Francisco Gutierrez Cruz v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00065-CR

______________________________

FRANCISCO GUTIERREZ CRUZ, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 30,587-B

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

          Francisco Gutierrez Cruz was convicted of the offense of burglary of a habitation. His punishment was assessed at ten years' imprisonment. Imposition of sentence was suspended, and Cruz was placed on community supervision for a period of ten years. A few weeks later, the State filed a motion to revoke community supervision, alleging Cruz had violated the terms and conditions of his supervision by committing a new offense, theft of a vehicle, and by failure to make payments, as ordered, during the first month of his supervision, for restitution, supervision, court costs, and reimbursement for court-appointed counsel. A hearing was held on the State's motion, and Cruz pled "not true" to the State's allegations. At the conclusion of the hearing, the trial court found the allegations true, revoked Cruz' community supervision, and imposed the original sentence of ten years' imprisonment. Cruz appeals, contending the State presented insufficient evidence to support the trial court's finding that he violated the terms and conditions of his community supervision. We affirm.

          David Growden, the victim, testified his 1998 Dodge Caravan was stolen from his driveway. He testified that he did not loan his vehicle to Cruz and that he did not permit Cruz to use or exercise control over it. James Fulmer, a police officer with the Longview Police Department, testified he located Growden's vehicle in a park the day after it was stolen. Fulmer "dusted" the minivan and recovered a fingerprint from the inside of the driver's side window. Tim Eaton, a police officer with the City of Longview, submitted the fingerprint recovered by Fulmer to compare it with the fingerprints of Cruz. Eaton chose to compare Cruz' fingerprints with the recovered fingerprint because Cruz was also suspected in another case where the offense was unauthorized use of a vehicle taken from the same neighborhood. Dan Reigstad, an employee of the Longview Police Department, testified the recovered fingerprint from the minivan matched the "No. 3 finger, which is the right middle finger" of Cruz. Cruz did not testify at the revocation hearing and did not present any evidence of how his fingerprint could have been inside the minivan.

          "To revoke probation, the State must prove every element of at least one ground for revocation by a preponderance of the evidence." Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana 2003, pet. ref'd) (citing Tex. Code Crim. Proc. Ann. art. 42.12, § 21). A trial court has extremely broad discretion over the conditions of community supervision, the revocation of community supervision, or the decision to continue a defendant's community supervision. Pierce, 113 S.W.3d at 436. Given the unique nature of a revocation proceeding, the general standards for appellate review of factual or legal sufficiency challenges do not apply to a trial court's decision to revoke community supervision. Id. (citing Cochran v. State, 78 S.W.3d 20, 27 (Tex. App.—Tyler 2002, no pet.); Becker v. State, 33 S.W.3d 64, 66 (Tex. App.—El Paso 2000, no pet.)). Instead, we must determine whether the greater weight of the credible evidence creates a reasonable belief that the defendant violated any single term of the community supervision. If so, then we will not find the trial court abused its discretion. Pierce, 113 S.W.3d at 436.

          Here, we cannot say the trial court's finding that Cruz violated the terms and conditions of his community supervision by committing a new offense, theft of Growden's vehicle, is against the greater weight of the credible evidence. Accordingly, we find the trial court's judgment is based on a reasonable belief Cruz had violated at least one condition of his community supervision. See Briones v. State, 363 S.W.2d 466 (Tex. Crim. App. 1963).

          Because we find the great weight of the credible evidence creates a reasonable belief Cruz violated the condition of his community supervision requiring him to "[c]ommit no offense against the laws of Texas, any other State, or the United States," we need not decide whether the evidence supports the trial court's finding that Cruz also violated the other terms and conditions of his supervision as alleged in the State's motion.

          We overrule Cruz' sole point of error and affirm the judgment.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      January 10, 2005

Date Decided:         January 25, 2005

Do Not Publish

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-11-00090-CV

                                                ______________________________

 

 

 

                                                 IN RE:  JOHNNY M. STAFFORD

 

 

                                                                                                  

 

                                                                                                                            

                                                     Original Mandamus Proceeding

 

                                                                                                  

 

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                                             

                                                                             

                                                      MEMORANDUM OPINION

 

            Johnny M. Stafford has filed with this Court a document styled as a request for an injunction against the Honorable Paul Banner, with a related request for emergency relief.  We deem it to be a petition for writ of mandamus.  Stafford has an appeal pending before this Court which is currently awaiting a hearing on his claim of indigency.  Stafford filed this petition, which was received the afternoon of August 24, asking this Court for the emergency relief of staying the hearing on indigency, which he states is set for August 25 at 9:00 a.m.

            Stafford states that he filed a motion to recuse with the trial court.  He has not attached a copy of that motion or any supporting documentation and does not indicate what action, if any, has been taken in connection with that request.

            His stated reason for relief is because “Plaintiff has filed as of August 22 a motion to recuse along with this motion.  Judge Banner has deliberately set the date for August 25, 2011 to block a review of the record in order to conceal evidence in the case.”  Below that, Stafford has allegations and argument about illegal procedures being used and complaints about not being able to obtain free service of citation in lawsuits he has filed.

            Stafford then asserts that a writ of mandamus would issue against the trial judge for failure to recuse and for holding an indigency hearing in two cases at the same time.

            We grant the extraordinary relief of mandamus only when the trial court has clearly abused its discretion and the relator lacks an adequate appellate remedy.  In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (orig. proceeding).  The party seeking the writ of mandamus has the burden of showing that the trial court abused its discretion and that appeal is an inadequate remedy.  In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 935 (Tex. App.—Tyler 2005, orig. proceeding).  The general rule is that mandamus is not available for the denial of a motion to recuse—it may be reviewed for abuse of discretion on appeal from the final judgment.  In re McKee, 248 S.W.3d 164, 165 (Tex. 2007) (orig. proceeding) (per curiam); In re Union Pac. Res. Co., 969 S.W.2d 427, 428–29 (Tex. 1998) (orig. proceeding).  Further, the mere filing of a motion to recuse does not provide a ground for mandamus relief.  We will assume that the trial court will handle this as the law dictates under the circumstances.

            Stafford has not provided this Court with a record of any sort, and thus has not properly supported his petition for writ of mandamus.  See Tex. R. App. P. 52.3, 52.7.  Further, the document is not sworn as is required.  See Tex. R. App. P. 52.3(j).  Even if we treated this document as the motion for injunction as it is styled, we have the authority to issue writs other than mandamus only as necessary to “enforce the jurisdiction of the court.”  Tex. Gov’t Code Ann. § 22.221 (West 2004).  The allegations in this document do not show any such threat to our jurisdiction; thus, the request would also fail on that ground.

            We overrule the request for emergency stay and deny the petition for writ of mandamus.

 

 

                                                                        Josh R. Morriss, III

                                                                        Chief Justice

 

Date Submitted:          August 24, 2011

Date Decided:             August 24, 2011