                             Fourth Court of Appeals
                                    San Antonio, Texas
                                             OPINION

                                        No. 04-18-00750-CR

                                    Allison Michelle JACOBS,
                                            Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the County Court at Law No. 6, Bexar County, Texas
                                     Trial Court No. 544462
                         Honorable Wayne A. Christian, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice
Concurring Opinion by: Patricia O. Alvarez, Justice

Sitting:         Rebeca C. Martinez, Justice
                 Patricia O. Alvarez, Justice
                 Liza A. Rodriguez, Justice

Delivered and Filed: June 12, 2019

REVERSED AND REMANDED

           Allison Jacobs appeals a judgment revoking her community supervision. Jacobs argues

the trial court abused its discretion when it found alleged violations of the terms of Jacobs’s

community supervision to be “true” because: (1) the evidence is legally insufficient to support the

judgment; and (2) Jacobs was denied due process when she was not allowed to call witnesses in

her defense. In a case that presents review of an unsuitable practice by a county court at law judge

in Bexar County, the State concedes error.
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                                           BACKGROUND

       On August 8, 2018, Jacobs pled no contest to the offense of driving while intoxicated and

was sentenced to fourteen months of community supervision. On September 13, 2018, the State

filed a motion to revoke Jacobs’s community supervision, and later amended the motion to add a

third violation of a condition of probation. A hearing was scheduled on the State’s amended

motion for October 1, 2018, before Judge Wayne Christian in County Court at Law No. 6. Judge

Christian called Jacobs and her attorney up to the bench, along with Susan Gross, the Chief Liaison

Officer (“CLO”), a representative of the probation department.          The State admits, “[a]s is

customary in Judge Christian’s court, no representative of the State came to the bench.” According

to both Jacobs and the State, it is the customary practice of Judge Christian to consider and

determine the merits of a motion to revoke without the presence of the State or the proper

admission of evidence. Here, the State was not present at the “hearing” and was offered no

opportunity to present evidence supporting its motion to revoke. From the bench, the judge asked

how Jacobs pled to the allegations in the motion to revoke, to which Jacobs’s attorney responded,

“not true.” The judge then asked the CLO for an update on Jacobs. The CLO told the court Jacobs

was nearing the end of her probation period and had substantially complied with the terms of her

community supervision but failed three drug tests. The CLO was not a sworn witness and offered

nothing into evidence. Jacobs’s counsel was not permitted to cross examine the CLO and was

denied a request to present evidence contesting the alleged drug test results. Jacobs’s attorney

advised the trial court she wanted to present evidence that Jacobs was taking a diet pill that had

been shown to cause false positives. The CLO then stated one of the tests was confirmed as being

positive for methamphetamines, and the trial court immediately granted the State’s motion to

revoke. Jacobs’s counsel asked the trial court for a contested hearing, and the trial court responded:

“It’s a little late for the contested hearing.” Over repeated objections from defense counsel, the


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trial judge found all allegations “true,” revoked Jacobs’s probation, and sentenced her to one year

in jail. Jacob’s motion for new trial 1 was summarily denied without a hearing.

                                                   DISCUSSION

         Standards of Review

         We review the trial court’s order revoking community supervision for an abuse of

discretion. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). A trial court abuses its

discretion when it acts without reference to any guiding rules or principles. State v. Thomas,

428 S.W.3d 99, 103 (Tex. Crim. App. 2014). The trial court is vested with discretion to decide

whether a defendant will continue community supervision, or have it revoked. DeGay v. State,

741 S.W.2d 445, 449 (Tex. Crim. App. 1987). However, the trial court does not have absolute

discretion in the decision to revoke community supervision. Id. Once a defendant is on community

supervision, it should not be arbitrarily withdrawn by the court, and the court is not authorized to

revoke without a showing that the defendant violated a condition of the community supervision

imposed by the court. Leonard v. State, 385 S.W.3d 570, 576 (Tex. Crim. App. 2012).

         When evaluating a legal sufficiency challenge, we view the evidence in the light most

favorable to the factfinder to determine whether it could make the findings that were returned.

Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). A preponderance of

the evidence is the evidentiary standard in a motion to revoke hearing. Rickels v. State, 202 S.W.3d

759, 763 (Tex. Crim. App. 2006). “Preponderance of the evidence means ‘that greater weight of

the credible evidence which would create a reasonable belief that the defendant has violated a

condition’ of his [or her] community supervision.” Carreon v. State, 548 S.W.3d 71, 77 (Tex.



1
  The State agrees with Jacobs that the record does not accurately reflect defense counsel’s objections because of the
trial judge’s interruptions and that she was entitled to a hearing on her motion for new trial to properly develop an
appellate record.


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App.—Corpus Christi 2018, no pet.) (citing Rickels, 202 S.W.3d at 763–64). “When the State has

failed to meet its burden of proof, the trial [court] abuses [its] discretion in issuing an order to

revoke [community supervision].” Cardona v. State, 665 S.W.2d 492, 493–94 (Tex. Crim.

App. 1984).

       The central issue to be determined in reviewing the trial court’s exercise of discretion in a

community supervision revocation case is whether the defendant was afforded due process. Tapia

v. State, 462 S.W.3d 29, 41 (Tex. Crim. App. 2015). “[T]he minimum requirements of due process

which must be observed in community supervision revocation hearings [are]: (1) written notice of

the claimed violations of probation; (2) disclosure to the probationer of the evidence against him

[or her]; (3) opportunity to be heard in person and to present witnesses and evidence, and the right

to confront and cross-examine adverse witnesses; (4) a neutral and detached hearing body; and

(5) a written statement by the fact finders as to the evidence relied on and the reasons for revoking

probation.” Id. at 41–42 (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)).

       Application

       Again, the State concedes that Jacobs was denied due process and that no evidence supports

revocation. Jacobs pled “not true,” which cannot be used to support the trial court’s finding. Cf.

Hays v. State, 933 S.W.2d 659, 661 (Tex. App.—San Antonio 1996, no pet.) (“When a plea of true

is made, the sufficiency of the evidence may not be challenged.”). A trial judge who orders

revocation of probation without affording either the State or the defendant an opportunity to be

heard fails to act under the guidance of any law or principle. Although the trial judge is the sole

judge of the credibility of witnesses and the weight to be given to their testimony, the judge is not

authorized to revoke probation without evidence from the State and without affording the accused

an opportunity to be heard. As the State and Jacobs jointly argue, the trial court abused its

discretion both by failing to permit the State to satisfy its burden and by refusing to afford Jacobs


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the minimum requirements of due process. Here, the trial judge committed legal error by ignoring

the law and ruling without guiding principles, adversely affecting the interests of the public

generally, along with the fundamental constitutional and procedural rights of the accused.

       The State further concedes that Jacobs was denied the opportunity to be heard in person

and to present and confront witnesses or to present other evidence. Jacobs expressed a desire to

have her mother testify regarding Jacobs’s normal behavior while she was allegedly using drugs.

Jacobs also was denied the opportunity to confront and cross-examine adverse witnesses when she

was not allowed to test the CLO’s credibility or basis of knowledge or contest the accuracy of the

drug tests averred to. Jacobs’s attorney tried to inform the judge that she pled “not true” to the

allegations, that she was asking for a contested hearing, and that the State had not submitted

evidence. Jacobs’s attorney again attempted to inform the judge the evidence was “not adequate”

to support the judgment, but the judge cut her off and replied, “this is done.” By finding the

allegations true and revoking Jacobs’s probation without hearing any actual evidence, the trial

court deprived Jacobs of the minimum requirements of due process, including her right to

disclosure of the evidence against her, an opportunity to be heard, present evidence and cross-

examine witnesses, and “a neutral and detached hearing body.” See Tapia, 462 S.W.3d at 41–42

(citing Gagnon, 411 U.S. at 786).

       The record reflects that Jacobs was originally convicted of misdemeanor DWI; thus, she

was entitled to be released on reasonable bail pending appeal. See TEX. CODE CRIM. PROC. ANN.

art. 44.04(a) (“Pending the determination of any motion for new trial or the appeal from any

misdemeanor conviction, the defendant is entitled to be released on reasonable bail.”). After

Jacobs filed a notice of appeal, the trial judge denied bail. Jacobs claims the trial judge thwarted

her efforts to obtain reasonable bail pending appeal, requiring her twice to seek habeas relief. We

need not address this complaint. While our review is limited to the error committed by the trial


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judge, we recognize “[a]n individual defendant’s vindication of personal rights does not

necessarily protect the public from a judge who repeatedly and grossly abuses his judicial power.”

Cynthia Gray, The Line Between Legal Error and Judicial Misconduct: Balancing Judicial Indep.

and Accountability, 32 HOFSTRA L. REV. 1245, 1248 (2004) (quoting People ex rel. Harrod v. Ill.

Courts Comm’n, 372 N.E.2d 53, 65 (Ill. 1977)). On appeal, both Jacobs and the State seek to

protect the integrity of the judiciary and the administration of justice by addressing a clear violation

of a defendant’s right to due process. However intended, whether in pursuit of efficiency or

expediency, the trial judge abused his discretion in acting arbitrarily as a surrogate for the State

and an impediment to Jacobs’s due process by refusing to conduct a contested hearing on the

State’s motion to revoke.

            The right to offer the testimony of witnesses . . . is in plain terms the right to
        present a defense, the right to present the defendant’s version of the facts[—]as well
        as the prosecution’s[—]to the [fact finder] so it may decide where the truth lies.
        Just as an accused has the right to confront the prosecution’s witnesses for the
        purpose of challenging their testimony, he [or she] has the right to present his [or
        her] own witnesses to establish a defense. This right is a fundamental element of
        due process of law.

Washington v. Texas, 388 U.S. 14, 19 (1967); see also Black v. Romano, 471 U.S. 606, 611–12

(1985) (holding fundamental elements of due process also apply to revocation hearings where the

trial judge is the fact finder).

        We recognize that trial judges have broad discretion in how they conduct business in their

courtroom and control their docket.        Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982).

However, a trial judge’s exercise of discretion is not unfettered and does not provide the judge

with a license to violate a defendant’s constitutional right to due process.           Euler v. State,

218 S.W.3d 88, 91 (Tex. Crim. App. 2007) (citing Black v. Romano, 471 U.S. 606, 610 (1985))

(holding “no State may deprive any person of the conditional liberty created by probation unless

the State employs procedures that are fundamentally fair.”); see also In re Hammermaster,


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985 P.2d 924, 936 (Wash. 1999) (“Judicial independence does not equate to unbridled discretion

to bully and threaten, to disregard the requirements of the law, or to ignore the constitutional rights

of defendants.”). It is incumbent on a trial judge to maintain the honor and dignity of the judiciary;

uphold the administration of justice for the benefit of the citizens of Texas; and preserve the

public’s confidence in the judicial system. See In re Slaughter, 480 S.W.3d 842, 844–45 (Tex.

Spec. Ct. Rev. 2015) (per curiam); In re Davis, 82 S.W.3d 140, 150 (Tex. Spec. Ct. Rev. 2002).

                                            CONCLUSION

       The judgment of the trial court is reversed, and the cause is remanded for further

proceedings consistent with this opinion.

                                                   Rebeca C. Martinez, Justice

PUBLISH




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