AFFIRM; and Opinion Filed July 14, 2015. 

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In The 

## Court of Appeals Fifth District of Texas at Dallas No. 05
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- CR No. 05
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- CR No. 05
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- CR JERROD DEMOUN PRESTO N , Appellant V. THE STATE OF TEXAS , Appellee On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause Nos. F13
- 72559
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- 56011
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- 70597
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### MEMORANDUM OPINION Before Justices Fillmore, Myers, and Evans Opinion by Justice Evans Jerrod Demoun Preston appeals his convictions for assault family violence , continued violence against family , a nd assault family violence enhanced by the prior continued violence against family offense . For the reasons that follow, w e affirm the tri al court ’s judgments in all three cases

. I. Procedural Posture Pursuant to negotiated pleas, a ppellant pleaded guilty to the offenses of (1) assault family violence by impeding breathing circulation ( 05

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- I ) . The trial court placed appellant on deferred adjudication community supervision for six years for each offense . While on community supervision, appellant was indicted for a n other a ssault family violence offense– 2

– involving the same complainant, enhanced by the previous continu ed family violence offense ( 05

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. T he State moved to revoke community supervision and adjudicate guilt for the first two offense s , alleg ing appellant violated the conditions of his community supervision by (1) committing a new offense against the complainant on June 18, 2014, and (2) having contact with complainant on June 18, 2014

. Appellant pleaded “not true” to the State’s allegations. The only t wo witnesses to testif y at the hearing on the State’s revocation/adjudication motion s in the first two cases were p olice o fficer Cory Wright and appellant. Although the complainant was subpoenaed, she failed to appear. Defense counsel objected to Wright’s testimony about what the complainant told him , asserting it violated appellant’s “right to cross

examination and confrontation.” The trial court overruled the objection and allowed Wright to testify about what the comp lainant had told him . A f t er the hearing, the trial court adjudicated appellant guilt y in the two cases and sentenced him to three years ’ confinement for each offense

. Later that same day , t he trial court held a bench trial with respect to the third fami ly violence offense

. The State asked the Court to t ak e judicial notice of Wright’s and appellant’s testimony in the revocation/adjudication hearing as well as the fact that the State had served the complainant. No other evidence was presented. At the co nclusion of the trial, t he trial court found appellant guilty and sentenced him to three years’ confinement to run concurrently with the sentences for the two other offenses

. With respect to all three offenses, appellant (1) challenges the admission of statements made by the abs ent , complaining witness to Officer Wright , and (2) contends that without the inadmissible testimony of Officer Wright , the evidence is insufficient to supp ort the trial court’s judgments . In three a dditional issues germane only to the third offense, appellant argues (3 ) there is insufficient evidence to prove a familial, dating, or household relationship required– 3

– for the third offense , (4) complains the record does not sufficiently establish a writte n jury waiver , and (5) argues no evidence of a prior offense was offered to su pport t h e enhance ment paragraph

. I I . Violation of the Confrontation Clause In his first issue, appellant complains the trial court’s admission of the complainant’s statements to Wright violated his Sixth Amendment right to confront the witnesses against him. The Confrontation Clause provides that “in all criminal prosecutions, t he accused shall enjoy the right

. . . to be confronted with the witnesses against him.” U.S. Const. amend VI

. Its purpose is to ensure protection against ex parte examinations of the sort found problematic in civil law, including interrogations by law enforcement officers

. See Crawford v. Washington , 541 U.S. 36, 50, 68 (2004)

. By its express terms, however, the Confrontation Clause applies only to “criminal prosecution.” U.S. Const. amend VI . Probation revocation is not a stage of “criminal
prosec ution” and, thus, the Sixth Amendment does not apply to such proceedings. See Wisser v.
State , 350 S.W.3d 161, 164 (Tex. App.

— San Antonio 2011, no pet.) ; Trevino v. State , 218 S.W.3d 234, 239 (Tex. App.

— Houston [14th Dist.] 2007, no pet.); Smart v. State , 153 S.W.3d 118, 121 (Tex. App.

— Beaumont 2005, pet. re’d)

. To the extent that appellant complains his Sixth Amendment rights were violated in the revocation/adjudication hearing, we note that revocation proceedings involving deferred adjudication commun ity supervision , like regular probation revocation, is not a stage of

“ criminal prosecution

. ” See Mauro v. State , 235 S.W.3d 374, 376 (Tex. App.

— Eastland 2007, pet. ref’d.) ( applying general rule that probation revocation proceedings are not a phase of criminal prosecution for purposes Sixth Amendment to deferred adjudication revocation– 4

– proceedings )

. 1 D eferred adjudication community supervision differs from regular probation by allowing a defendant who pleads guilty to an offense and who successfully co mpletes community supervision to avoid “conviction.” But t he only issue to be determined by the trial court in a deferred adjudication revocation proceeding i s whether to proceed with an adjudication of guilt. T EX
. C ODE C RIM
. P ROC
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. art. 42.12 § 5(b ) (West Supp. 2014 ). The issue of the defendant’s guilt is determined in the initial plea proceeding. Because the deferred adjudication revocation proceedings are not a phase of criminal prosecution for Sixth Amendment purposes, the trial court did not e rr in overruling defense counsel’s objection and admitting Wright’s testimony at the revocation/adjudication hearing

. A ppellant also asserts his Sixth Amendment rights were violated when the trial court took judicial notice of the complained

- of testi mony in the bench trial on appellant’s third offense. Our review of the record , however, reveals that appellant did not object . At the trial before the
court, t he State asked the trial court to take judicial notice of Wright’s and appellant’s testimony in the revocation hearing, and then rested. Defen s e counsel then stated, “And, Your Honor, we concur with that. We just had that

– the trial on the probation rev ocation. We believe it would be the exact same evidence at a final trial before the court.” A defendant waives his constitutional right to confront witnesses absent a timely and specific objection at trial on the basis of his right to confrontation. See T EX
. R. A PP
. P. 33.1; Reyna v. State , 168 S.W.3d 173, 179 (Tex. Crim. App. 2005). Because appellant did not object to the trial court’s taking judicial notice of Wright’s testimony at the bench trial, he has waived his Confrontation Clause

1 See also Riley v. State , Nos. 05

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— D allas May 8, 2014, pet. ref’d) (mem. op. , not designated for publication) (because defendant’s guilt already determined in prior plea proceedings, revocation of deferred adjudication community supervision was not a phase of ‘criminal prosecution ’ for purposes of Sixth Amendment); Gutierrez v. State , No. 05

- 11

- 01380

- CR, 2013 WL 3533549 at *2 (Tex. App.

— Dallas July 12, 2013, pet. ref’d) ( mem. op. , not designated for publication) (same)

.– 5

– complaint as it relates to the third assault family violence offense. We overrule appellant’s first issue.
I I I . Sufficiency of Evidence In his second issue, appellant challenges the sufficiency of evidence to support his convictions in all three cases. Specif ically, appellant argues that once Officer Wright’s testimony is disregarded, the evidence is insufficient to support the third family assault conviction and the two earlier judgments adjudicatin g guilt

. A ppellant’s third issue similarly
asserts that without Wright’s testimony, there was insufficient evidence that the complainant had

a familial, dating, or household relationship with appellant to support his third assault family violence conviction

. When we conduct a sufficiency review, w e consid er all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt

. See Jackson v. Virginia , 443 U.S. 307, 316

– 17 (1979); Brook s v. State , 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). “Our review of ‘all the evidence’ includes evidence that was properly and improperly admitted.” Clayton v.
State , 235 S.W

. 3d 772, 778 (Tex. Crim. App. 2007) (citing Conner v. State , 67 S.W.3d 192, 197 (Tex. Crim. App. 2001))

. With regard to appellant’s third assault family violence conviction, we consider whether any rational fact

- finder could have found the essential elements of the offense beyond a reasonable doubt

. See Jackson v. Virgin ia , 443 U.S. 307 at 318

. The essential elements of assault are that (1) defendant, (2) intentionally, knowingly, or recklessly, (3) caused bodily injury to another

. See T EX
. P ENAL C ODE A NN . § 22.01(a) (West Supp. 2014)

. The offense constitutes assault f amily violence of the third degree if it is shown at trial that the defendant has been previously convicted of an assault offense against a person whose relationship to the defendant is– 6

– described as a “dating relationship” by s ection 71.0021(b) of the fami ly c ode

. See T EX
. P ENAL C ODE A NN . § 22.01(b)(2)(a)

. For purposes of s ection 71.0021(b), “dating relationship” is defined as a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature

. See T EX
. F AM
. C ODE A NN . § 71.0021(b) (West 2014)

. With respect to appellant’s judgments adjudicating guilt, we note the determination of an adjudication of guilt is reviewable under the same standard used to review a trial court’s revocation of community supervision. T EX
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. art. 42.12 § 5(b) (West Supp. 2014). We review such orders for an abuse of discretion. See Rickels v. State , 202 S.W.3d 759, 763

– 64 (Tex. Crim. App. 2006). When reviewing a trial court’s r evocation, a reviewing
court must en sure the State proved by a preponderance of the evidence that a condition of community supervision was violated

. See Cobb v. State , 851 S.W.2d 871, 873 (Tex. Crim. App. 1993)

. Merely one violation of a community supervision condition will suffice to supp ort the trial court ’ s revo cation of community supervision

. See Sanchez v. State , 603 S.W.2d 869, 871 (Tex. Crim. App. 1980)

. Appellant’s sufficiency argument is premised on his belief that Wright’s testimony was inadmissibl e . But as previously noted, even evidence improperly admitted is considered in our sufficiency review. See Clayton v. State , 235 S.W.3d at 778 . Moreover , we have already considered and rejected appellant’s complaint regarding the inadmissibility of Wrigh t’s testimony. By negative inference , appellant’s argument essentially concedes that with Wright’s testimony there is sufficient evidence. Nevertheless, we will briefly review the evidence.
A t the revocation/adjudication hearing, a ppellant testified ab out the events on June 18,
2014 that resulted in his third assault offense. Appellant took his child to a local hangout that he called the “Clubhouse” to look for appellant’s mother. There , appellant encountered the complainant , who is the mother of his child

. According to appellant, after he walked into the– 7

– Clubhouse, the complainant went to appellant’s car and took the child out of the car because she
was angry. Appellant admitted that he talked “bad” to complainant and “exchanged some radical words” to her. He denied touch ing the c omplainant during their encounter

. O fficer Wright responded to the situation after the alleged incident occurred

. He testified that when he approached the c omplainant , she was by herself and appeared “upset,” “shaken up, ” and “nervous” with a recent small cut on her left eyebrow

. Wright testified that the

c omplainant told him she , the baby, and appellant were in appellant’s car when an argument ensued

. She told Wright that after she got out of the car, a ppellant punched her, causing her to fall to the ground while holding the ir child

. The c omplainant said that after she got up, appellant started attacking her a second time before she was able to get away

. By the time Wright arrived on the scene and began questioning h er , the complainant no longer had the baby with her

. The c omplainant told Wright that she and a ppellant had been dating for five years and were living together at his mother ’s residence

. It was not until after Wright began typing his report that he saw a ppellant and arrested him

. With respect to appellant’s third offense, we conclude a rational fact

- finder could have found the essential elements of assault family violence beyond a reasonable doubt . Wright’s testimony about the complainant’s statements supports the conclusion that appellant intentionally caused bodily injury to the complainant by deliberately punching her

. In addition , Wright’s testimony that appellant and the complainant dat ed for five years , lived together , along with evide nce that appellant and the complainant had a child together, at a minimum, supports a finding they once shared a continuing intimate relationship. A past continuing relationship of an intimate nature is sufficient to qualify as a “dating relationship.” Se e T EX
. F AM
. C ODE A NN
. § 71.0021(b). Further , a ppellant previously ple a d ed guilty to assault family violence by impeding breathing circulation and to continuous violence against family , each of which– 8

– involved the same complainant

. Given a ppellant’s past charges and evidence , a rational fact

finder could have found beyond a reasonable doubt that appellant and the complainant were in a dating relationship.
Moreover , t he above evidence was sufficient to establish appellant violated the condition s of his community supervision in the two deferred adjudications as alleged by the State

. In its amended motions to revoke community supervision and adjudicate guilt in his two previous cases, the State alleged appellant violated condition (a) of his commu nity supervision by committing assault family violence on June 18, 2014 and (q) had contact with complainant on June 18, 2014. 2 According to Wright’s testimony, on June 18, 2014, a ppellant assaulted and made contact with the c omplainant . A ppellant also testified that he went to the Clubhouse and while there exchang ed “some radical words” with the c omplainant when he encountered her

. Because th e evidence support s a finding that appellant violated both c ondition s (a) and (q) of his community supervision b y a preponderance of the evidence , the trial court did not abuse its discretion in revok ing his community supervision in the two deferred adjudication cases

. 3 W e overrule appellant’s second and third issues

. IV. Jury Waiver In his fourth issue, appellant asserts that the record does not sufficiently establish that he waived his right to a jury with respect to the third offense that was ultimately tried before the

2 In relevant part, c ondition (a) of appellant’s community supe rvision required that he “Commit no offense against the laws of this or any other State or the United States.” Condition (q) of appellant’s community supervision provided, “Do not have any form of contact, be it in person, by mail, telephone or any form o f communication with [complainant] directly or indirectly, for the duration of the Supervision Term.” In the case involving assault family violence by impeding breathing circulation, the State also alleged appellant violated condition (j) of his community supervision by not paying fees and being currently delinquent in the amount of $120.
3 Appellant argues there is no evidence that he made contact with c omplainant through his own volition , that any contact was unintentional and initiated by c omplainant. Even assuming a ppellant did not intend to initiate contact with the c omplainant, the condition expressly prohibits contacting or communicating with c omplainant without regard to appellant ’s intention

. In addition, appellant did not explain in his testimony or in his appellate brief how appellant’s speaking “radical words” to the complainant was involuntary.– 9

– court. The State concedes that there is no written jury waiver in the record, but argues any error from its absence is harmless in this case. We agree with the State

. In Johnson v. State , 72 S.W.3d 346 (Tex. Crim. App. 2002), the court of criminal appeals addressed the issue of whether the failure to obtain a writte n jury waiver pursuant to article 1.13 of the code of criminal procedure was harmful. Id

. In concluding on the record of the case the error was harmless, it reasoned that a recitation in the judgment of conviction that the defendant “waived trial by jury” was controlling in absence of direct proof of its falsity. Id . at 349. Here, as i n Johnson , the judgment of conviction in appellant ’s offense recites that appellant “waived the right of trial by jury.” Additionally, the record reflects that immediately after the trial court called the case for trial , it stated, “ There’s a jury waiver signed by Mr. Preston and his atto r ney and the State and myself.” No party objecte d to the trial court’s statement. Moreover, the trial court’s docket sheet contains the statement “jury waived in writing” dated and signed by the trial judge. Appellant has not presented any evidence that the trial court’s statement on the record,
notat ion on the trial court docket, or the recitation in the judgment were false. See id . Nor does he contend, or the record reflect, that appellant was unaware of his right to a jury trial. See i d

. Because the absence of the written jury waiver from the re cord does not affect appellant ’s substantial rights, any error is harmless and will not support a reversal

. See T EX
. R. A PP
. P. 44.2(b); Johnson , 72 S.W.3d at 349. We overrule appellant’s fourth issue.
V. Enhancement In his fifth issue, appe llant co mplains only that there was no evidence of a prior offense to support the enhancement of his third assault family violence conviction. Specifically, he argues “At no time was any ‘evidence’ offered on the prior, nor did the State ask to re

- open the evidence. The court’s file from the previous proceeding was not offered, nor was the court asked to take judicial notice thereof.”– 10

– The indi ctment in the third case contained an enhancement paragraph based on appellant’s previous offense of continued violence against the family. To establish appellant was convicted of a prior offense, the State must prove beyond a reasonable doubt that a prio r conviction exists and appellant is linked to that conviction. See Flowers v. S t ate , 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). No specific method of proof or particular document ation of the prior conviction is required. Id

. Under evidence rule 201, a trial court has discretion to take judicial notice of an adjudicative fact , such as the fact of a defendant’s prior conviction, without being asked and may do so at any stage of the proceeding. See Kubosh v. State , 241 S.W.3d 60, 65

– 66 (Tex. Crim. App. 2 007). In a criminal case, a trial court may judicially notice its own records and proceedings , including all judgments and convictions entered by it , and take judicial notice that a defendant was previously convicted by the court

. See Turner v. State , 73 3 S.W.2d 218, 221

– 22 (Tex. Crim. App. 1987). As noted above, all three of appellant’s cases at issue were heard on the same day. Before the bench trial , t h e trial court had revoked appellant’s community supervision and adjudicated appellant guilty for the offenses of assault family violence by impeding breathing circulation and continued violence against family

. At the bench trial , b oth the State and defense counsel acknowledged that , earlier that day, the trial court completed the revocation/adjudication hearing on appellant’s prior two offenses and that the evidence in the bench trial would be the same as that offered in the revocation/adjudication hearing. Based on the record before us, there was sufficient evidence of appellant’s prior offense to supp ort the enhancement . We overrule appellant’s fifth issue.– 11

– We affirm the trial court’s judgments.

Do Not Publish T EX
. R. A PP
. P. 47 141131F.U05 /David Evans/ DAVID EVANS JUSTICE– 12

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# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JERROD DEMOUN PRESTON, Appellant
No. 05

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- 01131

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 2, Dallas County, Texas Trial Court Cause No. F13

- 72559

- I Opinion delivered by Justice Evans, J ustices Fillmore and Myers participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. Judgment entered this 14th day of July, 2015.– 13

– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JERROD DEMOUN PRESTON, Appellant
No. 05

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- 01132

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 2, Dallas County, Texas Trial Court Cause No. F14

- 56011

- I Opinion delivered by Justice Evans, Justices Fillmore and Mye rs participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. Judgment entered this 14th day of July, 2015.– 14

– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JERROD DEMOUN PRESTON, Appellant
No. 05

- 14

- 01133

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 2, Dallas County, Texas Trial Court Cause No. F14

- 70597

- I Opinion delivered by Justice Evans, Justices Fillmore and Myers participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. Judgment entered this 14th day of July, 2015.