COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00147-CR
DEVANY CHARONE SNEED APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1095599D
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CONCURRING OPINION
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I write separately because, in addressing the issue of whether a trial court
may consider allegations previously before the court in revoking community
supervision, a journey down legal memory lane is helpful.
It used to be common practice for Texas trial courts to hear a motion to
revoke probation, take the motion under advisement, hold the motion in
abeyance, and, essentially, let the probationer’s post-hearing conduct determine
whether to grant or deny the motion on one or more of the grounds alleged in the
motion to revoke.1 Repeatedly, appellate courts have held that this procedure
constituted a denial of due process:
It is clear at least after Morrissey v. Brewer that a probationer can no
longer be denied due process in reliance on the dictum . . . that
probation is an “act of grace.” “Getting a break,” the Texas version
of “act of grace,” is no more a reliable dictum for denial of due
process. The Court was at pains to explain in Morrissey v. Brewer:
This Court now has rejected the concept that
constitutional rights turn upon whether a governmental
benefit is characterized as a “right” or as a “privilege.”
Whether any procedural protections are due depends
on the extent to which an individual will be condemned
to suffer grievous loss. The question is not merely the
weight of the individual’s interest, but whether the
nature of the interest is one within the contemplation of
the “liberty or property” language of the Fourteenth
Amendment.2
And, repeatedly, appellate courts have reminded the bench and bar that,
after conducting a hearing without a jury, a trial court’s options regarding
someone on community supervision are limited by the legislature.3 The
1
See, e.g., Rains v. State, 678 S.W.2d 308, 309–10 (Tex. App.—Fort
Worth 1984, pet. ref’d).
2
Rogers v. State, 640 S.W.2d 248, 253–54 (Tex. Crim. App. 1982) (op. on
reh’g) (citations and selected quotation marks omitted); see also id. at 263 (2nd
op. on reh’g) (agreeing “that due process mandates another determination that
the probationer has breached the conditions of probation after he has been
returned to probation (or that there is newly discovered evidence of a previous
violation which was not known at the time of the first revocation hearing)”).
3
See, e.g., Furrh v. State, 582 S.W.2d 824, 827 (Tex. Crim. App. 1979)
(op. on reh’g); Kimball v. State, 119 S.W.3d 463, 465 (Tex. App.—Beaumont
2003, no pet.).
2
legislature has specifically detailed that after a hearing, a trial court may only
“continue, extend, modify, or revoke” the community supervision.4 But the
legislature has not given the trial court authority to revisit a disposition with no
new allegations:
The court having exercised its authority at that earlier hearing
by modifying the terms of probation instead of revoking probation, it
was clearly without authority to change that disposition at a
subsequent hearing at which no further violation of probation was
shown.5
In the case sub judice, the State filed its petition to proceed to adjudication
on March 31, 2015. The trial court amended Appellant’s conditions of community
supervision to add electronic monitoring on April 7, 2015. On April 17, 2015, the
State amended its petition, adding one additional allegation of a violation. On
May 4, 2015, the trial court heard the live petition, the State waived the new
allegation, Appellant entered a “true-but” plea, and the trial court granted the
petition to proceed to adjudication, finding the original allegations to be true. This
action by the trial court violated Appellant’s constitutional rights to due process.6
But Appellant did not object to the trial court’s considering the original
allegations despite the trial court’s intervening amendment of his conditions of
community supervision to require electronic monitoring. As the majority points
4
Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b-2) (West Supp. 2015).
5
Furrh, 582 S.W.2d at 827.
6
See Rogers, 640 S.W.2d at 253–54.
3
out, even a due-process complaint must be preserved, and Appellant has not
done so.
Consequently, I concur in the result.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: May 19, 2016
4
Devany Charone Sneed v. State
Combined Opinion