Gene Maurice Massey v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-02-00225-CR

GENE MAURICE MASSEY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 25464CR

MEMORANDUM OPINION

In this appeal from an order revoking his community supervision, Gene Massey raises two issues: (1) the allegations in the State s motion did not provide fair notice of the grounds upon which revocation was sought and (2) evidence at the hearing was insufficient to sustain the court s findings.

Less than a year after Massey pled guilty to possession of a controlled substance and was placed on community supervision, // the State filed a motion to revoke supervision. The grounds for revocation included failing to (1) report an arrest, (2) report to the supervision officer for seven months, (3) work for six months, (4) pay supervision fees, (5) pay court costs, restitution, and the fine, and (6) perform community service work. At a hearing on the motion, Massey pled true to the motion, and the court heard evidence and revoked supervision and sentenced him to ten years in prison and assessed the $2,000 fine.

NOTICE

Massey s complaint about the contents of the motion to revoke boils down to a complaint about his not being served with the motion. As the State points out, he pled true at the beginning of the hearing without calling the court s attention to any possible defect in the motion or the manner in which it was served or not served.

Due process requirements apply to revocation proceedings. Afonowicz v. State, 689 S.W.2d 252, 255 (Tex. App. Waco 1985, no pet.) (citing Caddell v. State, 605 S.W.2d 275 (Tex. Crim. App. 1980)). We find that the contents of the State s motion are adequate to provide fair notice of the violations asserted. See Marcum v. State, 983 S.W.2d 762, 767 (Tex. App. Houston [14th Dist.] 1998, pet. ref d). Although the clerk s record contains a notice of hearing that does not reflect that it was served on Massey, he was present at the hearing with his counsel and failed to bring his complaint to the attention of the trial judge in a timely manner. That failure deprives us of authority to consider it. Tex. R. App. P. 33.1(a). We overrule this issue.

SUFFICIENCY OF THE EVIDENCE

The other issue concerns the sufficiency of the evidence to support a finding that he violated the conditions of community supervision. The State points to the plea of true and the evidence in support of its allegations.

An unqualified plea of true, standing alone, will support revocation of community supervision. Jones v. State, 112 S.W.3d 266, 268 (Tex. App. Corpus Christi 2003, no pet.).

Alternatively, an order revoking community supervision is proper if supported by a preponderance of the evidence. See Maxey v. State, 49 S.W.3d 582, 584 (Tex. App. Waco 2001, pet. ref d). If the evidence supports revocation, the court may exercise its discretion to revoke or continue community supervision; we examine the record in the light most favorable to the trial judge's decision. See Eisen v. State, 40 S.W.3d 628, 631 (Tex. App. Waco 2001, pet. ref d) (citing Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)). A single violation will support a decision to revoke. See Pierce v. State, 67 S.W.3d 374, 380 (Tex. App. Waco 2001, pet. ref d).

The officer assigned to supervise Massey testified that he failed to report and pay fees as ordered and that the officer learned of an arrest only by reading about it in a newspaper. Massey testified about emotional problems that caused him not to report. He acknowledged being behind in the payment of fees because he could not find an acceptable job in the construction field. His mother and girlfriend also testified in his behalf.

Considering Massey s plea of true and the evidence viewed in the light most favorable to the trial judge s decision to revoke supervision, we find no abuse of discretion. Id.; Jones, 112 S.W.3d at 268; Maxey, 49 S.W.3d at 584; Eisen, 40 S.W.3d at 631. We overrule this issue.

WE AFFIRM

Having overruled Massey s issues, we affirm the order revoking community supervision.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurring)

Affirmed

Opinion delivered and filed June 30, 2004

Do not publish

[CR25]