Estrella, Rafael Martinez v. The State of Texas--Appeal from 156th District Court of Bee County

NUMBERS 13-00-220-CR THROUGH 13-00-223-CR 
  
 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI

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RAFAEL MARTINEZ ESTRELLA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 156th District Court
of Bee County, Texas.

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O P I N I O N
Before Justices Hinojosa, Chavez, and Kennedy(1)
Opinion by Justice Kennedy

Appellant was indicted in each of these four cases for possession of marijuana, in an amount of four ounces or less, but more than one-fourth ounce. He pleaded "guilty" to each indictment and, based upon a plea bargain agreement, was assessed punishment at confinement for ten years and a fine of $1,000. The imposition of sentence was suspended and appellant was placed on community supervision for ten years.

Subsequently, the State filed a motion to revoke appellant's community supervision, alleging four counts of violation of the conditions of his community supervision. The trial court found two of these counts to be true,(2)

revoked appellant's community supervision, reduced the term of imprisonment to four years, and ordered this term served in the institutional division of the criminal justice system of this state.

The appellate brief brings three points of error, which are:

Point of Error No. 1

The trial court abused the (sic) discretion by revoking the appellant's community supervision. Unsupported hearsay, refuted by the appellant, standing alone will not support revocation of community supervision.

Point of Error No. 2

The evidence is legally insufficient to revoke the appellant's community supervision.

Point of Error No. 3

The State failed to prove by a preponderance of the evidence that the appellant violated paragraphs two and four of the allegations contained in the state's motion to revoke community supervision.

The State has not filed a brief herein. Because the points of error are related, we consider them together.

The "hearsay statements" referred to in point of error one were the admissions appellant made to his probation officer that he had used cocaine on two occasions. Appellant cites Forrest v. State, 769 S.W.2d 298 (Tex. App. Houston [1st Dist.] 1989) for the proposition that "unsupported hearsay evidence, which is repudiated, standing alone, cannot be the basis of a revocation of community supervision." Forrest was a case where the defendant's wife told an officer that defendant had hit her on the head with an ash tray. The officer testified to this statement during the revocation hearing, following which the wife repudiated the statement.

Our case is distinguishable. The "hearsay" statements made herein were appellant's own statements. A statement tending to subject the declarant to civil or criminal liability is not hearsay, however, the statement must be supported by "corroborating circumstances" in order to be admissible. Tex. R. Evid. 803(24) (Vernon Pamphlet 2000).

During the hearing on the motion to revoke, the following questions and responses were heard by the trial judge:

Q [Prosecutor] Okay. There are some allegations in the motion to revoke that's before the court pertaining to the use of controlled substance. (sic) How were those allegations arrived at by the probation department?

[probation officer] I met with the defendant on October 1st in reference to a positive UA that was collected on August 30th, and he admitted to using cocaine at a friend's house on August 29th and September 15th.

* * *

[defense attorney] Okay. And let me ask you this: Back on August 30th of this year did you intentionally and knowingly use cocaine?

[appellant] No, sir.

[defense attorney] How do you think that you would have tested positive for cocaine?

[appellant] Somebody must have put it in my drink.

* * *

[defense attorney] And when they were trying to get you to do drugs, you got up and basically left?

[appellant] I left.

[defense attorney] And then you tested positive for cocaine?

[appellant] For cocaine.

[defense attorney] Then the probation officer said that you admitted to another cocaine use on September the 15th of 1999. Did you tell the probation officer that you had used cocaine?

[appellant] Yes, sir. At that time she was telling me all kind of things, and she if I didn't tell her the truth, I was going to get in trouble, or something like that; and so instead of me getting other people in trouble, I just set it up to myself.

We hold that this evidence provided the corroborating circumstances necessary to indicate the trustworthiness of the statements made against interest by appellant. The evidence is not unsupported and, thus, can be the basis of a revocation of community supervision. (Point one) The evidence is legally sufficient to support a revocation. (Point two) The trial court did not abuse its discretion by revoking appellant's community supervision. (Point three)

We overrule all three of appellant's points of error and AFFIRM the judgment of the trial court.

NOAH KENNEDY

Retired Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this the 8th day of February, 2001.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. 74.003 (Vernon 1998).

2. The court found that on August 29, 1999 and September 15, 1999 appellant had knowingly possessed and used a controlled substance (cocaine).