Affirmed and Memorandum Opinion filed February 10, 2015.
In The
Fourteenth Court of Appeals
NO. 14-13-01036-CR
SAMUEL JAMES BENITEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1367801
MEMORANDUM OPINION
Appellant entered a plea of “guilty” pursuant to a plea bargain for the
offense of kidnapping. The trial court deferred adjudication and placed appellant
on community supervision for five years. Subsequently, the State filed a motion to
adjudicate. The trial court adjudicated guilt, sentenced appellant to confinement for
five years in the Institutional Division of the Texas Department of Criminal
Justice, and assessed a $500 fine. The trial court suspended appellant’s sentence
and placed him on community supervision for five years. The State later filed a
motion to revoke community supervision. Following a hearing, the trial court
found appellant violated the terms and conditions of his community supervision,
revoked his community supervision, sentenced him to five years, and assessed a
$500 fine. Specifically, the trial court found appellant violated the conditions of his
community supervision by (1) committing “an offense against the State of Texas;”
to wit, harassment and (2) failing “to participate in a batterer prevention program
(BIPP) as ordered.” Appellant filed a timely notice of appeal. We affirm.
On appeal, Appellant argues (1) the evidence is insufficient to support the
finding of harassment and (2) the trial court erred when it revoked community
service for appellant’s failure to participate in the batterer prevention program
without first conducting a hearing to determine appellant’s ability to pay for such
program.1 Because we conclude that the evidence supports the trial court’s first
finding, we need not determine whether appellant’s plea of true waives his
challenge to the second finding or otherwise address the merits of appellant’s
challenge to the second finding based upon Mathis v. State, 424 S.W.3d 89, 94
(Tex. Crim. App. 2014). See Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App.
2011) (proof of a single violation will support a judgment revoking community
supervision).
THE EVIDENCE
Margarita Rivera (formerly Margarita Soto) is appellant’s ex-wife and they
have a daughter. Rivera testified that after appellant got out of jail on July 31,
1
Citing Mathis v. State, 424 S.W.3d 89, 94 (Tex. Crim. App. 2014), appellant urges that
the trial court was required to hold a hearing on his ability to pay for the BIPP prior to revoking
his community supervision for failure to attend the program. In Mathis, the Court of Criminal
Appeals determined that a trial court must consider a defendant’s ability to pay before imposing
monetary conditions of probation. Id.
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2013, she received about 500 to 600 messages on her phone and was “majorly
scared.” Rivera had previously asked appellant not to contact her after he appeared
at her work place on August 1, 2013. Rivera told appellant not to look for her
anymore, that she did not want anything to do with him, and not to contact her or
their daughter. Appellant was violent and used profanity, embarrassing Rivera.
Rivera testified that appellant did not stop. “It got worse. . . . lots and lots of
messages, phone calls kept coming in, voice mails . . .” Rivera testified the
messages were “a mixture of things from Bible songs to just wanting to get back
with me, explaining what he had previously done.”
Rivera testified that appellant was also harassing her by following her to
stores. In early September, appellant entered Rivera’s house about 3:00 in the
morning and came up the stairs. Rivera saw him and called out her son’s name.
Appellant closed the door and left. Rivera got under her bed and called 911. Rivera
testified she was very scared and could not stop shaking. Rivera said she was
scared appellant could hurt her and believed that he would not leave her alone.
Rivera did not believe probation would keep appellant away from her.
Deputy Arnett testified that he was dispatched to Rivera’s home on
September 13, 2013. Rivera advised him that appellant was her ex-husband and he
had been sending harassing text messages and phone calls for the last few days.
Arnett observed two text messages that were identified by Rivera’s contact list as
coming from appellant. The first message was, “Answer the phone, scared bitch, I
have some choice words for you.” The second message read, “Hey, bitch, I know
where you live.” Arnett observed Rivera receive seven or eight phone calls in a
period of 20 minutes while he was obtaining her information. Arnett testified
Rivera appeared scared and frustrated and Rivera said that she was scared of
appellant.
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Appellant denied making numerous phone calls. He admitted to calling
Rivera three times on September 13, 2013, because he wanted to see his daughter.
Appellant said he left Bible verses on Rivera’s phone. Appellant testified that he
did not send the text messages that Arnett recounted. Appellant denied going to
Rivera’s home at 3:00 in the morning in September 2013.
APPLICABLE LAW
We review an order revoking community supervision for abuse of the trial
court’s discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).
In determining the sufficiency of the evidence in community-supervision
revocation cases, the burden of proof is by a preponderance of the evidence. Id. If
the greater weight of the credible evidence would create a reasonable belief that the
defendant has violated a condition of his probation, the evidence is sufficient to
support the trial court’s order revoking community supervision. Id. at 763–64.
A person commits the offense of harassment, as applicable here, if, with
intent to harass or alarm another, the person “causes the telephone of another to
ring repeatedly or makes repeated telephone communications anonymously or in a
manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or
offend another.” Tex. Penal Code Ann. § 42.07(a)(4) (West, Westlaw through
2013 3rd C.S.). Although appellant urges that the record evidence regarding the
phone calls and text messages is hearsay and not the best evidence, the trial court
received such evidence without objection. See Tex. R. App. P. 33.1(a). Any
objections were waived.
Based on the evidence presented and admitted, the trial court reasonably
could have believed that appellant harassed Margarita Rivera.
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We conclude the trial court did not abuse its discretion in finding by a
preponderance of the evidence that appellant violated the terms and conditions of
his community supervision. Appellant’s issue is overruled and the judgment of trial
court is affirmed.
/s/ Sharon McCally
Justice
Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).
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