                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                   §
 REGINALDO DELAROSA, JR.,                                          No. 08-12-00097-CR
                                                   §
                               Appellant,                             Appeal from the
                                                   §
 v.                                                             112th Judicial District Court
                                                   §
 THE STATE OF TEXAS,                                             of Reagan County, Texas
                                                   §
                               Appellee.                                (TC# 1587)
                                                   §

                                            OPINION

       Reginaldo Delarosa, Jr. appeals the trial court’s judgment revoking his community

supervision. In three issues, Delarosa contends that the trial court erred in granting the State’s

motion to revoke because the allegations in the motion did not comport with due process and

because the State failed to prove that the allegations were true. We affirm.

                      FACTUAL AND PROCEDURAL BACKGROUND

       Delarosa pleaded guilty to possession of cocaine in an amount less than one gram. The

trial court assessed Delarosa’s punishment at 730 days’ confinement, but suspended his sentence

and placed him on community supervision for two years. Three weeks later, the State filed a

motion to revoke Delarosa’s community supervision alleging, in part, that “[he] committed the

offense[s] of Aggravated Kidnapping . . . [and] . . . Sexual Assault . . . .”

       At the hearing on the State’s motion to revoke Delarosa’s probation, the State called
Delarosa’s former girlfriend, “Elizabeth,” as a witness.1 Elizabeth testified that Delarosa entered

a friend’s home without permission, “walked in the room and started hitting me and knocked me

on the ground and drug me out by my hair.” According to Elizabeth, Delarosa then did the

following to her without her permission: (1) put her in his truck; (2) banged her head against the

window; (3) drove her to his house; (4) pulled her out of the truck when he arrived at his home; (5)

threw her on the ground; (6) stepped on her head; and (7) put his fingers in her vagina “to see if

[she] was having sex.”

          After the State rested, Delarosa asked the trial court not to revoke his community

supervision because “[t]here’s nothing except [Elizabeth’s] word that this happened to her.” The

trial court was not swayed, however, and found that Delarosa committed the offenses of

aggravated kidnapping and sexual assault as alleged in the State’s motion to revoke. The trial

court then assessed Delarosa’s punishment at 730 days’ confinement.

            DUE PROCESS RIGHT TO FAIR NOTICE OF ALLEGED VIOLATION

          In his first issue, Delarosa argues that the motion to revoke failed to fairly inform him of

the violations against which he was required to defend because the motion simply alleged that he

committed the offenses of aggravating kidnapping and sexual assault without identifying the

alleged victims or describing the manner and means by which the offenses were committed. But

Delarosa never informed the trial court that the allegations in the State’s motion were

constitutionally infirm because they failed to provide him with fair notice. By failing to raise his

complaint at trial, Delarosa forfeited appellate review of it. Labelle v. State, 692 S.W.2d 102,

105-06 n.2 (Tex.Crim.App. 1985)(complaints regarding the sufficiency of the allegations in a

motion to revoke are waived if not raised at trial).
1
    The witness chose to use the name Elizabeth as a pseudonym.
                                                         2
       Delarosa concedes that he did not object at trial, but contends that “[he] should not be held

to have waived his complaint that the allegations against him were wholly deficient” because the

motion to revoke was not read to him in open court and he did not waive its reading. In support of

his contention that he did not waive his complaint on appeal because the motion was not read in

open court, Delarosa cites Ex Parte Doan, 369 S.W.3d 205 (Tex.Crim.App. 2012), and Justice

Dauphinot’s dissent in Cherry v. State, 215 S.W.3d 917 (Tex.App.--Forth Worth 2007, pet. ref’d).

But these cases, whether standing alone or in conjunction, do not support such a proposition.

       In Ex Parte Doan, the Texas Court of Criminal Appeals reexamined the nature of

revocation hearings and concluded that they are not administrative proceedings, but rather formal,

judicial proceedings “to be governed by the rules established to govern judicial proceedings.”

369 S.W.3d at 212. Although the court reached this conclusion, it never suggested—much less

held—that a defendant preserves his complaint regarding the sufficiency of the allegations in a

motion to revoke if he does not object at trial but the motion is not read in open court. In fact, the

court observed that defendants in revocation hearings do not enjoy the same panoply of procedural

rights as defendants in criminal trials. Id. at 208.

       In Cherry v. State, the issue was whether the State proved that the appellant was the same

individual named in the judgment for possession of marijuana under two ounces and originally

placed on community supervision. 215 S.W.3d at 918. The majority concluded the State had

met its burden, but Justice Dauphinot disagreed. Id. at 920. In arguing that there was nothing in

the record from which the trial court could legitimately infer that appellant was that person, Justice

Dauphinot noted that “No one read the motion to revoke on the record, and no one waived reading

the motion.” Cherry, 215 S.W.3d at 920. Justice Dauphinot, like the majority in Ex Parte Doan,


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never suggested that a defendant preserves his complaint regarding the sufficiency of the

allegations in a motion to revoke if he does not object at trial but the motion is not read in open

court.

         In sum, Ex Parte Doan and Justice Dauphinot’s dissent in Cherry v. State cannot be read to

abrogate the requirement that complaints regarding the sufficiency of the allegations in a motion to

revoke must be raised at trial for review on appeal.

         Delarosa’s first issue is overruled.

                                   INSUFFICIENT EVIDENCE

         In his remaining two issues, Delarosa claims that the trial court erred in revoking his

community supervision because the State failed to establish that he violated the conditions of

community supervision by committing the offenses of aggravated kidnapping and sexual assault.

                                       1. Standard of Review

         We review a trial court’s order revoking community supervision for an abuse of discretion.

Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006). In so doing, we view the evidence

in the light most favorable to the trial court’s order. Moore v. State, 11 S.W.3d 495, 498

(Tex.App.--Houston [14th Dist.] 2000, no pet.). In a revocation proceeding, the trial court is the

sole trier of facts, the judge of the credibility of the witnesses, and the arbiter of the weight to be

given to the testimony. Trevino v. State, 218 S.W.3d 234, 240 (Tex.App.--Houston [14th Dist.]

2007, no pet.).

         The State has the burden to show by a preponderance of the evidence that the defendant

committed a violation of the conditions of community supervision. Cobb v. State, 851 S.W.2d

871, 873 (Tex.Crim.App. 1993). The State meets it burden of proof when the greater weight of


                                                  4
the credible evidence creates a reasonable belief that the defendant has violated a condition of his

community supervision. Rickels, 202 S.W.3d at 763-64. When the State fails to meet its burden

of proof, the trial court abuses its discretion in revoking community supervision. Walkovak v.

State, 576 S.W.2d 643, 644-45 (Tex.Crim.App. 1979).

                                       2. Aggravated Kidnapping

       Delarosa contends in his second issue that the State failed to establish he kidnapped

Elizabeth because there was no evidence he abducted her. We disagree.

                                            Applicable Law

       Section 20.04(a) of the Texas Penal Code defines the offense of aggravated kidnapping in

relevant part as:

       (a) A person commits an offense if he intentionally or knowingly abducts another
           person with the intent to:

                                   .                   .          .

       (3) facilitate the commission of a felony . . .;

       (4) inflict bodily injury on [her] or violate or abuse [her] sexually;

       (5) terrorize [her] or a third person . . . .

TEX.PEN.CODE ANN. § 20.04(a)(West 2011). The relevant definition of “abduct” is “to restrain a

person with intent to prevent [her] liberation by secreting or holding [her] in a place where [she] is

not likely to be found . . . .” TEX.PEN.CODE ANN. § 20.01(2)(A). To “restrain” means “to restrict

a person’s movements without consent, so as to interfere substantially with the person’s liberty, by

moving the person from one place to another or by confining the person.” TEX.PEN.CODE ANN.

§ 20.01(1).    Finally, restraint is “without consent” when it is accomplished by “force,

intimidation, or deception . . . .” TEX.PEN.CODE ANN. § 20.01(1)(A).

                                                       5
                                            Discussion

        The State proved, by a preponderance of the evidence, that Delarosa abducted Elizabeth.

Delarosa contends there is no evidence that Elizabeth was secreted or held in a place where she

was unlikely to be found because “he took her five blocks away from where she was, pulled her out

of the truck and stepped on her head.” But Delarosa is mistaken.

        The offense of kidnapping does not require that the defendant restrain the victim for any

particular period of time, or that the victim be moved any particular distance. Santellan v. State,

939 S.W.2d 155, 163 (Tex.Crim.App. 1997); Brimage v. State, 918 S.W.2d 466, 475

(Tex.Crim.App. 1994)(moving victim from room to room while attempting to kill her was

sufficient to prove restraint). Nor does the requirement of “substantial interference with the

victim’s liberty” in Section 20.01(1) mandate any quantitative amount of interference. Brimage,

918 S.W.2d at 490. Moreover, the requirement of “secreting” or “holding the victim in a place

where she is not likely to be found,” which Delarosa challenges, is part of the mens rea or culpable

mental state of the offense; the actus reus of the offense is the “restraint.” Id. at 475-76. Once

restraint is established, the offense of kidnapping is complete when the actor evidences a specific

intent to prevent liberation. Id.; Megas v. State, 68 S.W.3d 234, 240 (Tex.App.--Houston [1st

Dist.] 2002, pet. ref’d).

        When viewed in the light most favorable to the trial court’s ruling, Elizabeth’s testimony

supports a finding that Delarosa substantially interfered with her liberty without her consent by

dragging her into his truck, driving five blocks, and, for the duration of the drive, preventing her

from leaving by banging her head against the window.

        Delarosa’s second issue is overruled.


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                                       3. Sexual Assault

       In his third and final issue, Delarosa argues that the State failed to establish he sexually

assaulted Elizabeth because there was no evidence he penetrated Elizabeth’s vagina without her

consent by the use of physical force or violence. We disagree.

                                        Applicable Law

       A person commits the offense of sexual assault if he intentionally or knowingly causes the

penetration of the complainant’s sexual organ without her consent by compelling her to submit or

participate by the use of physical force or violence. See TEX.PEN.CODE ANN. § 22.011(a)(1)(A),

(b)(1)(West 2011).

                                           Discussion

       The State proved, by a preponderance of the evidence, that Delarosa penetrated Elizabeth’s

vagina without her consent by compelling her to submit or participate by the use of physical force

or violence.

       Delarosa first asserts that there was no evidence “that when [he] shoved his fingers in

[Elizabeth] to see if she was having sex that [he did so] without her consent.” Delarosa’s

assertion is belied by the evidence. After Elizabeth testified to what she experienced, including

Delarosa’s penetration of her vagina with his fingers, she was asked by the prosecutor whether

Delarosa had permission to do “[a]nything that we have just talked about.” Elizabeth responded,

“No.” When viewed in the light most favorable to the trial court’s ruling, Elizabeth’s testimony

supports a finding that Delarosa penetrated her vagina without her consent.

       Delarosa next contends that there was no evidence “that [he] compelled Elizabeth to

submit by violence or physical force.” The evidence establishes otherwise, however. Elizabeth


                                                7
testified that Delarosa threw her to the ground and was stepping on her head when he penetrated

her vagina with his fingers. When viewed in the light most favorable to the trial court’s ruling,

Elizabeth’s testimony supports a finding that Delarosa penetrated her vagina by compelling her to

submit or participate by the use of physical force or violence.

       Delarosa also maintains that there was no evidence that he penetrated Elizabeth’s vagina

because her “testimony [did] not clearly indicate that [he] penetrated [her] vagina,” but rather

implied it. He is mistaken. Elizabeth testified as follows in recounting how Delarosa sexually

assaulted her:

       [ELIZABETH]: He shoved his finger in me to see if I was having sex.

       [PROSECUTOR]: With who?

       [ELIZABETH]: Brentley.

       [PROSECUTOR]: Okay. And you have to say where he put his hands, where he
       put his fingers. Where did he do this?

       [ELIZABETH]: My vagina.

When viewed in the light most favorable to the trial court’s ruling, Elizabeth’s testimony supports

a finding that Delarosa penetrated her vagina with his fingers.

       Delarosa’s third and final issue is overruled.

                                         CONCLUSION

       Having overruled all three of Delarosa’s issues, we affirm the trial court’s judgment.


September 18, 2013
                                              YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)

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