                                Fourth Court of Appeals
                                       San Antonio, Texas
                                   MEMORANDUM OPINION
                                          No. 04-14-00323-CR

                                           Steven BELTRAN,
                                                Appellant

                                                     v.

                                          The STATE of Texas,
                                                Appellee

                      From the County Court at Law No. 13, Bexar County, Texas
                                       Trial Court No. 431439
                         The Honorable Monica A. Gonzalez, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: July 15, 2015

AFFIRMED

           Appellant Steven Beltran appeals the trial court’s judgment adjudicating him guilty and

sentencing him to one year in jail, suspended, and placing him on eighteen months’ community

supervision. On appeal, Beltran raises two issues, in essence contending the trial court erred in

granting the State’s motion to adjudicate and revoke. We affirm the trial court’s judgment.

                                              BACKGROUND

           After Beltran violated a protective order, the trial court placed him on deferred adjudication

community supervision for a period of twelve months. According to conditions fifteen and sixteen
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of his community supervision, Beltran was prohibited from contacting or attempting to contact his

ex-wife or her boyfriend in person, verbally, telephonically, in writing, or in any other manner.

Beltran’s probation officer, Linda Navarro, testified she read the conditions of probation to

Beltran, including the no contact provision, and he was aware he was not to contact his ex-wife or

her boyfriend. Ms. Navarro explained to Beltran that if he inadvertently found himself in contact

with his ex-wife or her boyfriend, he should immediately leave the area.

       Less than a month after Beltran was placed on community supervision, his ex-wife and her

boyfriend saw Beltran driving toward their vehicle. The couple testified Beltran made a U-turn

and followed them. During this time, Beltran drove erratically and attempted to close the distance

between the vehicles. Finally, the boyfriend pulled into a parking lot and parked his vehicle toward

the street. Beltran passed by them slowly with his window down, gesturing at the couple with his

middle finger — “throwing [them] the bird” — before driving off. The couple flagged down a

police officer and reported the incident. The officer took their statements.

       As a result of Beltran’s actions, the State filed a motion asking the trial court to render an

adjudication of guilt and revoke Beltran’s community supervision. The trial court held a contested

hearing. At the hearing, the couple testified as set out above. The officer who took the initial

report and a detective also testified, relaying the information provided to them by the couple, which

comported with the testimony provided by the couple at the hearing. The trial court also heard

testimony from Beltran and his supporting witness. Beltran denied following his ex-wife and her

boyfriend, claiming he was working as a sales representative at the time of the alleged contact and

in that capacity, was at an automotive dealership meeting with the parts and service director. The

parts and service director corroborated Beltran’s testimony. However, the witness admitted he had

known Beltran since 1998, and Beltran had taken him out socially over the years as many vendors

do.
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       After the hearing, the trial court prepared findings of facts and conclusions of law, finding

Beltran’s ex-wife and her boyfriend credible, but finding Beltran’s testimony was not credible and

his corroborating witness unconvincing. As to Beltran’s witness, the trial court noted there were

no records to substantiate his claims and the court “was not convinced that this witness’ [sic]

alleged recollection of events was accurate and felt that there was a possibility the dates and time

frames presented were incorrect.”

       As a result of its findings and conclusions, the trial court adjudicated Beltran guilty of the

original charge of violating a protective order, revoked his deferred adjudication community

supervision, and sentenced Beltran to twelve months’ confinement. However, the trial court

suspended the sentence and placed Beltran on community supervision for eighteen months.

Beltran then perfected this appeal.

                                              ANALYSIS

       Beltran contends the trial court erred in adjudicating him guilty and revoking his deferred

adjudication community supervision because: (1) the State failed to prove by a preponderance of

the evidence he made contact with his ex-wife and her boyfriend; and (2) the trial court

impermissibly enlarged the State’s motion to adjudicate and revoke. As to his second contention,

Beltran claims the trial court relied upon attempted contact as ground for adjudication and

revocation — a ground that was not pled in the State’s motion — to grant the State’s motion,

adjudicate him guilty, and revoke his probation. We disagree with Beltran’s interpretation of the

trial court’s ultimate conclusion, and hold the trial court did not err in concluding Beltran contacted

his ex-wife and her boyfriend in violation of the terms of his deferred adjudication, as alleged by

the State, and there was sufficient evidence to support the trial court’s conclusion.




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                                        Standard of Review

       A trial court’s decision to proceed to an adjudication of guilt and revoke deferred

adjudication community supervision is reviewed under the same standard as a revocation of regular

community supervision, i.e., abuse of discretion. Hacker v. State, 389 S.W.3d 860, 864–65 (Tex.

Crim. App. 2013); see TEX. CODE CRIM. PROC. ANN. art. 42.12, Sec. 5(b) (West Supp. 2014). An

order revoking community supervision must be supported by a preponderance of the evidence.

Hacker, 389 S.W.3d at 865; Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006).

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

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

at 865; Rickels, 202 S.W.3d at 764.

       The trial court is the sole judge of the credibility of the witnesses and the weight given to

their testimony, and the evidence is reviewed in the light most favorable to the trial court’s ruling.

Hacker, 389 S.W.3d at 865; Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). A

single violation of community supervision is sufficient to support revocation. Smith v. State, 286

S.W.3d 333, 342 (Tex. Crim. App. 2009); Reasor v. State, 281 S.W.3d 129, 131 (Tex. App.—San

Antonio 2008, pet. ref’d). If the State fails to meet its burden of proof, the trial court abuses its

discretion in revoking the community supervision. Reasor, 281 S.W.3d at 132; Cardona, 665

S.W.2d at 493–94.

                                            Application

       The terms of Beltran’s deferred adjudication community supervision included the

following two conditions:

       15. General Order: You will neither contact nor attempt to contact [EX-WIFE] nor
       any of his/her family members in person, verbally, telephonically, in writing or in
       any other manner, and should you find yourself inadvertently in contact with said
       individual, you will immediately leave and not threaten, assault, or verbally abuse
       him/her.
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        16. General Order: You will neither contact nor attempt to contact [EX-WIFE’S
        BOYFRIEND] nor any of his/her family members in person, verbally,
        telephonically, in writing or in any other manner, and should you find yourself
        inadvertently in contact with said individual, you will immediately leave and not
        threaten, assault, or verbally abuse him/her.

        In its motion to adjudicate and revoke, the State alleged Beltran violated these conditions

by making contact with his ex-wife and her boyfriend. Although Beltran was also prohibited from

attempting to contact his ex-wife and her boyfriend, the State did not allege a violation by virtue

of attempted contact, merely by actual contact. Beltran contends there is no evidence he actually

contacted his ex-wife and her boyfriend as alleged, and the trial court found nothing more than

attempted contact, which was not alleged.

        Beltran directs this court to the final paragraph in the trial court’s conclusions of law. In

that paragraph, the trial court states “the defendant has at very least attempted to contact the parties

in violation of conditions 15 and 16.” Beltran suggests this was the trial court’s only conclusion

that led it to grant the State’s motion. We disagree.

        In the preceding paragraph of its conclusions, the trial court specifically stated: “This court

is not convinced that because [ex-wife] and [boyfriend] did not respond in kind to the defendant’s

attempt to harass and intimidate the complainants that contact did not occur.” (emphasis added)

This sentence constitutes a finding that contact occurred — there was not merely an attempt, but

actual contact in some manner — Beltran was precluded from contacting either party “in any other

manner.” Removing unnecessary phrases from the trial court’s conclusion, we are left with the

following: “This court is not convinced . . . that contact did not occur.” We interpret this as a

conclusion by the trial court that the State established by a preponderance of the evidence that

contact occurred, and we agree.

        The evidence, taken in a light most favorable to the verdict, shows that when Beltran

spotted his ex-wife and her boyfriend, he made a U-turn and followed them until they pulled off
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the road. Thereafter, Beltran slowly passed by them, making an obscene gesture specifically at

the couple. As noted by the trial court in its findings and conclusions, the term “contact” is not

statutorily defined, and thus must be understood as ordinary usage allows, as in common speech.

See TEX. CODE CRIM. PROC. ANN. art. 3.01 (West 2015) (stating that words, phrases, and terms

used in Code of Criminal Procedure are to be taken and understood in their usual acceptation in

common language, except where specially defined); Aschbacher v. State, 61 S.W.3d 532, 539

(Tex. App.—San Antonio 2001, pet. ref’d) (holding that where term “wrong” was not defined by

Penal Code, it was to be understood as ordinary usage allows, permitting jurors to give it any

meaning accepted in common speech). The trial court used a dictionary to define contact as “be

in or establish communication with.” Given that definition and the evidence, we hold the obscene

gesture made by Beltran toward his ex-wife and her boyfriend was evidence of an actual

communication by Beltran in violation of conditions fifteen and sixteen as alleged by the State.

The trial court’s conclusion that Beltran’s actions also constituted attempted contact is of no

moment.

                                          CONCLUSION

       Based on the foregoing, we hold the trial court concluded Beltran violated conditions

fifteen and sixteen of his deferred adjudication community supervision by contacting his ex-wife

and her boyfriend and there was sufficient evidence to support the trial court’s conclusion.

Accordingly, we overrule Beltran’s issues and affirm the trial court’s judgment.


                                                     Marialyn Barnard, Justice

Do Not Publish




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