Smith v. State

Full title: AUBREY E. SMITH, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 1, 2004

No. 05-03-01011-CR (Tex. App. Jul. 1, 2004)

Opinion

No. 05-03-01011-CR

Opinion Filed July 1, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 195^th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-00109-Qmn. Affirm.

Before Justices FITZGERALD, RICHTER, and LANG.

MEMORANDUM OPINION

Opinion By Justice FITZGERALD.

Appellant Aubrey E. Smith pleaded guilty to theft in an amount greater than $20,000 but less than $100,000, as part of a negotiated plea agreement. Pursuant to that agreement, the trial court assessed punishment at ten years' confinement, probated for the same period of time, plus a $300 fine. In December 2000, the State filed its Motion to Revoke Probation (the "Original Motion"). In June 2003, on the date set for hearing the Original Motion, the State served Smith with its Amended Motion to Revoke Probation (the "Amended Motion"). Smith pleaded true to all violations alleged in the Amended Motion. The trial court granted the Amended Motion and imposed the original ten-year sentence and $300 fine. In a single issue, Smith argues the trial court erroneously conducted the revocation hearing on the Amended Motion, when that motion had been on file less than seven days. We affirm the trial court's judgment. The code of criminal procedure provides that:

In a felony case, the state may amend the motion to revoke community supervision any time up to seven days before the date of the revocation hearing, after which time the motion may not be amended except for good cause shown, and in no event may the state amend the motion after the commencement of taking evidence at the hearing.

Tex. Code Crim. Proc. art. 42.12, § 21(b) (Vernon Supp. 2004). In this case, the Original Motion to revoke included allegations that Smith had violated the following conditions of his probation:

(d) in that the defendant did not report to the Probation Officer as directed for the months of September, October and November, 2000. . . .

(e) in that the defendant did not allow the Supervision Officer to visit at home or elsewhere by failing to give notice of a change in residence or employment. . . .

(h) in that the defendant did not make Court ordered payments as directed and is currently delinquent $2,380.00. . . .

(k) in that the defendant did not perform community service hours as directed.

The Amended Motion repeated the identical violations of conditions (e) and (k); those allegations were not changed in any way by the Amended Motion. The amended violation alleged under condition (d) was updated to show that, at the time of the hearing, Smith had not reported to his probation officer "for the months of September, 2000 through May, 2003." Likewise, the amended violation alleged under condition (h) was updated to show that, at the time of the hearing, Smith was "currently delinquent $20,885.00." Although Smith complains of these changes on appeal, the record indicates he did not object to proceeding at the hearing under the Amended Motion. The trial court began the hearing by referring to the fact that "[a]n amended Motion to Revoke probation has been filed . . ." and asking Smith whether he had "been over this amended motion" and understood the allegations against him. Smith replied by saying "Yes, sir." By failing to object to the untimely amendment, Smith has waived his right to complain concerning timeliness on appeal. See Burns v. State, 835 S.W.2d 733, 735 (Tex. App.-Corpus Christi 1992, pet. ref'd). We decide Smith's issue against him, and we affirm the judgment of the trial court.