Opinion issued June 5, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00339-CR
YSIDRO RIOS RIVERA, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause No. 03CR1031
MEMORANDUM OPINION
In March 2003, after reaching a plea agreement with the State, appellant Ysidro Rios Rivera, Jr. pleaded nolo contendere to the felony offense of aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021(a)(1)(B) (Vernon Supp. 2007). The trial court deferred adjudication of Rivera’s guilt in accordance with the plea agreement, and then placed him on community supervision for ten years. In July 2005, the State moved to adjudicate Rivera’s guilt, alleging that Rivera had committed numerous violations of the conditions of his deferred adjudication. Rivera pleaded not true to the alleged violations. The trial court held a hearing and found Rivera in violation of six of those conditions. Based on those findings, the trial court adjudicated Rivera’s guilt and sentenced him to fifty years in the Institutional Division of the Texas Department of Criminal Justice.
Rivera contends that the trial court erred in (1) not considering the nature of and circumstances surrounding the original offense, as well as character and reputation evidence offered in mitigation, in determining the sentence; and (2) admitting evidence of extraneous offenses, including extensive testimony from Rivera’s subsequent criminal trial in cause number 05-CR-2241 (the “subsequent cause”),[1] in adjudicating his guilt and imposing his sentence. Finding no error, we affirm.
Background
In the hearing on the State’s motion to adjudicate, the trial court found that Rivera failed to adhere to the conditions of his community supervision, namely, that he:
No. 1. Commit no offense against the laws of the State of Texas or of any other state, the United States or any government entity;
No. 4. Report in person to the Supervision Officer, at least once each month as directed by the Supervision Officer and obey all rules and regulations of the G.C.C.S.C.D.;
No. 36. Attend psychological counseling sessions for sex offenders with an individual or organization which provides sex offender treatment as specified by or approved by the judge and the community supervision department. Defendant shall participate in the group and individual counseling sessions as directed by the attending therapist. Defendant shall execute releases of confidential information permitting free and mutual exchange of information, documents and progress reports between the community supervision and correction department and the counseling agency (therapist). Defendant shall pay for the cost of his evaluation and counseling to the extent of his financial ability. The Defendant shall obey all rules, regulations and policies of the designed program, attend all sessions and complete all homework assignments until successfully terminated by the attending therapist and community supervision officer;
No. 52. Have no contact with minor children without another adult present who has been designated as a chaperon by one of the Department’s approved sex offender therapists and the community supervision officer except for Samuel Augustine Rivera (11/9/91);
No. 53. Have no contact with minor children without another adult present except for Samuel Augustine Rivera (11/9/91);
No. 61. Defendant shall not engage in any sort of communication including in person, through another person, telephone, letters, e-mail, Internet, “Chat Room” or faxes with any persons under the age of eighteen (18).
Following a sentencing hearing on March 9, 2007, the trial court sentenced Rivera to fifty years in the Institutional Division of the Texas Department of Criminal Justice.
Discussion
A. Sentencing Error
Rivera contends that the trial court abused its discretion in sentencing him without considering mitigating evidence such as the nature of the violations, the facts surrounding the violations, character and reputation evidence, the nature of the underlying offense, the facts surrounding that offense, and his own statement.
A trial court has wide latitude to determine the appropriate punishment for a conviction. If the sentence imposed is within the statutory guidelines for the criminal conduct at issue, we will not disturb the sentence on appeal. Benjamin v. State, 874 S.W.2d 132, 135 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)); see also Nunez v. State, 565 S.W.2d 536, 538 (Tex. Crim. App. 1978).
Rivera pleaded nolo contendere to the first degree felony offense of aggravated sexual assault of a child. Texas law prescribes the range of punishment for this offense as imprisonment for life or for no more than 99 years and no less than 5 years, with the possible addition of a fine of up to $10,000. Tex. Penal Code. Ann. § 12.32(a)–(b) (Vernon 2003). Rivera’s sentence of fifty years’ confinement falls within that statutory range of punishment. Further, as long as the trial court had some evidence or facts before it to support its determination, the decision will be upheld. Jackson, 680 S.W.2d at 814.
Following the trial court’s acceptance of Rivera’s plea bargain with the State, the trial court found that it was in the best interest of society and Rivera to defer adjudication of guilt and place him on community supervision. In its motion to adjudicate, the State alleged that Rivera violated the terms and conditions of deferred adjudication by having unauthorized contact and communication with a child, failing to attend his required therapy sessions, and committing a subsequent felony offense of aggravated sexual assault of a child, for which he was tried and convicted by the same trial court. As support for those allegations, the State offered testimony from Rivera’s probation officer, who stated that Rivera failed to appear for a scheduled appointment with her and that Rivera also failed to attend a scheduled psychological counseling session for sex offenders. Rivera’s failure to attend these two appointments violated two terms of his community supervision.
Here, the trial court also admitted into evidence, over defense objections, the entire reporter’s record of the trial in the subsequent cause. That record contains trial testimony which shows that Rivera violated four additional conditions of his community supervision. Finally, the trial court received a pre-sentence investigation report and heard punishment testimony in a separate hearing. The evidence before the trial court supports the sentence imposed. See Jackson, 680 S.W.2d at 814. Rivera, however, further contends that the trial court abused its discretion during his sentencing because, although the trial court admitted mitigating evidence, it failed to consider it. A defendant has a limited right to challenge errors made after a formal adjudication of guilt, including whether he received an opportunity to present evidence in mitigation of punishment. Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992). Mitigating evidence is evidence that might reduce the defendant’s “moral blameworthiness.” Tex. Code Crim. Proc. Ann. art. 37.071 § 2(f)(4) (Vernon Supp. 2007). The accused may also offer character evidence. Tex. R. Evid. 404(a)(1)(A).
The trial court allowed Rivera to present extensive evidence in mitigation of punishment. The record reflects that the trial court heard several witnesses at the sentencing hearing who testified on Rivera’s behalf. These witnesses included Rivera’s father, who testified that Rivera was living with him, was always very respectful to the family, worked as a butcher, and helped the family out with money and also through performing various family chores, and his cousin, who spoke of Rivera’s role in her life as a father figure who helped raise her and provided for her as a child both financially and personally. In addition, Rivera took the stand to testify about his career as a butcher and his family’s need for his financial support, and ask for the court’s mercy. After Rivera’s testimony, the defense rested.
The trial court only need afford a defendant an opportunity to present evidence in mitigation of punishment sometime during the proceedings, either before or after the adjudication of guilt. Pearson v. State, 994 S.W.2d 176, 176 (Tex. Crim. App. 1999). Rivera received the opportunity to which he was entitled. The fact that the trial court imposed a fifty-year sentence on Rivera does not demonstrate that the trial court failed to consider Rivera’s mitigating evidence. The trial judge is in a unique position to evaluate the credibility of the witnesses during the punishment phase, and, on appellate review, we do not question its credibility determinations, or the weight it accords to the evidence before it. Canseco v. State, 199 S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Based on all of the evidence before the trial court, and the applicable sentencing range, we conclude that the trial court did not abuse its discretion in sentencing Rivera.
B. Evidentiary Error
Rivera complains that the trial court erred in admitting into evidence the reporter’s record in his subsequent cause because: (1) that cause had not been finally adjudicated on appeal; and (2) it deprived him of his right to cross-examination.
The record reflects that the same trial judge that held the revocation hearing presided over the trial of the subsequent cause, and therefore, had the opportunity to view the witnesses in that trial and arrive at its own determinations of their credibility and the weight to be accorded to their testimony. “When the same trial court presides over both the revocation hearing and the trial of the offense that is the basis for revocation, the trial court can take judicial notice of the evidence introduced in that prior proceeding.” Akbar v. State, 190 S.W.3d 119, 123 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Barrientez v. State, 500 S.W.2d 474, 475 (Tex. Crim. App. 1973)). As the trier of fact, the trial court may weigh the credibility of the witnesses from that prior proceeding and determine whether the allegations in the motion to revoke are true. Id. Thus, even if the subsequent conviction is overturned on appeal because the evidence does not prove beyond a reasonable doubt that Rivera committed that crime, it was not constitutional error for the trial court to adjudicate Rivera’s guilt based upon the same evidence because the standard of proof at an adjudication hearing is proof by a preponderance of the evidence, rather than proof beyond a reasonable doubt. Id. (citing Bradley v. State, 608 S.W.2d 652, 656 (Tex. Crim. App. 1980)). Moreover, “[t]he application of the Barrientez rule is not a denial of the right to confront and to cross-examine witnesses.” Id. (citing Barrientez, 500 S.W.2d at 475).
Because the same trial judge presided over both the trial of the subsequent cause and his revocation hearing, the trial court acted within its discretion in taking judicial notice of the record in the subsequent cause and considering it in deciding whether to adjudicate Rivera’s guilt.
Rivera also complains that the trial court erred in considering the same evidence during the punishment hearing, pointing to the trial court’s statement to him that, “you have been convicted by a jury of a similar offense and I have found the allegations regarding those similar offenses to be true.” Texas law provides that, during a punishment hearing,
evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
Tex. Code Crim. Proc. art. 37.07, § 3(a)(1) (Vernon Supp. 2007) (emphasis added); see Smith v. State, 227 S.W.3d 753, 759–60 (Tex. Crim. App. 2007). Furthermore, by denying that he had any sexual contact with the complainant in the subsequent cause during his direct examination at the sentencing hearing, Rivera invited the State to address it in rebuttal. Consequently, we hold that the trial court did not abuse its discretion in considering the subsequent cause during the punishment hearing in this case.
Conclusion
We hold that the trial court duly permitted Rivera to present mitigating evidence and acted within its discretion in sentencing Rivera. We further hold that the trial court acted within its discretion in considering Rivera’s conviction in the subsequent cause, among other factors, in revoking Rivera’s community supervision and sentencing Rivera. We therefore affirm the trial court’s judgment.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
Do not publish. See Tex. R. App. P. 47.2(b).
[1] This Court recently affirmed Rivera’s conviction in that case. See Ysidro Rios Rivera v. State of Texas, No. 01-06-01114-CR, 2008 WL 1827649 (Tex. App.—Houston [1st Dist.] Apr. 24, 2008, no pet. h.)