COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-037-CR
GUILLERMO ZUNIGA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In three points, Appellant Guillermo Zuniga asserts that the trial court
abused its discretion by failing to require the State to plead the allegations
contained in its first amended petition to proceed to adjudication (the “Petition”)
with more specificity and by revoking Zuniga’s community supervision because
1
See Tex. R. App. P. 47.4.
the evidence was legally and factually insufficient to support the trial court’s
decision to proceed to adjudication. We affirm.
II. Factual and Procedural History
In January 2002, the State indicted Zuniga for two counts of indecency
with a child and one count of injury to a child causing bodily injury. 2 Zuniga
pleaded guilty to injury to a child. See Tex. Penal Code Ann. § 22.04(a)(3)
(Vernon Supp. 2009). On October 17, 2002, in accordance with Zuniga’s plea
bargain agreement, the trial court sentenced him to five years’ deferred
adjudication community supervision.
In September 2008, the State filed the Petition, alleging four violations:
1. SEX OFFENDER TREATMENT: The Defendant was ordered by
the court on January 25, 2006 to complete sex offender treatment
goals by June 30, 2007.
In violation of said condition the Defendant failed
to complete sex offender treatment goals by June 30,
2007 as ordered by the court on or about January 25,
2006.
2. SEX OFFENDER TREATMENT: The Defendant was ordered by
the court on October 22, 2007 to complete sex offender treatment
no later than August 30, 2008.
2
The indecency allegations were that he engaged in sexual contact by
touching the genitals and the breast of a child younger than seventeen years.
See Tex. Penal Code Ann. § 21.11(a)(1), (c) (Vernon Supp. 2009). The State
apparently waived these counts upon Zuniga’s guilty plea to injury to a child.
2
In violation of said condition the Defendant failed
to complete sex offender treatment no later than
August 30, 2008 as ordered by the court on or about
October 22, 2007.
3. SEX OFFENDER TREATMENT GOALS: The Defendant was
ordered by the court on January 25, 2006 to submit one sex
offender treatment goal for approval to the sex offender treatment
provider per month.
In violation of said condition the Defendant failed
to submit one sex offender treatment goal to the sex
offender treatment provider per month for the following
months: MAY, JUNE, AUGUST, OCTOBER,
DECEMBER 2006; MARCH AND MAY 2007.
4. SEX OFFENDER TREATMENT ATTENDANCE: The Defendant
was ordered to attend and participate fully in and successfully
complete psychological counseling/treatment sessions (including
aftercare) for sex offenders with an individual or organization which
provides sex offender treatment or counseling as specified by or
approved by the judge or the supervision officer.
In violation of this condition, the defendant failed
to attend his scheduled appointment with Michael
Strain on or about September 1, 2008, and failed to
schedule and complete a make up session.
The trial court found the allegations in the Petition true, found Zuniga guilty of
injury to a child causing bodily injury, and sentenced him to five years’
confinement. This appeal followed.
III. Standard of Review
We review an order revoking community supervision under an abuse of
discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.
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1984); Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007,
pet. ref’d).
IV. Pleading
In his first point, Zuniga alleges that the trial court abused its discretion
by failing to require the State to plead with more specificity the allegations in
the Petition. He complains that “major portions of the State’s Petition to
Proceed to Adjudication were so overly broad, vague, and ambiguous, such that
defense counsel was unable to understand and adequately prepare Appellant’s
defense.”
All motions to set aside an indictment or information and all special pleas
and exceptions shall be in writing. See Tex. Code Crim. Proc. Ann. art. 27.10
(Vernon 2006); see Dempsey v. State, 496 S.W.2d 49, 52 & n.1 (Tex. Crim.
App. 1973) (referencing article 27.10 with regard to motions to deny a State’s
motion to revoke probation). And they must be timely. See Longoria v. State,
624 S.W.2d 582, 584 (Tex. Crim. App. 1981) (holding that the trial court did
not abuse its discretion by denying appellant’s motion to dismiss State’s motion
to revoke when appellant, who contended that the allegations in the State’s
motion to revoke probation were insufficient to put him on notice, announced
ready, entered a plea of not true, and then made the oral motion to dismiss for
lack of specificity); Dempsey, 496 S.W.2d at 52 (“Appellant’s counsel had
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been appointed more than a month prior to the hearing and no motion directed
to the State’s pleading to revoke was voiced until after appellant had entered
his plea. Then such objection was made orally. Under the foregoing
circumstances, we decline to hold that the court abused its discretion in
overruling appellant’s motion to deny or quash the State’s motion to revoke.”);
cf. Whitehead v. State, 556 S.W.2d 802, 807 & n.4 (Tex. Crim. App. 1977)
(concluding that the trial court erred by overruling appellant’s exception to the
motion to revoke when appellant raised the issue to the trial court before
proceedings began by filing a written notice to set aside the motion to revoke
and argued the motion before the revocation proceedings began).
Zuniga did not file a written motion to quash. At the hearing, he
announced ready. The trial court then read each allegation to him and asked
if he understood. Zuniga replied, “Yes,” and then pleaded “[n]ot true” to each
paragraph. After the trial court informed the State that it could proceed, Zuniga
objected to all four allegations “on the constitutional basis of vagueness.” He
renewed this objection after beginning his cross-examination of the State’s first
witness. 3 Under these circumstances—failure to file a written motion to quash
3
Zuniga’s counsel stated,
Okay. Your Honor, forgive me, I meant to object before I started
asking questions. The entire testimony of the probation officer was
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and failure to do so in a timely manner—the trial court did not abuse its
discretion by overruling Zuniga’s objection to the Petition. See Tex. Code Crim.
Proc. Ann. art. 27.10; Longoria, 624 S.W.2d at 584; Dempsey, 496 S.W.2d
at 52; see also Mendez v. State, No. 14-01-01270-CR, 2002 WL 31398811,
at *2 (Tex. App.—Houston [14th Dist.] Oct. 24, 2002, no pet.) (not designated
for publication) (“The proper method for challenging a motion to revoke is a
motion to quash . . . . If appellant did not receive full and fair notice of the
offense he would be called to defend, he should have filed a motion to
quash.”).
Furthermore, although Zuniga claims that the allegations were vague, the
evidence at trial rebuts this argument. As a condition of his community
supervision, Zuniga was ordered on January 25, 2006, to complete his sex
offender treatment goals by June 30, 2007, and he was ordered to submit one
sex offender treatment goal for approval each month to the sex offender
treatment provider. He later received an extension on October 22, 2007, to
about mysterious unarticulated goals that haven’t been satisfied.
Your Honor, I renew my constitutional objection to vagueness. I
still don’t have any clarity at all to defend Mr. Zuniga on just what
it is he didn’t do to the satisfaction of Mr. Strain, to be reported to
his secretary, to be reported to this officer, to be reported to you.
I think it is incredibly constitutionally incorrect for us to have this
hearing on these kind of allegations. The vagueness is off the
charts, Your Honor.
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complete his sex offender treatment by August 30, 2008. And he was ordered
to attend, fully participate in, and successfully complete “psychological
counseling/treatment sessions (including aftercare) for sex offenders.” The
Petition alleged that he failed to complete his sex offender treatment goals by
June 30, 2007; failed to complete sex offender treatment no later than August
30, 2008; failed to submit one sex offender treatment goal during five months
in 2006 and two months in 2007; and failed to attend a scheduled
psychological counseling/treatment session in September 2008.
Michael Strain, Zuniga’s psychotherapist, testified that he had often
reviewed the program’s goals and requirements with Zuniga and had given
Zuniga a written copy of all thirty goals in the early stages of the program.
State’s exhibit 1, which Strain described as “the most current copy of
[Zuniga’s] treatment plan tracking form[,] which shows the dates that he
completed each of the goals in our program,” was admitted without objection.
Strain testified,
[Zuniga’s] second week in treatment[,] I gave him a written
treatment plan which had each goal written out in Spanish. He had
that document the entire time of . . . his treatment. . . . And in
treatment other group members are working on similar goals, he
saw other people working on goals. We talked about them as he
would declare the work on a goal, we talked about what he needed
to do to do this, yes, he did understand.
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And Mary Tobar, Zuniga’s community supervision officer, testified that Zuniga
finally completed his sex offender treatment during the week of the revocation
hearing in 2009. We overrule Zuniga’s first point.
V. Legal and Factual Sufficiency
In his second and third points, Zuniga complains that the trial court
abused its discretion by revoking his community supervision because the
evidence was legally and factually insufficient to support the revocation and
decision to proceed to adjudication.
Initially, we note that this court has previously held that a factual
sufficiency review is inapplicable to revocation proceedings. See Cherry, 215
S.W.3d at 919 (declining to address Cherry’s factual sufficiency challenge to
revocation of her community supervision and listing cases holding same). We
decline Zuniga’s invitation to reconsider, and we overrule his third point.
With regard to legal sufficiency, the State has met its burden with respect
to evidence of revocation when the greater weight of the evidence creates a
reasonable belief of the necessary revocation elements. Allbright v. State, 13
S.W.3d 817, 818–19 (Tex. App.—Fort Worth 2000, pet. ref’d). In a
revocation proceeding, the State must prove by a preponderance of the
evidence that the defendant is the same individual who is named in the
judgment and order of community supervision and then must prove that the
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defendant violated a term of community supervision as alleged in the motion to
revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). The
trial court is the sole trier of fact and determines the credibility of the witnesses
and the weight to be given their testimony. Cherry, 215 S.W.3d at 919;
Allbright, 13 S.W.3d at 819. We review the evidence in the light most
favorable to the trial court’s ruling. Cardona, 665 S.W.2d at 493; Cherry, 215
S.W.3d at 919. If the State fails to meet its burden of proof, the trial court
abuses its discretion by revoking the community supervision. Cardona, 665
S.W.2d at 493–94. A finding of a single violation of community supervision
is sufficient to support revocation. Allbright, 13 S.W.3d at 819.
Tobar testified that one of the conditions of Zuniga’s community
supervision was to attend and complete sex offender counseling. She testified
that the deadline for this condition had been extended to allow Zuniga time to
complete his treatment; that she had informed Zuniga, on more than one
occasion, of this condition and the allotted time frame; and that Zuniga had
failed to complete his sex offender treatment program by the original deadline
(June 30, 2007) or the extended deadline (August 30, 2008). She testified
that he completed his sex offender treatment during the week of the revocation
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hearing—January 26, 2009. 4 In January 2006, his community supervision
conditions were amended to require him to complete at least one goal per
month. Tobar testified that Zuniga had failed to complete his sex offender
treatment program goals in 2006 in May, June, August, September, October,
and December, and in 2007 in March and May. She testified that Zuniga did
not attend a required sex offender counseling session in September 2008. As
of September 2008, Zuniga still had seven goals remaining, and as of December
2008, he still had two goals remaining.
Strain testified that Zuniga had failed to complete any goals related to his
sex offender treatment program in 2006 during May, June, August, October,
and December, and in 2007 during March and May and had failed to attend a
counseling session in September 2008. Because the counseling session was
a group session, it could not be made up.
Viewing this evidence in the light most favorable to the trial court’s ruling,
we cannot say that the trial court abused its discretion by revoking Zuniga’s
community supervision. We overrule Zuniga’s second point.
4
Tobar stated, “He was ordered to complete his sex offender treatment
and he was given a sex offender treatment plan at Mr. Strain’s office. . . . And
he did not complete the sex offender treatment plan . . . [u]ntil Monday of this
past week.”
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VI. Conclusion
Having overruled all of Zuniga’s points, we affirm the trial court’s
judgment.
BOB MCCOY
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 21, 2010
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Guillermo Zuniga v. State
Combined Opinion