                           NUMBER 13-18-00130-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

RAMIRO GARCIA LOPEZ JR.,                                                Appellant,

                                         v.

THE STATE OF TEXAS,                                                       Appellee.


                  On appeal from the 430th District Court
                        of Hidalgo County, Texas.



                       MEMORANDUM OPINION
  Before Chief Justice Contreras and Justices Longoria and Perkes
             Memorandum Opinion by Justice Longoria

      Appellant Ramiro Garcia Lopez Jr. was placed on community supervision for

possession of marijuana. See TEX. HEALTH & SAFETY CODE ANN. § 481.121. The trial

court subsequently revoked his community supervision. By three issues, Lopez argues:

(1) the State’s second amended motion for revocation was barred by collateral estoppel
and res judicata; (2) the evidence was legally insufficient to support the revocation of his

community supervision; and (3) the trial court erred by admitting inadmissible hearsay.

We affirm as modified.

                                     I. BACKGROUND

       Lopez was indicted for money laundering in an amount greater than $200,000, a

first-degree felony, and possession of marijuana in an amount greater than fifty pounds

but less than 2,000 pounds, a second-degree felony. See TEX. PENAL CODE ANN.

§ 34.02(e); TEX. HEALTH & SAFETY CODE ANN. § 481.121. Lopez pleaded guilty to the

possession of marijuana charge. On June 16, 2014, Lopez was adjudicated guilty, was

sentenced to ten years’ imprisonment, and ordered to pay a $10,000 fine. Lopez’s

sentence was suspended, and he was placed on ten years of community supervision.

The State then dismissed the money laundering charge.

       On October 27, 2017, the State filed a motion to revoke Lopez’s community

supervision. The State alleged Lopez had committed three separate violations of his

community supervision by: (1) committing the offense of alien smuggling; (2) failing to

pay his monthly community supervision fee; and (3) failing to comply with the requirement

for community service hours.

       On November 16, 2017, Lopez moved to quash the revocation motion, alleging

that the motion did not track the statutory language or provide notice of “the particular

manner and means that constitute an offense.” Later that day, the State filed an amended

revocation motion, which was the same as the original motion except now it tracked the

elements of the Texas Penal Code for smuggling of persons. See TEX. PENAL CODE Ann.

§ 20.05(a)(1)(A). The case was called in the trial court, and Lopez pleaded not true;

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however, after two witnesses testified, the case was continued without the trial court

having made any findings or rulings.

       On November 20, 2017, the State filed a motion to dismiss its motion for

revocation. Three minutes later, the State filed an amended motion for revocation,

alleging Lopez had violated the terms of his community supervision. The allegations were

identical to the allegations made in the original revocation motion except the State now

alleged that Lopez violated the federal law related to alien harboring and smuggling

instead of Texas law. See 8 U.S.C.A. § 1324. Lopez again moved to quash, alleging

that the motion did not track the statutory language or provide notice of “the particular

manner and means that constitute an offense.” Lopez also filed a motion to dismiss the

new revocation motion on double jeopardy grounds. The trial court signed an order

dismissing the State’s first revocation motion filed on November 16, 2017. The State then

filed a new amended revocation set forth the elements of the federal law Lopez allegedly

violated.

       Lopez pleaded not true to all of the allegations, but following a hearing, the trial

court found them all true, revoked Lopez’s community supervision, and sentenced Lopez

to five years’ imprisonment. This appeal ensued.

                                II. COLLATERAL ESTOPPEL

       In his first issue, Lopez argues the second revocation motion filed on November

20, 2017 was barred by collateral estoppel and res judicata.

A. Standard of Review and Applicable Law

       Generally, to properly preserve issues for appeal, the issues raised on appeal must

comport with the objections at trial. See Bekendam v. State, 441 S.W.3d 295, 300 (Tex.

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Crim. App. 2014).         “The doctrine of collateral estoppel is embodied within the

constitutional bar against double jeopardy. But the two are not identical. Double jeopardy

bars any retrial of a criminal offense, while collateral estoppel bars any retrial of specific

and discrete facts that have been fully and fairly adjudicated.” Ex parte Watkins, 73

S.W.3d 264, 267–68 (Tex. Crim. App. 2002). Collateral estoppel bars

       successive litigation of an issue of fact or law that is actually litigated and
       determined by a valid and final judgment, and . . . is essential to the
       judgment. If a judgment does not depend on a given determination,
       relitigation of that determination is not precluded. . . . A determination ranks
       as necessary or essential only when the final outcome hinges on it.

State v. Waters, 560 S.W.3d 651, 661 (Tex. Crim. App. 2018) (quoting Bobby v. Bies,

556 U.S. 825, 834 (2009)); see York v. State, 342 S.W.3d 528, 553 (Tex. Crim. App.

2011) (Womack, J., concurring) (noting that res judicata “encompasses claim preclusion

and issue preclusion”).

B. Analysis

       We first note that Lopez’s trial court objections seemingly do not conform with the

issue he raises on appeal. At the trial court level, Lopez complained solely of double

jeopardy. On appeal, Lopez does not even mention double jeopardy and instead solely

contends that the second motion for revocation should have been barred by res judicata

and collateral estoppel. And as we stated above, double jeopardy and collateral estoppel

are not identical. State v. Akin, 484 S.W.3d 257, 263 (Tex. App.—Corpus Christi 2016,

no pet.).

       However, assuming without deciding that Lopez properly preserved his complaint,

we conclude the State’s second motion for revocation was not barred by collateral

estoppel, double jeopardy, or res judicata. In State v. Waters, the Texas Court of Criminal

                                              4
Appeals analyzed how double jeopardy and collateral estoppel apply in revocation

proceedings. 560 S.W.3d at 659. The Waters Court made the following observation

concerning double jeopardy:

       [I]n a revocation proceeding, the central question is whether the probationer
       has violated the terms of her community supervision and whether she
       remains a good candidate for supervision, rather than being one of guilt or
       innocence of the new offense. Moreover, because guilt or innocence is not
       the central issue at a revocation hearing, a defendant does not face
       punishment for the newly alleged offense in that proceeding. As we
       correctly recognized in Tarver, any punishment she would receive as a
       result of the revocation hearing relates back to the original offense for which
       she was placed on community supervision, not to the newly alleged
       offense. Thus, because there is no possibility of a new conviction and
       punishment arising from a revocation hearing, jeopardy does not attach for
       any offense that is alleged as a violation of the terms of community
       supervision in a revocation hearing, and double jeopardy protections are
       inapplicable.

Id. Thus, the second motion for revocation could not be barred by double jeopardy

implications. See id. The Waters Court continued by concluding that a subsequent

motion to revoke would be barred by collateral estoppel only when facts in question in the

first proceeding were “necessarily decided” and “essential to the judgment.” Id. at 661

(concluding that the second motion for revocation was not barred by collateral estoppel

even when the trial court, in the first motion for revocation, found the violation allegation

as “not true” because a trial’s court’s determination of not true or true is not “necessary

or essential” to the judgment such as to invoke collateral estoppel). For the same

reasons, res judicata would not apply in this case because there were no issues or claims

that were decided. See York, 342 S.W.3d at 553.

       In the present case, the trial court never made any factual determinations or rulings

on the first motion for revocation. Two witnesses testified, the case was continued, and

then the State moved to dismiss without the trial court ever making a finding. Therefore,
                                             5
the State’s second motion for revocation was not barred by collateral estoppel or res

judicata. See id. We overrule Lopez’s first issue.

              III. VIOLATION OF THE CONDITIONS OF COMMUNITY SUPERVISION

       In his second issue, Lopez asserts the State failed to sufficiently demonstrate that

he violated one of the conditions of his community supervision.

A. Standard of Review and Applicable Law

       We review revocation of community supervision for abuse of discretion. See

Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Carreon v. State, 548

S.W.3d 71, 77 (Tex. App.—Corpus Christi 2018, no pet.). To revoke a defendant’s

probation, the State need only prove a violation of a condition of the probation by a

preponderance of the evidence. See Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim.

App. 2013). Preponderance of the evidence means “that greater weight of the credible

evidence which would create a reasonable belief that the defendant has violated a

condition of his probation.” Id. A single proven violation is all that is needed to affirm a

trial court’s order revoking a defendant’s community supervision. See Smith v. State, 286

S.W.3d 333, 342 (Tex. Crim. App. 2009).

       When reviewing an order revoking community supervision, we view all the

evidence in the light most favorable to the trial court’s ruling. See Hacker, 389 S.W.3d at

865. The trial court as fact-finder is the sole judge of the credibility of witnesses and the

weight to be given to their testimony. See id. Thus, if the record supports conflicting

inferences, it must be presumed that the trial court resolved any such conflict in favor of

its findings. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).

B. Analysis

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       Lopez challenges the sufficiency of the evidence of all three of the alleged

violations. Concerning the allegation that he failed to pay his monthly supervision fees,

he does not dispute that he failed to pay. Rather, he contends the State failed to

demonstrate he was able to pay the fees and that his failure to do so was willful. The

relative statute states:

       In a revocation hearing at which it is alleged only that the defendant violated
       the conditions of community supervision by failing to pay community
       supervision fees or court costs or by failing to pay the costs of legal services
       as described by Article 42A.301(11), the state must prove by a
       preponderance of the evidence that the defendant was able to pay and did
       not pay as ordered by the judge.

See TEX. CODE CRIM. PROC. ANN. art. 42A.751(i) (emphasis added). However, the clear

language of the statute provides that the State only needs to prove the defendant’s ability

to pay when the failure to pay is the only allegation. See id. On the other hand, when

the State alleges more than one allegation at the revocation hearing, as in the present

case, the State is not required to prove the defendant had the ability to pay or that her

lack to do so was willful. See Gipson v. State, 428 S.W.3d 107, 113 (Tex. Crim. App.

2014) (Johnson, J., concurring) (“[T]he legislature’s chosen language indicates that it was

aware of the considerations in revoking a defendant’s community supervision and

decided to make mere failure to pay a revocable offense.”); see also Farr v. State, No.

13-17-00297-CR, 2018 WL 4017118, at *4 (Tex. App.—Corpus Christi Aug. 23, 2018, no

pet.) (mem. op., not designated for publication) (same). Because the State alleged Lopez

committed multiple violations of his community supervision, it was not required to prove

Lopez had the ability to pay. See TEX. CODE CRIM. PROC. ANN. art. 42A.751(i).

       Regarding the alien smuggling allegation, Lopez only challenges the knowledge

element of the offense.     See 8 U.S.C.A. § 1324(a)(1)(A) (stating that it is illegal to
                                              7
transport or conceal aliens if the defendant knows the individual is an alien). In other

words, he argues he “did not know of the presence of the people in the enclosed trailer

nor their legal status to be in the country.” However, between 2010 and 2012, the record

indicates that the State confiscated approximately 13,604 pounds of marijuana from

tractor trailers belonging to Lopez. In all three of these occasions, the marijuana was

concealed in cotton seed; in two of those three instances, Lopez confessed to having

knowledge of the marijuana. Thus, the record shows that Lopez has knowingly concealed

drugs in cottonseed containers in a similar fashion to how the fifteen individuals were

concealed beneath cotton seed in the present case.

       Additionally, according to GPS records, Lopez was at the cotton loading facility at

2:00 p.m. on October 3, 2017, when the cotton seed was loaded into the truck. The

individual who signed off on the cotton seed load initialed “R.L.” GPS data showed that

the truck was driven from the cotton loading facility to Lopez’s home. The GPS data

indicates that the truck left Lopez’s home at 2:00 a.m. the following day and did not make

any stops until reaching the checkpoint in Sarita, Texas. Border Patrol Agent Julio Rivera

testified that he was on duty when he observed Lopez drive to the checkpoint. Lopez

was driving a large semi-truck; the attached container had an open top but was covered

tightly by a tarp. Rivera testified that Lopez was stopped for further inspection based on

the continuous canine alerts. Upon x-ray inspection, it was revealed that fifteen people

were concealed in the container full of cotton seed. Viewing all of the evidence in the

light most favorable to the trial court’s finding, we conclude there was sufficient evidence

that Lopez had knowledge concerning the presence and legal status of the fifteen

individuals. See Hacker, 389 S.W.3d at 865.

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       Lastly, regarding the community supervision hours, Lopez argues that he had

completed some of the hours and that a medical condition prevented him from completing

the remainder of his community supervision hours.           However, the State provided

testimony showing that even though Lopez completed some of the hours, he did not

complete all of the required service. Additionally, the State provided testimony showing

that Lopez failed to complete his community service hours even after he received

clearance from his doctor. Viewing all of the evidence in the light most favorable to the

trial court’s finding, there was sufficient evidence to prove that Lopez did not complete the

required service hours. See Hacker, 389 S.W.3d at 865.

       Any one of the three allegations above would have been sufficient on its own to

support revocation. See Smith, 286 S.W.3d at 342. Therefore, the trial court did not

abuse its discretion in revoking his community supervision. See id. We overrule Lopez’s

second issue.

                                IV. INADMISSIBLE HEARSAY

       In his third issue, Lopez argues that the trial court admitted inadmissible hearsay

concerning the legal status of the individuals found in his cotton truck.

A. Standard of Review and Applicable Law

       A trial court’s ruling regarding the admissibility of evidence is reviewed for abuse

of discretion. See Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). As long

as the trial court’s decision was within the zone of reasonable disagreement and was

correct under any theory of law applicable to the case, it will be upheld. See Winegarner

v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). Upon finding a non-constitutional

error, the reviewing court will reverse only upon a finding that the error affected the

                                             9
substantial rights of the accused. TEX. R. APP. P. 44.2(b); see Barshaw v. State, 342

S.W.3d 91, 94 (Tex. Crim. App. 2011). Substantial rights are not affected if, based on the

record as a whole, this Court has a fair assurance that the erroneous admission of

evidence had either no influence or only a slight influence on the verdict. See Whitaker

v. State, 286 S.W.3d 355, 364 (Tex. Crim. App. 2009); Motilla v. State, 78 S.W.3d 352,

355 (Tex. Crim. App. 2002). In making this assessment, this Court considers everything

in the record, the nature of the evidence supporting the verdict, the character of the

alleged error, and how it relates to other evidence in the record. See Motilla, 78 S.W.3d

at 355. The presence of overwhelming evidence supporting the conviction can be a factor

in the evaluation of harmless error. See id. at 356.

       In order to preserve a challenge to the trial court’s admission of evidence, the

complaining party must have lodged a timely and specific objection and have obtained an

adverse ruling. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103. However, a party waives

an objection to the admission of evidence “when other such evidence was received

without objection, either before or after the complained-of ruling.” Leday v. State, 983

S.W.2d 713, 718 (Tex. Crim. App. 1998); Reckart v. State, 323 S.W.3d 588, 596 (Tex.

App.—Corpus Christi 2010, pet. ref’d).

B. Analysis

       Lopez complains about the following exchange at trial concerning the fifteen

individuals discovered in the truck:

       [Prosecutor]:        Now, when you say the fifteen bodies, what happens
                            to—what happened to those fifteen individuals?

       [Border Patrol
       Agent]:              They were processed accordingly and deported back
                            to their country.
                                           10
        [Defense Counsel]: Judge, I will object and ask the Court not to consider
                           that answer. This is a backdoor hearsay, Judge. The
                           only way that they would have been deported is to find
                           out where they’re from and there has been no
                           testimony as to that, Judge. So I ask the Court to strike
                           that portion of his testimony.

        [Trial Court]:           Objection is overruled.

        On appeal, Lopez argues this was inadmissible hearsay and that it was harmful

because “it was the closest showing that the individuals were ‘aliens.’” However, identical

evidence was introduced multiple times throughout the trial without any objections from

Lopez. For example, Lopez did not object when Border Patrol Agent Ernesto Reyna

testified, “We responded and we interviewed, my office, the office I work with, we

interviewed the aliens.” Lopez also did not object to the following exchange:

        [State’s Counsel]:       Did you retrieve any type of documents related to this
                                 case from any of these, the fifteen aliens or even from
                                 the Defendant?

        [Agent Reyna]:           No, ma’am.

        Therefore, Lopez waived his arguments concerning the testimony about the fifteen

individuals’ legal status because the same information was introduced through other

sources. 1 See Leday, 983 S.W.2d at 718; Reckart, 323 S.W.3d at 596. We overrule

Lopez’s third issue.

                         V. MODIFICATION TO THE TRIAL COURT JUDGMENT

        Appellate courts have the power to modify the trial court judgments and affirm them

as modified. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim.



        1 For example, Lopez’s counsel made the following comment during his closing argument: “Other
than that, Judge, I submit to the Court that with all the agents that have testified, certainly, there was
evidence of illegal aliens, but not of Mr. Lopez having anything to do with that at least not intentionally.”
                                                    11
App. 1993); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.)

(“We have the authority to reform the judgment to make the record speak the truth when

the matter has been called to our attention by any source.”). The first page of the

“Judgment Revoking Community Supervision & Sentence” reflects that Lopez pleaded

true to the allegations of the violations. However, as discussed above, the record, clearly

reflects that Lopez pleaded not true. Accordingly, we modify the judgment to reflect

Lopez’s plea of not true.

                                     VI. CONCLUSION

       We affirm the judgment of the trial court as modified.



                                                       NORA L. LONGORIA
                                                       Justice

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

Delivered and filed the
6th day of June, 2019.




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