Torres v. State

• Decision Date: 22 December 2020
• Docket Number: NO. 01-18-01074-CR,01-18-01074-CR
• Citation: 617 S.W.3d 95
• Parties: Andres TORRES, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

617 S.W.3d 95

Andres TORRES, Appellant

v.The STATE of Texas, Appellee

NO. 01-18-01074-CR

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

Opinion issued December 22, 2020

Richard Hightower, Justice

Appellant, Andres Torres, was indicted for the first-degree felony offense of aggravated robbery. After Torres pleaded guilty to the charged offense, the trial court deferred adjudication and placed him on community supervision for ten years. The State subsequently filed a motion to adjudicate Torres's guilt. Following a hearing, the trial court revoked Torres's community supervision, adjudicated him guilty, and assessed his punishment at twenty years' confinement. On appeal, Torres contends that (1) the trial court committed constitutional error when it admitted a violation report containing hearsay and related testimony over defense counsel's objections, and (2) the trial court abused its discretion when it revoked his community supervision because the State offered no evidence, other than the hearsay from the violation report, that he violated any condition of his deferred adjudication. Because we conclude that the evidence supporting revocation of Torres's community supervision was insufficient for the trial court to adequately exercise its discretion, we reverse and remand for a new hearing.

Background

On August 26, 2016, a grand jury indicted Torres—who was seventeen-year-old at the time of his crime—as an adult for the felony offense of aggravated robbery. He pleaded guilty and, on June 30, 2017, the trial court placed him on deferred adjudication community supervision for a period of ten years following 120 days' confinement and at least six months' shock treatment in a facility for offenders with substance abuse problems, the Substance Abuse Felony Punishment Facility (SAFPF).

The terms of Torres's community supervision required, among other conditions, that he participate in the SAFPF "for a term of not less than six (6) months or more than one (1) year" and to

comply with all rules, regulations, and treatment programs and upon release [from the SAFPF, Torres] is required to participate in a drug or alcohol abuse continuum of care treatment plan as developed by the Texas Commission on Alcohol and Drug Abuse (TCADA), abiding by all rules and regulations of said treatment plan until discharged by the Court.

The terms and conditions also admonished Torres that "failure to abide by these Conditions of Community Supervision may result in the revocation of Community Supervision or an adjudication of guilt." Torres entered the SAFPF on November 15, 2017.

On May 1, 2018, the trial court signed an order—its "Order Releasing From Substance Abuse Felony Punishment Facility"—stating that it had been notified by TDCJ authorities that Torres was successfully completing the treatment program and setting his tentative discharge date as June 7, 2018. The order further stated that Torres would then be transferred to Abundance Living/Houston to participate in the continuum-of-care program.

Despite this May 1, 2018 order indicating that he had nearly completed the SAFPF program, Torres was subsequently recommended for removal from the program on May 30, 2018. On June 26, 2018, the State filed a motion to adjudicate guilt, alleging that Torres violated the terms and conditions of community supervision by "[f]ailing to complete the Substance Abuse Felony Punishment Facility (SAFPF)."

The "SAFPF Progress and Conduct Report," submitted to the court on June 29, 2018—one month after he was recommended for removal and included in the clerk's record¹ —stated that since he had been recommended for removal from the program on May 30, 2018, Torres had been participating in groups and classes appropriately, had maintained a respectful attitude, had not received any sanctions, and had not had any disciplinary problems. The counselor commented that if he had "put forth as much effort prior to the recommendation for Behavioral Removal, he would have successfully completed the program."

The trial court held a hearing on the State's motion to adjudicate on November 26, 2018. The State called two witnesses at this hearing. Tankia Moore testified that she maintained the probation records for the court in which Torres was convicted in the regular course of business and that the records before the court were Torres's records, but she had never met Torres and did not have personal knowledge of the contents of Torres's file.

The State's second witness, Tony Dawson, the Harris County SAFPF coordinator, testified that Torres was unsuccessfully discharged from the SAFPF and that he had prepared Torres's discharge report based on information conveyed to him during a "treatment team meeting" with prison personnel over the telephone. He testified that a discharge from the SAFPF typically occurs when an inmate has had several incidents or a serious incident such an one resulting in an injury.

The State introduced the report prepared by Dawson in anticipation of the adjudication hearing based on the information supplied to him by SAFPF personnel—a two-page form entitled "Violation Report/Court Action"—as Exhibit 4. The report contained no specific accounts of Torres's alleged violations of the conditions of his community supervision, and there were no incident reports or other documentation supporting the report. Dawson admitted at the hearing that he had no personal knowledge of any of the violations, nor did he know the particular source of any of the alleged violations that were utilized by the SAFPF to discharge him from the program. The Report stated that Torres had been diagnosed with ADHD "and was receiving mental health treatment for the condition." It listed no "Law Violations," and, with respect to his "Reporting History," it stated only that Torres was placed in the SAFPF program as a condition of his community supervision, and that, upon arriving at the facility, he "received numerous rules violations and was unsuccessfully discharged on 06/04/2018 as a result." Under "Treatment Issues," the Report stated summarily that Torres was discharged "for behaviors like refusing to conform to rules and regulations, using racial slurs, profanity towards staff, and masturbating at a bathroom sink."² The Report also stated that Torres, "due to being in [the] SAFPF," had not been able to submit an educational skill level or provide proof of a high school diploma, GED, or participation in a GED program. He had not paid court fees assessed against him because they were not yet due.

Under "Status/Comments and Recommendations," the Report stated that Torres's case was referred to the court due to his unsuccessful discharge from the SAFPF, and it left court action to the discretion of the trial court. The Report stated, "It appears that [Torres] was given several opportunities to follow program rules ... but failed to abide by them until his ultimate discharge." Thus, "[b]ased off of the information gathered by this CSO, and the behaviors exhibited, it would appear that [Torres] does not realize the possible serious consequences and may be in need of a clinical assessment to determine if he needs to be diagnosed with a mental illness or to determine if [he] needs medication." There is no indication that any assessment of Torres's mental health or need for medication was made in response to this comment in the five months between his discharge from the SAFPF program and his adjudication hearing. The Report was signed by Dawson and Supervisor Elisa Hughes, who did not testify at the revocation hearing.

When the State introduced this exhibit, Torres objected to the Report as hearsay and as a violation of his rights of confrontation and cross-examination unless Dawson could demonstrate personal familiarity with the facts on which the report was based. He further argued that the rights to confrontation and cross-examination were implicated because his liberty interest was at stake. In response, the State argued that the business records exception to hearsay applied because Dawson reviewed the prison records to generate his report. The State also argued that Crawford³ did not apply to the adjudication hearing. The trial court admitted State's Exhibit 4, and it granted Torres a running objection.

When asked how Torres performed in the SAFPF, Dawson testified that "he had a numerous amount of behavioral sanctions" such as refusing to conform to rules and regulations, using racial slurs, profanity towards staff, and masturbating at a bathroom sink. Dawson testified that he discharged Torres due to his rule violations. Dawson reiterated, however, that he did not have personal knowledge of the specific violations that led to Torres's discharge. Dawson admitted that he did not know who made the allegations contained in the report, that it could have been a staff member or a fellow inmate, and that he could not personally assess the veracity or credibility of any of the allegations made against Torres.

Torres testified that he entered the SAFPF program on November 16, 2017, and that he was scheduled to be discharged on June 7, 2018. He stated that, while in the program, he had obtained his GED and had also been certified in construction with an OSHA license; he had completed 108 hours of a "change class"; he had completed an 18-hour drug course; he had completed his grief class; and he was "the commencement leader and an education tutor" in his community.

Torres testified that inmates break up "into little clicks [sic] against the people they don't like," and that the complaints against him came from other inmates. He stated that the inmates hold each other accountable, and, if someone writes an inmate up and has another inmate witness it, the complaint automatically goes down into that inmate's log, and he is held accountable. He testified that that was what had happened to him. Torres denied that the allegations contained in Dawson's report were true. Specifically, he denied using...