Jessie Rudolph Williams v. The State of Texas--Appeal from 82nd District Court of Robertson County

IN THE

TENTH COURT OF APPEALS

No. 10-98-337-CR

JESSIE RUDOLPH WILLIAMS,

Appellant

v.

STATE OF TEXAS,

Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court # 96-03-15,949-CR

OPINION

On June 24, 1996, Appellant Jesse Rudolph Williams pled guilty to the offense of Felony Driving While Intoxicated and was sentenced to five years probation. See Tex. Penal Code Ann. 49.04 (Vernon 1999). Upon appellant s subsequent DWI arrest, the State moved to revoke Appellant s probation, alleging seven violations of the conditions of probation imposed by the District Court. After a hearing, the trial court found that the State s allegations were true and assessed punishment at five years imprisonment.

Appellant brings two points of error. In his first point, appellant complains the trial court erred in allowing the State to prove the alleged parole violations through inadmissible hearsay. In his second point, appellant asserts the evidence was insufficient to support the trial court s finding that appellant committed the subsequent crime of Driving While Intoxicated.

A proceeding to revoke probation is neither criminal nor civil, but is rather an administrative proceeding. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). However, the rules of evidence are still generally applicable. Id. The State bears the burden of proving by a preponderance of the evidence that the defendant violated the terms of his probation. Id. (citing Cardona v. State, 665 S.W.2d 492, 493-95 (Tex. Crim. App. 1984)). A revocation may be supported by proof of a single violation of the defendant s terms of probation. Stevens v. State, 900 S.W.2d 348, 350 (Tex. App. Texarkana 1995, pet. ref d.).

At the revocation hearing, the State called Teresa Kyle, appellant s Robertson County probation officer. Kyle testified that she supervised appellant in connection with the probation sentence imposed by the Robertson County District Court. As a resident of Freestone County during the probation period, appellant was also directly supervised by the Freestone County Corrections Office, although Kyle testified that she was responsible for maintaining records of appellant s compliance with the conditions of probation. Over appellant s hearsay objection, the State elicited testimony from Kyle regarding appellant s failure to report monthly to the Freestone County probation officer. The State then established that the probation records from which Kyle was testifying qualified as business records of the Robertson County Community Supervision and Corrections department, under Texas Rule of Evidence 803(6). The records from which Kyle testified were never formally introduced into evidence. Kyle also testified to her personal knowledge of appellant s violation of several additional conditions of probation, including appellant s failure to pay supervisory fees, attend Alcoholics Anonymous meetings, or report his subsequent arrest within 48 hours.

Finally, the State called Captain Kelly Craig of the Wortham City Police Department. Craig testified that he stopped appellant on August 3, 1998 after observing his vehicle driving erratically and twice failing to stop at a stop sign. Captain Craig stated that appellant smelled of alcohol and failed a field sobriety test, after which Craig arrested him for DWI.

Appellant argues that Kyle should not have been allowed to testify to appellant s failure to report to his Freestone County probation officer because Kyle had no personal knowledge of that information, such information was hearsay, and the business record containing that information was never admitted into evidence. Appellant cites Polk v. State for the proposition that a witness may not testify to the contents of a business record that is not in evidence unless the witness has personal knowledge of the facts forming the basis of his testimony. Polk v. State, 729 S.W.2d 749, 755 (Tex. Crim. App. 1987).

In Polk, the State offered the testimony of the custodian of records for the Dallas County probation office, who laid the predicate for admission of Polk s probation file as a business record. Id. at 750. The file was never admitted, however, and the court allowed the custodian to testify to the file s contents over Polk s objection, even though the custodian was not Polk s probation officer and had no personal knowledge of the violations described in the file. Id. at 751. The Court of Criminal Appeals held that the trial court abused its discretion in allowing the records custodian to testify to the hearsay contained in the file. Because those violations formed the basis of the revocation, the Court remanded the cause to the trial court to consider the alternative probation violations contained in the motion to revoke. Id. at 755.

In the case at bar, appellant s probation file is hearsay, but is admissible because it meets the business record exception to the hearsay rule. See Tex. R. Evid. 802(6). Although the business record exception allows the file to be admitted, it does not allow testimony as to the contents of the file without either the file s admission, or an indication that such contents are within the personal knowledge of the witness. Polk, 729 S.W.2d at 751. We adhere, however, to the long-standing presumption that the trial judge, sitting as a fact finder, ignored objectionable or incompetent evidence in his deliberations so long as properly admitted or unchallenged evidence is sufficient to support the judgment. Keen v. State, 626 S.W.2d 309 (Tex. Crim. App. 1981). Because Kyle testified to other violations of probation lying within her personal knowledge appellant s failure to provide proof of attendance of Alcoholics Anonymous meetings, pay supervisory fees, or report his subsequent DWI arrest we cannot say that the error, if any, in admitting hearsay testimony affected the substantial rights" of the appellant. See Tex. R. App. P. 44.2(b); Fowler v. State, 958 S.W.2d 853 (Tex. App. Waco 1997) aff d, 991 S.W.2d 258 (Tex. Crim. App. 1999). Appellant s first point is overruled.

In his second point of error, Appellant asserts the evidence is insufficient to support the trial court s finding that appellant has subsequently committed DWI. He argues that the testimony of Captain Craig does not establish commission by a preponderance of the evidence because Craig was not qualified to administer the horizontal gaze nystagmus test from which he concluded appellant was intoxicated. Craig testified that he observed appellant run two stop signs, and that appellant was swerving out of his traffic lane. In addition to failing the HGN test, Craig indicated that appellant smelled of alcohol, walked in an unstable manner, and exhibited glassy, bloodshot eyes and slurred speech. Finally, Craig testified that he discovered a cup in appellant s vehicle containing an alcoholic beverage. From this evidence, the trial court could have concluded by a preponderance of the evidence that appellant either committed Driving While Intoxicated, or failed to abstain from the use of alcoholic beverages in violation of condition number two of his probation as alleged in the motion to revoke. The evidence was sufficient to support the trial court s ruling that appellant s probation should be revoked. Appellant s second point of error is overruled.

The judgment of the trial court is affirmed.

ROBERT M. CAMPBELL

Justice (Sitting by Assignment)

Before Chief Justice Davis,

Justice Gray and

Justice Campbell (Sitting by Assignment)

Affirmed

Opinion delivered and filed March 8, 2000

Do not publish