NO. 07-08-0193-CR
NO. 07-08-0194-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MAY 19, 2009
______________________________
RAFAEL FISCAL, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 100TH DISTRICT COURT OF CHILDRESS COUNTY;
NOS. 5022 & 5076; HONORABLE RICHARD DAMBOLD, JUDGE1
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
On November 8, 2007, in Cause No. 5022, Appellant, Rafael Fiscal, Jr., pled guilty
to possession of a controlled substance in an amount of less than one gram, enhanced by
1
Sitting by assignment. Tex. Gov’t Code Ann. §75.002(a)(3) (Vernon 2005).
two prior felony convictions, and pursuant to a plea bargain was sentenced to ten years in
prison, with the period of confinement suspended in favor of ten years of community
supervision. On the same day, Appellant also pled guilty to possession of a controlled
substance in an amount of four grams or more but less than two hundred grams with intent
to deliver and was sentenced to ten years deferred adjudication community supervision in
Cause No. 5076. The trial court ordered that the two periods of community supervision
would run concurrent.
In January 2008, the State filed motions to revoke Appellant’s community
supervision in Cause Nos. 5022 and 50762 alleging Appellant violated the terms and
conditions of his community supervision in each case by using a controlled
substance–methamphetamine. On April 4, 2008, the trial court held a hearing on the
State’s motions and revoked Appellant’s community supervision. The trial court sentenced
Appellant to confinement under two, ten year sentences to run concurrently. Appellant
appealed. We consolidated these appeals because the circumstances underlying the trial
court’s revocation of Appellant’s community supervision is the same in both cases.
Appellant’s first four points of error can be distilled to a single issue, i.e., whether the
trial court abused its discretion by finding the State produced sufficient evidence to show
that Appellant knowingly and intentionally consumed methamphetamine on or about
December 6, 2007. Appellant’s fifth point of error asks whether the trial court abused its
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In Cause No. 5076, the State also sought an adjudication of guilt.
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discretion by permitting the State’s witness to compare two sets of fingerprints in order to
identify Appellant as the person convicted of forgery in 2003 for punishment purposes. We
affirm.3
Background
In Cause Nos. 5022 and 5076, the State filed motions to revoke Appellant’s
community supervision because he used a controlled substance “on or about December
6, 2007" in violation of his Orders of Community Supervision. Condition Twelve of
Appellant’s Orders of Community Supervision required him to abstain from the use of
narcotics or any controlled substance in any form and at any time, unless taken under the
direction of a physician.
At the hearing, Marcy Mills, a probation officer for the 100th Judicial District Adult
Probation Department, testified that, on December 3, 2007, Appellant reported in
accordance with the terms of his Orders of Community Supervision. At her request, Gary
3
In this proceeding, the State did not file a brief nor request additional time to do so.
Accordingly, we have conducted an independent analysis of the merits of appellant’s claim
of error, limited to the arguments raised at trial by the State, to determine if there was error.
See Little v. State, 246 S.W.3d 391, 397-98 (Tex.App.–Amarillo 2008, no pet.) (collected
cases cited therein). The decision to independently review the merits of Appellant’s issues
should not be construed as an approval of the State’s failure to file a brief. Although the
State is not required to file a brief, the failure to do so requires this Court to expend
valuable judicial resources to determine the parameters of the arguments presented to this
Court for consideration.
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Martin, a probation officer, obtained a urine sample from Appellant and submitted the
sample for testing.
Dr. John Laseter, Laboratory Director for Accu-Chem Laboratories, testified that
Appellant’s urine sample tested positive for amphetamine and methamphetamine. On
cross-examination, he also testified that a sample taken on December 3, 2007, could not
be tested to determine whether an individual had consumed amphetamines on December
6, 2007.
Deputy Danny Gillem, Chief Deputy for the Childress County Sheriff’s Department,
compared Appellant’s fingerprints taken the day of the hearing with a fingerprint on a
judgment of conviction on a forgery offense issued on March 24, 2003, and opined that the
fingerprint on the judgment was Appellant’s fingerprint. Deputy Gillem also testified that
he had been with the Childress County Sheriff’s Department three years and, during that
time, had completed forty hours of basic and intermediate study in fingerprint comparison
courses. He also compared fingerprints for the Sheriff’s Department using a computerized
fingerprint retrieval system. This was the first time that Deputy Gillem testified in court.
At the conclusion of the hearing, the trial court determined that Appellant had
violated the terms of his community supervision, whereupon the court revoked his
community supervision in Cause No. 5022, revoked his deferred adjudication in Cause No.
5076, adjudicated him guilty of the offense charged in Cause No. 5076, and then
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proceeded to sentence him to two, ten year sentences to run concurrently. In addition, the
trial court fined Appellant $1500. Thereafter, Appellant appealed.
Discussion
Appellant contends the State failed to establish he had consumed
methamphetamine, on or about December 6, 2007, because the State’s only evidence was
a sample taken on December 3, 2007, and tested December 6, 2007. Appellant next
asserts the trial court abused its discretion by permitting Deputy Gillem to offer an opinion
on fingerprint comparison because he was not qualified by the State as an expert.
I. Standard of Review
A probation revocation proceeding is neither a criminal nor a civil trial, but is rather
an administrative proceeding. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993).
In a revocation proceeding, the State bears the burden to prove its allegations by a
preponderance of evidence. Id. at 874. When reviewing an order revoking community
supervision, the sole question before this Court is whether the trial court abused its
discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006); Cardona v. State,
665 S.W.2d 492 (Tex.Crim.App. 1984). In determining the sufficiency of the evidence to
sustain a revocation, we view the evidence in the light most favorable to the trial court’s
ruling, Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App. 1979), while recognizing that
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the trial court determines the credibility of the witnesses. Garrett v. State, 619 S.W.2d 172,
174 (Tex.Crim.App. 1981).
II. Methamphetamine Consumption
When an indictment alleges a crime occurred “on or about” a particular date, the
State may prove the offense occurred on a date other than the date specifically alleged in
the indictment so long as the date is anterior to the presentment of the indictment and
within the statutory limitation period. Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App.
1997). The primary purpose of specifying a date “is not to notify the accused of the date
of the offense.” Garcia v. State, 981 S.W.2d 683, 686 (Tex.Crim.App. 1998). Rather, the
date is intended to show that the prosecution is not barred by the statute of limitations and
provide the defendant with sufficient notice to prepare an adequate defense. Id.
Here, Appellant tested positive for methamphetamine consumption that occurred
anterior to the date specified in the State’s motion to revoke. Moreover, evidence of a
positive urine sample is sufficient to establish that Appellant failed to abstain from use of
a controlled substance as required by his Orders of Community Supervision. See Stevens
v. State, 900 S.W.2d 348, 352 (Tex.App.–Texarkana 1995, pet. ref’d). Hence, we find that
the trial court did not abuse its discretion in finding that Appellant had violated the terms
and conditions of his community supervision and overrule Appellant’s first four points of
error.
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III. Fingerprint Comparison
W e also review a trial court’s decision to admit or exclude evidence for abuse of
discretion, Page v. State, 213 S.W .3d 332, 337 (Tex.Crim.App. 2006), and “will uphold a trial
court’s ruling on admissibility of evidence as long as the trial court’s ruling was at least within
the zone of reasonable disagreement.” Id. See Hernandez v. State, 205 S.W .3d 555, 558
(Tex.App.--Amarillo 2006, pet. ref’d). Given Deputy Gillem’s qualifications, supra at p. 3, we
cannot say that the trial court ventured outside the zone of reasonable disagreement by
permitting Deputy Gillem to render an opinion based upon the comparison of two sets of
fingerprints.
Accordingly, Appellant’s fifth point of error is overruled.
Conclusion
We affirm the judgments of the trial court.
Patrick A. Pirtle
Justice
Do not publish.
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Rafael Fiscal, Jr. v. State
Combined Opinion