Zavier Hernandez Barocio v. The State of Texas--Appeal from 228th District Court of Harris County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-02-00185-CR

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XAVIER HERNANDEZ BAROCIO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th Judicial District Court

Harris County, Texas

Trial Court No. 866960

Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Ross

O P I N I O N

Xavier Hernandez Barocio pled guilty to possession of cocaine, with intent to deliver, in an amount weighing more than 200 grams, but less than 400 grams. The trial court sentenced him to ten years' imprisonment and a $2,500.00 fine. His sentence was suspended, and he was placed on community supervision for ten years. Approximately one year later, the State filed a motion to revoke community supervision, alleging Barocio did not abide by the following provisions of his community supervision:

1.Commit no offense against the laws of this or any other State or of the United States or any municipality of the State of Texas.

2.Abstain from the use of narcotics, controlled substances, marijuana and all alcoholic beverages.

6.Work faithfully at suitable employment and notify the Community Supervision Officer prior to changing employment. Present written verification of employment on each reporting date to your Community Supervision Officer.

11.Perform 20 hours of community service per month beginning September 30, 2001 until the maximum amount of hours allowed by law is completed or until discharged by the Court.

At the revocation hearing, Barocio pled that "some of [the allegations] are true and some of them ain't true." The court entered a plea of not true for Barocio. At the conclusion of the hearing, the trial court granted the motion to revoke, finding Barocio violated the conditions of his community supervision as follows:

Defendant committed offense of DWI, 6-16-02; Defendant used marihuana on 2-28-02; Defendant failed to present written verification of employment; Defendant failed to participate in community service; Defendant failed to maintain faithful and suitable employment.

The trial court sentenced Barocio to the maximum ten years' imprisonment, but reduced the fine to $1,000.00. Barocio appeals, contending that there was insufficient evidence to prove any of the specific allegations in the motion to revoke and that the trial court erred in admitting his community supervision file into evidence.

We review the trial court's decision regarding community supervision revocation for an abuse of discretion and examine the evidence in a light most favorable to the trial court's order. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). To revoke community supervision, the state must prove every element of at least one ground for revocation by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 42.12, 21 (Vernon Supp. 2004); Moore v. State, 11 S.W.3d 495, 498 (Tex. App. Houston [14th Dist.] 2000, no pet.). The trial court holds broad discretion over community supervision, its revocation, and its modification. See Tex. Code Crim. Proc. Ann. art. 42.12, 21. Considering the unique nature of the revocation hearing and the trial court's broad discretion in the proceedings, the general standards for reviewing factual sufficiency do not apply. See Cochran v. State, 78 S.W.3d 20, 27 (Tex. App. Tyler 2002, no pet.); Becker v. State, 33 S.W.3d 64, 66 (Tex. App. El Paso 2000, no pet.). If the greater weight of credible evidence creates a reasonable belief a defendant has violated a condition of community supervision, the trial court did not abuse its discretion and its order of revocation must be upheld. Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974).

Use of Marihuana

The State alleged Barocio violated his community supervision by using marihuana February 28, 2002. At the revocation hearing, Victor Nava, Barocio's supervision officer, testified Barocio was given a urinalysis test February 28, 2002, which came back "dirty" for marihuana. He also testified Barocio confirmed the results of the urinalysis test by admitting at a supervision meeting he had used marihuana. Barocio testified at the hearing and admitted he used marihuana during the month of February 2002, "about February 16th."

Barocio contends the evidence in support of the trial court's finding is insufficient because it does not establish he used marihuana specifically on February 28, 2002, as alleged in the motion to revoke and as found by the trial court. Barocio's contention is an issue of variance between the allegation in the motion to revoke and the evidence offered at the revocation hearing. See Gollihar v. State, 46 S.W.3d 243, 247 (Tex. Crim. App. 2001); Pierce v. State, 113 S.W.3d 431, 435 36 (Tex. App. Texarkana 2003, pet. ref'd);Moore, 11 S.W.3d at 498 99.

According to the minimum requirements of due process, a person on community supervision is entitled to a written motion to revoke that fully informs such person of the violation of a term of community supervision which he or she is alleged to have breached. Pierce, 113 S.W.3d at 436; Moore, 11 S.W.3d at 499, citing Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. [Panel Op.] 1980). Additionally, the authority of the trial court to revoke community supervision is limited by the allegations of which the accused had due notice, i.e., those contained in the written motion to revoke. Moore, 11 S.W.3d at 499. Yet, a motion to revoke community supervision is not required to meet the particularities of an indictment, information, or complaint, and is held to a less rigorous standard. See Champion v. State, 590 S.W.2d 495, 497 (Tex. Crim. App. [Panel Op.] 1979); Pierce, 113 S.W.3d at 436; Moore, 11 S.W.3d at 499. All that is required is that the motion to revoke fully and clearly set forth the bases on which the state seeks revocation so that the accused and his or her counsel have notice. See Leyva v. State, 552 S.W.2d 158, 162 (Tex. Crim. App. 1977).

A "variance" occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Gollihar, 46 S.W.3d at 246. In a typical variance situation, the state has proved the defendant guilty of a crime, but has proved its commission in a manner that varies from the allegations in the charging instrument. See id. In Texas, variance claims have routinely been treated as insufficiency of the evidence problems, rather than as notice-related claims. Id. at 247. Regardless of how variances are treated, a variance is material only if it operated to the defendant's surprise or prejudiced such defendant's rights. Id. at 257; Human v. State, 749 S.W.2d 832, 837 (Tex. Crim. App. 1988); Moore, 11 S.W.3d at 500. When reviewing such a variance, we must determine whether the charging instrument, as written, informed the defendant of the charge against him or her sufficiently to allow the defendant to prepare an adequate defense at trial and whether prosecution under the deficiently drafted instrument would subject the defendant to the risk of being prosecuted later for the same crime. // The fatal variance doctrine is applicable to revocations of community supervision. Moore, 11 S.W.3d at 499 00, citing Taylor v. State, 592 S.W.2d 614, 615 (Tex. Crim. App. [Panel Op.] 1980).

The variance in this case is that the evidence at the revocation hearing established Barocio had used marihuana in February 2002, not specifically on the day of February 28, 2002, as alleged. A motion to revoke is not required to meet the particularities of an indictment. A review of the allegations in the application for revocation and the proof at the hearing reveals that the variance was not material because it did not operate to Barocio's surprise or prejudice his rights. The motion to revoke set out the violation of community supervision Barocio had committed, i.e., the failure to abstain from the use of marihuana. The evidence at the revocation hearing established Barocio had violated the terms of his community supervision by using marihuana. Barocio did not claim in the trial court, nor does he claim before this Court, he was misled as to what he was called on to defend against. There was, therefore, no surprise as to the violation of community supervision Barocio allegedly committed. See Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977); Pierce, 113 S.W.3d at 441 42. The variance between the time alleged in the motion and the time proved at the hearing did not act to surprise Barocio, as the motion adequately informed him that the time he allegedly used marihuana was during the month of February 2002. The motion to revoke, as written, informed Barocio of the charge against him sufficiently to allow him to prepare an adequate defense at the revocation hearing. See Bradley v. State, 608 S.W.2d 652, 655 (Tex. Crim. App. 1980); Chacon, 558 S.W.2d at 876; Pierce, 113 S.W.3d at 441; Dittoe v. State, 935 S.W.2d 164, 165 (Tex. App. Eastland 1996, no pet.). Because the defects in the motion to revoke did not mislead or surprise Barocio, and therefore did not prejudice his defense, the variance between the allegations and proof was not fatal. Further, Barocio admitted using marihuana "about February 16th." The variance between that date and the date alleged in the motion, February 28, is not so great as to prejudice Barocio's defense. Barocio was given fair notice by the motion to revoke and was therefore afforded the real opportunity to prepare a defense without surprise. The evidence presented at the revocation hearing, namely Barocio's admission, was sufficient to prove by a preponderance of the evidence he failed to abstain from the use of marihuana, and thereby violated a condition of his community supervision, as alleged.

Failure to Complete Community Service Hours

The conditions of Barocio's community supervision required him to perform twenty hours of community service per month, beginning September 30, 2001. Barocio admitted at the revocation hearing he lacked the required community service hours. He testified he lacked around fifty-nine of the required hours of community service. No evidence was offered to show Barocio had performed the required hours of community service. We find the trial court did not abuse its discretion in finding that Barocio had not performed community service as required by the conditions of his community supervision.

Failure to Verify Employment

Barocio further testified that, at various times during his community supervision, he did not offer written verification of his employment. Barocio's community supervision conditions required him to present to his community supervision officer written verification of employment at each reporting date. Barocio contended at the revocation hearing he maintained employment at Leal Excavation during the entirety of his community supervision. He admitted, however, there were times when he did not provide written verification of employment to his community supervision officer. Nava testified Barocio had failed to provide written verification of employment in November 2001, and in January, February, March, May, and June 2002. No evidence was offered to the contrary. We find the trial court did not abuse its discretion in finding that Barocio had failed to provide written verification of employment in violation of his community supervision.

Other Alleged Violations

Proof by a preponderance of the evidence of any one of the alleged violations of community supervision is sufficient to sustain a revocation of that supervision. Moore, 11 S.W.3d at 498. We therefore find it unnecessary to discuss the other alleged violations that Barocio committed the offense of driving while intoxicated and failed to maintain suitable employment.

Admissibility of Community Supervision File

At the revocation hearing, the trial court admitted Barocio's entire community supervision file into evidence. Barocio contends this was improper. We again find it unnecessary to discuss Barocio's contentions in this regard, as we have not relied on any part of his community supervision file in our analysis. The other evidence, as discussed above, is overwhelming that Barocio violated at least three conditions of his community supervision. Independent of the community supervision file, Barocio admitted that he used marihuana, that he failed to perform the required community service, and that he failed to provide written verification of employment, all in violation of the terms and conditions of his community supervision. Any error in the admission of the community supervision file was, therefore, harmless.

Conclusion

We affirm the judgment.

Donald R. Ross Justice

Date Submitted: January 28, 2004

Date Decided: January 29, 2004

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