Opinion issued November 21, 2012.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-01138-CR
———————————
DINESH KUMAR SHAH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Case No. 1040406
OPINION
Dinesh Kumar Shah appeals the trial court’s judgment revoking his
community supervision, adjudging him guilty of the felony offense of injury to a
child,1 and sentencing him to ten years’ confinement. In three issues, Shah
contends that (1) the evidence was insufficient to establish a violation of the terms
of his community supervision, (2) the trial court violated his constitutional rights
by considering hearsay evidence, and (3) the trial court abused its discretion by
failing to grant a continuance of the revocation hearing. We affirm.
Background
A grand jury indicted Shah for the felony offense of injury to a child after he
struck a child younger than fifteen years of age with his hand or pulled the child’s
hair or both. Pursuant to his guilty plea, Shah was granted deferred adjudication
and placed on community supervision. The terms of his community supervision
required Shah to, among other things, refrain from committing an offense against
the laws of Texas, maintain full-time employment and provide written verification
of such employment, notify his community supervision officer of any change of
residence within forty-eight hours, perform 500 hours community service at a rate
of no less than sixteen hours per month, submit to drug and alcohol testing, and
undergo a “psychological/psychiatric” evaluation. Approximately three and one
half years later, the State moved to adjudicate Shah’s guilt, alleging twelve
violations of these terms. The State abandoned four of the allegations before the
1
See TEX. PENAL CODE ANN. § 22.04 (West Supp. 2012).
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hearing on its motion to adjudicate, and Shah pleaded “not true” to the remaining
eight allegations.
Before the State called its first witness, Shah moved for a continuance of the
revocation hearing due to pain and drowsiness he was experiencing as a result of a
medical procedure performed four days earlier. In support of his request, Shah
offered a note from his doctor indicating a six-week recovery period. However, the
trial court denied Shah’s motion because the medical procedure Shah endured was
only a “day surgery,” Shah was not hospitalized, and the State’s motion to
adjudicate guilt had been pending for more than one year. Toward the end of the
first day of testimony, Shah fell asleep in court. His counsel renewed the
continuance request and stated that the hydrocodone Shah used to manage pain
was causing him to “doz[e] off.” The trial court recessed the proceedings for the
day without hearing further testimony in order to accommodate Shah.
When the parties convened the next morning, Shah’s counsel requested that
the revocation hearing be delayed further to give Shah more time to recover. The
trial court granted the request, in part, and excused the parties for two days. The
trial court ordered Shah not to take any pain medication that would cause
drowsiness once the hearing resumed. When the testimony continued two days
later, Shah did not immediately reurge his motion for continuance; instead, after a
full day of testimony and only shortly before the evening recess, Shah again
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expressed that he was in pain and needed additional time to recover. The trial court
refused to delay the hearing any further.
At the start of the third day of testimony, Shah offered a note from a doctor
(who was not his surgeon) who had examined Shah at home and concluded that,
“[d]ue to ongoing pain and the use of narcotic medications, [ ] Shah should not be
involved in making any serious decisions that could affect his or other’s well-
being.” The trial court observed for the record that Shah appeared alert, actively
participated, took notes, and conferred with counsel during the previous day’s
proceedings. Although the trial court ultimately denied Shah’s renewed request for
a continuance, the trial court agreed to work less intensely for the duration of the
hearing. Later that day, one of the prosecutors informed the trial court that she had
spoken with Shah’s doctor, who stated that Shah could fully participate in the
hearing so long as he did not take narcotic mediations. On the final day of
testimony, Shah once more moved for a continuance, and the trial court again
denied the motion.
After hearing testimony from six witnesses and considering all the evidence,
the trial court found six of the alleged violations of Shah’s community supervision
terms true. Specifically, the trial court found that Shah:
1. twice committed an act that would constitute the offense of
assault by causing bodily injury to J. Davidsson, a member of
Shah’s household;
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2. on eighteen occasions, failed to present his community
supervision officer with written verification of employment;
3. permitted three months to pass without notifying his
community supervision officer of a new residence despite
having been ordered to do so within forty-eight hours of
moving;
4. failed to perform community service at the court-ordered rate of
no less than sixteen hours per month;
5. failed to submit to an alcohol and drug evaluation by the court-
ordered date; and
6. failed to submit to “psychological/psychiatric” evaluation by
the court-ordered date.
The trial court entered a judgment adjudicating guilty pursuant to its findings, and
Shah timely appealed.
Sufficiency of the Evidence
In his first issue, Shah argues that the trial court abused its discretion in
revoking his community supervision because the State presented insufficient
evidence to support the trial court’s findings that Shah violated the terms of his
community supervision.
Our review of the trial court’s order revoking community supervision is
limited to determining whether the trial court abused its discretion. See Rickels v.
State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); see also Canseco v. State, 199
S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). When a trial
court finds several violations of community-supervision conditions, we will affirm
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the order revoking community supervision if the proof of any single allegation is
sufficient. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.]
1980); Canseco, 199 S.W.3d at 439; Greer v. State, 999 S.W.2d 484, 486 (Tex.
App.—Houston [14th Dist.] 1999, pet. ref’d).
In the proceeding to revoke community supervision, the burden of proof was
on the State to show by a preponderance of the evidence that Shah violated a
condition of community supervision as alleged in the motion to revoke. See Cobb
v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Cardona v. State, 665
S.W.2d 492, 493 (Tex. Crim. App. 1984). “Preponderance of the evidence” means
the greater weight and degree of credible evidence. See Rickels, 202 S.W.3d at
763−64. If the greater weight of credible evidence in this case created a reasonable
belief that Shah violated a condition of community supervision, the burden was
met. See In re T.R.S., 115 S.W.3d 318, 321 (Tex. App.—Texarkana 2003, no pet.)
(citing Martin v. State, 623 S.W.2d 391, 393 n.5 (Tex. Crim. App. [Panel Op.]
1981)). If the State failed to meet its burden, it was an abuse of discretion for the
trial court to issue a revocation order. Cardona, 665 S.W.2d at 493−94.
We view the evidence in the light most favorable to the trial court’s ruling.
See Johnson v. State, No. 07-11-00480-CR, 2012 WL 5392095, at *1 (Tex. App.—
Amarillo Nov. 5 2012, no pet. h.) (citing Cardona, 665 S.W.2d at 493). The trial
court was the sole judge of the facts, the credibility of the witnesses, and the
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weight to be given to the witnesses’ testimony. Canseco, 199 S.W.3d at 439;
Johnson v. State, 943 S.W.2d 83, 85 (Tex. App.―Houston [1st Dist.] 1997, no
writ). Reconciliation of conflicts and contradictions in the evidence was within the
province of the trial court, and such conflicts will not call for reversal if there was
enough credible testimony to support the conviction. See Cooks v. State, 844
S.W.2d 697, 708 (Tex. Crim. App. 1992).
We first consider whether there was sufficient evidence that Shah violated
the condition of his community supervision prohibiting him from violating any
laws of the State of Texas. The State alleged that Shah violated this condition by
committing the offense of assault against J. Davidsson. Shah assaulted Davidsson
if he intentionally, knowingly, or recklessly caused Davidsson bodily injury. See
TEX. PENAL CODE ANN. § 22.01(a)(1) (West 2011). To establish the elements of
assault, the State presented only Davidsson’s testimony. Davidsson, once a close
friend and roommate of Shah’s, explained how his relationship with Shah grew
increasingly tense over time. In one argument that occurred during the period of
Shah’s community supervision, Shah threatened to “beat [Davidsson] to the
ground,” head-butted Davidsson “extremely hard,” repeatedly slapped Davidsson
in the face, and pushed Davidsson into a wall. Davidsson further testified that
being head-butted by Shah caused the bridge of Davidsson’s nose to bleed.
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Shah argues that Davidsson’s testimony alone was insufficient to establish
an assault because (1) it did not establish that Davidsson suffered a “bodily injury,”
(2) there were no “photographs, no eye-witnesses, no audio or video recordings,
and certainly no forensic evidence that supported Davidsson’s claims” and (3)
other evidence suggested that, contrary to Davidsson’s testimony, the men had a
healthy relationship. With respect to the third point, Shah specifically references
certain notes and messages in which Davidsson expressed the fondness he felt for
Shah and his appreciation for Shah’s friendship. These notes and messages were
included inside of a birthday card given by Davidsson to Shah, two books gifted by
Davidsson to Shah, and a letter drafted by Davidsson for Shah.
We reject Shah’s complaints about the sufficiency of the State’s evidence.
First, the Penal Code defines “bodily injury” to mean “physical pain, illness, or any
impairment of physical condition.” TEX. PENAL CODE ANN. § 1.07(8) (West Supp.
2012). Under this broad definition, “[a]ny physical pain, however minor, will
suffice to establish bodily injury.” Garcia v. State, 367 S.W.3d 683, 688 (Tex.
Crim. App. 2012); see also Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App.
2009); Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). Because
“people of common intelligence understand pain and some of [its] natural causes,”
a factfinder may infer that a victim actually felt or suffered physical pain. Garcia,
367 S.W.3d at 688. Here, Davidsson did not expressly state that he experienced
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pain when Shah head-butted him, but he did testify that he bled from the bridge of
his nose. The trial court could reasonably infer that a lesion on the bridge of
Davidsson’s nose would cause physical pain. Thus, Davidsson’s testimony was
sufficient to establish bodily injury.
Moreover, the State was not required to offer the testimony of any additional
eyewitness or other audio, visual, or forensic evidence to establish the occurrence
of the assault. “The testimony of a single witness is sufficient to support a felony
conviction.” Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.]
2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006); see Davis v. State, 177
S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (affirming
conviction for aggravated robbery when central issue involved a single witness’s
credibility); Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971)
(upholding conviction for attempted murder where only one witness saw appellant
with gun). And to the extent Shah seeks to have this Court re-weigh Davidsson’s
in-court testimony against the written statements made by him in a birthday card,
inside the cover of two books, or in a letter, the Court will not oblige. The trial
court, as the sole trier of fact, determined Davidsson’s credibility and the weight to
be given his testimony. See Canseco, 199 S.W.3d at 439.
We hold instead that the trial court could reasonably find that the greater
weight of the credible evidence was that Shah violated at least one condition of
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community supervision by assaulting Davidsson. Because this alone is sufficient to
support the trial court’s order revoking Shah’s community supervision, we do not
consider whether the State presented sufficient evidence of the other alleged
violations. The trial court did not abuse its discretion in revoking Shah’s
community supervision, adjudging him guilty, and assessing punishment, and we
overrule Shah’s first issue. See Rickels, 202 S.W.3d at 763−64.
Constitutional Challenges
The State presented testimony from two community supervision officers to
establish violations of the community supervision terms requiring Shah to submit
to drug, alcohol, and mental health screening and to perform community service at
a certain rate. In his second issue, Shah argues that the trial court erred by
considering and weighing the community supervision officers’ testimony because
the testimony was based on statements from counseling service providers and
information recorded in Shah’s community supervision file, not on the community
supervision officers’ personal knowledge or personal observations. According to
Shah, the trial court’s reliance on such hearsay violated his constitutional
confrontation and due process rights.
Shah did not object to the admission of the community supervision officers’
testimony regarding statements from counseling service providers or information
contained in Shah’s community supervision file. To preserve error for appellate
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review, however, Shah was required to make a timely request, objection, or motion
in the trial court that stated the grounds for the ruling sought with sufficient
specificity to make the trial court aware of his complaint. See TEX. R. APP. P.
33.1(a)(1)(A); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002)
(observing that failure to object in timely and specific manner forfeits complaints
about admissibility of evidence). This is true even though the error of which Shah
now complains may concern his constitutional rights. See Saldano, 70 S.W.3d at
889; see also Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993)
(holding that defendant may forfeit constitutional errors at trial by failing to
properly object), overruled in part on other grounds, Cain v. State, 947 S.W.2d
262, 265 (Tex. Crim. App. 1999); Briggs v. State, 789 S.W.2d 918, 924 (Tex.
Crim. App. 1990) (holding that defendant waives right to confrontation and due
process by failing to object to admission of evidence at trial). Thus, because Shah
did not object to the community supervision officers’ testimony, we hold that Shah
has not preserved his complaint that the admission of their testimony violates his
confrontation and due process rights, and we overrule Shah’s second issue. See
Marin, 851 S.W.2d at 280 (“[A]n important consequence of a party’s failure to
petition enforcement of his forfeitable rights in the trial court is that no error
attends failure to enforce them and none is presented for review on appeal.”).
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Motion for Continuance
In his third issue, Shah argues that the trial court erred by refusing to grant a
continuance of the revocation hearing so that Shah could recover from a medical
procedure. Shah asserts that the pain and drowsiness he experienced as a result of
the medical procedure incapacitated him and rendered him unable to assist counsel
with the defense of the State’s motion to adjudicate.
We review a trial court’s denial of a motion for continuance for an abuse of
discretion. See Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996);
Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). An abuse of
discretion occurs when the trial court acts arbitrarily or unreasonably, without
reference to guiding rules or principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex.
Crim. App. 1993). To establish that the trial court abused its discretion by denying
the motion for continuance, Shah must show specific prejudice to his defense. See
Janecka, 937 S.W.2d at 468; see also Chance v. State, 528 S.W.2d 605, 607
(considering prejudice to defense resulting from defendant’s illness during trial).2
Examples of specific prejudice include unfair surprise, an inability to effectively
cross-examine the State’s witnesses, and the inability to elicit crucial testimony
from potential witnesses. See Janecka, 937 S.W.2d at 468.
2
See also Birmingham v. State, No. 11-97-00345-CR, 1999 WL 33743919, at *1
(Tex. App.—Eastland 1999, no pet.) (not designated for publication) (determining
that prejudice from denial of motion for continuance based on defendant’s
physical condition must be shown).
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Here, Shah only generally asserts that his defense of the State’s motion to
adjudicate was prejudiced by his inability to stay awake during the revocation
hearing. Neither his briefing in this Court nor the record itself, however,
establishes any specific prejudice from Shah’s physical condition. Although Shah
asserts that he “dozed off” throughout the revocation hearing, the record
memorializes only one specific instance occurring toward the end of the first day
of testimony. There, after Shah’s counsel observed that he needed to wake up
Shah, the trial court recessed the proceeding without hearing any further evidence.
And the trial court delayed the hearing for the next two days. Once the hearing
resumed, Shah continued to request additional time at either the beginning or the
end of each of the remaining days of testimony, but the record does not indicate
any further instances in which Shah fell asleep. To the contrary, the record reflects
the trial court’s observations that Shah appeared alert, actively participated, and
conferred with his counsel during the proceedings.
Shah does not allege that his counsel was unable to effectively cross-
examine any of the State’s witnesses; rather, Shah’s counsel developed and argued
relevant issues, made objections, and called one witness for the defense. Shah does
not explain what additional evidence could have been offered in his defense had he
been more alert during the hearing or assert that he himself would have testified.
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Shah’s bare assertion that his defense was prejudiced because he dozed off
during trial does not alone establish prejudice. We conclude that Shah failed to
show that his physical condition specifically affected his ability to assist his
attorney. Absent a showing of specific prejudice, we cannot hold that the trial court
abused its discretion in denying Shah’s requests that the revocation hearing be
postponed. Accordingly, we overrule Shah’s third issue.
Conclusion
Having overruled each of Shah’s issues on appeal, we affirm the judgment
of the trial court.
Harvey Brown
Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Publish. TEX. R. APP. P. 47.2(b).
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