Dinesh Kumar Shah v. State

Opinion issued November 21, 2012.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-01138-CR

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DINESH KUMAR SHAH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Case No. 1040406

OPINION

Dinesh Kumar Shah appeals the trial court’s judgment revoking his

community supervision, adjudging him guilty of the felony offense of injury to a

child,1 and sentencing him to ten years’ confinement. In three issues, Shah

contends that (1) the evidence was insufficient to establish a violation of the terms

of his community supervision, (2) the trial court violated his constitutional rights

by considering hearsay evidence, and (3) the trial court abused its discretion by

failing to grant a continuance of the revocation hearing. We affirm.

Background

A grand jury indicted Shah for the felony offense of injury to a child after he

struck a child younger than fifteen years of age with his hand or pulled the child’s

hair or both. Pursuant to his guilty plea, Shah was granted deferred adjudication

and placed on community supervision. The terms of his community supervision

required Shah to, among other things, refrain from committing an offense against

the laws of Texas, maintain full-time employment and provide written verification

of such employment, notify his community supervision officer of any change of

residence within forty-eight hours, perform 500 hours community service at a rate

of no less than sixteen hours per month, submit to drug and alcohol testing, and

undergo a “psychological/psychiatric” evaluation. Approximately three and one

half years later, the State moved to adjudicate Shah’s guilt, alleging twelve

violations of these terms. The State abandoned four of the allegations before the

1

See TEX. PENAL CODE ANN. § 22.04 (West Supp. 2012).

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hearing on its motion to adjudicate, and Shah pleaded “not true” to the remaining

eight allegations.

Before the State called its first witness, Shah moved for a continuance of the

revocation hearing due to pain and drowsiness he was experiencing as a result of a

medical procedure performed four days earlier. In support of his request, Shah

offered a note from his doctor indicating a six-week recovery period. However, the

trial court denied Shah’s motion because the medical procedure Shah endured was

only a “day surgery,” Shah was not hospitalized, and the State’s motion to

adjudicate guilt had been pending for more than one year. Toward the end of the

first day of testimony, Shah fell asleep in court. His counsel renewed the

continuance request and stated that the hydrocodone Shah used to manage pain

was causing him to “doz[e] off.” The trial court recessed the proceedings for the

day without hearing further testimony in order to accommodate Shah.

When the parties convened the next morning, Shah’s counsel requested that

the revocation hearing be delayed further to give Shah more time to recover. The

trial court granted the request, in part, and excused the parties for two days. The

trial court ordered Shah not to take any pain medication that would cause

drowsiness once the hearing resumed. When the testimony continued two days

later, Shah did not immediately reurge his motion for continuance; instead, after a

full day of testimony and only shortly before the evening recess, Shah again

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expressed that he was in pain and needed additional time to recover. The trial court

refused to delay the hearing any further.

At the start of the third day of testimony, Shah offered a note from a doctor

(who was not his surgeon) who had examined Shah at home and concluded that,

“[d]ue to ongoing pain and the use of narcotic medications, [ ] Shah should not be

involved in making any serious decisions that could affect his or other’s well-

being.” The trial court observed for the record that Shah appeared alert, actively

participated, took notes, and conferred with counsel during the previous day’s

proceedings. Although the trial court ultimately denied Shah’s renewed request for

a continuance, the trial court agreed to work less intensely for the duration of the

hearing. Later that day, one of the prosecutors informed the trial court that she had

spoken with Shah’s doctor, who stated that Shah could fully participate in the

hearing so long as he did not take narcotic mediations. On the final day of

testimony, Shah once more moved for a continuance, and the trial court again

denied the motion.

After hearing testimony from six witnesses and considering all the evidence,

the trial court found six of the alleged violations of Shah’s community supervision

terms true. Specifically, the trial court found that Shah:

1. twice committed an act that would constitute the offense of

assault by causing bodily injury to J. Davidsson, a member of

Shah’s household;

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2. on eighteen occasions, failed to present his community

supervision officer with written verification of employment;

3. permitted three months to pass without notifying his

community supervision officer of a new residence despite

having been ordered to do so within forty-eight hours of

moving;

4. failed to perform community service at the court-ordered rate of

no less than sixteen hours per month;

5. failed to submit to an alcohol and drug evaluation by the court-

ordered date; and

6. failed to submit to “psychological/psychiatric” evaluation by

the court-ordered date.

The trial court entered a judgment adjudicating guilty pursuant to its findings, and

Shah timely appealed.

Sufficiency of the Evidence

In his first issue, Shah argues that the trial court abused its discretion in

revoking his community supervision because the State presented insufficient

evidence to support the trial court’s findings that Shah violated the terms of his

community supervision.

Our review of the trial court’s order revoking community supervision is

limited to determining whether the trial court abused its discretion. See Rickels v.

State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); see also Canseco v. State, 199

S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). When a trial

court finds several violations of community-supervision conditions, we will affirm

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the order revoking community supervision if the proof of any single allegation is

sufficient. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.]

1980); Canseco, 199 S.W.3d at 439; Greer v. State, 999 S.W.2d 484, 486 (Tex.

App.—Houston [14th Dist.] 1999, pet. ref’d).

In the proceeding to revoke community supervision, the burden of proof was

on the State to show by a preponderance of the evidence that Shah violated a

condition of community supervision as alleged in the motion to revoke. See Cobb

v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Cardona v. State, 665

S.W.2d 492, 493 (Tex. Crim. App. 1984). “Preponderance of the evidence” means

the greater weight and degree of credible evidence. See Rickels, 202 S.W.3d at

763−64. If the greater weight of credible evidence in this case created a reasonable

belief that Shah violated a condition of community supervision, the burden was

met. See In re T.R.S., 115 S.W.3d 318, 321 (Tex. App.—Texarkana 2003, no pet.)

(citing Martin v. State, 623 S.W.2d 391, 393 n.5 (Tex. Crim. App. [Panel Op.]

1981)). If the State failed to meet its burden, it was an abuse of discretion for the

trial court to issue a revocation order. Cardona, 665 S.W.2d at 493−94.

We view the evidence in the light most favorable to the trial court’s ruling.

See Johnson v. State, No. 07-11-00480-CR, 2012 WL 5392095, at *1 (Tex. App.—

Amarillo Nov. 5 2012, no pet. h.) (citing Cardona, 665 S.W.2d at 493). The trial

court was the sole judge of the facts, the credibility of the witnesses, and the

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weight to be given to the witnesses’ testimony. Canseco, 199 S.W.3d at 439;

Johnson v. State, 943 S.W.2d 83, 85 (Tex. App.―Houston [1st Dist.] 1997, no

writ). Reconciliation of conflicts and contradictions in the evidence was within the

province of the trial court, and such conflicts will not call for reversal if there was

enough credible testimony to support the conviction. See Cooks v. State, 844

S.W.2d 697, 708 (Tex. Crim. App. 1992).

We first consider whether there was sufficient evidence that Shah violated

the condition of his community supervision prohibiting him from violating any

laws of the State of Texas. The State alleged that Shah violated this condition by

committing the offense of assault against J. Davidsson. Shah assaulted Davidsson

if he intentionally, knowingly, or recklessly caused Davidsson bodily injury. See

TEX. PENAL CODE ANN. § 22.01(a)(1) (West 2011). To establish the elements of

assault, the State presented only Davidsson’s testimony. Davidsson, once a close

friend and roommate of Shah’s, explained how his relationship with Shah grew

increasingly tense over time. In one argument that occurred during the period of

Shah’s community supervision, Shah threatened to “beat [Davidsson] to the

ground,” head-butted Davidsson “extremely hard,” repeatedly slapped Davidsson

in the face, and pushed Davidsson into a wall. Davidsson further testified that

being head-butted by Shah caused the bridge of Davidsson’s nose to bleed.

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Shah argues that Davidsson’s testimony alone was insufficient to establish

an assault because (1) it did not establish that Davidsson suffered a “bodily injury,”

(2) there were no “photographs, no eye-witnesses, no audio or video recordings,

and certainly no forensic evidence that supported Davidsson’s claims” and (3)

other evidence suggested that, contrary to Davidsson’s testimony, the men had a

healthy relationship. With respect to the third point, Shah specifically references

certain notes and messages in which Davidsson expressed the fondness he felt for

Shah and his appreciation for Shah’s friendship. These notes and messages were

included inside of a birthday card given by Davidsson to Shah, two books gifted by

Davidsson to Shah, and a letter drafted by Davidsson for Shah.

We reject Shah’s complaints about the sufficiency of the State’s evidence.

First, the Penal Code defines “bodily injury” to mean “physical pain, illness, or any

impairment of physical condition.” TEX. PENAL CODE ANN. § 1.07(8) (West Supp.

2012). Under this broad definition, “[a]ny physical pain, however minor, will

suffice to establish bodily injury.” Garcia v. State, 367 S.W.3d 683, 688 (Tex.

Crim. App. 2012); see also Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App.

2009); Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). Because

“people of common intelligence understand pain and some of [its] natural causes,”

a factfinder may infer that a victim actually felt or suffered physical pain. Garcia,

367 S.W.3d at 688. Here, Davidsson did not expressly state that he experienced

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pain when Shah head-butted him, but he did testify that he bled from the bridge of

his nose. The trial court could reasonably infer that a lesion on the bridge of

Davidsson’s nose would cause physical pain. Thus, Davidsson’s testimony was

sufficient to establish bodily injury.

Moreover, the State was not required to offer the testimony of any additional

eyewitness or other audio, visual, or forensic evidence to establish the occurrence

of the assault. “The testimony of a single witness is sufficient to support a felony

conviction.” Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.]

2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006); see Davis v. State, 177

S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (affirming

conviction for aggravated robbery when central issue involved a single witness’s

credibility); Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971)

(upholding conviction for attempted murder where only one witness saw appellant

with gun). And to the extent Shah seeks to have this Court re-weigh Davidsson’s

in-court testimony against the written statements made by him in a birthday card,

inside the cover of two books, or in a letter, the Court will not oblige. The trial

court, as the sole trier of fact, determined Davidsson’s credibility and the weight to

be given his testimony. See Canseco, 199 S.W.3d at 439.

We hold instead that the trial court could reasonably find that the greater

weight of the credible evidence was that Shah violated at least one condition of

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community supervision by assaulting Davidsson. Because this alone is sufficient to

support the trial court’s order revoking Shah’s community supervision, we do not

consider whether the State presented sufficient evidence of the other alleged

violations. The trial court did not abuse its discretion in revoking Shah’s

community supervision, adjudging him guilty, and assessing punishment, and we

overrule Shah’s first issue. See Rickels, 202 S.W.3d at 763−64.

Constitutional Challenges

The State presented testimony from two community supervision officers to

establish violations of the community supervision terms requiring Shah to submit

to drug, alcohol, and mental health screening and to perform community service at

a certain rate. In his second issue, Shah argues that the trial court erred by

considering and weighing the community supervision officers’ testimony because

the testimony was based on statements from counseling service providers and

information recorded in Shah’s community supervision file, not on the community

supervision officers’ personal knowledge or personal observations. According to

Shah, the trial court’s reliance on such hearsay violated his constitutional

confrontation and due process rights.

Shah did not object to the admission of the community supervision officers’

testimony regarding statements from counseling service providers or information

contained in Shah’s community supervision file. To preserve error for appellate

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review, however, Shah was required to make a timely request, objection, or motion

in the trial court that stated the grounds for the ruling sought with sufficient

specificity to make the trial court aware of his complaint. See TEX. R. APP. P.

33.1(a)(1)(A); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002)

(observing that failure to object in timely and specific manner forfeits complaints

about admissibility of evidence). This is true even though the error of which Shah

now complains may concern his constitutional rights. See Saldano, 70 S.W.3d at

889; see also Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993)

(holding that defendant may forfeit constitutional errors at trial by failing to

properly object), overruled in part on other grounds, Cain v. State, 947 S.W.2d

262, 265 (Tex. Crim. App. 1999); Briggs v. State, 789 S.W.2d 918, 924 (Tex.

Crim. App. 1990) (holding that defendant waives right to confrontation and due

process by failing to object to admission of evidence at trial). Thus, because Shah

did not object to the community supervision officers’ testimony, we hold that Shah

has not preserved his complaint that the admission of their testimony violates his

confrontation and due process rights, and we overrule Shah’s second issue. See

Marin, 851 S.W.2d at 280 (“[A]n important consequence of a party’s failure to

petition enforcement of his forfeitable rights in the trial court is that no error

attends failure to enforce them and none is presented for review on appeal.”).

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Motion for Continuance

In his third issue, Shah argues that the trial court erred by refusing to grant a

continuance of the revocation hearing so that Shah could recover from a medical

procedure. Shah asserts that the pain and drowsiness he experienced as a result of

the medical procedure incapacitated him and rendered him unable to assist counsel

with the defense of the State’s motion to adjudicate.

We review a trial court’s denial of a motion for continuance for an abuse of

discretion. See Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996);

Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). An abuse of

discretion occurs when the trial court acts arbitrarily or unreasonably, without

reference to guiding rules or principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex.

Crim. App. 1993). To establish that the trial court abused its discretion by denying

the motion for continuance, Shah must show specific prejudice to his defense. See

Janecka, 937 S.W.2d at 468; see also Chance v. State, 528 S.W.2d 605, 607

(considering prejudice to defense resulting from defendant’s illness during trial).2

Examples of specific prejudice include unfair surprise, an inability to effectively

cross-examine the State’s witnesses, and the inability to elicit crucial testimony

from potential witnesses. See Janecka, 937 S.W.2d at 468.

2

See also Birmingham v. State, No. 11-97-00345-CR, 1999 WL 33743919, at *1

(Tex. App.—Eastland 1999, no pet.) (not designated for publication) (determining

that prejudice from denial of motion for continuance based on defendant’s

physical condition must be shown).

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Here, Shah only generally asserts that his defense of the State’s motion to

adjudicate was prejudiced by his inability to stay awake during the revocation

hearing. Neither his briefing in this Court nor the record itself, however,

establishes any specific prejudice from Shah’s physical condition. Although Shah

asserts that he “dozed off” throughout the revocation hearing, the record

memorializes only one specific instance occurring toward the end of the first day

of testimony. There, after Shah’s counsel observed that he needed to wake up

Shah, the trial court recessed the proceeding without hearing any further evidence.

And the trial court delayed the hearing for the next two days. Once the hearing

resumed, Shah continued to request additional time at either the beginning or the

end of each of the remaining days of testimony, but the record does not indicate

any further instances in which Shah fell asleep. To the contrary, the record reflects

the trial court’s observations that Shah appeared alert, actively participated, and

conferred with his counsel during the proceedings.

Shah does not allege that his counsel was unable to effectively cross-

examine any of the State’s witnesses; rather, Shah’s counsel developed and argued

relevant issues, made objections, and called one witness for the defense. Shah does

not explain what additional evidence could have been offered in his defense had he

been more alert during the hearing or assert that he himself would have testified.

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Shah’s bare assertion that his defense was prejudiced because he dozed off

during trial does not alone establish prejudice. We conclude that Shah failed to

show that his physical condition specifically affected his ability to assist his

attorney. Absent a showing of specific prejudice, we cannot hold that the trial court

abused its discretion in denying Shah’s requests that the revocation hearing be

postponed. Accordingly, we overrule Shah’s third issue.

Conclusion

Having overruled each of Shah’s issues on appeal, we affirm the judgment

of the trial court.

Harvey Brown

Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Publish. TEX. R. APP. P. 47.2(b).

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