                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-15-00147-CR


DEVANY CHARONE SNEED                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
                   TRIAL COURT NO. 1095599D

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                         CONCURRING OPINION

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      I write separately because, in addressing the issue of whether a trial court

may consider allegations previously before the court in revoking community

supervision, a journey down legal memory lane is helpful.

      It used to be common practice for Texas trial courts to hear a motion to

revoke probation, take the motion under advisement, hold the motion in

abeyance, and, essentially, let the probationer’s post-hearing conduct determine
whether to grant or deny the motion on one or more of the grounds alleged in the

motion to revoke.1 Repeatedly, appellate courts have held that this procedure

constituted a denial of due process:

      It is clear at least after Morrissey v. Brewer that a probationer can no
      longer be denied due process in reliance on the dictum . . . that
      probation is an “act of grace.” “Getting a break,” the Texas version
      of “act of grace,” is no more a reliable dictum for denial of due
      process. The Court was at pains to explain in Morrissey v. Brewer:

            This Court now has rejected the concept that
            constitutional rights turn upon whether a governmental
            benefit is characterized as a “right” or as a “privilege.”
            Whether any procedural protections are due depends
            on the extent to which an individual will be condemned
            to suffer grievous loss. The question is not merely the
            weight of the individual’s interest, but whether the
            nature of the interest is one within the contemplation of
            the “liberty or property” language of the Fourteenth
            Amendment.2

      And, repeatedly, appellate courts have reminded the bench and bar that,

after conducting a hearing without a jury, a trial court’s options regarding

someone on community supervision are limited by the legislature.3                The


      1
      See, e.g., Rains v. State, 678 S.W.2d 308, 309–10 (Tex. App.—Fort
Worth 1984, pet. ref’d).
      2
        Rogers v. State, 640 S.W.2d 248, 253–54 (Tex. Crim. App. 1982) (op. on
reh’g) (citations and selected quotation marks omitted); see also id. at 263 (2nd
op. on reh’g) (agreeing “that due process mandates another determination that
the probationer has breached the conditions of probation after he has been
returned to probation (or that there is newly discovered evidence of a previous
violation which was not known at the time of the first revocation hearing)”).
      3
       See, e.g., Furrh v. State, 582 S.W.2d 824, 827 (Tex. Crim. App. 1979)
(op. on reh’g); Kimball v. State, 119 S.W.3d 463, 465 (Tex. App.—Beaumont
2003, no pet.).


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legislature has specifically detailed that after a hearing, a trial court may only

“continue, extend, modify, or revoke” the community supervision.4             But the

legislature has not given the trial court authority to revisit a disposition with no

new allegations:

           The court having exercised its authority at that earlier hearing
      by modifying the terms of probation instead of revoking probation, it
      was clearly without authority to change that disposition at a
      subsequent hearing at which no further violation of probation was
      shown.5

      In the case sub judice, the State filed its petition to proceed to adjudication

on March 31, 2015. The trial court amended Appellant’s conditions of community

supervision to add electronic monitoring on April 7, 2015. On April 17, 2015, the

State amended its petition, adding one additional allegation of a violation. On

May 4, 2015, the trial court heard the live petition, the State waived the new

allegation, Appellant entered a “true-but” plea, and the trial court granted the

petition to proceed to adjudication, finding the original allegations to be true. This

action by the trial court violated Appellant’s constitutional rights to due process.6

      But Appellant did not object to the trial court’s considering the original

allegations despite the trial court’s intervening amendment of his conditions of

community supervision to require electronic monitoring. As the majority points


      4
       Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b-2) (West Supp. 2015).
      5
       Furrh, 582 S.W.2d at 827.
      6
       See Rogers, 640 S.W.2d at 253–54.


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out, even a due-process complaint must be preserved, and Appellant has not

done so.

     Consequently, I concur in the result.




                                             /s/ Lee Ann Dauphinot
                                             LEE ANN DAUPHINOT
                                             JUSTICE

PUBLISH

DELIVERED: May 19, 2016




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