                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-17-00050-CR


JERRY LEE PICKINS                                                 APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
                      TRIAL COURT NO. 54,700-A

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                       MEMORANDUM OPINION1

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      On November 21, 2014, the district court, pursuant to a plea agreement,

adjudicated appellant Jerry Lee Pickins guilty of assaulting a person with whom

he had a dating relationship by impeding her normal breathing or circulation of

the blood and placed him on community supervision for five years. See Tex.

Penal Code Ann. § 22.01(a)(1), (b)(2)(B) (West Supp. 2017). Nearly six months


      1
      See Tex. R. App. P. 47.4.
later, the State filed a motion to revoke, alleging that Pickins had violated several

of his community supervision terms. Following a hearing, the trial court revoked

Pickins’s community supervision and sentenced him to three years’ confinement.

Pickins appeals in four points. We affirm.

                                I. BACKGROUND

      On January 27, 2015, Wichita County Sherriff’s Office Sergeant Eric Wisch

pulled Pickins over for a broken tail light. Sergeant Wisch learned that Pickins

had an outstanding warrant for a parole violation in Arkansas, so Sergeant Wisch

arrested him and, pursuant to department policy, took steps to impound his car.

Sergeant Wisch conducted an inventory search of the car and found prescription

pills. Pickins told Sergeant Wisch that the pills belonged to him, that he did not

have a prescription for them, and that he gave them out to people he knew.

      In its motion to revoke, the State alleged that Pickins had violated several

of his community supervision terms. Specifically, the State alleged that Pickins

had committed the criminal offense of possessing a dangerous drug; failed to

completely abstain from the use or possession of drugs and alcohol; failed to

report to his community supervision officer on three separate occasions; failed to

pay costs relating to his drug testing; failed to provide his community supervision

officer with proof that he had completed at least ten hours of community service

during each month of his supervision; failed to pay two fees associated with his

community supervision; and failed to attend a community supervision orientation

within sixty days of his being placed on community supervision.


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      On February 3, 2017, the trial court held a hearing on the State’s motion to

revoke.2   Following the hearing, the trial court revoked Pickins’s community

supervision, having found all of the State’s allegations true except for its

allegation that Pickins had failed to completely abstain from the use or

possession of drugs and alcohol.

     II. THE CONFRONTATION CLAUSE DID NOT APPLY IN PICKINS’S
                    REVOCATION PROCEEDING

      In his first point, Pickins contends the trial court erred by denying his right

to confrontation under the federal and state constitutions.       See U.S. Const.

amend. VI; Tex. Const. art. I, § 10. During the revocation hearing, Pickins’s

community supervision officer, Officer Liz Quinonez, testified. Officer Quinonez

had not been assigned to Pickins’s case until December 16, 2016, and thus she

testified in part from information reflected in his community supervision records

that had been recorded by other individuals.          Pickins objected to Officer

Quinonez’s testifying from these records, arguing in part that such testimony

deprived him of his constitutional right to cross-examine and confront his

accuser. The trial court overruled that objection.

      We first note that Pickins did not segregate into separate grounds his

complaints based on the federal Constitution and the Texas constitution and

      2
       The nearly two-year delay between the time the State filed its motion to
revoke and the time of the revocation hearing appears to have occurred because
Pickins had been extradited to Arkansas following his January 27, 2015 arrest in
Texas. Pickins served a sentence in Arkansas and was released on December
4, 2015. He was arrested again in Illinois on August 19, 2016.


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provide individual substantive analysis and authorities to support his state

constitutional arguments. Thus, he has waived his arguments to the extent they

are grounded on the Texas constitution, and we need not address those

arguments. See Lilly v. State, 365 S.W.3d 321, 326 (Tex. Crim. App. 2012);

Merrick v. State, No. 02-17-00035-CR, 2018 WL 651375, at *4 (Tex. App.—Fort

Worth Feb. 1, 2018, pet. ref’d). We therefore focus our analysis on Pickins’s

arguments based on the federal Constitution’s Confrontation Clause.

      Pickins argues the trial court’s admission of the portions of Officer

Quinonez’s testimony that she based on hearsay statements reflected in his

community supervision records violated the Confrontation Clause. Pickins faces

the initial hurdle of demonstrating the Confrontation Clause applied to the

challenged statements. That clause applied only if the revocation proceeding

was a “criminal prosecution” within the meaning of the Sixth Amendment and the

out-of-court statements Officer Quinonez relayed were themselves testimonial

hearsay.    See U.S. Const. amend. VI (providing that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him” (emphasis added)); Sanchez v. State, 354 S.W.3d 476,

485 (Tex. Crim. App. 2011) (“The Sixth Amendment does not bar the admission

of non-testimonial hearsay.” (citing Michigan v. Bryant, 562 U.S. 344, 354

(2011))). Whether the Confrontation Clause applies to a revocation proceeding

and whether a particular hearsay statement is testimonial in nature are both

questions that are subject to de novo review. See Wall v. State, 184 S.W.3d


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730, 742 (Tex. Crim. App. 2006); Diaz v. State, 172 S.W.3d 668, 669 (Tex.

App.—San Antonio 2005, no pet.).

      Although whether challenged hearsay statements are testimonial in nature

is the threshold question in any Confrontation Clause analysis, neither Pickins

nor the State addressed that question with respect to the statements Pickins

challenges here either in the trial court or in their briefing in this court. See

Gongora v. State, 214 S.W.3d 58, 62 (Tex. App.—Fort Worth 2006, pet. ref’d)

(noting “the threshold question in any Confrontation Clause analysis is whether

the statements at issue are testimonial or non-testimonial in nature”). Our failure

to consider whether the hearsay statements Pickins challenges are testimonial,

however, could result in an advisory opinion. That is so because, as we have

noted, the Confrontation Clause applies only to hearsay statements that are

testimonial in nature.   See Sanchez, 354 S.W.3d at 485; Infante v. State,

404 S.W.3d 656, 664 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Therefore,

if the hearsay statements at issue here are not testimonial in nature, then

rendering an opinion holding the Confrontation Clause applicable in community

supervision revocation proceedings as Pickins asks us to do would have no

bearing on the disposition of his first point. Such an opinion would be advisory.

See Dix v. State, 289 S.W.3d 333, 335 (Tex. App.—Eastland 2009, pet. ref’d).

So we begin our analysis by considering the question of whether the hearsay

statements Pickins challenges were testimonial in nature. See Gilbert v. State,

No. 07-16-00378-CR, 2017 WL 4872787, at *2 (Tex. App.—Amarillo Oct. 25,


                                        5
2017, pet. ref’d) (mem. op., not designated for publication) (declining appellant’s

invitation to broadly hold the Confrontation Clause applicable in a pretrial

suppression hearing without addressing whether the challenged statements were

testimonial).

      It turns out that is not a difficult task here. Once a defendant objects to the

admission of evidence on Confrontation Clause grounds, the burden shifts to the

State, as the proponent of the objected-to evidence, to establish its admissibility.

De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008). To do so, the

State must establish that the proffered evidence either (1) does not contain

testimonial hearsay statements or (2) does contain testimonial hearsay

statements but that such statements are nevertheless admissible under Crawford

v. Washington, 541 U.S. 36 (2004). De La Paz, 273 S.W.3d at 680–81. If the

State fails to meet its burden, then the Confrontation Clause—if the proceeding is

one in which that clause applies—bars admission of the evidence. See id. Here,

Pickins objected to several out-of-court statements Officer Quinonez relayed in

her testimony, but the trial court overruled those objections before the State

offered any response, and the State never attempted to satisfy its burden by

explaining on the record why the objected-to evidence was admissible.           The

State therefore failed to meet its burden under De La Paz. See Langham v.

State, 305 S.W.3d 568, 580 n.40 (Tex. Crim. App. 2010).            Accordingly, the

Confrontation Clause would bar the admission of that evidence unless, as the

State now argues, that clause does not apply in a community supervision


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revocation proceeding.3 See De La Paz, 273 S.W.3d at 681. We turn now to

that question.

      Pickins argues the Confrontation Clause applies to a community

supervision revocation proceeding. In response, the State points us to a line of

cases holding the Confrontation Clause inapplicable in a revocation proceeding

because it is not a stage of a criminal prosecution under the Sixth Amendment.

See Mauro v. State, 235 S.W.3d 374, 375–76 (Tex. App.—Eastland 2007, pet.

ref’d); Trevino v. State, 218 S.W.3d 234, 239 (Tex. App.—Houston [14th Dist.]

2007, no pet.); Diaz, 172 S.W.3d at 672; Smart v. State, 153 S.W.3d 118, 120–

21 (Tex. App.—Beaumont 2004, pet. ref’d). Pickins acknowledges these cases

but argues their respective holdings were based on court of criminal appeals

precedent that characterized revocation proceedings as administrative hearings

rather than criminal trials. See, e.g., Cobb v. State, 851 S.W.2d 871, 873 (Tex.

Crim. App. 1993); Bradley v. State, 564 S.W.2d 727, 729 (Tex. Crim. App. 1978).

Pickins argues the court of criminal appeals disavowed its characterization of

revocation proceedings as administrative in Ex parte Doan and instead held that

they are judicial proceedings that are subject to the rules governing judicial


      3
       We emphasize that our conclusion that the Confrontation Clause, if
applicable in a community supervision revocation proceeding, would bar the
admission of the portions of Officer Quinonez’s testimony that Pickins objected to
is necessitated in this case simply and solely by the State’s failure to meet its
burden under De La Paz. We need not and do not address whether community
supervision records contain, in whole or in part, categorically or otherwise,
testimonial hearsay.


                                        7
proceedings. See 369 S.W.3d 205, 212 (Tex. Crim. App. 2012). Pickins asserts

that by doing so, Doan “dramatically changed the landscape of community

supervision revocation hearings” such that the Confrontation Clause, which

previously did not apply to such proceedings, now does apply. We disagree.

      The starting point for our analysis is the text of the Sixth Amendment’s

Confrontation Clause. In pertinent part, the Confrontation Clause provides that

“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const. amend. VI. Thus, based

on its text, whether the Confrontation Clause applies in a community supervision

revocation proceeding turns not on whether such a proceeding is a judicial

proceeding as opposed to an administrative one but rather on whether such a

proceeding is a “criminal prosecution.” See id.; see also United States v. Reese,

775 F.3d 1327, 1329 (11th Cir. 2015) (stating the Sixth Amendment applies only

to criminal prosecutions).

      The line of cases the State points to concluded that a community

supervision revocation proceeding is not a stage of a criminal prosecution. See

Mauro, 235 S.W.3d at 376; Trevino, 218 S.W.3d at 239; Diaz, 172 S.W.3d at

672; Smart, 153 S.W.3d at 120–21. Pickins implicitly argues that these cases all

based their conclusions on prior court of criminal appeals decisions

characterizing community supervision revocation proceedings as administrative.

At least two of our sister courts have suggested that as well. See Bacilio v.

State, No. 08-14-00096-CR, 2016 WL 1253420, at *3 (Tex. App.—El Paso Mar.


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30, 2016, pet. ref’d) (mem. op., not designated for publication); Blackman v.

State, No. 01-12-00525-CR, 2014 WL 50804, at *2–3 (Tex. App.—Houston [1st

Dist.] Jan. 7, 2014, pet. ref’d) (mem. op., not designated for publication). But this

is not so. Of the four cases the State cited, only Smart references court of

criminal appeals cases characterizing community supervision revocation

proceedings as administrative. See Smart, 153 S.W.3d at 120. And Smart did

not base its holding only on the proposition that such proceedings are

administrative. To the contrary, it relied principally on two decisions from the

United States Supreme Court—and other federal and Texas cases applying

those two decisions—for the proposition that parole and probation revocation

proceedings are not stages of a criminal prosecution.        See id. at 120 (citing

Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v. Brewer, 408 U.S.

471, 480 (1972); United States v. Aspinall, 389 F.3d 332, 342–43 (2d Cir. 2004)).

      We agree with the Dallas court of appeals that Doan did not undercut the

line of Texas cases holding that a community supervision revocation proceeding

is not a stage of a criminal prosecution. See Roberts v. State, No. 05-16-00338-

CR, 2017 WL 461354, at *2–3 (Tex. App.—Dallas Jan. 24, 2017, pet. ref’d,

untimely filed) (mem. op., not designated for publication). While Doan did hold

that community supervision revocation proceedings are judicial proceedings and

not administrative ones, see Doan, 369 S.W.3d at 212, it “did not go so far as to

say a revocation proceeding is a criminal prosecution” and did not “state, [or]




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even address, whether such a proceeding is a ‘criminal prosecution’ under the

Sixth Amendment,” Roberts, 2017 WL 461354, at *3.

      The United States Supreme Court has stated that parole and probation

revocation proceedings are not criminal prosecutions. Scarpelli, 411 U.S. at 782;

Morrissey, 408 U.S. at 480. Based on that proposition, at least nine of the United

States Circuit Courts of Appeals have concluded that the Sixth Amendment does

not apply in hearings for the revocation of supervised release, probation, or

parole. See Reese, 775 F.3d at 1329 (collecting cases). As noted above, Texas

intermediate appellate courts have held likewise, and contrary to Pickins’s

contention, the court of criminal appeals’ decision in Doan did not undermine

those holdings. Agreeing with the overwhelming weight of authority, therefore,

we conclude that a community supervision revocation proceeding is not a stage

of a criminal prosecution. Accordingly, the Confrontation Clause is inapplicable

in those proceedings, and the trial court did not err by overruling Pickins’s

objections based on that clause and admitting Officer Quinonez’s challenged

testimony.

      We overrule Pickins’s first point.

 III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY REVOKING
                 PICKINS’S COMMUNITY SUPERVISION

      In his second and third points, Pickins contends the trial court erred by

admitting other pieces of evidence at his revocation hearing. And in his fourth

point, Pickins argues that if the trial court had not admitted any of the evidence



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he challenged in his first three points, there would be insufficient evidence to find

that he violated any of his community supervision terms. As explained below,

Officer Quinonez’s testimony, which we held admissible in our resolution of

Pickins’s first point, is alone sufficient to support the trial court’s revocation

decision.   We therefore overrule Pickins’s fourth point and do not reach his

second and third points. See Tex. R. App. P. 47.1.

      We review an order revoking community supervision under an abuse of

discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.

2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In a

revocation proceeding, the State must prove by a preponderance of the evidence

that the defendant violated the terms and conditions of community supervision.

Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The trial court is

the sole judge of the credibility of the witnesses and the weight to be given their

testimony, and we review the evidence in the light most favorable to the trial

court’s ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172,

174 (Tex. Crim. App. [Panel Op.] 1981). If the State fails to meet its burden of

proof, the trial court abuses its discretion in revoking the community supervision.

Cardona, 665 S.W.2d at 493–94.

      The State alleged Pickins violated several of his community supervision

terms, but the trial court could have revoked his community supervision if it found

the State proved any single alleged violation. See Clay v. State, 361 S.W.3d




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762, 765 (Tex. App.—Fort Worth 2012, no pet.). Among the terms the State

alleged Pickins violated were the requirements that he

      • report to the community supervision department immediately after
        the hearing at which he was placed on community supervision
        and every month thereafter while he was on community
        supervision;

      • attend an orientation meeting conducted by the community
        supervision department within sixty days of being placed on
        community supervision;

      • complete fifty hours of community service and provide his
        supervision officer with written proof of his community service
        hours; and

      • pay the community supervision department a $50 per month
        supervision fee while he was on community supervision.

      Officer Quinonez testified that Pickins’s community supervision records

reflected he did not report to the community supervision department in November

2014, January 2015, February 2015, or March 2015. She testified that Pickins

had informed her that he was released from jail in Arkansas in December 2015;

that after his release in December 2015, he had informed another community

supervision officer that he was in Wichita Falls; and that his community

supervision records did not reflect he had attempted to report to the community

supervision department at any time after December 2015. She further testified

that Pickins did not attend his community supervision orientation meeting. She

testified that Pickins had never provided the community service department with

proof of any community service hours he had completed and that as of the time

of the revocation hearing, Pickins was behind on his community service

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requirement by a total of fifty hours—in other words, he was behind on all of it.

And she testified that Pickins did not pay his monthly $50 community supervision

fee and that Pickins had told her that he was able to work and was employed.

      The above testimony supports the trial court’s findings that Pickins violated

all four of the community supervision terms set forth above and, thus, its

revocation order. See Clay, 361 S.W.3d at 765.

                               IV. CONCLUSION

      Having overruled Pickins’s first and fourth points, which are dispositive of

this appeal, we affirm the trial court’s judgment without addressing his remaining

points. See Tex. R. App. P. 43.2(a), 47.1.


                                                  /s/ Lee Gabriel

                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

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

DELIVERED: July 19, 2018




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