                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-09-037-CR


GUILLERMO ZUNIGA                                                      APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE

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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      In three points, Appellant Guillermo Zuniga asserts that the trial court

abused its discretion by failing to require the State to plead the allegations

contained in its first amended petition to proceed to adjudication (the “Petition”)

with more specificity and by revoking Zuniga’s community supervision because




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           See Tex. R. App. P. 47.4.
the evidence was legally and factually insufficient to support the trial court’s

decision to proceed to adjudication. We affirm.

                      II. Factual and Procedural History

      In January 2002, the State indicted Zuniga for two counts of indecency

with a child and one count of injury to a child causing bodily injury. 2 Zuniga

pleaded guilty to injury to a child. See Tex. Penal Code Ann. § 22.04(a)(3)

(Vernon Supp. 2009). On October 17, 2002, in accordance with Zuniga’s plea

bargain agreement, the trial court sentenced him to five years’ deferred

adjudication community supervision.

      In September 2008, the State filed the Petition, alleging four violations:

      1. SEX OFFENDER TREATMENT: The Defendant was ordered by
      the court on January 25, 2006 to complete sex offender treatment
      goals by June 30, 2007.

                 In violation of said condition the Defendant failed
            to complete sex offender treatment goals by June 30,
            2007 as ordered by the court on or about January 25,
            2006.

      2. SEX OFFENDER TREATMENT: The Defendant was ordered by
      the court on October 22, 2007 to complete sex offender treatment
      no later than August 30, 2008.




      2
        The indecency allegations were that he engaged in sexual contact by
touching the genitals and the breast of a child younger than seventeen years.
See Tex. Penal Code Ann. § 21.11(a)(1), (c) (Vernon Supp. 2009). The State
apparently waived these counts upon Zuniga’s guilty plea to injury to a child.

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                 In violation of said condition the Defendant failed
            to complete sex offender treatment no later than
            August 30, 2008 as ordered by the court on or about
            October 22, 2007.

      3. SEX OFFENDER TREATMENT GOALS: The Defendant was
      ordered by the court on January 25, 2006 to submit one sex
      offender treatment goal for approval to the sex offender treatment
      provider per month.

                  In violation of said condition the Defendant failed
            to submit one sex offender treatment goal to the sex
            offender treatment provider per month for the following
            months:        MAY, JUNE, AUGUST, OCTOBER,
            DECEMBER 2006; MARCH AND MAY 2007.

      4. SEX OFFENDER TREATMENT ATTENDANCE: The Defendant
      was ordered to attend and participate fully in and successfully
      complete psychological counseling/treatment sessions (including
      aftercare) for sex offenders with an individual or organization which
      provides sex offender treatment or counseling as specified by or
      approved by the judge or the supervision officer.

                  In violation of this condition, the defendant failed
            to attend his scheduled appointment with Michael
            Strain on or about September 1, 2008, and failed to
            schedule and complete a make up session.

The trial court found the allegations in the Petition true, found Zuniga guilty of

injury to a child causing bodily injury, and sentenced him to five years’

confinement. This appeal followed.

                            III. Standard of Review

      We review an order revoking community supervision under an abuse of

discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.

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1984); Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007,

pet. ref’d).

                                  IV. Pleading

      In his first point, Zuniga alleges that the trial court abused its discretion

by failing to require the State to plead with more specificity the allegations in

the Petition.   He complains that “major portions of the State’s Petition to

Proceed to Adjudication were so overly broad, vague, and ambiguous, such that

defense counsel was unable to understand and adequately prepare Appellant’s

defense.”

      All motions to set aside an indictment or information and all special pleas

and exceptions shall be in writing. See Tex. Code Crim. Proc. Ann. art. 27.10

(Vernon 2006); see Dempsey v. State, 496 S.W.2d 49, 52 & n.1 (Tex. Crim.

App. 1973) (referencing article 27.10 with regard to motions to deny a State’s

motion to revoke probation). And they must be timely. See Longoria v. State,

624 S.W.2d 582, 584 (Tex. Crim. App. 1981) (holding that the trial court did

not abuse its discretion by denying appellant’s motion to dismiss State’s motion

to revoke when appellant, who contended that the allegations in the State’s

motion to revoke probation were insufficient to put him on notice, announced

ready, entered a plea of not true, and then made the oral motion to dismiss for

lack of specificity); Dempsey, 496 S.W.2d at 52 (“Appellant’s counsel had

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been appointed more than a month prior to the hearing and no motion directed

to the State’s pleading to revoke was voiced until after appellant had entered

his plea.     Then such objection was made orally.        Under the foregoing

circumstances, we decline to hold that the court abused its discretion in

overruling appellant’s motion to deny or quash the State’s motion to revoke.”);

cf. Whitehead v. State, 556 S.W.2d 802, 807 & n.4 (Tex. Crim. App. 1977)

(concluding that the trial court erred by overruling appellant’s exception to the

motion to revoke when appellant raised the issue to the trial court before

proceedings began by filing a written notice to set aside the motion to revoke

and argued the motion before the revocation proceedings began).

      Zuniga did not file a written motion to quash.        At the hearing, he

announced ready. The trial court then read each allegation to him and asked

if he understood. Zuniga replied, “Yes,” and then pleaded “[n]ot true” to each

paragraph. After the trial court informed the State that it could proceed, Zuniga

objected to all four allegations “on the constitutional basis of vagueness.” He

renewed this objection after beginning his cross-examination of the State’s first

witness. 3 Under these circumstances—failure to file a written motion to quash



      3
           Zuniga’s counsel stated,

      Okay. Your Honor, forgive me, I meant to object before I started
      asking questions. The entire testimony of the probation officer was

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and failure to do so in a timely manner—the trial court did not abuse its

discretion by overruling Zuniga’s objection to the Petition. See Tex. Code Crim.

Proc. Ann. art. 27.10; Longoria, 624 S.W.2d at 584; Dempsey, 496 S.W.2d

at 52; see also Mendez v. State, No. 14-01-01270-CR, 2002 WL 31398811,

at *2 (Tex. App.—Houston [14th Dist.] Oct. 24, 2002, no pet.) (not designated

for publication) (“The proper method for challenging a motion to revoke is a

motion to quash . . . . If appellant did not receive full and fair notice of the

offense he would be called to defend, he should have filed a motion to

quash.”).

      Furthermore, although Zuniga claims that the allegations were vague, the

evidence at trial rebuts this argument.      As a condition of his community

supervision, Zuniga was ordered on January 25, 2006, to complete his sex

offender treatment goals by June 30, 2007, and he was ordered to submit one

sex offender treatment goal for approval each month to the sex offender

treatment provider. He later received an extension on October 22, 2007, to



      about mysterious unarticulated goals that haven’t been satisfied.
      Your Honor, I renew my constitutional objection to vagueness. I
      still don’t have any clarity at all to defend Mr. Zuniga on just what
      it is he didn’t do to the satisfaction of Mr. Strain, to be reported to
      his secretary, to be reported to this officer, to be reported to you.
      I think it is incredibly constitutionally incorrect for us to have this
      hearing on these kind of allegations. The vagueness is off the
      charts, Your Honor.

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complete his sex offender treatment by August 30, 2008. And he was ordered

to attend, fully participate in, and successfully complete “psychological

counseling/treatment sessions (including aftercare) for sex offenders.”    The

Petition alleged that he failed to complete his sex offender treatment goals by

June 30, 2007; failed to complete sex offender treatment no later than August

30, 2008; failed to submit one sex offender treatment goal during five months

in 2006 and two months in 2007; and failed to attend a scheduled

psychological counseling/treatment session in September 2008.

      Michael Strain, Zuniga’s psychotherapist, testified that he had often

reviewed the program’s goals and requirements with Zuniga and had given

Zuniga a written copy of all thirty goals in the early stages of the program.

State’s exhibit 1, which Strain described as “the most current copy of

[Zuniga’s] treatment plan tracking form[,] which shows the dates that he

completed each of the goals in our program,” was admitted without objection.

Strain testified,

      [Zuniga’s] second week in treatment[,] I gave him a written
      treatment plan which had each goal written out in Spanish. He had
      that document the entire time of . . . his treatment. . . . And in
      treatment other group members are working on similar goals, he
      saw other people working on goals. We talked about them as he
      would declare the work on a goal, we talked about what he needed
      to do to do this, yes, he did understand.




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And Mary Tobar, Zuniga’s community supervision officer, testified that Zuniga

finally completed his sex offender treatment during the week of the revocation

hearing in 2009. We overrule Zuniga’s first point.

                       V. Legal and Factual Sufficiency

      In his second and third points, Zuniga complains that the trial court

abused its discretion by revoking his community supervision because the

evidence was legally and factually insufficient to support the revocation and

decision to proceed to adjudication.

      Initially, we note that this court has previously held that a factual

sufficiency review is inapplicable to revocation proceedings. See Cherry, 215

S.W.3d at 919 (declining to address Cherry’s factual sufficiency challenge to

revocation of her community supervision and listing cases holding same). We

decline Zuniga’s invitation to reconsider, and we overrule his third point.

      With regard to legal sufficiency, the State has met its burden with respect

to evidence of revocation when the greater weight of the evidence creates a

reasonable belief of the necessary revocation elements. Allbright v. State, 13

S.W.3d 817, 818–19 (Tex. App.—Fort Worth 2000, pet. ref’d).                   In a

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

evidence that the defendant is the same individual who is named in the

judgment and order of community supervision and then must prove that the

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defendant violated a term of community supervision as alleged in the motion to

revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). The

trial court is the sole trier of fact and determines the credibility of the witnesses

and the weight to be given their testimony.         Cherry, 215 S.W.3d at 919;

Allbright, 13 S.W.3d at 819.        We review the evidence in the light most

favorable to the trial court’s ruling. Cardona, 665 S.W.2d at 493; Cherry, 215

S.W.3d at 919. If the State fails to meet its burden of proof, the trial court

abuses its discretion by revoking the community supervision. Cardona, 665

S.W.2d at 493–94. A finding of a single violation of community supervision

is sufficient to support revocation. Allbright, 13 S.W.3d at 819.

      Tobar testified that one of the conditions of Zuniga’s community

supervision was to attend and complete sex offender counseling. She testified

that the deadline for this condition had been extended to allow Zuniga time to

complete his treatment; that she had informed Zuniga, on more than one

occasion, of this condition and the allotted time frame; and that Zuniga had

failed to complete his sex offender treatment program by the original deadline

(June 30, 2007) or the extended deadline (August 30, 2008). She testified

that he completed his sex offender treatment during the week of the revocation




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hearing—January 26, 2009. 4       In January 2006, his community supervision

conditions were amended to require him to complete at least one goal per

month. Tobar testified that Zuniga had failed to complete his sex offender

treatment program goals in 2006 in May, June, August, September, October,

and December, and in 2007 in March and May. She testified that Zuniga did

not attend a required sex offender counseling session in September 2008. As

of September 2008, Zuniga still had seven goals remaining, and as of December

2008, he still had two goals remaining.

      Strain testified that Zuniga had failed to complete any goals related to his

sex offender treatment program in 2006 during May, June, August, October,

and December, and in 2007 during March and May and had failed to attend a

counseling session in September 2008. Because the counseling session was

a group session, it could not be made up.

      Viewing this evidence in the light most favorable to the trial court’s ruling,

we cannot say that the trial court abused its discretion by revoking Zuniga’s

community supervision. We overrule Zuniga’s second point.




      4
        Tobar stated, “He was ordered to complete his sex offender treatment
and he was given a sex offender treatment plan at Mr. Strain’s office. . . . And
he did not complete the sex offender treatment plan . . . [u]ntil Monday of this
past week.”

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                              VI. Conclusion

     Having overruled all of Zuniga’s points, we affirm the trial court’s

judgment.




                                        BOB MCCOY
                                        JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

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

DELIVERED: January 21, 2010




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