Gilbert Tapia Jr. v. State ( 2014 )

NUMBER 13-12-00334-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
GILBERT TAPIA JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law No. 4
of Nueces County, Texas.
MEMORANDUM OPINION ON REHEARING
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion on Rehearing by Chief Justice Valdez
By two issues, appellant Gilbert Tapia Jr. appeals the revocation of his probation
and adjudication of guilt for aggravated assault, a second-degree felony. See TEX. PENAL
CODE ANN. § 22.01(a)(1) (West 2011). In his first issue, appellant argues that the trial
court violated his due process and due course of law rights by revoking his probation
based on a violation of conditions of probation that occurred before the trial court
continued his probation at a previous revocation hearing. In his second issue, appellant
contends that the trial court also violated his due process and due course of law rights
because it based its decision on a district policy instead of the particular evidence
presented in his case.
On January 9, 2014, we issued an opinion reversing the trial court’s revocation of
appellant’s probation. Tapia v. State, No. 13-12-00334-CR, 2014 WL 69563 (Tex. App.—
Corpus Christi Jan. 9, 2014, no. pet. h.). The Office of the State Prosecutor filed a motion
for rehearing, arguing: (1) the reasoning relied on by this Court from the Texas Supreme
Court case Rogers v. State is dicta and is of no precedential value; and (2) subsequent
case law, particularly Jenkins v. State, 641 S.W.2d 917, 919 (Tex. Crim. App. 1982), has
clarified that Rogers is inapplicable in the present circumstances because, here, the
revocation was based on a new hearing and newly alleged violations. We deny the
State’s motion for rehearing, withdraw our prior opinion and judgment, and substitute the
following opinion and accompanying judgment.
We sustain appellant’s first issue, reverse the trial court’s order revoking probation,
and remand for proceedings consistent with this opinion.
I. BACKGROUND
On April 18, 2002, appellant pleaded guilty to aggravated assault, a second-degree
felony. See id. The trial court deferred adjudication and placed appellant on community
supervision for a period of ten years. Appellant was sentenced to ten years’ imprisonment
on a separate offense. He was released from custody on the separate offense on
December 11, 2011, but remained on probation for the aggravated assault offense until
April 18, 2012.
2
A. First Revocation Proceeding
On March 6, 2012, the State filed a motion to revoke probation and adjudicate the
aggravated assault charge, alleging that appellant (1) failed to inform the probation officer
of his change of address when he was released from prison, (2) failed to report to his
probation officer, and (3) violated his curfew. On March 27, 2012, the trial court held a
hearing on the motion to revoke. At the hearing, the State orally informed the trial court
that it wished to file an amended motion to revoke and a motion for a continuance. The
State sought to amend its motion to revoke to add allegations that appellant violated his
probation by using drugs and alcohol and by associating with known felons. The trial
court then asked defense counsel what her position was on the State’s proposed motions.
Appellant’s trial counsel stated that she was opposed to a continuance and was ready to
go forward. The trial court stated:
Well, they informed me they are going to file a motion to amend, so it will
be filed in a motion to revoke, so you’ll have another hearing before that
date. If that’s what you want to do. I think it’s sort of a moot issue because
it will delay, but there is no problem with that if that is how you want to
proceed. I just want to make sure you understand that. Because if they file
the new motion he will still be in custody on the new motion and that is the
way you want to proceed with today, correct? It doesn’t bother me. I don’t
care. I understand not being prepared for the new stuff.
Appellant’s trial counsel replied, “We’ll go forward today.”
The trial court then ordered the parties to proceed on the pending motion to revoke.
Appellant did not enter a plea. During the hearing, the State elicited testimony from a
probation officer who stated that he was aware of other probation violations committed by
appellant and planned on filing another motion to revoke.1 The trial court found that
1 The trial court overruled defense counsel’s objection to the probation officer’s testimony regarding
other allegations of violations and his intent to file a new motion to revoke.
3
appellant violated the first two paragraphs of his probation agreement, as alleged in the
State’s original motion to revoke, but decided not to revoke. Instead, the trial court
continued appellant on probation and ordered him to serve the remaining twenty-one days
of his probation in jail as a modified condition of probation.
On March 23, 2012, four days prior to the hearing on the first motion to revoke, the
probation department completed a “Revocation Report” stating that it was a presentence
investigation report (PSI) “pursuant to Art. 42.12, Sec. 9. Code of Criminal Procedure.”
Page five of the report reflected that appellant last used alcohol and cocaine on March 8,
2012. On page six, under recommendations and remarks, the report stated, “The
defendant admitted to alcohol and cocaine use on March 8 2012. . . .”
B. Second Revocation Proceeding
On March 30, 2012, the State filed a new motion to revoke, raising allegations that
appellant violated his probation by using and possessing drugs and alcohol on March 8,
2012, prior to the first hearing on the original motion to revoke. At the second hearing,
appellant entered an open plea of “true” to the allegation. The court then proceeded to
the adjudication and punishment phase of the hearing.
During defense counsel’s closing argument, the following exchange occurred:
[Defense]: The Court considered all of that evidence back in
March when you ordered a jail sanction. This evidence
is nothing new, what he’s pled to is nothing new to—
[Trial Court]: It is new. . . . It is new. He would not plea to it at the
time. So we proceeded on the—on the subsequent
MTR.
[Defense]: Your honor, I believe that it was in the PSI at the last
hearing.
[Trial Court]: It’s not—it’s not a violation, though.
4
[Defense]: But it’s a considered [sic] in disposition and the Court
did have that evidence before, when it considered—
[Trial Court]: He may have believed it is so, but the court did not
consider that. Intentionally.
[Defense]: It was before the court at the time, Your Honor, and
we’re asking you to consider that and to allow his
probation to expire.
[Trial Court]: Okay. Well, it will not be granted . . . .
The trial court then revoked appellant’s probation, adjudicated him guilty of the
underlying offense of aggravated assault, and sentenced him to five years’ imprisonment.
This appeal followed.
II. WAIVER
The State argues that appellant has waived his due process and due course of law
arguments on appeal because appellant’s trial attorney failed to make a proper objection.
Appellant counters that his trial attorney’s objections at trial, on the basis that the
allegations were not new and that they had been considered at the prior revocation
hearing, were sufficient to preserve his due process and due course of law argument on
appeal.
To preserve a complaint for appellate review, a party, at trial, must present and
obtain a ruling on the complaint that states “the grounds for the ruling that [it] sought from
the trial court with sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context.” TEX. R. APP. P. 33.1(a); see
Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008); Wilson v. State, 71 S.W.3d
346, 349 (Tex. Crim. App. 2002). “The purpose of requiring a specific objection in the
trial court is twofold: (1) to inform the trial judge of the basis of the objection and give him
5
the opportunity to rule on it; (2) to give opposing counsel the opportunity to respond to
the complaint.” Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009). “A
party need not spout ‘magic words' or recite a specific statute to preserve an issue as
long as the basis of his complaint is evident to the trial court.” Bryant v. State, 391 S.W.3d
86, 92 (Tex. Crim. App. 2012).
During the second revocation hearing, defense counsel argued, “The Court
considered all of that evidence back in March when you ordered a jail sanction. This
evidence is nothing new, what he’s pled to is nothing new to—.” Defense counsel further
informed the trial court that these allegations were in the PSI for the first motion to revoke
and were considered in the disposition of the court at the first revocation hearing. Defense
counsel then asked the trial court “to consider that and to allow [appellant’s] probation to
expire.” The trial court responded, “Okay. Well, it will not be granted . . . .” In Matheson
v. State, the court of criminal appeals considered whether the following objection
preserved a very similar argument: “[W]e understand the court has ex parte entered an
order revoking probation. We will make an objection to that on the basis that the State
has shown no further transgressions by Mr. Matheson and we want to have an objection
to the court's ruling and a ruling on that objection at this time.” 719 S.W.2d 204, 205 (Tex.
Crim. App. 1986). The court held that that the objection “implicated due process of law
through the use of the term ‘ex parte’ and the statement that no further evidence had been
produced by the State” and therefore preserved the issue for appellate review. Id.
Here, appellant’s defense counsel provided more explanation of his due process
argument than the lawyer in Matheson. See id. Defense counsel’s argument that the
allegation was considered at the previous revocation hearing was sufficiently specific to
6
make the trial court aware of appellant’s complaint. See TEX. R. APP. P. 33.1(a); Bryant,
391 S.W.3d 8 at 92; Resendez, 306 S.W.3d at 312. Accordingly, we hold that appellant
preserved his first issue for appeal. We therefore will proceed to the merits of appellant’s
due process argument on his first issue.
Regarding appellant’s second issue, when the trial court stated it would follow the
State’s recommendation because it was “district policy,” defense counsel responded “the
policy of what, Your Honor? I didn’t understand what you just said.” Defense counsel did
not object to the trial court’s statement or to the trial court’s judgment based on the
statement and therefore did not preserve this issue for our review. See TEX. R. APP. P.
33.1(a). Accordingly, we overrule appellant’s second issue.
III. DUE PROCESS
Appellant argues that the trial court violated his due process rights by revoking his
probation on the basis of violations that occurred on March 8, 2012, nineteen days before
the court’s previous decision on March 27, 2012 to continue his probation. See U.S.
CONST. amends. V, XIV; TEX. CONST. art. I, § 19. The State, in its brief, relies solely on
waiver and does not address appellant’s due process arguments.
Under the constitutions of the United States and Texas, no person shall be
deprived of liberty without due process and due course of law. U.S. CONST. amends. V,
XIV; TEX. CONST. art. I, § 19. Because a probationer has relied on at least an implicit
promise that probation will be revoked only if he fails to live up to the conditions of
probation, the liberty of a probationer is protected by the due process and due course of
law provisions of the constitutions. Gagnon v. Scarpelli, 411 U.S. 778, 784 (1973);
7
Rogers v. State, 640 S.W.2d 248, 25 (Tex. Crim. App. 1981) (op. on State’s first motion
for reh’g).
For his argument that the trial court violated his due process rights, appellant relies
on Rogers v. State. 640 S.W.2d at 248. In Rogers, the defendant pleaded true to the
State’s six allegations at an initial motion to revoke hearing. Id. at 249. The trial court
ruled, “I am going to reinstate you on probation; that is, for the time being. I am going to
continue this hearing to a specific date . . . . And then I am going to determine whether
or not you are serious about this thing.” Id. Subsequently, as promised, the court held
another hearing, which it deemed a “continuation” of the previous hearing. Id. At the
hearing, the State made no new allegations, and the trial court refused to allow any new
evidence to be presented. Id. The trial court revoked the defendant’s probation on the
basis of the same allegations that the defendant pleaded true to at the previous revocation
hearing. Id.
On appeal, the court of criminal appeals held that the defendant’s due process
rights had been violated.2 Id. at 251. The Court reasoned that after continuing appellant’s
2 On the State’s second motion for rehearing, the Rogers Court decided to affirm the trial court’s
decision to revoke probation because appellant did not object to the revocation hearing on due process
grounds and therefore did not preserve argument on appeal. Rogers v. State, 640 S.W.2d 248, 265 (Tex.
Crim. App. 1981) (op. on State’s second motion for reh’g). In our view, the Rogers Court’s opinion on
second motion for rehearing does not render the original opinion and the opinion on first rehearing dicta.
See BLACK'S LAW DICTIONARY 409 (5th ed. 1979) (defining dictum as an observation or remark made
concerning some rule, principle, or application of law suggested in a particular case, which observation or
remark is not necessary to the determination of the case). While the court issued a new opinion on second
rehearing, it never withdrew its previous opinion and opinion on rehearing. Moreover, even if the decision
on rehearing was dicta, we find that the reasoning is, at least, persuasive judicial dictum. See Edwards v.
Kaye, 9 S.W.3d 310, 314 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (“Judicial dictum, a statement
by the supreme court made very deliberately after mature consideration and for future guidance in the
conduct of litigation, is ‘at least persuasive and should be followed unless found to be erroneous.’) (citing
Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex. 1964)). This is supported by the fact that
the court explicitly reaffirmed this reasoning at the outset of its opinion on the State’s second motion for
rehearing, and because multiple courts of appeals have quoted its exact language. See Rogers, 640
S.W.2d at 265; see also, e.g. Matheson v. State, 694 S.W.2d 661, 662 (Tex. App.—Fort Worth 1985)
(quoting the specific language at issue from Rogers) aff'd as reformed, 719 S.W.2d 204 (Tex. Crim. App.
8
probation at the first hearing, the trial court could not revoke appellant’s probation at the
second hearing “in the absence of allegations and proof of a subsequent violation.” Id. at
251. It further explained that in order to revoke probation after it had been continued at
a prior hearing, “there must be a determination that [the defendant] breached the
conditions after he was returned to probation (or that there is newly discovered evidence
of a previous violation which was not known at the time of the hearing).”3 Id. at 252 (op.
1986); Kopeski v. State, No. 09-10-00232-CR, 2011 WL 3505272, at *4 (Tex. App.—Beaumont Aug. 10,
2011, no pet.) (mem. op., not designated for publication) (same).
3 We note that the Rogers holding was not limited or overruled by the Texas Court of Criminal
Appeals in Jenkins v. State, decided just months after Rogers. See Jenkins v. State, 641 S.W.2d 917, 919
(Tex. Crim. App. 1982). In Jenkins, the trial court conducted a hearing on an initial motion to revoke
probation, which alleged that the defendant had failed to report to his probation officer. Id. at 917. A
notation on the docket sheet indicated that the court passed on ruling on the motion “to consider [the
defendant’s] subsequent conduct.” Id. at 917–18. Later, the State filed a second motion to revoke, alleging
that the defendant failed to report to his probation officer during the time period before and after the first
hearing, and that, at the time the second motion was filed, he was delinquent on his probation supervisory
fee. Id. at 918. At a second revocation hearing, the docket sheet reflected that the State presented
evidence of the violations and the trial court revoked the defendant’s probation; however, the appellate
record did not contain a transcript of the hearing. Id.
On appeal, the defendant argued that because the transcript from the second hearing was absent
from the appellate record, the trial court must have improperly revoked probation either (1) based on the
first revocation hearing after it had continued him on probation to observe his subsequent conduct, or (2)
based on the second motion to revoke without hearing evidence. Id. The Texas Court of Criminal Appeals
explained that it disagreed with both arguments raised by appellant because “the revocation of probation
was based on the [second motion to revoke], and [(according to the docket sheet)] on evidence heard at
the second revocation hearing on May 13, 1981, and not on first revocation hearing. Rogers v. State,
supra, is not applicable under the facts of the instant case.” Id. Because there was no record of the hearing,
the court of criminal appeals declined to render judgment in the case and remanded it to the Dallas Court
of Appeals to obtain a copy of the transcript before making a final determination as to whether the
defendant’s due process rights had been violated. Id at 919.
In Jenkins, while the second motion to revoke alleged some violations that occurred prior to the
court’s initial decision to continue the defendant on probation, it also alleged violations that were committed
after the first hearing, specifically appellant’s failure to report to probation after the first hearing and his
delinquency on his supervisory fees at the time the second motion was filed. Id. at 917. Contrary to the
defendant’s argument, the court of criminal appeals held that the trial court based its decision on evidence
heard at the second hearing. Id. at 919. On appeal, the defendant did not raise the issue that, at the
second hearing, the State relied on violations that were committed before the trial continued probation at
the first hearing. And the Jenkins Court neither concluded that the trial court can rely on a previous violation
if it was not considered at the hearing where probation was continued, nor limited the applicability of Rogers.
Further, in Jenkins, all of the violations alleged in the second motion that were committed before
the first hearing were listed in the first motion and were before the court at the first hearing when it decided
to continue appellant on probation; in other words, there were no previous violations that were newly
9
on State’s first motion for reh’g). The Rogers Court reasoned that “[i]t 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.” Id.
In McQueen v. State, we addressed a slightly different situation in an appeal
premised on the Rogers holding. McQueen v. State, No. 13-11-00475-CR, 2012 WL
2860767, at *4 (Tex. App.—Corpus Christi July 12, 2012, no pet.) (mem. op., not
designated for publication). In McQueen, the State filed an initial motion to revoke
alleging that McQueen had used drugs and alcohol and had committed the offense of
deadly conduct, for which criminal charges were pending. Id at *1. McQueen pleaded
true to the drug and alcohol use allegations, and the trial court extended the term of his
probation based on those allegations. Id. Subsequently, in a separate trial, McQueen
was convicted for the deadly conduct offense. Id. The State then filed a new motion to
revoke based on the deadly conduct conviction; defense counsel did not object to the
alleged. Id. at 917. Therefore, if we were to construe Jenkins as holding that the trial court could consider
these previous violations, it would not only overrule the holding that the State must rely on violations
committed after probation was continued, but it would also conflict directly with the Rogers Court’s
reasoning that violations must not be considered twice. See id. The Jenkins Court did not purport to entirely
eradicate this reasoning from Rogers.
Moreover, in the only opinion citing Jenkins as authority, the Amarillo Court of Appeals cited the
case in support of its finding that, “The appellate record reflects, however, that here the revocation of
probation was based only on violations that occurred subsequent to the May 2002 modification order.”
Payton v. State, No. 07-03-0395-CR, 2004 WL 1840030, at *1 n.1 (Tex. App.—Amarillo Aug. 16, 2004, no
pet.) (mem. op., not designated for publication) (citing Jenkins, 641 S.W.2d at 918). The Amarillo court
clearly interpreted Jenkins as reaffirming the due process requirement that the trial court must find the
probationer committed an offense after his probation was continued. See id. We agree with this
interpretation. Accordingly, Jenkins does not affect our analysis of this case.
10
revocation of probation based on a violation that had been alleged at the prior hearing;
and the trial court revoked McQueen’s probation. Id. We held that McQueen’s trial
counsel did not render ineffective assistance by failing to object, basing our decision on
the reasoning that “[t]hese are all violations that McQueen had not pleaded true to in the
previous hearing, thus Rogers is inapposite because the trial court did not rely on these
violations to make the modification.” Id. at *4.
We find the present circumstances distinguishable from McQueen. In McQueen,
while the State was clearly aware of the deadly conduct charge prior to its initial motion
to revoke, McQueen was not convicted on the charge until after the initial motion to
revoke. Id. The trial court in McQueen had a clear reason to wait to make a finding on
those allegations at the first hearing until the pending criminal charges were adjudicated;
when McQueen was found guilty of the deadly conduct charge, the State obtained new,
vital information regarding the offense. See id. The McQueen case therefore concerned
newly discovered evidence of a previous violation that was not known at the time of the
first hearing, and the violation changed from an alleged offense to a criminal conviction.
Therefore, the exception set out in Rogers applied. See id.; see also Rogers, 640 S.W.2d
at 252. Under those specific circumstances, where no finding was made on the allegation
at the first hearing and there was a subsequent adjudication of the offense, we determined
that McQueen’s trial counsel did not render ineffective assistance by failing to object.
McQueen, 2012 WL 2860767, at *4. Our holding in McQueen did not abrogate or limit
the Rogers due process rule requiring that the State allege a subsequent violation in a
new motion to revoke unless new evidence is discovered of a previous violation. See
Rogers, 640 S.W.2d at 252. In the present case, unlike McQueen, at the first hearing,
11
there were no pending charges, and at the second hearing, the State did not rely on a
subsequent finding on an alleged offense or any other newly discovered evidence.
McQueen, 2012 WL 2860767, at *4.
However, we also acknowledge that in finding a due process violation, the Rogers
court did not address the same set of facts presented here. See id. at 249. In Rogers,
the trial court revoked probation at the second hearing for the same allegations the
defendant pleaded true to at the first hearing, see id., whereas here, the drug use
allegation was never formally included in the original motion to revoke because the trial
court denied the State’s request to amend it at the first hearing. Regardless, we find that
the trial court violated appellant’s due process rights because it revoked probation for a
violation that occurred before appellant was continued on probation in the absence of any
newly discovered evidence of that violation, as is specifically proscribed by Rogers.4 See
id. at 252.
4 While much of the reasoning in Rogers expresses the concern that the violations alleged in the
second motion to revoke had already been alleged in the first motion for revoke, the Rogers Court’s holding
specifically requires a showing that a defendant “breached the conditions after he was returned to probation
. . . .” 640 S.W.2d at 250 (Tex. Crim. App. 1981) (op. on State’s first motion for reh’g). This language is
not susceptible to an interpretation that due process allows the State to allege a violation that was
committed before the decision to continue probation if it is newly alleged; in fact, such an interpretation
would be contrary to the express language and plain meaning of the holding. See id.
Moreover, the recognition that due process requires that the defendant “breached the conditions
after he was returned to probation” within the opinion on rehearing is not dicta as it was the reason given
for the conclusion in that opinion and therefore essential to the resolution of that opinion. This is supported
by the Rogers Court’s opinion on second rehearing which restated this specific language, and by the
opinions of multiple courts of appeals which cite Rogers for this precise rule of law. See id. at 263 (op. on
State’s second motion for reh’g); see also, e.g., Matheson, 694 S.W.2d at 662 (quoting the specific
language at issue from Rogers); Kopeski, 2011 WL 3505272, at *4 (same). In addition, while some
subsequent cases have applied Rogers to circumstances where the trial court heard no evidence at all at
the second hearing or where the State alleged the same violations that were considered at the first hearing,
no case has limited, or in any way purported to limit, Rogers to those circumstances. See Wright v. State,
640 S.W.2d 265, 270 (Tex. Crim. App. 1982); Hise v. State, 640 S.W.2d 271, 272 (Tex. Crim. App. 1982).
12
When the trial court denied its motion to amend and motion for continuance, the
State had the option of moving to dismiss the motion to revoke.5 The State then could
have filed one motion alleging the violations listed in the initial motion along with the
allegations sought to be included in the amendment. Had the State followed this
procedure, appellant’s due process rights would not have been violated.6 The State,
however, chose to move forward with the adjudication of the original motion, which was
based on the allegations that appellant failed to report to his probation officer and violated
curfew. It did so despite the fact that it knew of appellant’s alleged drug use and made
the trial court aware of this conduct through its request to amend the motion to revoke,
the PSI that stated that appellant had admitted to drug and alcohol use,7 and the probation
officer’s testimony that he planned on filing a new motion to revoke based on violations
that occurred prior to the hearing.8 Due process, however, required the State to allege
5 We recognize that the State may have relied on the trial court’s instruction to proceed on the initial
motion and file a new motion to revoke alleging the drug use allegations. However, as explained later in
this opinion, the trial court’s suggestion that it would allow this procedure did not excuse the violation of
appellant’s due process rights. Furthermore, we find that appellant’s trial counsel’s statement that appellant
wished to “go forward today” did not invite error as she only indicated that she was opposed to a
continuance and did not explicitly state, nor did she imply, that she consented to the filing of a new motion
to revoke based on the drug use allegation.
6 See Winkle v. State, 718 S.W.2d 306, 308 (Tex. App.—Dallas 1986, no pet.); see also Lockett v.
State, No. 11-10-00085-CR, 2012 WL 2989104, at *2 (Tex. App.—Eastland July 19, 2012, pet. ref'd) (mem.
op., not designated for publication) (“The trial court did not hold a hearing on the earlier motions but, instead,
dismissed the earlier motions at the State's request. Because the trial court did not take a plea, hear
evidence, or hold hearings on the earlier motions, the State was free to file a later motion to revoke that
included allegations from its earlier motions. Thus, the State did not waive its right to seek revocation based
on the earlier allegations.”); Guerra v. State, No. 13-04-328-CR, 2005 WL 2878071, at *3 (Tex. App.—
Corpus Christi Nov. 3, 2005, pet. ref'd) (mem. op., not designated for publication) (“Although the State filed
a motion to revoke appellant's probation . . . no plea was taken, no evidence was heard, and no hearing
was held. Because no formal hearings were held, the State was free to re-file the motion to revoke and to
allege some or all of the offenses it had alleged previously, with or without the allegation of a new violation.”).
7 See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(d) (West Supp. 2013) (allowing the judge to
consider a PSI before assessing punishment in a felony case); id. art. 42.12, § 9(a) (West Supp. 2013)
(requiring the judge in a felony case to direct a supervision officer to complete a PSI).
8 We note that the Rogers court’s proscription of revocations based on a prior allegation is not
conditioned on the allegation being presented to the trial court at the previous hearing. Rogers v. State.
13
the violations it was aware of in its original motion to revoke and of which it apprised the
trial court, and it could not allege the prior violations in a later motion to revoke in the
absence of newly discovered evidence. See Rogers, 640 S.W.2d at 252.
In response to appellant’s objections, at the second hearing, that these allegations
were “nothing new” and were considered by the trial court at the previous hearing, the
trial court explained, “He may have believed it is so, but the court did not consider that.
Intentionally.” The trial court’s express justification for its procedure was explicitly rejected
in Rogers. See id. at 254. The Rogers court disapproved of what it called a “hear-no-
evil” approach, determining that a trial court may not continue a defendant on probation
at a hearing, then hold a subsequent hearing, state it intentionally chose not to adjudicate
the violations at the first hearing, and revoke probation without evidence of a subsequent
violation. See id. The trial court therefore could not retain its ability to revoke based on
the prior allegations by willfully avoiding ruling on them at the first hearing. See id.
Under these circumstances, the procedure employed by the State and the trial
court did not adequately protect appellant’s due process rights, and was therefore not
permitted according to the Rogers court’s explicit reasoning that due process requires “a
determination that [the defendant] breached the conditions after he was returned to
probation (or that there is newly discovered evidence of a previous violation which was
not known at the time of the hearing).” Id.; see also, eg., Matheson v. State, 694 S.W.2d
661, 662 (Tex. App.—Fort Worth 1985) aff'd as reformed, 719 S.W.2d 204 (Tex. Crim.
640 S.W.2d 248, 252 (Tex. Crim. App. 1981). However, the fact that the trial court was made aware of the
conduct in this case highlights the potential harm to defendants’ due process rights in these cases and
underscores that this application of the rule in Rogers is more than a mere procedural barrier for the State.
Moreover, it establishes that the State was aware of the alleged violation prior to the motion to revoke and
that they were not “newly discovered” violations when the trial court ruled on them at the second hearing.
14
Ohio App. 1986) (quoting this specific language from Rogers); Kopeski v. State, No. 09-10-
00232-CR, 2011 WL 3505272, at *4 (Tex. App.—Beaumont Aug. 10, 2011, no pet.)
(same). Accordingly, regardless of whether the allegations were formally made, or in fact
made at all, at the prior hearing, the trial court violated appellant’s due process rights
when, after continuing probation at the first hearing, it revoked appellant’s probation at
the second hearing in the absence of allegations of a subsequent violation or newly
discovered evidence of a prior violation. See id.
Appellant’s first issue is sustained.
IV. CONCLUSION
We reverse the trial court’s order revoking probation and remand for proceedings
consistent with this opinion.
___________________
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
1st day of May, 2014.
15