                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00259-CR


MELISSA ALMAGUER                                                     APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. F-2012-1538-C

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                         MEMORANDUM OPINION1

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                                   I. Introduction

      In four points, Appellant Melissa Almaguer appeals a two-year sentence

imposed after the trial court adjudicated her guilty of violating conditions of her

deferred adjudication community supervision. We will affirm.




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       See Tex. R. App. P. 47.4.
                                 II. Background

      On January 16, 2013, Almaguer pleaded guilty to possession of less than

one gram of a controlled substance with the intent to deliver. Following this plea,

the trial court placed her on three years’ deferred adjudication community

supervision and imposed a $1000 fine. Almaguer acknowledged the terms of her

probation and signed the order deferring adjudication.

      On February 19, 2014, the State filed a motion to adjudicate guilt alleging

six violations: that Almaguer (1) committed a new offense, (2) failed to complete

her community service, (3) failed to complete a drug/alcohol evaluation within the

required time frame, (4) failed to complete the drug education program, (5) failed

to pay the laboratory fee, and (6) failed to complete a life skills course. After a

hearing on the merits, the trial court found all of the allegations true, adjudicated

Almaguer guilty, revoked her probation, and assessed punishment at two years’

confinement in the Texas Department of Criminal Justice.

                             III. Standard of Review

      Appellate review of the decision to adjudicate guilt is “in the same manner”

as review of the revocation of community supervision. Tex. Code Crim. Proc.

Ann. art. 42.12, § 5(b) (West Supp. 2014). To prevail in a hearing on a motion to

revoke community supervision, the State must prove that the defendant violated

a condition of community supervision as alleged in the petition. Lopez v. State,

46 S.W.3d 476, 481 (Tex. App.—Fort Worth 2001, pet. ref'd). Proving any one of

the alleged violations of the conditions of community supervision is sufficient to


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support a revocation order. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim.

App. [Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App.

[Panel Op.] 1980).    The State’s burden of proof in a revocation proceeding is by

a preponderance of the evidence.      Lopez, 46 S.W.3d at 481–82.        Appellate

review of an order revoking community supervision is limited to a determination

of whether the trial court abused its discretion. Jackson v. State, 645 S.W.2d

303, 305 (Tex. Crim. App. 1983).

                                 IV. Discussion

      In her first point, Almaguer argues that the trial court erred by refusing to

grant a directed verdict after the State’s case-in-chief. In her second and third

points, she asserts that the evidence is insufficient to support the punishment

and that the trial court failed to consider the entire range of punishment. In her

final point, Almaguer argues that the trial court erred by denying her the right to

present closing argument.

A. Directed Verdict

      Almaguer asserts that the trial court erred in denying the directed verdict

because the State failed to present any evidence that she is the same person as

the defendant in the new offense and furthermore that she is the same “Melissa

Almaguer” who had been placed on probation.

      The burden of proving a probationer’s identity in a revocation hearing is not

the same as the burden of proving the identity of an accused in a criminal trial.

See Rice v. State, 801 S.W.2d 16, 17 (Tex. App.—Fort Worth 1990, pet. ref’d).


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In a probation revocation, the State need only prove its case by a preponderance

of the evidence. Id.

      At the revocation hearing, the trial court first took judicial notice of its

record. Afterward, Denton County Probation Officer Lance Washburn testified to

the cause number of the case, his familiarity with Almaguer, the crime for which

she received probation, when she was placed on probation, how long she was to

be on probation, and the details of her transfer to Tarrant County. In addition, the

trial judge presiding over the revocation was the same judge who had placed

Almaguer on probation in 2013, and the attorney representing Almaguer at the

revocation hearing was the same attorney that represented her when she was

placed on probation. See Barrow v. State, 505 S.W.2d 808, 810–11 (Tex. Crim.

App. 1974) (holding that witness testimony identifying the defendant was not

necessary when the same judge who granted appellant’s probation also revoked

it, and the attorney representing appellant at the revocation had the same name

as the attorney representing appellant when the court granted probation). Given

these facts, we hold that the trial court had sufficient evidence to believe that the

“Melissa Almaguer” at the revocation hearing was the same person placed on

probation in 2013.

      To prove the violations alleged in the petition, Officer Washburn testified

that Almaguer violated each of the conditions as alleged in the petition. The

State also introduced into evidence a judgment and sentence of the new offense




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committed by “Melissa Almaguer” in Tarrant County while Almaguer was on

probation.

      Because at the time of the motion for the directed verdict Almaguer was

sufficiently identified and because any one of the violations would have been

sufficient to support an order to revoke, the trial court did not err by denying the

directed verdict nor did it abuse its discretion in adjudicating Almaguer’s guilt.

See Rice, 801 S.W.2d at 17 (holding that the State satisfies its burden of proof in

a revocation hearing when “the greater weight of the credible evidence before the

court creates a reasonable belief that a condition of probation has been

violated”). We overrule her first point.

B. Punishment Complaints

      In her second and third points, Almaguer asserts that the trial court abused

its discretion by assessing the maximum punishment of two years’ confinement

and by refusing to consider the entire range of punishment.

      Generally, an appellant may not complain about her sentence for the first

time on appeal. Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995);

Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986); Means v. State,

347 S.W.3d 873, 874 (Tex. App.—Fort Worth 2011, no pet.) (“Because Appellant

did not object to his sentences when they were imposed or present his motions

for new trial to the trial court, he failed to preserve his sentencing complaints for

appellate review.”); Laboriel-Guity v. State, 336 S.W.3d 754, 756 (Tex. App.—

Fort Worth 2011, pet. ref’d).      Here, Almaguer did not complain about her


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sentence in the trial court. When the trial court asked if there was any legal

reason why it should not sentence Almaguer, defense counsel said there was

not. Because Almaguer did not raise these issues with the trial court, she has

not preserved these complaints for our review. See Tex. R. App. P. 33.1(a); see

also Woodward v. State, No. 02-13-00519-CR, 2014 WL 6601936, at * 1 (Tex.

App.—Fort Worth Nov. 20, 2014, no pet. h.) (mem. op., not designated for

publication) (holding that in a revocation hearing “[a]ppellant forfeited his

sentencing complaint by not raising it on allocution or in his motion for new trial”).

We overrule her second and third points.

C. Closing Arguments

      In her final point, Almaguer argues that the trial court erred by refusing to

permit her counsel to present a closing argument.

      The following exchange took place between the trial court and counsel in

this case:

      [Defense Counsel]: The Defense rests, Your Honor.

      The Court: Anything from the State?

      [Prosecutor]: Close.

      The Court: I’ll close the testimony. I’m going to sentence the
      Defendant to two years confinement in the state jail. Any reason the
      Defendant should not be sentenced at this time?

      [Prosecutor]: No, Your Honor.

      The Court: Any legal reason, Counsel?

      [Defense Counsel]: No argument, Your Honor?


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      The Court: I don’t feel like I need any argument.

      [Defense Counsel]: Okay

      The Court:      Any legal reason the Defendant should not be
      sentenced?

      [Defense Counsel]: No legal reason, Your Honor.

      Almaguer’s counsel only asked if there would be any closing arguments;

he did not specifically request to make a closing argument.         And Almaguer

acquiesced in the trial court’s decision to not hear closing arguments by replying,

“Okay” when the trial court said no arguments were needed. Thus, Almaguer

has not preserved this issue for our review. See Tex. R. App. P. 33.1(a); see

also Collum v. State, Nos. 02-13-00395-CR, 02-13-00396-CR, 2014 WL

4243700, at *1–2 (Tex. App.—Fort Worth Aug. 28, 2014, no pet.) (mem. op., not

designated for publication) (holding that because appellant did not object to the

trial court’s refusal to allow appellant to make a closing argument, she did not

preserve error for review). We overrule her final point.

                                 V. Conclusion

Having overruled Almaguer’s four points, we affirm the trial court’s judgment.


                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)


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DELIVERED: February 26, 2015




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