                                                                                                            ACCEPTED
                                                                                                       13-15-00272-CR
                                                                                       THIRTEENTH COURT OF APPEALS
                                                                                              CORPUS CHRISTI, TEXAS
                                                                                                 10/28/2015 1:59:33 PM
                                                                                                      Dorian E. Ramirez
                                                                                                                 CLERK

                                Cause No. 13-15-00272-CR

                          IN THE COURT OF APPEALS       FILED IN
                                                 13th COURT OF APPEALS
                        FOR THE THIRTEENTH DISTRICT
                                              CORPUS CHRISTI/EDINBURG, TEXAS
                     AT CORPUS CHRISTI-EDINBURG,10/28/2015
                                                  TEXAS 1:59:33 PM
                                                                      DORIAN E. RAMIREZ
                                                                           Clerk
----------------------------------------------------------------------------------------------------
                        ALEJO DANIEL LUGO, APPELLANT
                                                 v.
                         THE STATE OF TEXAS, APPELLEE
----------------------------------------------------------------------------------------------------
               APPEAL OF JUDGMENT IN CAUSE NO. CR-2534-10-I
                  FROM THE 398TH JUDICIAL DISTRICT COURT
                             OF HIDALGO COUNTY, TEXAS
       THE HONORABLE JUDGE AIDA SALINAS FLORES, PRESIDING
----------------------------------------------------------------------------------------------------

                  BRIEF OF THE STATE OF TEXAS/APPELLEE

----------------------------------------------------------------------------------------------------
                                                  RICARDO RODRIGUEZ, JR.
                                                  Criminal District Attorney
                                                  Hidalgo County, Texas

                                                  GLENN W. DEVINO, ASSISTANT
                                                  Criminal District Attorney
                                                  Hidalgo County, Texas

                                                  HIDALGO COUNTY COURTHOUSE
                                                  Edinburg, TX 78539
                                                  Telephone #: (956) 318-2300
                                                  Facsimile #: (956) 380-0407
                                                  glenn.devino@da.co.hidalgo.tx.us
                                                  State Bar No. 24012525

                                                  ATTORNEYS FOR APPELLEE

ORAL ARGUMENT NOT REQUESTED
              IDENTIFICATION OF PARTIES AND COUNSEL

      APPELLEE certifies that the following is a complete list of the parties,

attorneys, and all other interested persons regarding this matter:

      APPELLANT in this case is ALEJO DANIEL LUGO.

      APPELLANT was represented in the trial court and now represented on

appeal by JONATHAN BALL, 6521 N. 10th Street, Suite F, McAllen, TX 78504.

      APPELLEE is the State of Texas, by and through RICARDO RODRIGUEZ

JR., Criminal District Attorney, Hidalgo County, TX.

      APPELLEE was represented in the trial court by RICARDO RODRIGUEZ

JR., Criminal District Attorney in and for Hidalgo County, Texas, 100 N. Closner,

3rd floor, Edinburg TX 78539, by his Assistant Criminal District Attorneys

Graciela Reyna and Michelle Puig, and is represented on appeal by his Assistant

Criminal District Attorney, Glenn W. Devino.




                                          2
                   NOTES AS TO THE FORM OF CITATION

A.) Citation to the Clerk’s Record will be to page number, e.g. CR 47 refers to
Page 47 of the Clerk’s Record.


B.) Citation to testimony in the Reporter’s Record will be to volume and page
numbers, e.g. ‘3 RR 56’ refers to page 56 of volume 3 of the Reporter’s Record.


C.) Citation to the State’s Exhibits will be to exhibit number, e.g. SX 39 refers to
State’s Exhibit number 39, found in the ‘exhibits’ volume within the Reporter’s
Record.


D.) Reference to the Brief of Appellant will be to page number, e.g. Brief of
Appellant, p. 9.




                                         3
                         NOTE AS TO ORAL ARGUMENT

Appellant requests oral argument. 1



The State of Texas respectfully submits that oral argument in the instant case

would not serve to enlighten the Court further or illuminate the issues in that,

because the facts and legal arguments are adequately presented in the briefs and

record, the decisional process of the Court would not be significantly aided by oral

argument. The State of Texas, therefore, respectfully submits that oral argument in

this case is not necessary, and therefore waives oral argument.



Nonetheless, the State of Texas reserves the right to present oral argument should

the Court grant oral argument.




1
 Although Appellant sets forth a request for oral argument in his Brief, such a request does not
appear on the cover of the Brief; thus, the request could be deemed waived. Brief of Appellant,
page 5; Tex. R. App. P. 9.4(g) , 39.7. Appellant’s Brief does not include a statement explaining
why oral argument should or should not be permitted. Tex. R. App. P. 38.1(e).
                                               4
                                           TABLE OF CONTENTS

Title Page ................................................................................................................... 1

Identification of Parties and Counsel ......................................................................... 2

Note as to the Form of Citation.................................................................................. 3

Note as to Oral Argument .......................................................................................... 4

Table of Contents ....................................................................................................... 5

Index of Authorities ................................................................................................... 6

Statement of the Case................................................................................................. 7

Issue Presented ........................................................................................................... 8

Statement of Facts ...................................................................................................... 9

Summary of Argument............................................................................................13

Argument and Authorities........................................................................................ 14

Conclusion ............................................................................................................... 16

Prayer ....................................................................................................................... 17

Certificate of Compliance ........................................................................................ 17

Certificate of Service ............................................................................................... 18




                                                               5
                         INDEX OF AUTHORITIES

Cases

Andrada v. State, 695 S.W.2d 230 (Tex. App.—Corpus Christi 1985, no pet.)….14

Garrett v. State, 619 S.W.2d 172 (Tex. Crim. App. 1981)………………………..15

Hacker v. State, 389 S.W. 3d 860 (Tex. Crim. App. 2013)……………………….14

Houlihan v. State, 551 S.W.2d 719, 723 (Tex. Crim. App. 1977, cert. denied.)…15

Jones v. State, 589 S.W.2d 419 (Tex. Crim. App. 1979)…………………………14

Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006)………………….........14

Sanchez v. State, 603 S.W.2d 869 (Tex. Crim. App. 1980)………………………15



Statutes

Tex. Code Crim. P. Art. 42.12…………………………………………………….16



Rules

Tex. R. App. P. 9.4……………………………………………………………...4fn1

Tex. R. App. P. 38.1…………………………………………………………….4fn1

Tex. R. App. P. 39.7…………………………………………………………….4fn1




                                      6
                             STATEMENT OF THE CASE

Appellant was indicted for Aggravated Assault, and placed on Deferred

Adjudication for a term of eight years therefor. CR3, 7. Thereafter, the State filed

its State’s Motion for Adjudication of Guilt, alleging that Appellant violated the

conditions of community supervision by committing Aggravated Sexual Assault

and by failing to pay fines and fees. The trial court found all the said allegations to

be true, adjudicated the guilt of Appellant and imposed sentence of fifteen years’

imprisonment.2 CR25. Appellant did not file a motion for new trial.



The substantive case alleging Aggravated Sexual Assault was assigned Cause No.

CR-4674-14-I. The instant adjudication proceeding was set jointly with pretrial

‘outcry’ hearing in the other matter. The trial court denied a defense request to

conduct the ‘outcry’ hearing before hearing on the adjudication motion in the case

at bar; thus, the hearing on the motion to adjudicate guilt was the first proceeding

conducted.3 2RR8. Appellant was ultimately convicted of Sexual Assault in that

cause as a lesser offense.4


2
  The assertion of Appellant that “[H]is probation was only revoked because of the allegation of
sexual assault he was arrested for while on probation” is contradicted in the record; the trial
court’s decision to adjudicate Appellant’s guilt for the underlying offense was based on findings
that all the allegations in the adjudication motion were true. Brief of Appellant, page 5; CR25.
3
        (Defense counsel): So for that reason, I’m asking the Court to hold the motion to
adjudicate in abeyance until the Court has the opportunity to go through the trial and hear the
credibility of the witness…
                                               7
                                   ISSUE PRESENTED

The trial court did not abuse its discretion in revoking Appellant’s community

supervision.




       (the trial court):      We’ll start the motion to revoke hearing – motion to adjudicate
hearing. Call your first witness.
       (Defense counsel): Is my – is my request denied?
       (the trial court):      Denied.
2RR7-8

The State then called as its first witness Appellant’s probation officer, a witness who would have
no proper testimony to proffer as to trial of the other cause.
4
  The Order adjudicating guilt in this cause was rendered May 12, 2015; the Judgment of
conviction in the other case was rendered August 13, 2015.
                                                8
                             STATEMENT OF FACTS

   A. Violation of Condition 1 (do not violate any penal law)

The following testimony substantiated the allegation of commission by Appellant

of the offense cited as a basis for adjudication of guilt:

             Question (by the prosecutor):     And to your knowledge, back
      in 2013, did your daughter make an outcry of sexual abuse to you and
      Luis Reyes, or –
             Answer (by Tanya Murphy, mother of the victim): She did it on
      paper. She was scared to tell me face to face, but she was writing stuff
      on paper on how to have sex, how to go down on a man, how to go –
      just horrible details, so I – I confronted her…


             Question:     And when you did speak with your daughter about
      it, did she tell you verbally –
             Answer:       She told me…


             Question:     Okay. And who did she say had done this to her?
             Answer:       She said that Alejo Lugo, my ex-boyfriend, had
      done it to her…


             Question:     And she was, what, 13 at the time she made the
      outcry, or 12?
             Answer:       She was 12 when she made the outcry…




                                           9
      Question:    And can you tell the Court, what exactly did she
say Alejo Lugo did to her?...
      Answer:      She said it started off with the kissing and the
touching…


      Question:    And she started telling you that it was kissing and
touching. Touching where?
      Answer:      That he would be touching her between her legs,
and then after she stated, like, letting herself more and more, that I
would be asleep, he would go and he would start doing things to her.
      Question:    And by doing things, did she – did you ask her
what she meant by that?
      Answer:      Yes. And she – she started telling me about his
penis and how he would make her go and put her mouth on his penis
and go down on him. I mean, she gave me details, details that – that
disgusted me, on how he would make her get on top of him and how
she had to moan and how she had to go up and down and – and how
she had to be bent over.
      Question:    And so she also described – she described vaginal
sex to you?
      Answer:      Vaginal sex, anal sex.
      Question:    Oral sex?
      Answer:      Yes.
2RR42-46.




                                  10
This witness then went on to describe the measures she took to ensure that her

daughter, who was nine years of age at the time of the events at issue, was certain

as to the identity of her molester. 2RR47-50.



The victim herself also testified:

      Question (from the prosecutor): And when you say ‘rape’, who are
      you referring to? Who – who did this to you?
      Answer:       Alejo Lugo
      3RR8
The victim then described the abuse upon her by Appellant. 3RR10-12, 15-18, 22 -

26.



The defense adduced testimony from a nurse practitioner who opined that the

medical findings from a post-outcry examination of the victim were not consistent

with the acts the victim claimed Appellant to have done and that various factual

recitations of the victim were not entirely consistent. 3RR39-41. In cross-

examination, this expert witness testified that it is entirely possible that a child who

had been sexually abused anally would not later have scarring as a result. 3RR43.

Moreover, the years that elapsed between the sexual abuse of the victim and the

examination to detect indicators of abuse provided ample time for any wounds to

have healed. 3RR44.

                                          11
   B. Financial obligations

As noted in the Statement of the Case above, Appellant was alleged to have

violated the following probation conditions imposing financial obligations:

    Condition 12 (fine of $800.00, to be paid in $10 monthly installments)

    Condition 16 (Crime Stoppers fee of $50.00, to be paid within 90 days of

      judgment)

    Condition 17 (monthly supervisory fee of $40.00)

    Condition 18 (court costs of $333.00, to be paid within 90 days of judgment)

Appellant’s supervising probation officer testified as to these violations. 2RR13.




                                         12
                         SUMMARY OF ARGUMENT

The trial court did not abuse its discretion in determining that Appellant had

violated conditions of community supervision and adjudicating his guilt. The

allegations of violations were substantiated by evidence in the record. Resolving

the disputed facts on conflicting evidence was within the sole province of the trial

court as trier of fact; its determinations are not to be disturbed unless wholly

lacking in evidentiary support. As failing to satisfy financial obligations was not

the sole ground for revocation of community supervision, the State was not

required to establish the Appellant’s ability to pay the fines, fees and costs

imposed.




                                        13
                     ARGUMENTS AND AUTHORITIES

Issue:

The trial court did not abuse its discretion in revoking Appellant’s community

supervision.



Argument:

   A. Principles of law

In a challenge to the sufficiency of the evidence to support a revocation of

community supervision, the standard of appellate review is determination of

whether the trial court abused its discretion. See, e.g. Hacker v. State, 389 S.W. 3d

860 (Tex. Crim. App. 2013).       A trial court abuses its discretion by revoking

probation when the State has failed to prove a violation by a preponderance of the

evidence. Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006). “In a

probation revocation hearing, the State satisfies its burden of proof when the

greater weight of the credible evidence before the court creates a reasonable belief

that the condition of probation has been violated.” Andrada v. State, 695 S.W.2d

230, 235 (Tex. App.—Corpus Christi 1985, no pet.). In determining whether the

trial court abused its discretion in revoking community supervision, the evidence

presented at the revocation proceeding should be viewed in the light most

favorable to the trial court’s findings and ruling. Jones v. State, 589 S.W.2d 419,

                                         14
421 (Tex. Crim. App. 1979). A single violation is sufficient to support revocation.

Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980).



“In a revocation of probation proceeding the trial judge is the sole judge of the

facts. As the trier of the facts it is his duty to resolve any conflict in the testimony.”

Houlihan v. State, 551 S.W.2d 719, 723 (Tex. Crim. App. 1977, cert. denied.). A

reviewing court is not to substitute its judgment for that of the trial court unless the

determination of the trial judge is wholly lacking in evidentiary support. Garrett v.

State, 619 S.W.2d 172 (Tex. Crim. App. 1981).



   B. Application

Appellant attacks the trial court’s findings as to commission of the sexual offense

not on a contention that evidence was lacking as to one or more elements but rather

on his argument, presented both in the trial court and on appeal, that alleged

inconsistencies in the proof adduced, and the lack of physical evidence,

undermines confidence in the determinations and decision of the trial court. Brief

of Appellant, page 13 (“Appellant believes contradictions in testimony and the lack

of physical evidence make a preponderance of the evidence finding by the trial

judge an abuse of discretion.”); 3RR63 (“As far as whether they’ve met the burden

of preponderance of the evidence, there are major inconsistencies” [in the

                                           15
testimony of the victim and her mother]”.). As set forth in the Statement of Facts,

evidence substantiating the allegation at issue was adduced. 2RR42-50. The trial

judge resolved the evidentiary conflicts unfavorably toward Appellant; it was

within the trial court’s discretion to do so.



The allegations of failing to satisfy financial obligations are also supported in the

record. 2RR13, 16. The governing statute concededly provides that, in a revocation

of probation based solely on failing to remit such payments, the State of Texas

must establish by a preponderance of the evidence that Appellant was able to pay

but did not do so. Tex. Code Crim. P. Art. 42.12 sec. 21(c). This is not the case in

the matter at bar; as discussed above, Appellant was also alleged and found to have

violated community supervision by committing a violation of the law. Thus, the

lack of evidence that Appellant had the ability to meet these financial obligations

but nonetheless failed to do so is not ground for reversal.



                                   CONCLUSION

Appellee respectfully submits, for the reasons set forth herein, that the Order

subject of this appeal should in all respects be affirmed.




                                           16
                                    PRAYER

Wherefore, premises considered, the State of Texas prays the Court affirm the

Order subject of this appeal.

                                Respectfully submitted,
                                _____/s/_____Glenn W. Devino
                                Glenn W. Devino
                                Assistant Criminal District Attorney
                                Hidalgo County, Texas
                                100 N. Closner, 4th floor
                                Edinburg TX 78539
                                Telephone 956-318-2300 ext. 808
                                Facsimile 956-380-0407
                                State bar no. 24012525
                                glenn.devino@da.co.hidalgo.tx.us

Certificate of Compliance
I hereby certify that this computer-generated document has 2,593 words
                                 ______/s/_______Glenn W. Devino
                                 Glenn W. Devino
                                 Assistant Criminal District Attorney
                                 Hidalgo County, Texas
                                 100 N. Closner, 4th floor
                                 Edinburg TX 78539
                                 Telephone 956-318-2300 ext. 808
                                 Facsimile 956-380-0407
                                 State bar no. 24012525
                                 glenn.devino@da.co.hidalgo.tx.us




                                        17
Certificate of Service
I hereby certify that I have sent a true and correct copy of the foregoing Brief of
Appellee to Appellant, Alejo Daniel Lugo, which Brief is electronically filed, by
serving Appellant therewith through the electronic filing manager to his attorney,
Johnathan Ball, on this the 28th day of October, 2015.
                                 _____/s/______Glenn W. Devino
                                 Glenn W. Devino
                                 Assistant Criminal District Attorney
                                 Hidalgo County, Texas
                                 100 N. Closner, 4th floor
                                 Edinburg TX 78539
                                 Telephone 956-318-2300 ext. 808
                                 Facsimile 956-380-0407
                                 State bar no. 24012525
                                 glenn.devino@da.co.hidalgo.tx.us




                                        18
