Opinion filed October 15, 2015




                                       In The


        Eleventh Court of Appeals
                                     __________

                                 No. 11-13-00322-CR
                                     __________

                    OSIEL JOSE ALVAREZ, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 161st District Court
                                 Ector County, Texas
                          Trial Court Cause No. B-41,501


                      MEMORANDUM OPINION
      Osiel Jose Alvarez appeals the trial court’s judgment adjudicating guilt for
aggravated assault with a deadly weapon. In three issues on appeal, Appellant
asserts the following: (1) the trial court erred in assessing a $12,500 fine for a
second-degree felony; (2) the trial court erred in allowing a detective to offer an out-
of-court statement made to him during the course of his investigation; and (3) the
evidence was legally insufficient to support the trial court’s finding that he evaded
law enforcement. We modify the judgment of the trial court to reflect a fine of
$10,000 and, as modified, affirm.
                                Background Facts
      In January of 2013, Appellant was indicted on four counts of aggravated
assault with a deadly weapon. On July 15, 2013, pursuant to a plea agreement,
Appellant was placed on deferred adjudication community supervision for ten years
and was ordered to pay a fine of $2,500. The State subsequently filed a motion to
adjudicate guilt that alleged two violations of the terms of Appellant’s community
supervision: (1) that Appellant committed the offense of credit card abuse on
August 1, 2013, and (2) that Appellant committed the offense of evading arrest or
detention on August 1, 2013. The trial court conducted a revocation hearing on
September 23, 2013, and found both of the State’s allegations to be true.
      At the adjudication hearing, Detective Randy Vest of the Odessa Police
Department testified that, on August 1, 2013, he was informed of a robbery at an
H.E.B. and that the victim’s credit cards had been stolen. Detective Vest learned
that the stolen credit cards had been used multiple times following the robbery and,
by speaking with employees at the stores where the cards were used, obtained a
description of the two suspects: a Hispanic male wearing a striped shirt and a
Hispanic female wearing a purple shirt.
      One of the credit cards was used at a GameStop store. Detective Vest
contacted the GameStop store in advance of arriving there to conduct his
investigation. He received a call back from an employee of the GameStop store to
alert him that the couple who had used the credit card had returned to the store and
were trying to return merchandise.
      Officer Paul Hurley of the Odessa Police Department arrived at the GameStop
store in uniform while the suspects were still inside the store. At least two other
officers in uniform arrived at the scene in marked patrol cars. Officer Hurley
                                          2
testified that the suspects came outside the store, at which time he instructed them
to go back inside the store.
      The male suspect asked a GameStop employee, “[W]hy did you call the
cops?” Then the couple fled through the back door. Officer Hurley gave chase and
yelled, “[S]top, police!” but was unsuccessful in apprehending the couple. Video
surveillance footage captured by GameStop security cameras corroborated the
officer’s testimony regarding Appellant’s escape, as did a GameStop employee who
positively identified Appellant at the hearing.
      Subsequent to Appellant’s escape from the GameStop store, Detective Vest
questioned Amelio Acosta, a passenger in a vehicle parked in front of the GameStop
store. Detective Vest testified that Acosta informed him that the man fleeing through
the back of the store was “Osiel.” Appellant objected, alleging that the testimony
constituted hearsay and that it violated his right to confront and cross-examine
Acosta. The trial court overruled Appellant’s objection. Following the incident at
the GameStop store, officers secured an arrest warrant, leading to the eventual arrest
of Appellant.
      The trial court found the allegations of evading arrest or detention and credit
card abuse to be true and adjudicated Appellant guilty of the offense of aggravated
assault with a deadly weapon. The trial court sentenced Appellant to confinement
in the Institutional Division of the Texas Department of Criminal Justice for a term
of twenty years and assessed a $10,000 fine in open court. However, the written
judgment adjudicating guilt reflects a fine of $12,500.
                                       Analysis
      In his first issue, Appellant asserts that the trial court erred in assessing a fine
of $12,500 for aggravated assault with a deadly weapon, a second-degree felony,
because the maximum fine for a second-degree felony is $10,000. See TEX. PENAL
CODE ANN. §§ 12.33(b), 22.02 (West 2011). The State agrees that the maximum
                                           3
applicable fine was $10,000 and that the judgment should be modified. However,
the parties disagree on the appropriate amount of the fine to be assessed in the
modified judgment. Appellant contends that the new fine amount should be $2,500,
based upon the fine assessed in the original judgment placing Appellant on deferred
adjudication. The State contends that the new fine amount should be $10,000, based
upon the trial court’s oral pronouncement at the hearing on the motion to adjudicate
guilt. We agree with the State’s contention.
      The State cites Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004),
for the proposition that, “when an accused receives deferred adjudication, no
sentence is imposed. Then, when guilt is adjudicated, the order adjudicating guilt
sets aside the order deferring adjudication, including the previously imposed fine.”
Pursuant to Taylor, the fine of $2,500 previously imposed by the trial court in this
case was set aside when the trial court subsequently adjudicated Appellant’s guilt.
See id.
      At the conclusion of the hearing adjudicating Appellant’s guilt, the trial court
orally pronounced a fine of $10,000. When there is a variation between the oral
pronouncement of the sentence and the written memorialization of the sentence, the
oral pronouncement controls. Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim.
App. 1998). We sustain Appellant’s first issue in part. We modify the judgment
adjudicating guilt to impose a fine of $10,000. See TEX. R. APP. P. 43.2(b).
      In his second issue, Appellant asserts that the trial court erred in allowing
Detective Vest to testify regarding how he obtained Appellant’s name from the
person sitting inside the vehicle parked in front of the GameStop store. The
challenged testimony occurred during the following exchange between the
prosecutor and Detective Vest on direct examination:

              Q: Okay. I am sorry. I called him the driver. What happened
      then?

                                          4
              A: While interviewing Acosta, while the officers are out looking
       for the actors, according to the GameStop employees, the people that
       were inside took off running out the back doors.
               Q: Okay.
             A: I stayed there with Acosta, who I had detained. I interviewed
       Acosta and he gave the name of Osiel.
Appellant objected to Detective Vest’s response on the basis that Acosta’s statement
to him identifying Appellant constituted hearsay and violated his constitutional
rights of confrontation.1 Appellant presents these same contentions in his second
issue. After the trial court overruled Appellant’s objection, Detective Vest testified
that Acosta identified Appellant by name.
       As noted previously, Appellant cited both the United States Constitution and
the Texas constitution in making his objection to the trial court on confrontation
grounds. However, he has not asserted that the state provision in Article I, section 10
provides any greater protection than its federal counterpart. Therefore, we analyze
his appellate claim based solely upon the United States Constitution. See Lagronev.
State, 942 S.W.2d 602, 612 (Tex. Crim. App. 1997). We review a trial court’s
evidentiary ruling on a Confrontation Clause objection de novo. Wall v. State, 184
S.W.3d 730, 742 (Tex. Crim. App. 2006).
       The Confrontation Clause by its own terms applies only to “criminal
prosecutions.” U.S. CONST. amend VI. We held in Mauro v. State that a proceeding
to adjudicate guilt in the deferred adjudication context is not a phase of “criminal
prosecution” for the purpose of the Sixth Amendment. 235 S.W.3d 374, 376 (Tex.
App.—Eastland 2007, pet. ref’d). In this regard, the issue of a defendant’s guilt for
the offense is determined in the initial plea proceedings, and the only issue to be


       1
         Appellant cited both the Sixth Amendment to the United States Constitution and Article I,
section 10 of the Texas constitution in his objection.

                                                5
determined in the revocation proceedings is whether to proceed with an adjudication
of guilt. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West Supp. 2014).
The underlying proceeding to consider the State’s motion to adjudicate Appellant’s
guilt was not a phase of criminal prosecution for purposes of the Sixth Amendment.
Accordingly, the trial court did not err in overruling Appellant’s objection under the
Confrontation Clause. Mauro, 235 S.W.3d at 376.
      Appellant also objected to Detective Vest’s testimony on hearsay grounds.
We review a trial court’s decision to admit or exclude evidence under an abuse of
discretion standard. Wall, 184 S.W.3d at 743. A trial court abuses its discretion
only if its decision “lies outside the zone of reasonable disagreement.” Martinez v.
State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). We consider the ruling in light
of what was before the trial court at the time the ruling was made and uphold the
trial court’s decision if it lies within the zone of reasonable disagreement.
Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009).
      Hearsay is a statement, other than one made by the declarant while testifying
at trial, that is offered to prove the truth of the matter asserted. TEX. R. EVID. 801(d).
A statement not offered to prove the truth of the matter asserted is not hearsay.
Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995). The State may offer
out-of-court statements into evidence without violating the hearsay rule to explain
why the defendant became the subject of the investigation by law enforcement
officials. Id. Extrajudicial statements of this type are not inadmissible hearsay
because they are not admitted to prove the truth of the matter asserted. Id. Detective
Vest provided Acosta’s name as part of his explanation of how Appellant became a
suspect in the case. Accordingly, the trial court did not err in overruling Appellant’s
hearsay objection.
      Moreover, even if the trial court had erred in overruling Appellant’s
Confrontation Clause and hearsay objections, such errors are subject to a harm
                                            6
analysis. See TEX. R. APP. P. 44.2; Rubio v. State, 241 S.W.3d 1, 3 (Tex. Crim. App.
2007) (“[A]ny Confrontation Clause violation, once proven, is subject to harmless
error analysis.”); Clay v. State, 240 S.W.3d 895, 905–06 (Tex. Crim. App. 2007)
(conducting harmless error analysis on hearsay). When a trial court erroneously
admits hearsay, but the matter asserted by the out-of-court statement is otherwise
established through other admitted evidence, no harm is done to the party
challenging the hearsay. See Clay, 240 S.W.3d at 905–06 (holding that erroneously
admitted hearsay “established little, if anything, negative about appellant that was
not also well established by the properly admitted evidence” and was therefore
harmless). The same rule applies with respect to evidence elicited in violation of the
Confrontation Clause. See Davis v. State, 203 S.W.3d 845, 853–56 (Tex. Crim. App.
2006) (observing that testimony admitted in violation of the Confrontation Clause
was cumulative of other admitted evidence and that any error was harmless beyond
a reasonable doubt). Acosta’s out-of-court statement identifying “Osiel” as the
person who exited through the back of the GameStop store was cumulative of, and
corroborated by, the GameStop surveillance video showing Appellant fleeing
through the back door. Additionally, a GameStop employee identified Appellant as
the person who fled the store, and officers at the scene positively identified Appellant
at trial as the man who fled the store. Therefore, no harm occurred from the
admission of Acosta’s out-of-court statement. We overrule Appellant’s second
issue.
         In his third issue, Appellant asserts that the evidence was legally insufficient
to support the trial court’s finding that he evaded law enforcement and, thus, violated
a term of his community supervision. A trial court’s decision to revoke community
supervision is reviewed for an abuse of discretion. Rickels v. State, 202 S.W.3d 759,
763 (Tex. Crim. App. 2006). At a revocation hearing, the State has the burden to
show by a preponderance of the evidence that the defendant committed a violation
                                             7
of the conditions of his community supervision. Id. at 763–64; Cobb v. State, 851
S.W.2d 871, 873 (Tex. Crim. App. 1993). If the State fails to meet its burden of
proof, the trial court abuses its discretion if it revokes the community supervision.
Cardona v. State, 665 S.W.2d 492, 493–94 (Tex. Crim. App. 1984). The trial court
is the sole judge of the credibility of the witnesses and the weight given to their
testimony, and we review the evidence in the light most favorable to the trial court’s
ruling. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981).
      Appellant does not challenge the “true” finding on the charge of credit card
abuse. When more than one violation of the terms of community supervision is
found by the trial court, we will affirm the order revoking community supervision if
the State proved any violation by a preponderance of the evidence. Smith v. State,
286 S.W.3d 333, 342 (Tex. Crim. App. 2009) (“We have long held that ‘one
sufficient ground for revocation would support the trial court’s order revoking’
community supervision.” (quoting Jones v. State, 571 S.W.2d 191, 193 (Tex. Crim.
App. [Panel Op.] 1978)). The trial court’s judgment should be affirmed if the
appellant does not challenge all of the grounds on which the trial court revoked
community supervision. Joseph v. State, 3 S.W.3d 627, 640 (Tex. App.—Houston
[14th Dist.] 1999, no pet.) (“Thus, in order to prevail, appellant must successfully
challenge all the findings that support the revocation order.”). Accordingly, we do
not address Appellant’s third issue challenging the evidence supporting the State’s
ground that he evaded law enforcement because we would still be required to affirm
the trial court’s judgment adjudicating guilt based upon the unchallenged finding of
“true” for credit card abuse. Id.




                                          8
                                   This Court’s Ruling
      We modify the trial court’s judgment adjudicating guilt to reflect the
imposition of a fine in the amount of $10,000.           As modified, the judgment
adjudicating guilt is affirmed.




                                                     JOHN M. BAILEY
                                                     JUSTICE


October 15, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                            9
