NO. 07-06-0238-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JUNE 27, 2008
______________________________
JASON DEWAYNE POTEET, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 50TH DISTRICT COURT OF COTTLE COUNTY;
NO. 2782; HONORABLE W. H. HEATLY, JUDGE
_______________________________
Before CAMPBELL and PIRTLE, JJ., and REAVIS, S.J.1
MEMORANDUM OPINION
Appellant Jason Dewayne Poteet appeals from the revocation of his community
supervision. Via two points of error, appellant contends the trial court violated his
constitutional rights in permitting the State to go forward with its amended motion to revoke
despite lack of personal service on appellant. We affirm.
1
Don H. Reavis, Senior Judge, Seventh Court of Appeals, sitting by assignment.
Background
In May 2002, on his plea of guilty, appellant was convicted of delivery of a controlled
substance, cocaine, in an amount less than one gram.2 Appellant was assessed a two-
year state jail sentence that was probated for five years. Appellant was placed on
community supervision, subject to certain terms and conditions.
In February 2006, the State filed a motion to revoke appellant’s community
supervision. Pursuant to the trial court’s capias, he was arrested on April 6, 2006. On April
18, the trial court signed an order appointing Dale Rabe to represent appellant, and on
April 19, the State filed a first amended motion to revoke. That motion was heard before
the trial court on May 16.
The February 2006 motion to revoke alleged appellant had violated the requirement
of his community supervision that he abstain from the use of intoxicating substances. It
alleged appellant used marijuana on or about seven dates ranging from June 21, 2004
through January 17, 2006. The motion also alleged numerous failures to report and
failures to pay costs, fines, restitution and fees.
The first amended motion corrected the date of appellant’s original offense, added
two allegations of marijuana use and deleted some of the other marijuana use allegations.
It also added additional months of delinquency to the paragraphs alleging failures to pay.
2
See Tex. Health & Safety Code Ann. § 481.112(b) (Vernon 2001). This is a state
jail felony punishable by confinement in a state jail facility for a term of not more than two
years or less than 180 days and a fine not to exceed $10,000. Tex. Penal Code Ann. §
12.35 (Vernon 2007).
2
On May 1, Mr. Rabe filed a motion to withdraw as counsel, which was granted, and
new counsel, Earl Griffin, Jr., was appointed. Mr. Griffin represented appellant at the May
16 hearing, where appellant pled “not true” to the State’s allegations. The State presented
the testimony of appellant’s probation officer, who testified to various violations, including
appellant’s acknowledged use of marijuana on or about January 23 to January 27, 2006
and June 25, 2005. The probation officer further testified that appellant failed to report as
required, failed to pay restitution, court costs, fines, attorney’s fees, and supervision fees
as required. The defense presented the testimony of the Cottle County sheriff, and
appellant testified.
The trial court found the evidence of some alleged violations lacking, but found
others true, revoked appellant’s community supervision and assessed punishment at two
years in the State Jail Division of the Texas Department of Criminal Justice. Appellant filed
a motion for new trial, challenging the sufficiency of the evidence to support revocation,3
and timely filed his notice of appeal.
On appeal, appellant urges the revocation order and sentence must be reversed
because the trial court violated rights guaranteed him under the Fourteenth Amendment
to the United States Constitution and Article 1, Section 19 of the Texas Constitution4 when
3
The evidentiary sufficiency challenge is not repeated on appeal.
4
Appellant’s argument based on the Texas Constitution’s requirements does not
differ from his Fourteenth Amendment argument. We therefore do not address the state
constitutional argument separately. Muniz v. State, 851 S.W.2d 238, 251-52
(Tex.Crim.App. 1993).
3
it permitted the State to proceed with its first amended motion to revoke without personally
serving him with the motion.
Analysis
In a revocation proceeding, the State must prove by a preponderance of the
evidence that appellant violated a condition of community supervision as alleged in the
motion to revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App.1993), Herrera v.
State, 951 S.W.2d 197, 199 (Tex.App.–Corpus Christi 1997, no pet.). When the State
alleges more than one violation, proof of any one of them will support revocation. Moore
v. State, 11 S.W.3d 495, 498 (Tex.App.–Houston [14th Dist.] 2000, no pet.). The trial judge
in such a proceeding is the sole trier of fact. Id.; Taylor v. State, 604 S.W.2d 175, 179
(Tex.Crim.App.1980).
Due process entitles probationers facing a revocation proceeding to written notice
of their alleged violations of the terms of community supervision. Ruedas v. State, 586
S.W.2d 520, 523 (Tex.Crim.App. 1979), citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct.
1756, 36 L.Ed.2d 656 (1973); Weed v. State, 891 S.W.2d 22, 24 n.4 (Tex.App.–Fort Worth
1995, no writ). An application to revoke need not meet the specificity requirements of an
indictment or information; it is sufficient that the State allege a violation of the law and give
the probationer fair notice. Pierce v. State, 113 S.W.3d 431, 436 (Tex.App.–Texarkana
2003), citing Chacon v. State, 558 S.W.2d 874, 876 (Tex.Crim.App. 1977). A person on
community supervision is entitled to a written application to revoke that fully informs him
or her of the term of probation he or she is alleged to have breached. Id. The application
4
must clearly set out the basis on which the State seeks revocation so that a probationer
and his or her counsel have fair notice. Id.
Evidence showed that appellant was given a copy of the State’s February 2006
motion to revoke when he was arrested on April 6. Evidence also showed that the
probation officer provided a copy of the first amended motion to appellant’s then-counsel
Mr. Rabe on April 20, the day after it was filed.
We are unable to see a Due Process Clause violation in these events. Case law
has recognized the common practice of serving a probationer with a copy of a revocation
motion,5 see, e.g., Campbell v. State, 456 S.W.2d 918, 920 n.3 (Tex.Crim.App. 1970), but
appellant does not cite us to authority constitutionally requiring that pre-hearing notice of
an amended motion to revoke be given in every case by means of personal service on the
probationer. The cases he cites do not suggest such a constitutional requirement.
Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.ed.2d 484 (1972) (minimum
due process requirements for parole revocation hearing include “written notice of the
claimed violations of parole”); Gagnon, 411 U.S. at 786 (stating similar minimum
requirements for probation revocation hearing); Ruedas, 586 S.W.2d at 523; Weed, 891
S.W.2d at 24 n.4 (both also referring to requirement of “written notice”). Nor does it appear
5
The Code of Criminal Procedure does not address the subject of service of
motions to revoke community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, §
21(b) (Vernon 2007).
5
sending the amended motion to his attorney in this instance provided written notice that
was constitutionally defective.6
Finding no merit in appellant’s claim of deprivation of his Fourteenth Amendment
right to due process of law, we overrule his first point of error and affirm the trial court’s
judgment.
James T. Campbell
Justice
Do not publish.
6
Appellant does not contend the notice to his counsel was not practically effective.
It is clear from the opening moments of the revocation hearing that Mr. Griffin was familiar
with the amended motion. For instance, on the court’s inquiry, counsel stated that
appellant would waive “the reading of the first amended motion to revoke community
supervision.” Nor did appellant seek a continuance of the hearing or otherwise argue he
had inadequate opportunity to prepare for it.
6