Opinion
NO. 01-18-01074-CR
12-22-2020
Andres TORRES, Appellant v. The STATE of Texas, Appellee
Appellant, Andres Torres, was indicted for the first-degree felony offense of aggravated robbery. After Torres pleaded guilty to the charged offense, the trial court deferred adjudication and placed him on community supervision for ten years. The State subsequently filed a motion to adjudicate Torres's guilt. Following a hearing, the trial court revoked Torres's community supervision, adjudicated him guilty, and assessed his punishment at twenty years' confinement. On appeal, Torres contends that (1) the trial court committed constitutional error when it admitted a violation report containing hearsay and related testimony over defense counsel's objections, and (2) the trial court abused its discretion when it revoked his community supervision because the State offered no evidence, other than the hearsay from the violation report, that he violated any condition of his deferred adjudication. Because we conclude that the evidence supporting revocation of Torres's community supervision was insufficient for the trial court to adequately exercise its discretion, we reverse and remand for a new hearing.
Background
On August 26, 2016, a grand jury indicted Torres—who was seventeen-year-old at the time of his crime—as an adult for the felony offense of aggravated robbery. He pleaded guilty and, on June 30, 2017, the trial court placed him on deferred adjudication community supervision for a period of ten years following 120 days' confinement and at least six months' shock treatment in a facility for offenders with substance abuse problems, the Substance Abuse Felony Punishment Facility (SAFPF).
The terms of Torres's community supervision required, among other conditions, that he participate in the SAFPF "for a term of not less than six (6) months or more than one (1) year" and to
comply with all rules, regulations, and treatment programs and upon release [from the SAFPF, Torres] is required to participate in a drug or alcohol abuse continuum of care treatment plan as developed by the Texas Commission on Alcohol and Drug Abuse (TCADA), abiding by all rules and regulations of said treatment plan until discharged by the Court.
The terms and conditions also admonished Torres that "failure to abide by these Conditions of Community Supervision may result in the revocation of Community Supervision or an adjudication of guilt." Torres entered the SAFPF on November 15, 2017.
On May 1, 2018, the trial court signed an order—its "Order Releasing From Substance Abuse Felony Punishment Facility"—stating that it had been notified by TDCJ authorities that Torres was successfully completing the treatment program and setting his tentative discharge date as June 7, 2018. The order further stated that Torres would then be transferred to Abundance Living/Houston to participate in the continuum-of-care program.
Despite this May 1, 2018 order indicating that he had nearly completed the SAFPF program, Torres was subsequently recommended for removal from the program on May 30, 2018. On June 26, 2018, the State filed a motion to adjudicate guilt, alleging that Torres violated the terms and conditions of community supervision by "[f]ailing to complete the Substance Abuse Felony Punishment Facility (SAFPF)."
The "SAFPF Progress and Conduct Report," submitted to the court on June 29, 2018—one month after he was recommended for removal and included in the clerk's record —stated that since he had been recommended for removal from the program on May 30, 2018, Torres had been participating in groups and classes appropriately, had maintained a respectful attitude, had not received any sanctions, and had not had any disciplinary problems. The counselor commented that if he had "put forth as much effort prior to the recommendation for Behavioral Removal, he would have successfully completed the program."
This document was not offered or admitted into evidence as an exhibit at the revocation hearing.
The trial court held a hearing on the State's motion to adjudicate on November 26, 2018. The State called two witnesses at this hearing. Tankia Moore testified that she maintained the probation records for the court in which Torres was convicted in the regular course of business and that the records before the court were Torres's records, but she had never met Torres and did not have personal knowledge of the contents of Torres's file.
The State's second witness, Tony Dawson, the Harris County SAFPF coordinator, testified that Torres was unsuccessfully discharged from the SAFPF and that he had prepared Torres's discharge report based on information conveyed to him during a "treatment team meeting" with prison personnel over the telephone. He testified that a discharge from the SAFPF typically occurs when an inmate has had several incidents or a serious incident such an one resulting in an injury.
The State introduced the report prepared by Dawson in anticipation of the adjudication hearing based on the information supplied to him by SAFPF personnel—a two-page form entitled "Violation Report/Court Action"—as Exhibit 4. The report contained no specific accounts of Torres's alleged violations of the conditions of his community supervision, and there were no incident reports or other documentation supporting the report. Dawson admitted at the hearing that he had no personal knowledge of any of the violations, nor did he know the particular source of any of the alleged violations that were utilized by the SAFPF to discharge him from the program. The Report stated that Torres had been diagnosed with ADHD "and was receiving mental health treatment for the condition." It listed no "Law Violations," and, with respect to his "Reporting History," it stated only that Torres was placed in the SAFPF program as a condition of his community supervision, and that, upon arriving at the facility, he "received numerous rules violations and was unsuccessfully discharged on 06/04/2018 as a result." Under "Treatment Issues," the Report stated summarily that Torres was discharged "for behaviors like refusing to conform to rules and regulations, using racial slurs, profanity towards staff, and masturbating at a bathroom sink." The Report also stated that Torres, "due to being in [the] SAFPF," had not been able to submit an educational skill level or provide proof of a high school diploma, GED, or participation in a GED program. He had not paid court fees assessed against him because they were not yet due.
When the State asked Dawson why Torres was unsuccessfully discharged from the SAFPF, Dawson replied, "Because of the rule violations."
Under "Status/Comments and Recommendations," the Report stated that Torres's case was referred to the court due to his unsuccessful discharge from the SAFPF, and it left court action to the discretion of the trial court. The Report stated, "It appears that [Torres] was given several opportunities to follow program rules ... but failed to abide by them until his ultimate discharge." Thus, "[b]ased off of the information gathered by this CSO, and the behaviors exhibited, it would appear that [Torres] does not realize the possible serious consequences and may be in need of a clinical assessment to determine if he needs to be diagnosed with a mental illness or to determine if [he] needs medication." There is no indication that any assessment of Torres's mental health or need for medication was made in response to this comment in the five months between his discharge from the SAFPF program and his adjudication hearing. The Report was signed by Dawson and Supervisor Elisa Hughes, who did not testify at the revocation hearing.
When the State introduced this exhibit, Torres objected to the Report as hearsay and as a violation of his rights of confrontation and cross-examination unless Dawson could demonstrate personal familiarity with the facts on which the report was based. He further argued that the rights to confrontation and cross-examination were implicated because his liberty interest was at stake. In response, the State argued that the business records exception to hearsay applied because Dawson reviewed the prison records to generate his report. The State also argued that Crawford did not apply to the adjudication hearing. The trial court admitted State's Exhibit 4, and it granted Torres a running objection.
Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Crawford holds that admission of a non-testifying declarant's hearsay statement—even when the trial court had determined that the statement was admissible under a hearsay exception—may nevertheless violate the Sixth Amendment right of confrontation if the statement was testimonial and the defendant did not have a prior opportunity to cross-examine the witness. Id. at 63–68, 124 S.Ct. 1354 ; see also U.S. Const. amend. VI (providing that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him").
When asked how Torres performed in the SAFPF, Dawson testified that "he had a numerous amount of behavioral sanctions" such as refusing to conform to rules and regulations, using racial slurs, profanity towards staff, and masturbating at a bathroom sink. Dawson testified that he discharged Torres due to his rule violations. Dawson reiterated, however, that he did not have personal knowledge of the specific violations that led to Torres's discharge. Dawson admitted that he did not know who made the allegations contained in the report, that it could have been a staff member or a fellow inmate, and that he could not personally assess the veracity or credibility of any of the allegations made against Torres.
Torres testified that he entered the SAFPF program on November 16, 2017, and that he was scheduled to be discharged on June 7, 2018. He stated that, while in the program, he had obtained his GED and had also been certified in construction with an OSHA license; he had completed 108 hours of a "change class"; he had completed an 18-hour drug course; he had completed his grief class; and he was "the commencement leader and an education tutor" in his community.
Torres testified that inmates break up "into little clicks [sic] against the people they don't like," and that the complaints against him came from other inmates. He stated that the inmates hold each other accountable, and, if someone writes an inmate up and has another inmate witness it, the complaint automatically goes down into that inmate's log, and he is held accountable. He testified that that was what had happened to him. Torres denied that the allegations contained in Dawson's report were true. Specifically, he denied using profanity toward a staff member. He admitted to falling asleep in class on December 12, 2017, and that doing so was contrary to the rules of the SAFPF program. He testified that he was never disrespectful to any of his teachers in the SAFPF program.
Torres testified that he believed he had passed all his classes and graduated from the program. He further stated that, since his discharge from the SAFPF program, he had been in the Harris County Jail for five months without incident.
Torres also testified that he had sincerely tried and wanted to stay on deferred adjudication because he had one-year-old twin daughters to whom he was "trying to get home" and little brothers in CPS for whom he wanted "to get [him]self together"; his mother had "lost her mind" after doing drugs and had been placed in a psychiatric ward and then transferred to prison; and he was "trying to get the little family I have left back on track." Torres testified that he had learned in the SAFPF to set boundaries with people and to stay away from temptations and that using drugs and criminal activity were "just a revolving cycle." At the time of the revocation hearing, Torres was twenty years old. He promised the trial court that he would be a productive member of society if stayed on probation.
At the conclusion of the hearing, the trial court granted the State's motion, found Torres guilty of the first-degree felony offense of aggravated robbery with a deadly weapon, and assessed his punishment at twenty years' confinement.
Analysis
In his first issue, Torres contends that the trial court committed constitutional error when it admitted Dawson's violation report and his related testimony over defense counsel's objections that its admission violated his right to confrontation and cross-examination. To support his contention, he cites the Court of Criminal Appeals' opinion in Ex Parte Doan , holding that "[c]ommunity-supervision revocation proceedings are not administrative hearings; they are judicial proceedings, to be governed by the rules established to govern judicial proceedings." 369 S.W.3d 205, 212 (Tex. Crim. App. 2012).
Before the Court's decision in Doan , a number of courts of appeals had concluded that the Confrontation Clause did not apply to community supervision revocation proceedings. See e.g., Mauro v. State , 235 S.W.3d 374, 375–76 (Tex. App.—Eastland 2007, pet. ref'd) ; Trevino v. State , 218 S.W.3d 234, 239 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The State contends, however, that neither Doan nor any subsequent authority expressly considered the issue of whether the Confrontation Clause applies to community supervision revocation proceedings. Nor has the Court of Criminal Appeals overruled any of those pre-2012 intermediate appellate court decisions holding that the Confrontation Clause does not apply in revocation proceedings, and several courts of appeals have determined post- Doan that the Confrontation Clause does not apply during community supervision revocation proceedings. See Sabella v. State , 578 S.W.3d 137, 142 (Tex. App.—Texarkana 2019, no pet.) ; Olabode v. State , 575 S.W.3d 878, 881 (Tex. App.—Dallas 2019, pet. ref'd) ("By its own terms, the Confrontation Clause applies only to criminal prosecutions, and a probation revocation, whether it follows ‘regular’ probation or deferred adjudication probation, is not a stage of criminal prosecutions."); see also Corona v. State , No. 14-17-00821-CR, 2019 WL 1768598, at *2–3 (Tex. App.—Houston [14th Dist.] Apr. 23, 2019, no pet.) (mem. op., not designated for publication) ("A community supervision revocation hearing is not part of a criminal prosecution.").
Thus, the question of whether the Confrontation Clause applies in this context remains unsettled. In unpublished memorandum opinions, two courts—including this one—have assumed without deciding that revocation hearings are criminal proceedings for purposes of the Confrontation Clause. See Blackman v. State , No. 01-1-00525-CR, 2014 WL 50804, at *3 (Tex. App.—Houston [1st Dist.] Jan. 7, 2014, pet. ref'd) ("We acknowledge that Doan did not decide the issue of whether a defendant has a right to confront witnesses during a community supervision revocation, and no case since Doan has revisited that issue. However, for purposes of this opinion, we will assume without deciding, that a defendant can raise a Confrontation Clause objection in a community-supervision revocation proceeding."); Bacilio v. State , No. 08-14-00096-CR, 2016 WL 1253420, at *3 (Tex. App.—El Paso Mar. 30, 2016, pet. ref'd) (mem. op., not designated for publication). The State further asserts that Torres failed to preserve his specific complaints regarding the hearsay contained within the Report, and we are mindful that a trial court has broad discretion in determining the admissibility of evidence. See Gonzalez v. State , 544 S.W.3d 363, 370 (Tex. Crim. App. 2018) (explaining that appellate courts review rulings admitting evidence under abuse-of-discretion standard). Thus, in deciding whether any error occurred, the appellant must establish the ruling that is the subject of his complaint on appeal was one that "lies outside the zone of reasonable disagreement." See id.
Given the unsettled nature of the law regarding the right to confrontation during revocation and adjudication hearings and the broad discretion granted to the trial court in determining the admissibility of Dawson's discharge report, we turn, instead, to Torres's second issue regarding the sufficiency of the evidence supporting the trial court's revocation of his community supervision, adjudication of guilt, and assessment of punishment. We conclude that, even assuming that the trial court did not abuse its discretion in admitting the report, the evidence was insufficient for the trial court to properly exercise its discretion in revoking Torres's deferred adjudication community supervision.
Because we conclude that the trial court lacked sufficient evidence upon which it could exercise its discretion and, thus, remand for a new hearing is necessary, and because the resolution of his first issue would not afford him any greater relief, we need not address his first issue. See Tex. R. App. P. 47.1 ; Love v. State , 600 S.W.3d 460, 485 (Tex. App.—Fort Worth 2020, pet. ref'd) (holding that, because appellant's remaining issues, even if sustained, could not afford him any greater relief, they need not be addressed); Alvarez v. State , 570 S.W.3d 792, 795 (Tex. App.—Houston [1st Dist.] 2018, pet. ref'd) (stating same).
The State must prove by a preponderance of the evidence that the defendant violated a term of his community supervision to justify adjudication, and we review the evidence's sufficiency under an abuse of discretion standard. Rickels v. State , 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) ; Cardona v. State , 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). Only one sufficient ground is necessary to support a trial court's decision to revoke community supervision. Smith v. State , 286 S.W.3d 333, 342 (Tex. Crim. App. 2009) ; see also Garcia v. State , 387 S.W.3d 20, 26 (Tex. Crim. App. 2012) (stating proof of single violation will support revocation).
In Leonard v. State , the Court of Criminal Appeals expounded on the abuse-of-discretion standard of review as applied to a trial court's adjudication of guilt following revocation of deferred adjudication community supervision. 385 S.W.3d 570, 575–77 (Tex. Crim. App. 2012). In Leonard , the defendant was ordered to complete a treatment program as a condition of his community supervision, and he was adjudicated guilty because he failed to complete that program. Id. at 576. The Court of Criminal Appeals considered whether the reasons behind the appellant's discharge from the program were relevant to determining whether the trial court abused its discretion:
The appellant in Leonard v. State was ordered to complete a sex-offender treatment program. 385 S.W.3d 570, 572 (Tex. Crim. App. 2012).
In a revocation proceeding, the trial court has discretion to revoke community supervision when a preponderance of the evidence supports one of the State's allegations that the defendant violated a condition of his community supervision. Though defendants are not entitled to community supervision as a matter of right, once a defendant is assessed community
supervision in lieu of other punishment, this conditional liberty "should not be arbitrarily withdrawn by the court...." On appeal from a trial court's decision to revoke, therefore, appellate courts review the record only to ensure that the trial court did not abuse its discretion.
Id. (internal citations omitted). The Leonard court went on to note that "it is not obvious how an abuse-of-discretion standard applies in this case," observing that
[t]he trial court ordered the appellant to "[a]ttend and participate fully in and successfully complete" a program. The evidence at the adjudication hearing showed that the appellant did "[a]ttend" and "participate fully" in the program, both of which were within his power to do. The appellant did not have full control over his ability to "successfully complete" the program, however; he was discharged because the therapist came to believe that he was being dishonest. Thus it was the therapist's discretion that caused the appellant to be in violation of a term of his community supervision.
Id. at 576–77.
The court thus held that an "ordinary abuse-of-discretion review"—one requiring only evidence that "[d]ischarge caused the appellant to be in violation"—would be "inadequate." Id. at 577. It held, instead:
Revocation involves the loss of liberty and therefore implicates due process. "The central issue to be determined in reviewing a trial court's exercise of discretion in a [community supervision] revocation case is whether the [defendant] was afforded due process of law." It would surely offend due process if a defendant were discharged from his therapy program for a wholly inappropriate reason—such as illegal discrimination or mere caprice—and the bare fact of that discharge were used as a basis to revoke the defendant's community supervision. Yet, by an ordinary abuse-of-discretion review, such a revocation would be sustained.
What has happened here is that the trial court, through a condition of the appellant's community supervision, made the appellant's compliance with the terms of his community supervision subject to the discretion of a third party. In such a case, to determine whether the trial court abused its discretion we must also examine the third party's use of its discretion to ensure that it was used on a basis that was rational and connected to the purposes of community supervision.
Id. (internal citations omitted).
We conclude that the abuse-of-discretion standard articulated in Leonard is applicable here. Therefore, in reviewing whether the trial court abused its discretion we must also examine the SAFPF's use of its discretion to ensure that it was used on a basis that was rational and connected to the purposes of community supervision. See id.
Torres's circumstances are factually similar to the appellant in Leonard in several key ways. Here, as in Leonard , the trial court ordered Torres to treatment through a third-party program and to comply with the program's rules. The evidence at Torres's adjudication hearing showed that he was successfully completing the SAFPF program as of May 1, 2018, when the trial court signed its "Order Releasing From Substance Abuse Felony Punishment Facility." However, later that same month, he was discharged unsuccessfully from the program.
The State presented insufficient evidence regarding the reasons for Torres's discharge from the program. The Report contains only conclusory statements that Torres had violated "rules" of the program and summarily states that Torres was discharged "for behaviors like refusing to conform to rules and regulations, using racial slurs, profanity towards staff, and masturbating at a bathroom sink." The Report provides no further detail, elaboration, or supporting facts. Dawson admitted that he did not have any personal knowledge regarding Torres's behavior or the incidents referenced in his report. He did not know anything about the basis of these complaints, and he acknowledged that they could have been made by Torres's fellow inmates. The State failed to include in the record any incident reports or other information that would provide the trial court with details behind the conclusory allegations presented against Torres. Nor did the State present any evidence regarding the source of the allegations against Torres.
The conclusory nature of the report stands in stark contrast to the other record evidence. On May 1, 2018, the trial court signed an order acknowledging that Torres was successfully completing the program and was set to be discharged a little more than a month later, on June 7, 2018. Before that could occur, however, he was recommended for removal from the program on May 30, 2018. Nevertheless, the following month, the SAFPF filed a "SAFPF Progress and Conduct Report" with the trial court. This progress report stated that since he had been recommended for removal from the program on May 30, 2018, Torres had been participating in groups and classes appropriately, had maintained a respectful attitude, had not received any sanctions, and had not had any disciplinary problems. The counselor commented that if he had "put forth as much effort prior to the recommendation for Behavioral Removal, Torres would have successfully completed the program." Torres himself testified that he believed he had completed all that the program had required of him and that the complaints against him had been fabricated by fellow inmates who had formed a clique. Dawson acknowledged that the reports of bad behavior and rule violations could have come from other inmates. And the evidence suggests that Torres had completed at least some portion of the program: Torres testified that, while in the program, he had obtained his GED and had also been certified in construction with an OSHA license; he had completed 108 hours of a "change class"; he had completed an 18-hour drug course; he had completed his grief class; and he was "the commencement leader and an education tutor" in his community.
Given the nature of the evidence, we conclude that the State did not present sufficient evidence for the trial court to properly exercise its discretion in this case. The Report itself is evidence only of the fact that Torres was discharged unsuccessfully from the program. The State asserted at trial that it only had to prove that Torres had violated a term of his community supervision by being unsuccessfully discharged from the SAFPF. But, as Leonard points out, once Torres was assessed community supervision in lieu of other punishment, this conditional liberty "should not be arbitrarily withdrawn by the court." 385 S.W.3d at 576. This is still true when, as here, "through a condition of the appellant's community supervision," the trial court made "compliance with the terms of his community supervision subject to the discretion of a third party." Id. at 577.
Here, as in Leonard , "[t]he central issue to be determined ... is whether [Torres] was afforded due process of law" in connection with the trial court's exercise of its discretion. Id. at 576. And we conclude that it "would surely offend due process" if Torres "were discharged from his therapy program for a wholly inappropriate reason—such as illegal discrimination or mere caprice—and the bare fact of that discharge were used as a basis to revoke the defendant's community supervision." See id. at 577. Because the record does not contain a sufficient explanation of the reasons or incidents behind Torres discharge, the trial court could not have determined whether the SAFPF's reasons were appropriate, or whether, as Torres himself asserted, they were based solely on unfounded allegations from fellow inmates. Leonard requires that the trial court consider the soundness of the SAFPF's use of its discretion to ensure that it was used on a basis that was rational and connected to the purposes of community supervision. See id. Here, the trial court failed to do so when it exercised its discretion to revoke Torres's community supervision, adjudicate his guilt, and assess his punishment at 20 years' confinement based solely on conclusory statements passed from the SAFPF program through a witness who had no personal knowledge of the circumstances leading to Torres's unsuccessful discharge from the program.
Accordingly, we sustain Torres's second issue on appeal.
Conclusion
We reverse the trial court's judgment and remand for further proceedings consistent with this opinion.
Justice Keyes, concurring.
CONCURRING OPINION
Evelyn V. Keyes, Justice
I join the majority opinion, but write separately to address the contentions of appellant, Andres Torres, that he had the right to confront and cross-examine witnesses against him at his revocation and adjudication hearing and, more generally, that he had a liberty interest at stake in those proceedings that entitled him to minimum due process that he did not receive.
Appellant brings two issues. In his first issue, appellant argues that "[t]he trial court committed fundamental constitutional error when it admitted a hearsay ‘violation report’ and related testimony over defense counsel's objections: hearsay, violation of the right of confrontation, and violation of the right to cross-examination." In his second issue, appellant argues that "[b]ecause the State offered no evidence—other than the hearsay from the violation report—that [appellant] violated any condition of his deferred adjudication, the trial court abused its discretion when it revoked his community supervision." Appellant casts these as "liberty" or due process issues.
With respect to appellant's first issue, the majority, citing several intermediate appellate court cases, characterizes the question of whether a defendant has rights under the Confrontation Clause at a revocation and adjudication hearing as "unsettled" and notes that, in a previous case, this Court assumed, without deciding, that a defendant may raise a Confrontation Clause objection during a revocation proceeding. See Op. at 101–02. Rather than address this constitutional question, the majority reverses the judgment of the trial court on the basis that the State did not present sufficient evidence to support revocation of appellant's community supervision.
I agree with the majority that the State failed to prove by a preponderance of the evidence that appellant violated the terms and conditions of his community supervision, and I join the majority opinion on this issue. I would, however, address the questions that the majority leaves unanswered concerning whether appellant had the right to confront and cross-examine the witnesses against him at his revocation and adjudication proceeding and whether he had a fundamental constitutional liberty interest, or right to due process, that was violated by those proceedings. I would hold that a defendant does have these rights and that appellant, specifically, was deprived of his fundamental constitutional Sixth and Fourteenth Amendment rights to minimal due process and confrontation and cross-examination of the witnesses against him at the revocation hearing. I would also hold that the controlling United States Supreme Court and Texas Court of Criminal Appeals law is clear in this case, and the law as stated in the intermediate appellate court cases cited by the majority is directly contrary to this controlling law on these issues and should be expressly overruled.
Subject to these fundamental issues, I would further hold that the trial court's revocation of appellant's community supervision was based solely on inadmissible hearsay that did not meet the requirements for admissibility under the business records exception to the hearsay rule. Therefore, the evidence was legally insufficient to support revocation and did not justify the trial court's proceeding to adjudicate appellant's guilt. The trial court's revocation of appellant's community supervision, adjudication of his guilt for the charged offense, and assessment of appellant's punishment at twenty years' confinement was therefore an abuse of appellant's fundamental constitutional rights to minimal due process and confrontation and an abuse of discretion.
I would reverse the judgment of the trial court and remand the case for a new hearing on revocation of appellant's community supervision and—contingent on the trial court's determination under controlling law that appellant's community supervision should be revoked, rather than reinstated or amended—a new adjudication hearing.
Background Facts
Appellant, who was seventeen years old at the time of the underlying offense, was charged as an adult with the first-degree felony offense of aggravated robbery. On June 30, 2017, he pleaded guilty as part of a plea bargain, and the trial court deferred adjudication of guilt and placed him on community supervision for ten years. The trial court ordered appellant to participate in treatment in a facility for offenders with substance abuse problems, the Substance Abuse Felony Punishment Facility (SAFPF). The terms and conditions of appellant's community supervision required him to
comply with all rules, regulations, and treatment programs and upon release [from SAFPF, appellant] is required to participate in a drug or alcohol abuse continuum of care treatment plan as developed by the Texas Commission on Alcohol and Drug Abuse (TCADA), abiding by all rules and regulations of said treatment plan until discharged by the Court.
Appellant acknowledged and signed these terms and conditions.
On June 26, 2018, the State filed a motion to adjudicate guilt, alleging that appellant had violated the conditions of his community supervision by failing to complete the SAFPF program. At the hearing on the State's motion to adjudicate, Tony Dawson testified that he was the SAFPF coordinator for Harris County and that he had prepared the report discharging appellant from the SAFPF program based on information conveyed to him by prison personnel. Among the exhibits the trial court admitted into evidence was Exhibit 4, appellant's SAFPF "Violation Report," or discharge report, prepared by Dawson based on information supplied to him by SAFPF personnel. Dawson acknowledged that he did not have personal knowledge of any of the information contained in the report. No witness with personal knowledge of any of the SAFPF rules and regulations that appellant allegedly violated, resulting in his discharge from the program, testified at the revocation hearing.
At the beginning of Dawson's testimony about Exhibit 4, defense counsel objected to the Report as hearsay and as denying appellant his rights of confrontation and cross-examination. Counsel for the State responded that he had established that that the Report was a business record and "additionally, there is no confrontational clause required for an administrative hearing, like this Motion to Adjudicate." Following the court's admission of the Report into evidence and voir dire of Dawson, which again demonstrated his lack of personal knowledge of the facts upon which the Report was based, defense counsel again stated:
We'll object, Your Honor, for lack of personal knowledge. We'll also object because of hearsay and confrontation and cross. Our position is that we have a liberty interest here at stake in [appellant] and, therefore, confrontation and cross should apply when [appellant]'s liberty is at stake in this hearing. And for all those reasons, we would object to the admission of State's Exhibit No. 4.
On cross-examination by defense counsel, Dawson again admitted that he had no personal knowledge of any facts supporting any of the allegations contained in Exhibit No. 4, and he could not identify any specific act by appellant that violated any specific rules or regulations. Nor could he personally assess the veracity or the credibility of any of the allegations made against appellant. Dawson agreed that, based on Exhibit 4, there was no way of telling who had made the allegations against appellant. The State passed the witness without redirect examination.
In closing, the defense argued that there was no evidence as to what the SAFPF rules were and no evidence of any rule violations based on competent testimony of a witness with firsthand knowledge, so that the State had failed to prove its central allegation. In response, the State argued that all it had to prove was that "this was an unsuccessful discharge." As for "[t]he exact character and specific rule violations," the State argued, "we've alleged that he was unable to complete the SAFPF program."
At the conclusion of these arguments, the trial court found "from a preponderance of the evidence"—the burden of proof for revocation of community supervision—"that the allegations in the Motion to Adjudicate Guilt are true." It thereupon turned to adjudication and found appellant guilty of the first-degree offense of aggravated robbery with a deadly weapon. After allowing brief arguments from counsel as to punishment, it sentenced appellant to twenty years in prison, as recommended by the State. This appeal followed.
Argument
In two issues, appellant argues that the trial court committed fundamental constitutional error, in violation of his liberty interest, by admitting Exhibit 4, the Violation Report, and related testimony over defense counsel's objections to "hearsay, violation of the right of confrontation, and violation of the right to cross-examination." The State denies that the Confrontation Clause applies to this case, and it contends the evidence supporting appellant's violation of the terms of his community supervision—specifically, the Report—was properly admitted under the business records exception to the hearsay rule and was sufficient to support revocation of his community supervision and the subsequent adjudication of his guilt. The State contends that revocation proceedings are administrative proceedings to which constitutional rights do not attach, and all it needed to show is that appellant violated the terms of his community supervision, which the Report, a business record, did show.
A. Applicable Law: The Confrontation Clause and the Hearsay Rule
Appellant's arguments that his community supervision was improperly revoked and he was, therefore, improperly adjudicated guilty of the charged crime of aggravated robbery turn on the applicability of the Confrontation Clause to revocation and adjudication hearings as well as the requirement that the facts justifying revocation be proved in accordance with the Texas Rules of Evidence regarding hearsay and with the minimum requirements of constitutional due process.
1. The Confrontation Clause
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." U.S. CONST. amend. VI. The right of confrontation includes "not only the right to face-to-face confrontation, but also the right to meaningful and effective cross-examination." Coronado v. State , 351 S.W.3d 315, 325 (Tex. Crim. App. 2011) (citations omitted). Admission of a hearsay statement made by a non-testifying declarant violates the Confrontation Clause if the statement was testimonial and the defendant did not have a prior opportunity to cross-examine the witness. Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ; see also Woodall v. State , 336 S.W.3d 634, 642 (Tex. Crim. App. 2011) ("[T]o implicate the Confrontation Clause, an out-of-court statement must (1) have been made by a witness absent from trial and (2) be testimonial in nature."). A statement is "testimonial" when circumstances objectively indicate it was made for the primary purpose of "establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution." Langham v. State , 305 S.W.3d 568, 576 (Tex. Crim. App. 2010) (quoting Davis v. Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) ); De La Paz v. State , 273 S.W.3d 671, 680 (Tex. Crim. App. 2008).
2. Hearsay and the Business Records Exception
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. TEX. R. EVID. 801(d). Under the Rules of Evidence, hearsay generally is not admissible unless a statute or rule provides otherwise. See TEX. R. EVID. 802. One such exception is provided in Rule of Evidence 803(6) for business records:
A record of an act, event, condition, opinion, or diagnosis [is not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness] if:
(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted business activity;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness ...; and
(E) the opponent fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness....
B. Applicability of Minimal Constitutional Guarantees of Confrontation and Due Process of Law to Revocation Hearings
Citing Ex parte Doan , 369 S.W.3d 205 (Tex. Crim. App. 2012), appellant contends that the adjudication hearing was a "criminal prosecution" within the meaning of the Confrontation Clause and that, therefore, the Confrontation Clause applied to his revocation and adjudication hearing. The State argues that this hearing was an administrative proceeding and that the Confrontation Clause does not apply to such hearings.
As the majority acknowledges, the Court of Criminal Appeals addressed the issue of the nature of community-supervision revocation proceedings in Doan. Contrasting these hearings with federal revocation hearings, it held that "[c]ommunity-supervision revocation proceedings are not administrative hearings; they are judicial proceedings, to be governed by the rules established to govern judicial proceedings." Doan , 369 S.W.3d at 212. The majority notes that several intermediate appellate court cases decided before Doan and several cases decided afterwards have concluded that the Confrontation Clause does not apply to community supervision revocation proceedings. See Olabode v. State , 575 S.W.3d 878, 881 (Tex. App.—Dallas 2019, pet. ref'd) ("By its own terms, the Confrontation Clause applies only to criminal prosecutions, and a probation revocation, whether it follows ‘regular’ probation or deferred adjudication probation, is not a stage of criminal prosecutions."); Mauro v. State , 235 S.W.3d 374, 375–76 (Tex. App.—Eastland 2007, pet. ref'd) ; Trevino v. State , 218 S.W.3d 234, 239 (Tex. App.—Houston [14th Dist.] 2007, no pet.) ; see also Corona v. State , No. 14-17-00821-CR, 2019 WL 1768598, at *3 (Tex. App.—Houston [14th Dist.] Apr. 23, 2019, no pet.) (mem. op., not designated for publication) ("A community supervision revocation hearing is not part of a criminal prosecution.").
The majority also notes that this Court has previously assumed, without expressly deciding the issue, that revocation hearings are criminal proceedings for purposes of the Confrontation Clause. See Blackman v. State , No. 01-12-00525-CR, 2014 WL 50804, at *3 (Tex. App.—Houston [1st Dist.] Jan. 7, 2014, pet. ref'd) (mem. op., not designated for publication) ("We acknowledge that Doan did not decide the issue of whether a defendant has a right to confront witnesses during a community supervision revocation, and no case since Doan has revisited that issue. However, for purposes of this opinion, we will assume without deciding, that a defendant can raise a Confrontation Clause objection in a community-supervision revocation proceeding.").
The majority characterizes the law concerning this issue as "unsettled" and does not address the question of whether the Confrontation Clause applies in hearings to revoke a defendant's deferred adjudication community supervision, turning instead to appellant's second issue. I would address this question and would conclude that, under controlling United States Supreme Court and Court of Criminal Appeals precedent, the Confrontation Clause applies to revocation proceedings. The opinions from our sister courts cited in the majority opinion all fail to recognize the full import of Doan. Thus, they fail to give weight—much less controlling weight—to the Texas Court of Criminal Appeals' holding in that case.
Doan explains the similarities and differences in revocation hearings in federal and state courts in light of controlling United States Supreme Court precedent governing constitutional rights. First, it distinguishes between a federal probation revocation hearing, which is an administrative proceeding that requires a preliminary hearing to determine probable cause to believe a probationer has violated a condition of his probation before proceeding to a hearing before the parole authority, and the Texas system, which is based in the courts and has only one hearing. Doan , 369 S.W.3d at 209–10. The Court of Criminal Appeals stated:
In Texas, the State is represented by a prosecutor, the defendant does have a right to counsel, the hearing is before the judge, formal rules of evidence do apply, and there may be appeal directly to a court of appeals. They are conducted entirely within the judicial branch. The Rules of Evidence and the exclusionary rule to bar illegally seized evidence apply fully in a Texas probation revocation hearing. Indeed, aside from the burden of proof required to prove a community-supervision violation (preponderance of the evidence, which is lower than the burden of proof beyond a reasonable doubt that is required to prove a new criminal offense), there are few procedural differences between a Texas criminal trial and a Texas community-supervision revocation proceeding.
Id. at 210.
The court then went on to state the purpose of a community-supervision revocation proceeding. It observed that there is an administrative aspect to community supervision revocation hearings in Texas state court in that, "[e]ven if a community-supervision violation is proven, the trial court has the discretion to continue or modify the terms of community supervision rather than revoking it," and the court "has the discretion to make this determination based on its weighing of policies, such as protecting the public and rehabilitating the offender." Id. at 212. It then explained the difference between revocation proceedings and administrative proceedings:
A Texas community-supervision revocation proceeding involves the application of law to past facts that remain static. It is conducted according to judicial rules before a trial judge, not an administrative agency. Applying administrative law—the law that governs the decision-making processes of administrative agencies—to revocation hearings has no basis in the Code of Criminal Procedure. Community-supervision revocation proceedings are not administrative hearings; they are judicial proceedings, to be governed by the rules established to govern judicial proceedings.
Id.
In explicating this law, the Court of Criminal Appeals relied heavily on United States Supreme Court precedent, primarily Morrissey v. Brewer , 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli , 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
Morrissey was a federal revocation of parole case. In that case, the Court held that the minimum due process requirements for revocation of parole include both a preliminary inquiry to determine probable cause to arrest the defendant after an alleged parole violation and a revocation hearing. Morrissey , 408 U.S. at 485–89, 92 S.Ct. 2593. The Court further opined that—unlike the revocation of deferred adjudication community supervision at issue in this case—revocation of parole arises after criminal prosecution and the imposition of sentence and is not part of the criminal prosecution; thus, the full panoply of rights due the defendant in a criminal proceeding does not apply to a parole revocation hearing. Id. at 480, 92 S.Ct. 2593. This does not mean, however, that no constitutional rights apply. In a parole revocation proceeding, the question as to which rights apply turns on whether the parolee is facing "grievous loss" and whether the nature of the individual's interest at stake is "within the contemplation of the ‘liberty or property’ language of the Fourteenth Amendment," which, in a parole case (as in a community supervision case), is the interest of the defendant in his continued liberty. Id. at 481–82, 92 S.Ct. 2593. The Court concluded that the defendant's liberty interest "is valuable and must be seen as within the protection of the Fourteenth Amendment," such that the termination of that interest "calls for some orderly process." Id. at 482, 92 S.Ct. 2593. However, the question remained as to what amount of process is due. Id. at 483, 92 S.Ct. 2593.
The Supreme Court reasoned that, as a parolee has already been found guilty, and with release on parole there is always a risk that the parolee will commit additional anti-social acts, the State must be able to return the parolee to prison "without the burden of a new adversary criminal trial if in fact [the parolee] has failed to abide by the conditions of his parole." Id. However, both the parolee and society have a stake in "restoring him to normal and useful life within the law," as well as an interest in treating him with basic fairness. Id. at 484, 92 S.Ct. 2593. Therefore, an informal hearing is needed to assure that the finding of a parole violation will be based on verified facts and the exercise of discretion concerning whether to revoke parole will be informed by an accurate knowledge of the parolee's behavior. Id. Under federal law, this hearing need not be conducted by a judicial officer—although under Texas law it is—and certain "minimum requirements of due process " must be met. Id. at 485–89, 92 S.Ct. 2593 (emphasis added). Moreover, if the parolee desires, he must be given the opportunity for a formal hearing leading to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. Id. at 487–88, 92 S.Ct. 2593. Under Texas law, the informal and the formal hearing are combined in one judicial proceeding, as the Court of Criminal Appeals explained in Doan. See 369 S.W.3d at 210, 212.
The Supreme Court also sketched out the minimal due process requirements of a revocation of parole hearing in Morrissey and quoted Morrissey on those requirements the next year in Scarpelli , a revocation of probation case:
(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him ; (c) opportunity to be heard in person and to present witnesses and documentary evidence ; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.
Morrissey , 408 U.S. at 489, 92 S.Ct. 2593 (emphasis added); see Scarpelli , 411 U.S. at 786, 93 S.Ct. 1756 (quoting Morrissey , 408 U.S. at 489, 92 S.Ct. 2593 ). In addressing revocation of probation in Scarpelli , the Supreme Court clearly stated that there is no "difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation" in that it "does result in a loss of liberty." 411 U.S. at 782, 93 S.Ct. 1756.
If these minimal due process requirements apply to both parolees and probationers who have already been convicted of a crime, they necessarily apply all the more at a revocation of community supervision hearing where adjudication of guilt has been deferred and made dependent on the successful completion of the terms of community supervision, as here. Indeed, the "minimal requirements of due process" apply in this deferred adjudication case for the exact same reason they apply in federal administrative proceedings to revoke parole or probation: the revocation of community supervision results in a loss of liberty, a right protected by the Due Process Clause, as appellant has claimed.
Moreover, in this type of case, the loss of liberty—here, appellant's being adjudicated guilty and sentenced to twenty years in prison—is more profound than in either Morrissey or Scarpelli , as in both those cases the defendant had already been convicted of a crime and sentenced to lose his liberty and so knew exactly what he stood to lose if he did not successfully complete his parole or probation. Yet here, appellant, upon being unsuccessfully discharged from the SAFPF program, faced revocation of his community supervision and the possibility of a sentence anywhere within the statutory punishment range for a first-degree felony—from five to ninety-nine years' confinement or confinement for life—but he was afforded none of the safeguards of due process afforded parolees and probationers in Morrissey and Scarpelli —including the constitutional Fourteenth Amendment due process rights to notice of the acts upon which revocation of community supervision and the loss of his liberty were predicated, a written statement of the evidence relied on to justify revocation, and the constitutional Sixth Amendment rights to confront and cross-examine adverse witnesses—exactly the rights appellant claims he was due.
And there is an additional reason for according these constitutional protections to the defendant in a revocation of community supervision proceeding. The first step in a revocation proceeding, according to the Supreme Court, "involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole." Morrissey , 408 U.S. at 479, 92 S.Ct. 2593 (emphasis added). If it is determined that he has, (1) the thrust of the probation-parole movement—keeping offenders in the community and working to rehabilitate them—changes to (2) an interest "in the accurate finding of fact and the informed use of discretion" to ensure that the probationer or parolee's liberty is not unjustifiably taken away and also to make certain that the State "is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community." See Scarpelli , 411 U.S. at 785, 93 S.Ct. 1756.
This first step too was denied to appellant in that he was afforded none of the constitutionally mandated means to determine whether he had in fact acted in violation of one or more specified conditions of his probation and no basis was provided upon which the court could determine whether the State was unnecessarily interrupting a successful effort at rehabilitation or not. Appellant's possibility of rehabilitation was not considered at all.
Finally, if there were any lingering doubt as to whether minimal constitutional due process guarantees—including the Sixth Amendment right "to confront and cross-examine adverse witnesses"—apply to revocation proceedings, the Court of Criminal Appeals has, since Doan , made it clear that they do. In Leonard v. State , the court expressly repudiated the claim made by the State in this case that the abuse-of-discretion standard of review in revocation cases is satisfied simply by evidence that the appellant was discharged from a program made a condition of community supervision. 385 S.W.3d 570, 577 (Tex. Crim. App. 2012) (holding that, when defendant's compliance with terms of community supervision is "subject to the discretion of a third party," such as requirement that defendant successfully complete therapy program, appellate review of whether trial court abused its discretion in revoking community supervision must also involve examining "third party's use of its discretion to ensure that it was used on a basis that was rational and connected to the purposes of community supervision").
The Leonard court opined: "Revocation involves the loss of liberty and therefore implicates due process." Id. (citing Caddell v. State , 605 S.W.2d 275, 277 (Tex. Crim. App. 1980) ). Thus, "The central issue to be determined in reviewing a trial court's exercise of discretion in a [community supervision] revocation case is whether the [defendant] was afforded due process of law." Id. (quoting DeGay v. State , 741 S.W.2d 445, 450 (Tex. Crim. App. 1987) ). The court remarked that it "would surely offend due process if a defendant were discharged from his therapy program for a wholly inappropriate reason—such as illegal discrimination or mere caprice—and the bare fact of that discharge were used as a basis to revoke the defendant's community supervision," even though by an ordinary abuse of discretion standard of review that revocation would be sustained. Id. Yet here, exactly what the Court of Criminal Appeals declared an abuse of discretion and an offense to due process happened—appellant's community supervision was revoked on the bare fact of his discharge from the SAFPF program without any competent evidence of the underlying facts justifying revocation and a change in direction from rehabilitation to protection of the community.
That appellant was, in fact, denied even minimal due process rights when his liberty was at stake and that the revocation of his community supervision, adjudication of his guilt, and his sentencing to twenty years in prison were arbitrarily and capriciously determined on the basis of the bare fact of his discharge from the SAFPF program is not only expressly made clear by the State's own argument that nothing more was necessary, it is made even clearer when we consider appellant's second issue.
C. Admissibility of Evidence Supporting Revocation Under the Business Records Exception to the Hearsay Rule
In his second issue, appellant argues that, because the State offered no evidence that he violated any condition of his community supervision, other than hearsay from Exhibit 4, the Violation Report prepared by Dawson, the court abused its discretion in revoking his community supervision without sufficient supporting evidence.
Appellant contends that the content of the Report is inadmissible hearsay within hearsay and that the Report was also improperly admitted into evidence as a business record; therefore, there was no evidence upon which to predicate revocation of his deferred adjudication community supervision. Appellant also argues that, once his counsel objected to the admission of the Report as violating the Confrontation Clause under Crawford , the burden shifted to the State to establish that it was admissible. Thus, the State was required to show that the Report did not contain hearsay statements or, if it did, the statements were nevertheless admissible over a hearsay objection. See De La Paz , 273 S.W.3d at 680–81 ; Vinson v. State , 252 S.W.3d 336, 340 (Tex. Crim. App. 2008) (stating that proponent of evidence has burden of establishing admissibility of proffered evidence, and once objection to evidence is made, proponent must demonstrate that evidence overcomes stated objection); see also Juarez v. State , 461 S.W.3d 283, 298 (Tex. App.—Texarkana 2015, no pet.) ("If a report contains some hearsay statement, the hearsay statement must fall under some hearsay exception of its own because neither the public records and reports exception nor the records of regularly conducted activities exception protects hearsay within hearsay.") (quoting Perry v. State , 957 S.W.2d 894, 899–900 (Tex. App.—Texarkana 1997, pet. ref'd) ).
If appellant's claims are correct, his community supervision was indeed revoked in violation of the minimum due process standards for such proceedings set out in Morrissey, Scarpelli , Doan , and Leonard. I would hold that his claims are indeed correct. The conclusory statements in Exhibit 4 regarding appellant's unspecified violations of unidentified rules were offered as the only evidence of appellant's violation of the conditions of his community supervision. These statements thus clearly satisfy the definition of hearsay as out-of-court statements offered to prove the truth of the matters asserted in the Report. See TEX. R. EVID. 801(d). The question, therefore, is whether the statements were properly admitted into evidence under the business records exception to the hearsay rule when offered by the State as Dawson's Report. And, again, they clearly were not.
Contrary to subsection (A) of the business records exception, Dawson, the author of the Report, testified that he did not have personal knowledge of the facts of the violations listed in the Report, nor did he have knowledge of which rules were violated or when they were violated. See TEX. R. EVID. 803(6)(A) ; Canseco v. State , 199 S.W.3d 437, 440 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (stating that probation file is admissible as business record, even though testifying witness does not have personal knowledge of entries in file, "so long as the personnel who made the entries did have personal knowledge of the facts therein"). Moreover, both the questioning of Dawson by defense counsel and the testimony of appellant himself on cross-examination by the State indicate the lack of trustworthiness of the sources of the information in the Report. Dawson was unable to identify the sources or facts alleged as violations of the rules of the SAFPF program and could not rebut any of appellant's testimony controverting or placing in context these alleged violations. See TEX. R. EVID. 803(6)(E) (providing that record is admissible as business record if, in addition to other requirements, opponent to admission of record "fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness"); Philpot v. State , 897 S.W.2d 848, 852 (Tex. App.—Dallas 1995, pet. ref'd) ("[E]vidence that qualifies under the business-records exception [to the hearsay rule] may still be excluded if the evidence does not have adequate indicia of trustworthiness."); see also Porter v. State , 578 S.W.2d 742, 746 (Tex. Crim. App. 1979) (holding, in capital murder case, that letters contained in defendant's federal parole file, which pre-dated charged offense, were not admissible under business records exception because letters "contain hearsay upon hearsay, as well as opinions regarding [the defendant's] mental and physical condition and his amenability to rehabilitation," sources of most opinions in letters were unnamed, "in no case are the authors or the unnamed sources shown to be competent to make the statements attributed to them," and despite being collected in government file, letters did not "have the indicia of reliability sufficient to insure the integrity of the fact finding process commensurate with the constitutional rights of confrontation and cross-examination").
Exhibit 4 and its use just as clearly violated the Confrontation Clause, as the contents of the Report were all out-of-court statements made by witnesses absent from trial and were all testimonial in that the circumstances indicate that they were made for "the primary purpose" of "establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution." Langham , 305 S.W.3d at 576 (quoting Davis , 547 U.S. at 822, 126 S.Ct. 2266 ). Nor did appellant have a prior opportunity to cross-examine the unidentified persons with personal knowledge who reported the alleged violations indirectly to Dawson through team members in the phone call upon which appellant's expulsion from the SAFPF program was predicated. Appellant did not even have the opportunity to confront and cross-examine Dawson himself meaningfully as an adverse witness, since Dawson testified that he had no personal knowledge of the underlying historical facts upon which he based his report.
This procedure plainly disregarded the minimum due process requirements for revocation of both federal and state parole, probation, and community supervision specified in both Morrissey and Scarpelli : (a) written notice of the claimed violations; (b) disclosure to the probationer of the evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses; (e) a "neutral and detached" hearing body; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking probation or parole. See Scarpelli , 411 U.S. at 786, 93 S.Ct. 1756 ; Morrissey , 408 U.S. at 489, 92 S.Ct. 2593.
Finally, as both the United States Supreme Court and the Texas Court of Criminal Appeals have held, a revocation hearing—even in the context of revocation of parole or probation following conviction for a crime, much less in the context of deferred adjudication in which there has been no conviction—is designed to apply a specific balancing procedure to achieve a specific public purpose:
Even if a community-supervision violation is proven, the trial court has the discretion to continue or modify the terms of community supervision rather than revoking it , and the trial court has the discretion to make this determination based on its weighing of policies, such as protecting the public and rehabilitating the offender.
Doan , 369 S.W.3d at 212 (emphasis added); see also Scarpelli , 411 U.S. at 784–85, 93 S.Ct. 1756 (stating that first step in revocation hearing is to determine whether defendant has in fact violated one or more conditions of probation or parole; if it is determined that he has, thrust of probation movement—keeping offenders in community and working to rehabilitate them—changes to interest in accurate finding of fact and informed use of discretion to ensure that probationer's or parolee's liberty is not unjustifiably taken and to make certain that State "is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community"); Morrissey , 408 U.S. at 484, 92 S.Ct. 2593 (stating that both parolee and society have "a stake in ... restoring [an offender] to normal and useful life within the law" and interest in treating him with "basic fairness").
Here, there was patent and complete disregard of appellant's constitutional rights, even minimal ones, and, indeed, of the entire purpose of community supervision and deferred adjudication—namely, to ensure that a defendant's liberty is not unjustifiably taken away and to make sure that the State is neither unjustifiably interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community. Here, there is no indication that the actual facts underlying revocation of appellant's community supervision were of any concern to the State or to the court; nor was any attention given to assuring appellant's rights or attempting to reach any result other than a summary dismissal of all obstacles to the swift adjudication of appellant's guilt and his sentencing to a long term in prison, whether the circumstances indicated that he could have been rehabilitated or not and regardless of whether he posed any threat to the community or not.
In short, the entire purpose of drug offender and other rehabilitative programs, as well as all constitutional protections for appellant, as the offender, was thrust aside at the revocation stage of the adjudication hearing; and the purpose of the SAFPF program was disregarded and undermined without regard to whether either appellant's rehabilitation or the community's safety was compromised thereby. I conclude that the procedure used to revoke appellant's community supervision, to adjudicate him guilty of the crime of aggravated robbery to which he had pleaded guilty, and to sentence him to prison on nothing more substantive than the fact of his guilty plea and his cursory revocation hearing violated appellant's due process rights.
Conclusion
I would reverse the trial court's judgment and remand the case to that court for proceedings consistent with the purposes of community supervision and its revocation and with the minimum requirements of constitutional due process.