Danny Ray Johnson v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-05-247 CR NO. 09-05-248 CR ____________________ DANNY RAY JOHNSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 163rd District Court Orange County, Texas Trial Cause Nos. B 960413-R and B 980149-R MEMORANDUM OPINION Danny Ray Johnson appeals the revocation of "shock probation" community supervision orders in two cases. Johnson's sole appellate issue contends the trial court abused its discretion by failing to dismiss the motions to revoke probation because "the probation department's use of stale and previously filed administrative violations and charges violated appellant's right to due process of law and created a process that was fundamentally unfair under both the United States and Texas Constitutions." We affirm. On January 19, 2000, Johnson pled guilty and the trial court imposed concurrent eight year sentences on indictments for arson (Cause No. B 960413-R) and theft (Cause No. B 980149-R). On April 28, 2000, the trial court suspended execution on the sentences and placed Johnson on community supervision for the remainder of his eight year sentences. See Tex. Code Crim. Proc. Ann. art. 42.12, § 8 (Vernon 2006). On March 21, 2005, the State filed a motion to revoke the community supervision orders, on allegations that Johnson: (1) committed a criminal offense - driving while intoxicated - on March 7, 2004; (2) failed to report on December 21, 2000, December 3, 2002, September 4, 2003, December 6, 2004, and February 23, 2005; (3) violated curfew on July 8, 2002; and (4) failed to provide proof to his probation officer that he attended Alcoholics Anonymous/Narcotics Anonymous meetings. Capias issued March 21, 2005. The trial court found Johnson committed the criminal offense and failed to report as required, but did not find the curfew violation or the failure to document attendance. After revoking community supervision, the trial court reduced the sentences to four years and ordered execution on the sentences. At the hearing on the motions to revoke, Johnson objected to hearing the motions because, according to the appellant, he had already been administratively sanctioned for the violations. During the hearing, one of Johnson's probation officers testified that he had requested a motion to revoke probation on January 10, 2003. The State did not file a motion to revoke at that time. The probation officer testified that Johnson reported his DWI arrest on March 11, 2004. The officer testified that he referred Johnson to the Bridge of Hope for substance abuse evaluation and requested that a motion to revoke his probation be filed. On April 22, 2004, the officer referred Johnson to the Tejas Treatment Center; he received the certificate of completion on August 26, 2004. Johnson's treatment at the Tejas Treatment Center did not occur pursuant to a court order. Soon thereafter, Johnson's probation officer was transferred to a different caseload. Because Johnson's next probation officer was on maternity leave, the probation supervisor finished Johnson's supervision and testified at the hearing. According to the probation supervisor, treatment at the Tejas Center was not a sanction. The motions to revoke filed by the State on March 21, 2005, are the only revocation motions that have been filed. Johnson cites United States v. Tyler as support for his claim that the proceedings against him were fundamentally unfair. United States v. Tyler, 605 F.2d 851 (5th Cir. 1979). Tyler is, as Johnson admits, factually distinguishable from Johnson's case. In Tyler, a second motion to revoke was filed after the trial court found the first motion to be unfounded. Id. at 852. The misdemeanor offenses alleged in the second motion had occurred and were known to the probation officer when the first motion was filed. Id. at 853. Johnson, on the other hand, was not brought before the court on sequential motions to revoke. The hearing that resulted in revocation was the only time the trial court considered any of the State's allegations. Although the probation officer referred Johnson for substance abuse evaluation, Johnson did not enter the alcohol abuse treatment program under a court order. Johnson argues that the State waived the violation by failing to file the motions to revoke with due diligence. The authority he cites concerns a nine year delay in executing a parole violation warrant. Greene v. Mich. Dep't of Corrs., 315 F.2d 546, 547 (6th Cir. 1963). The appellate court in Greene remanded for a hearing to allow the State to explain its efforts to execute on the warrant. Id. at 548. In Johnson's case, the State filed the motions and the trial court issued the revocation warrants well within the period of community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b), (e) (Vernon 2006). The warrants were served promptly. Johnson does not identify any prejudice resulting from the delay between a request for a motion and its filing. He completed a treatment program in the interim, but that would benefit rather than prejudice him at the revocation hearing. Johnson cites Furrh v. State for its holding that once a trial court exercised its authority at an earlier hearing by modifying the terms of probation instead of revoking probation, the trial court could not change the disposition at a subsequent hearing at which no further probation violations were shown. Furrh v. State, 582 S.W.2d 824, 827 (Tex. Crim. App. 1979) (opin. on reh'g). Furrh recognized that the trial court could have held the motion in abeyance, but having rendered a decision, the trial court could not alter its disposition. Id. Of course, in Johnson's cases the trial court conducted only one revocation hearing. Johnson contends we should apply the restrictions on the trial court in Furrh to the State here. We find no evidence in the record to suggest that either the prosecutor or the probation officer made a conscious decision to decline to file a motion to revoke community supervision. Furrh does not preclude the trial court's actions under the circumstances in this case. We hold that the trial court did not abuse its discretion by proceeding on the State's motions to revoke, notwithstanding the delay between the initial violation of the community supervision orders and the filing of the motions to revoke community supervision. We overrule the appellant's issue and affirm the judgments. AFFIRMED. ______________________________ STEVE McKEITHEN Chief Justice Submitted on December 21, 2006 Opinion Delivered January 31, 2007 Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ.