                                   NO. 07-99-0508-CR
                                       07-99-0509-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                         PANEL A

                                   OCTOBER 30, 2001

                          ______________________________


                        ALFONSO BECERRA, SR., APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

              FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

          NO. 34,542-A, 35,017-A; HONORABLE DAVID GLEASON, JUDGE

                         _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       Appellant Alfonso Becerra, Sr., appeals from revocation of his community

supervision on two charges of felony driving while intoxicated. He urges that the terms of

his community supervision were suspended during the time of the activities which the State

alleged as violations, and that the State’s motions to revoke did not give sufficient notice

of his alleged violations. We affirm.
                                     BACKGROUND


       On April 6, 1995, pursuant to a plea bargain, appellant Alfonso Becerra, Sr., pled

guilty to a felony D.W.I. charge in cause number 34542-A in the 47th District Court of Potter

County, Texas. Honoring the plea bargain, the trial judge sentenced appellant to five years

confinement in the Institutional Division of the Texas Department of Criminal Justice

(“TDCJ”), assessed a fine in the amount of $250, suspended the sentence and placed

appellant on community supervision for five years.


       On June 30, 1995, again pursuant to a plea bargain, appellant pled guilty to a felony

D.W.I. charge in cause number 35017-A in the 47th District Court of Potter County.

Honoring the plea bargain, the trial judge sentenced appellant to ten years confinement in

the TDCJ, assessed a fine of $2,000, suspended sentence, and placed appellant on

community supervision for ten years.


       On July 31, 1997, the State filed motions to revoke community supervision in both

cases.1    The motions alleged that on May 6, 1997, appellant violated terms of his

community supervisions by being publicly intoxicated. The motions were amended on April

13, 1998, to additionally allege that appellant violated his community supervision conditions

by consuming alcohol on May 6, 1997. The motions were heard on October 1, 1998. The

trial judge made docket entries indicating that the motions were not proved and that



       1
       The State previously filed a motion to revoke appellant’s community supervision in
cause number 34542-A. The motion was based on the alleged D.W.I. on which cause
number 35017-A was based. The motion was not granted, but the trial court imposed
more stringent community supervision conditions.

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appellant was continued on probation. No orders were signed by the judge as to the

results of the hearing.


       On October 15, 1999, the State filed a new motion to revoke in each case. The

motions alleged that: (1) appellant failed to comply with the first condition of his probation

in that he appeared in a public place on September 14, 1999, while under the influence of

alcoholic beverages to the degree that he may have endangered himself or another; and

(2) appellant failed to comply with the eleventh condition of his probation in that he

consumed alcohol on September 14, 1999. The motions to revoke did not recite the

language of the conditions alleged to have been violated by appellant.


       On December 13, 1999, the State filed a motion to dismiss the motions to revoke

which had been heard on October 1, 1998. The motions were denied.


       On December 16, 1999, the trial judge heard the motions to revoke which were filed

on October 15th.     At the hearing, appellant’s attorney announced ready, but orally

excepted to the motions and made an oral motion to dismiss the State’s motions on the

grounds that the motions to revoke did not list the conditions of supervision which appellant

had allegedly violated. Appellant’s attorney also excepted to the motions to revoke on the

grounds that the motions requested relief that was not available to the trial court in either

of appellant’s cases. The trial judge denied the exceptions and motions to dismiss.


       The motions to revoke were granted, both community supervisions were revoked,

and the original sentences imposed. The revocation orders were signed on December 21,

1999. On December 22,1999, the trial judge signed orders denying the motions to revoke

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heard on October 1, 1998, and continuing appellant’s community supervisions. The orders

stated that they were effective as of October 1, 1998.


       By five issues, appellant urges that the trial court abused its discretion in revoking

his community supervisions. Issues one, two, four and five are based on appellant’s

contention that on September 14, 1999, the date he allegedly violated his community

supervision provisions, he was not under community supervision.            He reasons that

because the orders denying the State’s motions to revoke which were heard on October

1, 1998, and which contained language continuing the terms of his community supervisions

retroactive to October 1, 1998, were not signed until December 22, 1999, there were no

orders in existence on September 14, 1999, requiring him to comply with the terms of his

community supervision. Thus, he concludes, he could not have violated any community

supervision conditions on September 14th, and the trial court abused its discretion in

revoking his probation. By issue three, he asserts that the trial court abused its discretion

in overruling his objections to the State’s motions to revoke. His objections to the motions

to revoke were based on the State’s failure to specify the particular conditions of

appellant’s community supervision which he allegedly violated. We will address the issues

in groups, for convenience.


                              REVOCATION OF PROBATION


       Probation revocation proceedings are not criminal trials in the constitutional sense;

rather, they are administrative in nature.       Davenport v. State, 574 S.W.2d 73, 76

(Tex.Crim.App. 1978) (en banc). In a proceeding to revoke probation the burden of proof


                                             4
is on the State to show by a preponderance of the evidence that the probationer has

violated a condition of probation as alleged in the motion to revoke. Cobb v. State, 851

S.W.2d 871, 873 (Tex.Crim.App. 1993) (en banc). In determining the sufficiency of the

evidence to sustain a probation revocation, we view the evidence in the light most

favorable to the trial court’s ruling. Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App.

1979).


         The only issue presented in an appeal from an order revoking community

supervision is whether the trial court abused its discretion. Naquin v. State, 607 S.W.2d

583, 586 (Tex.Crim.App. 1980); Lloyd v. State, 574 S.W.2d 159, 160 (Tex.Crim.App.

1978). If the State fails to meet its burden of proof, the trial court abuses its discretion in

revoking probation. Cardona v. State, 665 S.W.2d 492, 494 (Tex.Crim.App. 1984) (en

banc). A trial court abuses its discretion when its action or decision is not within the zone

of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.

1991) (op. on reh’g).


                                      ISSUES 1 AND 4


         By his first issue, appellant argues that the trial court abused its discretion by

revoking his community supervision when the court did not file a written order continuing

appellant on community supervision until after a subsequent revocation hearing. By his

fourth issue, appellant contends that the trial court abused its discretion by revoking

appellant’s community supervision when the court signed the order continuing appellant’s

probation on December 22, 1999, but made it effective as of October 1, 1998.


                                              5
       After a motion to revoke has been filed, the probationary period continues to run

unabated until it expires or until a revocation order is entered and becomes final. Ex parte

Miller, 552 S.W.2d 164, 165 (Tex.Crim.App. 1977). For example, even while an appeal

of a probation revocation is pending, the defendant remains subject to the terms of

probation and subject to arrest for any violation of those terms during the remaining period

of probation. See Margoitta v. State, 10 S.W.3d 416, 418 (Tex.App.--Waco 2000, no pet.).

After a hearing on a motion to revoke has occurred, the trial court has several options. The

trial court has the authority to order that the community supervision be continued,

extended, modified, or revoked. See TEX . CODE CRIM . PROC . ANN . art. 42.12 § 21(b)

(Vernon Supp. 2001). The determination is left to the trial court’s discretion. See Flournoy

v. State, 589 S.W.2d 705, 707 (Tex.Crim.App. 1979).


       Appellant was placed on probation in cause number 34542-A on April 6, 1995, for

a period of five years. Appellant was placed on probation in cause number 35017-A on

June 30, 1995, for a period of ten years. On September 14, 1999, appellant’s term of

probation in both cases was unexpired and had not been finally revoked. Therefore,

appellant was still under community supervision in both cases on the date of the violations

alleged in the State’s motions to revoke, and appellant was still bound by the terms and

conditions of his community supervision, including but not limited to the conditions the

State alleged he violated. See Ex parte Miller, 552 S.W.2d at 165. The orders signed on

December 22, 1999, which denied the motion to revoke heard on October 1, 1998, and

which contained language continuing appellant’s community supervision, merely formally

disposed of the motions to revoke and confirmed the continuation of appellant’s community


                                             6
supervision and the conditions of the supervision. They did not retroactively impose the

conditions of community supervision which appellant allegedly violated, because those

conditions had been previously imposed and had not been changed before September 14,

1999. The trial court did not abuse its discretion in denying appellant’s objection to the

State’s motions to revoke, or in revoking appellant’s probation and imposing sentence.

Appellant’s first and fourth issues are overruled.


                                     ISSUES 2 AND 5


       By his second issue, appellant contends that the trial court abused its discretion in

imposing sentence because the trial court’s order denying the State’s motion to revoke and

continuing probation was signed on December 22, 1999, but was made retroactive to

October 1, 1998. By his fifth issue, appellant argues that the trial court erred and abused

its discretion in overruling appellant’s objection to the State’s motions to revoke, where the

conditions allegedly violated by appellant were retroactive conditions imposed subsequent

to the hearing held on December 16, 1999.


       As explained above, appellant remained on probation at the conclusion of the

revocation hearing on October 1, 1998. He continued to be subject to all of the terms and

conditions of his community supervision until it expired or until a revocation order was

entered and became final. See Ex parte Miller, 552 S.W.2d at 165; Margoitta, 10 S.W.3d

at 418. The order signed on December 22, 1999, did not change any terms of appellant’s

probation. The order was, in effect, a nunc pro tunc order reflecting the court’s prior ruling

denying the State’s attempt to have appellant serve his sentence, as reflected by the


                                              7
court’s docket entry. See Ex parte Dopps, 723 S.W.2d 669, 670 (Tex.Crim.App. 1986);

Alvarez v. State, 605 S.W.2d 615, 617 (Tex.Crim.App. 1980). We overrule appellant’s

issues 2 and 5.


                                         ISSUE 3


       By his third issue, appellant contends that the trial court abused its discretion in

overruling appellant’s objection to the State’s motions to revoke on the basis that the

motions failed to give appellant notice of the particular conditions of probation which

appellant allegedly violated.


       The State’s motions to revoke alleged that appellant violated his probations as

follows:


       a.     The defendant failed to comply with the first condition of his
              supervision in that on or about the 14th day of September, 1999, in
              Potter County, Texas, the defendant did appear in a public place
              while under the influence of alcoholic beverages to the degree that
              said defendant may have endangered himself or another.

       b.     The defendant failed to comply with the eleventh condition of his
              supervision in that the defendant consumed alcohol on or about
              September 14, 1999, as evidenced by Amarillo Police Department
              incident report #99-85723, which resulted in his arrest for Public
              Intoxication.


The language of the two conditions of probation at issue on appeal is identical in each

case. The first condition reads: “Commit no offense against the laws of this State or any

other State or of the United States.” The eleventh condition reads: “Abstain from the




                                            8
consumption of alcohol in any form at any time.” Appellant signed the Orders containing

these conditions on the lines marked for the probationer’s signature.


       When the motions were called for hearing, appellant’s counsel sought dismissal of

the motions for failure to set out the substance of the conditions allegedly violated, and

asserted exceptions to the motions. The trial court denied the motions to dismiss and

exceptions. Appellant then announced ready for hearing. In the presence of appellant,

and in open court, appellant’s counsel waived the reading of the motions to revoke, after

which the trial court asked appellant if he fully understood what “you’re accused of doing

to violate probation.” Appellant responded that he did, and stated to the trial court that the

allegations were not true.


       The proper method for challenging a motion to revoke for failure to provide sufficient

notice is a motion to quash. See Burkett v. State, 485 S.W.2d 578, 580 (Tex.Crim.App.

1972). A motion to quash must be in writing and filed before the defendant announces

ready at the revocation hearing.       See Matte v. State, 572 S.W.2d 547, 548 n.2

(Tex.Crim.App. 1978); Dempsey v. State, 496 S.W.2d 49, 50-52 n.1 (Tex.Crim.App. 1973).

An oral motion to quash will not preserve error for review. See Minnieweather v. State, 636

S.W.2d 235, 236 (Tex.App.--Texarkana 1982, no pet.).


       Appellant did not file written motions to quash the State’s motions to revoke. His

oral exceptions and motion to dismiss the motions to revoke did not preserve error for

review. Id.




                                              9
       Moreover, a motion to revoke probation provides sufficient notice so long as it

specifies the act constituting the violation, the date on which the act was committed, and

the location where it occurred.      See Gordon v. State, 575 S.W.2d at 529, 530-31

(TexCrim.App. 1979); Vale v. State, 486 S.W.2d 370, 372 (Tex.Crim.App. 1972). The

State’s motions set out the specific numbers of the conditions of probation which appellant

allegedly violated, the particular actions which were alleged to have violated the probation

conditions, and the dates of the alleged actions. The State’s motions gave appellant

sufficient notice, as confirmed by appellant’s telling the trial court that he understood what

he was accused of doing that violated his probation. Thus, even assuming, arguendo, that

error was preserved, we conclude that the trial court did not abuse its discretion in revoking

appellant’s probation. See Flournoy, 589 S.W.2d at 707; Gordon, 575 S.W.2d at 530-31.

Appellant’s third issue is overruled.


                                        CONCLUSION


       Having overruled appellant’s five issues, we affirm the judgment of the trial court.




                                                         Phil Johnson
                                                            Justice


Do not publish.




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