Opinion
No. 05-03-00251-CR
Opinion Filed November 26, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-80677-97.
Before Justices MORRIS, WRIGHT, and RICHTER.
OPINOIN
Jesse Wade Holt waived a jury trial and entered a negotiated guilty plea to tampering with a witness. See Tex. Pen. Code Ann. § 36.05 (Vernon 2003). Pursuant to a plea bargain agreement, the trial court sentenced appellant to two years in a state jail facility, probated for five years, and a $500 fine. Subsequently, the State moved to revoke appellant's probation, alleging numerous violations of the terms of probation. The trial court found the allegations true, revoked appellant's probation, and sentenced him to twenty-three months in a state jail facility and a $500 fine. In a single point of error, appellant contends he was not served with a copy of the motion to revoke probation at least ten days before the hearing. We affirm the trial court's judgment. The State filed a motion to revoke probation on December 4, 2002 alleging thirteen violations of the terms of probation. The State filed an amended motion to revoke on January 9, 2003 alleging fourteen violations, which included the thirteen original allegations and one new allegation. A hearing on the motion was held on January 16, 2003. At the beginning of the hearing, appellant told the judge he was not prepared to proceed because he had not seen the amended motion to revoke, had not fully read through the allegations, and did not have certain witnesses present to counter allegations of harassment or violence toward his wife. After some discussion, the State announced that because appellant may not have received a copy of the amended motion to revoke prior to the hearing, it would proceed on the allegations contained in the original motion to revoke. The State also abandoned allegations one through four, and proceeded only on allegations five through thirteen. Appellant testified he was familiar with some of the allegations in the State's original motion to revoke, he had read the allegations but did not have a copy of them, and he knew what conditions he was being accused of violating. Appellant waived the reading of the allegations and pleaded not true to allegations five through thirteen in the motion to revoke. After hearing testimony from appellant's estranged wife and his probation officer, the trial judge found eight of the allegations true, revoked appellant's probation, and imposed sentence. Appellant contends he is entitled to a new revocation hearing because he was not served with a copy of the State's motion to revoke probation at least ten days before the revocation hearing. Appellant argues the trial court withdrew the State's amended motion to revoke probation because the State conceded there was no evidence appellant had received the amended motion to revoke. Appellant argues he was denied due process because he was unaware of the allegations against him and had not fully read the motion to revoke. The State responds appellant has not preserved error because he failed to timely object at the revocation hearing that he had not been served with a copy of the original motion to revoke probation. In the alternative, the State argues appellant was timely served with a copy of the State's original motion to revoke probation. We agree with the State. Appellant did not object in the trial court or in a motion for new trial that he was not served with a copy of the State's motion to revoke probation at least ten days before the revocation hearing. Thus, appellant has failed to preserve his complaint. See Tex.R.App.P. 33.1; Eddie v. State, 100 S.W.3d 437, 440 (Tex.App.-Texarkana 2003, pet. ref'd). Moreover, the State proceeded under the original motion to revoke, dropping four of the allegations in the motion, which was filed on December 4, 2002. The revocation hearing was held on January 16, 2003, and appellant acknowledged he had notice of the allegations contained in the original motion. Accordingly, we overrule appellant's sole point of error. We affirm the trial court's judgment.