COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

MI CHAEL

ROBERTS, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-09-00271- CR

Appea l from 109th District Court of Andre ws County , Texas (TC # 4820)

O P I N I O N Michae l Roberts appea ls from a judgme nt revoking community supervision. For the rea sons that follow, we a ffirm.
F ACTUAL SUMMA RY On May 1, 2007, Appellant was convicted of evading arr est or detention and his punishment

was assessed at imprisonm ent for two y ear s in the state jail. The trial court place d Appellant on community supervision for a period of two y ear s. The State subsequently filed a motion to revoke alleg ing Appellant had committed the offe nse of trespass on May 13, 2008. The trial court found

1
that Appellant had violated the terms and conditions of community supervision by committing the offe nse of tre spass and the c ourt sentenc ed Appe llant to serve 180 da y s in the state jail.
F ATAL VARIANC E
I n h i s s o l e i ssue on appea l, Appellant contends that the trial court abused its discretion beca use there is a fata l varia

nce betwee n the alleg ation in the motion to revoke and the proof offe red

T h e p e t i t i o n a l s o a l l e g e d t h a t A p p e l l a n t h a d n o t p e r f o r m e d c o m m u n i t y s e r v i c e h o u r s o r d e r e d b y t h e t r i a l c o u r t , 1 b u t t h e S t a t e a b a n d o n e d t h a t a l l e g a t i o n a t t h e h e a r i n g
.in support. The motion to revoke alleg ed that Ap p ell ant committed the offe nse of trespass on or

about May 13, 2008 in E ctor County , Texas. At the hear ing, the evidenc e showed that the offe nse
actua lly occur red on D ece mber 20, 2007 a nd Appellant wa s convicted on Ma y 13, 2008. Standard of Review
We revie w the trial court’s decision to revoke communit y s u p ervision for an abuse of discretion. Ricke ls v . State , 202 S.W .3d 759, 763 (Tex.Crim.App. 2006). The trial court does not abuse its discretion if the order r evoking community supervision is supported by a prepondera nce of the evidenc e; in other words, the g rea ter weig ht of the cre dible evidenc e would cre ate a rea sonable belief that the defe ndant has violated a condition of his probation. Ricke ls , 202 S.W .3d at 763-64.
I n conducting our revie w, we view the evidenc e in the light most favor able to the trial court’s ruling

. Cardona v. State , 665 S.W .2d 492 (Tex.Crim.App. 1984). W e al so defe r to the trial court’s resolution of disputed fac ts and to any rea sonable infere nces which can be draw n from those fac ts. Cantu v. State , 253 S.W .3d 273, 282 (Tex.C ri m
. App. 2008). I f a single g round for revoc ation is supported by a preponde ranc e of the evidenc e and is otherwise valid, then an abuse of discretion is

not shown

. S

a nchez v. State , 603 S.W .2d 869, 871 (Tex.Crim.App. 1980); Gordon v. State , 4
S.W .3d 32, 35 (Tex.App.--El Paso 1999, no pet.)

. A probationer i s entitled to a written motion to revoke informing h i m of t he viol ation of a

t er m of probation he is alleg ed to have brea ched. Garner v. State , 545 S.W .2d 178, 179 (Tex.Crim.App. 1977). The motion to revoke must clea rly set out the basis on which the State seeks

revoc ation so that a d ef

en d an t and his counsel have notice. Leyva v. State , 552 S.W .2d 158, 162 (T ex
. C ri m
. Ap p
. 1977). A motion to revoke is not require d to be as prec ise as an indictment o r information, but need only g ive fair notice to the probationer of the condition of probation alleg edly violated. Figgins v. State , 528 S.W .2d 261, 262-63 (Te x .Crim.App. 1975).A varia nce occur s when there is a discrepa ncy betwee n the alleg ation in the indictment and the proof prese nted at trial. Gollihar v. State , 46 S.W .3d 243, 246 (Tex.Crim.App. 2001). I n a varia nce situation, t h e S t at e h as proven the defe ndant g uilty of a crime, but has proven its commission in a manner that varie s from the alleg ations in the char g ing instrument. Id. Although

some courts trea t varia

nce claims as a notice-r elated claim, Texas state courts have routinely trea ted varia nce claims as insufficienc y of the evidenc e problems. Id. A varia nce betwee n the wording of

an indictme n t an d t h e evidenc e prese nted at trial is fata l only if it is materia l and prejudice s the defe ndant’s substantial rig hts. Id. at 257. The object of the fata l varia n ce d o ct ri ne is to avoid surprise, and for such varia nce to be materia l it must be such as to mislead the party to his prejudice

. Steve ns v. State , 891 S.W .2d 649, 650 (Tex.Crim.App. 1995). When revie wing such a varia nce, we examine (1 ) whether the i ndictment, as written, informed the defe ndant of the charg e aga inst him sufficie ntly to allow him to prepa re an adequate defe nse at trial, and (2) whether prosec ution under the defic iently draf

ted indictment w ould subje ct the defe ndant to the risk of being prosec uted later for the same crime. Gollihar, 46 S.W .3d at 248. Only a materia l varia nce will rende r the evidenc e insufficient. Id. The fata l varia nce doctrine has been held applicable to revoc ations of community supervision. See Taylor v. State , 592 S.W .2d 614, 615 (Tex.Crim.App. 1980). I n that context, we revie w the alleg ation in the motion t o re v o k e to deter mine whether it sufficie ntly informed the defe ndant of the basis for revoc ation to allow him to prepa re an adequ at e d ef

en s e. See Pierce v. State , 113 S.W .3d 431, 441-42 (Te x .App.--T exarkana 2003, pet. re f’d)

. There is nothing in the rec ord to indicate that the motion to revoke opera ted as a surprise to Appellant. To the contra ry , the rec ord ref

lects that Appellant understood the basis for the State’s

m o t i o n to revoke and he prese nted a defe nse to the alleg ation that he violated the terms an d conditions of community supervision by committing the offe nse of trespass. Consequently , we findthat the varia nce is immaterial, and there fore , it is not fata l to the trial court’s finding

. The trial court did not abuse its discretion by revoking Appellant’s commun i t y supervision. Acc ording ly , we

overr ule the sole issue pre sented on a ppeal a nd aff irm the trial cour

t’s judgme nt.

J une 8, 2011 ANN CRAWFORD McCL URE, J ustice
Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)