Date: 02-07-2017

Case Style:

Case Number: 05-16-00338-CR

Judge: Molly Francis

Court: In The Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney:

Faith Johnson  
Patricia Poppoff Noble

Defendant's Attorney:

Ronald L. Goranson  

Description: Rondrae Tramaine Roberts appeals the trial court’s judgment adjudicating him guilty and
sentencing him to ten years in prison. In two issues, appellant challenges the admission of a
probation officer’s testimony and the sufficiency of the evidence to show he violated conditions
of his community supervision. For reasons discussed below, we conclude both issues are
without merit. On our own motion, we modify the trial court’s judgment to reflect appellant
pleaded not true to the allegations in the motion to adjudicate. We affirm the judgment as
modified.
Appellant was indicted on a charge of aggravated robbery with a deadly weapon. He
waived his right to a jury trial, pleaded guilty, and judicially confessed to the offense. The trial
court deferred a finding of guilt and placed appellant on community supervision for ten years.

Fifteen months later, the State filed a motion to revoke probation or proceed with an adjudication
of guilt, alleging appellant had violated seven conditions of his community supervision,
including failure to report in November 2014, December 2014, and January 2015.
A contested revocation hearing was held. Appellant pleaded not true to the allegations in
the State’s motion. To prove the allegations, the State presented the testimony of Jennifer
Vavrick, a Dallas County probation officer assigned to Criminal District Court No. 1. Vavrick
testified she was record custodian and had access to the information contained in appellant’s
probation record. She did not, however, have personal knowledge of the data entries. Appellant
objected to Vavrick testifying about the contents of the records on hearsay, confrontation, and
personal knowledge grounds. The trial court overruled the confrontation objection and granted a
running objection on that issue, but sustained the hearsay objection for failure to lay a proper
predicate.
The State then asked Vavrick questions to establish the business records exception to the
hearsay rule. She testified that a probation record includes a person’s conditions of probation
and the documentation regarding the case. The entries are made into the probation department’s
computer system by probation department employees at the time of and with actual knowledge
of the events, and these records are kept in the regular course of business. Finally, she testified
the department relies on the records, and access to their contents is limited by security controls.
The trial overruled appellant’s hearsay and personal knowledge objections and granted running
objections on those complaints as well.
In addition to other violations, Vavrick testified the notes showed appellant had not
reported from November 2014 through all of 2015. Vavrick testified appellant’s probation
supervision was transferred to Collin County and, at some point, he told his Collin County
probation officer he was moving to Denton County; appellant was instructed to inform Dallas


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County that he was moving, but he failed to do so; a letter, giving him reporting instructions, was
mailed to his last known address; and appellant failed to report during the year 2015.
On cross-examination, Vavrick testified to much of the same information, including that
appellant began reporting in Collin County in June 2014 and the last progress report from that
county was October 29, 2014; in November, Dallas County received a letter from Collin County
stating they were closing appellant’s case because he had moved to Denton County; the letter
provided the address and phone numbers given by appellant; after receiving the closure letter,
Juan Mendoza, a transfer officer with the Dallas County probation department, attempted to
contact appellant by phone; and Dallas County then sent appellant a letter dated December 17,
2014 instructing him to report on December 30, 2014. Additionally, Vavrick testified that
appellant was told by his Collin County probation officer that he needed to contact Dallas
County about the transfer to Denton, although she did not know exactly what he was told.
At the conclusion of Vavrick’s testimony, the trial court found the failure to report
allegation true, granted the State’s motion, and found appellant guilty. Before assessing
punishment, the trial court heard testimony from appellant, his wife, his mother’s best friend, and
two Dallas County probation officers involved in appellant’s case. The testimony generally
related to appellant’s efforts to follow his probation conditions and, in particular, to contact
Mendoza after he moved from Collin County.
In his first issue, appellant contends the trial court violated his Sixth Amendment right to
confrontation as set out in Crawford v. Washington, 541 U.S. 36 (2004), by allowing Vavrick to
testify to the contents of appellant’s probation record.
The Confrontation Clause of the Sixth Amendment to the United States Constitution
provides “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . .” U.S. CONST. Amend. VI. In Crawford, the Supreme Court


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held the admission of a hearsay statement made by a non-testifying declarant violates the Sixth
Amendment if the statement was testimonial and the defendant did not have a prior opportunity
to cross-examine the witness. Crawford, 541 U.S. at 68; Wall v. State, 184 S.W.3d 730, 734
(Tex. Crim. App. 2006).
In a line of unpublished cases, beginning with Gutierrez v. State, No. 05-11-01380-CR,
2013 WL 3533549, at *1 (Tex. App.—Dallas July 12, 2013, pet. ref’d) (mem. op., not designated
for publication), this Court has previously concluded that the right to confrontation under the
Sixth Amendment does not apply during revocation proceedings. See Preston v. State, No. 05
14-01131-CR, 2015 WL 4241406, at *2 (Tex. App.—Dallas July 14, 2015, no pet.) (mem. op.,
not designated for publication); Riley v. State, No. 05-13-00900-CR, 2014 WL 1856845, at*3
(Tex. App.—Dallas May 8, 2014, pet. ref’d) (mem. op., not designated for publication).
As we said in Gutierrez, the Confrontation Clause, by its own terms, applies only to
criminal prosecutions, and a probation revocation is not a stage of “criminal prosecutions.” See
Gutierrez, 2013 WL 3533549, at *1 (citing Wisser v. State, 350 S.W.3d 161, 164 (Tex. App.—
San Antonio 2011, no pet.); Trevino v. State, 218 S.W.3d 234, 239 (Tex. App.—Houston [14th
Dist. 2007, no pet.); Smart v. State, 153 S.W.3d 118, 121 (Tex. App.—Beaumont 2004, pet.
ref’d)). This is true whether revocation follows “regular” probation or deferred adjudication
probation. Id.
Appellant asserts the underlying rationale of these opinions has been undermined by Ex
parte Doan, 369 S.W.3d 205, 212 (Tex. Crim. App. 2012), which held community supervision
revocation hearings are judicial proceedings subject to the rules governing judicial proceedings
and not, as prior cases held, merely administrative proceedings. From this, appellant seems to
suggest that because probation revocation proceedings are judicial proceedings, they must


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likewise be “criminal prosecutions” as contemplated by the Sixth Amendment. But Doan made
no such pronouncement.
In Doan, the court considered whether double jeopardy precluded the State from
prosecuting a defendant for an offense in one county when the offense was used as the basis for a
motion to revoke probation denied by a trial court in another county. Doan, 369 S.W.3d at 206.
As part of its analysis, the court reviewed prior case law regarding the nature of revocation
hearings and ultimately disavowed prior cases characterizing such hearings as administrative. In
reaching its conclusion, the court noted there are “few procedural differences between a Texas
criminal trial and a Texas community-supervision revocation proceeding,” but the court did not
go so far as to say a revocation proceeding is a criminal prosecution. Id. at 210. More
importantly, the court did not state, nor even address, whether such a proceeding is a “criminal
prosecution” under the Sixth Amendment. Rather, the court reversed the appellate court after
determining “as a matter of state law, a prosecuting authority who alleges a criminal offense in a
community supervision revocation hearing represents the same interests as a prosecuting
authority who later alleges the same criminal offense in a trial” and the court of appeals “erred in
holding that two prosecuting authorities could not be the same party for res judicata purposes.”
Id. at 212–13.
Because we have previously concluded deferred adjudication revocation proceedings are
not a phase of criminal prosecution under the Sixth Amendment, we conclude the trial court did
not err in overruling appellant’s objection and admitting Vavrick’s testimony.1 We overrule the
first issue.
1 This conclusion should not be read to mean a defendant has no rights to confrontation in a revocation proceeding; a defendant does have certain rights of cross-examination under the Due Process Clause of the Fourteenth Amendment. See Gutierrez, 2013 WL 3533549, at *3 n.1 (citing Black v. Romano, 471 U.S. 606, 612 (1985)); see e.g. Leonard v. State, 385 S.W.3d 570, 577 (Tex. Crim. App. 2012) (“Revocation involves the loss of liberty and therefore implicates due process.”). Appellant, however, has not brought a due process complaint.


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In his second issue, appellant contends the evidence is insufficient to support the trial
court’s finding he violated the conditions of his community supervision.
The decision to proceed to an adjudication of guilt and revoke deferred adjudication
community supervision is reviewable in the same manner as a revocation of ordinary community
supervision. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West Supp. 2016). We review an
order revoking community supervision under an abuse of discretion standard. Rickels v. State,
202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cantu v. State, 339 S.W.3d 688, 691 (Tex.
App.—Fort Worth 2011, no pet.). In a revocation proceeding, the State must prove by a
preponderance of the evidence that the defendant violated the terms and conditions of
community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). Proof by
a preponderance of the evidence of any one of the alleged violations of the conditions of
community supervision is sufficient to support a revocation order. Cantu, 339 S.W.3d at 691–
92.
The State’s motion to revoke alleged he violated seven grounds: (d) failure to report to
the community supervision office for the months of November 2014, December 2014, and
January 2015; (h) failure to pay court costs; (j) failure to pay community supervision fees; (m)
failure to complete community service hours; (q) failure to complete Thinking for Change; (t)
failure to pay restitution; and (w) failure to complete IOP.
At the conclusion of the testimony on the revocation/adjudication portion of the hearing,
the State withdrew allegation (q), Thinking for Change, and argued the evidence, at the “very
minimum,” supported a true finding to failure to report. The trial court then found “Allegation B
to be true” and granted the State’s motion and found appellant guilty as charged.


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Appellant argues the State’s motion did not allege a violation of condition (b) and there is
no evidence to show he violated condition (b); thus, he contends the trial court abused its
discretion in revoking his community supervision.
We acknowledge the reporter’s record shows the trial judge found condition “(b)” true.
But, later, while hearing punishment evidence, the trial judge specifically stated he had “found
true the violations in November 2014, December of 2014 and January of 2015, the
nonreporting.” Whether the conflict in the record is due to a mistake by the court reporter in
reporting “b” instead of “d” or is due to the trial court “misspeaking,” reversal is not required.
Considering the record as a whole, it is clear the parties and the court understood appellant had
been revoked for nonreporting, which was consistent with allegation (d) in the State’s motion,
the evidence presented, and the State’s closing argument. We overrule the second issue.
Finally, although neither party has raised the issue, our review of the record reveals an
error in the judgment. The judgment states appellant pleaded true to the allegations in the State’s
motion to adjudicate, but the reporter’s record shows appellant pleaded not true to the
allegations. We have authority to correct a judgment below to make the record “speak the truth”
when we have the necessary data and information to do so.

Outcome: