                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-09-00089-CR
                              NO. 02-09-00090-CR


SHEREE LEANNE APPLIN A/K/A                                          APPELLANT
SHEREE LEANNE APTLIN

                                        V.

THE STATE OF TEXAS                                                        STATE


                                    ------------

       FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                    ------------

                                   OPINION
                                    ------------

                                I. INTRODUCTION

       Appellant Sheree Leanne Applin a/k/a Sheree Leanne Aptlin appeals the

trial court‘s judgments revoking her community supervision. In two points, Applin

contends that the evidence is insufficient to establish that she violated terms of

her community supervision and contends that trial counsel was ineffective. We

will affirm.
                                   II. BACKGROUND

      On September 22, 2008, Applin entered pleas of guilty to both causes

involved in this case—driving while intoxicated with felony repetition. As part of

her plea-bargain agreements, Applin received seven-year sentences. The trial

court probated the sentences for a period of four years, placing Applin on

community supervision. Among the conditions of her community supervision,

Applin immediately served ten days in the Tarrant County Jail. Her plea-bargain

agreements also included that Applin complete 160 hours of community service,

pay court costs and a $1,350 fine, and that Applin‘s driver license be suspended

for two years and until she completed the DWI repeat offender program. Other

conditions of her community supervision included that Applin abstain from illegal

substances, attend substance abuse treatment, and pay a monthly probation

supervision fee.    The terms of her plea-bargain agreements also allowed for

―other conditions to be set by [the trial] court.‖

      Three weeks after being placed on community supervision—on October

13, 2008—the trial court supplemented Applin‘s community supervision

conditions and ordered her to serve fourteen days‘ confinement in the Tarrant

County Jail. Again, on December 29, 2008, the trial court supplemented her

community supervision conditions by jailing her for 156 days. On February 13,

2009, the State filed its petitions seeking to revoke Applin‘s community

supervision. In the three-page petitions, the State alleged that Applin violated the



                                       2
conditions of her community supervision by testing positive through urinalysis on

December 12, 2008, for hydrocodone, hydromorphone, and codeine; by testing

positive for THC on September 30, 2008; by failing to attend substance abuse

treatment on October 7, 2008, and December 20, 2008; and by failing to pay her

probation supervision fees in October and December 2008.

      At the hearing on the State‘s revocation petitions, Applin pleaded ―not true‖

to all allegations. Ermelindo Rolon, Applin‘s community supervision supervisor,

testified that Applin failed to attend substance abuse treatment in October and

December 2008, and that Applin failed to pay her supervision fees in October

and November 2008. Rolon also testified that Applin tested positive for codeine,

hydrocodone, hydromorphone, and THC. Rolon said that Applin ―did not take

probation seriously‖ and that she had ―a nonchalant kind of attitude.‖ According

to Rolon, the trial court amended Applin‘s community supervision in October

2008 to include the fourteen days‘ jail time because Applin missed one of her

outpatient support appointments.     When asked whether the jail time was in

relation to Applin having tested positive for THC, Rolon said that at the time of

the October condition, he was not aware that Applin had tested positive. Rolon

said, however, that he was aware of Applin testing positive for THC at the time

the trial court imposed the December jail-time condition.     Rolon testified that

Applin did not have good family support and that Applin‘s ―partner recovery,‖

Applin‘s mother, was a poor influence on Applin. The State questioned Rolon



                                    3
about    Applin‘s   having   tested   positive   for    codeine,   hydrocodone,   and

hydromorphone. Specifically, the State asked Rolon if Applin tested positive ―in

one dose or separate doses?‖ As Rolon began to answer, defense counsel

objected that Rolon was testifying to what someone at a laboratory had told him

and thus his statement would be hearsay.               Defense counsel qualified his

statement by stating that although the parties had stipulated that these drugs had

been detected in Applin‘s urine, he would not stipulate to the out-of-court

statement regarding ―one dose or separate doses.‖ The trial court sustained the

objection. Rolon said that Applin admitted to having taken her mom‘s cough

syrup, which contained the codeine, hydrocodone, and hydromorphone.

        Lori Applin, Applin‘s mother, testified that Applin took cough syrup when

she was sick that had been prescribed to either Lori or Lori‘s husband, that Lori‘s

husband administered the cough syrup to Applin, and that Applin never saw the

bottle. Lori said that no one was aware at the time Applin was sick that the

prescription    cough    medicine      contained       codeine,    hydrocodone,    or

hydromorphone. Applin‘s father also testified at the hearing and admitted he was

aware that Applin had tested positive for codeine, hydrocodone, hydromorphone,

and THC.       He said that he was also aware that Applin did not finish her

substance abuse treatment. He said that Applin‘s failures were due to her being

―probably a little careless‖ and that he would be willing to be Applin‘s partner in

recovery if the trial court continued Applin‘s community supervision.



                                      4
      Applin testified that she had smoked marijuana seven days after the trial

court placed her on community supervision. She said that she had missed one

substance abuse session because she had mistaken which day she was to

attend, but that she missed another because the counselor ―refused‖ her. She

said that she did not intentionally consume codeine, hydrocodone, or

hydromorphone. And Applin also testified that she had failed to pay her fees, but

that she did not have the money because she had lost her job while she was

serving the jail time in October.

      The trial court found that Applin violated each of the State‘s allegations

except for failure to pay the October fee and revoked Applin‘s community

supervision. The trial court sentenced Applin to the seven years‘ confinement in

each of the two cases originally pleaded to.          The sentences are to run

concurrently. This appeal followed.

                   III. REVOCATION OF COMMUNITY SUPERVISION

      In her first point, Applin contends that the trial court abused its discretion

by revoking her community supervision.       Applin argues that the evidence is

insufficient to prove that she violated terms of her community supervision. The

crux of Applin‘s argument is that the trial court had already subjected her to

confinement for the alleged violations of her community supervision; thus, citing

double jeopardy, Applin contends that the trial court erroneously used the ―same

violation as a basis for revoking her probation and sentencing her to the



                                      5
penitentiary‖ as it did when it imposed its additional conditions in October and

December 2008. Therefore, Applin argues, the trial court now seeks to ―punish

[Applin] yet again for the same violation[s].‖ We disagree.

      A.     Community Supervision Conditions

      ―Community supervision‖ is the placement of a defendant by a court under

a continuum of programs and sanctions, with conditions imposed by the court for

a specified period during which a sentence of imprisonment or confinement,

imprisonment and fine, or confinement and fine, is probated and the imposition of

sentence is suspended in whole or in part. See Rohret v. State, 41 S.W.3d 218,

219–20 n.4 (Tex. App.—Dallas 2001, no pet.). Under this paradigm, and like in

this case where the plea-bargain agreement called for community supervision

allowing for conditions to be set by the trial judge, the trial judge determines the

conditions of community supervision and may alter or modify the conditions at

any time. See Tex. Code Crim. Proc. art. 42.12, § 11(a) (Vernon 2004). The trial

judge may impose any reasonable condition that is designed to protect or restore

the community, protect or restore the victim, or punish, rehabilitate, or reform the

defendant.   Id.   An award of community supervision is a quasi-contractual

privilege, not a right. Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999).

And the terms or conditions of community supervision are terms of the

agreement entered into between the trial court and the defendant. Id. These




                                     6
terms are capable of being changed by the trial court in the course of the

community supervision time frame. Id. at 534–35.

      The conditions of community supervision may include a number of

requirements, including submitting a defendant in a felony case to a term of

confinement for no longer than 180 days in county jail. Tex. Code Crim. Proc.

art. 42.12, § 12(a); see also Grodis v. State, 921 S.W.2d 502, 505–06 (Tex.

App.—Fort Worth 1996, pet. ref‘d) (recognizing that a trial judge has the authority

to impose jail time as an additional condition of probation even in a plea-bargain

case). Thus, the trial court retains authority to impose confinement in jail as a

condition of community supervision ―at any time during the supervision period.‖

Johnson v. State, 286 S.W.3d 346, 351 (Tex. Crim. App. 2009). And unless

prohibited by law, the trial judge ―may do so for any reason and perhaps for no

reason.‖ Id. Even if community supervision is revoked, the trial judge is not

required to give a defendant credit for time spent in confinement as a condition of

community supervision; whether to do so is within the trial court‘s discretion.

Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a) (Vernon Supp. 2004–05); Ex parte

Walker, 150 S.W.3d 429, 431–32 (Tex. Crim. App. 2004).

      In this case, there are no specific fact findings as to why the trial court

imposed the jail-time conditions in October and December 2008.           But even

assuming that the infractions that led to these conditions of community

supervision serve in part as the same foundation that supports the State‘s



                                    7
petition for revocation, we conclude that there is no double jeopardy issue.

Indeed, under Texas law a trial court can impose jail-time conditions ―for any

reason and perhaps for no reason‖ at ―any time during the supervision period‖

and not credit that time to a sentence suspension that is eventually revoked;

thus, we hold that a trial court does not err by imposing conditions of jail time for

violations of community supervision and also finding true that these violations

occurred for revocation purposes. Johnson, 286 S.W.3d at 351; see U.S. v.

Whitney, 649 F.2d 296, 298 (5th Cir. 1981) (declining to extend double jeopardy

clause protections to parole and probation revocations proceedings); Ex parte

Peralta, 87 S.W.3d 642, 644–46 (Tex. App.—San Antonio 2002, no pet.)

(reasoning that probation revocation proceedings are not designed to punish a

criminal, but to determine whether probationer has violated conditions of parole;

thus, double jeopardy does not apply to such proceedings); Salinas v. State, 1

S.W.3d 700, 701–702 (Tex. App.—Amarillo, pet. ref'd) (noting that neither

probation nor parole revocation hearings constitute a stage of a criminal

prosecution for double jeopardy purposes). To do so would thwart the purpose

behind community supervision; namely, ―restore the community, protect or

restore the victim, or punish, rehabilitate, or reform the defendant‖ while at the

same time suspending the defendant‘s true sentence for the crime that they have

actually been convicted of. Tex. Code Crim. Proc. art. 42.12, § 11(a). Thus, the




                                     8
question we will next address is whether the trial court abused its discretion when

it revoked Applin‘s community supervision.

      B.       Sufficient Evidence to Support Revocation

      We review an order revoking community supervision under an abuse of

discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.

1984); Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet.

ref'd). In a revocation proceeding, the State must prove by a preponderance of

the evidence that the defendant violated the terms and conditions of community

supervision.    Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993);

Cherry, 215 S.W.3d at 919. The trial court is the sole judge of the credibility of

the witnesses and the weight to be given their testimony, and we review the

evidence in the light most favorable to the trial court‘s ruling.   Cardona, 665

S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel

Op.] 1981); Cherry, 215 S.W.3d at 919. If the State fails to meet its burden of

proof, which in this instance is by preponderance of the evidence and not beyond

a reasonable doubt, the trial court abuses its discretion in revoking the

community supervision. Cardona, 665 S.W.2d at 493–94. Our law is well settled

that a defendant‘s voluntary judicial confession to violating the terms of her

community supervision is, by itself, sufficient to support the decision to revoke.

See, e.g., Wade v. State, 83 S.W.3d 835, 839–40 (Tex. App.—Texarkana 2002,

no pet.) (defendant‘s confession to failing to pay fines and fees, without



                                    9
explanation of inability to pay, was sufficient to support trial court's decision to

revoke community supervision). Furthermore, the decision whether to continue

or revoke community supervision is within the trial court‘s discretion. Id.

      In this case, Applin‘s community supervision supervisor testified that Applin

had tested positive for codeine, hydrocodone, hydromorphone, and THC:             all

violations of Applin‘s community supervision conditions.       The supervisor also

testified that Applin failed to attend the classes described in the State‘s petitions

to revoke and that Applin had failed to pay multiple fees. Applin herself admitted

that she smoked marijuana and that she had taken prescription cough syrup.

She also admitted that at least one of the violations, missing her support group

meeting in October, was her ―fault.‖      Viewing the evidence in the light most

favorable to the trial court‘s ruling and recognizing that the State need only prove

that Applin violated her conditions by a preponderance of the evidence as to any

one condition imposed in the community supervision arrangement, we hold that

the trial court did not err by finding Applin had violated conditions of her

community supervision. Thus, we overrule Applin‘s first point.

                     IV. EFFECTIVE ASSISTANCE OF COUNSEL

      In her second issue, Applin contends that her trial counsel was ineffective

because he did not object to multiple statements that appear to be hearsay; he

stipulated to the contents of a drug test; and he did not ―make any meaningful




                                     10
argument [on her behalf].‖ We hold that the record does not support the claim

that Applin‘s representation at the revocation hearing was ineffective.

      We apply a two-pronged test to ineffective assistance of counsel claims.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);

Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State,

65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001). To establish ineffective assistance

of counsel, an appellant must show by a preponderance of the evidence that his

counsel‘s representation fell below the standard of prevailing professional norms

and that there is a reasonable probability that, but for counsel‘s deficiency, the

result of the trial would have been different. Strickland, 466 U.S. at 687, 104

S. Ct. at 2064; Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 62–63. There

is no requirement that an appellate court approach the two-pronged inquiry of

Strickland in any particular order or even address both components of the inquiry

if the defendant makes an insufficient showing on one component. Strickland,

466 U.S. at 697, 104 S. Ct. at 2069.

      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The issue is

whether counsel‘s assistance was reasonable under all the circumstances and

prevailing professional norms at the time of the alleged error. See Strickland,

466 U.S. at 688–89, 104 S. Ct. at 2065. Review of counsel‘s representation is



                                       11
highly deferential, and the reviewing court indulges a strong presumption that

counsel's conduct fell within a wide range of reasonable representation. Salinas,

163 S.W.3d at 740; Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a

position on direct appeal to fairly evaluate the merits of an ineffective assistance

claim. Thompson, 9 S.W.3d at 813–14. ―In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel‘s actions.‖ Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d

at 63). To overcome the presumption of reasonable professional assistance,

―any allegation of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness.‖ Id. (quoting

Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to

simply infer ineffective assistance based upon unclear portions of the record.

Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

      In this case the record is insufficient to establish that trial counsel failed to

conduct himself within the wide range of reasonable representation. It appears

to this court that counsel‘s strategy was to appeal to the trial court‘s discretion

and ask the court to assign to Applin a new partner in recovery—her father—and

to continue community supervision rather than revoke the suspension of her

sentences. Given the evidence that Applin had violated multiple conditions of her

community supervision, this court cannot say that counsel‘s tactic was not

reasonable under the circumstances. We hold that Applin has failed to overcome



                                      12
the presumption that trial counsel‘s actions were consistent with sound trial

strategy. See Thompson, 9 S.W.3d at 813–14. We overrule Applin‘s second

point.

                                 V. CONCLUSION

         Having overruled both of Applin‘s points, we affirm the trial court‘s

judgments.




                                            BILL MEIER
                                            JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DAUPHINOT, J. filed a dissenting opinion.

MCCOY, J. concurs without opinion.

PUBLISH

DELIVERED: April 14, 2011




                                    13
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00089-CR
                              NO. 02-09-00090-CR


SHEREE LEANNE APPLIN A/K/A                                            APPELLANT
SHEREE LEANNE APTLIN

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                      ----------

                           DISSENTING OPINION
                                      ----------

      I cannot join the majority opinion for several reasons. I respectfully dissent

from the majority‘s statements that

      even assuming that the infractions that led to these conditions of
      community supervision [periods of incarceration] serve in part as the
      same foundation that supports the State‘s petition for revocation, we
      conclude that there is no double jeopardy issue. Indeed, under
      Texas law a trial court can impose jail-time conditions ―for any
      reason and perhaps for no reason‖ at ―any time during the
      supervision period‖ and not credit that time to a sentence
      suspension that is eventually revoked; thus, we hold that a trial court
      does not err by imposing conditions of jail time for violations of
      community supervision and also finding true that these violations
      occurred for revocation purposes.1

      I do not understand what this means. Does it mean that it is permissible to

confine a probationer for no reason because she will not get credit against her

sentence anyway? When a person is placed on community supervision, that

person does not remove herself from constitutional protections to become a

person subject to the whims and caprices of the trial judge.2 In determining

whether a person previously placed on community supervision will suffer

incarceration through revocation, a trial court is bound by constitutional

guarantees of due process:

            The Due Process Clause of the Fourteenth Amendment
      imposes procedural and substantive limits on the revocation of the
      conditional liberty created by probation. Probationers have an
      obvious interest in retaining their conditional liberty. The State also
      has an interest in ensuring that revocation proceedings are based on
      accurate findings of fact and the informed exercise of discretion,
      which avoid the unnecessary interruption of a successful effort at
      rehabilitation and provide for the safety of the community. In
      Morrissey v. Brewer, the United States Supreme Court held that due
      process applies to parole revocations. Commenting on the condition
      of one on parole, the Court noted:

                   Though the State properly subjects him to many
            restrictions not applicable to other citizens, his condition
            is very different from that of confinement in a prison. He
            may have been on parole for a number of years and
            may be living a relatively normal life at the time he is
            faced with revocation. The parolee has relied on at
            least an implicit promise that parole will be revoked only

      1
      Majority op. at 7–8.
      2
      See Ex parte Dangelo, Nos. 02-09-00266-CR, 02-09-00268-CR, 2010 WL
5118650, at *3 (Tex. App.—Fort Worth Dec. 16, 2010, pet. filed) (op. on reh‘g).

                                         2
            if he fails to live up to the parole conditions. In many
            cases, the parolee faces lengthy incarceration if his
            parole is revoked.

            In Gagnon v. Scarpelli, the Supreme Court held that the
      procedures outlined in Morrissey for parole revocation should also
      apply to probation proceedings.

             To meet the requirements of due process, the final revocation
      of probation must be preceded by a hearing, where the probationer
      is entitled to written notice of the claimed violations of his probation,
      disclosure of the evidence against him, an opportunity to be heard in
      person and to present witnesses and documentary evidence, a
      neutral hearing body, and a written statement by the fact finder as to
      the evidence relied on and the reasons for revoking probation. As
      we said in Ex parte Hale, ―the Constitution of our country has been
      interpreted to protect persons who are released (on community
      supervision), from reincarceration without due process of law.‖

              Accordingly, due process requires that reincarceration occur
      only after the disclosure of evidence against the defendant. Within
      this right to disclosure of evidence afforded by due process, we can
      infer the requirement that revocation may not occur when it is based
      solely on perjured testimony. Because habeas review is appropriate
      for denials of fundamental or constitutional rights, the applicant‘s
      claim that his community supervision was revoked solely on perjured
      evidence, and therefore without due process of law, is cognizable
      under the habeas jurisdiction of this court.3

      The Due Process Clause of the Fourteenth Amendment provides that no

State may ―deprive any person of life, liberty, or property, without due process of

law.‖4 The touchstone of due process is fundamental fairness.5 Accordingly, no


      3
        Ex parte Carmona, 185 S.W.3d 492, 495–96 (Tex. Crim. App. 2006)
(citations omitted).
      4
       U.S. Const. amend. XIV.
      5
     Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S. Ct. 1756, 1763 (1973);
Webb v. State, 161 Tex. Crim. 442, 278 S.W.2d 158, 160 (1955).

                                         3
State may deprive any person of the conditional liberty created by community

supervision unless the State employs procedures that are fundamentally fair. 6 In

particular, where, as in Texas, the factfinder, if it finds a violation of the conditions

of community supervision, nevertheless has discretion to continue the community

supervision, the probationer ―is entitled [by due process] to an opportunity to

show not only that he did not violate the conditions [of his probation], but also

that there was a justifiable excuse for any violation or that revocation is not the

appropriate disposition.‖7

      It is well established that

             Texas law gives a trial court ―broad discretion‖ in creating
      community supervision conditions. Specifically, ―[t]he judge may
      impose any reasonable condition that is designed to protect or
      restore the community, protect or restore the victim, or punish,
      rehabilitate, or reform the defendant.‖ But the court‘s discretion is
      limited. If a trial court imposes an invalid condition, an appellate
      court may delete it from the trial court‘s judgment.

             A condition of probation is invalid if it has all three of the
      following characteristics:

             (1) it has no relationship to the crime;

             (2) it relates to conduct that is not in itself criminal; and

             (3) it forbids or requires conduct that is not reasonably related
      to the future criminality of the defendant or does not serve the
      statutory ends of probation.

            A community supervision ―condition is not necessarily invalid
      simply because it affects [the defendant‘s] ability to exercise

      6
       Black v. Romano, 471 U.S. 606, 610, 105 S. Ct. 2254, 2257 (1985).
      7
       Id. at 612, 105 S. Ct. at 2258.

                                           4
      constitutionally protected rights.‖ A condition that is ―reasonably
      related to the purposes of probation‖ is permissible. ―Reasonably
      related‖ hinges on three factors: ―(1) the purposes sought to be
      served by probation; (2) the extent to which constitutional rights
      enjoyed by law-abiding citizens should be accorded to probationers;
      and (3) the legitimate needs of law enforcement.‖8

      As this court has explained, ―[T]he trial court‘s broad authority to create

community supervision terms does not extend to imposing terms that violate a

defendant‘s constitutional rights as balanced with the goals of the defendant‘s

probation.‖9   Surely liberty is a fundamental constitutionally protected right.

When a trial court amends a defendant‘s conditions of community supervision,

the trial court must act within constitutional boundaries. When a trial court orders

incarceration as a condition of community supervision, the record must show that

the condition is reasonably based on the conduct of the defendant and the aims

of community supervision and that the defendant‘s constitutional rights of notice,

rebuttal and explanation, objection, and representation by counsel were not

abridged.

      When a trial court imposes conditions of community supervision, whether

as original conditions or pursuant to amendment, a defendant must be afforded

the opportunity to challenge them. If the defendant is not given an opportunity to




      8
       Briseño v. State, 293 S.W.3d 644, 647–48 (Tex. App.—San Antonio 2009,
no pet.) (citations omitted).
      9
       Dangelo, 2010 WL 5118650, at *3 (citations omitted).

                                         5
object when the condition is imposed, there is no forfeiture of the complaint, and

the defendant may raise that complaint for the first time on appeal.10

          A defendant is entitled to be represented by counsel at sentencing

because substantial rights of a defendant can be affected at sentencing.11 It

follows, then, that a defendant is entitled to be represented by counsel when

conditions of community supervision are amended to make them more onerous

because the defendant‘s substantial rights of liberty, payment of restitution, or

preservation of a complaint that may invalidate the amendment or affect the trial

court‘s ability to revoke community supervision are affected.12

          This court has previously addressed the issue of revocation of community

supervision on a ground already heard and ruled on by the trial court before the

revocation hearing. In Rains v. State, we held that it was a denial of due process

to hear an allegation of a violation of community supervision and continue the

defendant on community supervision but later revoke the community supervision

on the basis of the violation previously considered.13      We quoted Rogers v.

State,14 an opinion of the Texas Court of Criminal Appeals,


          10
           Rickels v. State, 108 S.W.3d 900, 902 (Tex. Crim. App. 2003).
          11
           Casey v. State, 924 S.W.2d 946, 949 (Tex. Crim. App. 1996).
          12
           See id.
          13
           Rains v. State, 678 S.W.2d 308, 310 (Tex. App.—Fort Worth 1984, pet.
ref‘d).
          14
           640 S.W.2d 248 (Tex. Crim. App. 1981).

                                          6
             The probationer who has been returned to probation
             after a hearing regardless of the procedural label,
             retains the valuable liberty of probation and the due
             process protection of the Fourteenth Amendment (of the
             United States Constitution) and (article I) Section 19 (of
             the Texas Constitution).

                    This protection includes the fundamental
             requirement that the probation, recently returned, not be
             taken away arbitrarily . . . [.] It would be the epitome of
             arbitrariness for a court first to conduct a hearing on
             alleged violations and exercise its discretion to return
             the probationer to probation (whether by a ‗continuance
             of the hearing‘ or by a ‗continuance of the probation‘),
             and then decide several months later to exercise its
             discretion in the opposite fashion by revoking the
             probation without any determination of a new violation.
             (Emphasis added.)15

The Rogers court had held

      that by his actions and oral instructions modifying the conditions of
      probation, the trial judge exercised his discretion and determined to
      continue appellant‘s probation on June 26, 1980; having done so, he
      was without authority to revoke appellant‘s probation on September
      26, 1980 in the absence of allegations and proof of a subsequent
      violation. Appellant was therefore denied his right to due process of
      law. The order revoking his probation is set aside and the cause is
      remanded.16

      Since article 42.12, section 21(b) of the code of criminal procedure was

clarified, it is undisputed that when a violation of a condition of community

supervision is alleged and heard by the trial court, there are only four things a

trial court can do. Article 42.12, section (21)(b) provides,



      15
        Rains, 678 S.W.2d at 310 (quoting Rogers, 640 S.W.2d at 252).
      16
        Rogers, 640 S.W.2d at 251.

                                          7
             At any time during the period of community supervision the
      judge may issue a warrant for violation of any of the conditions of the
      community supervision and cause the defendant to be arrested.
      Any supervision officer, police officer or other officer with power of
      arrest may arrest such defendant with or without a warrant upon the
      order of the judge to be noted on the docket of the court. A
      defendant so arrested may be detained in the county jail or other
      appropriate place of confinement until he can be taken before the
      judge. Such officer shall forthwith report such arrest and detention
      to such judge. If the defendant has not been released on bail, on
      motion by the defendant the judge shall cause the defendant to be
      brought before the judge for a hearing within 20 days of filing of said
      motion, and after a hearing without a jury, may either continue,
      extend, modify, or revoke the community supervision.17

      Once the trial court has either continued, extended, modified, or revoked

the community supervision, the trial court is precluded from further action

regarding that allegation.      The trial court may not subsequently revoke

community supervision based on the allegation that previously resulted in the trial

court‘s continuing, extending, or modifying community supervision.

      In the case now before this court, although we do not know why the trial

court imposed the jail-time conditions in October and December 2008, the

majority bases its holding on the trial court‘s discretion to amend the conditions of

probation to impose jail time at any time during the supervision period ―for any

reason and perhaps for no reason.‖18 And, according to the majority, it is of no

import that Appellant was revoked for the very reasons for which she was

incarcerated in October and December because she is not entitled to credit for

      17
      Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b) (Vernon Supp. 2010)
(emphasis added).
      18
        Majority op. at 8.

                                         8
the time that she was incarcerated as a condition of community supervision.

Apparently it is also of no import that Appellant‘s community supervision was

revoked while she was in jail for the December incarceration condition. What

new violation did she commit while she was in jail? Apparently, that also is of no

import because under the majority‘s holding, despite contrary and controlling

precedent, the trial court can act as arbitrarily and capriciously as the trial court

chooses.

      Respectfully, I suggest that the majority misunderstands the concept of

due process. A defendant is entitled to due process whenever his or her liberty

is in jeopardy. Did the trial court afford Appellant a hearing before the October

and December incarcerations? Did she have notice of the accusations against

her? Was she given notice of the hearings so that she could be present at any

hearings? Did she have counsel?

      In arguing that the trial court abused its discretion in revoking her

community supervision, Appellant has couched her arguments as double

jeopardy violations and insufficiency claims. If the majority bases its decision on

the fact that Appellant calls her argument a double jeopardy as opposed to a due

process violation, the majority allows form to triumph over substance and,

additionally, sets the stage for a claim of ineffective assistance of counsel.

      Appellant also raises a sufficiency claim, and she argues here, as she did

below, that she was unable to pay the November community supervision fees



                                          9
because she had lost her job when she was incarcerated in October. The law is

well established in Texas that

             [a]t a community supervision revocation hearing, the inability
      to pay restitution is an affirmative defense for a defendant to prove.
      Once the issue of inability to pay is raised, the burden of proof shifts
      to the State to prove that appellant‘s failure to pay was intentional.19

      The State offered no evidence to challenge Appellant‘s testimony of

inability to pay. The State must prove its allegations, including ability to pay, by a

preponderance of the evidence.

      Additionally, the majority states that Appellant cannot claim credit for the

time that she was in jail as a condition of community supervision because the trial

court is not required to award the credit, relying on article 42.03, section (2)(a) of

the code of criminal procedure.20 But the trial court gave her credit for time

served: ―They do run concurrently, and you get credit on the sentences for the

time that you have already served in custody.‖ It is well established that in a

criminal case, unlike a civil case, the oral pronouncement of sentence controls

over the written judgment:

      A trial court‘s pronouncement of sentence is oral, while the
      judgment, including the sentence assessed, is merely the written
      declaration and embodiment of that oral pronouncement. When the




      19
       Greathouse v. State, 33 S.W.3d 455, 458 (Tex. App.—Houston [1st Dist.]
2000, pet. ref‘d) (citations omitted).
      20
        See Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a) (Vernon Supp. 2010).

                                         10
      oral pronouncement of sentence and the written judgment vary, the
      oral pronouncement controls.21

For all the reasons discussed above, I must respectfully dissent.




                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PUBLISH

DELIVERED: April 14, 2011




      21
        Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002) (citation
omitted).

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