has the burden to prove a violation of the conditions of community supervision by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Antwine v. State, 268 S.W.3d 634, 636 (Tex. App.—Eastland 2008, pet. ref'd). Proof by a preponderance of the evidence of a single alleged violation of a condition of community supervision sufficiently supports a revocation order. CRIM. PROC.art. 42.12, § 21(b); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). If the State fails to meet the burden of proof, the trial court's decision to revoke community supervision is an abuse of discretion. Cardona, 665 S.W.2d at 493-94. Our review is limited to an assessment of legal sufficiency because reviewing "for factually sufficient evidence is inappropriate given the trial court's wide discretion and the unique nature of community supervision revocation proceedings." Antwine, 268 S.W.3d at 637.
The evidence established that one condition of Appellant's community supervision was that he report weekly to the Midland County Community Supervision and Corrections Department. The State offered the testimony of Ramona Martin, who supervises probationers in the Midland Judicial District Community Supervision and Corrections Department. Martin testified that she supervised Appellant and that he "failed to report in person on . . . May 6, 2010, May 13, 2010, and May 20, 2010." Reviewing the evidence in the light most favorable to the trial court's ruling, we conclude that the evidence is sufficient to show by a preponderance of the evidence that Appellant violated a condition of community supervision when he failed to report in person on the 6th, 13th, and 20th of May 2010. Because proof of one violation is sufficient to uphold the trial court's ruling, we need not discuss the others. Appellant's fifth issue is overruled.
In his fourth issue, Appellant argues that the trial court abused its discretion when it overruled his hearsay objection to the admission of information concerning Appellant from the Midland Police Department's office for sex offender registration. Appellant contends that the State "failed to prove that it was the regular practice of the City of Midland to make the records." The State contends that this error has not been preserved for our review because Appellant "did not timely object on this ground of failure to lay the proper predicate."
We review a trial court's evidentiary ruling for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1991). "To preserve a complaint for appellant review, the record must show that a specific and timely complaint was made to the trial judge and that the trial judge ruled on the complaint." Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim. App. 2009) (citing TEX. R. APP. P. 33.1(a)). The party must "let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it." Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). When this procedure is followed, the trial court and the State have the opportunity to correct the error. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). To determine "whether the complaint on appeal comports with the complaint made at trial," we must "consider the context in which the complaint was made and the parties' shared understanding at that time." Id.
Properly authenticated records of regularly conducted business activities are an exception to the hearsay rule. TEX. R. EVID. 803(6). The proponent of the business record must show that the records were (1) made in the regular course of business, (2) kept in the regular course of business, (3) made at or near the time of the activity recorded therein, and (4) made by someone with personal knowledge of the activity. See id. The offering party may make this showing through the testimony of the custodian of records or another qualified witness. Id.
At trial, the State offered the entire file in which it had documented Appellant's activities related to sex offender registration; Detective Daniel Espinosa was the authenticating witness. Detective Espinosa testified that his "present assignment is over the sex offender program in the city of Midland" and that he is the "custodian of records for the Midland Police Department for sexoffenders who must register." When the State offered the file into evidence, Appellant objected as follows:
The trial court immediately overruled the objection without explanation.
The rule that provides for the admission of business records as an exception to the hearsay rule requires that the creator of the events have personal knowledge of the events recorded. Further, the authenticating witness must have knowledge of how the records are prepared, although he is not required to have personal knowledge of the contents of the record. Campos v. State, 317 S.W.3d 768, 777-78 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) (); cf. Butler v. State, 872 S.W.2d 227, 237 (Tex. Crim. App. 1994) (...
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