RICARDO CALIXTO v. THE STATE OF TEXAS (2012)

OPINION

Opinion By Justice FitzGerald

While appellant Ricardo Calixto was on community supervision, the State moved to proceed with an adjudication of guilt.   The trial judge granted the motion and signed a judgment adjudicating guilt, sentencing appellant to ten years' imprisonment.   Appellant raises two issues on appeal, arguing that the State amended its motion in an untimely manner and that the trial judge erroneously admitted hearsay at the hearing of the State's motion.   We affirm.

I. Background

In 2009, appellant pleaded guilty to the offense of unlawful restraint.   The trial judge signed an order of deferred adjudication in which he placed appellant on community supervision for five years.

In September 2010, the State filed a motion to proceed with an adjudication of guilt in which the State alleged that appellant had committed numerous violations of the conditions of the court's prior order.   A certificate on the motion recites that a copy of it was delivered to appellant on November 24, 2010.   On January 13, 2011, the State filed an amended motion to proceed with an adjudication of guilt.   The amended motion was delivered to appellant on January 18, 2011.   The trial judge heard the amended motion on January 21, 2011, and appellant pleaded not true.   The judge found one of the allegations in the amended motion was true, namely that appellant had committed the alleged offense of theft in August 2010.   He sentenced appellant to ten years' imprisonment for the crime of unlawful restraint.   Appellant timely appealed.

II. Analysis

A.  Amendment of the State's motion

In his first issue on appeal, appellant argues that the trial judge erred by overruling his objection to the hearing of the State's untimely amended motion to proceed with an adjudication of guilt.   The code of criminal procedure provides:

In a felony case, the state may amend the motion to revoke community supervision any time up to seven days before the date of the revocation hearing, after which time the motion may not be amended except for good cause shown․

Tex.Code Crim. Proc. Ann. art. 42.12, § 21(b–2) (West Supp.2011).   The trial judge stated on the record that he found good cause for the State's amendment of its motion, which amendment was served on appellant three days before the hearing.   The judge observed that the amended motion only gave appellant more specific notice of the violation that he was charged with.   In the original motion, the State alleged that appellant violated condition (a) of his community supervision when he “did commit the offense of Theft of Property $1,500.00—$20,000.00.” In the amended motion, the State deleted the above-quoted language and instead alleged that appellant violated condition (a) of his community supervision when he

did intentionally and knowingly appropriate, bt [sic] acquiring and otherwise exercising control over, property, other than real property, namely:  tires and wheels, of the value of at least fifteen hundred ($1,500.00) but less than twenty thousand dollars ($20,000.00), without the effective consent of Kevin Kelly, the owner of the said property, and with intent to deprive the said owner of the said property.

The parties agree that the trial judge orally found good cause for the amendment based on the substance of the amendment, i.e., the fact that the change merely gave more detail as to how appellant allegedly violated condition (a) of his community supervision.

The parties do not discuss the meaning of the good-cause standard found in section 21(b–2), nor do they discuss the proper standard of appellate review for a trial court's good-cause determination.   We conclude that we need not delve into these matters because any error was harmless.   A trial-court error under section 21(b–2) is statutory rather than constitutional error, so we may reverse only if the error affected appellant's substantial rights.   See Tex.R.App. P. 44.2(b).  In the analogous case of a late amendment of an information by the State, we have assessed harm by considering whether the information as written “informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial” and whether prosecution under the erroneous information would subject the defendant to a risk of subsequent prosecution for the same crime.   See Dukes v. State, 239 S.W.3d 444, 447 (Tex.App.—Dallas 2007, pet. ref'd).   In the instant case, the amendment did not change the crime alleged (theft of property worth at least $1,500 and less than $20,000), nor did it change the date or location of the alleged crime.   Appellant does not argue, and nothing in the record suggests, that the late amendment of the State's motion hampered appellant's ability to defend against it.   We do not see how the addition of factual detail consistent with the State's prior motion could have prejudiced appellant's defense.   Accordingly, we conclude that any error in overruling appellant's objection to the amendment was harmless, and we reject appellant's first issue on appeal.

B. Admission of hearsay evidence

In his second issue on appeal, appellant argues that the trial judge erred by admitting certain hearsay testimony at the hearing on the State's motion.   We review the trial judge's decision to admit evidence for abuse of discretion.   Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App.2007).   We uphold the trial judge's ruling unless it is outside the zone of reasonable disagreement.  Id.

Kevin Kelly testified at the hearing about the value of the property allegedly stolen by appellant, specifically the wheels from Kelly's truck.   The relevant testimony follows:

Q. How much were the wheels worth?

A. The dealer told me about 4,000.

[Defense counsel]:  We would object to hearsay, Your Honor.

The Court:  Overruled.

․

Q. What was the value of the wheels that were taken off your car?

A. According to the dealer where I bought the vehicle, about $4,000.

[Defense counsel]:  Once again we object to hearsay and confrontation.

The Court:  I've already overruled it.

[Defense counsel]:  May we have a running objection?

The Court:  You may.

[Defense counsel]:  Thank you.

Q. So you bought this car yourself?

A. Yes, sir.

Q. And the wheels were on it?

A. Uh-huh, yes.

Q. And the cost of the wheels was part of the price of the vehicle?

A. It was.

The Court:  What do you think the wheels were worth?

The Witness:  I didn't have any idea, to be honest with you.   When the dealer told me 4,000, I was floored.

The Court:  Have you replaced them since?

․

The Witness:  No, sir.

Plainly, Kelly had no personal knowledge of the value of the wheels in question and only repeated what he was told by an auto dealer.   Thus, his testimony about the value of the wheels was hearsay under the rules of evidence.   See Tex.R. Evid. 801(d) (defining hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”).   The hearsay testimony was inadmissible unless an exception to the hearsay rule applied.   See Tex.R. Evid. 802.

We have held that several exceptions to the hearsay rule can be relied on to permit proof of the value of stolen property by hearsay, specifically the business-records exception, the exception for records of documents affecting an interest in property, and the exception for market reports, commercial publications, and the like.  Redfearn v. State, No. 05–96–00029–CR, 1998 WL 8675, at *2 (Tex.App.—Dallas Jan. 13, 1998, no pet.) (not designated for publication) (citing Tex.R.Crim. Evid. 803(6), (15), (17) (1986, superseded by the Texas Rules of Evidence 1998));  accord Jones v. State, 821 S.W.2d 234, 237 (Tex.App.—Houston [14th Dist.] 1991, pet. ref'd).   In Redfearn, we held that a witness could testify to the value of stolen sports trading cards based on his consultation of a sports magazine commonly used in the industry and a conversation with the vice president of the magazine's publisher.   1998 WL 8675, at *2. In Jones, the court held that a witness could testify to the replacement cost of stolen merchandise based on prices he was told by manufacturers' representatives.  Jones, 821 S.W.2d at 237.   Following these cases, we conclude that the trial judge did not abuse his discretion by admitting Kelly's testimony over appellant's hearsay objection.

In the alternative, we conclude that any error in the admission of Kelly's testimony was harmless.   Appellant's community supervision was conditioned on his not committing any offense against the laws of Texas or any other state.   Although the State alleged that appellant violated the conditions of his community supervision by committing theft of property worth least $1,500 but less than $20,000, proof of a lesser included offense would also suffice to justify rendition of a judgment adjudicating appellant's guilt.   See Greer v. State, 783 S.W.2d 222, 224 (Tex.App.—Dallas 1989, no pet.) (concluding that a probationer is “accountable for lesser offenses included within the offense alleged in the motion to revoke”).   Theft of property valued less than $50 is a lesser included offense of theft of property with a higher value.   See, e.g., Valentine v. State, No. 06–04–00035–CR, 2005 WL 267795, at *4 (Tex.App.—Texarkana Feb. 4, 2005, pet. ref'd) (mem. op., not designated for publication).   Even if there was no properly admitted evidence that the wheels and tires in question were worth between $1,500 and $20,000, we may presume that they had some value based on Kelly's testimony at the hearing that he still had not replaced the wheels or tires several months after the theft had occurred.   See id. (presuming that stolen golf carts had some value based on photographic evidence indicating that the carts were in good condition);  see also Barnes v. State, 467 S.W.2d 437, 440–41 (Tex.Crim.App.1971) (affirming judgment revoking probation even though State adduced no evidence of value of stolen motorcycle because court of criminal appeals could conclude the motorcycle had some value).   Thus, even if the trial judge erred in admitting Kelly's hearsay testimony about the value of the wheels and tires, the error was harmless.   Cf. Greer, 783 S.W.2d at 224–25 (affirming revocation of probation where evidence proved lesser included offense of possession of cocaine instead of alleged offense of possession of cocaine with intent to distribute).

We reject appellant's second issue on appeal.

III. Disposition

We affirm the trial court's judgment adjudicating guilt.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

RICARDO CALIXTO, Appellant

No. 05–11–00294–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 265th Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F09–00696–R).

Opinion delivered by Justice FitzGerald, Justices Bridges and Lang participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered April 4, 2012.

/Kerry P. FitzGerald/

KERRY P. FITZGERALD

JUSTICE

KERRY P. FITZGERALD JUSTICE