                                    NO. 07-06-0238-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL E

                                    JUNE 27, 2008
                           ______________________________

                        JASON DEWAYNE POTEET, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE
                         _________________________________

               FROM THE 50TH DISTRICT COURT OF COTTLE COUNTY;

                     NO. 2782; HONORABLE W. H. HEATLY, JUDGE
                          _______________________________


Before CAMPBELL and PIRTLE, JJ., and REAVIS, S.J.1


                                MEMORANDUM OPINION


       Appellant Jason Dewayne Poteet appeals from the revocation of his community

supervision.    Via two points of error, appellant contends the trial court violated his

constitutional rights in permitting the State to go forward with its amended motion to revoke

despite lack of personal service on appellant. We affirm.




       1
           Don H. Reavis, Senior Judge, Seventh Court of Appeals, sitting by assignment.
                                         Background


       In May 2002, on his plea of guilty, appellant was convicted of delivery of a controlled

substance, cocaine, in an amount less than one gram.2 Appellant was assessed a two-

year state jail sentence that was probated for five years. Appellant was placed on

community supervision, subject to certain terms and conditions.


       In February 2006, the State filed a motion to revoke appellant’s community

supervision. Pursuant to the trial court’s capias, he was arrested on April 6, 2006. On April

18, the trial court signed an order appointing Dale Rabe to represent appellant, and on

April 19, the State filed a first amended motion to revoke. That motion was heard before

the trial court on May 16.


       The February 2006 motion to revoke alleged appellant had violated the requirement

of his community supervision that he abstain from the use of intoxicating substances. It

alleged appellant used marijuana on or about seven dates ranging from June 21, 2004

through January 17, 2006. The motion also alleged numerous failures to report and

failures to pay costs, fines, restitution and fees.


       The first amended motion corrected the date of appellant’s original offense, added

two allegations of marijuana use and deleted some of the other marijuana use allegations.

It also added additional months of delinquency to the paragraphs alleging failures to pay.


       2
          See Tex. Health & Safety Code Ann. § 481.112(b) (Vernon 2001). This is a state
jail felony punishable by confinement in a state jail facility for a term of not more than two
years or less than 180 days and a fine not to exceed $10,000. Tex. Penal Code Ann. §
12.35 (Vernon 2007).

                                              2
       On May 1, Mr. Rabe filed a motion to withdraw as counsel, which was granted, and

new counsel, Earl Griffin, Jr., was appointed. Mr. Griffin represented appellant at the May

16 hearing, where appellant pled “not true” to the State’s allegations. The State presented

the testimony of appellant’s probation officer, who testified to various violations, including

appellant’s acknowledged use of marijuana on or about January 23 to January 27, 2006

and June 25, 2005. The probation officer further testified that appellant failed to report as

required, failed to pay restitution, court costs, fines, attorney’s fees, and supervision fees

as required. The defense presented the testimony of the Cottle County sheriff, and

appellant testified.


       The trial court found the evidence of some alleged violations lacking, but found

others true, revoked appellant’s community supervision and assessed punishment at two

years in the State Jail Division of the Texas Department of Criminal Justice. Appellant filed

a motion for new trial, challenging the sufficiency of the evidence to support revocation,3

and timely filed his notice of appeal.


       On appeal, appellant urges the revocation order and sentence must be reversed

because the trial court violated rights guaranteed him under the Fourteenth Amendment

to the United States Constitution and Article 1, Section 19 of the Texas Constitution4 when




       3
           The evidentiary sufficiency challenge is not repeated on appeal.
       4
          Appellant’s argument based on the Texas Constitution’s requirements does not
differ from his Fourteenth Amendment argument. We therefore do not address the state
constitutional argument separately.      Muniz v. State, 851 S.W.2d 238, 251-52
(Tex.Crim.App. 1993).

                                              3
it permitted the State to proceed with its first amended motion to revoke without personally

serving him with the motion.


                                           Analysis


       In a revocation proceeding, the State must prove by a preponderance of the

evidence that appellant violated a condition of community supervision as alleged in the

motion to revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App.1993), Herrera v.

State, 951 S.W.2d 197, 199 (Tex.App.–Corpus Christi 1997, no pet.). When the State

alleges more than one violation, proof of any one of them will support revocation. Moore

v. State, 11 S.W.3d 495, 498 (Tex.App.–Houston [14th Dist.] 2000, no pet.). The trial judge

in such a proceeding is the sole trier of fact. Id.; Taylor v. State, 604 S.W.2d 175, 179

(Tex.Crim.App.1980).


       Due process entitles probationers facing a revocation proceeding to written notice

of their alleged violations of the terms of community supervision. Ruedas v. State, 586

S.W.2d 520, 523 (Tex.Crim.App. 1979), citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct.

1756, 36 L.Ed.2d 656 (1973); 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). A person on

community supervision is entitled to a written application to revoke that fully informs him

or her of the term of probation he or she is alleged to have breached. Id. The application


                                               4
must clearly set out the basis on which the State seeks revocation so that a probationer

and his or her counsel have fair notice. Id.


       Evidence showed that appellant was given a copy of the State’s February 2006

motion to revoke when he was arrested on April 6. Evidence also showed that the

probation officer provided a copy of the first amended motion to appellant’s then-counsel

Mr. Rabe on April 20, the day after it was filed.


       We are unable to see a Due Process Clause violation in these events. Case law

has recognized the common practice of serving a probationer with a copy of a revocation

motion,5 see, e.g., Campbell v. State, 456 S.W.2d 918, 920 n.3 (Tex.Crim.App. 1970), but

appellant does not cite us to authority constitutionally requiring that pre-hearing notice of

an amended motion to revoke be given in every case by means of personal service on the

probationer. The cases he cites do not suggest such a constitutional requirement.

Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.ed.2d 484 (1972) (minimum

due process requirements for parole revocation hearing include “written notice of the

claimed violations of parole”); Gagnon, 411 U.S. at 786 (stating similar minimum

requirements for probation revocation hearing); Ruedas, 586 S.W.2d at 523; Weed, 891

S.W.2d at 24 n.4 (both also referring to requirement of “written notice”). Nor does it appear




       5
        The Code of Criminal Procedure does not address the subject of service of
motions to revoke community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, §
21(b) (Vernon 2007).

                                               5
sending the amended motion to his attorney in this instance provided written notice that

was constitutionally defective.6


       Finding no merit in appellant’s claim of deprivation of his Fourteenth Amendment

right to due process of law, we overrule his first point of error and affirm the trial court’s

judgment.




                                                  James T. Campbell
                                                      Justice


Do not publish.




       6
          Appellant does not contend the notice to his counsel was not practically effective.
It is clear from the opening moments of the revocation hearing that Mr. Griffin was familiar
with the amended motion. For instance, on the court’s inquiry, counsel stated that
appellant would waive “the reading of the first amended motion to revoke community
supervision.” Nor did appellant seek a continuance of the hearing or otherwise argue he
had inadequate opportunity to prepare for it.

                                              6
