      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00083-CR



                               Johnathan Lynn Godley, Appellant

                                                  v.

                                   The State of Texas, Appellee


  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
       NO. B-10-0101-SB, HONORABLE BEN WOODWARD JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Johnathan Lynn Godley pleaded guilty to sexual assault of a child. See

Tex. Penal Code Ann. § 22.011(a)(2) (West 2011). Pursuant to a plea agreement with the State,

the trial court placed Godley on deferred adjudication community supervision for eight years.

Subsequently, the State filed a motion to adjudicate based on ten alleged violations of conditions of

his community supervision. At the adjudication hearing, Godley entered a plea of “true” to four of

the alleged violations. After receiving evidence, the trial court found seven of the alleged violations

to be true, revoked Godley’s deferred adjudication community supervision, adjudicated him guilty

of sexual assault of a child, and sentenced him to fifteen years’ imprisonment. On appeal, Godley

claims that he is being denied his right to due process because he cannot challenge the sufficiency

of the evidence that supports revoking his deferred adjudication, given that he pleaded true to

violating some conditions of his community supervision. We affirm the judgment.
                                         BACKGROUND

               On June 9, 2010, Godley pleaded guilty to sexual assault of a child pursuant to a

plea bargain with the State.1 See Tex. Penal Code Ann. § 22.01(a)(2). The trial court found the

evidence sufficient to establish guilt, but deferred a finding of guilt and placed Godley on community

supervision for eight years.

               Five months after Godley was placed on deferred adjudication community supervision,

the State filed a motion to adjudicate guilt. The motion alleged the following ten violations of the

conditions of Godley’s community supervision: (1) failure to provide proof of level of formal

education to supervision officer within sixty days; (2) failure to complete ten hours of community

service per month; (3) failure to pay for urinalysis on seven occasions; (4) violation of curfew and

not staying in residence; (5) failure to participate in sex offender therapy program; (6) failure to

refrain from making contact with persons under seventeen years old; (7) going within 1,000 yards

of an elementary school; (8) staying in a dwelling with a child under seventeen years old; (9) failure

to notify law enforcement of change of address; and (10) failure to pay $5 monthly sex offender fee.2

               The trial court held a hearing on the motion to adjudicate guilt. At this adjudication

hearing, Godley pleaded true to allegations 1, 2, 3, and 10, but denied the remaining six alleged

violations. The State then presented two witnesses. The first was Godley’s probation officer. The

probation officer testified that Godley failed to perform community service, failed to pay for



       1
         The facts recited herein are taken from the testimony and exhibits admitted at the
adjudication hearing and the sentencing hearing.
       2
         The State subsequently withdrew allegation 7 because Godley’s conditions of community
supervision stated that he could not be within 1,000 feet of a school, rather than 1,000 yards.

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urinalysis testing, violated curfew on several occasions, failed to participate in the sex offender

therapy program, and admitted to staying in a home with two seventeen-year-old children. The State

then called an officer with the San Angelo Police Department, who testified that Godley failed to

notify law enforcement of his change of address. The officer testified that Godley was homeless,

but that other homeless individuals on community supervision still informed the police department

of their whereabouts.

               Godley then presented two witnesses in his defense. The witnesses were the mothers

of children whom Godley was alleged to have had contact with. Both witnesses stated that Godley

had not interacted with their children since being placed on community supervision. The State did

not cross-examine either witness.

               After the conclusion of evidence, the trial court entered a finding that Godley had

violated the terms of his community supervision as set forth in allegations 1–5, 9, and 10. The court

granted the State’s motion to adjudicate guilt, proceeded to find Godley guilty of sexual assault of

a child, and sentenced him to fifteen years’ imprisonment. This appeal followed.


                                          DISCUSSION

               Violation of a single condition of community supervision is a sufficient ground to

support revocation of community supervision. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App.

1979). The State must prove that a defendant violated a condition of his community supervision by

a preponderance of the evidence. Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006).

A trial court’s order revoking community supervision is reviewed for an abuse of discretion. Id. at

763. However, the Texas Court of Criminal Appeals has made it clear that a defendant’s “plea of

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true, standing alone[,] is sufficient to support the revocation of” community supervision. Moses,

590 S.W.2d at 470; see also Atchison v. State, 124 S.W.3d 755, 758 n.4 (Tex. App.—Austin 2003,

pet. ref’d). Thus, if a defendant pleads true to violating any condition of his community supervision,

he cannot claim that the evidence is insufficient to support revocation. Mitchel v. State, 482 S.W.2d

221, 222–23 (Tex. Crim. App. 1972); Harris v. State, 160 S.W.3d 621, 626 (Tex. App.—Waco

2005, pet. dism’d); Atchison, 124 S.W.3d at 758 n.4.

                Godley acknowledges that he pleaded true to violating conditions of his deferred

adjudication community supervision, and he does not claim that his plea was involuntary. Nor does

he claim that the evidence is insufficient to support the trial court’s finding that he violated his

community supervision.3 Rather, Godley argues that “[a]s a result of [his] plea [of true] and the

current state of the law regarding community supervision, [he] is denied due process . . . both at his

hearing before the trial court and in this appeal, because his plea is not subject to a sufficiency of the

evidence review regardless of the validity of his plea or the evidence adduced to support the plea.”

                We take Godley’s argument to mean that controlling precedent from the court of

criminal appeals—which clearly states that a plea of true, standing alone, is sufficient to revoke

community supervision—deprives him of due process. See U.S. Const. amend. XIV § 1;4 see also

        3
        A defendant may challenge the sufficiency of the evidence to support revocation of
community supervision for the first time on appeal. See, e.g., Rickels v. State, 202 S.W.3d 759,
763–74 (Tex. Crim. App. 2006).
        4
            Godley also alleges that this is a violation of his right to “due course of law” under
Article I, section 13 of the Texas Constitution. However, he does not assert that the Texas Constitution
provides any greater protection than the Due Process Clause of the United States Constitution, and
thus we will assume that the federal and state constitutions provide the same protection. See Pena
v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (holding that defendant must preserve claim
that due course of law provides greater protection than Due Process Clause).

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Moses, 590 S.W.2d at 470. Godley claims that he is entitled to the same procedural protections at

the trial court level as defendants pleading guilty to felony charges. In the felony trial context, the

State must “introduce evidence into the record showing the guilt of the defendant” even when

the defendant pleads guilty. Tex. Code Crim. Proc. Ann. art. 1.15 (West 2005); see also Menefee v.

State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009) (explaining that code of criminal procedure, not Due

Process Clause, requires “sufficient evidence” of guilt beyond defendant’s guilty plea). Therefore,

Godley argues that his due process rights are being violated at the trial level because the State was

not required to present evidence beyond his plea of true, in other words to “prove-up” his violations

of community supervision.


Preservation of error

               We conclude that Godley’s due process complaint is not properly preserved for

appeal.5 Generally, “as a prerequisite to presenting a complaint for appellate review,” an appellant

must make a timely request, objection, or motion at the trial court level. See Tex. R. App. P. 31.1;

Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002). The purpose of this requirement is to

give the trial court and the State an opportunity to correct a mistake early in the proceeding. Hull,

67 S.W.3d at 217. This requirement applies even when the issue on appeal alleges a deprivation

of due process. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (holding that

due course of law claim not preserved at trial level); see also Hull, 67 S.W.3d at 217. “Error




       5
           “Preservation of error is a systemic requirement on appeal.” Ford v. State, 305 S.W.3d
530, 532–533 (Tex. Crim. App. 2009). Therefore, even though neither party addressed this issue in
their briefs before this court, we shall “review preservation of error on [our] own motion.” Id.

                                                  5
preservation does not require a hyper-technical or formalistic use of words or phrases,” it

merely requires that a movant make the trial court aware of the nature of the complaint. Pena,

285 S.W.2d at 464.

               While Godley asserts that his due process rights are being violated at both the trial

court and appellate levels, his essential claim is that the State should be required to prove-up his

alleged violations at the adjudication hearing. Godley did not preserve this due process claim for

appeal. At no point during the adjudication hearing did Godley assert that the State had to prove-up

his alleged violations of community supervision. Furthermore, Godley never argued that the evidence

adduced at the hearing was insufficient to prove that he violated his community supervision. In fact,

Godley never raised any alleged deprivation of his due process rights prior to this appeal. Thus,

we conclude that this issue was not properly preserved, and it is therefore waived. See id.; Hull,

67 S.W.3d at 217.


Analysis of due process claim

               Even if Godley did preserve this issue for appeal, we would nevertheless conclude

that his claim fails on the merits. Community supervision is a privilege, not a right. Flores v. State,

904 S.W.2d 129, 130 (Tex. Crim. App. 1995). When a trial court grants community supervision,

it effectively extends clemency to a defendant on the condition that the defendant abide by the rules

and requirements of the supervision. Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999)

(citations omitted). Nonetheless, revocation of community supervision results in a loss of liberty,

and therefore a probationer is entitled to certain due process protections prior to revocation.




                                                  6
See Jones v. Johnson, 230 F.3d 825, 827 (5th Cir. 2000) (citing Gagnon v. Scarpelli, 411 U.S. 778,

782 (1973)).

               However, Godley provides no support for his claim that he has been denied due

process. First, his argument fails to recognize the distinction between the legal standards involved

in a criminal trial and those in a hearing to revoke community supervision. See Bradley v. State,

608 S.W.2d 652, 656 (Tex. Crim. App. 1980) (“A probation revocation hearing is simply not

a criminal prosecution”). Specifically, Godley ignores the fact that the State only has to prove a

violation of community supervision by a preponderance of the evidence rather than by proof

beyond a reasonable doubt. See id. He fails to explain how a probationer’s plea of true, standing

alone, could ever be insufficient to prove a violation of community supervision by a preponderance

of the evidence. See Moses, 590 S.W.2d at 470. Second, Godley provides no precedent to support

his claim that due process requires that we extend a statutory protection created for defendants

who plead guilty to felonies to probationers who admit to violating their community supervision.

See Menefee, 287 S.W.3d at 13 (noting that requirement of proof after guilty plea is statutory,

not constitutional). We decline to find that the Due Process Clause affords greater protection for

probationers facing revocation than it does for defendants pleading guilty to felony charges.

               In addition, even if we accepted Godley’s argument as true, we are nonetheless

bound by controlling precedent. See Moses, 590 S.W.2d at 470. The court of criminal appeals has

held that a plea of true is itself sufficient to support revocation of community supervision. Moses,

590 S.W.2d at 470; Mitchell, 482 S.W.2d at 222–23. We are obliged to conform our opinions to

those of the court of criminal appeals. State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin



                                                 7
2006) (“As an intermediate court, we lack the authority to overturn the court of criminal appeals.”),

aff’d sub nom. State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007). Thus, even if this issue

had been properly preserved, we would conclude that a defendant who pleads true to violating

conditions of community supervision cannot claim that there is insufficient evidence to revoke

deferred adjudication. Therefore, Godley’s sole issue on appeal is overruled.


                                         CONCLUSION

               We affirm the judgment of the trial court.



                                              __________________________________________

                                              Diane M. Henson, Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Affirmed

Filed: May 11, 2012

Do Not Publish




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