Opinion issued December 22, 2020

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-18-01074-CR

———————————

ANDRES TORRES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Case No. 1538219

O P I N I O N

Appellant, Andres Torres, was indicted for the first-degree felony offense of 

aggravated robbery. After Torres pleaded guilty to the charged offense, the trial court 

deferred adjudication and placed him on community supervision for ten years. The 

State subsequently filed a motion to adjudicate Torres’s guilt. Following a hearing, 
2

the trial court revoked Torres’s community supervision, adjudicated him guilty, and 

assessed his punishment at twenty years’ confinement. On appeal, Torres contends 

that (1) the trial court committed constitutional error when it admitted a violation 

report containing hearsay and related testimony over defense counsel’s objections, 

and (2) the trial court abused its discretion when it revoked his community 

supervision because the State offered no evidence, other than the hearsay from the 

violation report, that he violated any condition of his deferred adjudication. Because 

we conclude that the evidence supporting revocation of Torres’s community 

supervision was insufficient for the trial court to adequately exercise its discretion, 

we reverse and remand for a new hearing. 

Background

On August 26, 2016, a grand jury indicted Torres—who was seventeen-yearold at the time of his crime—as an adult for the felony offense of aggravated robbery. 

He pleaded guilty and, on June 30, 2017, the trial court placed him on deferred 

adjudication community supervision for a period of ten years following 120 days’ 

confinement and at least six months’ shock treatment in a facility for offenders with 

substance abuse problems, the Substance Abuse Felony Punishment Facility 

(SAFPF). 
3

The terms of Torres’s community supervision required, among other 

conditions, that he participate in the SAFPF “for a term of not less than six (6) 

months or more than one (1) year” and to 

comply with all rules, regulations, and treatment programs and upon 

release [from the SAFPF, Torres] is required to participate in a drug or 

alcohol abuse continuum of care treatment plan as developed by the 

Texas Commission on Alcohol and Drug Abuse (TCADA), abiding by 

all rules and regulations of said treatment plan until discharged by the 

Court.

The terms and conditions also admonished Torres that “failure to abide by these 

Conditions of Community Supervision may result in the revocation of Community 

Supervision or an adjudication of guilt.” Torres entered the SAFPF on November 

15, 2017.

On May 1, 2018, the trial court signed an order—its “Order Releasing From 

Substance Abuse Felony Punishment Facility”—stating that it had been notified by 

TDCJ authorities that Torres was successfully completing the treatment program and 

setting his tentative discharge date as June 7, 2018. The order further stated that 

Torres would then be transferred to Abundance Living/Houston to participate in the 

continuum-of-care program. 

Despite this May 1, 2018 order indicating that he had nearly completed the 

SAFPF program, Torres was subsequently recommended for removal from the 

program on May 30, 2018. On June 26, 2018, the State filed a motion to adjudicate 

guilt, alleging that Torres violated the terms and conditions of community 
4

supervision by “[f]ailing to complete the Substance Abuse Felony Punishment 

Facility (SAFPF).” 

The “SAFPF Progress and Conduct Report,” submitted to the court on June 

29, 2018—one month after he was recommended for removal and included in the 

clerk’s record1—stated that since he had been recommended for removal from the 

program on May 30, 2018, Torres had been participating in groups and classes 

appropriately, had maintained a respectful attitude, had not received any sanctions, 

and had not had any disciplinary problems. The counselor commented that if he had 

“put forth as much effort prior to the recommendation for Behavioral Removal, he 

would have successfully completed the program.”

The trial court held a hearing on the State’s motion to adjudicate on November 

26, 2018. The State called two witnesses at this hearing. Tankia Moore testified that 

she maintained the probation records for the court in which Torres was convicted in 

the regular course of business and that the records before the court were Torres’s

records, but she had never met Torres and did not have personal knowledge of the 

contents of Torres’s file.

The State’s second witness, Tony Dawson, the Harris County SAFPF 

coordinator, testified that Torres was unsuccessfully discharged from the SAFPF and 

1 This document was not offered or admitted into evidence as an exhibit at the 

revocation hearing.
5

that he had prepared Torres’s discharge report based on information conveyed to 

him during a “treatment team meeting” with prison personnel over the telephone. He 

testified that a discharge from the SAFPF typically occurs when an inmate has had 

several incidents or a serious incident such an one resulting in an injury.

The State introduced the report prepared by Dawson in anticipation of the 

adjudication hearing based on the information supplied to him by SAFPF personnel 

—a two-page form entitled “Violation Report/Court Action”—as Exhibit 4. The 

report contained no specific accounts of Torres’s alleged violations of the conditions 

of his community supervision, and there were no incident reports or other 

documentation supporting the report. Dawson admitted at the hearing that he had no 

personal knowledge of any of the violations, nor did he know the particular source 

of any of the alleged violations that were utilized by the SAFPF to discharge him 

from the program. The Report stated that Torres had been diagnosed with ADHD

“and was receiving mental health treatment for the condition.” It listed no “Law 

Violations,” and, with respect to his “Reporting History,” it stated only that Torres

was placed in the SAFPF program as a condition of his community supervision, and 

that, upon arriving at the facility, he “received numerous rules violations and was 

unsuccessfully discharged on 06/04/2018 as a result.” Under “Treatment Issues,” the 

Report stated summarily that Torres was discharged “for behaviors like refusing to 

conform to rules and regulations, using racial slurs, profanity towards staff, and 
6

masturbating at a bathroom sink.”

2 The Report also stated that Torres, “due to being 

in [the] SAFPF,” had not been able to submit an educational skill level or provide 

proof of a high school diploma, GED, or participation in a GED program. He had 

not paid court fees assessed against him because they were not yet due.

Under “Status/Comments and Recommendations,” the Report stated that 

Torres’s case was referred to the court due to his unsuccessful discharge from the 

SAFPF, and it left court action to the discretion of the trial court. The Report stated,

“It appears that [Torres] was given several opportunities to follow program 

rules . . . but failed to abide by them until his ultimate discharge.” Thus, “[b]ased off 

of the information gathered by this CSO, and the behaviors exhibited, it would 

appear that [Torres] does not realize the possible serious consequences and may be 

in need of a clinical assessment to determine if he needs to be diagnosed with a 

mental illness or to determine if [he] needs medication.” There is no indication that

any assessment of Torres’s mental health or need for medication was made in 

response to this comment in the five months between his discharge from the SAFPF 

program and his adjudication hearing. The Report was signed by Dawson and 

Supervisor Elisa Hughes, who did not testify at the revocation hearing.

2 When the State asked Dawson why Torres was unsuccessfully discharged from the 

SAFPF, Dawson replied, “Because of the rule violations.”
7

When the State introduced this exhibit, Torres objected to the Report as 

hearsay and as a violation of his rights of confrontation and cross-examination unless 

Dawson could demonstrate personal familiarity with the facts on which the report 

was based. He further argued that the rights to confrontation and cross-examination 

were implicated because his liberty interest was at stake. In response, the State 

argued that the business records exception to hearsay applied because Dawson 

reviewed the prison records to generate his report. The State also argued that 

Crawford3 did not apply to the adjudication hearing. The trial court admitted State’s 

Exhibit 4, and it granted Torres a running objection.

When asked how Torres performed in the SAFPF, Dawson testified that “he 

had a numerous amount of behavioral sanctions” such as refusing to conform to rules 

and regulations, using racial slurs, profanity towards staff, and masturbating at a 

bathroom sink. Dawson testified that he discharged Torres due to his rule violations. 

Dawson reiterated, however, that he did not have personal knowledge of the specific 

violations that led to Torres’s discharge. Dawson admitted that he did not know who 

3 Crawford v. Washington, 541 U.S. 36 (2004). Crawford holds that admission of a 

non-testifying declarant’s hearsay statement—even when the trial court had 

determined that the statement was admissible under a hearsay exception—may 

nevertheless violate the Sixth Amendment right of confrontation if the statement 

was testimonial and the defendant did not have a prior opportunity to cross-examine 

the witness. Id. at 63–68; see also U.S. CONST. amend. VI (providing that, “[i]n all 

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with 

the witnesses against him”).
8

made the allegations contained in the report, that it could have been a staff member 

or a fellow inmate, and that he could not personally assess the veracity or credibility 

of any of the allegations made against Torres.

Torres testified that he entered the SAFPF program on November 16, 2017, 

and that he was scheduled to be discharged on June 7, 2018. He stated that, while in 

the program, he had obtained his GED and had also been certified in construction 

with an OSHA license; he had completed 108 hours of a “change class”; he had 

completed an 18-hour drug course; he had completed his grief class; and he was “the 

commencement leader and an education tutor” in his community. 

Torres testified that inmates break up “into little clicks [sic] against the people 

they don’t like,” and that the complaints against him came from other inmates. He 

stated that the inmates hold each other accountable, and, if someone writes an inmate 

up and has another inmate witness it, the complaint automatically goes down into 

that inmate’s log, and he is held accountable. He testified that that was what had 

happened to him. Torres denied that the allegations contained in Dawson’s report 

were true. Specifically, he denied using profanity toward a staff member. He 

admitted to falling asleep in class on December 12, 2017, and that doing so was 

contrary to the rules of the SAFPF program. He testified that he was never 

disrespectful to any of his teachers in the SAFPF program. 
9

Torres testified that he believed he had passed all his classes and graduated 

from the program. He further stated that, since his discharge from the SAFPF 

program, he had been in the Harris County Jail for five months without incident. 

Torres also testified that he had sincerely tried and wanted to stay on deferred 

adjudication because he had one-year-old twin daughters to whom he was “trying to 

get home” and little brothers in CPS for whom he wanted “to get [him]self together”; 

his mother had “lost her mind” after doing drugs and had been placed in a psychiatric 

ward and then transferred to prison; and he was “trying to get the little family I have 

left back on track.” Torres testified that he had learned in the SAFPF to set 

boundaries with people and to stay away from temptations and that using drugs and 

criminal activity were “just a revolving cycle.” At the time of the revocation hearing, 

Torres was twenty years old. He promised the trial court that he would be a 

productive member of society if stayed on probation.

At the conclusion of the hearing, the trial court granted the State’s motion, 

found Torres guilty of the first-degree felony offense of aggravated robbery with a 

deadly weapon, and assessed his punishment at twenty years’ confinement. 

Analysis

In his first issue, Torres contends that the trial court committed constitutional 

error when it admitted Dawson’s violation report and his related testimony over 

defense counsel’s objections that its admission violated his right to confrontation 
10

and cross-examination. To support his contention, he cites the Court of Criminal 

Appeals’ opinion in Ex Parte Doan, holding that “[c]ommunity-supervision 

revocation proceedings are not administrative hearings; they are judicial 

proceedings, to be governed by the rules established to govern judicial proceedings.”

369 S.W.3d 205, 212 (Tex. Crim. App. 2012). 

Before the Court’s decision in Doan, a number of courts of appeals had 

concluded that the Confrontation Clause did not apply to community supervision 

revocation proceedings. See e.g., Mauro v. State, 235 S.W.3d 374, 375–76 (Tex. 

App.—Eastland 2007, pet. ref’d); Trevino v. State, 218 S.W.3d 234, 239 (Tex. 

App.—Houston [14th Dist.] 2007, no pet.). The State contends, however, that neither 

Doan nor any subsequent authority expressly considered the issue of whether the 

Confrontation Clause applies to community supervision revocation proceedings. 

Nor has the Court of Criminal Appeals overruled any of those pre-2012 intermediate 

appellate court decisions holding that the Confrontation Clause does not apply in 

revocation proceedings, and several courts of appeals have determined post-Doan

that the Confrontation Clause does not apply during community supervision 

revocation proceedings. See Sabella v. State, 578 S.W.3d 137, 142 (Tex. App.—

Texarkana 2019, no pet.); Olabode v. State, 575 S.W.3d 878, 881 (Tex. App.—

Dallas 2019, pet. ref’d) (“By its own terms, the Confrontation Clause applies only 

to criminal prosecutions, and a probation revocation, whether it follows ‘regular’ 
11

probation or deferred adjudication probation, is not a stage of criminal 

prosecutions.”); see also Corona v. State, No. 14-17-00821-CR, 2019 WL 1768598, 

at *2–3 (Tex. App.—Houston [14th Dist.] Apr. 23, 2019, no pet.) (mem. op., not 

designated for publication) (“A community supervision revocation hearing is not 

part of a criminal prosecution.”). 

Thus, the question of whether the Confrontation Clause applies in this context 

remains unsettled. In unpublished memorandum opinions, two courts—including 

this one—have assumed without deciding that revocation hearings are criminal 

proceedings for purposes of the Confrontation Clause. See Blackman v. State, No. 

01-1-00525-CR, 2014 WL 50804, at *3 (Tex. App.—Houston [1st Dist.] Jan. 7, 

2014, pet. ref’d) (“We acknowledge that Doan did not decide the issue of whether a 

defendant has a right to confront witnesses during a community supervision 

revocation, and no case since Doan has revisited that issue. However, for purposes 

of this opinion, we will assume without deciding, that a defendant can raise a 

Confrontation Clause objection in a community-supervision revocation 

proceeding.”); Bacilio v. State, No. 08-14-00096-CR, 2016 WL 1253420, at *3 (Tex. 

App.—El Paso Mar. 30, 2016, pet. ref’d) (mem. op., not designated for publication).

The State further asserts that Torres failed to preserve his specific complaints 

regarding the hearsay contained within the Report, and we are mindful that a trial 

court has broad discretion in determining the admissibility of evidence. See Gonzalez 
12

v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018) (explaining that appellate 

courts review rulings admitting evidence under abuse-of-discretion standard). Thus, 

in deciding whether any error occurred, the appellant must establish the ruling that 

is the subject of his complaint on appeal was one that “lies outside the zone of 

reasonable disagreement.” See id.

Given the unsettled nature of the law regarding the right to confrontation 

during revocation and adjudication hearings and the broad discretion granted to the 

trial court in determining the admissibility of Dawson’s discharge report, we turn, 

instead, to Torres’s second issue regarding the sufficiency of the evidence supporting 

the trial court’s revocation of his community supervision, adjudication of guilt, and 

assessment of punishment. We conclude that, even assuming that the trial court did 

not abuse its discretion in admitting the report, the evidence was insufficient for the 

trial court to properly exercise its discretion in revoking Torres’s deferred 

adjudication community supervision.4

4 Because we conclude that the trial court lacked sufficient evidence upon which it 

could exercise its discretion and, thus, remand for a new hearing is necessary, and 

because the resolution of his first issue would not afford him any greater relief, we 

need not address his first issue. See TEX. R. APP. P. 47.1; Love v. State, 600 S.W.3d 

460, 485 (Tex. App.—Fort Worth 2020, pet. ref’d) (holding that, because 

appellant’s remaining issues, even if sustained, could not afford him any greater 

relief, they need not be addressed); Alvarez v. State, 570 S.W.3d 792, 795 (Tex. 

App.—Houston [1st Dist.] 2018, pet. ref’d) (stating same). 
13

The State must prove by a preponderance of the evidence that the defendant 

violated a term of his community supervision to justify adjudication, and we review 

the evidence’s sufficiency under an abuse of discretion standard. 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). Only one sufficient ground is necessary to support a 

trial court’s decision to revoke community supervision. Smith v. State, 286 S.W.3d 

333, 342 (Tex. Crim. App. 2009); see also Garcia v. State, 387 S.W.3d 20, 26 (Tex. 

Crim. App. 2012) (stating proof of single violation will support revocation).

In Leonard v. State, the Court of Criminal Appeals expounded on the abuseof-discretion standard of review as applied to a trial court’s adjudication of guilt 

following revocation of deferred adjudication community supervision. 385 S.W.3d 

570, 575–77 (Tex. Crim. App. 2012). In Leonard, the defendant was ordered to 

complete a treatment program as a condition of his community supervision, and he 

was adjudicated guilty because he failed to complete that program.5Id. at 576. The 

Court of Criminal Appeals considered whether the reasons behind the appellant’s 

discharge from the program were relevant to determining whether the trial court 

abused its discretion:

In a revocation proceeding, the trial court has discretion to revoke 

community supervision when a preponderance of the evidence supports 

one of the State’s allegations that the defendant violated a condition of 

5 The appellant in Leonard v. State was ordered to complete a sex-offender treatment 

program. 385 S.W.3d 570, 572 (Tex. Crim. App. 2012).
14

his community supervision. Though defendants are not entitled to 

community supervision as a matter of right, once a defendant is 

assessed community supervision in lieu of other punishment, this 

conditional liberty “should not be arbitrarily withdrawn by the 

court. . . .” On appeal from a trial court’s decision to revoke, therefore, 

appellate courts review the record only to ensure that the trial court did 

not abuse its discretion.

Id. (internal citations omitted). The Leonard court went on to note that “it is not 

obvious how an abuse-of-discretion standard applies in this case,” observing that

[t]he trial court ordered the appellant to “[a]ttend and participate fully 

in and successfully complete” a program. The evidence at the 

adjudication hearing showed that the appellant did “[a]ttend” and 

“participate fully” in the program, both of which were within his power 

to do. The appellant did not have full control over his ability to 

“successfully complete” the program, however; he was discharged 

because the therapist came to believe that he was being dishonest. Thus 

it was the therapist’s discretion that caused the appellant to be in 

violation of a term of his community supervision.

Id. at 576–77. 

The court thus held that an “ordinary abuse-of-discretion review”—one 

requiring only evidence that “[d]ischarge caused the appellant to be in violation”—

would be “inadequate.” Id. at 577. It held, instead:

Revocation involves the loss of liberty and therefore implicates due 

process. “The central issue to be determined in reviewing a trial court’s 

exercise of discretion in a [community supervision] revocation case is 

whether the [defendant] was afforded due process of law.” It would 

surely offend due process if a defendant were discharged from his 

therapy program for a wholly inappropriate reason—such as illegal 

discrimination or mere caprice—and the bare fact of that discharge 

were used as a basis to revoke the defendant’s community supervision. 

Yet, by an ordinary abuse-of-discretion review, such a revocation 

would be sustained.
15

What has happened here is that the trial court, through a 

condition of the appellant’s community supervision, made the 

appellant’s compliance with the terms of his community supervision 

subject to the discretion of a third party. In such a case, to determine 

whether the trial court abused its discretion we must also examine the 

third party’s use of its discretion to ensure that it was used on a basis 

that was rational and connected to the purposes of community 

supervision.

Id. (internal citations omitted). 

We conclude that the abuse-of-discretion standard articulated in Leonard is 

applicable here. Therefore, in reviewing whether the trial court abused its discretion 

we must also examine the SAFPF’s use of its discretion to ensure that it was used 

on a basis that was rational and connected to the purposes of community supervision. 

See id. 

Torres’s circumstances are factually similar to the appellant in Leonard in 

several key ways. Here, as in Leonard, the trial court ordered Torres to treatment 

through a third-party program and to comply with the program’s rules. The evidence 

at Torres’s adjudication hearing showed that he was successfully completing the 

SAFPF program as of May 1, 2018, when the trial court signed its “Order Releasing 

From Substance Abuse Felony Punishment Facility.” However, later that same 

month, he was discharged unsuccessfully from the program. 

The State presented insufficient evidence regarding the reasons for Torres’s 

discharge from the program. The Report contains only conclusory statements that 

Torres had violated “rules” of the program and summarily states that Torres was 
16

discharged “for behaviors like refusing to conform to rules and regulations, using 

racial slurs, profanity towards staff, and masturbating at a bathroom sink.” The 

Report provides no further detail, elaboration, or supporting facts. Dawson admitted 

that he did not have any personal knowledge regarding Torres’s behavior or the 

incidents referenced in his report. He did not know anything about the basis of these 

complaints, and he acknowledged that they could have been made by Torres’s fellow 

inmates. The State failed to include in the record any incident reports or other 

information that would provide the trial court with details behind the conclusory 

allegations presented against Torres. Nor did the State present any evidence 

regarding the source of the allegations against Torres.

The conclusory nature of the report stands in stark contrast to the other record 

evidence. On May 1, 2018, the trial court signed an order acknowledging that Torres 

was successfully completing the program and was set to be discharged a little more 

than a month later, on June 7, 2018. Before that could occur, however, he was 

recommended for removal from the program on May 30, 2018. Nevertheless, the 

following month, the SAFPF filed a “SAFPF Progress and Conduct Report” with 

the trial court. This progress report stated that since he had been recommended for 

removal from the program on May 30, 2018, Torres had been participating in groups 

and classes appropriately, had maintained a respectful attitude, had not received any 

sanctions, and had not had any disciplinary problems. The counselor commented 
17

that if he had “put forth as much effort prior to the recommendation for Behavioral 

Removal, Torres would have successfully completed the program.” Torres himself 

testified that he believed he had completed all that the program had required of him 

and that the complaints against him had been fabricated by fellow inmates who had 

formed a clique. Dawson acknowledged that the reports of bad behavior and rule 

violations could have come from other inmates. And the evidence suggests that 

Torres had completed at least some portion of the program: Torres testified that, 

while in the program, he had obtained his GED and had also been certified in 

construction with an OSHA license; he had completed 108 hours of a “change class”; 

he had completed an 18-hour drug course; he had completed his grief class; and he 

was “the commencement leader and an education tutor” in his community.

Given the nature of the evidence, we conclude that the State did not present 

sufficient evidence for the trial court to properly exercise its discretion in this case. 

The Report itself is evidence only of the fact that Torres was discharged 

unsuccessfully from the program. The State asserted at trial that it only had to prove 

that Torres had violated a term of his community supervision by being 

unsuccessfully discharged from the SAFPF. But, as Leonard points out, once Torres

was assessed community supervision in lieu of other punishment, this conditional 

liberty “should not be arbitrarily withdrawn by the court.” 385 S.W.3d at 576. This 

is still true when, as here, “through a condition of the appellant’s community 
18

supervision,” the trial court made “compliance with the terms of his community 

supervision subject to the discretion of a third party.” Id. at 577. 

Here, as in Leonard, “[t]he central issue to be determined . . . is whether 

[Torres] was afforded due process of law” in connection with the trial court’s 

exercise of its discretion. Id. at 576. And we conclude that it “would surely offend 

due process” if Torres “were discharged from his therapy program for a wholly 

inappropriate reason—such as illegal discrimination or mere caprice—and the bare 

fact of that discharge were used as a basis to revoke the defendant’s community 

supervision.” See id. at 577. Because the record does not contain a sufficient 

explanation of the reasons or incidents behind Torres discharge, the trial court could 

not have determined whether the SAFPF’s reasons were appropriate, or whether, as 

Torres himself asserted, they were based solely on unfounded allegations from 

fellow inmates. Leonard requires that the trial court consider the soundness of the 

SAFPF’s use of its discretion to ensure that it was used on a basis that was rational 

and connected to the purposes of community supervision. See id. Here, the trial court 

failed to do so when it exercised its discretion to revoke Torres’s community 

supervision, adjudicate his guilt, and assess his punishment at 20 years’ confinement 

based solely on conclusory statements passed from the SAFPF program through a 

witness who had no personal knowledge of the circumstances leading to Torres’s 

unsuccessful discharge from the program.
19

Accordingly, we sustain Torres’s second issue on appeal. 

Conclusion

We reverse the trial court’s judgment and remand for further proceedings 

consistent with this opinion.

Richard Hightower

Justice 

Panel consists of Justices Keyes, Lloyd, and Hightower.

Justice Keyes, concurring.