AFFIRM; and Opinion Filed July 12, 2013.




                                          S  In The
                                       Court of Appeals
                                Fifth District of Texas at Dallas

                                       No. 05-11-01380-CR

                             MATTHEW GUTIERREZ, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 401st Judicial District Court
                                    Collin County, Texas
                            Trial Court Cause No. 401-80235-09

                                MEMORANDUM OPINION
                           Before Justices Moseley, O'Neill, and Lewis
                                   Opinion by Justice O'Neill
       Appellant Matthew Gutierrez appeals his conviction for possession of methamphetamine.

In a single point of error, appellant contends the trial court erred in admitting his probation

records in violation of the Confrontation Clause.          For the following reasons, we affirm

appellant’s conviction.

       Appellant pleaded guilty to possession of methamphetamine and was placed on deferred

adjudication probation for three years. The State subsequently filed a petition to adjudicate

appellant guilty alleging he violated probation by failing to report, failing to pay fines, failing to

pay court costs and supervision fees, failing to perform community service, and failing to submit

to substance abuse evaluation and treatment. Following a hearing, the trial court found appellant

violated probation by failing to report, failing to perform community service, and failing to

submit to substance abuse evaluation and treatment.
          At the hearing on the petition to adjudicate, the State relied on appellant’s probation

“chronos,” records made by the probation department that outlined appellant’s contacts with the

probation department, to prove he violated the conditions of his probation. The records were

authenticated by the testimony of Collin County Probation Officer Leigh Riley. Riley had no

personal knowledge of the contents of the records, but testified as the records custodian.

Appellant objected that admission of the records violated his rights under the Confrontation

Clause of the United States Constitution as enunciated in Crawford v. Washington, 541 U.S. 36

(2004).     He also objected the records were inadmissible hearsay and did not meet the

requirements of the business records exception. The trial court overruled appellant’s objections,

admitted the records, and allowed Riley to testify to their contents.

          On appeal, appellant first asserts admission of the records violated his rights under the

Confrontation Clause of the Sixth Amendment. The Confrontation Clause by its own terms

applies only to “criminal prosecutions.”       See U.S. U.S. CONST. amend. VI.          Because a

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). Appellant concedes this general rule

insofar as it applies to “regular” probation, but contends since he was placed on deferred

adjudication probation, and was neither “convicted” nor sentenced until his probation was

revoked, the revocation proceeding was a phase of the criminal prosecution. The State responds

revocation, whether following “regular” probation or deferred adjudication probation, is not a

stage of criminal prosecution, and there is no constitutional basis to provide greater Sixth

Amendment rights to a defendant who has been given the benefit of deferred adjudication

probation. We agree with the State.

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

are not a phase of a criminal “prosecution” for purposes 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). We agree. 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) (West Supp. 2012). 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. 1 Cf. Peters v. Florida, 984 So.2d 1227, 1231-32 (Fla.

2008), cert. denied, 555 U.S. 1109 (2009) (concluding criminal prosecution ends with a

determination of guilt for the charged offense, regardless of whether imposition of sentence is

withheld).        Therefore, the trial court did not err in admitting the probation report under

Crawford.

          In the alternative, appellant contends the trial court erred in admitting the records under

the business records exception. We review a trial court’s decision to admit or exclude evidence

for an abuse of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). A trial

court’s abuses its discretion only if its decision is “so clearly wrong as to lie outside the zone

within which reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex.

Crim. App. 2008).




     1
      In a revocation proceeding, a defendant does have certain rights of cross-examination under the due process clause. See Black v. Romano,
471 U.S. 606, 612 (1985). Appellant did not raise a due process objection in the trial court.



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          The trial court admitted the probation records under the business records exception to the

hearsay rule. Appellant asserts the trial court erred in doing so because the records did not have

a sufficient indicia of trustworthiness.       Rule 803(6) excepts from the hearsay rule “[a]

memorandum, report, record, or data compilation, in any form, of acts, events, conditions,

opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person

with knowledge, if kept in the course of a regularly conducted business activity, and if it was the

regular practice of that business activity to make the memorandum, report, record, or data

compilation, all as shown by the testimony of the custodian or other qualified witness, . . . unless

the source of information or the method or circumstances of preparation indicate lack of

trustworthiness.” TEX. R. EVID. 803(6). Rule 803(6) does not require the person authenticating

the record to have created the record or to have personal knowledge of the information recorded

therein. Canseco v. State, 199 S.W.3d 437, 440 (Tex. App.—Houston [1st Dist.] 2006, pet.

ref’d).

          Probation files are generally admissible as business records when the proper predicate is

shown. See Simmons v. State, 564 S.W.2d 769, 770 (Tex. Crim. App. 1978); Dodson v. State,

689 S.W.2d 483, 485 (Tex. App.—Houston [14th Dist.] 1985, no pet.) (holding that, when

proper predicate is laid, probation file is admissible as business record). Here, the records

custodian testified that the chronos were made at or near the time of the evidence reported, the

records were made by somebody with knowledge of the events recorded, and that the records

were kept in the ordinary course of business as required by the probation department. Appellant

does not dispute the State met these predicate requirements, but contends the records were

nevertheless inadmissible because they did not have a sufficient “indicia of reliability.” A

document meeting the predicate requirements may still be inadmissible if the source of

information or method or circumstances of preparation of the records indicate a lack of

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trustworthiness. See TEX. R. EVID. 803(6). But appellant did not raise this complaint in the trial

court. Therefore, it is waived. See TEX. R. APP. 33.1(a). We cannot conclude the trial court

abused its discretion in admitting the records. See Canseco, 199 S.W.3d at 440.

       We resolve the sole issue against appellant and affirm the trial court’s judgment.




                                                     /Michael J. O'Neill/
                                                     MICHAEL J. O'NEILL
                                                     JUSTICE


Do Not Publish
Tex. R. App. 47

111380F.U05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

MATTHEW GUTIERREZ, Appellant                           On Appeal from the 401st Judicial District
                                                       Court, Collin County, Texas
No. 05-11-01380-CR         V.                          Trial Court Cause No. 401-80235-09.
                                                       Opinion delivered by Justice O'Neill.
THE STATE OF TEXAS, Appellee                           Justices Moseley and Lewis participating.

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


Judgment entered this 12th day of July, 2013.




                                                      /Michael J. O'Neill/
                                                      MICHAEL J. O'NEILL
                                                      JUSTICE




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