Kenderick Johnson v. State ( 2007 )

                                                NO. 12-05-00376-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KENDERICK JOHNSON,   §                      APPEAL FROM THE 217TH

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

            Kenderick D. Johnson appeals from the revocation of his community supervision.  In two issues, Appellant argues that the trial court erred when it denied his motion to quash the motion to revoke his community supervision and that there was legally insufficient evidence to prove that he violated the terms of his community supervision.  We affirm.

Background

            After a jury trial, Appellant was convicted of aggravated robbery.  The jury assessed punishment at five years of imprisonment but suspended that sentence and recommended that Appellant be placed on community supervision.  Eight months later, the State filed a motion to revoke Appellant’s community supervision.  Appellant pleaded “true” to the allegations, and the trial court sentenced him to ten years of community supervision with the first 180 days to be served at a boot camp.  The boot camp facility refused to accept Appellant.  It is unclear precisely what happened at this point, but Appellant was subsequently released from prison and returned to community supervision with the additional requirement that he cooperate with a prescribed drug treatment program.

            In August 2005, the State again filed to revoke Appellant’s community supervision alleging that he had committed the offenses of possession of drug paraphernalia and criminal trespass.  On the day of the hearing, Appellant filed a motion to quash the State’s motion to revoke.  The trial court denied the motion to quash, found that Appellant had committed criminal trespass, and imposed the suspended sentence.  This appeal followed.

Motion to Quash

            In his first issue, Appellant complains that the trial court should have granted his motion to quash because the motion to revoke his community supervision did not allege the date that Appellant possessed drug paraphernalia or committed criminal trespass.

Standard of Review and Applicable Law

            A person on community supervision is entitled to reasonable notice before the State seeks to revoke a previously suspended sentence.  See LaBelle v. State, 720 S.W.2d 101, 108 (Tex. Crim. App. 1986). But the allegations made in a motion to revoke need not be as precise as would be required in an indictment, and the State is not bound by the alleged date of occurrence so long as the violation occurred after the beginning date of community supervision and before the end of the supervision period.  See Chreene v. State, 691 S.W.2d 748, 750 (Tex. App.–Texarkana 1985, pet. ref’d) (citing Fowler v. State, 509 S.W.2d 871 (Tex. Crim. App. 1974)).  Generally, we review a trial court’s decision to deny a motion to quash for an abuse of discretion.  Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim. App. 1980).

Analysis

            The motion to revoke Appellant’s community supervision simply alleges that Appellant committed the “offenses of possession of drug paraphernalia and criminal trespass.”  There are spaces on the form for the date of the offense, but they are blank.  No reports or other statements are attached to the motion to further explain the alleged offenses. 

            Appellant complains that the State’s motion provided insufficient notice to allow him to prepare a defense because it did not allege a date of occurrence.  The State’s first response is that the motion to quash was untimely because it was filed the day of the revocation hearing.  The State cites Bailey v. State, 888 S.W.2d 600 (Tex. App.–Beaumont 1994, no pet.) and Cantu v. State, No. 13–94–00560–CR, 1997 Tex. App. LEXIS 3043 (Tex. App.–Corpus Christi 1997, no pet.) (not designated for publication) for the proposition that a motion to quash must be filed before the day of the hearing on a motion to revoke community supervision. 

            The Bailey decision does state that a motion to quash filed the day of a revocation hearing is untimely.  Bailey, 888 S.W.2d at 602.  But the motion to quash in that case was filed after the hearing began, and the law is clear that a motion to quash filed after the beginning of the hearing is untimely.  See Longoria v. State, 624 S.W.2d 582, 584 (Tex. Crim. App. 1981) (citing Tone v. State, 505 S.W.2d 300, 302 (Tex. Crim. App. 1973)). Cantu is not precedential, and it is in dicta that the court holds that a motion to quash a motion to revoke must be filed before the day of the hearing.  Cantu, 1997 Tex. App. LEXIS 3043, at *7–8.  By contrast, in Matte v. State, 572 S.W.2d 547, 548 n.2 (Tex. Crim. App. 1978), the court of criminal appeals approved a trial court’s decision to treat a motion to quash as having been filed before the beginning of the hearing.  As such, the court considered the motion to be timely filed.  Id.  Therefore, we decline to hold that the motion to quash was untimely.

            The date of a violation of the terms of community supervision is important and should be included in a motion to revoke. See, e.g., Graham v. State, 502 S.W.2d 809, 810–11 (Tex. Crim. App. 1973); Smith v. State, 932 S.W.2d 279, 282 (Tex. App.–Texarkana 1996, no pet.). In this case, the trial court should have granted the motion to quash because the State alleged only that Appellant had committed the offenses of possession of drug paraphernalia and trespass without making any further allegations as to when or where the offenses had been committed.  Standing alone, this charging instrument was insufficient to put Appellant on notice as to how he had violated the terms of his community supervision.

            However, our review does not end here because we must determine if Appellant was harmed by the lack of notice in the motion to revoke. See LaBelle, 720 S.W.2d at 107.  Whether harm exists is be determined from the facts of the case.  Id. at 107–08.  The failure to provide adequate notice only results in reversible error if, in the context of the case, the omission had an impact on the defendant’s ability to prepare a defense.  Id. (citing Adams v. State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986)).

            In LaBelle, the court held that the trial court should have granted a motion to quash the motion to revoke probation because the motion failed to specifically identify a government document the defendant was alleged to have removed and destroyed.  LaBelle, 720 S.W.2d at 106.  The court noted that the defendant knew which document he was alleged to have destroyed because he had discussed the matter with his probation officer.  Id. at 109.  Therefore, the court held that the defendant had not shown that his ability to prepare his defense was affected by the inadequate motion to revoke probation.  Id.

            Similarly, in the present case, it is clear from the record that Appellant knew to which incidents the motion to revoke referred and that his ability to prepare a defense was not impaired.  Specifically, Appellant had been arrested for the offenses approximately two weeks before the hearing, and he testified about the incidents in his own behalf.  From our review of his testimony, it is clear that Appellant was familiar with the accusations, and he succeeded in convincing the trial court that he was not responsible for the drug paraphernalia found near him.  Appellant has failed to show that he suffered any harm from the State’s failure to allege the date he violated the terms of his community supervision in its motion to revoke.  Therefore, we overrule Appellant’s first issue.

Sufficiency of the Evidence

            In his second issue, Appellant contends that the evidence is legally insufficient to prove that he violated the terms of his community supervision.  Specifically, he argues that he had no notice that he was not permitted to visit the apartment in which he was found.

Standard of Review

            The State must prove that a defendant violated the terms of his community supervision by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).  In order to satisfy its burden of proof, the State must prove that the greater weight of the credible evidence before the trial court creates a reasonable belief that a condition of community supervision has been violated as alleged in the motion to revoke.  See In the Interest of B.C.C., 187 S.W.3d 721, 724 (Tex. App.–Tyler 2006, no pet.).  We review a trial court’s decision to revoke a defendant’s community supervision in a light most favorable to the ruling and for an abuse of discretion. Arterberry v. State, 800 S.W.2d 580, 580 (Tex. App.–Tyler 1990, no pet.). Community supervision may be revoked if the trial court finds that one of the alleged grounds for revocation is proven.  Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980).

Analysis

            The State alleged that Appellant had committed the offenses of criminal trespass and possession of drug paraphernalia. The trial court found that Appellant had committed the offense of criminal trespass.  In relevant part, a person commits the offense of criminal trespass if he enters the property or building of another without the effective consent of the owner and he had notice that his entry was forbidden.  Tex. Pen. Code Ann. § 30.05(a)(1) (Vernon Supp. 2006). 

            Appellant admitted being on the property of the Lazy Oaks apartment complex.  Specifically, he was in a friend’s apartment when the police arrived and arrested him. An officer testified he had informed Appellant, on a previous occasion, that the Lazy Oaks management did not want him on the property and that he had served Appellant with a written trespass warning.  The written trespass warning was admitted into evidence.

            Appellant argues the trespass warning he received did not put him on notice that he could not enter the specific apartment in which he was found because Lazy Oaks is a large apartment complex and he was present with the renter’s permission.  Nevertheless, even if we assume Appellant could have entered the apartment without trespassing, the trial court could have reasonably concluded that Appellant was on notice not to enter any of the apartments on the Lazy Oaks property.  See Williams v. State, 138 S.W.3d 43, 45 (Tex. App.–Waco 2004, no pet.) (Rational juror could conclude that defendant had been excluded from the entire apartment complex.).  As he was found on the property after having been warned not to enter it, the trial court did not abuse its discretion when it found Appellant had committed criminal trespass.  We overrule Appellant’s second issue.

Disposition

            We affirm the judgment of the trial court. 

                                                                                                    SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered January 10, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)