Affirmed and Opinion Filed May 8, 2014




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-13-00900-CR
                                       No. 05-13-00901-CR

                                 JAMES RILEY, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 282nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1140796-S

                              MEMORANDUM OPINION
                        Before Justices Bridges, Francis, and Lang-Miers
                                   Opinion by Justice Bridges
       Appellant James Riley appeals from his adjudication of guilt for the offenses of

aggravated assault with a deadly weapon and deadly conduct and his accompanying sentences of

fifteen years and five years’ imprisonment, respectively. In two issues, appellant contends the

trial court abused its discretion when it: (1) allowed the State to use hearsay evidence in violation

of Crawford and (2) adjudicated his guilt based upon legally insufficient evidence. We affirm.

                                           Background

       Appellant pled guilty to indictments for aggravated assault with a deadly weapon and

deadly conduct. As a result, the trial court entered orders of deferred adjudication, placing

appellant on deferred probation for a period of ten years in each case. On May 17, 2013, the
State filed its motion to revoke probation or proceed with an adjudication of guilt for both cases.1

The State alleged appellant violated the terms of his community supervision by failing to

“participate in a drug/alcohol continuum of care treatment plan following release from the

Substance Abuse Felony Punishment Program, adhering to all rules and regulations of said

treatment plan until discharged by the staff of the continuum of care program.” At the June 13,

2013 hearing on the motion, appellant pled “not true” to the allegation.

          The State called Leslie Birdsall, a Dallas County probation officer, to testify. She

testified she maintains files on people that are on probation, including appellant’s file. Birdsall

further stated appellant was alleged to have been “unsuccessfully discharged from SAFPF

aftercare through the Salvation Army.” The State then offered as “Exhibit 2” a discharge

summary from the Salvation Army Substance Abuse Program that was contained in appellant’s

probation file. Appellant’s counsel indicated he had “no objection” to the admission of Exhibit

2, and the trial court admitted it.

          Birdsall then testified to the contents of Exhibit 2, reading as follows:

          [O]n May 6th, [appellant] had a random drug test at the facility, at the Salvation
          Army. The drug test came back positive for cocaine. And after the counselors
          told him that he would be placed on therapeutic shut down, . . . it says here, he
          began using profanity and packed his belongings and left the facility.

She explained appellant left the treatment facility without permission and was discharged from

SAFPF for leaving. Birdsall agreed the aftercare at the Salvation Army was part of appellant’s

conditions of probation and that, by leaving the aftercare program of SAFPF, he violated his

probation. Appellant’s counsel did not object to Birdsall’s testimony regarding the contents of

Exhibit 2 or her testimony generally regarding the alleged violation of appellant’s probation.


     1
       The record before us shows this motion was the fourth motion to revoke filed by the State against appellant in both cases. The prior
motions resulted in the trial court making modifications to the conditions of appellant’s community supervision, including the addition of a
requirement to participate in the Substance Abuse Punishment Facility Program (SAFPF) and a drug/alcohol continuum of care treatment plan
following his release from SAFPF.



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        On cross-examination, Birdsall testified appellant violated the rules and regulations of his

treatment by leaving and by testing positive for cocaine. She agreed appellant had participated in

the Salvation Army program for approximately two months prior to his discharge. Birdsall

further acknowledged appellant had a negative urinalysis the morning of the alleged incident and

that she thought the urinalysis taken at the Salvation Army later that day was an “instant” test,

not sent for further analysis.

        Appellant testified in his defense at the hearing. He testified that on the day in question,

he obtained a pass from his counselor to see his probation officer and met him at approximately

10:00 a.m. While meeting with his probation officer, appellant was given a urinalysis, which

was negative. After meeting his probation officer, he met his girlfriend at the train station and

returned to the Salvation Army. Appellant explained he was required to return to the Salvation

Army by 11:15 or 11:30 and that he signed in upon his return. He stated that, after returning, he

did his prayers, went to groups, had lunch, and then worked with a couple of other men buffing

the floor for two or three hours.

        Appellant testified that, while buffing the floors, he felt like he pulled a muscle in his

stomach and was in pain. He asked for a medical pass to go across the street to Parkland

Hospital to obtain a refill on his prescription Etodolac, a painkiller he had been prescribed.

Appellant was told he would have to wait for permission from a senior counselor and that he

waited four or five hours for the senior counselor to arrive. When the senior counselor arrived,

appellant asked for a pass because he was still in pain, but was called into the case aid office with

two other individuals. There, the counselor indicated he wanted a breathalyzer and urinalysis

from appellant. Appellant testified his breathalyzer sample was “clean” and then all three men

submitted their urine samples at the same time in unmarked cups. Appellant stated that, when

the results came back, the counselor said, “Well, that’s why your stomach hurting. You been

                                                –3–
doing cocaine.”            Appellant indicated he requested another test and pointed out his earlier

negative urinalysis. He testified he was denied another urinalysis, because it was not the policy.

Appellant further stated the counselor told him he needed to get his stuff and leave or he would

have security call the police if he did not leave. Appellant testified he then left. He denied that

he had used profanity.

          Appellant said he then called his probation officer the next morning and told him what

transpired at the Salvation Army. Appellant stated his probation officer said he needed to wait

for the report from the Salvation Army and he only wanted appellant to stay clean and sober and

take two NA/AA classes per week, which he did. Appellant testified he was unable to get in

touch with his probation officer again for several days and, when he did, the probation officer

told him he did not need to do anything but report to him as scheduled.

          On cross-examination, appellant acknowledged that the trial court had previously

instructed him that, if he got into any trouble, he was supposed to report to the judge. He

admitted he did not report to the judge.

          The trial court granted the State’s motion to revoke probation or proceed with an

adjudication of guilt in both cases and adjudicated appellant guilty. In the aggravated assault

with a deadly weapon case, the trial court assessed appellant’s punishment at fifteen years’

imprisonment. The trial court assessed a term of five years’ imprisonment for the deadly

conduct case.2

                                                                 Analysis

Right to Confrontation

          In his first issue, appellant contends the trial court abused its discretion when it allowed

the State to use hearsay evidence in violation of Crawford v. Washington, 541 U.S. 36 (2004). In

   2
       We note the record reflects appellant was also previously convicted of unlawful carrying of a weapon in 2010.



                                                                     –4–
Crawford, the Supreme Court held that out-of-court testimonial statements by a witness, who

fails to testify at trial, are barred by the Sixth Amendment’s confrontation clause unless the

witness in unavailable to testify and the accused had a prior opportunity to cross-examine the

witness, regardless of whether such statements are deemed reliable. Id. at 59-65. Appellant

argues the “documents submitted by the Salvation Army worker and read out loud via the

Court’s Probation Officer are, in fact, testimonial” and violated appellant’s rights under

Crawford.

          The confrontation clause by its own terms applies only to “criminal prosecutions.” See

U.S. CONST. amend VI. Because probation revocation is not a stage of a “criminal prosecution,”

the Sixth Amendment does not apply. Wisser v. State, 350 S.W.3d 161, 164 (Tex. App.−San

Antonio 2001, no pet.); Trevino v. State, 218 S.W.3d 234, 239 (Tex. App.−Houston [14th Dist.]

2007, no pet.); Smart v. State, 153 S.W.3d 118, 121 (Tex. App.−Beaumont 2005, pet. ref’d).

The same is true of deferred adjudication probation.

          The Eastland Court of Appeals has applied the general rule that revocation proceedings

are not a phase of “criminal prosecution” for the purpose of the Sixth Amendment in the deferred

adjudication context. Mauro v. State, 235 S.W.3d 374, 376 (Tex. App.−Eastland 2007, pet.

ref’d).    Deferred adjudication probation differs from regular probation in that it permits a

defendant who pleads guilty to an offense and who successfully completes probation to avoid

“conviction.” However, the issue of appellant’s guilt for the offense is determined in the initial

plea proceedings, and the only issue to be determined in the revocation proceedings is whether to

proceed with an adjudication of guilt. See TEX. CODE CRIM. PROC. ANN. art. 42.12 §5(b). We

conclude because appellant’s guilt was already determined in the prior plea proceedings, the

revocation proceedings were not a phase of “criminal prosecution” for purposes of the Sixth

Amendment. See Gutierrez v. State, No. 05-11-01380-CR, 2013 WL 3533549, at *1-2 (Tex.

                                               –5–
App.−Dallas July 12, 2013, pet. ref’d) (not designated for publication). Therefore, the trial court

did not err in admitting the documents submitted by the Salvation Army worker and read out

loud via the Court’s Probation Officer under Crawford. See id. at *2.

        Further, the record before us shows appellant failed to lodge any objection to either

Exhibit 2 or Birdsall’s testimony regarding Exhibit 2 and her testimony generally regarding the

alleged violation of appellant’s probation. Accordingly, because appellant failed to object based

on the Sixth Amendment, the confrontation clause, or article I, section 10, we conclude he has

waived his right to review. See Deener v. State, 214 S.W.3d 522, 527-28 (Tex. App.−2006, pet.

ref’d). We overrule his first issue.

Sufficiency of the Evidence

        In his second issue, appellant argues the trial court abused its discretion when it

adjudicated his guilt based upon legally insufficient evidence. Appellate review of an order

revoking community supervision is limited to determining whether the trial court abused its

discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). An order

revoking probation must be supported by a preponderance of the evidence, meaning the greater

weight of the credible evidence which would create a reasonable belief that the defendant has

violated a condition of probation. Id. at 763-64. We must view the evidence in the light most

favorable to the verdict, and it is the trial court’s duty to judge the credibility of the witnesses

and to determine whether the allegations in the motion to revoke are true or not. See Garret v.

State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). A finding of a single violation of

community supervision is sufficient to support revocation. See Sanchez v. State, 603 S.W.2d

869, 871 (Tex. Crim. App. 1980).

        The trial court, as the trier of fact and the arbiter of the credibility of the witnesses, was

free to believe Birdsall’s testimony that appellant violated the conditions of his community

                                                  –6–
supervision by failing to “participate in a drug/alcohol continuum of care treatment plan

following release from the Substance Abuse Felony Punishment Program, adhering to all rules

and regulations of said treatment plan until discharged by the staff of the continuum of care

program.” See Garrett, 619 S.W.2d at 174. The trial court was also free to reject appellant’s

claim that he was told to leave. See id. Viewing the evidence in the light most favorable to the

verdict, our review of the record demonstrates Birdsall’s testimony, along with Exhibit 2,

constitutes credible evidence from which the trial court concluded by a preponderance of the

evidence that appellant violated a term of his community supervision. See Rickels, 202 S.W.3d

at 763; Garret, 619 S.W.2d at 174. A finding of a single violation of community supervision is

sufficient to support an adjudication of guilt. See Sanchez, 603 S.W.2d at 871. Therefore, we

conclude the trial court did not abuse its discretion in adjudicating appellant guilty in both cases.

See Rickels, 202 S.W.3d at 763-64. We overrule appellant’s second issue.

       Having overruled appellant’s two issues, we affirm the judgment of the trial court.




Do Not Publish
TEX. R. APP. P. 47
130900F.U05                                           /David L. Bridges/
                                                      DAVID L. BRIDGES
                                                      JUSTICE




                                                –7–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

JAMES RILEY, Appellant                            On Appeal from the 282nd Judicial District
                                                  Court, Dallas County, Texas
No. 05-13-00900-CR       V.                       Trial Court Cause No. F-1140796-S.
                                                  Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                      Justices Francis and Lang-Miers
                                                  participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered May 8, 2014




                                                  /David L. Bridges/
                                                  DAVID L. BRIDGES
                                                  JUSTICE




                                            –8–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

JAMES RILEY, Appellant                            On Appeal from the 282nd Judicial District
                                                  Court, Dallas County, Texas
No. 05-13-00901-CR       V.                       Trial Court Cause No. F-1140798-S.
                                                  Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                      Justices Francis and Lang-Miers
                                                  participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered May 8, 2014




                                                  /David L. Bridges/
                                                  DAVID L. BRIDGES
                                                  JUSTICE




                                            –9–
