Tapia, Gilbert Jr.

462 S.W.3d 29, 2015 Tex. Crim. App. LEXIS 562, 2015 WL 2255930
Court of Criminal Appeals of Texas·Decided May 13, 2015·No. NO. PD-0729-14·Published·Cited by 104 cases

Opinions

OPINION

Richardson, J.,

delivered the opinion of the Court,

in which Keller, P.J., and Keasler, Hervey, Alcala, Yeary, and Newell, J.J., joined.

On two separate occasions appellant was brought before the trial court on motions to revoke deferred adjudication community supervision and adjudicate guilt.1 We granted discretionary review to determine whether the court of appeals properly held that due process prohibited the trial court from revoking appellant’s probation after the second revocation hearing, based upon grounds that the trial court was aware of, but did not consider, at the first revocation hearing. Because we do not think appellant’s due process rights were violated under the facts of this case, we reverse the court of appeals.

I. OVERVIEW

After appellant’s first revocation hearing, the trial court continued appellant on deferred adjudication community supervision but sanctioned him to 21 days in the county jail. At the second revocation hearing, based on a new motion filed by the State, the trial court revoked appellant’s community supervision, adjudicated him guilty of aggravated assault, and sentenced appellant to five years in the Texas Department of Criminal Justice-Institutional Division (“TDCJ”).2

The Thirteenth Court of Appeals reversed the trial court’s judgment, believing [32]*32that this Court’s opinion in Rogers v. State, 640 S.W.2d 248 (Tex.Crim.App.1981) (op. on State’g first motion for reh’g), controlled. The court of appeals held that appellant’s due process rights were violated when the trial court revoked appellant’s community supervision at the second revocation hearing based upon drug and alcohol violations that had occurred and were known to the trial court at the time of the first revocation proceeding. Tapia v. State, No. 13-12-00334-CR, 2014. WL 1789207, at *7 (Tex.App.Corpus Christi-Edinburg 2014) (mem. op., not designated for publication)..

We granted the State’s Petition For Discretionary Review on the following two issues: (1) “whether a revocation must be based on evidence of a violation that occurred or was discovered subsequent to the preceding continuation or modification,” and (2) “if the State is required to allege all known violations or risk forfeiting them, whether that requirement is subject to waiver or estoppel.”

We hold that the dicta set forth in Rogers that was strictly followed by the appellate court is not applicable here because the facts of- this case are distinguishable. The trial court did not violate appellant’s due process rights when it revoked his community supervision. First, the revocation of appellant’s community supervision occurred after a second revocation proceeding and was based upon newly alleged drug and alcohol violations. Second, even though the trial judge, the State, and appellant were all aware of the purported drug and alcohol violations at the first hearing, such violations were not alleged in the first written motion to revoke, and no evidence was presented at the first hearing in support of such violations. Despite appellant’s argument to the contrary, we find that it was clear that the judge had intentionally not taken the drug and alcohol violations into consideration when she made the decision to continue appellant’s community supervision after that first hearing.3 We therefore reverse the deci[33]*33sion of the Thirteenth Court of Appeals and reinstate the judgment of the trial court.

II. BACKGROUND

On April 18, 2002, appellant pled guilty to the second degree felony offense of aggravated assault. The trial court placed appellant on deferred adjudication community supervision for ten years. At the same time, appellant was sentenced on a separate offense to ten years’ imprisonment. The term of imprisonment and the ten years’ community supervision were to run concurrently.4 On December 11, 2011, appellant discharged his sentence on the other offense and was released from TDCJ, but he was still on deferred adjudication community supervision for this aggravated assault until April 18, 2012. According to appellant, however, when he was discharged from prison he was not contacted by the probation department, nor did he contact the probation department.5

On March 6, 2012, the State filed its first motion to revoke community supervision and adjudicate guilt. This motion was based upon three alleged violations: (1) failure to inform the probation officer of his change of address when hé was released from prison; (2) failure to report to his probation officer; and (3) violation of curfew. According to a “Revocation Report” (the pre-sentence investigation, or “PSI,” report) prepared on March 23, 2012, appellant was arrested and placed in jail on this motion to revoke on or about March 9, 2012. According to that report, when he was interviewed in jail by the probation officer, appellant admitted to having used cocaine and alcohol on or about March 8, 2012. There is no evidence that the State prosecutor was made aware of appellant’s admission to having used drugs and alcohol before the March 23rd report was prepared. The State did not amend its first motion to revoke to include those drug and alcohol violations before the March 27th hearing, but before that hearing began the State requested leave to amend the motion , to revoke to include the drug and alcohol violations.6 The State also requested that the hearing be continued. Appellant objected to the State amending the motion to revoke and to continuing the hearing. The court denied the State’s requests. There is nothing in [34]*34the record from that first hearing reflecting that the trial court judge reviewed the March 23rd PSI at any time during that first hearing.7 It was not offered into evidence nor referenced. .

A. The First Revocation Proceeding

As noted above, on March 27, 2012, the trial court held a hearing on the State’s first motion to revoke and adjudicate. The following exchange took place between the trial court, the assistant district attorney (“ADA”), appellant’s counsel at the revocation proceeding (“Counsel”), and appellant’s probation officer:

ADA: Your Honor, we’re in the process of preparing an amended MTR.
The Court: Talk to [defense counsel]. She may not be wanting to wait. If she is ready to go, you have got to go.
[[Image here]]
Counsel: Your Honor, we’re ready to go forward today. We would be opposed to a continuance. My client is set to expire off of his probation on April 18th, 2012.
The Court: Okay. 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 is 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 and your client 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. There is no problem with that.

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Tapia, Gilbert Jr., 462 S.W.3d 29, 2015 Tex. Crim. App. LEXIS 562, 2015 WL 2255930 (Tex. 2015).

462 S.W.3d 29 (Tapia, Gilbert Jr.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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