Opinion issued September 4, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00955-CR
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JULIO GARCIA JIMENEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Case No. 09CR1846
OPINION
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.
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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 (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.
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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
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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., No. 08-12-00102-CV,
2014 WL 949949, at *7 (Tex. App.—El Paso Mar. 12, 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
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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., 2014
WL 949949, at *7; 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
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has violated a condition of his [community supervision agreement].” Rickels v.
State, 202 S.W.3d 759, 764 (Tex. 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
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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 prison in Greenville, Illinois, approximately fifty miles from
St. Louis, Missouri.1 A Galveston County police officer identified Jimenez as the
inmate transferred from Greenville, Illinois. We hold that legally sufficient
evidence established Jimenez’s conviction for illegal re–entry. Because any
violation of state or federal law is a breach of Jimenez’s community supervision
agreement, we hold that legally sufficient evidence supports the trial court’s
finding that Jimenez violated a condition of that agreement.
1
We take judicial notice of the fact that Greenville, Illinois is approximately
fifty miles from St. Louis, Missouri. See Volosen v. State, 227 S.W.3d 77,
81 (Tex. Crim. App. 2007) (“Where a matter is appropriately subject to
judicial notice, an appellate court can take judicial notice for the first time on
appeal.”).
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III. Presentence Investigation
Preservation of error
To preserve error for appellate review, a complaint must be made to the trial
court “by a timely request, objection, or motion that . . . states[s] the grounds for
the ruling that the complaining party sought from the trial court with sufficient
specificity to make the trial court aware of the complaint, unless the specific
grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A). The
record also must show that the trial court either “ruled on the request, objection, or
motion, either expressly or implicitly” or “refused to rule on the request, objection,
or motion, and the complaining party objected to the refusal.” TEX. R. APP.
P. 33.1(a)(2)(A), (B). A complaint must “simply be clear enough to provide the
judge and the opposing party an opportunity to address and, if necessary, correct
the purported error.” Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011)
(citing Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009)).
Before the punishment hearing, Jimenez’s counsel stated: “[B]efore we get
[to the punishment hearing], I would request—so, I don’t want to waive it now—I
would request that a PSI be conducted.” After Jimenez’s counsel stated the
grounds for his request, the trial court concluded: “I don’t see anything to be
gained by putting [the punishment hearing] off . . . So, let’s go forward with any
evidence. If at the end of that time I feel there’s a need for something further, I
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will give you the opportunity to produce something.” Jimenez’s counsel timely
conveyed a specific request for a presentence investigation and stated the grounds
for his request. The trial court implicitly denied Jimenez’s request by proceeding
with the punishment hearing.
The State contends that Jimenez did not properly object. But no “magic
words” are necessary. See id. Because the trial court implicitly denied Jimenez’s
timely, specific request for a presentence investigation, we hold that Jimenez has
preserved this issue for review. See id.
Standard of review
Statutory construction is a question of law that we review de novo. Boston
v. State, 410 S.W.3d 321, 325 (Tex. Crim. App. 2013); Druery v. State, 412
S.W.3d 523, 533 (Tex. Crim. App. 2013).
Analysis
Article 42.12, section 9 of the Texas Code of Criminal Procedure generally
requires that the trial court direct a community supervision officer to conduct a
presentence investigation. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9(a) (West
2006). In a felony case, however, a trial judge is not required to order a
presentence investigation if one of the following exceptions applies:
(1) punishment is to be assessed by a jury;
(2) the defendant is convicted of or enters a plea of guilty or nolo
contendere to capital murder;
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(3) the only available punishment is imprisonment; or
(4) the judge is informed that a plea bargain agreement exists, under
which the defendant agrees to a punishment of imprisonment, and the
judge intends to follow the agreement.
Id. § 9(g). 2 Here, the only exception that could apply is (g)(3), whether the only
available punishment is imprisonment.
The trial court adjudicated Jimenez guilty of aggravated sexual assault of a
child. See TEX. PENAL CODE. ANN. § 22.021 (West 2011). A trial judge may not
order regular community supervision if the defendant is adjudged guilty of
aggravated sexual assault under section 22.021 of the Penal Code. TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 3g(a)(1)(E). A trial judge also may not order shock
community supervision if the defendant is ineligible for regular judge–ordered
community supervision. See id. § 6(a)(1); State v. Posey, 330 S.W.3d 311, 315
(Tex. Crim. App. 2011); State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App.
2009). Because imprisonment was the only punishment option, we hold that the
trial judge did not err in failing to order a section 9 presentence investigation. Id.
§ 9(g)(3); see also Skinner v. State, No. 06-00-00184-CR, 2001 WL 193882, at *2
2
We note that the holding in Whitelaw v. State, 29 S.W.3d 129, 134 (Tex.
Crim. App. 2000), has been superseded by statute. See Act of Sept. 1, 2005,
79th Leg., R.S., ch. 500, § 1, art. 42.12, sec. 9(g), 2005 Tex. Gen. Laws
1374 (amended 2005) (current version at TEX. CODE CRIM. PROC. ANN.
art. 42.12, § 9(g) (West. 2006)) (deleting “[u]nless requested by the
defendant” language).
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(Tex. App.—Texarkana Feb. 27, 2001, no pet.) (mem. op., not designated for
publication) (holding that defendant, whom trial court had adjudicated guilty of
aggravated sexual assault after defendant had violated community supervision
agreement, was ineligible for judge–ordered community supervision and thus fit
within section 9(g)(3) exception).
Jimenez further contends that the trial court erred in failing to order a
presentence investigation under section 9A, which applies to sex offenders; that
provision requires that the trial court direct a community supervision officer “to
evaluate the appropriateness of, and a course of conduct necessary for, treatment,
specialized supervision, or rehabilitation of the defendant.” TEX. CODE CRIM.
PROC. ANN. art. 42.12, § 9A(c). Although Jimenez’s counsel requested a
presentence investigation, Jimenez’s counsel never specifically requested a
section 9A presentence investigation, nor did he mention the separate presentence
investigation requirement for sex offenders. Because Jimenez did not make the
trial court aware of this specific complaint, we hold that Jimenez has failed to
preserve error on this issue. See TEX. R. APP. P. 33.1(a); cf.
Nguyen v. State, 222 S.W.3d 537, 541 (Tex. App.—Houston [14th Dist.] 2007, pet.
ref’d) (holding that right to section 9 presentence investigation is forfeitable by
inaction); Wright v. State, 873 S.W.2d 77, 83 (Tex. App.—Dallas 1994, pet. ref’d)
(same).
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Conclusion
Because we find, beyond a reasonable doubt, that the failure to suppress
Jimenez’s statement did not contribute to his adjudication of guilt, we hold that any
error in its admission was harmless. We also hold that legally sufficient evidence
supports the trial court’s finding that Jimenez violated a condition of the
community supervision agreement. We further hold that the trial judge did not err
in failing to order a section 9 presentence investigation. But, based on the State’s
agreement that the fee assessment was in error, we modify the judgment to delete
the assessment of $643.50 in attorney’s fees against Jimenez. Accordingly, we
affirm the judgment as modified.
Jane Bland
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
Publish. See TEX. R. APP. P. 47.2(b).
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