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Smith v. State

Court of Appeals of Texas, Fourth District, San Antonio

July 31, 2019

Donnell SMITH, Appellant
v.
The STATE of Texas, Appellee

          From the 187th Judicial District Court, Bexar County, Texas Trial Court No. 2014CR7580 Honorable Joey Contreras, Judge Presiding

          Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Liza A. Rodriguez, Justice

          OPINION

          PATRICIA O. ALVAREZ, JUSTICE

         On April 9, 2015, Appellant Donnell Smith[1] was found guilty of failing to register as a sex offender-repeat offender and sentenced to two years' confinement in the Institutional Division of the Texas Department of Criminal Justice, suspended and probated for a term of two years. On August 16, 2018, after a hearing on the State's second motion to revoke probation, the trial court found Donnell violated the terms and conditions of the community supervision, specifically Condition No. 1. The trial court revoked Donnell's probation and sentenced him to two years' confinement in the Texas Department of Criminal Justice.

         On appeal, Donnell contends (1) the trial court erred in admitting hearsay testimony, (2) the evidence was insufficient to support the trial court's finding that Donnell assaulted Linnea Smith, and (3) the trial court erred in failing to file the required findings of fact and conclusions of law. We affirm the trial court's judgment.

         Factual and Procedural Background

         A. Procedural History

         On April 9, 2015, Donnell was found guilty of failing to register as a sex offender, enhanced to a second-degree felony by a prior felony, and sentenced to two years' confinement in the Institutional Division of the Texas Department of Criminal Justice, suspended and probated for a term of five years and assessed a $1, 000.00 fine.

         On June 27, 2018, the State filed its third motion to revoke community supervision asserting Smith violated Condition No. 1 of his probation, by committing an assault on June 20, 2018, and Condition No. 10 of his probation, by failing to pay supervision fees and court costs.

         On August 16, 2018, the trial court held a hearing on the motion to revoke community supervision. The State abandoned the alleged violations related to Condition No. 10 and proceeded on the sole allegation that Donnell violated Condition No. 1 of the terms of his probation, the alleged June 20, 2018 assault.

         B. Motion to Revoke Hearing

         1. Corporal Chad Mandry

         Leon Valley Police Department Corporal Chad Mandry testified that on June 20, 2018, at approximately 4:02 p.m., he responded to a disturbance call involving physical violence at a Mexican restaurant. Looking for a male actor driving a red or maroon Chevy Camaro, Corporal Mandry conducted a traffic stop of a vehicle, matching the description, and leaving the parking lot across from the restaurant. Donnell exited the vehicle as directed by Corporal Mandry. When Corporal Mandry asked Donnell what happened, Donnell replied,

[he] initially arrived at the location to pick up his child. [Donnell] discovered his child was not there, [and] became upset. And that was it. [Donnell] stated no other disturbance had occurred.

         Corporal Mandry testified that Donnell was meeting Linnea Smith, but the officer could not remember if Linnea was Donnell's wife or girlfriend. Donnell was adamant the exchange was only verbal in nature and denied laying hands on Linnea. While Corporal Mandry was speaking to Donnell, Patrol Officer Johnny Vasquez was at the restaurant talking to Linnea. Based on the information relayed by Officer Vasquez, Corporal Mandry placed Donnell under arrest for assault-family violence, contact and bodily injury.

         On cross-examination, Corporal Mandry acknowledged Linnea returned the notification of rights form he provided on the night in question and declined prosecution of the case.

         2. Patrol Officer Johnny Vasquez Jr.

         Officer Vasquez testified that on June 20, 2018, at approximately 4:02 p.m., he responded to a call for an assault in progress. Officer Vasquez was directed to contact the victim, Linnea Smith. When the officer arrived,

[Linnea's] face was flushed and kind of reddish looking. She was teary-eyed as if she had been crying. Her eyes were still teary as if she had gone through some event.

         Linnea reported she was eating when Donnell arrived. There was a verbal disturbance, Donnell grabbed her keys, and then he walked outside the restaurant. Linnea told the officer that she followed Donnell outside of the restaurant and

[he] grabbed the back of her-the bun in her hair and began pulling her. [Linnea] stated she fell while he was stilling pulling her, but she managed to get back up.

         Linnea acknowledged Donnell's grabbing her by the hair and pulling her "caused her pain." On cross-examination, Officer Vasquez conceded he did not take any photographs, or see any visible injuries or bruises.

         3. Linnea Smith

         Linnea testified she was only present at the hearing under subpoena. Linnea further testified that she and Donnell were married and had two children. On June 20, 2018, she and Donnell were separated, and Linnea was working at the Mexican restaurant. When Donnell texted her to pick up their son and she refused, Donnell came to the restaurant. Linnea was eating when Donnell arrived; she remained adamant about Donnell not leaving with her son and "he went off." Linnea explained that Donnell grabbed her phone and walked outside; she followed because he had her phone. Donnell gave Linnea the phone but told her "he wasn't done talking to her" and "grabbed [her] by [her] hair." Linnea testified that when Donnell pulled her hair, she "slipped on the rocks."

         Donnell was still yelling when people started coming out of the restaurant; he left in his car. Linnea denied calling the police and refused to cooperate with the officers or press charges. She was adamant the entire exchange was "a misunderstanding." Linnea testified she was upset and being petty by not allowing Donnell to see his son.

         When questioned by the trial court, Linnea replied she was not "tender-headed" and it did not hurt when Donnell pulled her hair. Linnea did acknowledge, however, that ...


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