              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                       Nos. PD-1157-06, PD-1158-06, PD-1159-06,
                         PD-1160-06, PD-1161-06, PD-1162-06



                        ROBERT C. EDWARDS, JR., Appellant

                                               v.

                                 THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE FIRST COURT OF APPEALS
                         HARRIS COUNTY

       J OHNSON, J., filed a concurring opinion in which C OCHRAN, J., joined.

                          CONCURRING OPINION

       On July 16, 1996, appellant plead guilty to 2 felonies. The trial court placed appellant on

deferred-adjudication community supervision for a period of eight years. Thus, appellant’s

community supervision would expire on July 15, 2004. Nesbit v. State, 227 S.W.3d 64 (Tex. Crim.

App. 2007).

       The state filed a motion to adjudicate on October 22, 2003, well within appellant’s period

of community supervision. The state filed an amended motion on January 29, 2004, in one felony,
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and on April 2, 2004, on the other, both also within appellant’s probationary period. These motions

alleged violations of the conditions of supervision that were not plead in the original motion, but

omitted the allegations of the original motion. On August 25, 2004, after appellant’s community

supervision expired, the state filed a second amended motion to adjudicate in each of the two causes.

These motions combined the allegations contained in the timely filed motions of October 22, January

29, and April 2 and added new allegations as to four subsequent offenses. A hearing on the State’s

motion was carried with the appellant’s simultaneous bench trials on the four subsequent felonies.

Those trials ended on September 10, 2004–16 days after the last amended motion to adjudicate was

filed–with a verdict of guilty on all four charges. At the same time, the trial court entered a verdict

of guilty on the two unadjudicated offenses.

       The Code of Criminal Procedure, article 42.12, § 2(2)(A), states that “community

supervision” includes deferred adjudication. Article 42.12, § 21(b), permits the State to amend a

motion to revoke in a felony case up to seven days before hearing. The requirement of amendment

at least seven days before a hearing ensures that a defendant has adequate notice of the alleged

violations of the terms of his supervision. Article 42.12, § 21(e), states that a court

       retains jurisdiction . . . to revoke, continue, or modify community supervision,
       regardless of whether the period of community supervision imposed on the defendant
       has expired, if before the expiration the attorney representing the state files a motion
       to revoke, continue, or modify community supervision and a capias is issued for the
       arrest of the defendant.

Reading this section together with Article 42.12, § 21(b), I conclude that the state may amend a

motion to adjudicate a felony offense up to seven days before the hearing on the motion if, before

the term of supervision expires, the state files a motion to adjudicate, and the trial court issues a

capias for the arrest of the defendant. No one seems to be arguing either that the state failed to
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timely file a motion to adjudicate or that the trial court failed to timely issue a capias. The trial court

may adjudicate guilt if it finds that at least one alleged violation is true.

        Each of the amended motions to adjudicate that were specified as the versions to be used as

the bases for adjudication alleged, inter alia, violation of the terms of supervision by commission

of the felonies that were litigated in the trial that ended on September 10. Those motions to

adjudicate were filed more than seven days before the adjudication hearing. Several, if not most, of

the allegations contained within the August amended motion were also alleged in the motions from

October 22, 2003, January 29, 2004, and April 2, 2004. Appellant cannot, therefore, assert

inadequate notice as to those allegations. Nor can he assert lack of notice as to the subsequent

offenses for which he was tried and convicted. By finding appellant guilty of the felonies on trial,

the trial court found true at least one alleged violation of appellant’s terms of supervision.

        Appellant argues that the second amended motion is void because it was not filed before his

term of supervision expired and was therefore untimely, but he does not cite to authority in statute

or case law that prohibits amendment after expiration of a term of supervision if the state timely filed

the original motion to adjudicate and the trial court timely issued a capias. I conclude, therefore, that

if a valid and timely original motion to adjudicate exists, it may be amended, before or after

expiration of the term of supervision, up to seven days before the hearing on the motion.

        I concur in the judgment of the Court.

Filed: February 6, 2008
Do not publish
