                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00175-CR



         CASEY DALE HAMMACK, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 188th District Court
                Gregg County, Texas
              Trial Court No. 41,514-A




      Before Morriss, C.J., Moseley and Burgess, JJ.
              Opinion by Justice Burgess
                                               OPINION
        Following his plea of guilty to possession of a controlled substance,1 Casey Dale Hammack

was placed on deferred adjudication community supervision for a period of three years beginning

in August 2012. Hammack appeals the trial court’s subsequent revocation of his community

supervision2 and adjudication of guilt, as well as the resulting six-month sentence of imprisonment.

Hammack contends that the evidence is insufficient to prove the allegations in the State’s

application to proceed to adjudication and that the trial court erred when it revoked his deferred

adjudication community supervision.

        We find that the evidence was sufficient to support the conclusion that Hammack violated

a condition of his deferred adjudication community supervision. Consequently, we affirm the trial

court’s judgment.

I.      Background

        On August 6, 2012, the trial court placed Hammack on deferred adjudication community

supervision. Pursuant to the trial court’s order establishing conditions of community supervision,

Hammack was required to abstain from drugs and alcohol. In addition, the trial court ordered

Hammack to submit to a drug and alcohol evaluation and, based on the results, to follow the

recommendations he was given.




1
 Hammack waived the right to indictment and was charged by information with the offense of possession of a
controlled substance—methamphetamine—in an amount less than one gram.
2
 For purposes of this opinion, the terms “deferred adjudication community supervision” and “community supervision”
are used interchangeably.

                                                        2
           On February 19, 2014, the State filed an application to proceed to adjudication alleging

that Hammack violated the condition of his community supervision that he abstain from the use of

drugs and alcohol. On March 31, 2014, the State amended its application to allege that, in addition

to using marihuana on February 15, 2014, Hammack violated terms of his community supervision

by committing theft, using methamphetamine, and testing positive for marihuana.

           On April 7, 2014, the trial court continued Hammack on community supervision but

modified the terms by requiring that Hammack receive substance abuse treatment.               As an

alternative to adjudicating him guilty of the underlying offense and sentencing him to a term of

imprisonment, the trial court ordered Hammack to participate in a treatment program for no more

than twenty-four months in the DEAR Unit.3 Among other requirements, Hammack was ordered

to obey all rules and regulations of the DEAR Unit, successfully complete all recommended

treatment programs, submit to random alcohol and drug testing, and remain in the facility until

discharged by the trial court upon recommendation of the DEAR Unit staff and Hammack’s

community supervision officer (CSO).

           On July 1, 2014, the State filed an application to proceed to adjudication pointing to the

modified condition that Hammack submit to random alcohol and drug testing while in the DEAR

Unit. On July 28, 2014, the State amended its application to proceed to adjudication by alleging

that, in addition to failing to obey the DEAR Unit’s rules and regulations, Hammack failed to

successfully complete all recommended treatment programs and remain in the facility until



3
    The DEAR Unit is a recovery community corrections facility.

                                                          3
successfully discharged by the trial court upon recommendation of the DEAR Unit staff and

Hammack’s CSO. In particular, the State alleged that Hammack was discharged for violating the

DEAR Unit’s rule prohibiting “romantic/sexual relationships with peers or staff.” Following a

hearing on August 25, 2014, the trial court found that Hammack failed to comply with the modified

conditions of his community supervision when he was discharged from the DEAR Unit on or about

June 25, 2014, without successfully completing his treatment. After the hearing, the trial court

revoked Hammack’s community supervision, adjudicated him guilty of possession of a controlled

substance, and sentenced him to six months’ confinement in a state jail facility with credit for time

he previously served in jail.4

II.     Standard of Review

        We review a decision to adjudicate guilt in the same manner as we review a decision to

revoke community supervision—for abuse of discretion. TEX. CODE CRIM. PROC. ANN. art. 42.12,

§ 5(b) (West Supp. 2014); Little v. State, 376 S.W.3d 217, 219 (Tex. App.—Fort Worth 2012, pet.

ref’d) (citing Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006)); see In re T.R.S., 115

S.W.3d 318, 320 (Tex. App.—Texarkana 2003, no pet.). In a revocation hearing, the trial court is

the sole trier of the facts and determines the credibility of the witnesses and the weight given to

their testimony. T.R.S., 115 S.W.3d at 321. However,

        where the trial court, through a condition of the appellant’s community supervision
        [makes] the appellant’s compliance with the terms of his community supervision
        subject to the discretion of a third party, [then] to determine whether the trial court
        abused its discretion we must also examine the third party’s use of its discretion to

4
 The judgment adjudicating Hammack’s guilt reflected a plea of “true” to the allegations in the State’s motion to
adjudicate. On October 3, 2014, the trial court entered a nunc pro tunc judgment adjudicating guilt which contained
the correct plea of “not true.”
                                                        4
         ensure that it was used on a basis that was rational and connected to the purposes
         of community supervision.

Leonard v. State, 385 S.W.3d 570, 577 (Tex. Crim. App. 2012).

         Here, the State alleged that Hammack failed to successfully complete all recommended

treatment programs and remain in the DEAR Unit until successfully discharged by the trial court.

Determining whether Hammack successfully completed the treatment program was left to the

discretion of the DEAR Unit staff. Accordingly, the State had to prove (1) that Hammack was

discharged by the DEAR Unit before successfully completing his treatment programs and (2) that

the basis for his discharge was “rational and connected to the purposes of community supervision.”

See id. We review the trial court’s determination that the State met its burden for an abuse of

discretion. Id.5 A trial court’s decision to revoke community supervision and to proceed to

adjudication is examined in the light most favorable to the trial court’s judgment. Id.

III.     The Trial Court Did Not Abuse its Discretion When it Revoked Hammack’s
         Deferred Adjudication Community Supervision and Adjudicated His Guilt

         A.       Hammack’s Argument

         Using the generally understood definition of a romantic or sexual relationship, Hammack

argues that the State failed to prove that he engaged in a romantic/sexual relationship in violation



5
 Although the Leonard opinion states that “we must also examine the third party’s use of its discretion,” the Leonard
court was not performing a de novo review of the trial court’s decision to revoke based on the third party’s use of
discretion. Rather, the court was resolving the larger question of whether any third party’s decision could properly be
based on a failed polygraph examination alone. Resolution of that larger question necessarily resolved the case before
it, but by doing so, the court was not instituting a new standard of review in revocation cases. See Leonard, 385
S.W.3d at 577 (“If the polygraph results were inadmissible, then the record would not contain a basis for [the third
party’s] decision to discharge the appellant, and the trial court abused its discretion by adjudicating the appellant
guilty.”). Thus, as in any revocation proceeding, the trial court determines whether the basis for the third party’s
decision was rational and connected to the purposes of community supervision, and the appellate court reviews the
trial court’s determination for an abuse of discretion.
                                                          5
of the DEAR Unit’s specific rule prohibiting such conduct.6 Hammack contends the evidence

presented at the hearing merely proved that he violated the DEAR Unit’s rules when he entered

into another peer’s room for a “spanking” on his birthday, and by engaging in a massage with

another peer. Because the State’s amended application to proceed to adjudication alleged that

Hammack violated the rule prohibiting “romantic/sexual relationships,” Hammack contends that

the State’s evidence is insufficient to prove the allegation against him and that, therefore, the trial

court erred when it revoked his community supervision and adjudicated his guilt.

         B.       The Evidence

         Whitwell, Hammack’s counselor for a brief period during his time at the facility, testified

that the DEAR Unit is a cognitive program premised on the principle that changing the way a client

thinks and what he believes will result in a corresponding change in behavior. According to

Whitwell, Hammack understood the DEAR Unit’s basic premise, but he struggled to apply it. In

particular, he had difficulty focusing on treatment issues.

         Whitwell testified that Hammack was unsuccessfully discharged from the Dear Unit

because he did not comply with the unit’s rules. According to Whitwell, Hammack violated the

rule forbidding clients from “put[ting] their hands on” other clients and the rule forbidding entry

into another client’s room when he engaged in a massage with another peer in that peer’s room.

Hammack admitted to Whitwell that he did, in fact, give another client a massage and that he had



6
 For instance, after one of the DEAR Unit’s substance abuse counselors, Mike Whitwell, testified that Hammack
violated one of the facility’s cardinal rules by engaging in “a massage, if you will, with a peer, in the peer’s room,”
Hammack objected, “Judge, we’ll object to that because, by any stretch of the imagination, a massage is not a
romantic/sexual relationship. And if this is all that it is about, being the only evidence they have, we state it’s
insufficient and it’s a matter that should not be discussed.”
                                                          6
been in the other client’s room on several occasions. Hammack also acknowledged that on one

occasion, he entered another client’s room and was later “spanked” by his peers in that room.

When asked whether Hammack consented to the “spanking,” Whitwell testified that Hammack

smiled while discussing the incident and indicated the spanking was “apparently ok.” Hammack

admitted to Whitwell that on two occasions, he sat on a peer’s bed, which is also a violation of the

DEAR Unit’s rules. Although Hammack admitted to these events, he denied having a sexual or

romantic relationship with anybody at the unit.

         Whitwell testified that he did not personally observe Hammack engage in any of the

violative behavior and that he did not know whether Hammack touched any specific part of his

peer’s anatomy when he gave him the massage. Whitwell disagreed with Hammack’s assertion

that a sexual relationship required “discharging bodily fluids from the lower parts” of the anatomy.

Whitwell explained that the prohibition on romantic or sexual relationships within the DEAR Unit

included any relationship that was counter-productive to the purpose of the facility. The DEAR

Unit construes the term “romantic relationship” as something that can be “roughly construed as

simply an affectionate remark” from one peer to another. According to Whitwell, the rule is

necessary to prevent “a group of individuals who are not willing to comply with the rules and not

willing to hold others accountable for their failure to comply with the rules” from compromising

the facility’s effectiveness.7 In response to Hammack’s actions, the treatment team decided that




7
 Whitwell explained, “[I]t’s termed a negative contract. If I observed someone doing something improper and I don’t
report it, I establish a relationship with that individual. So should I offend at some later date, I can bring that into
account and tell them, ‘hey, I did not front you out, you don’t front me out.’”

                                                           7
Hammack had compromised his ability to actively engage in and focus on his treatment, and the

team determined that discharging him was the appropriate action.

       C.      Analysis

       Although he couches his argument in terms of legal sufficiency, Hammack essentially

contends that there was a variance between the allegation in the amended application to proceed

to adjudication and the evidence the State offered at the hearing. Before revoking his deferred

adjudication community supervision and proceeding to adjudication, due process required, at a

minimum, that Hammack receive written notice that fully informed him which terms of his

community supervision the State was alleging he breached and the conduct allegedly constituting

the breach. See Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana 2003, pet. ref’d);

Moore v. State, 11 S.W.3d 495, 499 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing

Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. [Panel Op.] 1980)). Moreover, the trial

court’s authority to revoke community supervision is limited by the allegations of which the

accused had due notice, i.e., those contained in the written motion to revoke. Moore, 11 S.W.3d

at 499. Nevertheless, the notice requirements in the revocation context are not nearly as stringent

as those required for an indictment. Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977).

All that is required is that the motion to revoke fully and clearly set forth the bases on which the

State seeks revocation so that the accused and his counsel have notice. See Leyva v. State, 552

S.W.2d 158, 162 (Tex. Crim. App. 1977).

       A “variance” occurs when there is a discrepancy between the allegations in the charging

instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001).

                                                 8
In Texas, variance claims have routinely been treated as sufficiency of the evidence issues rather

than as notice-related claims. Id. Regardless of how variances are treated, a variance is fatal only

if it operated to the defendant’s surprise or prejudiced him. Id. at 257; Human v. State, 749 S.W.2d

832, 837 (Tex. Crim. App. 1988). When reviewing a variance, we must determine whether the

charging instrument, as written, informed the defendant of the charge against him or sufficiently

allowed the defendant to prepare an adequate defense at trial and whether the prosecution under

the deficiently drafted instrument would subject the defendant to the risk of being prosecuted later

for the same crime. See, e.g., Traylor v. State, 561 S.W.2d 492, 494 (Tex. Crim. App. [Panel Op.]

1978). The fatal variance doctrine is applicable to revocations of community supervision. Moore,

11 S.W.3d at 499–500 (citing Taylor v. State, 592 S.W.2d 614, 615 (Tex. Crim. App. [Panel Op.]

1980)).

          In the State’s amended application to proceed to adjudication, it is clear that, in exchange

for the trial court deferring Hammack’s guilt and placing him on deferred adjudication community

supervision, Hammack agreed to comply with modified condition (16), which stated, “While in

the DEAR Unit, [Hammack] shall participate in all programs, obey all rules and regulations, follow

and successfully complete all recommended treatment programs and remain in the facility until

discharged by the Court upon recommendation of the DEAR Unit staff and his supervision

officer.” The State’s amended application alleged that Hammack violated “modified condition

(16) in that he was unsuccessfully discharged from the DEAR Unit on or about the 25th of June,

2014[,] for violating Cardinal Rule #2: no romantic/sexual relationships with peers or staff.”



                                                   9
       In Pierce, we found that the State’s allegation that the defendant violated the conditions of

her community supervision by committing a criminal offense was satisfied by proof that the

defendant fraudulently “completed” a check by entering her name as payee even though the State

alleged she “made” the check by fraudulently signing her employer’s name to it. Pierce, 113

S.W.3d at 434–35. We found no surprise or prejudice to the defendant in Pierce because “the

variance [there went] only to how the revoking offense was committed.” Id. at 441. We cited

language from Chacon, where the Texas Court of Criminal Appeals stated,

       While the allegation was preceded by “Failure to avoid injurious or vicious habits:
       to-wit:” the appellant did not in the trial court nor now claim he was misled as to
       what he was called upon to defend against. The court did not base its finding upon
       a violation of a probationary condition separate and distinct from the one alleged in
       the motion to revoke probation.

Chacon, 558 S.W.2d at 876.

       Likewise, there was no surprise or prejudice to Hammack here. He was discharged for

violating the DEAR Unit’s rules prohibiting physical contact between peers, and the only variance

is whether that touching also violated the rule against engaging in romantic or sexual relationships

with peers or staff or whether it violated the facility’s rule prohibiting clients from putting their

hands on other clients and entering other clients’ rooms. Either way, Hammack violated the rules

prohibiting physical contact between peers. Moreover, Hammack neither alleged to the trial court

that he was surprised by the State’s proof, nor does he allege such here. Neither does he deny that

the prohibited peer-to-peer contact occurred. Rather, Hammack simply asserts that the State

alleged a violation of the prohibition of romantic relationships and only proved a “massage” and a

“spanking.”

                                                 10
       For the reasons set forth in Pierce, we find that there is no fatal variance

here. Consequently, we find that the evidence is sufficient to show that the DEAR Unit’s staff did

not abuse its discretion in discharging Hammack for violating its rules against physical contact

between the unit’s clients. Therefore, we also find that the trial court did not abuse its discretion

in revoking Hammack’s community supervision and adjudicating him guilty based on the DEAR

Unit’s decision to discharge Hammack from the program.

IV.    Conclusion

       We affirm the trial court’s judgment.



                                               Ralph K. Burgess
                                               Justice

Date Submitted:        February 27, 2015
Date Decided:          April 24, 2015

Publish




                                                 11
