Full Opinion

In The Court of Appeals Ninth District of Texas at Beaumont __________________ NO. 09-24-00363-CR __________________ JOSEPH RICHARD REYES, Appellant V. THE STATE OF TEXAS, Appellee __________________________________________________________________ On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 17-03-02983-CR __________________________________________________________________ MEMORANDUM OPINION A grand jury indicted Joseph Richard Reyes for online solicitation of a minor, a second-degree felony. Tex. Penal Code Ann. § 33.021(c). Reyes pleaded “guilty” in 2017 to the offense, and the trial court placed Reyes on deferred adjudication for seven years. In 2024, the State filed an Amended Motion to Revoke Community Supervision (“Amended Motion”) and alleged eight violations of his community supervision in eight separate paragraphs. Reyes pleaded “not true” to each of the 1 eight alleged violations. At the hearing’s conclusion, the trial court found seven of the eight alleged violations “true,” revoked Reyes’s community supervision, and sentenced Reyes to fifteen years of confinement. Reyes timely appealed. In six issues, Reyes challenges each of the seven violations the trial court found to be true. For reasons explained below, we affirm the trial court’s judgment, addressing only Reyes’s first and second issues in which Reyes complains that he was not provided adequate notice of the alleged offense of sexual assault and that the evidence admitted during the hearing was insufficient to establish that he committed that offense. Background As part of Reyes’s community supervision, he was ordered to abide by certain conditions. Relevant to this appeal and the amended motion to adjudicate, these terms included that Reyes (i) commit no offense against the laws of this State or any other State or the United States; (ii) participate in and successfully complete the Montgomery County Department of Community Supervision and Corrections’ program designed specifically for sex offenders, or other sex offender program designated by the Defendant’s supervising officer and to abide by all rules and regulations of the designed program; (iii) submit to medical, chemical, or any other test or examinations for the purpose of determining whether or not he is using or is under the influence of alcohol, narcotic drugs, marijuana, or any other controlled 2 substances; (iv) not use any products, devices, or liquids to adulterate, dilute, mask or any way alter a sample or give a false testing sample and that test results indicating dilute, masked, or altered samples will be presumed to be a “positive” test result that may result in revocation of his community supervision; and (v) pay a community supervision fee of $60.00 per month. On August 13, 2024, the State filed an amended motion to adjudicate that contained eight alleged violations: [Violation One:] Defendant committed an offense against the laws of the State of Texas, to wit: On or about November 4, 2020 in Galveston County, he committed the offense of Sexual Assault. [Violation Two:] Defendant committed an offense against the laws of the State of Texas, to-wit: On or about November 4, 2020 in Galveston County, he committed the offense of DWI BAC>=0.15. [Violation Three:] Defendant failed [to] complete his annual sex offender counseling meeting on or about January 10, 2024. [Violation Four:] Defendant rendered a “no opinion” polygraph examination on or about October 19, 2023 due to his excessive and erratic breathing during the exam. [Violation Five:] Defendant tested dilute on a random urinalysis conducted on date October 21, 2022. [Violation Six:] Defendant tested dilute on a random urinalysis conducted on date June 23, 2022. [Violation Seven:] Defendant failed to submit to urinalysis on October 31, 2022. [Violation Eight:] Defendant failed to pay in a timely manner supervisory fees to the Montgomery County Department of Community 3 Supervision and Corrections at the monthly rate of $60.00, for the months of August and October 2020; July 2022[.] Several witnesses testified at the motion to revoke hearing. We summarize the relevant testimony below. Sarah1 On November 4, 2020, Sarah was living in Galveston in a discipleship home. As of that date, she had not had a drink for “[c]lose to a year.” On that morning, she went to the beach with another woman and consumed alcohol. She met Reyes on the beach while helping some people whose vehicle was stuck in the sand. She and Reyes left the beach and drove separately to a nearby bar, Woody’s, arriving at the bar after 5:00 p.m. They sat at the bar together and Reyes ordered a couple of shots of Patron, which they both drank. Reyes told Sarah that she was pretty, and she vaguely remembers them kissing. Sarah felt intoxicated at the bar. After drinking the shots of Patron, Sarah “vaguely” remembers leaving. She and Reyes got into his Jeep, and he drove them to the beach. Sarah testified that all she remembered after Reyes parked at the beach were “flashbacks of aggressiveness,” and then finding herself lying in the parking lot back at Woody’s, 1 We use a pseudonym to protect the privacy of the victim in this case. See Tex. Const. art. 1, § 30 (protecting crime victims’ “right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 4 where she believed she had likely fallen down because her “head was smashed.” She remembered that there was an ambulance and that she went to the hospital. At the hospital, nurses examined Sarah and performed a pelvic examination. Sarah described that her vagina felt “[t]raumatized” and felt tenderness and pain. A nurse wanted to put a speculum in her vagina, but it was too painful and Sarah had the nurse stop. She still had pain in her vagina when she went home. Sarah spoke with detectives about what happened, but she did not want to move forward with the case because “it was very shameful and I didn’t want to bring attention to myself and I just didn’t want to proceed.” Sarah testified that she does not remember agreeing to have sex with Reyes in the car: “I just don’t remember. I mean, I went from – I went from being able to walk to the car. In a matter of 15 or 20 minutes, I seemed like I was obliterated. I have no recollection.” Officer Steven Brewer Brewer is a Galveston police officer that worked in the patrol unit and was assigned to investigate the sexual assault of Sarah. Brewer met Sarah at the hospital, where he observed her to be “disheveled[,]” “[n]ervous, confused, [and] upset.” Brewer testified that Sarah did not have a clear memory of the incident that happened at Woody’s. 5 Detective Jeffrey Rupert Rupert worked in the crime scene unit and ID unit at the Galveston Police Department. Rupert met Sarah at the hospital and spoke with her and a nurse tech. He observed a visible injury on Sarah’s head, and Sarah told him that her vagina was hurting. The nurse tech told Rupert that Sarah tested positive for amphetamines in her system. Sarah did not have an explanation of why amphetamines were in her system. She told Rupert that she has never done meth. After interviewing Sarah, Rupert went to Woody’s, where he found Sarah’s vehicle was still parked. He reviewed surveillance footage that showed Reyes, who was identifiable by his visible ankle monitor, and Sarah at the bar talking, flirting, and taking shots. Surveillance footage showed Reyes and Sarah walking toward his Jeep at 5:09 p.m. and later showed Reyes returning at 5:41 p.m. and driving through the parking lot to Sarah’s vehicle. Rupert testified that the video showed Sarah exiting the Jeep with no pants, stumbling, and appearing to fall down in the parking lot at least twice. A patron saw Sarah in the parking lot and alerted a bartender. However, Sarah did not want to pursue charges due to her poor memory of the events. Standard of Review We review a trial court’s decision to revoke community supervision for an abuse of discretion. See Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). A trial court 6 has discretion to revoke community supervision when a preponderance of the evidence supports at least one of the State’s alleged violations of the conditions of community supervision. Leonard v. State, 385 S.W.3d 570, 576 (Tex. Crim. App. 2012). Proof of a single violation is sufficient to support a revocation of community supervision. Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012); Latimer v. State, 659 S.W.3d 135, 140 (Tex. App.—Beaumont 2022, no pet.). Thus, to prevail on appeal an appellant must successfully challenge all the findings that support the revocation order. See Smith v. State, 286 S.W.3d 333, 342-43 & n.36 (Tex. Crim. App. 2009) (citing Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. [Panel Op.] 1978); Gobell v. State, 528 S.W.2d 223, 224 (Tex. Crim. App. 1975); Ross v. State, 523 S.W.2d 402, 404 (Tex. Crim. App. 1975)); Latimer, 659 S.W.3d at 140. Analysis Adequate Notice In his first issue, Reyes complains that the State failed to give adequate notice of violation one by failing to identify the name of the victim and the manner and means of the assault, violating his due process rights under the U.S. and Texas Constitutions. When the State seeks to revoke community supervision based on an alleged violation of the law by the defendant, the allegations in the motion do not need to be as precise as those of an indictment, but they should give fair notice and allege a 7 violation of the law. Davila v. State, 547 S.W.2d 606, 609 (Tex. Crim. App. 1977). The court looks to the motion to revoke probation, not the capias or arrest warrant, to determine what allegations are made as the basis of the revocation hearing. Marcum v. State, 983 S.W.2d 762, 767 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d); see Garcia v. State, 453 S.W.2d 822, 823 (Tex. Crim. App. 1970) (holding capias does not specify the offense of which the defendant is accused). As long as the motion provides adequate notice of the charges alleged, fundamental notions of fairness are satisfied, despite the flaws in the motion. Marcum, 983 S.W.2d at 767; see Labelle v. State, 720 S.W.2d 101, 108-09 (Tex. Crim. App. 1986). Errors in a motion to revoke community supervision must be pointed out to the trial court in a timely motion to quash. Marcum, 983 S.W.2d at 767; see Tex. R. App. P. 33.1(a). In the absence of such motion, any error is waived. Marcum, 983 S.W.2d at 767; see Tex. R. App. P. 33.1(a); Gordon v. State, 575 S.W.2d 529, 531 (Tex. Crim. App. [Panel Op.] 1978). Reyes did not file a motion to quash based on the argument he advances on appeal. During closing argument, Reyes asserted for the first time that violation one had “no manner and means, no name of complainant” and was “not proper notice[.]” Accordingly, any objection was untimely and he has failed to preserve this issue for our review. See Tex. R. App. P. 33.1(a); Gordon, 575 S.W.2d at 531; Grantham v. 8 State, 547 S.W.2d 286, 287 (Tex. Crim. App. 1977); Marcum, 983 S.W.2d at 767. We overrule Reyes’s first issue. Sufficiency of the Evidence In his second issue, Reyes complains that the trial court did not have sufficient evidence to find Reyes had committed the offense of sexual assault by a preponderance of the evidence because Sarah could not remember sexual contact with Reyes, at least nine hours had elapsed between the time Sarah last saw Reyes and the time she arrived at the hospital, and she was intoxicated. “Appellate review of an order revoking probation is limited to abuse of the trial court’s discretion.” Rickels, 202 S.W.3d at 763 (quoting Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)). “In determining questions regarding sufficiency of the evidence in probation revocation cases, the burden of proof is by a preponderance of the evidence.” Id. The Court of Criminal Appeals has stated that “‘an order revoking probation must be supported by a preponderance of the evidence; in other words, that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his probation.’” Id. at 763-64 (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)). Reyes challenges the absence of direct proof that he committed sexual assault. However, “circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor. Circumstantial evidence alone can be sufficient to establish 9 guilt.” Hooper v. State, 214 S.W.3d 9, 14-15 (Tex. Crim. App. 2007). In a probation revocation hearing, the State’s case can be supported by circumstantial evidence alone, but the incriminating circumstances must be such as to exclude every reasonable hypothesis except the accused’s guilt. Battle v. State, 571 S.W.2d 20, 22 (Tex. Crim. App. 1978). Here, the evidence shows that Sarah met Reyes at the beach, went to the bar with him where Reyes bought them Patron shots and flirted, and left with Reyes in his vehicle. About thirty minutes later, they returned to the bar where Reyes left her in the parking lot with no pants on and visibly stumbling. Although Sarah could not recall exactly what happened inside the vehicle, she recalled “flashes of aggressiveness.” Sarah reported vaginal trauma after being alone with Reyes, pain so severe that the nurse could not perform a pelvic examination. No other reasonable suspect was identified in the investigation. The testimony of Sarah, Officer Brewer, and Detective Rupert, along with the surveillance footage and other documentary evidence, corroborated this sequence of events and provides circumstantial proof of Reyes’s culpability. Considering the cumulative force of all of the incriminating circumstances, the trial court did not abuse its discretion in determining that Reyes violated the condition of probation as alleged. See Hooper, 214 S.W.3d at 13; Rickels, 202 S.W.3d at 736. We overrule Reyes’s second issue. 10 Reyes cannot prevail on appeal because he has not successfully challenged the first violation that the trial court found true. See Latimer, 659 S.W.3d at 140 (“To prevail on appeal, an appellant must successfully challenge all findings that support the revocation order.”). Even if any of Reyes’s other issues on appeal were valid, we would still conclude that the trial court did not err in revoking his community supervision on the basis of the first violation. Therefore, we need not address Reyes’s remaining issues as they are “not necessary to final disposition of the appeal.” See Tex. R. App. P. 47.1; Jones, 571 S.W.2d at 193-94. That said, we find that the written judgment of conviction in this case contains non-reversible clerical errors. The trial court’s judgment contains clerical errors because it incorrectly states that Reyes “violated the conditions of community supervision as set out in the State’s 1st Amended Motion to Adjudicate Guilt as follows: I-VIII.” The reporter’s record shows in the trial court’s oral pronouncement, it found allegations 1, 2, 3, 5, 6, 7, and 8 to be true and found allegation 4 to be not true. This Court has the authority to modify the trial court’s judgment to correct clerical errors. See Tex. R. App. P. 43.2(b) (providing that the court of appeals may “modify the trial court’s judgment and affirm it as modified[]”); Provost v. State, Nos. 09-20-00210-CR, 09-20-00211-CR, 2021 Tex. App. LEXIS 1302, at *2-3 (Tex. App.—Beaumont Feb. 24, 2021, no pet.) (mem. op., not designated for publication); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) 11 (concluding that the court of appeals has the power to reform judgments to correct clerical errors). Accordingly, we modify the trial court’s judgment to reflect that Reyes violated the conditions of community supervision as set out in the State’s 1st Amended Motion to Adjudicate Guilt as follows: I-III, V-VIII. We affirm the trial court’s judgment as modified. AFFIRMED AS MODIFIED. KENT CHAMBERS Justice Submitted on June 18, 2026 Opinion Delivered November 4, 2026 Do Not Publish Before Johnson, Wright and Chambers, JJ. 12