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Date: 01-10-2021

Case Style:

Ramiro Garcia v. The State of Texas

Case Number: 13-19-00388-CR

Judge: NORA L. LONGORIA

Court: COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

Plaintiff's Attorney: Hon. Mark A. Gonzalez
Hon. Douglas K. Norman

Defendant's Attorney:


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Corpus Christi, Texas - Criminal defense attorney represented Ramiro Garcia with a Indecency with a Child charge.



On February 5, 2016, Garcia was placed on deferred adjudication community
supervision for ten years after pleading guilty to two counts of indecency with a child and
entering into a plea agreement. See TEX. PENAL CODE ANN. § 21.11. On November 14,
2016, the State moved to revoke his community supervision and Garcia pleaded true to
the alleged violations, including testing positive for marijuana and cocaine. The trial court
continued Garcia’s community supervision. Again, on September 20, 2018, the State
moved to revoke Garcia’s community supervision, and Garcia pleaded true to alleged
violations including, testing positive for marijuana and cocaine. The trial court continued
Garcia’s community supervision for a second time.
The State filed a third motion to revoke alleging that Garcia had twice tested
positive for alcohol and had admitted to consuming alcohol once. Garcia pleaded true to
the violations and testified that he drank “a couple of beers” on two occasions after an
incident occurred with his daughter, wherein she was “attacked” at a party and was in the
hospital. Pursuant to Garcia’s terms of his community supervision, he was not allowed to
go see his daughter which he claimed made him feel “helpless,” and he chose to drink,
which he admitted was a poor decision. Garcia further testified that he is working,
attending the required programs, paying his fees, and reporting to his probation officer
and for his urinalysis every two weeks. Garcia’s fiancée, Ashley Garcia, testified that
Garcia was working and taking care of his elderly grandmother and his injured brother.
The probation department recommended revocation based on his continuous
violations. The State also called Garcia’s ex-wife, the mother of the complaining witness
in Garcia’s underlying indecency with a child conviction, who testified that her daughter
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still has flashbacks and suffers from depression. She requested that Garcia not be given
another chance on community supervision.
The State sought revocation and asked that Garcia be sentenced to the maximum
twenty years. Garcia requested a return to community supervision. The trial court found
the violation allegations to be true, revoked Garcia’s community supervision, and
sentenced him to seven years in the Institutional Division of the Texas Department of
Criminal Justice. This appeal followed.
II. REVOCATION
In his first issue, Garcia argues that the trial court abused its discretion in revoking
his community supervision when he “was faithfully reporting and in compliance with
sexual offender treatment programs, demonstrated he was no danger to the community
but a probationer who, in the words of the trial court, damaged himself by imbibing
alcohol.”
A. Standard of Review & Applicable Law
We review a trial court’s decision to revoke community supervision for an abuse of
discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v.
State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In a revocation proceeding, it is the
State’s burden to prove by a preponderance of the evidence that a probationer violated
the terms of his community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim.
App. 1993). A trial court abuses its discretion when it revokes community supervision after
the State has failed to meet its burden of proof. Cardona, 665 S.W.2d at 493–94.
Proof by a preponderance of the evidence of any one of the alleged violations of
the conditions of community supervision will support revocation on appeal. Moore v.
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State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Sanchez v. State, 603
S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980). A plea of true, standing alone,
constitutes proof by a preponderance of the evidence. See Jones v. State, 112 S.W.3d
266, 268 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.) (citing Cole v. State, 578
S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979)). The trial judge is the sole judge of
the credibility of the witnesses and the weight given to their testimony, and we review the
evidence in the light most favorable to the trial court’s ruling. Cardona, 665 S.W.2d at
493; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981).
B. Analysis
Garcia does not dispute his plea of true to the allegations, and therefore the State
carried its burden. See Jones, 112 S.W.3d at 268 (citing Cole, 578 S.W.2d at 128). He
argues, however, that the trial court may grant community supervision when it finds
suspending imposition of the sentence is in the best interest of justice, the public, and the
defendant. See TEX. CODE CRIM. PROC. ANN. art 42A.053. Garcia admittedly
acknowledges that “he has found no cases in which a court of appeals stated a trial court
must allow an [a]ppellant to remain on community supervision despite violations of
conditions.” He argues, instead, that he only posed a danger to himself by drinking
alcohol, and therefore he should not have had his community supervision revoked.
However, it was established that this was Garcia’s third revocation hearing and that he
had continued to relapse with use of drugs and alcohol. After Garcia pleaded “true” to the
violations, the trial determined that Garcia was no longer a good candidate for community
supervision, and it is not our place to disturb that determination. See Flournoy v. State,
589 S.W.2d 705, 708 (Tex. Crim. App. [Panel Op.] 1979) (explaining that once a violation
5
is established, “the discretion of the trial court to choose the alternative of revocation is at
least substantially absolute.”). We overrule Garcia’s first issue.
III. ALLOCUTION
By his second issue, Garcia complains that the trial court violated his common-law
right of allocution when it sentenced him without first “giving him a chance to speak in
allocution.” The common-law right of allocution refers to a defendant’s ability to personally
address the trial court in mitigation of punishment. Eisen v. State, 40 S.W.3d 628, 631–
32 (Tex. App.—Waco 2001, pet ref’d) (quoting A Dictionary of Modern Legal Usage 45
(Bryan A. Garner ed., 2nd ed., Oxford 1995)). The State argues, and we agree, that
Garcia failed to preserve this issue for appeal.
To preserve error for appeal, a party is required to make a timely request,
objection, or motion to the trial court and obtain an express or implied ruling. TEX. R. APP.
P. 33.1. This means that Garcia was required to clearly convey to the trial court the
particular complaint he now raises on appeal, including “the precise and proper
application of the law as well as the underling rationale.” Pena v. State, 285 S.W.3d 459,
463–64 (Tex. Crim. App. 2009). To avoid forfeiting an appellate complaint, the
complaining party must “let the trial judge know what he wants, why he thinks he is entitled
to it, and to do so clearly enough for the judge to understand him at a time when the judge
is in the proper position to do something about it.” Id. at 464 (quoting Lankston v. State,
827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).
Here, Garcia did not object when the trial court pronounced his sentence, nor did
he or his counsel convey to the trial court that Garcia wished to be allowed to exercise
his alleged common-law right of allocution or an objection that the trial court was violating
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this alleged right. See Tenon v. State, 563 S.W.2d 622, 623 (Tex. Crim. App. 1978)
(overruling issue raising violation of article 42.07 where “[t]here were no objections to the
court’s failure to inquire of the appellant if she had anything to say why the sentence
should not be pronounced against her”); see also Gay v. State, No. 13-16-00158-CR,
2017 WL 2705446, at *1 (Tex. App.—Corpus Christi–Edinburg June 22, 2017, no pet.)
(mem. op., not designated for publication). Having failed to preserve this alleged error,
we overrule Garcia’s second issue.

Outcome: We affirm the trial court’s judgment.

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