Timothy Dansby v. State ( 1999 )

Timothy Dansby v. State

    IN THE

TENTH COURT OF APPEALS

No. 10-98-299-CR

     TIMOTHY DANSBY,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 77th District Court

Limestone County, Texas

Trial Court # 7512-A

O P I N I O N

      A man was placed in a substance abuse program as a condition of his placement on community supervision. He did not follow the rules and regulations of the program and was discharged without completing it. His community supervision was revoked and he was sentenced to seven (7) years in prison. He complains that the trial court abused its discretion in revoking his community supervision. We affirm the trial court’s judgment.

FACTUAL BACKGROUND

      In 1990, Timothy Dansby entered a plea of guilty and was convicted of the felony offense of burglary of a habitation. Pursuant to a plea bargain, the trial court sentenced Dansby to ten years in prison, but placed him on community supervision for ten years. His supervision was modified three times between 1990 and 1997. In June of 1997, he was placed in a substance abuse felony punishment facility (SAFPF). The State filed a motion to revoke Dansby’s community supervision on June 2, 1998, alleging that Dansby had failed to successfully complete the SAFPF program as directed by the trial court. After a hearing, the trial court revoked Dansby’s community supervision and sentenced him to seven (7) years in prison.

      Dansby brings one issue on appeal. He contends that the trial court erred in revoking his community supervision. His primary complaint under this issue is that he was not ordered to “successfully” complete the SAFPF program as alleged in the State’s motion to revoke. He also complains that he was not allowed to complete the program because of the State’s interference in filing the motion to revoke. Dansby cites no authority in support of his argument as is required by the Rules of Appellate Procedure. Tex. R. App. P. 38.1(h). Despite this shortcoming and in the interest of justice, we will review Dansby’s complaint.

STANDARD OF REVIEW

      A revocation proceeding is neither a criminal nor a civil trial, but rather an administrative hearing. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). Our review of an order revoking a defendant’s community supervision is limited to whether there was an abuse of the trial court’s discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Brumbalow v. State, 933 S.W.2d 298, 299 (Tex. App.—Waco 1996, pet. ref’d). In a revocation proceeding, the State must prove by a preponderance of the evidence that a defendant violated the terms of his community supervision. Cobb, 851 S.W.2d at 873; Brumbalow, 933 S.W.2d at 299. If the State fails to meet this burden, the trial court abuses its discretion in issuing an order revoking the community supervision. Cardona, 665 S.W.2d at 493.

SUCCESSFUL COMPLETION OF SAFPF

      Basically, Dansby wants us to require the State to prove with surgical precision what it alleges in its motion to revoke when it is worded differently than the condition of community supervision. While it is the better practice to allege the violation in the same words as the condition of community supervision, the law does not require such specificity.

      The last time Dansby’s community supervision was modified, the modified order provided in part:

1. The defendant shall remain in the substance abuse felony punishment facility established in Sec. 493.009, Government Code, and operated by the Community Justice Assistance Division of the Texas Department of Criminal Justice for no more than one (1) year beginning upon admittance. The defendant shall comply with all rules, regulations and treatment programs and shall remain in such facility until discharged by the Court.

The State, in its motion to revoke, alleged that Dansby had violated the terms of his community supervision in that he:

1. FAILED TO COMPLETE SUBSTANCE ABUSE FELONY PUNISHMENT FACILITY PROGRAM SUCCESSFULLY AS DIRECTED BY THE COURT.

      It is well-settled that allegations in a motion to revoke need not be made with the same particularity as an indictment. Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977). It is enough that the pleadings give a defendant fair notice of the allegations against him so that he may prepare a defense. Fowler v. State, 509 S.W.2d 871, 873 (Tex. Crim. App. 1974); Figgins v. State, 528 S.W.2d 261, 263 (Tex. Crim. App. 1975). There is no dispute that Dansby knew the specific provision of his community supervision for which the State alleged a violation. Thus, this portion of his argument is without merit.

THE EVIDENCE

      The evidence submitted at the revocation hearing showed that Dansby had behavioral problems and was consistently in violation of the rules and regulations of the facility. Dansby vacillated between “working the program”(participating in the program) and not “working” it. He denied his drug use and habit. He was dishonest and made frequent unsubstantiated medical claims to avoid required chores. As one staff member stated, Dansby had a “reoccurrence of abhorrent, inappropriate behavior.” Dansby was placed in the alternative sanctions program as an intervention before serious consideration of a behavioral discharge. He remained an extra week in the program because he refused to carry out required tasks and work assignments. The staff gave Dansby extraordinary opportunities to complete the program. But with each opportunity, Dansby managed to “come up short” and refuse to take responsibility for his non-compliance.

CONCLUSION

      As a result of his disruptive behavior and non-compliance with the facility’s rules and regulations, Dansby was discharged from the program before he completed it. There was no interference by the State as he alleges in his brief. His own conduct resulted in his removal from the program. Thus, he failed to complete the terms of the program in conformity with the modified terms of his community supervision. The trial court did not abuse its discretion in revoking Dansby’s community supervision. His single issue is overruled. The judgment is affirmed.

                                                             TOM GRAY

                                                             Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed November 24, 1999

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Conclusion

      Because Progressive met the three elements of Craddock requiring a new trial in a default judgment case, the trial court abused its discretion in denying Progressive’s motion for new trial. Thus, the judgment is reversed and the cause is remanded for proceedings consistent with this opinion.

                                                                         TOM GRAY

                                                                         Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Reversed and remanded

Opinion delivered and filed December 5, 2001

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