                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-13-00243-CR

CRAIG A. ARMSTRONG                                                APPELLANT

                                       V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                       MEMORANDUM OPINION1
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      In two points, Appellant Craig A. Armstrong appeals the revocation of his

deferred adjudication community supervision. We affirm.

      In February 2013, in exchange for five years’ deferred adjudication

community supervision and a $500 fine, Armstrong pleaded guilty to assault

causing bodily injury-family violence with a prior assault-family violence

conviction. Around two months later, the State filed a petition to proceed to

adjudication, alleging that Armstrong had violated the community supervision
      1
      See Tex. R. App. P. 47.4.
condition prohibiting commission of a new offense by intentionally or knowingly

causing bodily injury to D.W., a member of his family or household, by tackling

her to the ground or by pushing her to the ground with his hand.

      Although the State filed the petition on April 19, 2013, the date alleged for

the new offense was on or about April 9, 2012. After the trial court read the

allegation, Armstrong did not object to the incorrect date, said that he understood

the allegation, and pleaded “not true” to it. D.W. testified that she and Armstrong

had been living together when, on April 9, 2013, Armstrong put his hands on her

and his arms around her as she tried to flee from him. D.W. said that she did not

feel like she had been assaulted, had not felt any pain, and did not tell the police

that Armstrong had tackled her. The trial court admitted State’s Exhibits 2 and 3,

photographs of Armstrong on April 9, 2013, and State’s Exhibits 4 through 12,

photographs of D.W. on April 9, 2013, into evidence.2         The trial court also

admitted State’s Exhibit 13, the emergency protective order that D.W. signed on

April 9, 2013. The order contains Armstrong’s acknowledgment of receipt, which

he signed on April 9, 2013.




      2
        A witness to the encounter testified that on April 9, 2013, she saw
Armstrong tackle D.W., and a Fort Worth police officer testified that she
investigated the incident that day, took the photographs contained in State’s
Exhibits 4 through 12, and saw the redness on D.W.’s arms, scratches on her
wrists and hands, and a scuff mark on her left knee. Another officer stated that
D.W. told her that when Armstrong made her fall to the ground, “she did have
pain in her hands and knees and her arms from that.”

                                         2
       After both parties closed, Armstrong argued that the trial court should deny

the petition because the State had alleged April 9, 2012, which was before he

had been placed on community supervision, and the testimony at the hearing

reflected that the new offense had occurred on April 9, 2013. The trial court

overruled the objection and found the State’s allegation true as to a lesser-

included offense of recklessly causing bodily injury to D.W., entered judgment

adjudicating Armstrong guilty of the original offense, and sentenced Armstrong to

six years’ confinement.

       In his first point, Armstrong argues that the trial court erred by proceeding

to adjudication “because of a critical variance” between the date in the State’s

petition and the testimony at the hearing.       In his second point, Armstrong

contends that the original post-plea proceedings did not meet the mandatory

requirements of code of criminal procedure article 42.12, section 5(a).

       To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Landers v. State, 402 S.W.3d

252, 254 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex.

App.—Fort Worth 2013, pet. ref’d). A reviewing court should not address the

merits of an issue that has not been preserved for appeal. Wilson v. State, 311

S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g); Sample, 405 S.W.3d at

300.

                                         3
      Deficiencies in a motion to revoke must be raised at or before trial, and

failure to object at that time forfeits the sufficiency of the notice provided by the

motion on appeal. Labelle v. State, 692 S.W.2d 102, 105 & n.2 (Tex. Crim. App.

1985) (stating that a long line of cases hold that the allegations in a motion to

revoke do not require the same particularity as that required of an indictment or

information; rather, “the motion to revoke must simply give fair notice of the

violation involved in order to comport with minimum due process”); Hunt v. State,

5 S.W.3d 833, 835 (Tex. App.—Amarillo 1999, pet. ref’d) (holding complaints

about deficiencies in the motion to revoke were forfeited when appellant failed to

raise them at or before trial); see also Moores v. State, Nos. 05-10-01270-CR,

05-10-01271-CR, 2012 WL 556184, at *5 (Tex. App.—Dallas Feb. 22, 2012, no

pet.) (mem. op., not designated for publication) (stating that any error by the

State in failing to allege an “on or about” date in the motion to revoke was

harmless because the revocation hearing record reflected that appellant knew

what he was required to defend against and that his contacts with the

complainant that the State proved and relied upon to revoke his probation

occurred within the term of his probation); Pierce v. State, 113 S.W.3d 431, 439

(Tex. App.—Texarkana 2003, pet. ref’d) (stating that a variance is only material if

it operates to the defendant’s surprise or prejudices his rights).         Because

Armstrong did not raise his complaint about the date in the motion to revoke until

the hearing’s conclusion, he has failed to preserve this complaint for our review,

and we overrule his first point. See Tex. R. App. P. 33.1(a)(1).

                                         4
      In his second point, Armstrong concedes that he did not raise his

complaint about article 42.12, section 5(a)’s post-plea proceedings in the trial

court.3    Further, despite his argument that he was harmed when he did not

receive     the   warnings     after   entry   of   deferred   adjudication   community

supervision—even though he received the same warnings in his written plea

admonishments before pleading guilty in exchange for deferred adjudication

community supervision—he has not shown that he would not have pleaded guilty

if he had been admonished differently. See Tex. Code Crim. Proc. Ann. art.

42.12, § 5(a) (“The failure of a judge to inform a defendant of possible

consequences under Subsection (b) of this section is not a ground for reversal

unless the defendant shows that he was harmed by the failure of the judge to

provide the information.”); Brown v. State, 943 S.W.2d 35, 42 (Tex. Crim. App.

1997) (stating that when a defendant complains about the trial court’s failure to

give certain information that is statutorily but not constitutionally required, he

“should be required to show that he would not have entered his plea had he been

given the required information”). Therefore, we overrule his second point.

      3
          Article 42.12, section 5(a) states, in pertinent part,

      After placing the defendant on community supervision under this
      section, the judge shall inform the defendant orally or in writing of
      the possible consequences under Subsection (b) of this section of a
      violation of community supervision. If the information is provided
      orally, the judge must record and maintain the judge’s statement to
      the defendant.

Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (West 2006 & Supp. 2013).

                                               5
      Having overruled both of Armstrong’s points, we affirm the trial court’s

judgment.

                                                PER CURIAM

PANEL: MCCOY, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 3, 2014




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