Mary C. Walker v. Dr. Charles N. Thornton, Collom and Carney Clinic Association Sisters of Charity of the Incarnate Word, Houston, Texas, D/B/A St. Michael Health Care Presbyterian Hospital of Dallas

• Court: Court of Appeals of Texas
• Decided: January 23, 2002
• Docket: 06-01-00037-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-01-00037-CV ______________________________

MARY C. WALKER, Appellant

V.

DR. CHARLES N. THORNTON; COLLOM AND CARNEY CLINIC ASSOCIATION; SISTERS OF CHARITY OF THE INCARNATE WORD, HOUSTON, TEXAS, d/b/a ST. MICHAEL HEALTH CARE; PRESBYTERIAN HOSPITAL OF DALLAS, Appellees

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On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 00C0441-202

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Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Ross

O P I N I O N

Mary Walker appeals from a judgment dismissing her malpractice lawsuit against various doctors and health care institutions. According to her allegations, she underwent laser cataract surgery, had complications resulting in a massive infection, and lost vision in her left eye. Walker was represented by counsel at trial. The judgment states the trial court dismissed her lawsuit because counsel did not file an expert report as required by the Texas Medical Liability and Insurance Improvement Act, Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d) (Vernon Supp. 2002). The trial court found that a motion to extend time to file an expert report was without merit because counsel failed to show that the lack of the report was due to accident or mistake.

A brief prepared by Walker's trial counsel was filed in this Court on May 17, 2001. Walker informed this Court, after the brief had been filed, that she had discharged her trial counsel before the brief's preparation and that she strongly objected to its filing. Accordingly, that brief will not be considered in our resolution of this appeal.

In her brief, prepared pro se, Walker complains that her expert report was not filed as required by Article 4590i because her attorney, Woodson Walker, ⁽¹⁾ was incompetent and because she was misled by his repeated statements that her claim was in the process of being settled. She alleges this constitutes a violation of the applicable disciplinary rules. Her second issue reads as follows:

To prevent Plain Error or Manifest of Injustice because Mary C. Walker, "Who is a good USA Citizen", was done wrong by professional's Misconduct that this Court of Appeals has the power to stop and should stop for the sake of our United States of America People.

Walker has, at best, only indirectly raised any complaint alleging error by the trial court. Her position and the contents of her arguments have created a dilemma for this Court, because the right to appeal is by definition only from a final judgment rendered by a trial court, ⁽²⁾ and an appeal may be successfully maintained only if the appellant can show the trial court committed error justifying reversal. ⁽³⁾

We have before us a judgment about which the appellant has not complained. Further, she has not directly argued or set out any argument supported by legal authority to show any error by the trial court. Instead, she argues in her brief that trial counsel was incompetent and that, because of his incompetence, he failed to timely obtain and file an expert report-a document that is absolutely critical to the pursuit of this cause of action.

Walker asks this Court to provide affirmative relief by reinstating her lawsuit based on incompetence of counsel. This Court cannot provide that relief unless we find the trial court committed error. Her claim that counsel was incompetent is not one that would justify reversal, but is a claim that might be pursued in a separate proceeding.

Texas Rule of Appellate Procedure 43.3(b) permits this Court to remand for a new trial in the interests of justice. See Tex. R. App. P. 43.3(b); Texas Parks & Wildlife Dep't v. Wilson, 991 S.W.2d 93, 97 n.9 (Tex. App.-Austin), pet. denied, 8 S.W.3d 634 (Tex. 1999) (per curiam); 6 McDonald & Carlson, Tex. Civ. Prac. § 33.14 (1998). Similarly, we are to liberally construe briefing rules in the interests of justice. Tex. R. App. P. 38.1(e), 38.9; Shull v. United Parcel Serv., 4 S.W.3d 46, 51 (Tex. App.-San Antonio 1999, pet. denied), cert. denied, 531 U.S. 835, 121 S.Ct. 94, 148 L.Ed.2d 53 (2000).

We can determine from Walker's brief that her general complaint lies in the dismissal of her lawsuit because the expert opinion was not timely filed, which necessarily implicates the trial court's refusal to grant additional time in which to obtain such an opinion. On our own initiative, and as authorized by Tex. R. App. P. 2, we find good cause to suspend the operation of the briefing rules in this case because justice requires this Court to review the underlying basis for the trial court's decision to dismiss. That issue was raised marginally by Walker's brief as the basis for her complaint against her counsel, and the issue was adequately briefed by the appellees in their response. Accordingly, in the interests of justice, we will review the underlying allegation.

Walker's suit was dismissed by the trial court pursuant to motions filed by the appellees seeking dismissal because no expert report had been filed within the 180-day time period set out in Article 4590i, no motion seeking additional time had been filed during the thirty-day grace period (which had long since expired), and also arguing there was no good reason for the delay which would permit the court to implement the final catchall extension provision of Section 13.01(g). Tex. Civ. Prac. & Rem. Code Ann. art. 4590i (Vernon Supp. 2002).

The lawsuit was filed on March 16, 2000. The 180-day time period for the expert report expired on September 12, 2000. Motions to dismiss for failure to comply with the expert report requirement were filed by the various defendants on November 6, 7, and 22, 2000, and on January 19, 2001. However, Walker's counsel took no action until January 12, 2001, when he filed a response and a motion to extend time to file an expert report. A hearing took place ten days later, on January 22, 2001. Clearly, the thirty-day grace period authorized in Section 13.01(f) had expired and that section cannot apply to this case.

Our review is thus focused on the request for additional time to file the expert report, which may be granted in some circumstances under Section 13.01(g).

Section 13.01(g) provides for a thirty-day grace period, as follows:

Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection. A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section.

Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g).

Section 13.01(g) contains no requirement that the extension be sought before the expiration of 180 days. It requires only that the request for an extension be made "before any hearing" on a motion to dismiss under Section 13.01(e). Pfeiffer v. Jacobs, 29 S.W.3d 193, 197 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). Although the time delay in this case was considerable, Walker's motion for an extension was timely under Section 13.01(g) because it was filed before the hearing on the defendant's motion to dismiss. Accordingly, the trial court had discretion to consider Walker's motion.

This Court addressed a similar situation in Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d 398 (Tex. App.-Texarkana 1999, pet. denied). In reviewing this section of the statute, we recognized that it does not define what constitutes intentional acts or conscious indifference. We then adopted the construction of those terms as formulated by other courts and applied them in a manner similar to their application in a default judgment context. ⁽⁴⁾ If Walker's failure to file the expert opinion was not intentional or the result of conscious indifference, the trial court abused its discretion in denying the motion to extend time.

In determining whether there was intentional disregard or conscious indifference, we look to the knowledge and acts of Walker. Id. at 403. Proof of accident or mistake negates intent or conscious indifference. McClure v. Landis, 959 S.W.2d 679, 681 (Tex. App.-Austin 1997, pet. denied). Some excuse, but not necessarily a good excuse, is enough to show a lack of intentional disregard or conscious indifference. Conscious indifference requires more than negligence. Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995).

At the hearing on the motion to dismiss, Walker's counsel introduced evidence through affidavits and testimony. Counsel's affidavit states he had consulted with a physician (Dr. Roger Harper) at the University of Arkansas for Medical Sciences who had offered a professional opinion that negligence occurred in this case, but after suit was filed, Harper refused to appear as a witness (after discovering that the doctor in question was a former student). Counsel stated that he had attempted to convince Harper to change his mind, to no avail; that he had attempted to obtain a second medical opinion from Dr. John F. Kozlovsky; and that he was "confident that an expert opinion is imminent."

The record shows the following timetable:

Sept. 21, 1999 Records sent to Dr. Harper

March 16, 2000 Suit filed

May 7, 2000 Responsive letter from Dr. Kozlovsky, acknowledging receipt of the file and setting out his fees

Sept. 12, 2000 The 180-day time period for the expert report expired

Oct. 12, 2000 Thirty-day grace period authorized in Section 13.01(f) expired

Nov. 6, 2000 Filing of first motion to dismiss for failure to file expert report

Letter to Dr. Kozlovsky thanking him for his May letters, enclosing money, and asking him to call promptly

Nov. 7, 2000 Filing of second motion to dismiss for failure to file expert report

Nov. 8, 2000 Letter from Dr. Laurence R. Dry (Tennessee M.D.) acknowledging receipt of the medical records and requiring a $500.00 review fee in advance

Nov. 9, 2000 Letter to Dr. Harper stating he was unsuccessful in obtaining a written report from Dr. Kozlovsky and asking for his help

Nov. 22, 2000 Filing of third motion to dismiss for failure to file expert report

Nov. 28, 2000 Letter to Dr. Dry enclosing a check to replace the check lost by Airborne Express

Jan. 12, 2001 Filing of plaintiff's response and motion to extend time

Jan. 19, 2001 Filing of fourth motion to dismiss for failure to file expert report

Jan. 22, 2001 Hearing on motions to dismiss

Counsel also stated in his response he had assigned the case to a new associate who was unfamiliar with Texas trial practice and who has since resigned from the firm. At the hearing, counsel stated he had an oral opinion by Dr. Harper before the suit was filed. Counsel took the position this record showed he had been "feverishly" attempting to obtain a written expert report up to the date of the hearing.

The question is whether the trial court abused its discretion by denying the motion seeking additional time. According to the plain language of the statute, an extension of time must be granted if the requirements of Section 13.01(g) are met and if the verified motion sets forth facts which, if true, would negate intentional or consciously indifferent conduct. See Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). Some excuse, but not necessarily a good excuse, is enough to warrant an extension of time to file the expert report, so long as the act or omission causing the failure to file the report was, in fact, accidental. Horsley-Layman v. Angeles, 968 S.W.2d 533, 536 (Tex. App.-Texarkana 1998, no pet.); Jackson v. Mares, 802 S.W.2d 48, 50 (Tex. App.-Corpus Christi 1990, writ denied).

The Houston Court of Appeals in Pfeiffer set out the standards for review as follows.

Once it is determined that a motion for an extension under Section 13.01(g) is timely, the court must decide whether the claimant's failure to meet the deadline is excused by accident or mistake, and was not intentional or the result of conscious indifference. The plaintiff, as movant, has the burden "to show some excuse of accident or mistake to establish that she did not act intentionally or with conscious indifference." Schorp, 5 S.W.3d at 732 (citing McClure v. Landis, 959 S.W.2d 679, 681 (Tex. App.-Austin 1997, pet. denied)); see also Horsley-Layman, 968 S.W.2d at 536 (noting that the burden of production "clearly" rests with the party moving for the extension). Courts interpreting Section 13.01(g) have held that "[s]ome excuse, but not necessarily a good excuse, is enough to warrant an extension of time to file the expert report, so long as the act or omission causing the failure to file the report was, in fact, accidental." Nguyen v. Kim, 3 S.W.3d 146, 152 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (citing Horsley-Layman, 968 S.W.2d at 536) (emphasis added); see also Wood, 988 S.W.2d at 832 (citations omitted). Generally, an accident or mistake in this context is characterized by inadequate knowledge of the facts or an unexpected happening that precludes compliance. See Nguyen, 3 S.W.3d at 152. For example, "calendaring errors" have been held to establish accident or mistake. See id.; see also Presbyterian Healthcare Sys. v. Afangideh, 993 S.W.2d 319, 323 (Tex. App.-Eastland 1999, pet. denied) (citations omitted). By contrast, conscious indifference means "failing to take some action which would seem indicated to a person of reasonable sensibilities under similar circumstances." Id. (citing Prince v. Prince, 912 S.W.2d 367, 370 (Tex. App.-Houston [14th Dist.] 1995, no writ)). In determining whether there was intentional or conscious indifference, the court looks to the knowledge and acts of the claimant or his attorney. See Horsley-Layman, 968 S.W.2d at 536 (citing Strackbein v. Prewitt, 671 S.W.2d 37, 39 (Tex. 1984)).

Pfeiffer, 29 S.W.3d at 198.

The court concluded the plaintiff did not demonstrate that the failure to comply was excused by either accident or mistake, finding she intentionally failed to file the report because her physician required a further examination.

Although Pfeiffer complains that her physician "required seeing Appellant for the six (6) month period prior to March 12, 1999," she presents no excuse which shows that her failure to comply with Section 13.01 "was, in fact, accidental." Because Pfeiffer did not meet her burden to show that her failure to timely file an expert report was the result of an accident or mistake, as required to obtain an extension of time under Section 13.01(g), the trial court did not abuse its discretion by granting Dr. Jacobs's motion to dismiss her case with prejudice.

Id. at 198-99 (citation omitted).

The present case is unlike the situation faced by this Court in Roberts, because in that case counsel did attempt to file a report, but what he attempted to file was not the correct document. We concluded that counsel's failure to read the statute did not demonstrate conscious indifference, only negligence. Roberts, 988 S.W.2d at 403, citing Smith, 913 S.W.2d at 468. We also found that giving the file to an inexperienced associate was not conscious indifference in light of counsel's statements he believed (incorrectly) the expert report had been filed.

The question is whether the case now before this Court contains facts which would support the Court's conclusion that conscious indifference was shown to exist.

It does. Counsel did nothing for a four-month period, despite knowing he had no expert report in hand. His failure to take any affirmative action from May, through the date on which the report was due, and until a motion to dismiss was filed in November does not reflect mistake or accident. Even after the 180 days for filing the report expired on September 12, 2000, counsel made no effort to obtain the report until November 6, 2000, the date the first motion to dismiss was filed. There is no suggestion that counsel was unaware of the necessity (and we do not suggest ignorance is a defense), and the only excuse was the doctors had not yet provided counsel with an opinion. This closely parallels the facts in Pfeiffer.

We conclude that, based on the evidence before it, the trial court did not abuse its discretion by dismissing Walker's lawsuit in accordance with Article 4590i, § 13.01(e).

Because of our disposition of this ground of error, we need not reach the alternative arguments raised by appellees Charles N. Thornton and Presbyterian Hospital of Dallas. We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: January 3, 2002

Date Decided: January 23, 2002

Publish

1. The plaintiff in this case is Mary Walker. Her trial counsel's name is Woodson Walker. The attorney will hereafter be referred to as "counsel" to avoid confusion.

2. Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (Vernon 1997).

3. Tex. R. App. P. 44.1.

4. Citing Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939); Horsley-Layman v. Angeles, 968 S.W.2d 533, 536 (Tex. App.-Texarkana 1998, no pet.); McClure v. Landis, 959 S.W.2d 679, 681 (Tex. App.-Austin 1997, pet. denied).

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-09-00200-CR

                            DANIEL DONGRELE LINDLEY, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                         On Appeal from the 8th Judicial District Court

                                                           Hopkins County, Texas

                                                          Trial Court No. 0819779

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                                          Opinion by Justice Carter

                                                                   O P I N I O N

            Just a day after Daniel Dongrele Lindley was placed on deferred adjudication community supervision for two cases of attempted capital murder, the State moved to adjudicate Lindley’s guilt and have his supervision revoked.  The trial court found Lindley was in violation of the terms and conditions of his supervision, adjudicated Lindley, and sentenced him to forty-five years in prison for each case.^[1]  We affirm the trial court’s rulings and sentences.  We find no error in the State’s failure to consent in writing to Lindley’s waiver of a jury trial; the evidence is sufficient to support the adjudication; and Lindley has not demonstrated any due process violation.  

I.          State’s Failure to Waive Jury Trial

            Lindley claims the trial court’s judgment is void because there is nothing in the record showing the State consented, in writing, to Lindley’s waiver of a jury trial.^[2]  Lindley failed to timely appeal the order placing him on community supervision.^[3]  An appeal from an order revoking community supervision is limited to the propriety of the revocation.  Corley v. State, 782 S.W.2d 859, 861 n.2 (Tex. Crim. App. 1989); Hoskins v. State, 425 S.W.2d 825, 828 (Tex. Crim. App. 1967); Holiday v. State, 983 S.W.2d 326, 327–28 (Tex. App.––Houston [1st Dist.] 1998, pet. ref’d) (op. on reh’g).  The right to raise issues arising from the original plea proceeding is available only in appeals taken when deferred adjudication community supervision is first imposed.  Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999).

            Lindley is correct that if the judgment placing him on deferred adjudication community supervision was void, he could raise that jurisdictional shortcoming in his appeal from the order adjudicating him.  Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001).  A judgment of conviction is void in very rare circumstances, none of which are present here.  Id.

            Lindley argues that because there is nothing in the record, specifically nothing in writing, indicating the State consented to Lindley’s waiver of a jury trial, the trial court had no jurisdiction to entertain Lindley’s plea.  The requirement of obtaining the State’s consent in order to waive a jury trial protects the interests of the State to insist on a jury trial, not the defendant’s rights.  “[C]onsent by the state is not a jurisdictional requisite to the rendition and entry of an otherwise valid judgment.”  Shaffer v. State, 769 S.W.2d 943, 944 (Tex. Crim. App. 1989).  The State’s failure to provide written consent as required by Article 1.13 is not “error as to a defendant or from which a defendant can complain.”  Id. at 945.  We overrule Lindley’s first point of error. 

II.        Sufficient Evidence to Adjudicate Guilt

            Lindley was indicted for two cases of attempted capital murder:  he was charged with attempting to kill Leigh Ann Smith and Smith’s daughter, who was seven at the time of trial.  One of the terms and conditions of Lindley’s community supervision was that he was not to communicate with either Smith or her daughter or “go within 1000 feet” of either victim or their residence.  About 5:00 or 6:00 p.m. the day Lindley pled guilty and was placed on community supervision, Smith saw Lindley in a car driven by Lindley’s friend.  Smith and her daughter were at a local water park in Sulphur Springs.  Smith recognized Lindley’s friend, the driver of the car, who was a black male.  Smith saw Lindley and testified she made eye contact with him.  Smith said Lindley and his friend drove around the park “a few” and “multiple” times.  She testified the pair continued to circle the park after Lindley and Smith exchanged eye contact.  There was testimony the park was within 1,000 feet from the street; Smith testified her daughter was at the park and thus within the same 1,000 feet. 

            Lindley’s girlfriend, Bridgette Childress, testified that she, a white female, was driving Lindley around the park on the day in question, after having picked him up from jail.  She said they drove around the park one time, looking for a friend of Lindley, then left the area.  She said they did not see Smith at the park.  Childress also testified that the day before the adjudication hearing, Smith told Childress she was not sure she had seen Lindley on the day in question.  Both witnesses acknowledged that Lindley’s grandmother, with whom Lindley lived before being sent to jail, lived in the neighborhood of the park.   

            Our review of an order revoking community supervision is limited to determining whether the trial court abused its discretion.  Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).  In determining questions regarding sufficiency of the evidence in community supervision revocation cases, the State must prove, by a preponderance of the evidence, that the defendant violated a term of his or her community supervision.  Id.  A preponderance of the evidence exists when the greater weight of the credible evidence creates a reasonable belief that the defendant has violated a condition of his or her supervision.  Id. at 764; Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974).

            The trial court is not authorized to revoke supervision without a showing that the probationer has violated a condition of the community supervision imposed by the court.  DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987).  In a community supervision revocation hearing, the trial judge is the sole trier of fact.  Jones v. State, 787 S.W.2d 96, 97 (Tex. App.––Houston [1st Dist.] 1990, pet. ref’d).  The trial judge also determines the credibility of the witnesses and the weight to be given to their testimony.  Id.  The judge may accept or reject any or all of the witnesses’ testimony.  Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987).  

            Here, distinct conflicts were presented.  Smith testified that Lindley was in a vehicle being driven down the street directly in front of her when she was at the water park.  She recognized him and his friend, a black male, and identified the automobile they were in.  As he passed by, he looked directly at her and they made eye contact; the driver of the vehicle kept driving around the park several times, and she was certain that Lindley saw her there.  Childress, a white female, testified that she picked Lindley up from jail and they drove by the park once and did not see Smith.  The trial court was required to judge the credibility of the witnesses and determine if Lindley and a black male drove several times around the park and made eye contact with Smith, or if Lindley, riding with a white female, drove only once around the park without encountering Smith.  The trial court announced that it had “observed the countenances of the witnesses and has judged the credibility of the witnesses” in arriving at its conclusion.  The trial court did not abuse its discretion in finding sufficient evidence of a violation of the order.   

III.       Due Process

            Lindley next argues that unless the State is required to prove that he intentionally or knowingly came within 1,000 feet of the victims, that condition is “void for vagueness” and, therefore, his due process rights were violated when the trial court revoked his supervision.  Usually “void for vagueness” issues are raised in an attack on the constitutionality of a statute.  See generally Gillenwaters v. State, 205 S.W.3d 534, 536 (Tex. Crim. App. 2006); Perez v. State, 261 S.W.3d 760, 768–69 (Tex. App.––Houston [14th Dist.] 2008, pet. ref’d).  Here, Lindley is complaining not about a statute, but about a term and condition imposed on him by the trial court, to which Lindley affixed his signature and thumbprint.  An award of community supervision is not a right, but a contractual privilege, and conditions thereof are terms of the contract entered into between the trial court and the defendant.  Therefore, conditions not objected to are affirmatively accepted as terms of the contract.  Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999).  Lindley made no objection to the trial court that the terms and conditions were unclear at the time they were imposed.  A defendant cannot complain about community supervision conditions for the first time on appeal.  Id. at 535.  

            The argument that Lindley should not be held responsible because he did not know that Smith and her daughter were at the park is belied by the evidence that Lindley continued to circle the park after first encountering Smith.  Further, the case on which Lindley relies is distinguishable.  In Leach v. State, 170 S.W.3d 669 (Tex. App.––Fort Worth 2005, pet. ref’d), the appellant challenged the constitutionality of a statute for vagueness.  Tex. Code Crim. Proc. Ann. art. 42.12, § 13B(a)(1)(B) (Vernon Supp. 2010) (mandating that as to one placed on community supervision for a sexual offense against a child, the order required that probationer not go within 1,000 feet of “premises where children commonly gather”).  Here, the complaint does not concern a statute, but a discretionary condition imposed by the trial court which was not challenged at the time it was imposed.  This condition is much more specific than the one in Leach—Lindley was not to go within 1,000 feet of a specifically named victim, which is quite different from the broad language in Leach regarding “where children commonly gather.”  Even in Leach this argument was rejected when the appellate court found ample evidence in the record that Leach was aware children were regularly present in the apartment complex common area where Leach was seen watching the children.  Leach, 170 S.W.3d at 675.   

            Lindley also argues that the trial court erroneously considered evidence of conduct which was not alleged in the State’s motion to adjudicate.  The day before the adjudication hearing, Childress was on the telephone with Lindley and gave the telephone to Smith, thus facilitating communication between Lindley and Smith.  This would be in violation of the terms of Lindley’s supervision order, but was not alleged in the motion.  The authority of the trial court to revoke community supervision is limited by the allegations of which the probationer has due notice, those which are contained in the written motion to revoke filed during the term of the probationary period.  Zillender v. State, 557 S.W.2d 515 (Tex. Crim. App. 1977).

            At the conclusion of the hearing, the trial court announced that Lindley violated condition (cc-1) of the community supervision order (“Defendant shall not . . . go within 1000 feet of the victim(s)”) and immediately stated, “I’m going to find him guilty at this time of attempted capital murder.”  The trial court had the authority to revoke community supervision and adjudicate Lindley’s guilt on a finding of any violation of community supervision.  Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980).  The evidence affirmatively shows that the trial court revoked the community supervision and found Lindley guilty of the offense based on the violation of the condition as alleged in the motion to adjudicate.  This finding, which was supported by evidence, was sufficient to find Lindley in violation of his terms and conditions and, therefore, sufficient to support adjudication and revocation. 

            We affirm the judgment of the trial court. 

                                                                        Jack Carter

Date Submitted:          November 30, 2010

Date Decided:             December 17, 2010

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^[1]Lindley presents a single brief addressing both cases.  The issues and arguments are the same for both convictions, and we reach the same conclusion in both cases.  Please see our opinion of instant date, Lindley v. State, cause number 06-09-00201-CR. 

^[2]When a defendant wishes to waive his or her right to a jury trial, among other requisites, the defendant must secure the consent of the State:  “the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea.”  Tex. Code Crim. Proc. Ann. art. 1.13 (Vernon 2005).

^[3]Lindley’s instant appeals are the result of the Texas Court of Criminal Appeals granting Lindley out-of-time appeals.  Ex parte Lindley, Nos. AP-76,246, AP-76,247 (Tex. Crim. App. Oct. 28, 2009).  The Texas Court of Criminal Appeals’ opinion allows Lindley to appeal the judgments of conviction.  We see nothing in the record or the high court’s opinion indicating Lindley sought or was granted the right to tardily appeal from the order placing him on deferred adjudication community supervision.