Opinion
NO. 09-11-00676-CRNO. 09-11-00677-CRNO. 09-11-00678-CRNO. 09-11-00679-CRNO. 09-11-00680-CR
10-03-2012
DOUGLAS WILMER RIVERA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause Nos. 10-08540, 10-08541, 10-08542, 10-08543, and 10-08891
MEMORANDUM OPINION
Douglas Wilmer Rivera pleaded guilty under a plea agreement to four counts of indecency with a child and one count of sexual assault of a child. In each case, the trial court deferred adjudication of guilt and placed Rivera on unadjudicated community supervision for ten years. As a requirement of his community supervision, Rivera was to serve 180 days of confinement.
The State filed motions to revoke in each case. The trial court found Rivera violated a term of the community supervision, adjudicated his guilt, and sentenced him to twenty years in prison in each case. The trial court ordered the sentences to run consecutively.
In his first issue, Rivera argues the trial court erred in admitting State's Exhibit No. One. One of the requirements of Rivera's community supervision was that he have no contact with children, including his own. The mail clerk of the county correctional facility testified that as part of her job she is occasionally asked to intercept an inmate's non-legal mail and make copies of the mail. She identified State's Exhibit No. One as copies she had made on different occasions, at her supervisor's request, of Rivera's non-legal mail. She stated that after she made copies, the letters would then be delivered to the intended recipient. She did not make any alterations to the documents. Rivera informed her that the persons to whom he was writing were receiving his letters opened and resealed.
Challenging the admissibility of State's Exhibit No. One, Rivera argues that the letters were copies, and that the mail clerk could not identify who wrote the letters. He maintains that the proper predicate for the admission of the letters was not established, the letters were not authenticated, and the letters were hearsay. Rivera also argues that the letters were seized without a warrant and that the State's witness did not know who authored the letters.
An appellate court may not disturb a trial court's evidentiary ruling absent an abuse of discretion. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). As long as the trial court's ruling is within the zone of reasonable disagreement and is correct under any theory of law applicable to the case, the ruling must be upheld. Id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g)).
An inmate does not have a legitimate expectation of privacy. See Hudson v. Palmer, 468 U.S. 517, 527-28, 530, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). The seizure of the mail was not a violation of a constitutional right to be free from unreasonable search and seizure. See Stroud v. United States, 251 U.S. 15, 21-22, 40 S.Ct. 50, 64 L.Ed. 103 (1919); Brown v. State, 334 S.W.3d 789, 805 (Tex. App.—Tyler 2010, pet. ref'd); see also Thomas v. Allsip, 836 S.W.2d 825, 828 (Tex. App.—Tyler 1992, no writ) (noting the court was unable to find any legal authority recognizing a prisoner's right to privacy in letters addressed to court).
The rules of evidence generally apply to revocation hearings. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims. Tex. R. Evid. 901(a). One means of authentication is by the testimony of a witness with knowledge that a matter is what its proponent claims it to be. Tex. R. Evid. 901(b)(1). Documents may also be authenticated by distinctive characteristics, including contents and substance, taken in conjunction with relevant circumstances. Tex. R. Evid. 901(b)(4).
Rivera argues "there was nothing in the record to serve as the basis of any [handwriting] comparison by any purported expert or other authentication." Authorship can be shown circumstantially, however. See Soria v. State, 933 S.W.2d 46, 60 (Tex. Crim. App. 1996) (op. on reh'g). Some of the handwritten letters included in State's Exhibit No. One show Rivera's name and address as either the sender or recipient, and some include his inmate number and a signature. The letters show correspondence between "Douglas Rivera" and his wife and children. Some of the letters (sent from "Douglas Rivera" to his "Dear Son" or "Dear Little Princess") include pictures of cartoon characters, and end with signatures such as "Dad" or "Daddy." Some of the letters addressed to "Douglas Rivera" are from his children, and at least one of the letters refers to the recipient as father.
The contents and substance of the letters sufficiently establish that the letters were correspondence between Rivera and his wife and minor children. See Tex. R. Evid. 901(b)(4); see also Druery v. State, 225 S.W.3d 491, 502-03 (Tex. Crim. App. 2007); Flores v. State, 299 S.W.3d 843, 856-57 (Tex. App.—El Paso 2009, pet. ref'd); Stafford v. State, 248 S.W.3d 400, 409 (Tex. App.—Beaumont 2008, pet. ref'd); Johnson v. State, 208 S.W.3d 478, 499 (Tex. App.—Austin 2006, pet. ref'd). The letters shown to be authored by Rivera are not hearsay. See Tex. R. Evid. 801(d)(e)(2)(A) (admission by party-opponent). The other letters were introduced to prove Rivera was corresponding with his children. Issue one is overruled.
In his second issue, Rivera contends the trial court's consideration of Court's Exhibit No. One, a separate exhibit, abrogated Rivera's right to remain silent. The State acknowledges that, unlike the letters, this exhibit does not necessarily establish a violation of the community supervision order. Rivera did not object to the trial court's consideration of the exhibit and waived any objection. Tex. R. App. P. 33.1(a)(1). The trial court could properly find a violation based on the other evidence introduced at the hearing. Issue two is overruled.
Rivera's third, fourth, and fifth issues relate to the punishment assessed. In his third issue, he argues the trial court predetermined his sentence and he was denied due process of law. Rivera maintains in his fourth issue that the trial court abused its discretion by failing to provide a "fair and impartial forum" for the assessment of punishment. In his fifth issue, he contends the trial court's method of imposing the sentence constituted cruel and unusual punishment. On appeal, he does not specifically challenge the cumulation of the sentences.
In addressing these three issues collectively, Rivera contends that "[i]t is apparent from the record that [at the time of the plea] the trial court was already considering a 100-year sentence in appellant's case," because the trial court advised appellant that if he did not take the original plea offer, he could receive 5 sentences of 20 years, to be served consecutively, for a total of 100 years. He states that the trial judge "unquestionably demonstrated a predetermination" regarding appellant's sentences and showed bias when the trial judge allegedly insinuated that Rivera sexually assaulted his wife because she was sixteen when they married. Rivera also maintains that the trial court's refusal to allow Rivera to speak in mitigation of punishment demonstrates the trial judge's bias.
At the plea hearing, the trial court's statement of Rivera's potential consequences -- that he could receive 5 sentences of 20 years, to be served consecutively, for a total of 100 years -- is insufficient alone to establish that the trial court did not consider the full range of punishment upon revocation. See Earley v. State, 855 S.W.2d 260, 262 (Tex. App.—Corpus Christi 1993, pet. dism'd) (Trial court's warning to defendant that maximum sentence may be later imposed if he violated terms of probation was insufficient alone to conclude trial court imposed a predetermined sentence.); compare Jefferson v. State, 803 S.W.2d 470, 471-72 (Tex. App.—Dallas 1991, pet. ref'd) (Defendant was deprived of fair and impartial tribunal and trial court did not consider full range of punishment where trial court promised defendant at the time it deferred his sentence that if he violated probation the maximum sentence would be imposed; upon the filing of a motion to revoke, the trial court reminded defendant of the promise and imposed the maximum sentences.). Rivera did not file a motion for new trial and did not object to any alleged partiality or the imposition of the alleged predetermined sentences at the time they were imposed. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.). Even if he had timely objected, a trial court's actions, absent a clear showing of bias, will be presumed to have been correct. Thompson v. State, 641 S.W.2d 920, 921 (Tex. Crim. App. 1982). Generally, a sentence that is within the range of punishment established by the Legislature will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). A punishment that is within the statutory range for the offense is generally not considered unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.— Dallas 1997, pet. ref'd).
The trial judge stated that he read in the P.S.I. that Rivera married his wife when she was sixteen, that Rivera was manipulative, and that the evidence suggested that Rivera's wife may have assisted Rivera in circumventing the court's orders. These comments do not establish Rivera's claim that the trial court, in imposing the sentences, relied on a purported sexual offense by Rivera against his wife. Rivera pleaded guilty to numerous sexual offenses against children. The trial court took judicial notice of the court's file in each case, and the trial court heard evidence of Rivera's frequent contact with his own children through the mail and telephone calls in violation of the terms of the court's order. The trial court heard evidence that Rivera was upset that his mail was being opened and also that he used other inmates' pin numbers to make calls to the children. The trial court's comments do not demonstrate bias, or show that the trial judge did not consider the full range of punishment. See Brumit v. State, 206 S.W.3d 639, 640-45 (Tex. Crim. App. 2006) (Comments of trial judge did not reflect bias, partiality, or failure to consider full range of punishment where the trial judge warned defendant of range of punishment at the time of his plea, imposed the maximum sentence, and did not, by his comments, indicate he failed to consider the full range of punishment and the evidence of defendant's sexual assault of two children.). Issues three, four, and five are overruled.
Rivera did not testify. His attorney offered reasons for mitigation. In issues six and seven, Rivera argues the trial court erred in denying Rivera's request for allocution and his right to address the trial court regarding his punishment. Rivera did not object at trial or in a motion for new trial. To preserve error for appellate review, Rivera was required to make a timely, specific objection. Tex. R. App. P. 33.1(a)(1). He failed to preserve error for our review. See Tenon v. State, 563 S.W.2d 622, 623-24 (Tex. Crim. App. [Panel Op.] 1978) (By failing to object in the trial court, appellant failed to preserve his argument regarding allocution.); Jarvis v. State, 353 S.W.3d 253, 254-55 (Tex. App.— Fort Worth 2011, pet. ref'd). Issues six and seven are overruled. The trial court's judgment is affirmed.
AFFIRMED.
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DAVID GAULTNEY
Justice
Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ.