NUMBER 13-14-00337-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EDGAR GARCES DIAZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 206th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion by Justice Longoria
By two issues, appellant Edgar Garces Diaz appeals a judgment revoking his
shock probation1 and reinstating his original sentence of ten years’ imprisonment for the
1 We use the terms “probation” and “community supervision” interchangeably in this opinion.
offense of robbery, a second-degree felony. See TEX. PENAL CODE ANN. § 29.02 (West,
Westlaw through 2013 3d C.S.). We affirm.
I. BACKGROUND
In October of 2009, the State charged appellant by indictment with aggravated
robbery, a first-degree felony. See id. § 29.03 (West, Westlaw through 2013 3d C.S.).
Appellant pleaded guilty to the lesser-included offense of robbery, a second-degree
felony, in exchange for an agreed punishment recommendation. See id. § 29.02.
Pursuant to the recommendation, the trial court sentenced appellant to ten years’
imprisonment and later placed appellant on shock probation. See TEX. CODE CRIM. PROC.
ANN. art. 42.12, § 6 (West, Westlaw through 2013 3d C.S.).
In September of 2013, the State filed an amended motion to revoke appellant’s
probation on the grounds that appellant allegedly: (1) committed the subsequent offense
of murder; (2) failed to report to his probation officer on a monthly basis from April to
September of 2013; (3) did not pay the Crime Stoppers’ Fee; (4) did not pay the monthly
Community Supervision Fee; (5) did not pay court costs; and (6) did not complete the
required number of community service hours. Appellant pleaded “not true” to all of the
allegations contained in the State’s motion. The trial court found all but the allegation of
murder to be true and entered an order revoking appellant’s supervision and imposing
the original sentence of ten years’ imprisonment.
II. HEARSAY
By his first issue, appellant argues that the trial court erred by overruling his
hearsay objection. The State asked Edgar Espinoza, the probation officer supervising
appellant, if he knew any reason why appellant had not reported to him in August and
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September of 2013. Espinoza testified that he “believe[d]” that appellant had been
arrested and was incarcerated during those months. Appellant objected on the basis of
hearsay, and the trial judge overruled the objection.
We first address the State’s assertion that appellant did not preserve error because
his objection does not comport with his argument on appeal. Appellant argues in this
Court that the judge’s decision “denied appellant his constitutional right to confront
witnesses for evidence being offered against him in trial.” In other words, appellant
asserts that the judge’s ruling violated his constitutional right to confront the witnesses
against him. See U.S. CONST. amend. VI; Crawford v. Washington, 541 U.S. 36, 51–52
(2004). However, appellant’s trial counsel objected on the basis of hearsay, which is not
sufficient to preserve a Confrontation Clause issue for appeal. Reyna v. State, 168
S.W.3d 173, 179 (Tex. Crim. App. 2005) (“An objection on hearsay does not preserve
error on Confrontation Clause grounds.”); Alcala v. State, No. 13-12-00173-CR, ___
S.W.3d ____, 2013 WL 6053837, at *21 (Tex. App.—Corpus Christi Nov. 14, 2013, pet.
ref’d) (same). We agree with the State that appellant did not preserve his Confrontation
Clause issue for appeal. We accordingly overrule appellant’s first issue.
III. SUFFICIENCY OF THE EVIDENCE
By his second issue, appellant argues that the evidence is legally insufficient to
support the trial court’s judgment revoking his probation.
A. Standard of Review and Applicable Law
We review an order revoking probation for abuse of discretion. Rickels v. State,
202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The State has the burden to prove a
violation of a condition of community supervision by a preponderance of the evidence.
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Id. at 763–64. 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
has violated a condition of his probation.” Hacker v. State, 389 S.W.3d 860, 865 (Tex.
Crim. App. 2013) (internal quotations marks omitted). We will uphold an order revoking
community supervision if one alleged violation is supported by sufficient evidence. Norton
v. State, 434 S.W.3d 767, 773 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing
Smith v. State, 286 S.W.3d 333, 342 & n.36 (Tex. Crim. App. 2009)).
B. Discussion
Appellant asserts that the State’s witnesses had no “first-hand knowledge of
appellant’s alleged failure to report.” However, Edgar Espinoza testified that he became
appellant’s supervising probation officer in December of 2011 and remained in that
capacity through the day of revocation hearing. Espinoza testified that appellant did not
report to him from April through September of 2013 and that he received no
communications from appellant. Appellant later testified that he resided in Mexico during
part of that period. Even assuming that appellant was incarcerated in Cameron County
during August and September of 2013, appellant does not contest that he did not report
to his supervising officer from April to July of 2013.
We hold that the greater weight of the credible evidence produced by the State
could create a reasonable belief that appellant violated the conditions of his supervision
by failing to report to his supervision officer for a period of at least four months. See
Hacker, 389 S.W.3d at 865. Because even one violation of a condition of community
supervision will support a revocation order, see Norton, 434 S.W.3d at 773, we will not
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address the other grounds for revocation. See TEX. R. APP. P. 47.1. We accordingly
overrule appellant’s second issue.
IV. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
19th day of February, 2015.
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