Lorenzo Leyva v. The State of Texas--Appeal from 41st District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LORENZO LEYVA,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-02-00333-CR

Appeal from the

41st District Court

of El Paso County, Texas

(TC# 80985)

MEMORANDUM OPINION

This is an appeal from a revocation of probation proceeding. Appellant originally pleaded guilty to the offense of sexual assault and was sentenced to ten years community supervision. The State filed a motion to revoke probation and after a hearing on that motion, the court revoked Appellant s community supervision and sentenced him to six years in the Institutional Division of the Texas Department of Criminal Justice. We affirm.

I. SUMMARY OF THE EVIDENCE

The following terms and conditions of probation were included in Appellant s probation order:

a. Commit no offense against the laws of this state or of any other state (including municipal ordinances), or of the United States of America.

. . .

h. . . . (5) You shall be subject to curfew and be within your place of residence, as previously designated, between the hours of 8:00 p.m. and 6:00 a.m. each and every day, unless suitably employed during those same hours.

. . .

k. Work 300 hours at a community service project(s) for an organization(s) that is on a list approved by the Court which list is on file with the Court Clerk on this date. The actual project(s) to be worked will be designated by the Community Supervision and Corrections Department from time to time from said list(s) as it may be modified.

In the State s motion to revoke probation it was alleged that:

Thereafter, to-wit: on or about the 19th day of July 2001, in the County of El Paso and State of Texas, the said defendant, LORENZO LEYVA, did then and there unlawfully commit the offense of Assault, in violation of condition a. of the terms and conditions of his community supervision.

Further, to-wit: on or about the 5th day of December, 2001, in the County of El Paso and State of Texas, the said defendant, LORENZO LEYVA, did then and there unlawfully fail to be within his place of residence between the hours of 8:00 p.m. and 6:00 a.m., in violation of condition h.(5) of the terms and conditions of his community supervision.

Further, to-wit: on or about the 6th day of March, 2002, in the County of El Paso and State of Texas, the said defendant, LORENZO LEYVA, did then and there unlawfully fail to participate in 300 hours in a community-based program as assigned by the Supervision Officer, in violation of condition k. of the terms and conditions of his community supervision.

At the hearing, Probation Officer Cecilio Huitron, testified that on December 5, 2001, he went to visit Appellant at his home at 8:10 p.m. and Appellant was not at home. He returned at 9:50 p.m. and no one answered the door. Huitron testified that as of the day of the hearing, Appellant had completed sixty hours of community service.

During cross-examination, Huitron testified that the December 5, 2001 curfew violation was the only time that to Huitron s knowledge, Appellant had violated his curfew. He stated that the probation department instructs probationers to complete at least ten hours a month of community service, but the written probation order in this case did not so instruct Appellant. The witness testified that it would be reasonable for someone to think that he had ten years to complete the required 300 hours of community service.

Raul Tarin, an officer with the El Paso Police Department, testified that he responded to a call on 4525 Vulcan Avenue, El Paso, Texas, regarding a domestic disturbance. Tarin encountered Appellant and his wife, along with their little boy, arguing in a parking lot. The wife had a bloody face. She was crying, hysterical, and excited. Over Appellant s hearsay objection, Tarin related what the wife told him. She stated that the two had gotten into an argument after some friends had come over for drinks. Appellant became upset and ransacked the house. Appellant got their Lone Star card and put it into his pocket. She tried to reach in his pocket and Appellant struck her on the face with a closed fist. This caused her nose to hurt and bleed, and the force of the blow knocked her back. As she went backwards, she grabbed his shirt and tore it. This further angered Appellant and he began to punch her with both hands in the face.

Upon cross-examination, Officer Tarin stated that both parties had been drinking, and he did not have any personal knowledge regarding how the victim received her injuries. The witness stated that the couple s three-year-old boy stated that, daddy knocked [his] mommy down.

Appellant testified on his own behalf. He stated that during the six years he had been on probation, he had only violated his curfew on the one alleged occasion. In that instance, he had gone to buy diapers at Wal-Mart because he felt that it was his husbandly duty to take care of his family. Appellant testified that it was his understanding that he had ten years to complete 300 hours of community service. He denied having committed the assault. He stated that his wife received her injuries when she got slammed by the door.

At the close of the evidence, the court found each of the three allegations in the State s motion to revoke to be true and revoked Appellant s probation.

II. DISCUSSION

In three issues on appeal, Appellant maintains: (1) the court abused its discretion in revoking Appellant s probation for failing to perform community service hours when the State filed a motion to revoke before the expiration of the probation, and the terms and conditions of probation do not indicate a specific number of community service hours to perform each month; (2) the court abused its discretion in finding a violation of probation when Appellant violated curfew once in six years and such term and condition of probation is not reasonably related to the treatment of Appellant and the protection of the community; and (3) the court erred in allowing Officer Tarin to testify regarding hearsay statements which failed to meet an exception to the hearsay rule and violated Appellant s right to confrontation.

Specifically, regarding Issue No. Two, Appellant argues that the court abused its discretion in finding a violation of the curfew because only one violation was shown during the six years he was on probation. He also asserts that the term of probation is not reasonably related to the treatment of Appellant and the protection of the community because being outside the home during the proscribed hours is not a crime and the violation bears no relationship to the crime of sexual assault. Also, the curfew restriction is not reasonably related to the future criminality of Appellant.

Tex. Code Crim. Proc. Ann. art. 42.12, 11(a) (Vernon Supp. 2004) provides, in part:

The judge of the court having jurisdiction of the case shall determine the conditions of community supervision and may, at any time, during the period of community supervision alter or modify the conditions. The judge may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant. Conditions of community supervision may include, but shall not be limited to, the conditions that the defendant shall: . . . .

Article 42.12, section 11(a)(1)-(23) then lists numerous authorized conditions of probation. Violation of a curfew is not included in the listed conditions of community supervision.

The granting of community supervision is a contractual privilege afforded a defendant whereby the court agrees to extend clemency by granting probation in exchange for the defendant s agreement to abide by certain requirements of that probation. Speth v. State, 6 S.W.3d 530, 533-34 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1088, 120 S. Ct. 1720, 146 L. Ed. 2d 642 (2000). Aside from the statutorily authorized conditions of probation contained in Article 42.12, section 11(a), a trial court has broad discretion to determine the terms and conditions of probation to be imposed. See Speth, 6 S.W.3d at 533; Todd v. State, 911 S.W.2d 807, 817 (Tex. App.--El Paso 1995, no pet.). The conditions of probation are not limited to those suggested in statute. Fielder v. State, 811 S.W.2d 131, 134 (Tex. Crim. App. 1991). Permissible conditions of probation should have a reasonable relationship to the treatment of the accused and protection of the public. Id. However, Article 42.12, section 11(a) also authorizes the trial court to impose reasonable conditions intended to punish, rehabilitate, or reform the defendant, regardless of whether such conditions are related to the treatment of the accused or the protection of the public. See Todd, 911 S.W.2d at 816-17.

The standard of review on appeal from an order revoking probation is whether the trial court abused its discretion. Becker v. State, 33 S.W.3d 64, 66 (Tex. App.--El Paso 2000, no pet.). Proof of any single violation of the terms or conditions will support the trial court s order revoking probation. Id. at 66-67.

Appellant s initial contention regarding the curfew violation is that the single curfew violation is insufficient to support the revocation order. We note that Appellant s probation officer testified that he violated his curfew on December 5, 2001. Appellant admitted that he violated curfew on that date; albeit, he attempted to justify his actions by claiming the necessity to purchase diapers. The evidence supports the court s decision to revoke Appellant s probation. See Salinas v. State, 514 S.W.2d 754, 755 (Tex. Crim. App. 1974). Appellant provides no authority and we know of no such authority that indicates a probationer must commit a series of curfew violations to support an order revoking a probationer s probation.

We next consider whether the curfew condition was a valid condition of probation. Imposition of a curfew can be a reasonable condition of probation. See id. at 755 n.1. In Salinas, the defendant was convicted of possession of marihuana. The court held that the imposition of the curfew was a valid attempt by the judge to prevent unproductive activities and potentially deleterious associations. Id. In the present case, Appellant was convicted of sexual assault. Certainly, under the reasoning in Salinas, the court in the present case could impose the curfew condition to prevent unproductive activities and potentially deleterious associations, at a minimum. The imposition of the curfew could certainly be viewed as a reasonable method of protecting the community and punishing and or reforming Appellant. We find that Appellant has failed to show that the curfew imposed was an unreasonable or improper condition of probation. As any single ground for revocation will support the trial court s decision to revoke, we find the court did not abuse its discretion in revoking Appellant s probation. See Becker, 33 S.W.3d at 66-67. Issue No. Two is overruled.

Having overruled Appellant s Issue No. Two, and finding that we need not address Appellant s remaining issues on review, we affirm the judgment of the trial court. //

RICHARD BARAJAS, Chief Justice

August 20, 2004

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)