Stephen Scott Whitaker v. The State of Texas--Appeal from 47th District Court of Potter County

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State: Texas

Court: Texas Northern District Court

Docket No: 07-10-00455-CR

Case Date: 11/16/2010

Plaintiff: JORGE LUIS MEDRANO AKA JORGE LUIS FRAGA MEDRANO

Defendant: THE STATE OF TEXAS--Appeal from 138th District Court of Cameron County

Preview:Martin Luna v. State of Texas--Appeal from 187th
Judicial District Court of Bexar County
No. 04-00-00707-CR
Martin LUNA,
Appellant
v.
STATE of Texas,
Appellee
From the187th Judicial District Court, Bexar County, Texas
Trial Court No. 1993-CR-5838
Honorable Raymond Angelini, Judge Presiding
Opinion by: Paul W. Green, Justice
Sitting: Phil Hardberger, Chief Justice
Catherine Stone, Justice
Paul W. Green, Justice
Delivered and Filed: September 12, 2001
AFFIRMED
Martin Luna appeals the trial court's revocation of his probation. In two points of error, Luna complains the evidence
supporting revocation was insufficient and the trial court erred in admitting his statement. We affirm the trial court's
ruling.
Background
After Luna pleaded guilty to indecency with a child, the trial court sentenced him to a probated sentence of ten years
imprisonment. At a meeting with his probation officer, Luna admitted having sexual contact with two adolescent males
during the probationary period. The State filed a motion to revoke Luna's probation, alleging he had violated condition
34(I), which prohibits Luna from having "direct contact with . . . ANY minor children." Luna pleaded "not true" to the
State's allegation. The trial court, after hearing the probation officer's testimony, found Luna had violated condition
34(I) and revoked his probation.
Standard of Review
In a revocation proceeding, the State bears the burden of proving a violation of probationary conditions. Battle v. State,
571 S.W.2d 20, 22 (Tex. Crim. App. 1978); Kaylor v. State, 9 S.W.3d 205, 206 (Tex. App.-San Antonio 1999, no pet.).
To satisfy this burden, the State must prove by a preponderance of the evidence the defendant violated a specified
condition of probation. Kaylor, 9 S.W.3d at 206. When a defendant attacks the sufficiency of the evidence supporting
revocation, we review the order revoking probation under an abuse of discretion standard. Jackson v. State, 645
S.W.2d 303, 305 (Tex. Crim. App. 1983);Duke v. State, 2 S.W.3d 512, 515 (Tex. App.-San Antonio 1999, no pet.). In
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conducting this review, we consider all of the evidence in the light most favorable to the trial court's finding to
determine whether any rational trier of fact could have found the defendant violated the terms of his probation by a
preponderance of the evidence. Duke, 2 S.W.3d at 514.
Evidence of a 34(I) Violation
Condition 34(I) of Luna's probation provides a general limitation on Luna's contact with "minor children":
You shall have no direct contact with or enter onto the premises where the victim or ANY minor children, including
your own children, or step children reside or are present.
Luna claims Condition 34(I)'s term, "minor children," refers to children under seventeen years of age. Luna argues the
State failed to introduce evidence showing Luna had contact with a person under seventeen, rendering the evidence
insufficient to support revocation.
We reject Luna's interpretation of "minor children." Although Condition 34(I) does not define "minor children," other
conditions of Luna's probation use the term in a more qualified manner. Condition 34(H) limits the places Luna may
visit or work that are likely to be frequented by children. Specifically, Condition 34(H) provides Luna may "not enter
the premises or act as an employee or volunteer at any place or activity where minor children under the age of
seventeen (17) are gathered." (emphasis added). Because Condition 34(I), which follows condition 34(H), omits the
qualifying phrase, "under the age of seventeen," we interpret Condition 34(I)'s use of "minor children," to connote the
term's general definition, that is, persons under the age of majority. See Tex. Civ. Prac. & Rem. Code Ann. 129.001
(Vernon 1997) (providing "[t]he age of majority in this state is 18 years"). As such, we must determine whether the
State presented sufficient evidence demonstrating Luna had direct contact with an individual under age eighteen.
At the hearing, the State introduced the testimony of Luna's probation officer, Rita Arispe. Arispe testified Luna told
her "[w]hile he was on probation he admitted to two victims, male adolescent. He specifically used the word
adolescent, anywhere between the ages of 16 and 17." Regarding the first victim, Luna said he was "approximately 16
or 17," and regarding the second victim, Luna referred to him as a "young man" and "adolescent." We hold this
evidence sufficient to demonstrate Luna violated Condition 34(I). We overrule Luna's first point of error.
Admissibility of Luna's Statement
In his second point of error, Luna complains the trial court erred in admitting the statements he made to Arispe during
the probation meeting. Luna claims his statements were involuntary because he was not given Miranda warnings
before making them. We disagree. Luna was not in custody when he admitted having sexual contact with the minors,
and therefore, Miranda warnings were not required. Payne v. State, 579 S.W.2d 932, 933 (Tex. Crim. App. 1979);
Marcum v. State, 983 S.W.2d 762, 766 (Tex. App.-Houston [14th Dist.] 1998, pet. ref'd). We overrule Luna's second
point of error.
Conclusion
Having overruled Luna's points of error, we affirm the trial court's ruling.
PAUL W. GREEN,
JUSTICE
DO NOT PUBLISH
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