Gilbert Tapia Jr. v. State

Opinion

NUMBER 13-12-00334-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

GILBERT TAPIA JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the County Court at Law No. 4 of Nueces County, Texas.

MEMORANDUM OPINION ON REHEARING

Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion on Rehearing by Chief Justice Valdez By two issues, appellant Gilbert Tapia Jr. appeals the revocation of his probation

and adjudication of guilt for aggravated assault, a second-degree felony. See TEX. PENAL

CODE ANN. § 22.01(a)(1) (West 2011). In his first issue, appellant argues that the trial

court violated his due process and due course of law rights by revoking his probation

based on a violation of conditions of probation that occurred before the trial court continued his probation at a previous revocation hearing. In his second issue, appellant

contends that the trial court also violated his due process and due course of law rights

because it based its decision on a district policy instead of the particular evidence

presented in his case.

On January 9, 2014, we issued an opinion reversing the trial court’s revocation of

appellant’s probation. Tapia v. State, No. 13-12-00334-CR, 2014 WL 69563 (Tex. App.—

Corpus Christi Jan. 9, 2014, no. pet. h.). The Office of the State Prosecutor filed a motion

for rehearing, arguing: (1) the reasoning relied on by this Court from the Texas Supreme

Court case Rogers v. State is dicta and is of no precedential value; and (2) subsequent

case law, particularly Jenkins v. State, 641 S.W.2d 917, 919 (Tex. Crim. App. 1982), has

clarified that Rogers is inapplicable in the present circumstances because, here, the

revocation was based on a new hearing and newly alleged violations. We deny the

State’s motion for rehearing, withdraw our prior opinion and judgment, and substitute the

following opinion and accompanying judgment.

We sustain appellant’s first issue, reverse the trial court’s order revoking probation,

and remand for proceedings consistent with this opinion.

I. BACKGROUND

On April 18, 2002, appellant pleaded guilty to aggravated assault, a second-degree

felony. See id. The trial court deferred adjudication and placed appellant on community

supervision for a period of ten years. Appellant was sentenced to ten years’ imprisonment

on a separate offense. He was released from custody on the separate offense on

December 11, 2011, but remained on probation for the aggravated assault offense until

April 18, 2012.

2 A. First Revocation Proceeding

On March 6, 2012, the State filed a motion to revoke probation and adjudicate the

aggravated assault charge, alleging that appellant (1) failed to inform the probation officer

of his change of address when he was released from prison, (2) failed to report to his

probation officer, and (3) violated his curfew. On March 27, 2012, the trial court held a

hearing on the motion to revoke. At the hearing, the State orally informed the trial court

that it wished to file an amended motion to revoke and a motion for a continuance. The

State sought to amend its motion to revoke to add allegations that appellant violated his

probation by using drugs and alcohol and by associating with known felons. The trial

court then asked defense counsel what her position was on the State’s proposed motions.

Appellant’s trial counsel stated that she was opposed to a continuance and was ready to

go forward. The trial court stated:

Well, they informed me they are going to file a motion to amend, so it will be filed in a motion to revoke, so you’ll have another hearing before that date. If that’s what you want to do. I think it’s sort of a moot issue because it will delay, but there is no problem with that if that is how you want to proceed. I just want to make sure you understand that. Because if they file the new motion he will still be in custody on the new motion and that is the way you want to proceed with today, correct? It doesn’t bother me. I don’t care. I understand not being prepared for the new stuff.

Appellant’s trial counsel replied, “We’ll go forward today.”

The trial court then ordered the parties to proceed on the pending motion to revoke.

Appellant did not enter a plea. During the hearing, the State elicited testimony from a

probation officer who stated that he was aware of other probation violations committed by

appellant and planned on filing another motion to revoke.1 The trial court found that

1 The trial court overruled defense counsel’s objection to the probation officer’s testimony regarding other allegations of violations and his intent to file a new motion to revoke.

3 appellant violated the first two paragraphs of his probation agreement, as alleged in the

State’s original motion to revoke, but decided not to revoke. Instead, the trial court

continued appellant on probation and ordered him to serve the remaining twenty-one days

of his probation in jail as a modified condition of probation.

On March 23, 2012, four days prior to the hearing on the first motion to revoke, the

probation department completed a “Revocation Report” stating that it was a presentence

investigation report (PSI) “pursuant to Art. 42.12, Sec. 9. Code of Criminal Procedure.”

Page five of the report reflected that appellant last used alcohol and cocaine on March 8,

2012. On page six, under recommendations and remarks, the report stated, “The

defendant admitted to alcohol and cocaine use on March 8 2012. . . .”

B. Second Revocation Proceeding

On March 30, 2012, the State filed a new motion to revoke, raising allegations that

appellant violated his probation by using and possessing drugs and alcohol on March 8,

2012, prior to the first hearing on the original motion to revoke. At the second hearing,

appellant entered an open plea of “true” to the allegation. The court then proceeded to

the adjudication and punishment phase of the hearing.

During defense counsel’s closing argument, the following exchange occurred:

[Defense]: The Court considered all of that evidence back in March when you ordered a jail sanction. This evidence is nothing new, what he’s pled to is nothing new to—

[Trial Court]: It is new. . . . It is new. He would not plea to it at the time. So we proceeded on the—on the subsequent MTR.

[Defense]: Your honor, I believe that it was in the PSI at the last hearing.

[Trial Court]: It’s not—it’s not a violation, though.

4 [Defense]: But it’s a considered [sic] in disposition and the Court did have that evidence before, when it considered—

[Trial Court]: He may have believed it is so, but the court did not consider that. Intentionally.

[Defense]: It was before the court at the time, Your Honor, and we’re asking you to consider that and to allow his probation to expire.

[Trial Court]: Okay. Well, it will not be granted . . . .

The trial court then revoked appellant’s probation, adjudicated him guilty of the

underlying offense of aggravated assault, and sentenced him to five years’ imprisonment.

This appeal followed.

II. WAIVER

The State argues that appellant has waived his due process and due course of law

arguments on appeal because appellant’s trial attorney failed to make a proper objection.

Appellant counters that his trial attorney’s objections at trial, on the basis that the

allegations were not new and that they had been considered at the prior revocation

hearing, were sufficient to preserve his due process and due course of law argument on

appeal.

To preserve a complaint for appellate review, a party, at trial, must present and

obtain a ruling on the complaint that states “the grounds for the ruling that [it] sought from

the trial court with sufficient specificity to make the trial court aware of the complaint,

unless the specific grounds were apparent from the context.” TEX. R. APP. P. 33.1(a); see

Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008); Wilson v. State, 71 S.W.3d

346, 349 (Tex. Crim. App. 2002). “The purpose of requiring a specific objection in the

trial court is twofold: (1) to inform the trial judge of the basis of the objection and give him

5 the opportunity to rule on it; (2) to give opposing counsel the opportunity to respond to

the complaint.” Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009). “A

party need not spout ‘magic words' or recite a specific statute to preserve an issue as

long as the basis of his complaint is evident to the trial court.” Bryant v. State, 391 S.W.3d

86, 92 (Tex. Crim. App. 2012).

During the second revocation hearing, defense counsel argued, “The Court

considered all of that evidence back in March when you ordered a jail sanction. This

evidence is nothing new, what he’s pled to is nothing new to—.” Defense counsel further

informed the trial court that these allegations were in the PSI for the first motion to revoke

and were considered in the disposition of the court at the first revocation hearing. Defense

counsel then asked the trial court “to consider that and to allow [appellant’s] probation to

expire.” The trial court responded, “Okay. Well, it will not be granted . . . .” In Matheson

v. State, the court of criminal appeals considered whether the following objection

preserved a very similar argument: “[W]e understand the court has ex parte entered an

order revoking probation. We will make an objection to that on the basis that the State

has shown no further transgressions by Mr. Matheson and we want to have an objection

to the court's ruling and a ruling on that objection at this time.” 719 S.W.2d 204, 205 (Tex.

Crim. App. 1986). The court held that that the objection “implicated due process of law

through the use of the term ‘ex parte’ and the statement that no further evidence had been

produced by the State” and therefore preserved the issue for appellate review. Id.

Here, appellant’s defense counsel provided more explanation of his due process

argument than the lawyer in Matheson. See id. Defense counsel’s argument that the

allegation was considered at the previous revocation hearing was sufficiently specific to

6 make the trial court aware of appellant’s complaint. See TEX. R. APP. P. 33.1(a); Bryant,

391 S.W.3d 8 at 92; Resendez, 306 S.W.3d at 312. Accordingly, we hold that appellant

preserved his first issue for appeal. We therefore will proceed to the merits of appellant’s

due process argument on his first issue.

Regarding appellant’s second issue, when the trial court stated it would follow the

State’s recommendation because it was “district policy,” defense counsel responded “the

policy of what, Your Honor? I didn’t understand what you just said.” Defense counsel did

not object to the trial court’s statement or to the trial court’s judgment based on the

statement and therefore did not preserve this issue for our review. See TEX. R. APP. P.

33.1(a). Accordingly, we overrule appellant’s second issue.

III. DUE PROCESS

Appellant argues that the trial court violated his due process rights by revoking his

probation on the basis of violations that occurred on March 8, 2012, nineteen days before

the court’s previous decision on March 27, 2012 to continue his probation. See U.S.

CONST. amends. V, XIV; TEX. CONST. art. I, § 19. The State, in its brief, relies solely on

waiver and does not address appellant’s due process arguments.

Under the constitutions of the United States and Texas, no person shall be

deprived of liberty without due process and due course of law. U.S. CONST. amends. V,

XIV; TEX. CONST. art. I, § 19. Because a probationer has relied on at least an implicit

promise that probation will be revoked only if he fails to live up to the conditions of

probation, the liberty of a probationer is protected by the due process and due course of

law provisions of the constitutions. Gagnon v. Scarpelli, 411 U.S. 778, 784 (1973);

7 Rogers v. State, 640 S.W.2d 248, 25 (Tex. Crim. App. 1981) (op. on State’s first motion

for reh’g).

For his argument that the trial court violated his due process rights, appellant relies

on Rogers v. State. 640 S.W.2d at 248. In Rogers, the defendant pleaded true to the

State’s six allegations at an initial motion to revoke hearing. Id. at 249. The trial court

ruled, “I am going to reinstate you on probation; that is, for the time being. I am going to

continue this hearing to a specific date . . . . And then I am going to determine whether

or not you are serious about this thing.” Id. Subsequently, as promised, the court held

another hearing, which it deemed a “continuation” of the previous hearing. Id. At the

hearing, the State made no new allegations, and the trial court refused to allow any new

evidence to be presented. Id. The trial court revoked the defendant’s probation on the

basis of the same allegations that the defendant pleaded true to at the previous revocation

hearing. Id.

On appeal, the court of criminal appeals held that the defendant’s due process

rights had been violated.2 Id. at 251. The Court reasoned that after continuing appellant’s

2 On the State’s second motion for rehearing, the Rogers Court decided to affirm the trial court’s decision to revoke probation because appellant did not object to the revocation hearing on due process grounds and therefore did not preserve argument on appeal. Rogers v. State, 640 S.W.2d 248, 265 (Tex. Crim. App. 1981) (op. on State’s second motion for reh’g). In our view, the Rogers Court’s opinion on second motion for rehearing does not render the original opinion and the opinion on first rehearing dicta. See BLACK'S LAW DICTIONARY 409 (5th ed. 1979) (defining dictum as an observation or remark made concerning some rule, principle, or application of law suggested in a particular case, which observation or remark is not necessary to the determination of the case). While the court issued a new opinion on second rehearing, it never withdrew its previous opinion and opinion on rehearing. Moreover, even if the decision on rehearing was dicta, we find that the reasoning is, at least, persuasive judicial dictum. See Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (“Judicial dictum, a statement by the supreme court made very deliberately after mature consideration and for future guidance in the conduct of litigation, is ‘at least persuasive and should be followed unless found to be erroneous.’) (citing Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex. 1964)). This is supported by the fact that the court explicitly reaffirmed this reasoning at the outset of its opinion on the State’s second motion for rehearing, and because multiple courts of appeals have quoted its exact language. See Rogers, 640 S.W.2d at 265; see also, e.g. Matheson v. State, 694 S.W.2d 661, 662 (Tex. App.—Fort Worth 1985) (quoting the specific language at issue from Rogers) aff'd as reformed, 719 S.W.2d 204 (Tex. Crim. App.

8 probation at the first hearing, the trial court could not revoke appellant’s probation at the

second hearing “in the absence of allegations and proof of a subsequent violation.” Id. at

251. It further explained that in order to revoke probation after it had been continued at

a prior hearing, “there must be a determination that [the defendant] breached the

conditions after he was returned to probation (or that there is newly discovered evidence

of a previous violation which was not known at the time of the hearing).”3 Id. at 252 (op.

1986); Kopeski v. State, No. 09-10-00232-CR, 2011 WL 3505272, at *4 (Tex. App.—Beaumont Aug. 10, 2011, no pet.) (mem. op., not designated for publication) (same). 3 We note that the Rogers holding was not limited or overruled by the Texas Court of Criminal

Appeals in Jenkins v. State, decided just months after Rogers. See Jenkins v. State, 641 S.W.2d 917, 919 (Tex. Crim. App. 1982). In Jenkins, the trial court conducted a hearing on an initial motion to revoke probation, which alleged that the defendant had failed to report to his probation officer. Id. at 917. A notation on the docket sheet indicated that the court passed on ruling on the motion “to consider [the defendant’s] subsequent conduct.” Id. at 917–18. Later, the State filed a second motion to revoke, alleging that the defendant failed to report to his probation officer during the time period before and after the first hearing, and that, at the time the second motion was filed, he was delinquent on his probation supervisory fee. Id. at 918. At a second revocation hearing, the docket sheet reflected that the State presented evidence of the violations and the trial court revoked the defendant’s probation; however, the appellate record did not contain a transcript of the hearing. Id.

On appeal, the defendant argued that because the transcript from the second hearing was absent from the appellate record, the trial court must have improperly revoked probation either (1) based on the first revocation hearing after it had continued him on probation to observe his subsequent conduct, or (2) based on the second motion to revoke without hearing evidence. Id. The Texas Court of Criminal Appeals explained that it disagreed with both arguments raised by appellant because “the revocation of probation was based on the [second motion to revoke], and [(according to the docket sheet)] on evidence heard at the second revocation hearing on May 13, 1981, and not on first revocation hearing. Rogers v. State, supra, is not applicable under the facts of the instant case.” Id. Because there was no record of the hearing, the court of criminal appeals declined to render judgment in the case and remanded it to the Dallas Court of Appeals to obtain a copy of the transcript before making a final determination as to whether the defendant’s due process rights had been violated. Id at 919.

In Jenkins, while the second motion to revoke alleged some violations that occurred prior to the court’s initial decision to continue the defendant on probation, it also alleged violations that were committed after the first hearing, specifically appellant’s failure to report to probation after the first hearing and his delinquency on his supervisory fees at the time the second motion was filed. Id. at 917. Contrary to the defendant’s argument, the court of criminal appeals held that the trial court based its decision on evidence heard at the second hearing. Id. at 919. On appeal, the defendant did not raise the issue that, at the second hearing, the State relied on violations that were committed before the trial continued probation at the first hearing. And the Jenkins Court neither concluded that the trial court can rely on a previous violation if it was not considered at the hearing where probation was continued, nor limited the applicability of Rogers.

Further, in Jenkins, all of the violations alleged in the second motion that were committed before the first hearing were listed in the first motion and were before the court at the first hearing when it decided to continue appellant on probation; in other words, there were no previous violations that were newly

9 on State’s first motion for reh’g). The Rogers Court reasoned that “[i]t would be the

epitome of arbitrariness for a court first to conduct a hearing on alleged violations and

exercise its discretion to return the probationer to probation (whether by a ‘continuance

of the hearing’ or by a ‘continuance of the probation’), and then decide several months

later to exercise its discretion in the opposite fashion by revoking the probation without

any determination of a new violation.” Id.

In McQueen v. State, we addressed a slightly different situation in an appeal

premised on the Rogers holding. McQueen v. State, No. 13-11-00475-CR, 2012 WL

2860767, at *4 (Tex. App.—Corpus Christi July 12, 2012, no pet.) (mem. op., not

designated for publication). In McQueen, the State filed an initial motion to revoke

alleging that McQueen had used drugs and alcohol and had committed the offense of

deadly conduct, for which criminal charges were pending. Id at *1. McQueen pleaded

true to the drug and alcohol use allegations, and the trial court extended the term of his

probation based on those allegations. Id. Subsequently, in a separate trial, McQueen

was convicted for the deadly conduct offense. Id. The State then filed a new motion to

revoke based on the deadly conduct conviction; defense counsel did not object to the

alleged. Id. at 917. Therefore, if we were to construe Jenkins as holding that the trial court could consider these previous violations, it would not only overrule the holding that the State must rely on violations committed after probation was continued, but it would also conflict directly with the Rogers Court’s reasoning that violations must not be considered twice. See id. The Jenkins Court did not purport to entirely eradicate this reasoning from Rogers.

Moreover, in the only opinion citing Jenkins as authority, the Amarillo Court of Appeals cited the case in support of its finding that, “The appellate record reflects, however, that here the revocation of probation was based only on violations that occurred subsequent to the May 2002 modification order.” Payton v. State, No. 07-03-0395-CR, 2004 WL 1840030, at *1 n.1 (Tex. App.—Amarillo Aug. 16, 2004, no pet.) (mem. op., not designated for publication) (citing Jenkins, 641 S.W.2d at 918). The Amarillo court clearly interpreted Jenkins as reaffirming the due process requirement that the trial court must find the probationer committed an offense after his probation was continued. See id. We agree with this interpretation. Accordingly, Jenkins does not affect our analysis of this case.

10 revocation of probation based on a violation that had been alleged at the prior hearing;

and the trial court revoked McQueen’s probation. Id. We held that McQueen’s trial

counsel did not render ineffective assistance by failing to object, basing our decision on

the reasoning that “[t]hese are all violations that McQueen had not pleaded true to in the

previous hearing, thus Rogers is inapposite because the trial court did not rely on these

violations to make the modification.” Id. at *4.

We find the present circumstances distinguishable from McQueen. In McQueen,

while the State was clearly aware of the deadly conduct charge prior to its initial motion

to revoke, McQueen was not convicted on the charge until after the initial motion to

revoke. Id. The trial court in McQueen had a clear reason to wait to make a finding on

those allegations at the first hearing until the pending criminal charges were adjudicated;

when McQueen was found guilty of the deadly conduct charge, the State obtained new,

vital information regarding the offense. See id. The McQueen case therefore concerned

newly discovered evidence of a previous violation that was not known at the time of the

first hearing, and the violation changed from an alleged offense to a criminal conviction.

Therefore, the exception set out in Rogers applied. See id.; see also Rogers, 640 S.W.2d

at 252. Under those specific circumstances, where no finding was made on the allegation

at the first hearing and there was a subsequent adjudication of the offense, we determined

that McQueen’s trial counsel did not render ineffective assistance by failing to object.

McQueen, 2012 WL 2860767, at *4. Our holding in McQueen did not abrogate or limit

the Rogers due process rule requiring that the State allege a subsequent violation in a

new motion to revoke unless new evidence is discovered of a previous violation. See

Rogers, 640 S.W.2d at 252. In the present case, unlike McQueen, at the first hearing,

11 there were no pending charges, and at the second hearing, the State did not rely on a

subsequent finding on an alleged offense or any other newly discovered evidence.

McQueen, 2012 WL 2860767, at *4.

However, we also acknowledge that in finding a due process violation, the Rogers

court did not address the same set of facts presented here. See id. at 249. In Rogers,

the trial court revoked probation at the second hearing for the same allegations the

defendant pleaded true to at the first hearing, see id., whereas here, the drug use

allegation was never formally included in the original motion to revoke because the trial

court denied the State’s request to amend it at the first hearing. Regardless, we find that

the trial court violated appellant’s due process rights because it revoked probation for a

violation that occurred before appellant was continued on probation in the absence of any

newly discovered evidence of that violation, as is specifically proscribed by Rogers.4 See

id. at 252.

4 While much of the reasoning in Rogers expresses the concern that the violations alleged in the second motion to revoke had already been alleged in the first motion for revoke, the Rogers Court’s holding specifically requires a showing that a defendant “breached the conditions after he was returned to probation . . . .” 640 S.W.2d at 250 (Tex. Crim. App. 1981) (op. on State’s first motion for reh’g). This language is not susceptible to an interpretation that due process allows the State to allege a violation that was committed before the decision to continue probation if it is newly alleged; in fact, such an interpretation would be contrary to the express language and plain meaning of the holding. See id.

Moreover, the recognition that due process requires that the defendant “breached the conditions after he was returned to probation” within the opinion on rehearing is not dicta as it was the reason given for the conclusion in that opinion and therefore essential to the resolution of that opinion. This is supported by the Rogers Court’s opinion on second rehearing which restated this specific language, and by the opinions of multiple courts of appeals which cite Rogers for this precise rule of law. See id. at 263 (op. on State’s second motion for reh’g); see also, e.g., Matheson, 694 S.W.2d at 662 (quoting the specific language at issue from Rogers); Kopeski, 2011 WL 3505272, at *4 (same). In addition, while some subsequent cases have applied Rogers to circumstances where the trial court heard no evidence at all at the second hearing or where the State alleged the same violations that were considered at the first hearing, no case has limited, or in any way purported to limit, Rogers to those circumstances. See Wright v. State, 640 S.W.2d 265, 270 (Tex. Crim. App. 1982); Hise v. State, 640 S.W.2d 271, 272 (Tex. Crim. App. 1982).

12 When the trial court denied its motion to amend and motion for continuance, the

State had the option of moving to dismiss the motion to revoke.5 The State then could

have filed one motion alleging the violations listed in the initial motion along with the

allegations sought to be included in the amendment. Had the State followed this

procedure, appellant’s due process rights would not have been violated.6 The State,

however, chose to move forward with the adjudication of the original motion, which was

based on the allegations that appellant failed to report to his probation officer and violated

curfew. It did so despite the fact that it knew of appellant’s alleged drug use and made

the trial court aware of this conduct through its request to amend the motion to revoke,

the PSI that stated that appellant had admitted to drug and alcohol use,7 and the probation

officer’s testimony that he planned on filing a new motion to revoke based on violations

that occurred prior to the hearing.8 Due process, however, required the State to allege

5 We recognize that the State may have relied on the trial court’s instruction to proceed on the initial motion and file a new motion to revoke alleging the drug use allegations. However, as explained later in this opinion, the trial court’s suggestion that it would allow this procedure did not excuse the violation of appellant’s due process rights. Furthermore, we find that appellant’s trial counsel’s statement that appellant wished to “go forward today” did not invite error as she only indicated that she was opposed to a continuance and did not explicitly state, nor did she imply, that she consented to the filing of a new motion to revoke based on the drug use allegation.

6 See Winkle v. State, 718 S.W.2d 306, 308 (Tex. App.—Dallas 1986, no pet.); see also Lockett v. State, No. 11-10-00085-CR, 2012 WL 2989104, at *2 (Tex. App.—Eastland July 19, 2012, pet. ref'd) (mem. op., not designated for publication) (“The trial court did not hold a hearing on the earlier motions but, instead, dismissed the earlier motions at the State's request. Because the trial court did not take a plea, hear evidence, or hold hearings on the earlier motions, the State was free to file a later motion to revoke that included allegations from its earlier motions. Thus, the State did not waive its right to seek revocation based on the earlier allegations.”); Guerra v. State, No. 13-04-328-CR, 2005 WL 2878071, at *3 (Tex. App.— Corpus Christi Nov. 3, 2005, pet. ref'd) (mem. op., not designated for publication) (“Although the State filed a motion to revoke appellant's probation . . . no plea was taken, no evidence was heard, and no hearing was held. Because no formal hearings were held, the State was free to re-file the motion to revoke and to allege some or all of the offenses it had alleged previously, with or without the allegation of a new violation.”).

7 See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(d) (West Supp. 2013) (allowing the judge to

consider a PSI before assessing punishment in a felony case); id. art. 42.12, § 9(a) (West Supp. 2013) (requiring the judge in a felony case to direct a supervision officer to complete a PSI). 8 We note that the Rogers court’s proscription of revocations based on a prior allegation is not conditioned on the allegation being presented to the trial court at the previous hearing. Rogers v. State.

13 the violations it was aware of in its original motion to revoke and of which it apprised the

trial court, and it could not allege the prior violations in a later motion to revoke in the

absence of newly discovered evidence. See Rogers, 640 S.W.2d at 252.

In response to appellant’s objections, at the second hearing, that these allegations

were “nothing new” and were considered by the trial court at the previous hearing, the

trial court explained, “He may have believed it is so, but the court did not consider that.

Intentionally.” The trial court’s express justification for its procedure was explicitly rejected

in Rogers. See id. at 254. The Rogers court disapproved of what it called a “hear-no-

evil” approach, determining that a trial court may not continue a defendant on probation

at a hearing, then hold a subsequent hearing, state it intentionally chose not to adjudicate

the violations at the first hearing, and revoke probation without evidence of a subsequent

violation. See id. The trial court therefore could not retain its ability to revoke based on

the prior allegations by willfully avoiding ruling on them at the first hearing. See id.

Under these circumstances, the procedure employed by the State and the trial

court did not adequately protect appellant’s due process rights, and was therefore not

permitted according to the Rogers court’s explicit reasoning that due process requires “a

determination that [the defendant] breached the conditions after he was returned to

probation (or that there is newly discovered evidence of a previous violation which was

not known at the time of the hearing).” Id.; see also, eg., Matheson v. State, 694 S.W.2d

661, 662 (Tex. App.—Fort Worth 1985) aff'd as reformed, 719 S.W.2d 204 (Tex. Crim.

640 S.W.2d 248, 252 (Tex. Crim. App. 1981). However, the fact that the trial court was made aware of the conduct in this case highlights the potential harm to defendants’ due process rights in these cases and underscores that this application of the rule in Rogers is more than a mere procedural barrier for the State. Moreover, it establishes that the State was aware of the alleged violation prior to the motion to revoke and that they were not “newly discovered” violations when the trial court ruled on them at the second hearing.

14 App. 1986) (quoting this specific language from Rogers); Kopeski v. State, No. 09-10-

00232-CR, 2011 WL 3505272, at *4 (Tex. App.—Beaumont Aug. 10, 2011, no pet.)

(same). Accordingly, regardless of whether the allegations were formally made, or in fact

made at all, at the prior hearing, the trial court violated appellant’s due process rights

when, after continuing probation at the first hearing, it revoked appellant’s probation at

the second hearing in the absence of allegations of a subsequent violation or newly

discovered evidence of a prior violation. See id.

Appellant’s first issue is sustained.

IV. CONCLUSION

We reverse the trial court’s order revoking probation and remand for proceedings

consistent with this opinion.

___________________ ROGELIO VALDEZ Chief Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 1st day of May, 2014.