Opinion issued September 4, 2014.




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00955-CR
                           ———————————
                    JULIO GARCIA JIMENEZ, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                    On Appeal from the 10th District Court
                          Galveston County, Texas
                       Trial Court Case No. 09CR1846


                                  OPINION

      After finding that Julio Garcia Jimenez violated the terms of his deferred–

adjudication community supervision by illegally re–entering the United States, the

trial court adjudicated him guilty of aggravated sexual assault of a child and

assessed his punishment at eight years’ imprisonment. The trial court also assessed
$643.50 in attorney’s fees against Jimenez. On appeal, Jimenez contends that the

trial court erred in (1) admitting a custodial statement that he had made to his

community supervision officer; and (2) failing to order a presentence investigation.

Jimenez further contends that (3) insufficient evidence supports the trial court’s

finding that Jimenez illegally re–entered the United States; and (4) the judgment

should be modified to delete the assessment of attorney’s fees. The State agrees

with Jimenez on issue (4) but disagrees with Jimenez on issues (1), (2), and (3).

We modify the trial court’s judgment to delete the award for attorney’s fees and

affirm the judgment as modified.

                                   Background

      In November 2010, Jimenez pleaded guilty to aggravated sexual assault of a

child stemming from a 2008 incident involving a thirteen–year–old girl.           A

community supervision officer conducted a presentencing investigation. The trial

court deferred adjudication and placed Jimenez on ten years’ community

supervision. The following month, Jimenez was deported to Mexico.

      In January 2011, Jimenez illegally re–entered the United States.           In

September 2011, a federal district court convicted Jimenez of illegal re–entry,

assessed his punishment at thirty–three months’ imprisonment, and recommended

that he be imprisoned in or near Missouri.




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      In June 2011, the State moved to adjudicate guilt and to revoke Jimenez’s

community supervision.       The State alleged that Jimenez had violated his

community supervision agreement by illegally re–entering the United States. In

May 2013, the Galveston County Sheriff’s Office transferred Jimenez from a

federal prison in Greenville, Illinois to a state prison in Galveston County, Texas.

      In June 2013, Karen Saunders, Jimenez’s community supervision officer,

interviewed Jimenez pursuant to her obligation as his community supervision

officer to meet with him every three months. Saunders did not warn Jimenez

pursuant to article 38.22 of the Code of Criminal Procedure and Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). See TEX. CODE CRIM. PROC. ANN.

art. 38.22, §§ 2(a), 3(a)(2) (West 2005). In response to a series of questions listed

in a one–page “Probationer’s Monthly Report,” Jimenez wrote: “I was deported. I

was caught by the river.” Three months later, Saunders interviewed Jimenez again,

and Jimenez completed the same form.

      Course of proceedings

      During the revocation hearing’s guilt–innocence phase, the trial court

admitted Jimenez’s statement to Saunders over Jimenez’s objection. The trial

court found the State’s allegation that Jimenez illegally re–entered the United

States to be true and granted the State’s motion to adjudicate Jimenez guilty of

aggravated sexual assault of a child.


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      Before the punishment hearing, Jimenez requested a presentence

investigation. The trial court implicitly denied Jimenez’s request. The trial court

assessed his punishment at eight years’ imprisonment.

                                     Discussion

I.    Admission of evidence

      Jimenez contends that article 38.22 of the Code of Criminal Procedure and

the Fifth Amendment of the U.S. Constitution bar the admission of his written

statement to his community supervision officer, because he gave it during a

custodial interrogation without having received the requisite warnings. Jimenez

also contends that his Sixth Amendment right to counsel bars the admission of his

statement, because the interview with the community supervision officer was a

“critical stage” of a criminal proceeding.

      Assuming, without deciding, that the admission of this written statement

violated article 38.22, the Fifth Amendment, and the Sixth Amendment, we

conclude that the trial court’s failure to suppress the statement was harmless error.

Reversal is required unless we can determine, beyond a reasonable doubt, that the

failure to suppress Jimenez’s statement did not contribute to his adjudication of

guilt. See Jones v. State, 119 S.W.3d 766, 777 (Tex. Crim. App. 2003); TEX. R.

APP. P. 44.2(a). We must “judge the magnitude of the error in light of the evidence

as a whole to determine the degree of prejudice to the defendant resulting from that


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error.” Jones, 119 S.W.3d at 777 (quoting United States v. Polanco, 93 F.3d 555,

562–63 (9th Cir. 1996)) (internal quotation omitted). If there is a reasonable

likelihood that the error materially affected the judge’s deliberations, the error was

not harmless. See id. We must “calculate, as nearly as possible, the probable

impact of the error . . . in light of the other evidence.” McCarthy v. State, 65

S.W.3d 47, 55 (Tex. Crim. App. 2001), quoted in Jones, 119 S.W.3d at 777. If the

State proffers abundant admissible evidence of a defendant’s guilt, then we may

find, beyond a reasonable doubt, that the improperly admitted statement did not

contribute to a defendant’s adjudication of guilt. See Akins v. State, 202 S.W.3d

879, 892 (Tex. App.—Fort Worth 2006, pet. ref’d) (holding that overwhelming

evidence of element of crime rendered Miranda error harmless when improperly

admitted statement went to same element); Jordy v. State, 969 S.W.2d 528, 533

(Tex. App.—Fort Worth 1998, no pet.) (same); In re J.T.M., No. 08-12-00102-CV,

2014 WL 949949, at *7 (Tex. App.—El Paso Mar. 12, 2014, no pet.) (applying

similar rule in plea bargaining context).

      In this case, Jimenez challenges the admission of his response to a series of

questions listed in a one–page “Probationer’s Monthly Report.” There, he wrote:

“I was deported. I was caught by the river.” But, at the revocation hearing, the

State proffered, without objection, a federal district court judgment of conviction

against Jimenez for illegally re–entering the country. Saunders also testified that


                                            5
Jimenez illegally re–entered the United States on January 6, 2011, was convicted

of that crime in federal court, and was sentenced to thirty–three months’

imprisonment. Jimenez’s stepfather similarly testified that Jimenez was arrested

for illegal re–entry “in a town in the border,” and Jimenez’s mother testified that

Jimenez was arrested by the federal government “close to the river.” Given the

abundant evidence of Jimenez’s illegal re–entry, we find, beyond a reasonable

doubt, that any error in failing to suppress Jimenez’s statement did not contribute

to the adjudication of his guilt; accordingly, it was harmless. See Jones, 119

S.W.3d at 777; Akins, 202 S.W.3d at 892; Jordy, 969 S.W.2d at 533; J.T.M., 2014

WL 949949, at *7; TEX. R. APP. P. 44.2(a).

II.   Sufficiency of the evidence

      Jimenez further contends that legally insufficient evidence supports the trial

court’s finding that he violated a condition of his community supervision

agreement by illegally re–entering the United States.

      Standard of review

      To revoke community supervision, the State must prove that a defendant

violated a condition of the community supervision agreement by a preponderance

of the evidence. Hacker v. State, 389 S.W.3d. 860, 864–65 (Tex. Crim. App.

2013). 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


                                         6
has violated a condition of his [community supervision agreement].” Rickels v.

State, 202 S.W.3d 759, 764 (Tex. 2006), quoted in Hacker, 389 S.W.3d at 865.

Evidence is legally sufficient when it is “more than a scintilla” but not when “the

evidence offered to prove a vital fact is so weak as to do no more than create a

mere surmise or suspicion of its existence.” Hacker, 389 S.W.3d at 865 (quoting

Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010)) (internal quotation omitted).

      Analysis

      To establish that a defendant has been convicted of a prior offense, the State

must prove that (1) a prior conviction exists; and (2) the defendant is linked to that

conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). The

State may prove both of these elements in multiple ways, including (1) a

defendant’s admission or stipulation; (2) testimony by a person who was present

when the person was convicted of the specified crime and who can identify the

defendant as that person; or (3) documentary proof, such as a judgment, that

contains sufficient information to establish the existence of a prior conviction and

the defendant’s identity as the person convicted. Id. at 921–22; see also Littles v.

State, 726 S.W.2d 26, 28 (Tex. Crim. App. 1984).

      The State proffered, without objection, a federal district court judgment

against “Julio Cesar Jimenez–Garcia” for illegally re–entering the country. The

State showed that “Julio Jimenez–Garcia” is one of Jimenez’s aliases. Jimenez’s


                                          7
mother testified that Jimenez’s full name is “Julio Cesear Jimenez Garcia.”

Saunders testified that Jimenez illegally re–entered the United States on January 6,

2011, was convicted of that crime in federal court, and was sentenced to thirty–

three months’ imprisonment. Jimenez’s mother also testified that Jimenez was

arrested by the federal government “close to the river.” Jimenez’s stepfather

testified that Jimenez was arrested for illegal re–entry “in a town in the border.” In

the judgment, the federal district court recommended that the defendant be

imprisoned in or near Missouri. The Galveston County Sheriff’s Office arrested

Jimenez in a federal prison in Greenville, Illinois, approximately fifty miles from

St. Louis, Missouri.1 A Galveston County police officer identified Jimenez as the

inmate transferred from Greenville, Illinois.       We hold that legally sufficient

evidence established Jimenez’s conviction for illegal re–entry.          Because any

violation of state or federal law is a breach of Jimenez’s community supervision

agreement, we hold that legally sufficient evidence supports the trial court’s

finding that Jimenez violated a condition of that agreement.




1
      We take judicial notice of the fact that Greenville, Illinois is approximately
      fifty miles from St. Louis, Missouri. See Volosen v. State, 227 S.W.3d 77,
      81 (Tex. Crim. App. 2007) (“Where a matter is appropriately subject to
      judicial notice, an appellate court can take judicial notice for the first time on
      appeal.”).
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III.   Presentence Investigation

       Preservation of error

       To preserve error for appellate review, a complaint must be made to the trial

court “by a timely request, objection, or motion that . . . states[s] the grounds for

the ruling that the complaining party sought from the trial court with sufficient

specificity to make the trial court aware of the complaint, unless the specific

grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A). The

record also must show that the trial court either “ruled on the request, objection, or

motion, either expressly or implicitly” or “refused to rule on the request, objection,

or motion, and the complaining party objected to the refusal.” TEX. R. APP.

P. 33.1(a)(2)(A), (B). A complaint must “simply be clear enough to provide the

judge and the opposing party an opportunity to address and, if necessary, correct

the purported error.” Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011)

(citing Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009)).

       Before the punishment hearing, Jimenez’s counsel stated: “[B]efore we get

[to the punishment hearing], I would request—so, I don’t want to waive it now—I

would request that a PSI be conducted.”        After Jimenez’s counsel stated the

grounds for his request, the trial court concluded: “I don’t see anything to be

gained by putting [the punishment hearing] off . . . So, let’s go forward with any

evidence. If at the end of that time I feel there’s a need for something further, I


                                          9
will give you the opportunity to produce something.” Jimenez’s counsel timely

conveyed a specific request for a presentence investigation and stated the grounds

for his request. The trial court implicitly denied Jimenez’s request by proceeding

with the punishment hearing.

      The State contends that Jimenez did not properly object. But no “magic

words” are necessary. See id. Because the trial court implicitly denied Jimenez’s

timely, specific request for a presentence investigation, we hold that Jimenez has

preserved this issue for review. See id.

      Standard of review

      Statutory construction is a question of law that we review de novo. Boston

v. State, 410 S.W.3d 321, 325 (Tex. Crim. App. 2013); Druery v. State, 412

S.W.3d 523, 533 (Tex. Crim. App. 2013).

      Analysis

      Article 42.12, section 9 of the Texas Code of Criminal Procedure generally

requires that the trial court direct a community supervision officer to conduct a

presentence investigation. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9(a) (West

2006).   In a felony case, however, a trial judge is not required to order a

presentence investigation if one of the following exceptions applies:

      (1)    punishment is to be assessed by a jury;

      (2)    the defendant is convicted of or enters a plea of guilty or nolo
             contendere to capital murder;
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      (3)    the only available punishment is imprisonment; or

      (4)    the judge is informed that a plea bargain agreement exists, under
             which the defendant agrees to a punishment of imprisonment, and the
             judge intends to follow the agreement.

Id. § 9(g). 2 Here, the only exception that could apply is (g)(3), whether the only

available punishment is imprisonment.

      The trial court adjudicated Jimenez guilty of aggravated sexual assault of a

child. See TEX. PENAL CODE. ANN. § 22.021 (West 2011). A trial judge may not

order regular community supervision if the defendant is adjudged guilty of

aggravated sexual assault under section 22.021 of the Penal Code. TEX. CODE

CRIM. PROC. ANN. art. 42.12, § 3g(a)(1)(E). A trial judge also may not order shock

community supervision if the defendant is ineligible for regular judge–ordered

community supervision. See id. § 6(a)(1); State v. Posey, 330 S.W.3d 311, 315

(Tex. Crim. App. 2011); State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App.

2009). Because imprisonment was the only punishment option, we hold that the

trial judge did not err in failing to order a section 9 presentence investigation. Id.

§ 9(g)(3); see also Skinner v. State, No. 06-00-00184-CR, 2001 WL 193882, at *2


2
      We note that the holding in Whitelaw v. State, 29 S.W.3d 129, 134 (Tex.
      Crim. App. 2000), has been superseded by statute. See Act of Sept. 1, 2005,
      79th Leg., R.S., ch. 500, § 1, art. 42.12, sec. 9(g), 2005 Tex. Gen. Laws
      1374 (amended 2005) (current version at TEX. CODE CRIM. PROC. ANN.
      art. 42.12, § 9(g) (West. 2006)) (deleting “[u]nless requested by the
      defendant” language).
                                         11
(Tex. App.—Texarkana Feb. 27, 2001, no pet.) (mem. op., not designated for

publication) (holding that defendant, whom trial court had adjudicated guilty of

aggravated sexual assault after defendant had violated community supervision

agreement, was ineligible for judge–ordered community supervision and thus fit

within section 9(g)(3) exception).

      Jimenez further contends that the trial court erred in failing to order a

presentence investigation under section 9A, which applies to sex offenders; that

provision requires that the trial court direct a community supervision officer “to

evaluate the appropriateness of, and a course of conduct necessary for, treatment,

specialized supervision, or rehabilitation of the defendant.” TEX. CODE CRIM.

PROC. ANN. art. 42.12, § 9A(c).         Although Jimenez’s counsel requested a

presentence investigation, Jimenez’s counsel never specifically requested a

section 9A presentence investigation, nor did he mention the separate presentence

investigation requirement for sex offenders. Because Jimenez did not make the

trial court aware of this specific complaint, we hold that Jimenez has failed to

preserve   error   on   this   issue.    See   TEX. R. APP. P.        33.1(a);   cf.

Nguyen v. State, 222 S.W.3d 537, 541 (Tex. App.—Houston [14th Dist.] 2007, pet.

ref’d) (holding that right to section 9 presentence investigation is forfeitable by

inaction); Wright v. State, 873 S.W.2d 77, 83 (Tex. App.—Dallas 1994, pet. ref’d)

(same).


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                                    Conclusion

      Because we find, beyond a reasonable doubt, that the failure to suppress

Jimenez’s statement did not contribute to his adjudication of guilt, we hold that any

error in its admission was harmless. We also hold that legally sufficient evidence

supports the trial court’s finding that Jimenez violated a condition of the

community supervision agreement. We further hold that the trial judge did not err

in failing to order a section 9 presentence investigation. But, based on the State’s

agreement that the fee assessment was in error, we modify the judgment to delete

the assessment of $643.50 in attorney’s fees against Jimenez. Accordingly, we

affirm the judgment as modified.




                                              Jane Bland
                                              Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Publish. See TEX. R. APP. P. 47.2(b).




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