Tonarelli, v. State

Full title: CATHY MARIE TONARELLI, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Dec 8, 2006

No. 05-05-01024-CR (Tex. App. Dec. 8, 2006)

Opinion

No. 05-05-01024-CR.

Opinion issued December 8, 2006. DO NOT PUBLISH, Tex. R. App. P. 47.

On Appeal from the County Court at Law Kaufman County, Texas. Trial Court Cause No. 04CL-0499

Before Justices BRIDGES, FITZGERALD, and LANG

DAVID L. BRIDGES, JUSTICE.

OPINION

Cathy Marie Tonarelli appeals her driving while intoxicated (DWI) conviction. A jury convicted appellant, and the trial judge sentenced her to 180 days' confinement and a $750 fine, suspended appellant's sentence, and placed her on community supervision for two years. The trial court subsequently granted the State's motion to revoke appellant's community supervision. In a single point of error, appellant argues she was denied due process of law because the allegations in the motion to revoke community supervision were too vague. We affirm the trial court's judgment. On November 16, 2004, appellant was convicted of DWI and placed on community supervision. In April 2005, the State filed a motion to revoke appellant's community supervision alleging appellant had violated the terms and conditions of her community supervision as follows:

Condition #1. The Defendant did then and there commit the offense of Driving While Intoxicated 2^nd offense in Dallas County on or about January 8, 2005.

The motion referred to "the attached records and affidavit" of Lacy Smith who was employed by the Kaufman County adult community supervision department. Smith's affidavit verified that the nine pages of records attached to the motion were originals or exact duplicates of originals. The documents included an arrest report showing appellant was arrested for DWI on January 8, 2005 after police saw appellant's truck twice weave out of her lane of traffic and appellant was subsequently unable to complete field sobriety tests. The Dallas County information charging appellant with the January 8, 2005 DWI and affidavit of the arresting officer were also attached to the motion. Following a hearing on the motion, the trial court granted the motion and revoked appellant's community supervision. This appeal followed. As an initial matter, the State argues this Court lacks jurisdiction over this appeal because appellant initially filed notice of appeal to the Twelfth District Court of Appeals at Tyler on June 29, 2005. The State points out that, effective September 1, 2005, Kaufman is in the Fifth Court of Appeals District, and any "retroactive transfer" to this Court provides appellant with an improper enlargement of the time to file notice of appeal and would contravene legislative intent. However, we note the transfer of appellant's appeal to this Court was ordered by the Texas Supreme Court, which may order cases transferred from one court of appeals to another at any time that, in the opinion of the supreme court, there is good cause for the transfer. Tex. Gov't Code Ann. § 73.001 (Vernon 2005). Under these circumstances, we conclude we have jurisdiction over this appeal. In a single point of error, appellant argues she was denied due process of law because the allegations in the motion to revoke community supervision were too vague. Specifically, she complains she received no adequate notice of the evidence that the State was attempting to use to prove she had violated the terms and conditions of her community supervision. However, appellant did not attempt to quash or except to the revocation motion and did not present a due-process complaint to the trial court. Accordingly, appellant has not preserved this issue for review. See Tex. R. App. P. 33.1(a)(1); Jones v. State, 112 S.W.3d 266, 270 (Tex.App.-Corpus Christi 2003, no pet.). Even if appellant had preserved the issue, the allegations in a motion to revoke probation do not require the same particularity of an indictment or information. Wilcox v. State, 477 S.W.2d 900, 901 n. 1 (Tex.Crim.App. 1972); Pierce v. State, 113 S.W.3d 431, 440 (Tex.App.-Texarkana 2003, pet. ref'd). All that is required is that the motion to revoke should fully and clearly set forth the basis upon which the State seeks revocation so that a defendant and his counsel might be informed as to that upon which he will be called to defend. Pierce, 113 S.W.3d at 440. Here, it appears the motion to revoke satisfied the requirements of due process by providing sufficient notice to appellant of the date, location, and nature of the DWI alleged and multiple narrative accounts of the underlying facts surrounding the offense. See id.; Jones, 112 S.W.3d at 270. We overrule appellant's sole point of error. We affirm the trial court's judgment.