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applying a harmless error analysis where documents were assumed to have been erroneously admitted under the business records exception in Texas Rule of Evidence 803
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No. 06-04-00035-CR
Submitted: January 21, 2005.
Decided: February 4, 2005. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 21,497-B.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
On July 14, 1994, Brian H. Valentine waived a jury trial and pled guilty to theft of United States currency worth at least $20,000.00, but less than $100,000.00. The trial court accepted Valentine's plea and assessed his punishment at ten years' imprisonment; the court then suspended imposition of that punishment and placed Valentine on community supervision for a period of ten years. During much of the time since, Valentine lived in Angelina County, Texas, and worked for Wesco Distribution, Inc. On November 26, 2003, the State filed an application to revoke Valentine's community supervision. The motion asserted Valentine had violated the terms of his supervision by committing a new criminal offense — more specifically, that
on or about November 12, 2003, in Angelina County, Texas, [Valentine] did then and there unlawfully appropriate, by acquiring or otherwise exercising control over, property, to-wit: merchandise and services, of the value of $200,000.00 or more from Wesco Distribution, the owner thereof, with intent to deprive the owner of the property.Valentine's then-counsel of record, Jerry Whitaker, sought to withdraw on January 23, 2004. Three days later, the trial court approved the substitution of Clement Dunn as Valentine's counsel of record. Two days later, Valentine moved to quash the State's application to revoke his community supervision because:
The application fails to specify what item or items were taken on or about specific dates. It fails to include specific values or value ranges for the items alleged. It fails to describe the manner and means associated with the taking of each item. The application fails to set forth sufficient detail to place the Defendant on notice of what act or acts he committed in violation of his probation. Insufficient notice is given for purposes of preparing any meaningful defense.The next day, the trial court heard argument on Valentine's motion to quash, after which the court denied Valentine's motion. The trial court then heard evidence and argument on the State's motion to revoke. At the conclusion of the hearing on the State's motion to revoke, the trial court found Valentine had committed a new criminal offense, granted the motion to revoke, and imposed on Valentine the original sentence of ten years' imprisonment. Valentine now appeals.
I. Did the Trial Court Err By Denying Valentine's Motion To Quash?
In his first point of error, Valentine contends the trial court erred by denying his motion to quash the State's motion to revoke because, according to Valentine, the State's motion did not provide adequate notice of the accusation against him and, therefore, violated his Due Process rights. More specifically, Valentine asserts the motion was deficient because (1) it provided a single offense date, yet the State's proof at the revocation hearing concerned transactions over a period of several years, and (2) the State's motion did not specify the kinds, amounts, or values of the properties or service(s) taken.A. The Standard of Review.
In reviewing a trial court's denial of a motion to quash a motion to revoke community supervision that alleges a new criminal offense, we first determine whether the State's motion to revoke lacked some requisite item of notice. Labelle v. State, 720 S.W.2d 101, 108 (Tex.Crim.App. 1986). If we determine that motion did lack some required item of notice, we next "decide whether in the context of the case this [deficiency] had an impact on the defendant's ability to prepare a defense." Id. If the deficiency did impact the defendant's ability to prepare a defense, we must then determine the extent of that impact. Id. B. The Motion Provided Inadequate Notice, but Valentine Has Failed To Show Harm. 1. The State's Motion To Revoke Community Supervision Does Not Provide Adequate Notice. In Labelle, 720 S.W.2d at 102 — 03, the State alleged (in its motion to revoke supervision) Labelle had committed a new criminal offense by removing and destroying a governmental record. The State's motion did not further describe that governmental record. On appeal, the Texas Court of Criminal Appeals held the State's motion failed to provide sufficient notice "in respect to specificity of the governmental record in question," and, therefore, the trial court erred by overruling Labelle's exception to the State's revocation motion. Id. at 106. In the case now before this Court, the State's motion did not describe what "merchandise or services" were allegedly stolen by Valentine. Such a description would be necessary for Valentine to defend himself against the State's case, especially in light of the complexity of Valentine's alleged embezzlement that was suggested at the revocation hearing. Accordingly, we hold the trial court erred by denying Valentine's motion to quash the State's motion to revoke. Valentine has, therefore, met the first prong of the Adams-Labelle analysis. Cf. Labelle, 720 S.W.2d at 108. Valentine also argues the motion to revoke did not allege specific dates of the alleged violations. William C. Coe, senior corporate security specialist for Wesco, testified he investigated an allegation of fraud at Wesco in Lufkin related to Valentine. Coe determined Wesco had been defrauded of in excess of $358,000.00 between 1999 and March 2003. The application to revoke community supervision alleges that, "on or about November 12, 2003," Valentine "unlawfully appropriate[d] . . . property. . . ." This allegation clearly shows a violation occurred during a time anterior to the filing of the motion and during the period of community supervision. See Diaz v. State, 516 S.W.2d 154 (Tex.Crim.App. 1974). The burden of proving the date alleged in a motion to revoke is comparable to that of a date in an indictment except that the requirement for pleading in a revocation proceeding is less strict than for an indictment. Chreene v. State, 691 S.W.2d 748, 750 (Tex.App.-Texarkana 1985, pet. ref'd) (citing Fowler v. State, 509 S.W.2d 871 (Tex.Crim.App. 1974); Flores v. State, 664 S.W.2d 426 (Tex.App.-Corpus Christi 1983, no pet.); Martinez v. State, 635 S.W.2d 762 (Tex.App.-Corpus Christi 1982, no pet.)). When an "on or about" date is alleged as the date of the commission of the offense, the State is not bound by the date alleged, and proof that the offense was committed any time before the return of the charging instrument that is within the period of limitations is sufficient. Chreene, 691 S.W.2d at 750 (citing Ex parte Hyett, 610 S.W.2d 787 (Tex.Crim.App. 1981)). We believe that the allegation as to the date is in accord with the above authorities. 2. The Record Does Not Show the State's Deficient Notice Affected Valentine's Ability To Prepare a Defense at the Revocation Hearing. Wesco terminated Valentine's employment in March 2003. Wesco then began investigating Valentine's activities while he was a manager. That investigation led Wesco officials to contact the Lufkin Police Department about bringing theft charges against Valentine. Later, the State filed a motion to revoke Valentine's community supervision based on the same charges. Valentine's subsequent November 2003 arrest (which was made pursuant to the State's revocation motion in the case now on appeal) occurred in the office of his Gregg County community supervision officer. From the time of that arrest until the time of the revocation hearing, Valentine remained incarcerated in Gregg County's jail. At the revocation hearing, Valentine's trial counsel effectively cross-examined each of the State's witnesses, even though counsel had been hired but a few days before the revocation hearing. Neither Valentine nor his counsel requested additional time to prepare for the revocation hearing, nor did Valentine suggest that, absent further clarification of the State's motion to revoke, Valentine would be unable to proceed with the hearing; in fact, when the trial court asked if Valentine was ready for the hearing on the State's motion, Valentine's counsel answered, "Your Honor, we're here and ready." Valentine also called as a witness his current employer, who had driven to Longview from Lumberton, Texas, in order to testify and who expressed a willingness to have Valentine return to his employment. And, at the conclusion of the hearing, Valentine's counsel argued that the State's (admissible) evidence was insufficient to prove Valentine stole services or merchandise worth over $200,000.00. These factors all suggest the State's deficient motion did not affect Valentine's ability to prepare a defense. Moreover, Valentine's brief on appeal has made no effort "to suggest any way in which his ability to prepare a defense was hampered by failure of the motion to revoke to reflect" what merchandise or services were unlawfully appropriated. Cf. Labelle, 720 S.W.2d at 109. Accordingly, we conclude, based on our review of the record, that Valentine has not satisfied the second prong of the Adams-Labelle analysis. We, therefore, overrule Valentine's first point of error.II. Did the Trial Court Err by Admitting Documents Pursuant To the Business Records Exception to the Hearsay Rule, and Was the Evidence Otherwise Sufficient To Support the Trial Court's Revocation of Community Supervision?
In his second point of error, Valentine contends the trial court erred by overruling his hearsay objections to the admission of several of the State's documentary exhibits. Valentine's third point of error challenges the sufficiency of the (properly admissible) evidence to support the trial court's judgment. Both issues are interrelated; we will, therefore, review them together. Assuming, without so deciding, that the trial court erred by admitting all of the objectionable State's documentary exhibits pursuant to the business records exception, see TEX. R. EVID. 803(6), we would then need to determine whether Valentine was harmed by such error. See Broderick v. State, 35 S.W.3d 67, 74 (Tex.App.-Texarkana 2000, pet. ref'd). The erroneous admission of hearsay is nonconstitutional error, id., which will not result in reversal of a criminal conviction if the reviewing court has fair assurance that the error did not influence the fact-finder or had but a slight effect. Id. (citing Tex.R.App.P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998)). Even if we agree with Valentine's contention that the trial court erred by admitting the documents over his hearsay objections, we would still need to determine whether the State's properly admissible evidence was sufficient to support the trial court's judgment. With this in mind, we now turn to whether any of the unobjected-to evidence supports the trial court's judgment. If the answer to that question is "yes," then we must find that the arguably erroneous admission of the remaining evidence had no effect, or had but a slight effect, on the trial court's judgment.A. The Standard of Review.
At a community supervision revocation hearing, the trial court is the sole trier of fact and is the final arbiter of the credibility of witnesses, as well as being the one that determines what weight is to be given each witness' testimony. Battle v. State, 571 S.W.2d 20, 21 (Tex.Crim.App. [Panel Op.] 1978). We review a trial court's order revoking community supervision for abuse of discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984). "In making this determination, we examine the evidence in a light most favorable to the verdict." In re B.J., 100 S.W.3d 448, 451 (Tex.App.-Texarkana 2003, no pet.) (citing Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. 1981)). The standard of proof in a revocation of community supervision proceeding is "preponderance of the evidence." Alva v. State, 797 S.W.2d 957, 958 (Tex.App.-Houston [14th Dist.]), pet. ref'd, 799 S.W.2d 765 (Tex.Crim.App. 1990) (per curiam). "[W]hen an indictment alleges an offense which includes a lesser one, the accused may be tried and convicted of such lesser offense." Greer v. State, 783 S.W.2d 222, 224 (Tex.App.-Dallas 1989, no pet.). "Since an accused may be tried and convicted of a lesser included offense other than that alleged in an indictment, we conclude that a probationer is likewise accountable for lesser offenses included within the offense alleged in the motion to revoke." Id. Accordingly, if the evidence is sufficient to support a lesser offense of theft over $200,000.00, then the trial court did not err by revoking Valentine's community supervision.B. The Evidence Is Sufficient To Support the Trial Court's Finding that Valentine Had Committed the Offense of Theft.
At the revocation hearing, Coe testified he saw Valentine and another individual steal from the company's Lufkin offices two golf carts owned by Wesco. Valentine neither challenged this testimony at trial, nor does he challenge that testimony on appeal. In 1971, the Texas Court of Criminal Appeals reviewed a trial court's decision to revoke the probation of Robert Thomas Barnes. See Barnes v. State, 467 S.W.2d 437 (Tex.Crim.App. 1971). Barnes was placed on probation for burglary of a motor vehicle in September 1969. Id. Less than six months later, the State filed a motion to revoke Barnes' probation; the State's motion alleged Barnes had committed a new criminal offense, which the State alternatively pled as either (a) theft of a property (a motorcycle) valued at more than $50.00 or (b) unlawful use of a motor vehicle valued at more than $200.00. Id. at 437 — 38. At the hearing on the State's motion, the trial court found the State had satisfied its burden of proof for the motion to revoke, even though the State had offered no evidence of the motorcycle's value. Id. at 438 — 40. On appeal, the Texas Court of Criminal Appeals affirmed the trial court's judgment.As to the value of the motorcycle; true, the state, in the motion to revoke probation alleged that the appellant committed felony offenses. The proof shows only an offense against the laws of this state, i.e. the theft of a motorcycle and the value is not shown to exceed fifty dollars. It is evident that there was "poor pleading" or "poor proving," either of which is certainly not to be commended. Nevertheless, we conclude that the said motorcycle had [ s] ome value.Id. at 440. In the case now on appeal, the only evidence of the monetary value of the golf carts is found in the business records to which Valentine objected. Coe neither testified as to the current value of these golf carts, nor did the State cross-examine Valentine regarding the carts' value. Nevertheless, the Texas Court of Criminal Appeals' opinion in Barnes counsels that we may presume these golf carts had "[ s] ome" value. We believe, given the facts of this case, such a presumption is fair because the record before us includes a photograph of these golf carts, and that photograph was admitted into evidence without objection from Valentine. The photograph in question shows two E-Z-Go carts with weatherproof tops and glass windshields, and all equipment appears to be in good condition. The remainder of Coe's unobjected-to testimony regarding the golf carts is sufficient to establish the remaining elements necessary to prove a theft of property under TEX. PEN. CODE ANN. § 31.03 (Vernon Supp. 2004 — 2005) (that Valentine unlawfully appropriated property [golf carts] belonging to Wesco). Theft of property valued at less than $50.00 is a class C misdemeanor, punishable by a fine of up to $500.00, TEX. PEN. CODE ANN. § 31.03(e)(1) (theft of property under $50.00 is class C misdemeanor); TEX. PEN. CODE ANN. § 12.23 (Vernon 2003) (punishment for class C misdemeanor), and is a lesser-included offense of theft of property valued at greater than $200,000.00. Cf. Watson v. State, 923 S.W.2d 829, 832 (Tex.App.-Austin 1996, pet. ref'd) (reforming conviction to lesser-included offense based on sufficiency of evidence to prove only class B theft rather than class A theft). Based on the Texas Court of Criminal Appeals' opinion in Barnes, we hold that the State's evidence is sufficient to support the trial court's judgment. Cf. Albritton v. State, 680 S.W.2d 80, 81 (Tex.App.-Fort Worth 1984, no pet.) (subsequent conviction for speeding sufficient basis to revoke community supervision). Accordingly, we cannot say the trial court erred by revoking Valentine's community supervision. We overrule Valentine's second and third points of error and affirm the trial court's judgment.
See also Adams v. State, 707 S.W.2d 900 (Tex.Crim.App. 1986) (regarding review of motions to quash indictments). Labelle expressly extends the test for reviewing motions to quash indictments to cases where a trial court denies a motion to quash a motion to revoke community supervision. Labelle, 720 S.W.2d at 108.
The crime of embezzlement has been consolidated with other similar offenses under Texas' general theft statute. See TEX. PEN. CODE ANN. § 31.02 (Vernon 2003).
First-degree felony charges were also pending in Angelina County at the time when Valentine was in the Gregg County jail awaiting a hearing on the revocation motion.