      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00204-CR



                                 Cody Harrison Ball, Appellant

                                                  v.

                                   The State of Texas, Appellee


           FROM COUNTY COURT AT LAW NO. 3 OF WILLIAMSON COUNTY
       NO. 06-7728-3, HONORABLE DONALD HIGGINBOTHAM, JUDGE PRESIDING



                             MEMORANDUM OPINION


               In February 2008, appellant Cody Harrison Ball pleaded no contest to the

misdemeanor offense of driving while intoxicated. Punishment was assessed at 180 days in

county jail and a fine of $2,000, but the trial court suspended imposition of the sentence and

placed Ball on community supervision for a period of eighteen months. Subsequently, the State filed

an amended motion to revoke probation, alleging that Ball had violated the conditions of his

community supervision. Among the State’s allegations was that Ball had failed on multiple

occasions to provide a breath sample as directed by the Williamson County Probation Department.

Following a hearing, the trial court revoked Ball’s community supervision and sentenced him to

150 days in county jail and a $500.00 fine. In two points of error on appeal, Ball asserts that he was

not provided sufficient notice of the allegations in the amended motion to revoke and that the

evidence presented at the revocation hearing is insufficient to prove that he violated a condition of

his community supervision. We will affirm.
                                         BACKGROUND

               The State filed its first motion to revoke probation on September 15, 2008. In the

motion, the State alleged that Ball had violated the conditions of his community supervision

by consuming an alcoholic beverage on two occasions and failing to pay certain fees. The State and

Ball later entered into a so-called “plea bargain” in which the State agreed to move to dismiss its

motion to revoke in exchange for Ball agreeing to serve six days in county jail and to “have installed

in [his] residence an at-home alcohol detection device (VICAP).” As part of this agreement, Ball

was required to “have access to a land line telephone, answer all calls placed by the service provider,

and provide a sample of [his] breath when called upon to do so.” The State withdrew its motion to

revoke and filed a motion to amend Ball’s community supervision to include these additional

conditions. The trial court then entered an order continuing Ball’s community supervision in

accordance with the terms of the agreement.

               On March 30, 2009, the trial court signed a second order amending the conditions of

Ball’s community supervision, again “in lieu of [the State] filing a Motion to Revoke Probation.”

This time, Ball’s term of community supervision was extended by an additional six months, he was

required to perform an additional 24 hours of community service restitution, and he was ordered to

serve an additional three days in county jail.

               On June 8, 2009, the State filed another motion to revoke Ball’s probation. In this

motion, the State alleged that Ball had violated the conditions of his community supervision by

failing to provide an at-home breath sample as directed on 20 separate occasions between April 3

and May 22, 2009. No other violations of community supervision were alleged.




                                                  2
                On February 3, 2010, the State filed an amended motion to revoke probation. In the

amended motion, the State alleged that Ball had failed to provide a breath sample on 108 separate

occasions between April 6, 2009 and January 31, 2010.1 The State further alleged in the amended

motion that Ball had failed to report to his community supervision officer as directed on a certain

date, “failed to complete all programs, courses, community service restitution and additional

conditions of supervision ninety (90) days prior to termination of community supervision,” and

“failed to attend [an] Aftercare Program as directed.”

                At the revocation hearing held on March 22, 2010, three witnesses testified

for the State: Amber Norton, one of Ball’s probation officers; Amy Valentine, an employee of the

company that administers the VICAP program; and Angie Lezack, the probation officer who had

supervised Ball’s participation in the VICAP program. Ball testified in his defense. Also admitted

into evidence were documents detailing Ball’s participation in the VICAP program, including

summaries of the results of the calls that were placed to his residence and reports of the alleged

violations. At the conclusion of the hearing, the trial court found all of the State’s alleged violations

to be true, revoked Ball’s community supervision, and sentenced him to jail as noted above. This

appeal followed.


                                             ANALYSIS

Notice

                In his first point of error, Ball asserts that he did not have sufficient notice of

the allegations in the State’s amended motion to revoke probation. According to Ball, he was not


         1
         Of those 108 alleged violations, 17 had also been alleged in the State’s previous motion
to revoke.

                                                   3
aware of the amended motion until the day of the revocation hearing. Therefore, in Ball’s view, the

trial court “erred in considering the amended motion, in admitting evidence regarding its allegations,

and in finding that Appellant violated his community supervision based upon those allegations.”

               Because a revocation of community supervision results in the loss of liberty,

certain due process protections must be afforded to the probationer prior to revocation. See Gagnon

v. Scarpelli, 411 U.S. 778, 782 (1973); Bradley v. State, 564 S.W.2d 727, 730 (Tex. Crim.

App. 1978); Atchison v. State, 124 S.W.3d 755, 760 (Tex. App.—Austin 2003, pet. ref’d) (supp. op.

on reh’g). Due process requires that a written motion to revoke fully inform a probationer of

the violations of community supervision that he is alleged to have breached. See Garner v. State,

545 S.W.2d 178, 179 (Tex. Crim. App. 1977). However, a motion to revoke does not require the

same particularity as an indictment to afford a defendant due process. Labelle v. State, 720 S.W.2d

101, 104 (Tex. Crim. App. 1986). Rather, the allegations in the motion to revoke must fully set forth

the alleged violations of community supervision so that the defendant might be informed of what

he will be called to defend. Garner, 545 S.W.2d at 179. The trial court may only revoke community

supervision based on the allegations of which the probationer has due notice, those which are

contained in the written motion to revoke filed during the term of the probationary period. Caddell

v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980).

               The notice requirements are not as strict for revocation hearings as they are for

other criminal proceedings. See Labelle, 720 S.W.2d at 104; Robinson v. State, 686 S.W.2d 326,

328 (Tex. App.—Houston [14th Dist.] 1985, no pet.). There is no statutory requirement as to the

length of time a probationer must have a copy of the revocation motion served upon him prior to

the revocation hearing so long as the probationary period has not expired. See Trevino v. State,


                                                  4
464 S.W.2d 859, 861 (Tex. Crim. App. 1971); McDaniel v. State, 254 S.W.2d 785 (1953).

Nevertheless, the court of criminal appeals has observed that, consistent with notice and timing

requirements in other contexts, it is “good practice” for the trial court to require the State to serve

a copy of the revocation motion upon the probationer at least 10 full days before the hearing

“unless the same is personally waived by the probationer and his counsel.” See Campbell v. State,

456 S.W.2d 918, 920 n.3 (Tex. Crim. App. 1970); McDaniel, 254 S.W.2d at 785; cf. Tex. Code

Crim. Proc. Ann. art. 28.10(a) (West 2006) (“On the request of the defendant, the court shall allow

the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to

the amended indictment or information.”).

               At the revocation hearing held on March 22, 2010, the prosecutor stated that

the amended motion to revoke had “been on file for more than 10 days with the Court.” The

record supports this statement, as the amended motion bears the county clerk’s file stamp dated

February 3, 2010, at 3:00 p.m., and there is nothing in the record to overcome the presumption

that the amended motion was properly filed. See Light v. State, 15 S.W.3d 104, 107 (Tex. Crim.

App. 2000) (presumption of regularity “requires a reviewing court, absent evidence of impropriety,

to indulge every presumption in favor of the regularity of the proceedings and documents in the

lower court”); Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986) (burden is on

defendant to overcome presumption of regularity). Thus, the amended motion to revoke was on file

for over six weeks prior to the revocation hearing. If counsel had reviewed the court’s file at any

point during that six-week period, he likely would have been made aware of the amended motion.2


       2
         Counsel for Ball acknowledged during the revocation hearing that when he was in court
on January 21 for the announcement docket, he “did hear mention that there was an intent to amend
the motion to revoke probation.” Counsel also stated that he had “[gone] through the entire court’s

                                                  5
               Nevertheless, the fact that the amended motion was on file with the court does

not necessarily mean that the amended motion was properly served on Ball prior to the hearing. We

observe that the record does not contain a certificate of service or a sheriff’s return attached to the

amended motion, as did the original motion to revoke.3 However, even if we were to find that Ball

was not served with a copy of the amended motion to revoke, he would not be entitled to reversal

unless, in the context of the case, the record reveals that he was harmed by the lack of notice. See

Labelle, 720 S.W.2d at 107-09.

               Here, all but three of the additional allegations in the amended motion to revoke

concerned the same type of violation that was alleged in the original motion to revoke, namely

that Ball had failed on various dates to provide a breath sample as directed. Thus, for the most part,

the amended motion simply alleged additional violations of the same condition of community

supervision that was alleged to have been violated in the original motion to revoke. Ball has not

shown how his defense to those additional violations would have been any different than his defense

to the original violations of which he did have notice. As for the three administrative violations that

were not related to the failure to provide a breath sample, Ball was able to effectively cross-examine

the State’s witnesses on those allegations and present testimonial evidence as to why his non-

compliance with those conditions should be excused. Finally, the apparent lack of notice regarding


file last time we were in court on February 21.” However, the court’s docket sheet reflects that the
previous court proceeding in this case was the one held on January 21.
       3
         We note that the court of criminal appeals, when faced with a similar record, wrote, “The
problem here is simply that one cannot find in the record any paper showing that appellant received
or was served with the motion to revoke probation. To be technical about it, a failure of that kind
of showing in an appellate record is not a denial of due process. It is no more than a negative
suggestion that the motion was not served or received.” Younger v. State, 685 S.W.2d 657, 658
(Tex. Crim. App. 1985).

                                                  6
the allegations in the amended motion to revoke does not apply to the allegations in the original

motion to revoke. Thus, Ball’s ability to prepare a defense to those allegations was not impacted

and, as we explain below, the evidence supporting those allegations was sufficient to support the

trial court’s decision to revoke Ball’s community supervision.

               We overrule Ball’s first point of error.


Sufficiency of the evidence

               In his second point of error, Ball asserts that “the greater weight of credible evidence

does not create a reasonable belief that appellant violated a condition of his community supervision.”

We construe this point as a challenge to the sufficiency of the evidence supporting the trial court’s

decision to revoke Ball’s community supervision.

               We review a trial court’s decision to revoke community supervision for abuse of

discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). A trial court abuses its

discretion in revoking community supervision when the State fails to meet its burden of proof.

Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The State’s burden of proof in

community supervision revocation cases is by a preponderance of the evidence. Rickels, 202 S.W.3d

at 763-64. Thus, the trial court does not abuse its discretion in revoking community supervision

if the greater weight of the credible evidence creates a reasonable belief that the defendant has

violated a condition of his community supervision. See id. at 764. Additionally, proof of any one

of the alleged violations is sufficient to support the revocation order. Moses v. State, 590 S.W.2d

469, 470 (Tex. Crim. App. 1979); Atchison, 124 S.W.3d at 758. We view the evidence presented

in a revocation proceeding in the light most favorable to the trial court’s ruling. Garrett v. State,

619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Mauney v. State, 107 S.W.3d 693, 695

                                                  7
(Tex. App.—Austin 2003, no pet.). As the trier of fact, it is left to the trial court to judge the

credibility of witnesses and the weight to be given their testimony. Garrett, 619 S.W.2d at 174;

Mauney, 107 S.W.3d at 695.

               One of the conditions of Ball’s community supervision was that he have installed in

his residence an at-home alcohol detection device known as a VICAP. As part of this condition, Ball

was required to “have access to a land line telephone, answer all calls placed by the service provider,

and provide a sample of [his] breath when called upon to do so.” The State alleged that Ball had

failed to comply with this condition on multiple occasions.4

               One of Ball’s probation officers, Amber Norton, testified that a VICAP is a camera

device which detects alcohol and which the probationer blows into twice a day, “once in the morning

and once in the evening.” Norton explained that the probationer has “an hour time frame [during

which] they can receive phone calls” from VICAP representatives. “They will call in that hour time

frame two to three times for them to blow into the device.” Norton testified that the probationer is

allowed to pick the times at which the calls are made and that Ball chose 8:00 a.m. and 10:30 p.m.

Norton added that those times represented the middle point during which the calls could be received.

In other words, in the morning, the calls could come in at any time between 7:30 a.m. and 8:30 a.m.,

while at night, the calls could come in at any time between 10:00 p.m. and 11:00 p.m. Norton

testified that Ball had missed these calls on “several” occasions beginning on April 6, 2009.




       4
          Because of the complaint raised concerning insufficient notice of the allegations in the
amended motion to revoke, we shall limit our review to the 17 alleged occasions that were presented
in both the original and amended motions to revoke. Ball does not dispute that he had notice of
these allegations.

                                                  8
               When asked if Ball had offered any explanation “about why he couldn’t comply with

those terms,” Norton recalled, “He’s had reasons of teeth problems, and that he’s on medications.

He also has a daughter that sleeps in the same room [in which the device is located]. Those are

mostly the reasons.” Norton added that Ball had complained “that maybe the phone calls were out

of the time range, or that they wouldn’t call as many times as they were supposed to.”

               When asked to characterize Ball’s participation and cooperation with regard to his

conditions of community supervision, Norton testified, “He’s been compliant with his other

conditions and his payments, but when it comes to the . . . VICAP, he constantly has complaints and

shifts blame.” Norton agreed that the purpose of VICAP is to let the State know if Ball has been

drinking and that when Ball does not provide a sample as directed, the State “has no idea” whether

Ball has been drinking.

               On cross-examination, Norton acknowledged that Ball had provided over 800 at-

home breath samples in compliance with the VICAP requirement and that none of the samples he

had provided tested positive for alcohol. Norton also acknowledged that there may have been times

when the calls came in “out of his time frame,” but she added that in those cases, “it’s not considered

a violation” and that “it’s not held against him.”

               Amy Valentine, a VICAP employee, testified that VICAP stands for “video capture”

and that “it’s actually a live streaming video from a camera at the participant’s residence

to the monitoring system.” Valentine explained that “VICAP is an actual live telephone call from

an operator to a participant. . . . The call is initiated from a live operator, and the equipment is not

turned on until the monitoring center instructs the person to turn it on.” When asked if there had

been any “problems with people not receiving their phone calls” or “problems with this system,”


                                                     9
Valentine testified, “Not that I’m aware of.” She added, “Usually, when we are not successful with

administering a test, it’s because of environmental factors with the phone line at the participant’s

residence. It doesn’t appear that that is the case with this participant.”

                Valentine also testified about the company’s policies regarding multiple calls made to

the participant.    According to Valentine, the number of calls placed “depends on whether

the [first] call is successful or not. If we receive a line busy or no answer, we do try it one more

time within 15 minutes. So, if the participant passes both tests, there will only be two calls. If

we are unsuccessful in reaching them, there could be three, or possibly even a maximum of

four in one day.”

                During Valentine’s testimony, documents summarizing Ball’s VICAP violations

were admitted into evidence. The documents show multiple calls made to Ball’s residence and

not answered (and thus no breath samples submitted) on several mornings and nights in April

and May 2009.

                Angie Lezack, the probation officer who supervised Ball’s participation in the VICAP

program, testified that she had discussed with Ball his responsibilities regarding the program before

he started it, including the two report times per day that he would have to provide a breath specimen.

Lezack recalled that Ball had agreed to the 8:00 a.m. and 10:30 p.m. time periods for the calls and

that those times had never changed. Lezack also testified that she has supervised other probationers

in the program and that Ball’s level of noncompliance was not typical. In Lezack’s opinion, the

VICAP program is effective and a good tool to prevent people from drinking alcohol. In Ball’s

case, however, Lezack had “no clue” if Ball had stopped drinking. She explained, “I advised

the defendant that if he misses a call, it’s an automatic alcohol violation. I mean, that’s what—we


                                                  10
automatically assume it’s an alcohol violation when he misses a call. So, he’s aware that that’s the

case. I’ve told him that before.”

               Ball testified that he remembered discussing VICAP with his probation officers, but

he disputed the State’s contention that he was able to choose the times in which to receive the calls.

Ball acknowledged missing some of the calls, but he blamed most of the missed calls on

the prescription medications that he was taking for a ruptured disk in his back and a “chronic

panic disorder.” The medications, Ball explained, caused drowsiness, sleepiness, and “slow”

hearing. Ball also claimed that on some occasions he would receive a call and hear nothing other

than a “fax noise” and that some of the calls came in “before and after the cut off times.”

Information regarding Ball’s medication was admitted into evidence, as was a letter Ball had written

to Lezack complaining about the VICAP program.

               Viewing the above evidence in the light most favorable to the trial court’s ruling, we

conclude that the State satisfied its burden to prove by a preponderance of the evidence that Ball

failed to provide a breath sample as directed. Two of Ball’s probation officers testified that Ball

had failed to comply with the VICAP requirement. Their testimony was supported by documentation

tending to show that on multiple occasions, Ball had not answered the phone as he was required

to do. While these documents show that some missed calls were made outside the time periods

during which Ball was required to answer, others show that many of the missed calls were made

during the agreed upon times.

               On appeal, Ball repeats many of the same arguments that he made during the

revocation hearing, namely that there were technical problems with the VICAP device, that he had

legitimate reasons for missing the calls on certain occasions, and that the “vague” requirements of


                                                 11
the program were not sufficiently explained to him. However, the trial court would not have abused

its discretion in crediting the testimony of Ball’s probation officers that they had explained the

details of the program to Ball and the consequences of him missing a call, in not crediting Ball’s

testimony attempting to excuse his noncompliance, and in crediting Valentine’s testimony about the

reliability of the VICAP device.

               Having found that the State satisfied its burden of proof, we cannot conclude that

the trial court abused its discretion in revoking Ball’s community supervision. We overrule Ball’s

second point of error.


                                        CONCLUSION

               We affirm the judgment of the trial court.




                                             __________________________________________

                                             Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Rose

Affirmed

Filed: June 1, 2011

Do Not Publish




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