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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-38794

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

JESSICA GARCIA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY

Matthew E. Chandler, District Court Judge

Raúl Torrez, Attorney General

Laurie Blevins, Assistant Attorney General

Santa Fe, NM 

for Appellee

Bennett J. Baur, Chief Public Defender

Nina Lalevic, Assistant Appellate Defender

Santa Fe, NM 

for Appellant

MEMORANDUM OPINION

HENDERSON, Judge.

{1} Defendant Jessica Garcia appeals the revocation of her probation following her 

alleged involvement in a robbery and battery. She presents four arguments: (1) the 

district court’s decision to revoke her probation was not supported by sufficient evidence 

of a probation violation; (2) the district court erred in denying her request for a 

continuance; (3) the district court deprived her of due process by allowing the State to 

present evidence that she possessed a controlled substance; and (4) the district court

failed to make written findings of fact in its order revoking probation. We affirm. 
DISCUSSION

I. The District Court Had Sufficient Evidence to Revoke Defendant’s 

Probation

{2} The district court received a report that Defendant had violated the conditions of 

her probation based on her alleged involvement in a robbery and battery. Thereafter, 

the State moved to revoke Defendant’s probation on grounds that she violated two 

standard conditions of her probation—(1) that she “not violate any of the laws or 

ordinances of the State of N[ew] M[exico], or any other jurisdiction. . . . [or] endanger the 

person or property of another,” and (2) that she not “associate with any person identified 

by [her] Probation/Parole Officer as being detrimental to [her] [p]robation supervision.” 

{3} We review the revocation of a defendant’s probation for an abuse of discretion. 

State v. Martinez, 1989-NMCA-036, ¶ 5, 108 N.M. 604, 775 P.2d 1321. “To establish an 

abuse of discretion, it must appear the [district] court acted unfairly or arbitrarily, or 

committed manifest error.” Id. The State must establish a probation violation “with a 

reasonable certainty, such that a reasonable and impartial mind would believe that the 

defendant violated the terms of probation.” State v. Green, 2015-NMCA-007, ¶ 22, 341 

P.3d 10. On appeal, we view “the evidence in a light most favorable to the state and 

indulge all reasonable inferences in favor of the district court’s judgment.” State v. 

Williams, 2021-NMCA-021, ¶ 6, 489 P.3d 949 (alterations, internal quotation marks, and 

citation omitted). 

{4} Defendant first argues that the State presented insufficient evidence to establish 

that she was at the scene of the robbery and battery. The State’s witness, a confidential 

informant, testified that Defendant and her partner sold him an illegal drug and arranged 

to sell him another pound of the drug. The informant testified that Defendant returned 

later that day with a group of people, and that Defendant was in the room when he was 

battered and robbed, but he did not see Defendant participate in the battery. Meanwhile, 

Defendant’s nine-year-old son testified that Defendant stayed in the car when they 

arrived at the motel. Defendant also points to various inconsistencies in the informant’s 

testimony and argues her son was the more credible witness. 

{5} We are not persuaded by Defendant’s arguments. We defer credibility 

assessments to the district court. See Tanuz v. Carlberg, 1996-NMCA-076, ¶ 7, 122 

N.M. 113, 921 P.2d 309 (“[T]he trial court, sitting as fact[-]finder . . . determines [the] 

credibility of testimony, and resolves factual conflicts.”). Here, the informant’s testimony 

was sufficient to allow the district court to find with reasonable certainty that Defendant 

had violated her probation by participating in a robbery and battery. See State v. Ocon, 

2021-NMCA-032, ¶ 22, 493 P.3d 448 (“We do not reweigh the evidence or substitute 

our judgment for that of the fact[-]finder as long as there is sufficient evidence to support 

the verdict.” (internal quotation marks and citation omitted)).

{6} Defendant also argues that the State failed to offer evidence that Defendant 

conspired to rob and batter the informant. However, as the State points out, the 
probation violation report alleged that Defendant committed robbery and battery as an 

accessory, not as a coconspirator. Compare NMSA 1978, § 30-1-13 (1972) (“A person 

may be charged with or convicted of the crime as an accessory if that person procures, 

counsels, aids or abets in its commission . . . .”), with NMSA 1978, § 30-28-2(A) (1979) 

(“Conspiracy consists of knowingly combining with another for the purpose of 

committing a felony within or without this state.”). Thus, the State was under no burden 

to prove Defendant conspired to rob and batter the informant. 

{7} We, therefore, conclude the district court had sufficient evidence to revoke 

Defendant’s probation based on the evidence presented.

II. The District Court Did Not Abuse Its Discretion by Denying Defendant’s 

Motion to Continue

{8} Defendant argues the district court erred by denying her motion to continue. 

Defense counsel requested the continuance at the outset of the probation violation 

hearing because she had not been able to review discovery or adequately prepare. 

Defense counsel asked the district court for time to review potentially exculpatory 

surveillance footage and jailhouse phone calls. She also claimed that she needed to 

interview two potential alibi witnesses, one of whom had surfaced the day of the 

hearing. Defense counsel had not yet disclosed any of the potential alibi witnesses to 

the State. 

{9} The State offered to “commence and continue” the hearing, asking the district 

court to hear the informant’s testimony before allowing the continuance. According to 

the State, the informant had difficulty traveling to the courthouse from his home, and it 

would be hard for him to return another day. The State also noted that most of the 

discovery had been made available almost three weeks earlier, and that the 

surveillance footage was available the same day upon request. The district court asked 

why defense counsel had not obtained the discovery, and she responded that she had 

requested evidence from the State but had not yet gone to retrieve it; however, she 

could not produce the email she sent to request the discovery when requested by the 

district court. The district court denied the motion to continue. The district court noted 

that an interpreter for the informant was present that day, that discovery had been 

available for defense counsel’s review but that she had made no attempt to 

communicate with the district court about the delay, and that the hearing had been set 

for more than a month.

{10} “The grant or denial of a continuance is within the sound discretion of the [district] 

court, and the burden of establishing abuse of discretion rests with the defendant.” State 

v. Salazar, 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135. “An abuse of discretion 

occurs when the ruling is clearly against the logic and effect of the facts and 

circumstances of the case.” Id. (internal quotation marks and citation omitted). We 

evaluate seven factors when reviewing a denial of a motion to continue a trial: 
[(1)] the length of the requested delay, [(2)] the likelihood that a delay 

would accomplish the movant’s objectives, [(3)] the existence of previous 

continuances in the same matter, [(4)] the degree of inconvenience to the 

parties and the court, [(5)] the legitimacy of the motives in requesting the 

delay, [(6)] the fault of the movant in causing a need for the delay, and 

[(7)] the prejudice to the movant in denying the motion. 

State v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20. The parties agree 

these factors apply to our analysis in the probation revocation context, and we hold that 

the district court did not abuse its discretion in denying Defendant’s request for 

continuance.

{11} The first, second, third, and fifth factors weigh neutrally or slightly in Defendant’s 

favor. The first factor has little to no application here because Defendant did not request 

a particular length of time for the continuance, and we have no other indication of how 

much time she needed. On appeal, Defendant argues she implicitly requested “a brief 

period of time sufficient to review the materials.” However, this unsupported assertion 

provides us with no insight into what period of time would actually be sufficient to review 

the materials at issue and adequately prepare. We can only speculate as to whether the 

requested delay would have been short, weighing in favor of Defendant, or lengthy, 

weighing against her. Compare id. ¶ 15 (holding that a requested delay of a week or 

less to properly serve a witness and compel the witness to testify weighed in favor of 

granting a continuance), with State v. Salazar, 2006-NMCA-066, ¶¶ 24, 26-27, 139 N.M. 

603, 136 P.3d 1013 (holding that the denial of a continuance was appropriate where the 

delay was likely at least two months). Even if we were to presume that the continuance 

would have been a short delay, the other factors must weigh in favor of Defendant. 

See State v. Salazar, 2007-NMSC-004, ¶ 21, 141 N.M. 148, 152 P.3d 135 (concluding 

that the defendant “did not request a specific amount of time for delay, but presumably 

enough time to conduct further witness interviews, possibly have the [v]ictim evaluated 

to determine competency to testify, and time to investigate”). Only three other factors 

weigh in Defendant’s favor. Under the second factor, a sufficient delay may indeed have 

allowed Defendant to obtain the surveillance video, review the jailhouse phone calls, 

and interview the potential alibi witnesses. As for the third factor, there were no prior 

continuances, and under the fifth factor, it does not appear that defense counsel 

requested the continuance in bad faith.

{12} The fourth and sixth factors, however, weigh against Defendant. The parties and 

district court would have been significantly inconvenienced by a delay. Defense counsel 

raised her motion immediately before the hearing commenced. See State v. Aragon, 

1997-NMCA-087, ¶ 22, 123 N.M. 803, 945 P.2d 1021 (“[A]s a general rule, a motion for 

a continuance filed at the last minute is not favored.”). The informant was present to 

testify, and it would have been difficult for the informant to travel back to district court. 

Furthermore, an interpreter had been made available for the informant’s testimony that 

day. 
{13} The sixth factor—whether the movant caused a need for the delay—weighs 

slightly against Defendant on balance. Defense counsel entered her appearance eleven 

days prior to the hearing, and as the district court noted, it was defense counsel’s 

responsibility to review the discovery previously disclosed, request any remaining 

discovery needed, i.e., the surveillance footage and the jailhouse phone calls prior to 

the hearing, to prepare for the hearing, and to notify the court and opposing counsel 

about the potential alibi witnesses. Defense counsel failed to do so, and waited until the 

eleventh hour to seek more time to prepare.

{14} Finally, the seventh factor requires Defendant to “show that the denial of the 

continuance prejudiced [her].” Salazar, 2007-NMSC-004, ¶ 16. “No more prejudice need 

be shown than that the [district] court’s order may have made a potential avenue of 

defense unavailable to the defendant.” Id. (internal quotation marks and citation 

omitted). “[W]here [a] continuance is sought to obtain defense witnesses, in order to 

show prejudice, there must be a showing that the witness was willing to testify and 

would have given substantially favorable evidence.” Salazar, 2006-NMCA-066, ¶ 28 

(emphasis added).

{15} Here, Defendant claims that the potential alibi witnesses, as well as the 

surveillance footage and jailhouse phone calls would have corroborated Defendant’s 

claim that she was not in the hotel room when the robbery and battery occurred. 

However, Defendant made no showing—either before the district court or on appeal—

that the other potential witness was willing to testify or what that witness would say. Nor 

did she establish that the surveillance footage and jailhouse phone calls would in fact 

have provided exculpatory evidence.1 Finally, while Defendant argues that she was 

prejudiced because “the State’s case depended on [her] having gone into the motel,” we 

also note that Defendant was able to call a witness that testified to her alibi. Defendant’s 

nine-year-old son told the district court that Defendant did not leave the car when they 

were parked outside of the motel together. The investigating officer also testified that 

another person involved in the robbery and battery case said Defendant was not 

involved in the alleged crimes. 

{16} We, therefore, conclude that Defendant failed to show an avenue of defense was 

unavailable to her or that the additional alibi witness’s testimony would have been 

substantially favorable to her defense. See Torres, 1999-NMSC-010, ¶ 12 (concluding 

that the defendant established prejudice where he “made a sufficient proffer that the 

testimony would have been both material and favorable to his defense”). Furthermore, 

as noted above, the district court had sufficient evidence to conclude that Defendant 

served as an accessory to the crimes as alleged in the probation violation report. Given 

the foregoing factors, only some of which weigh in Defendant’s favor, the district court 

did not abuse its discretion by denying Defendant’s request for a continuance. 

 

1Defendant notes in her reply brief that the charges in the case that created the probation violation were 

ultimately dismissed; however, she only leaves us to speculate as to why the case was dismissed, which 

we will not do. 
III. The District Court Did Not Deprive Defendant of Due Process by Giving 

Improper Notice of the Charges Against Her

{17} Defendant argues the district court erred by allowing the informant to testify that 

Defendant was in possession of illegal drugs on the day of the robbery. Defendant 

contends that his testimony violated her right to due process because she did not have 

sufficient notice of the accusations against her—the alleged probation violations 

pertained to robbery and battery, not possession of illegal drugs. 

{18} We have previously held that “‘[m]inimum due process requirements in 

revocation hearings include written notice of the claimed violations.” State v. Orquiz, 

2003-NMCA-089, ¶ 11, 134 N.M. 157, 74 P.3d 91. Defendant is entitled to notice of the 

violations that could cause her probation to be revoked. See State v. Jimenez, 2004-

NMSC-012, ¶ 10, 135 N.M. 442, 90 P.3d 461 (concluding that when the petition to 

revoke did not allege the defendant was a fugitive, the “[d]efendant could not have 

known that his status as a fugitive was at issue until the district court filed its order 

revoking probation and denying [the d]efendant credit for time served on probation”).

{19} The petition for revocation in this case refers to one person stating that the 

battery occurred due to a request to purchase methamphetamine and that 

methamphetamine was in fact found on at least one other person who was also 

involved in the alleged crimes. This allegation gave Defendant notice that the alleged 

crimes for which the State accused her of involved illegal drugs. However, although 

evidence was admitted that she had participated in a drug deal earlier that day that 

precipitated the later meeting where the robbery and battery occurred, the district court 

revoked Defendant’s probation based on her involvement in the alleged new crimes as 

noted in its written order, which were not drug crimes. The district court also 

emphasized that Defendant was placed on probation on July 3, 2019, and the alleged 

violation occurred shortly thereafter on August 13, 2019. Because the district court 

revoked Defendant’s probation due to the allegations noticed in the probation violation 

report, those being robbery and battery, and the fact that the report also gave notice 

that methamphetamine was involved in these new crimes, we hold that Defendant was 

properly placed on notice and that no due process violations occurred. 

IV. The District Court Did Not Err by Failing to Provide Written Findings of Fact

{20} Both parties agree that the order revoking Defendant’s probation contained an 

erroneous finding—the district court incorrectly stated that Defendant admitted to the 

allegations against her in the State’s motion to revoke her probation. Rather than 

attacking this error, Defendant contends that the district court was required to, but did 

not provide, written findings of fact detailing the reasons for revoking her probation. 

Defendant cites State v. Parsons to support her argument that due process requires “a 

written statement by the fact[-]finder of the evidence relied upon and the reasons for 

revocation.” See 1986-NMCA-027, ¶ 26, 104 N.M. 123, 717 P.2d 99 (internal quotation 

marks and citation omitted). Indeed, “findings of fact and conclusions of law permit 
meaningful appellate review and are vital where the trial court record does not clearly 

support the district court’s ruling.” Id.

{21} The relevant portion of the district court’s written order stated that Defendant 

violated [her] probation as outlined in the details of violation[] number 1 of 

the Standard Probation order. . . . IT IS HEREBY ADJUDGED that 

Defendant has violated a substantial condition of the Standard Probation

Order in effect in this District, and it is hereby ordered that the Defendant’s 

probation . . . is revoked[.]

Although sparse, the district court’s order is clear that it found that Defendant violated 

one of the conditions of her probation. Further, “[o]ral comments by a judge may be 

used to clarify a written ruling by the [district] court.” See State v. Harris, 2013-NMCA031, ¶ 8, 297 P.3d 374; see also In re Termination of Parental Rights of Wayne R.N., 

1988-NMCA-048, ¶ 17, 107 N.M. 341, 757 P.2d 1333 (“An appellate court may look to 

the remarks or opinions of the trial judge for clarification of [any written] ambiguities, as 

long as such remarks or opinions are not made the basis for error on appeal.”). At the 

probation revocation hearing, the district court made verbal findings about Defendant’s 

involvement in a robbery and battery before revoking her probation. These findings 

resolve any doubts created by the written order, and obviate our need to remand the 

case for findings of fact. However, given the erroneous finding that Defendant admitted 

allegations against her, we remand for entry of an amended order correcting that error. 

CONCLUSION

{22} For the foregoing reasons, we affirm the revocation of Defendant’s probation. 

However, we remand for entry of a corrected written order omitting the erroneous 

finding that Defendant admitted allegations against her.

{23} IT IS SO ORDERED.

SHAMMARA H. HENDERSON, Judge

WE CONCUR:

ZACHARY A. IVES, Judge 

KATHERINE A. WRAY, Judge