## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 22

- 00017

- C R

___ ______ ________ __________

On Appeal from the 371st District Court Tarrant County, Texas Trial Court No. 1598024D

Bef ore Womack, Wallach, and Walker, JJ. M emorandum Opinion by Justice Walker 

### G ERSON 

### M OLINA 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
T he State filed a petition to adjudicate Appellant Gerson Molina guilty , alleging
that he had violated the terms of his deferred

- adjudication community supervisio n . After a revocation hearing , a criminal law magistrate found that Molina had violated

ce rtain term s of his community supervision , and the district court adjudicated him gui lty and sentenced him to 10 years’ confinement. On appeal, Molin a complains that (1) the re were reversible procedural deficiencies related to the transfer of the c as e to
the magistrate ; (

2 ) the State did not prove by a preponderance of the evidence that he
had violated the term s of his community supervision ; and ( 3 ) he was not give n

a dequate notice of and an opportunity to object to the terms of his community
superv ision

. We will a ffirm.
I. BACKGROUND
A. R ELEV

ANT C OMMUNITY S UPERVISION T ERMS
When Molina was placed on five years of deferred

- adjudication community supervision for ag

gravated assault with a firearm , h e signed t wo documen ts that
outline d its terms and conditions as part of his plea bargain

. T he first do cument,
titled “ Conditions of Community Supervision, ” prohibited Molina from committing
additional criminal offenses a nd required him to pa y fees

. The second document,
titl ed “ Supplement /Amen dment to Conditions of Communit y Supervision High Risk, ” required Molina to successfully complete the high

- risk gang casel oad program , stated that he could not “possess a f irea rm or other danger ous or deadly weapon; nor3

remain in any veh icle where such a weapon is possessed; or remai n in the presence of any armed person , ” and prohibited him from associating with known gang members and staying in places where gang members cong rega te. 1 See Tex. Code Crim Proc.
Ann. art . 42A.301(a).

B. S TATE ’ S P ETITION TO P R OCE ED TO A DJUDICATION
Predi cated mainly on allegations that Molina had been involved in an altercation involving a shooting outside of a Fort Worth hom e , the State filed its petiti on to proceed with Mol ina ’ s adj udication and req uested that his community supervision be re voked

. T he State alleged that Molina had (1) committed the new
offense of engaging in organized criminal activity ; ( 2) possessed a fi rear m ; (3) been in
a vehicle w

i th an armed person and remained i n the presence of an armed person ; (4) been disc harged from the high

- risk caseload pr o gram for violating its terms; (5) associated w

ith known gang members ; and (6) failed to p ay his community supervision fees

. C. R EVO CAT ION H EARING
A hearing on the State ’ s petition was hel d over three days in front of a criminal law magistrate. See Tex. Gov ’ t Code Ann. § 54.656 (a)(10)

. The record does not

conta in a n order referring the case to the magistrate , but Molina never objected to the

1 The second document appears twic e in the record , with one copy b earing the signatures of b oth M o lin a and the pres idin g judg e. The second co py is signed by the judge and a supervision officer but not Molina

.4

magistrate ’ s pr esiding over t he hearing. Molina pleaded not true to all of the petition ’ s allegations

. T estimony at the hearing established that Mol ina had been in an altercation at

a car wash with seventeen

- year

- old F.V

. See Tex . R. App. P. 9. 10 ( prohibiting use of
minor ’ s names in court filings). At some point the altercation ended and F.V.
returned to his home in Fort Worth , t aking Molina ’ s cell phone with him. Molina left
the car wash and drove to another location where he picked up severa l companions , includin g t

wo men named Ca rlos and Isaac

. The men then dro ve to F.V. ’ s home. Upon arriving , Molina , Carlos, and Isaac exited Molina ’ s car and entered the
front y ar d where F.V. was sitting in his parked truck on the lawn

. F.V. then ran fro m the t ruck and into t he home. F.V. testified that, as he was r u nning, he heard Carlos

say , “ You gonna need a new truck ” and then he hea rd Carlos shoot a gun

. F.V. ’ s mother and si ster , who were watch ing from inside the home , testifie d t hat they heard

gun shots com e from the fr ont yard

. F.V. ’ s sister recorded a sho rt video soon after the three men entered the front yard

. A still image from this v ideo show s Molina, C arlos, and Isaac in the front yard

. Isaac is standing in the foreground with Car los and M olin a behind him. Car los
appe ars to be pacing and is op en ly carrying a handgun at his side in his right hand.
Molina sta nd s a few f

eet to th e left of Carlos and both men are fac ing the home.
Molina testified that h e d i d n o t k n o w t h a t a n y o n e w a s c a rryin g a gun while he

was i n F.V. ’ s front yard

. He said that he heard F.V. ’ s mother yell that someone h ad a5

gun and that he and Carlo s then immediately ran to M olina ’ s car and drove away together

. According to Molin a, he first learned th at Carlos had been car rying a gun in the yar d when he viewed the image taken by F.V. ’ s sis ter. A police detect ive who interview ed Molina after the incident testified that
Molina told him that he knew that Carlos had a gun while the y were in F.V. ’ s front yard. Further, Molina told the detective th at he did not immediately leave the front yard when he re alized that Carlos was carrying the gun. Molina s tated multiple time s to the detective that he knew that he was not allowed to be around guns. During an investig ation of the shooting scene, police f ound bullet holes in the
sides of the house, F.V. ’ s truck, and Molina ’ s car , and they recover ed over 25 s hell
casi ngs of three different sizes from the street and yard.
T he magistrate found orally o n t h e r e c o r d t h a t i t w a s t r u e t h a t Molina had ( 1 ) enga g ed in organized criminal activity ; ( 2 ) be en in a vehicle where another
poss essed a firearm and remain ed in the presence of an armed perso n ; a n d ( 3 ) associat ed with kno wn gang members. T he magistrate also orally ad judicated Molina gu ilty and sentenced him to ten years ’ confinement. T hese pronouncements

were also reduced to writing in the magistrate ’ s handwritten certificate of proceedings
from the revocation h earing. The ma gistrate did not prepare any formal, written findings of fac t, conc lus ions of law, or recommendations for the trial court
. T he trial

court then signed its judgme nt adjudicat ing Molina guilty and sent enc ing him to 10 years’ confinem ent
.6 II. ANALYSIS
A. N O E RROR W ITH M AGISTRATE A CTION In his first issue, Molina argues that the tria l court ’ s judgment should be
vacated because there was a “ complete absence of procedure ” related to the magistrate ’ s involvem ent in his case. Citing Davis v. State , Molina alleges t wo deficiencies that , particularly wh en viewed togeth e r, con stituted more th an simple procedural e rror : (1) the lack of a n order referrin g the case to the magistrate , an d (2) the magistrate ’ s failing to prepare any findings of fact , conclusions of law , or recommendations for the trial co urt
. S ee 956 S.W.2d 555 , 5 60 (Tex. Crim. A pp. 1997) (holding that attack s directed at irregularities in orders referring cases to a magist rate

are procedural attacks that may r ender a judgment voida ble but not automatically
void )

. We disagree wi th Molina.

1. Lack of Refer r al Ord er Molina first complains of the lack of a n order referring the case to the magistrate

. A district court may r efer to a cri minal magistrate certain types of proce edings, including those related to motions to revo ke community supervision or to proc eed
wit h an a djudicati on of guilt. Tex. Gov ’ t Code Ann. § 54.656 (a) ( 1 0 ) “To refer one or

more cases to a magistrate, a judg e must issue an order of referral specifying the magistr ate’s duties.” Id. § 54.657(a). However, a valid objection is requir ed t o
preser ve compla ints a bout irregula rities in the procedure th rough which a case was7

referred to a magistrate

. Hoag v . State , 959 S.W.2d 311, 313 (Tex. App.

— Fort Worth 1997, no pet.) (holding that appellant did not preserve error when she never object ed

to the re ferral of her c ase to a magistrate and the referral order was not entered until six days after the transferred proceeding occurred ) ; see Davis , 956 S.W.2d at 559

- 60 ; Lemasurier v. State , 91 S. W.3d 897, 900 (Tex. App.

— Fort Worth 2002, pet. ref’d )

. T his
inc lud e s c omplaint s about whether a valid refe rral order ha s been entered before the magistrate presid e s over the transferred proceeding

. Hoag, 959 S.W.2d at 313.
I t is undisputed that the reco rd here does not contain a n order referring
Molina ’ s case to the magistrate

. I t is also undis puted that M o lina never object ed to
his case ’ s referral or to the magistrat e ’ s presidi ng over it

. 2 Thus , we overrule this portion of Molin a ’ s first issue because Molina failed to pres e rve it for our review. 3

2 N otably, in the written plea admoni shme nts signed by Molina, he expressly agr eed that he had no objection to havin g a magistrate h ear any pr ocee ding in his
cas e.

3 Though Molina acknowledges this court ’ s precedent requiring an objection in situations like this, he noneth el ess requests that we disrega rd it

. T he main authority raised by Mo lina t o support this request is an u npublished case fro m th e Dallas court, wh ich held that a trial cour t ’ s duty to enter a referral order created a “ systemic right ” that could not be waiv ed by lack of a valid objection. See Ex parte DeLeon , No. 05

- 11

- 00594

- CR, 20 11 WL 369030 2, at *1

– 2 (Tex. A pp.

— Dallas Aug. 2 4, 2 011, no pet.) (not designated for publication)

. But DeLeon is unpersuasive, not only because it is not binding on our decision, but als o because it appears to wholly disregard the contrary holding by the Texas Crimin al Court of Appeals in Davi s that t he l ack of a referral ord er is merely a procedural irregularity that does not dep rive a n otherwise qua l ified magistrate of its authority to hear a case. See 956 S.W.2d at 559

– 60.8

2
. Lac k of Find ings, Conclus ions, or Recommendations
Molina next complains that the magistrate fai led to prepare any findings of fact, conclusions of law, or recommendations for the trial court to follow

. W ithou t these findings, conclusions, a n d recommend ation s

— Molina argues

— the t r ial court ’ s judgment was invalid. But, there is no law imp osing such a dut y upon the magistrate , and Molina has not poi nted to any affirma tive proof that the trial court did not rev iew the magistrate ’ s actions

. The Texas G overnment C ode provides that a ma g istrate “ may . . . make findings of f

act on evidence , ” “ formulate conclusions of law , ” a nd “ recommend the rulings, orders, or judgment to be made in a case.” Tex. Gov ’t Code Ann. § 54.658(a)(8), (9), (11) (emp hasis added)

. There is no requi rement that t h e magist rate
reduce its findi ngs to w riting

. Christian v. State , 865 S.W.2d 198, 202 (Tex. App.

— Dallas 1993, pet. ref’d)

. At the conclusi on of the p roceedings , “ a magistrate shall

tr ansmit to the referring co urt any pape rs relati ng to the case , includin g the magistrate ’ s findings , conclusions, orders, recommendations, or other action taken. ”
Tex. Gov ’ t Code Ann. § 54. 6 11

. Unles s the trial court modifies or otherwise rejects
the action of the magistrate, that act ion beco mes the d ec ree of the c ourt. Tex . Gov ’ t Code Ann. § 54. 662 (

b). A ppellate courts must apply a presumption of regularity to a

t rial court ’ s adoption of mag istrate actions and questions of irregularity may be

enterta ined only if a party offers a ffirmative p roof that t he trial cou rt did not review9

those actions

. Kel

ley v. State , 676 S.W.2d 104, 108 (Tex. Crim. App. 1984) ; C hristian , 865 S.W.2d at 202

. Thus, the law is clear that , though the magistrate had the discretion to prepare
f ormal writte n findings, conclusions , and recommendatio ns , it was under no obligati on to do so . S ee Tex. Gov ’t Code Ann. § 54.658(a)(8), (9), (11)

. E ven still, the magistrate ’ s pronouncements are readily apparent in the record from both the record
of the re vocation h earing and t he magistra t e ’ s written ce rtifica te of the proceedings. Further, Molina does not identify any evidence from the record to suggest that
the trial court did not properly review the se pronouncements or any other action o f the magist rate. In fact, the record su ggests the opposite. The mag istrat e found that
Molina had vi olated certain terms of his community supervision , adjudicated him guilty, and sentenced him to 10 years ’ confinement

. The trial court ’ s judg ment is wholly consistent w

ith these pro nouncements.
For t h ese re asons, we concl ude that there was no error related to the magistrate ’ s actions or the trial court ’ s adoption of those actions and overrule the
remain der of Molina ’ s fi rst issue.

B
. E VIDENCE S UPPORT ED T HE F INDINGS OF T RU E
The magistrate found it true that Molina had v iolated the terms of his community supervision when he (1) engag ed in organized criminal activity; (2 ) had
been in a vehicle where another possessed a firearm and remain ed in the presence of an armed perso n; a nd (3) associa t ed with kn own gang members

. Mol ina argues in his10

second issue that the evidence d id not show beyond a preponderance of the evidence
that he violated any of these terms
. W e overrule this p ortion of Molina ’ s second issue
b ecause the evidence supports revocation on a t least one of the mag istr ate ’ s findings

. See Moore v. State , 605 S.W.2d 924, 926 (Tex. Crim. App. 1980)

. We review a trial court ’ s de cision to pr o ceed to an adjudication of guil t and
revoke deferred

- adju dication community supervision for an abuse of dis c retion.
Cantu v. Sta te , 339 S.W. 3d 6 88, 691 (Tex. App.

— Fort Worth 2011, no pet.). In a

re vocation proceeding, the State must pro ve by a preponder ance of the evidence that
the defendant violated the terms an d conditions of his community supervision

. Id

. The trial c ourt is t he sole judge of the credibi lity of the witnesses and weight to be given their testimony, and we review the evid en ce in the li ght most favorable to the
trial court ’ s ruling. Car

dona v. State , 665 S.W.2d 492, 493 (Tex. Crim. App. 19 84 ) ; Cantu , 339 S.W.3d a t 691. Proof by a preponder ance of the evidence of any one of the alleged violations is sufficient to support a r evocation o r der. Moore , 605 S.W. 2d

at 926.
T here is sufficient evidence to show that Mo lina knowingly r od e in h is car with
Carlos and remain ed in his presence while Carlos possessed a gun. Molina and Carlos
rod e together in Molin a ’ s car to F.V. ’ s hou se . A p hoto plainly shows Molina standing
next to Carlos while Carlos openly carries a g un. Though Molina te stified to th e contrary, a detectiv e testified that Molina reported having know n about Carlos ’ s gun while he stood in F.V. ’ s yard but di d not immediately retreat

. The evidence shows11

that F.V. ’ s mother then yell ed t hat there was a gun on the scene and shots were fi red

. And F.V. h eard Carlo s say “ You gonna need a new truck , ” shortly before Carlos

start ed shooting

. Soon after, Molina and Carlos fled together in Molina ’ s car. In light of this evidence, we hold th at the magistrate did not abuse its discretion
when it fo und it true that M o lin a had been in a vehicle where another possessed a
firearm and remain ed in the presence of an armed perso n , and we overrule this portion of M ol ina ’ s second issue

. C. M OLINA H AD N OTICE O F H IS C OMMUNITY - S UPERVISION T ERMS
Fin ally, Moli na contends that , even if the evidence was suff icient to sho w that
he vi olated a ny of the se th ree term s of his community supervision , the y were unenforceable against him because he had no notice of or opportunity to object to
them. Molina arg ues that he n ever signed the “ Suppl em ent/Am endment to
Co nditions of Community Supervision High Risk ” document ( Supplement ) , which
contained the terms prohi biting him from being in the presence of a n armed person
and kno wn gang members. B e cau se of this, Molina con clud es that the magistrate
abused its discret ion when it found that he violated these terms. We overrule this argument because the record reflects that Molina did sign this document and, thus,
had adequate kn owledge of his community

- supervision terms
. A tr ial court has br o a d discretion to impo se rea sonabl e com munity supervision

terms. Tex. Code Crim. Pro c . Ann. art. 42A.301 (a). A defe ndant who is fairly
notified of the terms at a hearing at which he has an opportunity to obj ect forfeits any12

later comp lain t ab out those te rm s. Dansby v. State , 448 S.W.3d 441, 447 (Tex. Crim. App. 2014).
The record contains two copies of the Supplement document. One copy does
not contain Molina ’ s signatu re , but the other copy does. The copy bearing Molina ’ s
si gnatur e is dated April 12, 2 021

— the same day that the hearing was held at which
Molina enter ed his origin al plea of guilty and at which the trial court placed him on
deferred

- adjudic ation community supervision

. Th us, the record shows th at Molina

wa s fa irly noti fied of the terms of h is community supervision and given fair notice to object to th em
. Accordingly, we hold that Molina forfeit ed any complaint related to
these terms , and we overr ule the remainder of his second issue

. III. C ONC LUSION
Ha ving o ver ruled bot h of Molina ’s issu es , we affirm the trial court ’s judgment.

/s/ Brian Walker
B rian Walker Justice
Do Not Publis h Tex. R . App. P. 47.2(b)
Delivered : November 23, 2022