
                             NO. 07-08-00226-CR

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL D

                               APRIL 21, 2010




                          VICENTE OCHOA, APPELLANT


                                     v.


                        THE STATE OF TEXAS, APPELLEE



             FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

               NO. CR-06J-146; HONORABLE ROLAND D. SAUL, JUDGE



Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                             MEMORANDUM OPINION


      Appellant Vicente Ochoa appeals from the revocation of  his  community
supervision and the resulting sentence of five years of imprisonment in  the
Institutional  Division  of  the  Texas  Department  of  Criminal   Justice.
Through three issues, appellant argues the trial court erred in  not  making
a written statement regarding revocation of his  community  supervision  and
abused its discretion by finding  a  breach  of  the  terms  of  appellant(s
community service; and contends the State(s motion  to  revoke  inadequately
informed appellant of the State(s allegations.  We find  no  error  and,  as
modified, affirm the trial court(s order to revoke.

                                 Background

      On January 24, 2007, appellant entered a plea of guilty to the offense
of felony driving while intoxicated.[1]  As part of his agreement  with  the
State, appellant was placed on community supervision for a  period  of  five
years.   Appellant(s  supervision  was  subject   to   certain   terms   and
conditions.

      On August 8, 2007, the State filed its First Amended Motion to  Revoke
Probation, alleging: (1) on or about May 1, 2007,  appellant  committed  the
offense of Indecency with a Child in violation  of  his  probated  sentence;
(2) appellant failed to remain within the confines  of  Deaf  Smith  County,
Texas, in violation of his probated sentence; and (3)  appellant  failed  to
perform his community service hours, in violation of his probated  sentence.
 The court heard the State(s motion on May 13, 2008.

      At  the  hearing,  the  State  waived  the  Indecency  with  a   Child
allegation[2] and proceeded on the  remaining  two  allegations.   Appellant
plead (not true( to each of the State(s remaining  allegations.   The  State
presented the testimony of appellant(s community supervision officer  and  a
Deaf Smith County police officer.   Appellant  cross-examined  each  of  the
State(s witnesses and presented the testimony  of  appellant(s  wife  during
the punishment phase of the hearing.

      Appellant(s community supervision officer  testified  that  under  the
terms of appellant(s community supervision, he was required to: (1) work  at
least eight hours per week  toward  his  required  160  hours  of  community
service until the completion date of August 15,  2007;  and  (2)  to  remain
within the confines of Deaf Smith and  Oldham  Counties  and  not  to  leave
without written permission of the court.  The supervision officer  testified
appellant completed only seven hours of his  community  service  requirement
from the time he was placed  on  probation  in  January  2007  and  that  he
completed these hours at the Alcoholics  Anonymous  building.   The  officer
testified that he repeatedly explained the requirements, assured himself  of
appellant(s understanding  of  the  requirements,  and  attempted  to  place
appellant in a community service project that was convenient for  him.   The
officer testified that according to his records for the months of  February,
March, April, and May  2007,  appellant  had  not  completed  any  community
service hours and completed only seven in the month of June 2007.  Appellant
did not complete any hours in July or August 2007.

      Appellant(s community supervision  officer  also  testified  appellant
never requested that he be given a travel permit to go to  El  Paso,  Texas.
The officer also indicated he spoke  with  appellant  about  that  issue  on
August 2, 2007.  A Deaf Smith County police officer identified appellant  in
the courtroom and testified that on or about July 25,  2007,  he  left  Deaf
Smith County and traveled to El Paso County to transport appellant  back  to
Deaf Smith County. On cross-examination, the officer  indicated  the  actual
date was July 30, 2007.  Appellant was in custody in El  Paso  at  the  time
the officer retrieved him.

      The court heard this evidence, considered the  arguments  of  counsel,
and found the  State(s  allegations  to  be  true.   The  court  then  heard
punishment evidence and sentenced appellant to five years  of  imprisonment.
This appeal followed.

                                  Analysis

Failure to Provide Written Statement Concerning Grounds for Revocation

      In his first issue, appellant argues the trial court erred in  failing
to provide a written statement as to the evidence relied on and the  reasons
for  revoking  community  supervision,  thereby  violating  appellant(s  due
process rights.  We disagree.[3]

      Due process in the revocation context requires:  (1)  a  hearing;  (2)
written notice of the claimed violations; (3)  disclosure  of  the  evidence
against the defendant; (4)  an  opportunity  to  be  heard  and  to  present
witnesses and documentary evidence; (5) a neutral hearing body; and  (6)  (a
written statement by the fact finder as to the evidence relied  on  and  the
reasons for revoking probation.(  Carmona v.  State,  185  S.W.3d  492,  495
(Tex.Crim.App. 2006), citing Gagnon v. Scarpelli,  411  U.S.  778,  786,  93
S.Ct. 1756, 36 L.Ed.2d 656 (1973).  When a  defendant  timely  requests  the
entry of specific findings of fact on which revocation is based,  the  trial
court errs in failing to enter such findings of fact.  Whisenant  v.  State,
557 S.W.2d 102, 105 (Tex.Crim.App. 1977); Joseph v.  State,  3  S.W.3d  627,
639 (Tex.App.(Houston [14th Dist.] 1999, no pet.).  The failure to make  the
requested findings may require reversal if their omission impedes  appellate
review of the revocation.  Joseph, 3 S.W.3d at 639, citing  Ford  v.  State,
488 S.W.2d 793, 795 (Tex.Crim.App. 1972).  However, the trial court  is  not
required to issue separate findings if  the  judgment  or  revocation  order
discloses the grounds for revocation found by  the  court.   See  Joseph,  3
S.W.3d at 640 (concluding  that  handwritten  notations  on  the  revocation
order sufficed).


      Here, the record reflects appellant  did  not  request  the  entry  of
specific findings of fact.  The judgment listed the conditions  violated  by
paragraph number and description of the condition. The record also  reflects
the trial court orally specified  the  particular  conditions  violated  and
their factual bases at the end of the revocation hearing,  finding  each  of
the two violations (true.(  The court(s  written  judgment  recites,  ([t]he
Court, after hearing all of the evidence for the  State  and  the  Defendant
and arguments of counsel, was of the opinion and found  that  the  Defendant
violated the conditions of community supervision as  stated  above.(   Thus,
the record shows appellant was  afforded  adequate  notice  of  the  grounds
underlying the court(s revocation, and his ability to  prosecute  an  appeal
was not diminished by the  absence  of  further  findings.   See  Reasor  v.
State, 281 S.W.3d 129 (Tex.App.(San  Antonio  2008,  no  pet.)  We  overrule
appellant(s first issue.


Notice in State(s First Amended Motion to Revoke


      In appellant(s last issue, he contends his  due  process  rights  were
violated because the State(s amended motion  stated  that  ([t]he  defendant
probationer [appellant] failed to remain within the confines of  Deaf  Smith
County, Texas in violation of Article 13 of his probated sentence.   He  was
in El Paso, Texas on or about July 25, 2007.(  However, testimony  at  trial
indicated appellant was transported on  July  30,  2007.    Appellant  never
claimed surprise or requested a continuance of  the  hearing  based  on  the
different dates.  Nevertheless, appellant now argues the difference  in  the
dates constitutes a material variance that violated appellant(s due  process
rights because the motion did not provide  notice  of  the  charges  against
appellant.

      We find the State(s motion provided adequate  notice  of  the  charges
against appellant.  Due process entitles probationers  facing  a  revocation
proceeding to written notice of their alleged violations.  Ruedas v.  State,
586 S.W.2d 520, 523 (Tex.Crim.App. 1979), citing Gagnon, 411  U.S.  at  778;
Weed v. State, 891 S.W.2d 22, 24 n.4 (Tex.App.(Fort Worth  1995,  no  writ).
An application to revoke need not meet the specificity  requirements  of  an
indictment or  information;  it  is  sufficient  that  the  State  allege  a
violation of the law and  give  the  probationer  fair  notice.   Pierce  v.
State, 113 S.W.3d 431,  436  (Tex.App.-Texarkana  2003),  citing  Chacon  v.
State, 558 S.W.2d 874, 876 (Tex.Crim.App. 1977).  See also Poteet v.  State,
No. 07-06-0238-CR, 2008 WL 2579675, *2 (Tex.App.(Amarillo June 27, 2008,  no
pet.) (mem. op., not designated for publication).


      It is well established that the State may allege the commission of  an
offense (on or about( a certain date, and this allegation allows  the  State
to prove any date that is anterior to presentment and within  the  statutory
limitations  period.   See  Garcia  v.  State,  981   S.W.2d   683,   685-86
(Tex.Crim.App. 1998); Sledge v. State, 953 S.W.2d  253,  256  (Tex.Crim.App.
1997); Ferrell v. State, 968 S.W.2d  471,  473  (Tex.App.(Fort  Worth  1998,
pet. ref(d).  An indictment that alleges  an  (on  or  about(  date  puts  a
defendant on notice that he must be prepared to defend against  the  alleged
act of criminal misconduct within the  applicable  statute  of  limitations.
See Garcia, 981 S.W.2d at 686; Ferrell, 968 S.W.2d at 473; Kosick v.  State,
No. 02-06-056-CR, 2007 WL 2460351 (Tex.App.(Fort Worth  Aug.  31,  2007,  no
pet.)  (mem.  op.,  not  designated  for  publication).   Given   the   less
restrictive requirements that apply in a revocation  hearing,  we  find  the
same principle applies to motions to revoke. See Pierce, 113 S.W.3d at  436.
See also Mauney v. State, 107 S.W.3d  693,  695  (Tex.App.-Austin  2003,  no
pet.), citing Labelle v. State, 720 S.W.2d  101,  104  (Tex.Crim.App.  1986)
(the State is free to prove a violation occurred any time before the  filing
of the motion to revoke and during the  probation  period  so  long  as  the
State pleads the violation occurred "on or about" a specified date and  that
it occurred while the defendant was on probation).  Therefore,  the  State(s
allegation of (on or about July 25, 2007" encompasses the date of  July  30,
2007, on which the police officer retrieved appellant from El  Paso,  Texas.
We find no due process violation as the motion provided adequate  notice  of
the term appellant was alleged to have violated.   We  overrule  appellant(s
last issue.

Reformation of Judgment

      In our review of the  record,  it  came  to  our  attention  that  the
judgment nunc pro tunc includes a clerical error.   The  judgment  indicates
appellant plead "true" to the State's allegations.   The  reporter's  record
indicates appellant plead "not true" to the State's allegations.

      This court has the power to modify the judgment of the court below  to
make the record speak the truth when we have the  necessary  information  to
do so. Tex. R. App. P. 43.2(b);  Bigley  v.  State,  865  S.W.2d  26,  27-28
(Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526,  529-30  (Tex.App.--
Dallas 1991, pet. ref'd). "The authority of an appellate court to reform  an
incorrect judgment is not dependent upon the request of any party, nor  does
it turn on the question of whether a party has or has not  objected  in  the
trial court." Asberry, 813 S.W.2d at 529-30.

      Because the record unambiguously indicates appellant plead "not  true"
to the State's allegations, we modify the judgment nunc pro tunc to  correct
the error.  As  modified,  we  affirm  the  judgment  of  the  trial  court.

                                       James T. Campbell
                                              Justice
Do not publish.
-----------------------
      [1]  See Tex. Penal Code Ann. ( 49.09 (Vernon 2007).

      [2]  The record indicates the State  waived  this  allegation  because
there was a pending case on that offense at the time of this hearing.

      [3] We address issues one and three raised by appellant but we do  not
address issue  two.   In  his  second  issue,  appellant  complains  of  the
sufficiency of the evidence only with regard to  the  allegation  concerning
his failure to complete his community swevice.  Even if  we  were  to  agree
with appellant on his second point, proof of one violation is sufficient  to
revoke community supervision. See  Moore  v.  State,  605  S.W.2d  924,  926
(Tex.Crim.App. 1980) (panel op.); Trevino v.  State,  218  S.W.3d  234,  240
(Tex.App.(Houston [14th Dist.] 2007, no pet.) citing  Greer  v.  State,  999
S.W.2d 484, 486 (Tex.App.(Houston [14th  Dist.]  1999,  pet.  ref(d).   With
regard to the State's allegation concerning appellant's  failure  to  remain
within the confines of Deaf Smith and Oldham Counties,  appellant  complains
only of the lack of notice in the State's motion.


