Date: 11-30-2022

Case Style:

Gerson Molina v. The State of Texas

Case Number: 02-22-00017-CR

Judge: Brian Walker

Court:

Second Appellate District of Texas at Fort Worth

On appeal from the 371st District Court of Tarrant County

Plaintiff's Attorney: Joseph W. Spence
John E. Meskunas

Defendant's Attorney: Fort Worth, Texas - Best Criminal_Defense
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Fort Worth, Texas – Criminal Defense lawyer represented Appellant with that he had violated the terms of his deferred-adjudication charge.

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When Molina was placed on five years of deferred-adjudication community
supervision for aggravated assault with a firearm, he signed two documents that
outlined its terms and conditions as part of his plea bargain. The first document,
titled “Conditions of Community Supervision,” prohibited Molina from committing
additional criminal offenses and required him to pay fees. The second document,
titled “Supplement/Amendment to Conditions of Community Supervision High
Risk,” required Molina to successfully complete the high-risk gang caseload program,
stated that he could not “possess a firearm or other dangerous or deadly weapon; nor
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remain in any vehicle where such a weapon is possessed; or remain in the presence of
any armed person,” and prohibited him from associating with known gang members
and staying in places where gang members congregate.1 See Tex. Code Crim Proc.
Ann. art. 42A.301(a).
B. STATE’S PETITION TO PROCEED TO ADJUDICATION
Predicated mainly on allegations that Molina had been involved in an
altercation involving a shooting outside of a Fort Worth home, the State filed its
petition to proceed with Molina’s adjudication and requested that his community
supervision be revoked. The State alleged that Molina had (1) committed the new
offense of engaging in organized criminal activity; (2) possessed a firearm; (3) been in
a vehicle with an armed person and remained in the presence of an armed person;
(4) been discharged from the high-risk caseload program for violating its terms;
(5) associated with known gang members; and (6) failed to pay his community
supervision fees.
C. REVOCATION HEARING
A hearing on the State’s petition was held over three days in front of a criminal
law magistrate. See Tex. Gov’t Code Ann. § 54.656(a)(10). The record does not
contain an order referring the case to the magistrate, but Molina never objected to the
1The second document appears twice in the record, with one copy bearing the
signatures of both Molina and the presiding judge. The second copy is signed by the
judge and a supervision officer but not Molina.
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magistrate’s presiding over the hearing. Molina pleaded not true to all of the
petition’s allegations.
Testimony at the hearing established that Molina had been in an altercation at
a carwash with seventeen-year-old F.V. See Tex. R. App. P. 9.10 (prohibiting use of
minor’s names in court filings). At some point the altercation ended and F.V.
returned to his home in Fort Worth, taking Molina’s cell phone with him. Molina left
the car wash and drove to another location where he picked up several companions,
including two men named Carlos and Isaac. The men then drove to F.V.’s home.
Upon arriving, Molina, Carlos, and Isaac exited Molina’s car and entered the
front yard where F.V. was sitting in his parked truck on the lawn. F.V. then ran from
the truck and into the home. F.V. testified that, as he was running, he heard Carlos
say, “You gonna need a new truck” and then he heard Carlos shoot a gun. F.V.’s
mother and sister, who were watching from inside the home, testified that they heard
gunshots come from the front yard.
F.V.’s sister recorded a short video soon after the three men entered the front
yard. A still image from this video shows Molina, Carlos, and Isaac in the front yard.
Isaac is standing in the foreground with Carlos and Molina behind him. Carlos
appears to be pacing and is openly carrying a handgun at his side in his right hand.
Molina stands a few feet to the left of Carlos and both men are facing the home.
Molina testified that he did not know that anyone was carrying a gun while he
was in F.V.’s front yard. He said that he heard F.V.’s mother yell that someone had a
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gun and that he and Carlos then immediately ran to Molina’s car and drove away
together. According to Molina, he first learned that Carlos had been carrying a gun in
the yard when he viewed the image taken by F.V.’s sister.
A police detective who interviewed Molina after the incident testified that
Molina told him that he knew that Carlos had a gun while they were in F.V.’s front
yard. Further, Molina told the detective that he did not immediately leave the front
yard when he realized that Carlos was carrying the gun. Molina stated multiple times
to the detective that he knew that he was not allowed to be around guns.
During an investigation of the shooting scene, police found bullet holes in the
sides of the house, F.V.’s truck, and Molina’s car, and they recovered over 25 shell
casings of three different sizes from the street and yard.
The magistrate found orally on the record that it was true that Molina had
(1) engaged in organized criminal activity; (2) been in a vehicle where another
possessed a firearm and remained in the presence of an armed person; and
(3) associated with known gang members. The magistrate also orally adjudicated
Molina guilty and sentenced him to ten years’ confinement. These pronouncements
were also reduced to writing in the magistrate’s handwritten certificate of proceedings
from the revocation hearing. The magistrate did not prepare any formal, written
findings of fact, conclusions of law, or recommendations for the trial court. The trial
court then signed its judgment adjudicating Molina guilty and sentencing him to 10
years’ confinement.
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II. ANALYSIS
A. NO ERROR WITH MAGISTRATE ACTION
In his first issue, Molina argues that the trial court’s judgment should be
vacated because there was a “complete absence of procedure” related to the
magistrate’s involvement in his case. Citing Davis v. State, Molina alleges two
deficiencies that, particularly when viewed together, constituted more than simple
procedural error: (1) the lack of an order referring the case to the magistrate, and
(2) the magistrate’s failing to prepare any findings of fact, conclusions of law, or
recommendations for the trial court. See 956 S.W.2d 555, 560 (Tex. Crim. App. 1997)
(holding that attacks directed at irregularities in orders referring cases to a magistrate
are procedural attacks that may render a judgment voidable but not automatically
void). We disagree with Molina.
1. Lack of Referral Order
Molina first complains of the lack of an order referring the case to the
magistrate.
A district court may refer to a criminal magistrate certain types of proceedings,
including those related to motions to revoke community supervision or to proceed
with an adjudication of guilt. Tex. Gov’t Code Ann. § 54.656(a)(10) “To refer one or
more cases to a magistrate, a judge must issue an order of referral specifying the
magistrate’s duties.” Id. § 54.657(a). However, a valid objection is required to
preserve complaints about irregularities in the procedure through which a case was
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referred to a magistrate. Hoag v. State, 959 S.W.2d 311, 313 (Tex. App.—Fort Worth
1997, no pet.) (holding that appellant did not preserve error when she never objected
to the referral of her case to a magistrate and the referral order was not entered until
six days after the transferred proceeding occurred); see Davis, 956 S.W.2d at 559-60;
Lemasurier v. State, 91 S.W.3d 897, 900 (Tex. App.—Fort Worth 2002, pet. ref’d). This
includes complaints about whether a valid referral order has been entered before the
magistrate presides over the transferred proceeding. Hoag, 959 S.W.2d at 313.
It is undisputed that the record here does not contain an order referring
Molina’s case to the magistrate. It is also undisputed that Molina never objected to
his case’s referral or to the magistrate’s presiding over it.
2
Thus, we overrule this
portion of Molina’s first issue because Molina failed to preserve it for our review.3

2Notably, in the written plea admonishments signed by Molina, he expressly
agreed that he had no objection to having a magistrate hear any proceeding in his
case.
3Though Molina acknowledges this court’s precedent requiring an objection in
situations like this, he nonetheless requests that we disregard it. The main authority
raised by Molina to support this request is an unpublished case from the Dallas court,
which held that a trial court’s duty to enter a referral order created a “systemic right”
that could not be waived by lack of a valid objection. See Ex parte DeLeon, No. 05-11-
00594-CR, 2011 WL 3690302, at *1–2 (Tex. App.—Dallas Aug. 24, 2011, no pet.)
(not designated for publication). But DeLeon is unpersuasive, not only because it is
not binding on our decision, but also because it appears to wholly disregard the
contrary holding by the Texas Criminal Court of Appeals in Davis that the lack of a
referral order is merely a procedural irregularity that does not deprive an otherwise
qualified magistrate of its authority to hear a case. See 956 S.W.2d at 559–60.
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2. Lack of Findings, Conclusions, or Recommendations
Molina next complains that the magistrate failed to prepare any findings of fact,
conclusions of law, or recommendations for the trial court to follow. Without these
findings, conclusions, and recommendations—Molina argues—the trial court’s
judgment was invalid. But, there is no law imposing such a duty upon the magistrate,
and Molina has not pointed to any affirmative proof that the trial court did not review
the magistrate’s actions.
The Texas Government Code provides that a magistrate “may . . . make
findings of fact on evidence,” “formulate conclusions of law,” and “recommend the
rulings, orders, or judgment to be made in a case.” Tex. Gov’t Code Ann.
§ 54.658(a)(8), (9), (11) (emphasis added). There is no requirement that the magistrate
reduce its findings to writing. Christian v. State, 865 S.W.2d 198, 202 (Tex. App.—
Dallas 1993, pet. ref’d). At the conclusion of the proceedings, “a magistrate shall
transmit to the referring court any papers relating to the case, including the
magistrate’s findings, conclusions, orders, recommendations, or other action taken.”
Tex. Gov’t Code Ann. § 54.611. Unless the trial court modifies or otherwise rejects
the action of the magistrate, that action becomes the decree of the court. Tex. Gov’t
Code Ann. § 54.662(b). Appellate courts must apply a presumption of regularity to a
trial court’s adoption of magistrate actions and questions of irregularity may be
entertained only if a party offers affirmative proof that the trial court did not review
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those actions. Kelley v. State, 676 S.W.2d 104, 108 (Tex. Crim. App. 1984); Christian,
865 S.W.2d at 202.
Thus, the law is clear that, though the magistrate had the discretion to prepare
formal written findings, conclusions, and recommendations, it was under no
obligation to do so. See Tex. Gov’t Code Ann. § 54.658(a)(8), (9), (11). Even still, the
magistrate’s pronouncements are readily apparent in the record from both the record
of the revocation hearing and the magistrate’s written certificate of the proceedings.
Further, Molina does not identify any evidence from the record to suggest that
the trial court did not properly review these pronouncements or any other action of
the magistrate. In fact, the record suggests the opposite. The magistrate found that
Molina had violated certain terms of his community supervision, adjudicated him
guilty, and sentenced him to 10 years’ confinement. The trial court’s judgment is
wholly consistent with these pronouncements.
For these reasons, we conclude that there was no error related to the
magistrate’s actions or the trial court’s adoption of those actions and overrule the
remainder of Molina’s first issue.
B. EVIDENCE SUPPORTED THE FINDINGS OF TRUE
The magistrate found it true that Molina had violated the terms of his
community supervision when he (1) engaged in organized criminal activity; (2) had
been in a vehicle where another possessed a firearm and remained in the presence of
an armed person; and (3) associated with known gang members. Molina argues in his
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second issue that the evidence did not show beyond a preponderance of the evidence
that he violated any of these terms. We overrule this portion of Molina’s second issue
because the evidence supports revocation on at least one of the magistrate’s findings.
See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980).
We review a trial court’s decision to proceed to an adjudication of guilt and
revoke deferred-adjudication community supervision for an abuse of discretion.
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 his community supervision. Id.
The trial court is the sole judge of the credibility of the witnesses and weight to be
given their testimony, and we review the evidence in the light most favorable to the
trial court’s ruling. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984);
Cantu, 339 S.W.3d at 691. Proof by a preponderance of the evidence of any one of
the alleged violations is sufficient to support a revocation order. Moore, 605 S.W.2d
at 926.
There is sufficient evidence to show that Molina knowingly rode in his car with
Carlos and remained in his presence while Carlos possessed a gun. Molina and Carlos
rode together in Molina’s car to F.V.’s house. A photo plainly shows Molina standing
next to Carlos while Carlos openly carries a gun. Though Molina testified to the
contrary, a detective testified that Molina reported having known about Carlos’s gun
while he stood in F.V.’s yard but did not immediately retreat. The evidence shows
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that F.V.’s mother then yelled that there was a gun on the scene and shots were fired.
And F.V. heard Carlos say “You gonna need a new truck,” shortly before Carlos
started shooting. Soon after, Molina and Carlos fled together in Molina’s car.
In light of this evidence, we hold that the magistrate did not abuse its discretion
when it found it true that Molina had been in a vehicle where another possessed a
firearm and remained in the presence of an armed person, and we overrule this
portion of Molina’s second issue.
C. MOLINA HAD NOTICE OF HIS COMMUNITY-SUPERVISION TERMS
Finally, Molina contends that, even if the evidence was sufficient to show that
he violated any of these three terms of his community supervision, they were
unenforceable against him because he had no notice of or opportunity to object to
them. Molina argues that he never signed the “Supplement/Amendment to
Conditions of Community Supervision High Risk” document (Supplement), which
contained the terms prohibiting him from being in the presence of an armed person
and known gang members. Because of this, Molina concludes that the magistrate
abused its discretion when it found that he violated these terms. We overrule this
argument because the record reflects that Molina did sign this document and, thus,
had adequate knowledge of his community-supervision terms.
A trial court has broad discretion to impose reasonable community supervision
terms. Tex. Code Crim. Proc. Ann. art. 42A.301(a). A defendant who is fairly
notified of the terms at a hearing at which he has an opportunity to object forfeits any
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later complaint about those terms. Dansby v. State, 448 S.W.3d 441, 447 (Tex. Crim.
App. 2014).
The record contains two copies of the Supplement document. One copy does
not contain Molina’s signature, but the other copy does. The copy bearing Molina’s
signature is dated April 12, 2021—the same day that the hearing was held at which
Molina entered his original plea of guilty and at which the trial court placed him on
deferred-adjudication community supervision. Thus, the record shows that Molina
was fairly notified of the terms of his community supervision and given fair notice to
object to them. Accordingly, we hold that Molina forfeited any complaint related to
these terms, and we overrule the remainder of his second issue.

Outcome: Having overruled both of Molina’s issues, we affirm the trial court’s judgmen

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