State v. Chavez
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. A-1-CA-35532 5 JESSE CHAVEZ, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Christina P. Argyres, District Judge 9 Hector H. Balderas, Attorney General 10 Maris Veidemanis, Assistant Attorney General 11 Santa Fe, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 Kathleen T. Baldridge, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 18 VARGAS, Judge. MEMORANDUM OPINION 1 {1} Defendant Jesse Chavez appeals from the district court’s order revoking his 2 probation and sentencing him to serve the remainder of his probationary term in the 3 department of corrections. He claims that his right to confrontation under the due 4 process clause of the Fourteenth Amendment was violated when the district court 5 permitted his probation officer to testify regarding the results of his urinalysis (UA) 6 drug test. In response, the State contends that the district court did not err in revoking 7 Defendant’s probation because he failed to timely report to the probation office and 8 he tested positive for morphine. In his reply brief, Defendant maintains that he was 9 denied his right to confrontation, and he asserts that the district court’s written order 10 revoking his probation was based solely on the drug violation. After duly considering 11 the arguments, we affirm. 12 BACKGROUND 13 {2} Defendant pleaded no contest to one count of voluntary manslaughter with a 14 firearm enhancement, pursuant to NMSA 1978, Section 30-2-3 (1994), and a serious 15 violent offense, pursuant to NMSA 1978, Section 33-2-34 (2006, amended 2015), and 16 one count of possession of methamphetamine with intent to distribute, pursuant to 17 NMSA 1978, Section 30-31-20 (2006). Defendant further admitted to having one 18 valid prior felony for habitual offender enhancement purposes, however, the State 19 waived the enhancement provided Defendant successfully completed his sentence, 2 1 which the parties agreed would not exceed nine years. The district court sentenced 2 Defendant to nine years in prison, suspended all but 364 days and ordered that 3 Defendant serve those 364 days in the Community Custody Program (CCP). The 4 district court further ordered that Defendant was “to be placed on [i]ntensive 5 [s]upervised [p]robation with GPS tracking for five (5) years following release from 6 custody, on condition that Defendant obey all rules, regulations and orders of the 7 [p]robation [a]uthorities, and observe all federal, state and city laws or ordinances.” 8 Defendant was also required to abide by special conditions of probation that he: (1) 9 obtain and maintain full-time employment, education, or both; and (2) abstain from 10 the use of alcohol and illegal drugs. 11 {3} On December 21, 2015, Defendant was released from CCP and ordered by his 12 supervisor to report to the probation office within twenty-four hours of his release. He 13 reported to the probation office at 8:00 a.m. on December 23, 2015—more than 14 twenty-four hours after his release from CCP—and provided a urine sample that tested 15 positive for morphine. Defendant’s probation officer prepared a probation violation 16 report. In his report, the probation officer identified the violation as a drug violation, 17 but detailed both Defendant’s failure to timely report to the probation office and the 18 drug violation as part of his evaluation of Defendant’s adjustment to supervision, 19 which he described as “poor.” The State filed a motion to revoke Defendant’s 3 1 probation, attached the probation violation report, and alleged that Defendant 2 “violated probation as described in the attached [p]robation [v]iolation [r]eport.” 3 {4} Following a hearing on the State’s motion to revoke Defendant’s probation, the 4 district court entered an order revoking Defendant’s probation, committing him to the 5 department of corrections, and unsatisfactorily discharging him from probation. 6 Defendant now appeals. 7 DISCUSSION 8 I. Basis for District Court’s Finding of a Probation Violation 9 The parties disagree as to the basis for the district court’s finding of a probation {5} 10 violation. Defendant asserts that the State moved to revoke his probation, 11 “incorporating the probation violation report and alleging that he failed a urinalysis 12 test [UA] and recommending that he be reinstated on probation and assigned directly 13 to the [i]ntensive [s]upervised [p]robation [u]nit with zero tolerance for future 14 violations.” Nevertheless, Defendant acknowledges that the district court revoked his 15 probation because he did not report to the probation office within twenty-four hours 16 of his release from CCP. However, he asserts that pursuant to the written order 17 revoking his probation, “the court changed its basis for revoking [his] probation from 18 the failure to timely report to probation to drug use, incorporating the motion to 19 revoke and probation violation report by reference.” The State, on the other hand, 4 1 contends that “[t]he only probation violation identified by the district [court] judge at 2 the probation revocation hearing was that Defendant ‘failed the [twenty-four]-hour 3 period’ for reporting to the [p]robation [o]ffice after his release from prison.” 4 {6} We have reviewed the transcript from the revocation hearing and note that, in 5 finding a probation violation, the district court judge stated as follows: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 And what I am hearing for the first time today is that because he failed the [twenty-four]-hour period, was a day later, that he didn’t really violate. It was very clear from the outset of this case what [Defendant] needed to do, and I’ve been more than lenient with regards to giving him a chance, a chance to clean up his life and to help him out here. But I am finding there’s a violation because number one, it wasn’t within the [twenty-four] hours. And to think that you can just go the next day at eight after he has been on CCP, to me it makes no sense. There was an issue with regards to him supposed to be on GPS, he was supposed to be on GPS, I’m not faulting him for that because it sounds like, from the testimony that I heard, that they were waiting for him to be on ISP for the GPS to be placed on, even though everything that we have here says, immediately once he reports to probation he will be placed on a GPS tracking for five years. So I am finding a violation. {7} The district court entered its written order revoking Defendant’s probation the 21 next day, and pursuant to the form order, the district court found that Defendant 22 “violated paragraph 1 of the [m]otion to [r]evoke [p]robation.” Notably, the motion 23 to revoke does not contain numbered paragraphs. Instead, it contains a single 24 paragraph of text referring to the alleged violation as follows: “The State alleges that 25 [D]efendant violated probation as described in the attached [p]robation [v]iolation 26 [r]eport.” 5 1 {8} Given that the probation violation report refers to both the failure to timely 2 report and the positive drug test, and at the conclusion of the hearing on the motion 3 to revoke, the district court found that Defendant violated his probation by failing to 4 timely report to the probation office, we conclude that the district court revoked 5 Defendant’s probation, at a minimum, as a result of Defendant’s failure to timely 6 report to the probation office. To the extent that Defendant argues that the district 7 court changed its basis for revoking his probation from the failure to timely report to 8 the probation office to drug use, or that the oral ruling and written order were 9 inconsistent, we are not persuaded. 10 {9} “We review a district court’s revocation of a defendant’s probation for an abuse 11 of discretion.” State v. Leon, 2013-NMCA-011, ¶ 36, 292 P.3d 493. To prove a 12 probation violation, the State is required to establish with a reasonable certainty that 13 such a violation occurred. State v. Green, 2015-NMCA-007, ¶ 22, 341 P.3d 10. 14 Applying these standards to the case before us, we conclude the State presented 15 sufficient evidence to prove that Defendant failed to timely report to the probation 16 office, in violation of the district court’s order in the underlying judgment that 17 Defendant was required to “obey all rules, regulations and orders of the [p]robation 18 [a]uthorities[.]” This violation alone was a sufficient basis for the district court to 19 revoke Defendant’s probation. See Leon, 2013-NMCA-011, ¶ 37 (stating that 6 1 “although [the d]efendant challenges the sufficiency of the evidence supporting each 2 of his probation violations, if there is sufficient evidence to support just one violation, 3 we will find the district court’s order was proper”); see also Green, 2015-NMCA-007, 4 ¶ 21, n.3 (declining to reach the issue of whether sufficient evidence supported 5 revocation of the defendant’s probation on the remaining alleged grounds where this 6 Court found sufficient evidence to support a violation on just one ground). 7 II. Defendant Did Not Preserve the Confrontation Issue 8 We note that even if the district court had revoked Defendant’s probation solely {10} 9 on the drug-test violation, we would affirm. The only argument Defendant made 10 regarding that violation was not preserved below. 11 {11} Defendant claims that he “was denied due process when the district court 12 ignored his right to confront and cross-examine the chemist who tested his urine and 13 determined the presence of morphine as opposed to oxycodone for which he had a 14 prescription.” See State v. Guthrie, 2011-NMSC-014, ¶ 12, 150 N.M. 84, 257 P.3d 15 904 (“The right protected in probation revocations is not the sixth amendment right 16 to confrontation, guaranteed every accused in a criminal trial, but rather the more 17 generally worded right to due process of law secured by the fourteenth amendment.”). 18 “In order to preserve an error for appeal, it is essential that the ground or grounds of 19 the objection or motion be made with sufficient specificity to alert the mind of the trial 7 1 court to the claimed error or errors, and that a ruling thereon then be invoked.” State 2 v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (internal quotation 3 marks and citation omitted); see also Rule 12-321(A) NMRA (“To preserve an issue 4 for review, it must appear that a ruling or decision by the trial court was fairly 5 invoked.”). 6 {12} At the revocation hearing, Defendant erroneously argued that the rules of 7 evidence apply and based his objections to the State’s evidence on evidentiary 8 grounds. See Rule 11-1101(D)(3)(d) NMRA (providing that the rules of evidence, 9 except for those on privilege, do not apply to “granting or revoking probation or 10 supervised release”). Defendant claimed that his probation officer’s testimony and the 11 drug test results were hearsay, that the State failed to lay a foundation for this 12 evidence, and that the probation officer was not qualified to testify regarding the drug 13 results because he was not the chemist who performed the drug test. We conclude that 14 the evidentiary objections that Defendant raised at the hearing were not sufficiently 15 specific to alert the district court to the confrontation issue that Defendant now argues 16 on appeal. See State v. Lucero, 1986-NMCA-085, ¶¶ 12-17, 104 N.M. 587, 725 P.2d 17 266 (holding that denial of right to confrontation may not be raised for first time on 18 appeal, and hearsay objections were not sufficiently specific to alert the district court 19 to claimed constitutional error); State v. Mora, 1997-NMSC-060, ¶ 47 n.1, 124 N.M. 8 1 346, 950 P.2d 789 (holding that the defendant did not preserve his confrontation 2 argument because he failed to object on confrontation grounds or general 3 constitutional grounds), abrogated on other grounds by Kersey v. Hatch, 4 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683; cf. State v. Ross, 5 1996-NMSC-031, ¶¶ 24-25, 122 N.M. 15, 919 P.2d 1080 (holding that confrontation 6 issue was preserved for appellate review where the defendant timely objected on 7 general constitutional grounds, in addition to evidentiary grounds, and distinguishing 8 Lucero by noting that the defendant in that case made only evidentiary objections to 9 hearsay evidence without suggesting that its admission would violate either the state 10 or federal constitutions), overruled on other grounds by State v. Tollardo, 201211 NMSC-008, ¶ 37 n.6, 275 P.3d 110. Therefore, we conclude that this issue was not 12 properly preserved for appellate review. 13 CONCLUSION 14 {13} For the foregoing reasons, we affirm. 15 {14} IT IS SO ORDERED. 16 17 JULIE J. VARGAS, Judge 18 WE CONCUR: 19 9 1 MICHAEL E. VIGIL, Judge 2 3 EMIL J. KIEHNE, Judge 10
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