Ricky Dan Allee v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-15-00246-CR
No. 07-15-00286-CR
________________________
RICKY DAN ALLEE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court
Randall County, Texas
Trial Court No. 17917A; Honorable Dan Schaap, Presiding
May 10, 2016
ORDER DENYING STATE’S MOTION FOR REHEARING
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
On April 13, 2016, this court handed down an opinion in this case reversing the
judgments of the trial court revoking Appellant’s deferred adjudication community
supervision. On April 26, 2016, the Randall County Criminal District Attorney’s Office
filed its motion for rehearing rearguing its position that the trial court did not abuse its
discretion in rendering its original decision. Remaining convinced the trial court abused
its discretion in revoking Appellant’s deferred adjudication, we deny the State’s motion
for rehearing with these additional comments.
In our original opinion, we noted that a trial court’s authority to revoke community
supervision is limited by the allegations of which the probationer has due notice—i.e.,
those contained in the written motion to revoke. Caddell v. State, 605 S.W.2d 275, 277
(Tex. Crim. App. 1980). The State contends we construed that requirement too
narrowly by failing to construe evidence of a single failure to report as a violation of the
condition that Appellant “participate and complete” a program requiring him “to report to
the supervision officer as directed by the Court or supervision officer, but at least twice
monthly . . . .” By its motion, the State contends Appellant violated this condition
because “[Appellant’s probation officer] directed the appellant to report to the probation
department on February 13, 2015,” and Appellant did not report on that date.
Not only was this allegation not contained in the written motion to revoke, it is
well established that a trial court cannot delegate its duty and responsibility for
determining the conditions of community supervision to the probation officer or anyone
else. Jones v. State, 571 S.W.2d 191, 193 (Tex. Crim. App. 1978); Salmons v. State,
571 S.W.2d 29, 30 (Tex. Crim. App. 1978); Smith v. State, 527 S.W.2d 896, 897 (Tex.
Crim. App. 1975); Parsons v. State, 513 S.W.2d 554 (Tex Crim. App. 1974); Brown v.
State, 508 S.W.2d 366 (Tex. Crim. App. 1974); DeLeon v. State, 466 S.W.2d 573 (Tex.
Crim. App. 1971); Cox v. State, 445 S.W.2d 200 (Tex. Crim. App. 1969); McDonald v.
State, 442 S.W.2d 386 (Tex. Crim. App. 1969).
In this case, the State takes the position that a single violation of an oral order of
a probation officer supersedes the clear and specific written order of the court that
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Appellant report twice monthly. The record reflects the order became effective in
February of 2015 and Appellant reported twice that month. The State filed its motion to
proceed twenty days later without even alleging the violation of this oral directive as a
violation of the conditions of community supervision. Under the circumstances of this
case, we remain convinced the trial court’s revocation of deferred adjudication was an
abuse of discretion. Accordingly, the State’s motion for rehearing is denied.
Patrick A. Pirtle
Justice
Do not publish.
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