Opinion
No. 09-09-00386-CR
Submitted on June 18, 2010.
Opinion Delivered July 21, 2010. DO NOT PUBLISH.
On Appeal from the 252nd District Court, Jefferson County, Texas, Trial Cause No. 91505.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
Joseph Milton Howard pled guilty to the offense of robbery and was placed on deferred adjudication community supervision for ten years. The State filed a motion to revoke on the ground that Howard violated the conditions of his community supervision. After an evidentiary hearing, the trial court found Howard violated his unadjudicated community supervision, granted the motion to revoke, adjudicated Howard guilty of the offense, and sentenced him to fifteen years in prison. Howard appeals. Counts one and two of the State's motion to revoke stated that Howard had violated the conditions of his community supervision by committing the offense of sexual assault of a child in Harris County. Count three alleged Howard violated a condition which required Howard to "[w]ork faithfully at suitable employment, attend educational programs, and/or perform Community Service Restitution for a total of not less than forty hours (40) weekly, and provide verification of such." Counts four and five alleged Howard failed to provide verification of performing the community service hours required, and failed to pay court-assessed fees. At the revocation hearing, Howard pled "not true" to all five counts. The State abandoned the first two counts and proceeded only on counts three, four, and five. After conducting an evidentiary hearing, the trial court found the evidence sufficient to prove by a preponderance of the evidence that Howard had violated two conditions of his community supervision in failing to work faithfully at suitable employment and failing to provide verification of performing the community service hours required. In his first issue, Howard argues the trial court abused its discretion in failing to grant his motion to dismiss, and the trial court lacked jurisdiction to proceed with an adjudication of guilt. At the revocation hearing, Howard asked the trial court to take judicial notice that the State's motion to revoke was unsigned by the district attorney's office. Howard argued that, because of the absence of a signature, (1) he did not receive proper notice and (2) the trial court lacked jurisdiction because the district attorney did not actually file the motion. The trial court proceeded with the hearing and allowed Howard the opportunity to file a brief supporting his arguments. The trial judge stated that "[i]f I don't have jurisdiction, I'll certainly withdraw anything that I may be doing here this morning." In the letter brief filed by Howard, he argued that the probation officer delivered the allegations to the trial court and not to the district attorney's office. He argued the State's attorney did not sign the motion when the lack of signature was raised, and did not say that she had reviewed the motion. He contends that the State's attorney did not file the motion, and the trial court had no jurisdiction to act. The State asserts the lack of a signature was "likely an oversight." For a trial court to acquire jurisdiction to revoke a defendant's community supervision, the State must file with the trial court a motion to revoke alleging the defendant violated the terms of the community supervision agreement. Brecheisen v. State, 4 S.W.3d 761, 763 (Tex. Crim. App. 1999); see also TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(e) (Vernon Supp. 2009). Due process requires that a motion to revoke community supervision give the defendant fair notice of the violation asserted. Labelle v. State, 720 S.W.2d 101, 108 (Tex. Crim. App. 1986). The motion contained a signature block with the name and State Bar number of the assistant criminal district attorney representing the State during the revocation proceeding. The signature line above this information was left blank. The probation officer testified that he presented the allegations to the trial court and not the district attorney's office. Nevertheless, the State's attorney identified in the signature block was present at the hearing. She proceeded on the motion by presenting the State's evidence. The trial court then had jurisdiction to revoke Howard's community supervision. The motion was presented by the State. To determine whether a motion to revoke provided the necessary notice, we first decide whether some requisite item of notice is absent. Id. at 107. If we find that the motion did not provide adequate notice, we must then determine whether, in the context of the case, the lack of notice had an impact on the defendant's ability to prepare a defense and the extent of such impact. Id. The motion to revoke specifically stated the conditions Howard allegedly violated. Howard failed to demonstrate that the motion did not provide him with fair notice. Issue one is overruled. In issue two, Howard challenges the legal sufficiency of the evidence supporting the trial court's finding that Howard violated two conditions of his community supervision. Howard asserts the community supervision order did not require him to provide verification of work and community service while in custody, and that his probation officer never testified that he told Howard that he had to provide verification while in custody. In a revocation proceeding, the State must prove the defendant violated the terms and conditions of community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993) (citing Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984)); Antwine v. State, 268 S.W.3d 634, 636 (Tex. App.-Eastland 2008, pet. ref'd). The State's burden of proof is by a preponderance of the evidence. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) (citing Cardona, 665 S.W.2d at 493). We review an order revoking community supervision under an abuse of discretion standard. Id. Proof of a single violation is sufficient to support a revocation order. Marcum v. State, 983 S.W.2d 762, 766-67 (Tex. App.-Houston [14th Dist.] 1998, pet. ref'd). Howard was placed on community supervision in 2005. He testified that after being in custody for "[a]bout a month[,]" he was released from the Jefferson County jail on September 29, 2008. The record reflects that on that date, an order was entered amending the terms of his community supervision to include that he "continue on probation" and "[b]egin C[ommunity] S[ervice] R[estitution] immediately[.]" Howard's probation officer testified that he met with Howard on December 1, 2008. Howard turned himself in to the Harris County jail on December 7, 2008, for an outstanding warrant. At the time of the hearing on the motion to revoke, he was incarcerated. The probation officer testified that Howard never provided him verification that he was employed or seeking employment. The probation officer also stated that, as of the date of the revocation hearing, Howard had not provided the department with verification of any community service hours he had performed. Howard did not refute this testimony. Instead, he stated that his incarceration prevented him from working or performing community service. However, when Howard met with the probation officer on December 1, 2008, after being out of jail for over two months, Howard did not provide verification that he had sought employment, secured employment, or performed community service hours since his release from the Jefferson County jail. There is no indication in the record that he was employed, had sought employment, or had performed community service hours during the more than two months prior to his incarceration in Harris County. The trial court reasonably could find by a preponderance of the evidence that Howard violated the terms of his community supervision by failing to provide verification regarding employment and community service hours during those two months. Issue two is overruled. We affirm the trial court's judgment. AFFIRMED.