                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00041-CR


MANUEL CANTU                                                        APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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      Appellant Michael Cantu appeals the trial court‟s judgment adjudicating his

guilt and imposing a six-year prison sentence for deadly conduct. We affirm.

      Appellant pleaded guilty to deadly conduct––discharging a firearm at an

individual––and received a six-year term of deferred-adjudication community

supervision. Five months later, Fort Worth police officers responding to a report

of shots fired at a bar saw a woman run out of the bar, point to a red Dodge

pickup truck, and exclaim, “That‟s the truck, that‟s the truck.”    The officers
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       See Tex. R. App. P. 47.4.
performed a felony stop of the truck, which was driven by Appellant. Riding in

the bed of the truck was self-reported gang member Christopher Garza. After

taking Garza into custody, the officers discovered a loaded Taurus nine-

millimeter handgun under a bandana in the truck bed.

      The State petitioned to adjudicate Appellant‟s guilt and revoke his

community supervision.       Specifically, the State alleged that Appellant had

violated the conditions of his community supervision by, among other things,

associating with a person of harmful or disreputable character and remaining in a

vehicle with a firearm. After a hearing, the trial court granted the State‟s petition

and sentenced Appellant to six years‟ confinement.

      In his first issue, Appellant contends that the trial court violated his Sixth

Amendment right to confrontation as set out in Crawford v. Washington, 541 U.S.

36, 124 S. Ct. 1354 (2004), by admitting documentary evidence that Appellant

and Garza were both listed in Fort Worth Police Gang Unit reports as having

previously identified themselves as members of local street gangs.           State‟s

Exhibit 3 is a “Report on Subject Cantu, Manuel [Appellant]” prepared by the Fort

Worth Police Gang Unit. Under the heading, “Gang Affiliation(s),” appears the

name of a local street gang and immediately underneath that, under the heading

“Criteria for Inclusion” appear the words “SELF ADMISSION.”        State‟s Exhibit 4

is a similar report on “Garza, Christopher.” It also lists the name of a gang under

the heading “Gang Affiliation(s)” as well as “SELF ADMISSION” under the

heading “Criteria for Inclusion.”

      The Texas Court of Criminal Appeals has not considered whether the

Confrontation Clause applies to community-supervision revocation proceedings.



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However, the Supreme Court of Washington has held that it does not apply to

that state‟s sentence-modification hearings, which are conducted after the state

has alleged that a probationer has violated conditions of his post-conviction

“community placement.”      See State v. Abd-Rahmaan, 111 P.3d 1157, 1158,

1160–61 (Wash. 2005).        Noting that the Confrontation Clause of the Sixth

Amendment explicitly applies to “criminal prosecutions‟” and that, “although an

individual is guaranteed some rights in post-conviction hearings, it is not the „full

panoply of rights‟ guaranteed a defendant in a criminal prosecution[,]” the court

concluded that, “[b]y its own terms, the guaranties of the Sixth Amendment do

not apply in these post-conviction settings but to „criminal prosecutions.‟” Id.

      Several federal circuit courts also have held that Crawford does not apply

in parole revocation, supervised release or probation revocation proceedings.

See Ash v. Reilly, 431 F.3d 826, 830 (D.C. Cir. 2005); United States v.Rondeau,

430 F.3d 44, 47–48 (1st Cir. 2005); United States v. Kirby, 418 F.3d 621, 627–28

(6th Cir. 2005); United States v. Aspinall, 389 F.3d 332, 342–43 (2d Cir. 2004),

abrogation on other grounds recognized by Clark v. Astrue, 602 F.3d 140 (2d Cir.

2010); United States v. Martin, 382 F.3d 840, 844 (8th Cir. 2004).

      Similarly, the United States District Court for the Southern District of

California held that Crawford does not apply in an unsupervised-release

revocation proceeding. United States v. Barraza, 318 F. Supp. 2d 1031, 1035

(S.D. Cal. 2004).    That court followed precedent of the Ninth Circuit, which

established the right to confrontation recognized in Morrissey v. Brewer, 408 U.S.


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471, 92 S. Ct. 2593 (1972), as a due process right emanating from the

Fourteenth Amendment, not from the Sixth Amendment. See United States v.

Daniel, 209 F.3d 1091, 1093 (9th Cir.), cert. denied, 531 U.S. 999 (2000).

      Further, a number of our sister courts have held that Crawford does not

apply to probation revocation proceedings. Trevino v. State, 218 S.W.3d 234,

239 (Tex. App.––Houston [14th Dist.] 2007, no pet.) (holding Crawford does not

apply to probation revocation hearings); Diaz v. State, 172 S.W.3d 668, 670

(Tex. App.––San Antonio 2005, no pet.) (holding Crawford does not apply to

community-supervision revocation hearings); Smart v. State, 153 S.W.3d 118,

121 (Tex. App.––Beaumont 2004, pet. ref‟d), cert. denied, 546 U.S. 1016 (2005)

(same).

      But the case before us is an appeal from a deferred-adjudication

community-supervision-revocation proceeding.       Because at the time of an

adjudication hearing no conviction has occurred, it is unclear whether the

prosecution of the case has ended. We have found only one case that has

addressed whether Crawford applies to proceedings to determine whether a

probationer placed on deferred-adjudication community supervision should be

adjudicated and have his or her community supervision revoked. See Mauro v.

State, 235 S.W.3d 374, 375–76 (Tex. App.––Eastland 2007, pet. ref‟d) (holding

Crawford does not apply to deferred-adjudication community-supervision

proceedings).

      We need not decide, however, whether Crawford applies to deferred

adjudication proceedings because even if it does, the challenged evidence in this

case does not fall within that class of evidence––testimonial hearsay––that the



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Sixth Amendment prohibits without having the accusing witness present or the

defendant‟s having had a prior opportunity to cross-examine him. See Crawford,

541 U.S. at 53–54, 124 S. Ct. at 1365. The evidence that Garza was listed in a

gang unit report as having self-identified as a gang member is not testimonial as

to Appellant because it does not accuse Appellant of anything. Therefore, the

trial court did not abuse its discretion to admit State‟s Exhibit 4. Further, the

evidence that Appellant was likewise listed as having self-identified as a gang

member in a similar report is not testimonial hearsay. State‟s Exhibit 3 is not

accusatory because it does not accuse Appellant of doing anything for which he

might be prosecuted; it is a mere record that Appellant has claimed membership

in a gang. At the first level, it is an admission because Appellant is the declarant,

therefore, by definition, it is non-hearsay. Tex. R. Evid. 801(e)(2)(A). And at the

next level, Appellant‟s admission that he was a gang member is non-hearsay

because it was not offered for the truth of the matter asserted––that Appellant

was a gang member––but rather for the fact that he is listed in a report as having

claimed gang membership. Tex. R. Evid. 801(c). Because we hold that the

challenged evidence does not fall within the class of evidence prohibited by the

Sixth Amendment as interpreted by Crawford, we overrule Appellant‟s first issue.

See Crawford, 541 U.S. at 53–54, 124 S. Ct. at 1365.

      In his second and third issues, Appellant contends that the evidence is

insufficient to support the trial court‟s finding that he violated the conditions of his

community supervision.

      The decision to proceed to an adjudication of guilt and revoke deferred

adjudication community supervision is reviewable in the same manner as a


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revocation of ordinary community supervision. Tex. Code Crim. Proc. Ann. art.

42.12, § 5(b) (Vernon Supp. 2010). 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); Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.CFort Worth

2007, pet. ref=d).   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); Cherry, 215 S.W.3d at 919. 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); Cherry, 215 S.W.3d at 919. 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. Proof by a preponderance of the

evidence of any one of the alleged violations of the conditions of community

supervision is sufficient to support a revocation order.     Moore v. State, 605

S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Sanchez v. State, 603

S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); Leach v. State, 170 S.W.3d

669, 672 (Tex. App.CFort Worth 2005, pet. ref‟d.).

      Viewed in the light most favorable to the judgment, the evidence shows

that Appellant was on deferred adjudication for discharging a weapon at or in the

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direction of a habitation when the truck he was driving was stopped by police

who had responded to a shots-fired call at a bar. When the officers arrived, they

observed the truck driven by Appellant leaving the location and a woman running

out of the bar, pointing at Appellant‟s truck, and exclaiming, “That‟s the truck.

That‟s the truck.”   Within six inches of where Garza, a self-admitted gang

member, was riding in the bed of the truck at the time it was stopped, officers

found a loaded nine-millimeter handgun hidden under a bandana.                It is

undisputed that Appellant and Garza appeared to know each other. From this

evidence, it is not outside the zone of reasonable disagreement for the trial court

to have believed and found that it was more than likely that Appellant had known

that Garza was a person of harmful or disreputable character or that Appellant

had remained in a vehicle with a weapon. Either of these findings would support

the trial court‟s order adjudicating Appellant‟s guilt and revoking his community

supervision. Thus, there is no error in the trial court‟s judgment. Appellant‟s

second and third issues are overruled.




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      Having overruled all of Appellant‟s issues, the trial court‟s judgment is

affirmed.



                                                LEE GABRIEL
                                                JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

PUBLISH

DELIVERED: February 3, 2011




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