                         NUMBER 13-18-00173-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JOHN DAVID GALINDO,                                                       Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                    On appeal from the 24th District Court
                         of Calhoun County, Texas.


                         MEMORANDUM OPINION

            Before Justices Contreras, Longoria, and Hinojosa
               Memorandum Opinion by Justice Contreras

      Appellant John David Galindo appeals from the revocation of his community

supervision for possession of cocaine, a controlled substance, in an aggregate weight of

one to four grams, a third-degree felony enhanced to a second-degree felony due to a

prior felony conviction. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), .115(c)
(West, Westlaw through 2017 1st C.S.); TEX. PENAL CODE ANN. § 12.42(b) (West, Westlaw

through 2017 1st C.S.). By one issue, appellant argues the trial court erred when it

overruled his objection to part of a witness’s testimony. We affirm.

                                    I.   BACKGROUND

       In 2015, appellant was indicted for possession of cocaine. See TEX. HEALTH &

SAFETY CODE ANN. §§ 481.115(c). Pursuant to a plea agreement, appellant pleaded guilty

and received ten years of deferred adjudication community supervision.

       In May of 2017, appellant was arrested for possession of a controlled substance

and tampering with physical evidence. The State then filed a motion to adjudicate

appellant’s guilt and revoke his community supervision. See TEX. CODE CRIM. PROC. ANN.

arts. 42A.751, 42A.755 (West, Westlaw through 2017 1st C.S.). The motion alleged eight

violations of the terms and conditions of appellant’s community supervision, and appellant

pleaded “not true” to all eight. In addition to violations stemming from this most recent

arrest, the State alleged appellant failed a drug test and failed to pay multiple fees related

to his community supervision.

       At the hearing on the State’s motion, the State called three witnesses: appellant’s

community supervision officer and the two officers who took part in appellant’s 2017

arrest. James Tolar, a corporal with the Calhoun County Sheriff’s Office, testified about

the traffic stop which resulted in appellant’s arrest and explained appellant was the

passenger in a vehicle he stopped. In the car, on the floor of the passenger side, Tolar

found a white powdery substance later identified as cocaine. The same white powdery

substance, Tolar testified, was found on both boots appellant was wearing. In regard to

the tampering with physical evidence charge, the State asked Tolar what he thought



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appellant was trying to do with cocaine on his boots, to which defense counsel objected

on the basis that it called for speculation. The court implicitly overruled appellant’s

objection,1 and Tolar testified that appellant was tampering with the cocaine in order to

hide it from police.

         The trial court found all eight alleged violations to be true, revoked appellant’s

community supervision, adjudicated him guilty, and sentenced him to ten years in the

Institutional Division of the Texas Department of Criminal Justice. This appeal followed.

                                           II.   DISCUSSION

A.       Standard of Review and Applicable Law

         Appellate review of an order revoking community supervision is limited to abuse of

the trial court’s discretion. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2009);

Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) (quoting Cardona v. State,

665 S.W.2d 492, 493 (Tex. Crim. App. 1984) (en banc)). Likewise, we review a trial

court’s decision on the admissibility of evidence for an abuse of discretion. Torres v.

State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing Burden v. State, 55 S.W.3d 608,

615 (Tex. Crim. App. 2001)); see Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App.

2006).

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

evidence that the defendant violated a condition of community supervision as alleged in

the State’s motion to revoke. Rickels, 202 S.W.3d at 763–64; Cobb v. State, 851 S.W.2d

871, 873 (Tex. Crim. App. 1993) (en banc). Preponderance of the evidence “means that

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


         1The trial court did not explicitly rule on appellant’s objection but said to Corporal Tolar “you can
answer it.”

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defendant violated a condition” of his community supervision. Hacker, 389 S.W.3d at

865; Rickels, 202 S.W.2d at 763–64. At a revocation hearing, the trial court is the sole

judge of the credibility of the witnesses and the weight to be given to their testimony, and

we must view the evidence in the light most favorable to the trial court’s ruling. See

Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App.

[Panel Op.] 1981). When the State has failed to meet its burden of proof, the trial judge

abuses his discretion in issuing an order to revoke community supervision. Cardona, 665

S.W.2d at 493–94.

       One sufficient and unchallenged violation of the terms of a defendant’s community

supervision will support the trial court’s order on appeal, and an appellate court need not

address challenges to other grounds for revocation. Sanchez v. State, 603 S.W.2d 869,

871 (Tex. Crim. App. [Panel Op.] 1980); see Smith v. State, 286 S.W.3d 333, 342 (Tex.

Crim. App. 2009) (“We have long held that ‘one sufficient ground for revocation would

support the trial court’s order revoking’ community supervision.”) (quoting Jones v. State,

571 S.W.2d 191, 193–94 (Tex. Crim. App. [Panel Op.] 1978)). Thus, a trial court does

not abuse its discretion if a preponderance of the evidence supports at least one of the

State’s allegations that the defendant violated a condition of his community supervision.

Lively v. State, 338 S.W.3d 140, 143 (Tex. App.—Texarkana 2011, no pet.); see Leonard

v. State, 385 S.W.3d 570, 576 (Tex. Crim. App. 2012).

       If we find error regarding the admissibility of evidence, we will disregard the error

as harmless if it was non-constitutional and did not affect appellant’s substantial rights.

See TEX. R. APP. P. 44.2(a), (b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App.

2001). An erroneous evidentiary ruling is generally non-constitutional error. See Potier



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v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002) (en banc) (“Erroneous evidentiary

rulings rarely rise to the level of denying the fundamental constitutional rights to present

a meaningful defense.”); see also Casey v. State, 215 S.W.3d 870, 884–85 (Tex. Crim.

App. 2007); Jones v. State, 119 S.W.3d 766, 776–77 (Tex. Crim. App. 2003) (en banc)

(noting that the admission of defendant’s confession was evidentiary error of

constitutional nature because the confession was obtained without Miranda warnings in

violation of the Fifth Amendment). An appellant’s “substantial rights are not affected by

the erroneous admission of evidence ‘if the appellate court, after examining the record as

a whole, has fair assurance that the error did not influence the [judge], or had but a slight

effect.’” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (quoting Solomon v.

State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410,

417 (Tex. Crim. App. 1998)).

B.     Analysis

       By his sole issue, appellant argues that the trial court erred in overruling his

objection to Corporal Tolar’s testimony on the basis that it called for speculation. We will

assume, without deciding, that the trial court abused its discretion in overruling appellant’s

objection, and we will proceed to our analysis of whether appellant suffered any harm as

a result.

       Here, appellant complains of an alleged non-constitutional evidentiary error. See

Casey, 215 S.W.3d at 884–85; Potier, 68 S.W.3d at, 663–64; see also Jones, 119 S.W.3d

at 776–77. And appellant’s evidentiary argument pertains to only one of the alleged

violations of his community supervision—i.e., that he received a new criminal charge for

tampering with physical evidence. Appellant does not address the trial court’s finding of



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true as to the allegations that he committed the offense of possession of a controlled

substance, failed a drug test while on community supervision, and failed to pay multiple

fees associated with his supervision. As noted earlier, Texas law is clear that one

sufficient ground for revocation will support the trial court’s order revoking community

supervision. Smith, 286 S.W.3d at 342; Sanchez, 603 S.W.2d at 871.

       At the hearing on the State’s motion to revoke, the trial court heard testimony from

appellant’s community supervision officer about his failed drug test and about his failure

to pay his monthly supervision fees, restitution fees, crime stoppers fees, and court costs.

The trial court also heard testimony from two police officers about appellant’s arrest for

possession of a controlled substance. Viewing the evidence in the light most favorable

to the trial court’s ruling, we find that the trial court could have reasonably concluded that

the State met its burden of proving by a preponderance of the evidence that appellant

violated the terms and conditions of his community supervision, even disregarding the

challenged testimony. See Hacker, 389 S.W.3d at 865; Rickels, 202 S.W.3d at 763–64;

Cardona, 665 S.W.2d at 493. Thus, after examining the record as a whole, we have fair

assurance that the error, if any, did not have a substantial and injurious effect or influence

in determining the judge’s verdict. See Smith, 286 S.W.3d at 342; Casey, 215 S.W.3d at

885; Motilla, 78 S.W.3d at 359–60. Accordingly, we conclude that any potential error in

failing to prevent Corporate Tolar from testifying as to the tampering with evidence charge

did not contribute to appellant’s adjudication of guilt, and any such error was harmless.

See TEX. R. APP. P. 44.2; Smith, 286 S.W.3d at 342; Casey, 215 S.W.3d at 884–85.

       Finally, although appellant briefly mentions that the admission of Corporal Tolar’s

response resulted in the imposition of a longer sentence, appellant does not show or



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otherwise discuss how that evidence affected the sentence handed down by the trial

court. See TEX. R. APP. P. 38.1(i). In this regard, we note that appellant’s offense for

possession of a controlled substance was enhanced to a second-degree felony, which is

punishable by confinement for a period between two and twenty years and/or a fine not

to exceed $10,000. See TEX. PENAL CODE ANN. § 12.33 (West, Westlaw through 2017

1st C.S.). Here, appellant was sentenced to ten years’ confinement and no fine—a

penalty far less than the maximum sentence permitted for such an offense. In addition,

appellant did nothing in the trial court to preserve any error regarding the punishment

assessed. See TEX. R. APP. P. 33.1.

       Appellant’s sole issue is overruled.

                                   III.   CONCLUSION

       We affirm the trial court’s judgment.

                                                            DORI CONTRERAS
                                                            Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
9th day of August, 2018.




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