MEMORANDUM OPINION
No. 04-11-00609-CR
Ralph PADILLA,
Appellant
v.
The STATE of Texas,
Appellee
From the 83rd Judicial District Court, Val Verde County, Texas
Trial Court No. 10929CR
Honorable James M. Simmonds, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: July 11, 2012
AFFIRMED
Ralph Padilla appeals the trial court’s judgment revoking his probation. Padilla contends
the trial court abused its discretion in revoking his probation because the motion to revoke
incorrectly identified the underlying offense. Padilla also contends the motion to revoke did not
provide proper notice. We overrule Padilla’s contentions and affirm the trial court’s judgment.
We review a trial court’s judgment revoking community supervision under an abuse of
discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Reasor v.
04-11-00609-CR
State, 281 S.W.3d 129, 131 (Tex. App.—San Antonio 2008, pet. ref’d). The State is required to
prove a probation violation by a preponderance of the evidence. Rickels, 202 S.W.3d at 763;
Reasor, 281 S.W.3d at 131-32. The State meets its burden of proof when the greater weight of
the credible evidence creates a reasonable belief that the defendant violated a condition of his
community supervision. Rickels, 202 S.W.3d at 763-64; Reasor, 281 S.W.3d at 132.
The motion to revoke referred to the underlying offense as deadly conduct. Although
Padilla was initially charged with deadly conduct, he pled guilty to the offense of unlawful
restraint. Apart from the motion to revoke, the documents contained in the record, including the
judgment placing Padilla on community supervision and the plea documents, reflect the
underlying offense as unlawful restraint. A trial court can take judicial notice of any records
contained in its file. Farran v. State, 744 S.W.2d 327, 328 (Tex. App.—Houston [1st Dist.]
1988, no pet.). Because the judgment revoking Padilla’s probation accurately states that he was
convicted of unlawful restraint consistent with the records in the trial court’s file and the
testimony of Padilla’s probation officer at the hearing, the trial court did not abuse its discretion
in revoking Padilla’s probation for the offense of unlawful restraint. See id. at 328-29 (no harm
shown by motion to revoke reciting wrong underlying offense); see also Rubio v. State, Nos. 01-
95-00218-CR & 01-95-00219-CR, 1995 WL 694757, at *2 (Tex. App.—Houston [1st Dist.]
Nov. 22, 1995, no pet.) (not designated for publication) (no abuse of discretion in revoking
probation even though motion incorrectly identified underlying conviction).
With regard to Padilla’s contention that the clerical error in the motion to revoke deprived
him of proper notice, Padilla failed to file a motion to quash and failed to make this objection
until the conclusion of the evidence. Accordingly, the objection was untimely. See Gordon v.
State, 575 S.W.2d 529, 531 (Tex. Crim. App. 1978); Grantham v. State, 547 S.W.2d 286, 287
-2-
04-11-00609-CR
(Tex. Crim. App. 1977); Marcum v. State, 983 S.W.2d 762, 767 (Tex. App.—Houston [14th
Dist.] 1998, pet. ref’d). Moreover, “[t]he allegations in a motion to revoke need not be alleged
with the same particularity required in an indictment or information, but must fully and clearly
set forth the alleged violations of probation so that the defendant might be informed as to what
he will be called to defend against.” Labelle v. State, 720 S.W.2d 101, 104 (Tex. Crim. App.
1986). In order to comport with due process requirements, “the motion to revoke must give the
defendant fair notice of the violation.” Id. In this case, Padilla does not contend that the motion
to revoke failed to provide him with fair notice of the alleged violations of his probation
conditions. Instead, Padilla asserts the motion to revoke erroneously identified the underlying
offense. Because the motion to revoke provided fair notice to Padilla of his alleged violations,
Padilla received proper notice.
The judgment of the trial court is affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
-3-