                             NUMBER 13-09-00698-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

WILLIAM THOMAS JR.,                                                          Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 117th District Court
                          of Nueces County, Texas.


                         MEMORANDUM OPINION
                 Before Justices Garza, Benavides, and Vela
                  Memorandum Opinion by Justice Garza
       This is an appeal from an order revoking probation. Appellant, William Thomas

Jr., contends that the trial court erred during the hearing on the motion to revoke when it:

(1) considered an unalleged violation to the terms of his community service to adjudicate

his guilt and assess his sentence; and (2) failed to give him credit for previous time

served. We affirm.
                                     I. BACKGROUND

       On November 21, 2008, Thomas pleaded guilty to the offense of possession of

cocaine pursuant to a plea agreement.           See TEX. HEALTH & SAFETY CODE ANN. §

481.115 (Vernon 2010). The trial court deferred adjudication and placed Thomas on two

years’ community supervision. See TEX. CODE CRIM. PROC. ANN. § 42.12 (Vernon Supp.

2010). Nearly a year later, on September 9, 2009, the State filed a motion to revoke

when Thomas allegedly violated some of the terms of his community supervision. The

court allowed Thomas to remain on community supervision, but ordered the following

sanctions: (1) sixty days’ jail time; (2) completion of the Coastal Bend Outpatient

Program/Intensive Outpatient Program (CBOP/IOP) within sixty days of his release; (3)

completion of a relapse prevention program; and (4) ninety days of curfew. Thomas

served his sixty days in jail.

       On December 10, 2009, the State filed its second motion to revoke. In its motion,

the State alleged that: (1) Thomas’s September 9, 2009 urine sample tested positive for

marihuana; (2) Thomas admitted to smoking marihuana on November 9, 2009; and (3)

Thomas failed to complete the CBOP/IOP program. Thomas pleaded true to all of the

allegations. The trial court granted the motion to revoke and found him guilty of the

underlying offense.

       After the guilty finding, the trial court heard evidence about another urine sample,

taken on December 10, 2009, which also tested positive for marihuana.             Thomas

objected to this evidence, stating that the failure to pass the December 10, 2009 urine

sample was not alleged in the motion to revoke and that he was entitled to notice that this

issue would be raised. The trial court stated that, ―I’m not finding that [Thomas] has
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violated [his community supervision terms] along those lines, but I am finding on your

other matters with regards to the appropriate disposition. I will overrule.‖ In other

words, the trial court considered the unalleged violation only for the purposes of

assessing Thomas’s sentence.

       The trial court revoked Thomas’s community supervision and sentenced him to

one year in the State Jail Division of the Texas Department of Criminal Justice. His

attorney requested credit for the time Thomas served in jail as part of the sanctions he

received after his first motion to revoke hearing, but the trial court refused this request.

This appeal followed.

                                 II. STANDARD OF REVIEW

       We review the trial court's decision regarding community supervision revocation

for an abuse of discretion and examine the evidence in a light most favorable to the trial

court's order. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981).

The trial court holds broad discretion over community supervision, its revocation, and its

modification. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21. A plea of true, standing

alone, is sufficient to support revocation of community supervision. Cole v. State, 578

S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979); Jones v. State, 112 S.W.3d 266,

268 (Tex. App.–Corpus Christi 2003, no pet.).

                                       III. ANALYSIS

A.     Consideration of Unalleged Violation

       By his first issue, Thomas contends that the trial court erred when it considered the

December 10, 2009 urine sample which tested positive for marihuana. Thomas argues

that the trial court should not have considered this violation because it was not clearly
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alleged in the State’s motion to revoke. He contends the trial court erred when it used

this evidence to ―adjudicate his guilt and assess his sentence.‖

       The record shows that the trial court pronounced Thomas guilty before it ever

heard evidence of this ―unalleged violation.‖ Thomas pleaded ―true‖ to the September 9,

2009 drug test which was positive for marihuana, to smoking marihuana on November 9,

2009, and to failing to complete the CBOP/IOP program. Based on his pleas of ―true,‖

the trial court then stated that ―I’m going to find that you have indeed violated the terms of

your community supervision. I will now hear from both sides with regards to appropriate

disposition.‖ After this announcement, the State then offered the December 10, 2009

urine sample into evidence. Therefore, the trial court did not consider the finding to

adjudicate Thomas’s guilt.

       The trial court did, though, consider the December 10, 2009 drug test to assess

Thomas’s appropriate sentence. The court announced that it would take the December

10, 2009 drug test into account ―with regards to the appropriate disposition.‖ Thomas

argues that he was entitled to notice that this drug test would be used against him during

sentencing. He cites Gagnon v. Scarpelli, a United States Supreme Court opinion, for

the general proposition that defendants are entitled to due process during a revocation

hearing. 411 U.S. 778, 786 (1973). Gagnon holds that the "minimum requirements of

due process" for a revocation hearing include:

       (a) written notice of the claimed violations of [probation or] parole;
       (b) disclosure to the [probationer or] 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


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       lawyers; and (f) a written statement by the factfinders as to the evidence
       relied on and reasons for revoking [probation or] parole.

Id. (citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). We note, however, that ―[i]t

is [also] well settled that allegations in a revocation motion need not be made with the

same particularity of an indictment although such allegations must be specific enough to

give the accused notice of [the] alleged violation of law contrary to [the] conditions of

probation.‖ Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977).

       Here, the State’s motion to revoke cited: (1) the positive September 9, 2009 drug

test; (2) Thomas’s admission to smoking marihuana on November 9, 2009; and (3)

Thomas’s failure to complete the CBOP/IOP program.         Notice of Thomas’s positive

September 2009 drug test, combined with Thomas’s admission of continued drug use in

November 2009, constituted notice to Thomas that the State would raise his continuous

drug use during his revocation hearing. The admission of the positive December 9, 2009

test into evidence during sentencing only provided cumulative evidence of Thomas’s

continued drug habit. Thomas did not claim in the trial court, nor does he now claim

before this Court, that he was misled as to what he was called upon to defend against.

See Chacon, 558 S.W.3d at 876; Pierce v. State, 113 S.W.3d 431, 441 (Tex.

App.–Texarkana 2003, pet. ref’d). Thus, Thomas cannot argue that he was surprised or

prejudiced by another positive drug test. See Chacon, 558 S.W.3d at 876; see also

Barocio v. State, No. 06-02-00185-CR, 2004 Tex. App. LEXIS 803, at **8-9 (Tex.

App.—Texarkana Jan. 24, 2009, no pet.) (mem. op., not designated for publication)

(holding that ―[b]ecause the defects in the motion to revoke did not mislead or surprise

[the defendant], and therefore did not prejudice his defense, the variance between the

allegations and proof was not fatal.‖).

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       Further, ―the court did not base its finding upon a violation of a probationary

condition separate and distinct from the one alleged in the motion to revoke probation.‖

Id.; Pierce, 113 S.W.3d at 441. In fact, immediately prior to sentencing, the trial court

stated the following:

       Mr. Thomas . . . since you first started coming, you [have not] given up that
       mari[h]uana. And here’s the problem: when you get out, you’re still going
       to have the mari[h]uana problem, so that means that you’re probably going
       to be back in these courts. . . .

       The positive December 9, 2009 test was not a ―separate and distinct‖ violation from

Thomas’s formally alleged violations. Accordingly, its admission did not violate his due

process rights. In addition, we note that Thomas has not shown how he was harmed by

the admission of the December 9, 2009 drug test during sentencing. See TEX. R. APP. P.

44.2. For all of the foregoing reasons, we overrule this issue.

B.     Credit for Time Served

       By his second issue, Thomas complains that the trial court erred when it failed to

grant him credit for the time he already served in jail against his sentence. Article 42.03,

section 2(a) of the code of criminal procedure provides that, ―[i]n all criminal cases the

judge of the court in which the defendant was convicted shall give the defendant credit on

his sentence for the time that the defendant has spent in jail for the case, other than

confinement served as a condition of community supervision.‖ TEX. CODE CRIM. PROC.

ANN. art. 42.03, § 2(a) (Vernon Supp. 2010) (emphasis added).       Accordingly, ―[t]he trial

court is required to grant the [defendant] pre-sentence jail time when sentence is

pronounced.‖ Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004).

       The following exchange occurred during sentencing:

       [Trial court]:        [H]aving found that you violated the terms of your

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                            community supervision, I’m going to revoke your
                            community supervision. I am going to take judicial
                            knowledge of the contents of my file, and I am going to
                            find that you are guilty of unlawful possession
                            of . . . cocaine.

                            I’m going to assess your punishment at one year in a
                            state jail facility, and that will be day for day.

       [Defense attorney]: Does he get credit for time served?

       [Trial court]:       I think I just said one year, day for day. Clean it up.

       [Defense attorney]: That would be no credit, Your Honor?

       [Trial court]:       That’s what it means.

       [Defendant]:         Huh?

       [Trial court]:       Here’s his certification.

       [Defense attorney]: Thank you, Your Honor.

       Thomas did not object when the trial court clarified that it would not grant credit for

time served. See TEX. R. APP. P. 33.1(a)(1) (noting that a party must lodge a timely

request, objection, or motion with specificity and obtain a ruling on the same).      Further,

there is nothing in the record before us which specifically indicates the time or dates

Thomas served which should be credited against his sentence. See id.; Broussard v.

State, 226 S.W.3d 619, 621 (Tex. App.–Houston [1st Dist.] 2007, no pet.) (―Because this

necessary evidence is missing from the record, we may not modify the judgment to reflect

credit for any time appellant may have served . . . .‖). We assume, however, that

Thomas refers to the sixty days he served in jail when the trial court considered his first

motion to revoke. This time is clearly addressed by article 42.03, section 2(a) of the code

of criminal procedure.      It is ―confinement served as a condition of community



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supervision‖ and, therefore, cannot be credited towards his sentence.       TEX. CODE CRIM.

PROC. ANN. art. 42.03, §2(a).

       Thomas urges us to follow Texas Code of Criminal Procedure article 42.12 section

15(h)(2), which provides that a trial court has discretion whether to grant credit against

time served in a state jail felony facility for time confined between arrest and sentence.

TEX. CODE CRIM. PROC. ANN. art. 42.12, § 15(h)(2) (Vernon Supp. 2010). ―A judge may

credit against any time a defendant is required to serve in a state jail felony facility time

served by the defendant in county jail from the time of the defendant’s arrest and

confinement until sentencing by the trial court.‖ Id. Thomas contends that ―the statutes

are not irreconcilable‖ and that they ―must be read in harmony to give effect to each.‖ He

claims that ―the correct interpretation of these provisions must be to require credit for time

spent in jail in the case not as a condition of community supervision, to prohibit credit for

time spent on community supervision, and to give discretion to allow credit for any other

time spent in jail between the date of arrest and sentencing in this case.‖ Thomas’s

suggested interpretation fails to consider that article 42.12 section 15(h)(2) gives the trial

court broad discretion to grant or deny credit. Assuming Thomas is referring to time

served between his arrest and sentencing (which, as noted earlier, is not clear from the

record), the trial court used its discretion to deny this credit. In light of the evidence

against Thomas which supports the trial court’s judgment, we cannot say that this was an

abuse of discretion. Garrett, 619 S.W.2d at 174.

       In any event, the proper way to address credit for time served is by filing a motion

nunc pro tunc. Ybarra, 149 S.W.3d at 149. ―Before we will entertain a claim of the

denial of pre-sentence jail time credit, an applicant must first attempt to correct the


                                              8
omission in the judgment by way of a motion nunc pro tunc, and that if the convicting court

should decline to rule on the motion, the applicant must seek a writ of mandamus to the

appropriate court of appeals to compel the convicting court to rule.’‖ Ex parte Deeringer,

210 S.W.3d 616, 617-18 (Tex. Crim. App. 2006). If Thomas believes that the trial court

erred and failed to give mandatory credit for time served that was not a part of his

community supervision terms, he must follow the appropriate procedural avenues.

                                     IV. CONCLUSION
       Having disposed of all of Thomas’s issues, we affirm the judgment of the trial court.




                                                 ________________________
                                                 DORI CONTRERAS GARZA
                                                 Justice

Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
30th day of December, 2010.




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