                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                         No. 07-15-00268-CR


                                   JUAN GARCIA, APPELLANT

                                                   V.

                              THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 52nd District Court
                                    Coryell County, Texas1
              Trial Court No. FSA-01-16205, Honorable Trent D. Farrell, Presiding

                                           June 17, 2016

                                 MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


        Appellant, Juan Garcia, appeals the trial court’s judgment by which he was

adjudicated guilty of the offense of sexual assault and sentenced to fifteen years’

confinement. On appeal, he maintains that the trial court abused its discretion when it

adjudicated him guilty because the State failed to prove that he willfully violated the

terms and conditions of his community supervision.                 We will affirm the trial court’s

judgment.
        1
          Pursuant to the Texas Supreme Court’s docket equalization efforts, this case was transferred to
this Court from the Tenth Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
                              Factual and Procedural History


       In September 2002, appellant pleaded guilty to charges of sexual assault and

was placed on ten years’ deferred adjudication community supervision. The terms and

conditions of that community supervision included, inter alia, the following condition:


       Report to the Supervision Officer at the Coryell County Community
       Supervision and Correction[s] Department as directed by the Court and
       your Supervision Officer, at least one each WEEK beginning immediately
       and continuing until otherwise directed by the Supervision Department or
       as you are discharged from community supervision and corrections, and if
       transferred to the supervision of another Community Supervision and
       Corrections Department, or otherwise, report by mail as directed by the
       Coryell County Community Supervision and Corrections Department, and
       obey all rules and regulations of the Supervision Department[.]

Appellant was also required to make payments toward the balance of fines, court costs,

and fees associated with his case.


       In August 2012, the State filed its application to proceed to adjudication based, in

part, on its allegation that, contrary to the above-referenced condition, appellant failed to

report weekly at any time throughout the entirety of the ten-year period of his community

supervision. The State also alleged that appellant failed to make any payments toward

fines, court costs, and fees as was required by the terms and conditions of his

community supervision.


       At the May 2015 hearing on the State’s application to proceed to adjudication, we

learn that in September 2002, soon after he was placed on community supervision,

appellant was deported to Mexico. The record reveals that, at some point in time,

appellant returned to the United States, although it is not clear when he returned.




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       At the hearing and on appeal, appellant contends that the State failed to prove

that he willfully failed to report as was required of him because he had been deported,

making mandatory reporting impossible or, at least, impracticable.           Therefore, he

maintains, contractual principles must apply to relieve him of the duty to report and

excuse his noncompliance. He also contends that the State failed to show that he was

able to, but failed to, pay the fines, costs, and fees required. Because the State failed to

meet its evidentiary burden, he contends, the trial court abused its discretion by

adjudicating him guilty of sexual assault and sentencing him to fifteen years’

confinement. We will affirm.


                                   Standard of Review


       In a community supervision revocation proceeding, the burden of proof lies on

the State to establish by a preponderance of the evidence that the defendant violated a

condition of his community supervision. Hacker v. State, 389 S.W.3d 860, 864–65 (Tex.

Crim. App. 2013); Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The

State satisfies this burden when the “greater weight of the credible evidence” before the

trial court “create[s] a reasonable belief that the defendant has violated a condition of

his [community supervision].” See Rickels, 202 S.W.3d at 763–64 (quoting Scamardo

v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)).


       We review a trial court’s decision to revoke deferred adjudication community

supervision and proceed to an adjudication of guilt in the same manner as a decision to

revoke ordinary community supervision: for abuse of discretion. See TEX. CODE CRIM.

PROC. ANN. art. 42.12, § 5(b) (West Supp. 2015); Hacker, 389 S.W.3d at 865. A trial


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court abuses its discretion when its decision lies outside the zone of reasonable

disagreement. See Tapia v. State, 462 S.W.3d 29, 41 n.14 (Tex. Crim. App. 2015). In

conducting our review, we must bear in mind that the trial court is the sole judge of the

credibility of the witnesses and the weight to be given their testimony. See Hacker, 389

S.W.3d at 865; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.]

1981). We will conclude that the trial court did not abuse its discretion if the record

shows proof by a preponderance of the evidence of any of the alleged violations of the

community supervision terms. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim.

App. [Panel Op.] 1980).


                                        Analysis


       Appellant has cited no authority that directly supports the position that being

deported relieves him from complying with the condition that he report either in person

or by mail to the Coryell County Community Supervision and Corrections Department.

Nor have we found such authority in support of his position. Instead, appellant relies on

the contractual nature of the community supervision relationship and, from there,

applies contractual principles that may excuse breaches of contract based on

impracticability or impossibility.


       This Court has addressed a similar contention in the past that an appellant was

“relieved of his duty to report because he was deported to Mexico.” See Rivera v.

State, No. 07-00-00120-CR, 2000 Tex. App. LEXIS 6073, at *5 (Tex. App.—Amarillo




                                           4
Aug. 31, 2000, no pet.).2 In Rivera, we observed that deportation could serve as an

impediment to physically reporting but noted that the terms and conditions of Rivera’s

probation also provided that he could have reported by mail. See id. at *2, *5–6. On

the record before us in that case and in the absence of any supporting authority, we

rejected Rivera’s “[i]nteresting” argument. See id. at *5. We must do the same in this

case on similar reasoning.


        In the instant case, the terms and conditions of appellant’s community

supervision contemplated that, upon transfer to another county’s supervision

department or “otherwise,” appellant could report to the Coryell County Community

Supervision and Corrections Department by mail.3 The record indicates that appellant

made no effort to report in person, by phone, or by mail. To the contrary, the evidence

establishes that, during the ten-year probationary period, appellant never reported in

any manner to the department as was required and as he agreed. This evidence is

sufficient to establish by a preponderance of the evidence that appellant violated a term

of his community supervision and supports the trial court’s decision to proceed to

adjudication. See Hacker, 389 S.W.3d at 864–65. The trial court did not abuse its

discretion by so doing on this record. See Moore, 605 S.W.2d at 926. We overrule

appellant’s point of error.
        2
          Recognizing that this is a transfer case, we searched for but have not discovered a case in
which the transferor court—the Tenth Court of Appeals—has directly addressed this precise issue. That
said, we are not aware of any authority from this Court that is inconsistent with precedent from the
transferor court. See TEX. R. APP. P. 41.3.
        3
           We acknowledge that principles of due process and equal protection may require that
impossibility of performance serve as a defense to revocation. See Clay v. State, 361 S.W.3d 762, 772–
73 (Tex. App.—Fort Worth 2012, no pet.) (Dauphinot, J., dissenting). However, because the terms and
conditions of his community supervision provided that appellant could report by mail, we do not agree that
the matter before us clearly and directly implicates the issue of impossibility of performance. Another set
of facts and circumstances may do so, but, here, compliance was not rendered impossible by appellant’s
deportation; rather, it was, arguably, made more difficult by it.

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                                     Conclusion


      Having overruled appellant’s point of error on appeal, we affirm the trial court’s

judgment. See TEX. R. APP. P. 43.2(a).


                                               Mackey K. Hancock
                                                   Justice



Do not publish.




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