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                                                  31


                                                  TCsL       .——
Affirmed and Memorandum Opinion filed July 7, 2015.




                                       In The


                     Jfamrteentlj tourt of Appeals

                               NO. 14-14-00465-CR



                        WADE EUGENE DIX, Appellant

                                          V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 337th District Court
                            Harris County, Texas
                          Trial Court Cause No. 1380494


                       MEMORANDUM OPINION


      Appellant raises two issues in this appeal from a judgment adjudicating
guilt: (1) whether the evidence is sufficient to support the trial court's judgment;
and (2) whether collateral estoppel bars the State from relitigating certain fact
questions that were asserted in a previous motion to adjudicate. We conclude that
the record contains sufficient evidence to support a new factual allegation that had
not been asserted in the previous motion to adjudicate. Without addressing the
issue of collateral estoppel, we affirm the trial court's judgment.
                                  BACKGROUND


      Appellant pleaded guilty in March of 2013 to a single count of aggravated
assault with a deadly weapon. The trial court deferred an adjudication of guilt and
placed appellant on a four-year period of community supervision. One condition of
community supervision required that appellant avoid contact with the complainant,
his across-the-street neighbor.

      In August of 2013, the State filed its first motion to adjudicate guilt. The
State alleged that appellant violated the no-contact order on July 27, 2013, by
verbally threatening the complainant and by gesturing with his hand in the shape of
a gun. The State also alleged that appellant violated other terms of his community
supervision by failing to abstain from cocaine and by failing to participate in a
mental health treatment program.

      In October of 2013, the State moved to dismiss its motion to adjudicate. The
trial court granted the motion to dismiss, but the court ordered that appellant spend
sixty days in jail as "therapy." The court credited appellant with time already
served and kept appellant on community supervision.

      In April of 2014, the State filed its second motion to adjudicate guilt, which
contained the very same allegations that had previously been alleged in the first
motion to adjudicate. The State also brought forth several new allegations. In
addition to the incident that allegedly occurred on July 27, 2013, the State alleged
that appellant violated the no-contact order on four separate dates. Those dates
were July 28, 2013; October 28, 2013; January 1, 2014; and March 30, 2014. The
State further alleged that appellant violated the terms of his community supervision
by failing to pay certain fees and fines.
      Appellant pleaded not true to each of the allegations. After a full evidentiary
hearing, the trial court found that three of the no-contact violations were true.
Those were the violations allegedly occurring on July 27, 2013; July 28, 2013; and
March 30, 2014. The court also found as true the allegations that appellant had
failed to abstain from cocaine and had failed to participate in a mental health
treatment program. The court determined that each of the remaining allegations
was not true.


      Based on the findings of true, the trial court rendered a judgment of guilt and
assessed punishment at four years' imprisonment. This appeal followed.

                           STANDARD OF REVIEW


      During an adjudication proceeding, the State has the burden of proving by a
preponderance of the evidence that the defendant violated a condition of his
community supervision. See Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim.
App. 2013). This burden is satisfied when the evidence creates a belief, more
probable than not, that a condition of community supervision has been violated as
alleged. See Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006).

      The State's burden of proof informs our standard of review when
considering issues regarding the sufficiency of the evidence. See Hacker, 389
S.W.3d at 895. When the burden of proof is "beyond a reasonable doubt," an
appellate court reviews the evidence in the light most favorable to the judgment,
asking whether the trier of fact could have made the requisite finding beyond a
reasonable doubt. Id. For issues governed by the less rigorous burden of proof of
"preponderance of the evidence," the standard of review is simply whether the trial
court abused its discretion. See Tex. Code Crim. Proc. art. 42.12, § 5(b); Hacker,
389S.W.3dat865.
                                         ANALYSIS


       To avoid any question of collateral estoppel,1 our analysis will focus on the
trial court's finding that appellant violated the no-contact order on July 28, 2013, a
violation that was alleged for the first time in the second motion to adjudicate. See
Tex. R. App. P. 47.1 (providing that a court of appeals must hand down a written
opinion that is "as brief as practicable"). We will address just this one finding
because proof of a single violation is sufficient to support the trial court's decision.
See Black v. State, 411 S.W.3d 25, 28 (Tex. App.—Houston [14th Dist.] 2013, no
pet.). To fully explain the events behind this alleged no-contact violation, we also
discuss some additional facts regarding the day before.

       The complainant testified that he was painting his house on July 27, 2013,
when he heard appellant dragging a shovel across the street and towards the
complainant's direction. The complainant ran away, fearing for his life because he
believed that appellant was brandishing a gun under his shirt. According to the
complainant, appellant threatened that he was going to take care of the complainant
"once and for all." The complainant called the police, who responded to the scene,
but the police did not arrest appellant for violating the no-contact order because the
police could not verify that a no-contact order was in place.

       The complainant testified that he began taking cell phone videos of his
encounters with appellant to protect himself from additional harassment. An
exhibit containing six separate videos was admitted into evidence during the
hearing on the motion to adjudicate. The complainant described one of the videos
as being taken on an unspecified date in July of 2013.

       1In his second issue, appellant argued that he was punished with sixty days injail for the
violations alleged in the first motion to adjudicate, and that collateral estoppel would prevent a
second punishment for the very same acts. The State argued that there was no adjudication of the
first motion, only a dismissal.
      In that video, which was filmed from a location in the complainant's front
yard, appellant can be seen standing in his own front yard with two women.
Appellant never crosses the street, but he addresses the complainant from his
property. According to the complainant, appellant also makes direct eye contact.
The video shows appellant asking the complainant, "If you're so afraid of me, why
would you be in my face with a video camera?" The complainant never answers.

      Appellant continues, "Yeah, keep on recording. Like I told you, it's real,
man. I know some people." One of the women walks in front of appellant and tries
to tell him to stop talking. Addressing the woman, appellant protests that the
complainant has tried to send him "back to the penitentiary] three more times."
Appellant then leans around the woman and tells the complainant that he should
get in touch with another neighbor down the street, who has a reputation for calling
the courthouse downtown. Appellant also refers to the complainant as a "fake ass
cracka."

      The complainant testified that he filmed this video approximately ten
minutes after a phone conversation with the district attorney. The complainant did
not provide an exact date for this phone conversation, but he explained that the
conversation happened after a recent act of harassment, the details of which were
not described. The complainant testified, without objection, that the district
attorney had told him, "We can't do anything. We need some evidence. You know,
maybe get some video of it."

      The video clearly shows that appellant contacted the complainant, in
violation of a condition of community supervision. Appellant contends, however,
that the evidence is legally insufficient to adjudicate guilt because there is no
evidence that the contact occurred on July 28, 2013, the date alleged in the motion
to adjudicate. Appellant argues further that the State must be held to proving that
contact occurred on this specific date because the motion to adjudicate does not
contain "on or about" language with respect to any of the alleged violations.

      We conclude that the trial court did not abuse its discretion. The complainant
testified that he filmed the video in July of 2013. The complainant was unable to
specify the exact date of filming, but the month and year matched the allegation in
the State's motion to adjudicate. The complainant also testified that the video was
made shortly after a phone conversation with the district attorney. The evidence
showed that the complainant had contacted the district attorney because of a recent
act of harassment, and the trial court could have reasonably determined that the
complainant was referring to the events on July 27, 2013. The complainant would
have had a reason to call the district attorney shortly after those Nevents because
appellant verbally threatened the complainant but the police did not arrest him.
Appellant's statement on the video that the complainant tried to send him back to
the penitentiary lends additional support that the video followed the incident on
July 27, 2013. Altogether, the circumstantial evidence supports a finding that the
complainant reached out to the district attorney on July 28, 2013, and that appellant
violated the no-contact order that same day.

      Even if we assumed that this circumstantial evidence did not support the trial
court's finding of the date alleged, we would still conclude that the variance
between the motion to adjudicate and the proof adduced at trial did not violate the
minimum requirements of due process. The defendant in a revocation or
adjudication proceeding is not afforded the full range of constitutional and
statutory protections available at a criminal trial. See Moore v. State, 11 S.W.3d
495, 499 (Tex. App.—Houston [14th Dist.] 2000, no pet.). That is because the
defendant's guilt is not at issue; the trial court is not concerned with determining
the defendant's original criminal culpability. Id. Instead, the question is whether
the defendant broke the contract he made with the court after the determination of

guilt. Id.

       This is not to say that all constitutional guarantees of due process "fly out
the window." See Ruedas v. State, 586 S.W.2d 520, 523 (Tex. Crim. App. [Panel
Op.] 1979). The defendant is entitled to a written motion that fully informs him of
the alleged violation of a term of community supervision. See Caddell v. State, 605
S.W.2d 275, 277 (Tex. Crim. App. [Panel Op.] 1980). But the motion itself does
not have to meet the particularities of an indictment, information, or complaint. See
Champion v. State, 590 S.W.2d 495, 497 (Tex. Crim. App. [Panel Op.] 1979);
Spruill v. State, 382 S.W.3d 518, 521-22 (Tex. App.—Austin 2012, no pet.). All
that is required is that the motion clearly set forth the basis on which the State
seeks to revoke community supervision or adjudicate guilt so that the defendant
receives fair notice and may prepare a defense. See Labelle v. State, 720 S.W.2d
101, 108 (Tex. Crim. App. 1986).

       A "variance" occurs when there is a discrepancy in the allegations of a
charging instrument and the evidence adduced at trial. See Gollihar v. State, 46
S.W.3d 243, 246 (Tex. Crim. App. 2001). Only a material, or "fatal," variance
requires the reversal of a judgment. See Fuller v. State, 73 S.W.3d 250, 253 (Tex.
Crim. App. 2002). A variance is immaterial if it is not prejudicial to a defendant's
substantial rights. See Gollihar, 46 S.W.3d at 247-48.

       The variance doctrine applies equally to revocations of community
supervision and adjudication proceedings. See, e.g., Hammack v. State, No. 06-14-
00175-CR, — S.W.3d —, 2015 WL 1869497, at *4-5 (Tex. App.—Texarkana
Apr. 24, 2015, no pet.); Moore, 11 S.W.3d at 499-500. When deciding whether a
defendant's substantial rights have been prejudiced, we generally consider two
questions: (1) whether the charging instrument (or, in this case, the motion to
adjudicate) informed the defendant of the charge against him or sufficiently
allowed him to prepare an adequate defense at trial, and (2) whether prosecution
under the deficiently drafted charging instrument (or motion) would subject the
defendant to the risk of being charged again for the same conduct. See Gollihar, 46
S.W.3d at 248. The defendant bears the burden of demonstrating surprise or
prejudice. See Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001).

      The motion in this case alleged that appellant violated the no-contact order
on two occasions in July of 2013. Appellant did not attempt to prove during the
hearing that he had an alibi for either of those alleged violations. Instead,
appellant's defensive strategy was to challenge the complainant's reputation for
truthfulness and to establish that the complainant acted as the aggressor by
initiating some of the contacts.

      There is no indication that the motion to adjudicate prevented appellant from
preparing an adequate defense. Appellant did not argue in the trial court that he
was surprised or prejudiced by the allegation that one of the contacts allegedly
occurred on July 28, 2013. Nor has he made any such argument on appeal.

      The State was required to prove by a preponderance of the evidence that
appellant violated the no-contact order, which was a condition of his community
supervision. The State was further required to show that the alleged violation
occurred during appellant's period of community supervision and before the filing
of the motion to adjudicate. According to the complainant, the contact depicted in
the video occurred in July of 2013, which is within the pertinent time period. We
conclude that the State's failure to prove the exact date of the contact was not
material, did not prejudice appellant's defense, and does not render the evidence
legally insufficient. The trial court did not abuse its discretion by finding that
appellant violated the no-contact order.
                                 CONCLUSION


      The trial court's judgment is affirmed.




                                      /s/       Tracy Christopher
                                                Justice



Panel consists of Justices Christopher, Brown, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).
