Affirmed and Memorandum Opinion filed April 23, 2019.




                                      In The

                Fourteenth Court of Appeals
                              NO. 14-17-00821-CR

                         MARIA CORONA, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 149th District Court
                           Brazoria County, Texas
                         Trial Court Cause No. 66522


                     MEMORANDUM OPINION

      Appellant Maria Corona appeals from the revocation of her community
supervision. In a single issue, appellant contends that the trial court violated her
right to be present under Texas Code of Criminal Procedure article 33.03 when the
court continued with revocation proceedings in her absence and determined that
she had voluntarily absented herself from the proceedings. Because article 33.03
does not apply to revocation of community supervision proceedings, we affirm.
                                   Background

      In 2012, after a jury found her guilty of the state jail felony offense of
unauthorized use of a motor vehicle, appellant and the State entered into a plea
agreement under which appellant would be sentenced to two years’ confinement,
but the sentence would be suspended and appellant would be placed on community
supervision for three years. The trial court then sentenced appellant in accordance
with the plea agreement and set a number of terms and conditions to govern her
community supervision.

      On May 14, 2014, the State filed a motion to revoke appellant’s community
supervision, alleging that she had violated the terms and conditions of her
community supervision in nine separate ways. Appellant pleaded “true” to
allegations 1 through 6 as well as 9, and “not true” to allegations 7 and 8. A
contested hearing on the State’s motion to revoke began on May 13, 2016.
Appellant was present at that time and represented by counsel. Appellant and a
probation officer both testified. Much of their testimony concerned appellant’s
failure to attend meetings and classes required under the terms of her community
supervision as well as her medical conditions, which appellant explained included
a blood condition that required her to get blood transfusions every three months.

      At the conclusion of the hearing, the trial judge reset the case for six months
in order for a presentence investigation report to be prepared that would include
appellant’s medical records. The judge then told appellant that it appeared she was
using her medical conditions as an excuse for failing to meet the terms and
conditions of her community supervision. The judge ordered appellant to return on
November 18, 2016 for a final determination regarding the revocation of her
community supervision.

      When the trial court reconvened on November 18, however, appellant’s
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attorney announced “not ready” because appellant was “allegedly in Matagorda
County General Hospital.” The trial judge explained that the court had received a
fax from the hospital that morning stating that appellant had been admitted that day
for a blood transfusion. The judge then announced that

       looking back over my history with [appellant], she periodically has
       not shown for court and claimed medical purposes, or was late. And
       my notes from our hearing indicate that she also claimed medical
       issues is why she didn’t report or do certain things she was required to
       do. So with that, I am going to find that she voluntarily absen[t]ed
       herself today, as we are set for sentencing.
The State briefly presented one final witness, a probation officer, and the two sides
presented final argument. The judge then found allegations 1 through 6 and 9 to be
true and found allegations 7 and 8 to be untrue. The judge further stated that
appellant’s community supervision would be revoked and she would be sentenced
to serve two years’ confinement with credit for time served.

       At the formal sentencing hearing on February 10, 2017, at which appellant
and her attorney were present, the trial judge recounted that appellant had not
appeared at the prior sentencing hearing and the judge had found that she
voluntarily absented herself. The judge then sentenced appellant to two years
confinement with credit for 53 days served.

                                         Analysis

       As stated above, appellant contends that in continuing with proceedings in
her absence and determining that she had voluntarily absented herself, the trial
court violated her right to be present under article 33.03 of the Texas Code of
Criminal Procedure.1 That article provides in full:


       1
        The State contends that Corona has not preserved her complaint for appellate review.
See Tex. R. App. P. 33.1. At the revocation hearing, Corona’s lawyer announced “not ready.”
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       In all prosecutions for felonies, the defendant must be personally
       present at the trial, and he must likewise be present in all cases of
       misdemeanor when the punishment or any part thereof is
       imprisonment in jail; provided, however, that in all cases, when the
       defendant voluntarily absents himself after pleading to the indictment
       or information, or after the jury has been selected when trial is before
       a jury, the trial may proceed to its conclusion. When the record in the
       appellate court shows that the defendant was present at the
       commencement, or any portion of the trial, it shall be presumed in the
       absence of all evidence in the record to the contrary that he was
       present during the whole trial. Provided, however, that the presence of
       the defendant shall not be required at the hearing on the motion for
       new trial in any misdemeanor case.
Tex. Code Crim. Proc. art. 33.03.

       Article 33.03 draws from the right to confrontation of witnesses guaranteed
in the Sixth Amendment to the United States Constitution and article I, section 10
of the Texas Constitution. See Miller v. State, 692 S.W.2d 88, 90-91 (Tex. Crim.
App. 1985); Smith v. State, 494 S.W.3d 243, 251 (Tex. App.—Texarkana 2015, no
pet.); Vay v. State, No. 14-06-00080-CR, 2007 WL 705620, at *2 (Tex. App.—
Houston [14th Dist.] Mar. 8, 2007, pet. ref’d) (mem. op., not designated for
publication).

       Like the constitutional provisions and by its own express language, article
33.03 only applies in criminal prosecutions. See U.S. Const. amend. VI (“In all
criminal prosecutions . . . .”); Tex. Const. art. I, § 10 (“In all criminal prosecutions
. . . .”); Tex. Code Crim. Proc. art. 33.03 (“In all prosecutions for felonies . . . .”);
see also Staten v. State, 328 S.W.3d 901, 905 (Tex. App.—Beaumont 2010, no
pet.) (article 33.03); Truman v. State, No. 14-08-00315-CR, 2009 WL 396282, at
*1 (Tex. App.—Houston [14th Dist.] Feb. 19, 2009, no pet.) (mem. op., not
The trial court noted that it had received notice Corona had been admitted to the hospital and
then specifically ruled that she had voluntarily absented herself. Assuming without deciding that
Corona preserved error, we overrule her issue.

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designated for publication) (article 33.03); Trevino v. State, 218 S.W.3d 234, 239
(Tex. App.—Houston [14th Dist.] 2007, no pet.) (Confrontation Clause).

      A community supervision revocation hearing is not part of a criminal
prosecution. Pickins v. State, No. 02-17-00050-CR, 2018 WL 3468359, at *4 (Tex.
App.—Fort Worth July 19, 2018, no pet.) (mem. op., not designated for
publication); Mauro v. State, 235 S.W.3d 374, 375–76 (Tex. App.—Eastland 2007,
pet. ref’d); see also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (holding
probation revocation is not a stage of a criminal prosecution); United States v.
Grandlund, 71 F.3d 507, 509-10 & n.5 (5th Cir. 1995) (holding revocation of
supervised release is not part of criminal prosecution); Trevino, 218 S.W.3d at 239
(holding probation revocation is not part of a criminal proceeding). Because article
33.03 only applies in criminal prosecutions and a community supervision
revocation proceeding is not a criminal prosecution, appellant’s complaint that the
trial court violated her rights under article 33.03 during her revocation hearing are
without merit. See, e.g., Staten, 328 S.W.3d at 905.

      This is not to say that a defendant in a community supervision revocation
proceeding does not have considerable rights. However, those rights stem from the
Due Process Clause of the Fourteenth Amendment to the United States
Constitution and the Due Course of Law Clause of the Texas Constitution and do
not contain the full panoply of rights guaranteed in a criminal proceeding. U.S.
Const. amend. XIV; Tex. Const. art. I, § 19; Staten, 328 S.W.3d at 905; see also
Morrissey v. Brewer, 408 U.S. 471, 480, 485, 487–89 (1972) (identifying rights
applicable in key stages of a revocation hearing). Appellant, however, does not
argue that any of the rights generally applicable in a revocation proceeding were
violated here. She argues only that her rights under article 33.03 were violated. We
decline to make due process arguments on behalf of appellant. See Tex. R. App. P.

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38.1(i); Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997).

      We overrule appellant’s sole issue and affirm the trial court’s judgment.




                                       /s/       Frances Bourliot
                                                 Justice



Panel consists of Justices Christopher, Bourliot, and Spain.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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