                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                               NO. 09-17-00044-CR
                           ____________________

                          NILE ALI IRSAN, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 221st District Court
                         Montgomery County, Texas
                       Trial Cause No. 14-06-06612-CR


                          MEMORANDUM OPINION

      On November 13, 2014, Appellant Nile Ali Irsan was indicted for providing

a prohibited substance to a person who was in the custody of a correctional facility.

See Tex. Penal Code Ann. § 38.11(a) (West Supp. 2017).1 Irsan pleaded guilty

pursuant to a plea agreement, and on December 4, 2014, the trial court deferred

adjudication and placed Irsan on community supervision for a period of four years.


      1
        We cite to the current version of the statute as subsequent amendments do
not affect our disposition.
                                         1
On September 27, 2016, the State filed a motion to adjudicate Irsan’s guilt, which

alleged eight violations of the terms of Irsan’s community supervision. At the motion

to adjudicate hearing in January of 2017, Irsan pleaded “not true” to all eight

violations. The trial court found six of the alleged violations to be true, revoked

Irsan’s community supervision, adjudicated him guilty, and sentenced him to

imprisonment for five years. In five issues on appeal, Appellant challenges the trial

court’s revocation of his community supervision and adjudication of guilt. We

affirm.

                                        Issues

      In his first issue, Appellant argues that the trial court violated his due process

rights when the trial court ruled that the State could offer prior bad acts evidence

during a penalty phase of the hearing and then allowed the testimony during the

State’s presentation of evidence on the motion to adjudicate. In his second issue,

Appellant argues that the trial court erred in admitting his probation officer’s

testimony concerning the substances for which Irsan tested positive in a urinalysis.

Appellant’s third issue argues that the trial court erred in admitting the results of a

urinalysis with attachments under the rule of optional completeness. Appellant’s

remaining issues argue that there was insufficient evidence to sustain findings that

he tested positive for opiates and benzodiazepines, that he had not timely satisfied

                                          2
the community service requirements, and that he had not timely paid probation and

urinalysis fees.

                                  Standard of Review

      An appellate court’s review of an order adjudicating guilt is generally limited

to a determination of whether the trial court abused its discretion. 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 hearing to revoke deferred adjudication, the State

only needs to prove the violation of a condition of probation by a preponderance of

the evidence. Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013);

Rickels, 202 S.W.3d at 763-64; Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim.

App. 1993). The evidence meets this standard when the greater weight of the credible

evidence creates a reasonable belief that the defendant has violated a condition of

his community supervision. Rickels, 202 S.W.3d at 763-64 (quoting Scamardo v.

State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)). We must examine the evidence

in the light most favorable to the trial court’s order. Garrett v. State, 619 S.W.2d

172, 174 (Tex. Crim. App. 1981).

      In determining whether the allegations in the motion to revoke are true, the

trial court is the sole trier of facts, the judge of the credibility of the witnesses, and

the arbiter of the weight to be given to the testimony. Trevino v. State, 218 S.W.3d

                                            3
234, 240 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Taylor v. State, 604

S.W.2d 175, 179 (Tex. Crim. App. 1980). Reconciliation of conflicts or

contradictions in the evidence rests within the province of the factfinder, and such

conflicts will not call for reversal if the conviction finds support in the evidence. See

Cooks v. State, 844 S.W.2d 697, 708 (Tex. Crim. App. 1992); Shah v. State, 403

S.W.3d 29, 34 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). To support the trial

court’s order revoking community supervision, the State need only establish one

sufficient ground for revocation. See Moore v. State, 605 S.W.2d 924, 926 (Tex.

Crim. App. 1980).

      When a trial court fails to make specific findings of fact and conclusions of

law, it is presumed that the court made the necessary findings to support its decision.

Ice v. State, 914 S.W.2d 694, 695 (Tex. App.—Fort Worth 1996, no pet.). The

reviewing court does not engage in its own fact finding, but rather must review the

entire record to determine whether there are any facts that lend support for any theory

upon which the trial court’s decision can be sustained. Id. at 695-96. If the implied

or actual finding is supported by the record, it must be sustained. Id. at 696.

      To preserve error for appellate review under Texas Rule of Appellate

Procedure 33.1(a), the record must show that (1) the complaining party made a

timely and specific request, objection, or motion; and (2) the trial judge either ruled

                                           4
on the request, objection, or motion (expressly or implicitly), or he refused to rule

and the complaining party objected to that refusal. Tex. R. App. P. 33.1(a); Geuder

v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). The contention on appeal must

also comport with the specific objection made at trial. Wilson v. State, 71 S.W.3d

346, 349 (Tex. Crim. App. 2002); Rothstein v. State, 267 S.W.3d 366, 373 (Tex.

App.—Houston [14th Dist.] 2008 pet. ref’d) (An objection stating one legal theory

may not be used to support a different legal theory on appeal.).

                                Right to Due Process

      Appellant’s first issue argues that the trial court erred in admitting extraneous

acts evidence over the defendant’s objection and that admitting such evidence prior

to a finding of guilt violated his right to due process and to a bifurcated hearing.

      At the hearing on the motion to adjudicate, before any testimony was heard,

defense counsel asked the trial court not to admit certain testimony:

      Your Honor, I have been made aware that there may be an F.B.I. agent
      that is here in the courtroom. And on one of the pages of the Motion to
      Revoke, there was kind of a random note that stated this officer received
      notification that the Defendant appeared intoxicated. Mr. Irsan seems
      to think this F.B.I. agent may have been the person who made this
      report. It is not alleged in the Motion to Adjudicate. And so informal
      motion in limine I would like to request that anything that is not alleged
      not be admitted.

The trial court ruled as follows:


                                           5
      THE COURT: That will be denied. It is a Motion to Adjudicate, and
      there is also going to be a punishment phase if I find the allegations to
      be true.

Later during the motion to adjudicate hearing, the agent testified and during the

agent’s testimony, defense counsel made this objection:

      [Defense counsel]: I object to relevance.

      THE COURT: Overruled. I will allow it.

      On appeal, Appellant now argues that defense counsel’s initial objection was

“on extraneous offense rules under the Texas Rules of Evidence[,]” even though

“Appellant’s counsel [did] not use these words[.]” On appeal, Appellant also

characterizes his attorney’s relevance objection during the agent’s testimony as “a

T.R.E. 404 objection[.]”

      To preserve error to the admission of extraneous bad acts, the defendant must

first timely object that the evidence is inadmissible under Rule 404(b) of the Texas

Rules of Evidence and the objection must clearly communicate the legal basis for

the objection. See Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App.

1991) (op. on reh’g); Taylor v. State, 939 S.W.2d 148, 154-55 (Tex. Crim. App.

1996). The basis of the defense’s objection to the trial court was lack of relevance.

Because the record does not indicate that defense counsel objected to the evidence



                                         6
as extraneous bad acts evidence, Appellant failed to preserve any error on this issue.

See Tex. R. App. P. 33.1(a).

      As to Appellant’s argument that the trial court erred by failing to conduct a

bifurcated hearing, we find no error. The Court of Criminal Appeals has held that a

defendant “‘is entitled to a punishment hearing after the adjudication of guilt, and

the trial judge must allow the accused the opportunity to present evidence.’”

Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001) (quoting Issa v. State,

826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (emphasis in original)); see also Tex.

Code Crim. Proc. Ann. art. 42A.110(a) (West 2018) (“After an adjudication of guilt,

all proceedings, including assessment of punishment . . . continue as if the

adjudication of guilt had not been deferred.”).2 Although a defendant is entitled to a

separate punishment hearing after an adjudication of guilt, this is a statutory right

that can be waived. See Vidaurri, 49 S.W.3d at 886 (citing Issa, 826 S.W.2d at 161).

The trial court should be given the chance to allow the defendant to present

punishment evidence or to make a ruling denying the defendant such an opportunity.

See id.; Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999) (“Appellant

had the opportunity to present evidence during the proceedings. That is all that is



      2
        Previously codified at Texas Code of Criminal Procedure, article 42.12,
section 5(b) (repealed January 1, 2017).
                                         7
required.”) (emphasis in original). A trial court does not abuse its discretion for

failing to bifurcate a motion to adjudicate hearing when the defendant is given an

opportunity to present mitigating punishment evidence. See Grammer v. State, 294

S.W.3d 182, 192 (Tex. Crim. App. 2009).

      In this case, Appellant did not complain about the lack of a separate

punishment hearing either at the time he was adjudicated guilty or in a motion for

new trial. See Tex. R. App. P. 33.1(a)(1). The record also reflects that Irsan had the

opportunity to present mitigating punishment evidence at the hearing on the motion

to adjudicate. Irsan’s probation officer testified that Irsan reported to probation as

instructed, timely reported for drug tests, was responsive to requests for

documentation, and had no prior convictions. The defense called Irsan’s sister to

testify, and she testified that, in addition to working, Irsan takes care of her as well

as two younger brothers. His sister also testified that Irsan has never drunk alcohol

or used illegal drugs. Therefore, even assuming Appellant preserved error on this

issue, because the record reflects that Irsan was given an opportunity to present

mitigating punishment evidence, we conclude the trial court did not abuse its

discretion in failing to bifurcate the hearing. Grammer, 294 S.W.3d at 192. We

overrule Appellant’s first issue.



                                           8
                         Admission of Urinalysis Evidence

      In two issues, Appellant challenges the urinalysis evidence. Appellant’s

second issue argues that, even though the trial court sustained the defense’s objection

that the probation officer was not qualified to testify as an expert, the trial court

“allowed the probation officer to testify to what the [urinalysis] test results said,”

which Appellant now argues was hearsay evidence. Appellant also argues that his

rights under the Confrontation Clause were violated because he was denied the right

to cross-examine the probation officer “on material issues surrounding the alleged

probation violations such as false positives . . . and whether prescription medication

was habit forming.” Appellant’s brief concedes that trial counsel did not object on

these bases at trial. We agree, and for that reason, we conclude that Appellant failed

to preserve error on this issue. See Tex. R. App. P. 33.1(a); Paredes v. State, 129

S.W.3d 530, 535 (Tex. Crim. App. 2004) (a Confrontation Clause objection must be

made in the trial court to preserve the complaint for review on appeal). We also note

that defense counsel offered and the trial court admitted a positive urinalysis

notification document as Defendant’s Exhibit 1 that shows a June 9, 2016 urinalysis

of Irsan detected benzodiazepines and opiates. Even assuming that Appellant had

preserved error and that the admission of urinalysis evidence was improper, such

admission is harmless when the same or similar evidence is admitted elsewhere

                                          9
without objection. See Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App.

2010); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Appellant has

failed to show harm, and we overrule Appellant’s second issue.

      Appellant’s third issue challenges certain evidence offered by the State. At the

hearing, after the defense offered and the court admitted the positive urinalysis

notification document, the State offered additional documents “for optional

completeness.” Defense counsel objected as follows: “She stated under optional

completeness, but that was a document that stood alone with her documents. There

are also prescriptions that are attached to it. Foundation hasn’t been laid for those.

And I know she testified she is not an expert.” The trial court overruled the objection

and admitted the State’s evidence. On appeal, Appellant argues that admission of

this evidence under the “rule of optional completeness” was in error because the

evidence was hearsay and because admission of such evidence denied him the right

to confront his accuser. Appellant failed to make either a hearsay objection or a right

to confront the witness objection to the trial court. By failing to make these

objections to the trial court, Appellant waived error on these points. See Tex. R. App.

P. 33.1(a). Furthermore, Appellant’s contention on appeal does not comport with the

objection made at the trial court. Wilson, 71 S.W.3d at 349; Rothstein, 267 S.W.3d

at 373. We overrule Appellant’s third issue.

                                          10
                 Failure to Timely Complete Community Service

      Appellant’s fifth issue argues that there was insufficient evidence to find that

Irsan had not satisfied his community service requirement under the terms of his

community supervision because when the motion to adjudicate was filed, he had

completed 240 of the required 200 hours. Appellant argues that “probation

conditions have been regarded as contractual[,]” and by failing to file a motion to

adjudicate at the earliest time Irsan was out of compliance with his community

service requirement, the State “should be estopped from asserting the violation after

Appellant did more than the hours required to satisfy his condition.”

      One of the terms of Irsan’s community supervision required that he

      [c]ontribute 200 hours in community service restitution at an
      organization approved by the Court and designated by the Community
      Supervision and Corrections Department. Community restitution is
      ORDERED to be performed at the rate of 16 hours per month beginning
      January, 2015[.]

The State’s motion to adjudicate alleged that “Defendant failed to contribute 200

hours of community service restitution at the rate of 16 hours per month for the

months of January 2015, February 2015, April 2015, and May 2015 and June 2015.”

At the hearing, Irsan’s probation officer testified that Irsan contributed fewer than

the required number of community service hours for the months of January,

February, April, May, and June of 2015. By the time of the hearing on the motion to

                                         11
revoke, Irsan had contributed a total of 240 community service hours, which

included credit for making food donations. The probation officer was questioned

about the community service requirement as follows:

      [Defense counsel]: Okay. And so how many hours -- I am looking here
      at your notes. So when they do in excess of the hours they are required
      to do, do you float those to the back, or do you give them credit for days
      they were short for February? How does that work when they exceed
      the number of hours?

      [Probation Officer]: He was already behind. So if you are behind, you
      can’t make them up the next month. If you didn’t do them in February,
      you can’t do them in March. You have to do them at 16 per month.

      [Defense counsel]: Did you ever tell Mr. Irsan to try to hurry up and
      make up the hours that you might have missed? Did you ever tell that
      to him?

      [Probation Officer]: No, because it doesn’t work that way. I told him to
      start working his hours of community service.

      Courts may revoke community supervision for a violation of any condition,

including violations of any single technical condition. See Nurridin v. State, 154

S.W.3d 920, 924 (Tex. App.—Dallas 2005, no pet.). “Technical” violations may

include the probationer’s failure to report to the probation officer, pay community

supervision fees, and perform community service at the specified rate. See Coffel v.

State, 242 S.W.3d 907, 909 (Tex. App.—Texarkana 2007, no pet.). The record

reflects that Irsan did not contribute the required number of monthly community

service hours for five months. Therefore, the trial court would not have abused its
                                       12
discretion in concluding that the State met its burden to prove by a preponderance

of the evidence that Irsan had violated a term of his community supervision by

failing to comply with his monthly community service requirement. See Rickels, 202

S.W.3d at 763-64.

      Appellant’s brief argues that the trial court abused its discretion in finding

Irsan violated the community service requirement of his community supervision

because at the time the State filed its motion to adjudicate, Irsan had completed “20%

more hours than required by completing 240 of 200 required hours of community

service restitution.” According to Appellant, when he accepted the State’s offer of

community supervision, the offer specified only a total number of hours to be

completed. Citing to Cook v. State, No. 12-09-00201-CR, 2010 Tex. App. LEXIS

9869 (Tex. App.—Tyler Dec. 15, 2010, pet. ref’d) (mem. op., not designated for

publication) and Welch v. State, No. 06-03-00068-CR, 2003 Tex. App. LEXIS 9698

(Tex. App.—Texarkana Nov. 14, 2003, no pet.) (mem. op., not designated for

publication), Appellant also argues that other courts have found violations of

community service requirements where the probationers “were behind on average”

at the time the State filed its motion to adjudicate or to revoke. As we have already

noted herein, Irsan’s conditions of community supervision required both a total of

200 hours as well as sixteen hours per month, and the probation officer’s testimony

                                         13
supported a conclusion that Irsan did not meet this requirement. Neither Cook nor

Welch requires a different conclusion. See Cook, 2010 Tex. App. LEXIS 9869, at *6

(“Appellant failed to complete ten hours in November, December, and January, and

consequently, he did not complete ten hours ‘each month.’”); Welch, 2003 Tex. App.

LEXIS 9698, at *5 (“[W]e find the great weight of the credible evidence creates a

reasonable belief that Welch violated the condition of his community supervision

requiring him to perform ten hours of community service each month[.]”).

      As to Appellant’s contract and estoppel arguments, Appellant did not make

either of these objections to the trial court; thus, he failed to preserve error on such

arguments. See Tex. R. App. P. 33.1(a). We also note that Appellant’s brief cites to

no legal authority for his contract and estoppel arguments. See Tex. R. App. P.

38.1(i). We overrule Appellant’s fifth issue.

      Appellant’s remaining issues address sufficiency of the evidence to support

the revocation order. We have already concluded that the State met its burden of

showing by a preponderance of the evidence that Irsan violated at least one condition

of the community supervision order. Proof of one violation is sufficient to support a

revocation order. See Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012)

(citing Moore, 605 S.W.2d at 926). Therefore, we need not address Irsan’s remaining

issues. See Tex. R. App. P. 47.1. We affirm the trial court’s judgment.

                                          14
      AFFIRMED.



                                               _________________________
                                                  LEANNE JOHNSON
                                                        Justice


Submitted on June 19, 2018
Opinion Delivered June 27, 2018
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.




                                          15
