NO. 07-08-00226-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D APRIL 21, 2010

VICENTE OCHOA, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 222ND DISTRICT CO URT OF DEAF SMITH COUNTY; NO. CR-06J-146; HONORABLE ROLAND D. SAUL, JUDGE

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION
Appellant Vicente Ochoa appeals from the revocation of his community supervision and the resulting sentence of five y ears of imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Through three issues, appellant argues the trial court erred in not making a writt en statement regarding revocation of his community supervision and abused its discre tion by finding a breach of the terms of appellant = s community service; and contends the State = s motion to revoke inadequately informed appellant of the State = s allegations. We find no e rror and, as modified, affirm the trial court = s order to revoke.2 Background On January 24, 2007, appellant entered a plea of guilty to the offense of felony driving while intoxicated. 1 As part of his agreement with the State, appellant was placed on community supervision for a period of five years. Appellant = s supervision was subject to certain terms and conditions. On August 8, 2007, the Stat e filed its First Amended Motion to Revoke Probation, alleging: (1) on or about May 1, 2007, appellant committed the offense of Indecency with a Child in violat ion of his probated sent ence; (2) appellant failed to remain within the confines of Deaf Smith County, Texas, in violation of his prob ated sentence; and (3) appellant failed to perform his community serv ice hours, in violation of his probated sentence. The court heard the State = s motion on May 13, 2008. At the hearing, the State waived t he Indecency with a Child allegation 2 and proceeded on the remaining two a llegations. Appellant plead A not true @ to each of the State = s remaining allegations. The State presented the testim ony of appellant = scommunity supervision officer and a Deaf Smith County police officer. Appellant crossexamined each of the State = s witnesses and presented t he testimony of appellant = s wife during the punishment phase of the hearing.

1 See Tex. Penal Code Ann. ' 49.09 (Vernon 2007).

2 The record indicates the State waiv ed this allegation because there was a pending case on that off ense at the time of this hearing.3 Appellant = s community supervision officer testified that under the terms of appellant = s community supervision, he was required to: (1) work at least eight hours per week toward his required 160 hours of community service unt il the completion date of August 15, 2007; and (2) to remain within t he confines of Deaf Smith and Oldham Counties and not to leave without written permission of the court. The supervision officer testified appellant completed onl y seven hours of his community service requirement from the time he was placed on probation in Januar y 2007 and that he completed these hours at the Al coholics Anonymous building. The officer testified that he repeatedly explained t he requirements, assur ed himself of appellant = s understanding of the requirements, and attempted to plac e appellant in a commun ity service project that was convenient for him. The officer test ified that according to his records for the months of February, March, April, and May 2007, appell ant had not completed any community service hours and completed onl y seven in the month of June 2007. Appellant did not complete any hours in July or August 2007. Appellant = s community supervision officer al so testified appellant never requested that he be giv en a travel permit to go to El Pa so, Texas. The officer also indicated he spoke with appellant about that issue on August 2, 2007. A Deaf Smith County police officer identified appellant in the courtroom and testif ied that on or about July 25, 2007, he left Deaf Smith County and traveled to El Paso County to transport appellant back to Deaf Smith Co unty. On cross-examination, the officer indicated the4 actual date was July 30, 2007. Appellant was in custody in El Paso at the time the officer retrieved him.
The court heard this evidence, considered the arguments of counsel, and found the State = s allegations to be true. The c ourt then heard punishment evidence and sentenced appellant to five years of imprisonment. This appeal followed. Analysis

Failure to Provide Written Statemen t Concerning Grounds for Revocation In his first issue, appellant argues the tr ial court erred in failing to provide a written statement as to the evidence re lied on and the reasons for revoking community supervision, thereby violating appellant = s due process rights. We disagree. 3
Due process in the revocation context requi res: (1) a hearing; (2) written notice of the claimed violations; (3) disclosure of the evidence against the defendant; (4) an opportunity to be heard and to present witne sses and documentary evidence; (5) a neutral hearing body; and (6) A a written statement by the fact finder as to the evidence

3 We address issues one and three raised by appellant but we do not address issue two. In his second is sue, appellant complains of t he sufficiency of the evidence only with regard to the allegat ion concerning his failure to complete his community swevice. Even if we were to agree with appellant on hi s second point, proof of one violation is sufficient to re voke community supervision. See Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App. 1980) (panel op.); Trevino v. State, 218 S.W.3d 234, 240 (Tex.App.

B Houston [14 th Dist.] 2007, no pet.) citing Greer v. State, 999 S.W.2d 484, 486 (Tex.App.

B Houston [14 th Dist.] 1999, pet. ref = d). With regard to the State’s allegation concerning appellant’s failure to remain within the confines of Deaf Smith and Oldham Counties, appellant complains only of the lack of notice in the State’s motion.5 relied on and the reasons for revoking probation. @ Carmona v. State, 185 S.W.3d 492, 495 (Tex.Crim.App. 2006), citing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). When a def endant timely requests the entry of specific findings of fact on which revocation is based, the trial court errs in failing to enter such findings of fact. Whisenant v. State, 557 S.W.2d 102, 105 (Tex.Crim.App. 1977); Joseph v. State, 3 S.W.3d 627, 639 (Tex.App.

B Houston [14 th Dist.] 1999, no pet.). The failure to make the requested findings may require reve rsal if their omis sion impedes appellate review of the revocation. Joseph, 3 S.W.3d at 639, citing Ford v. State, 488 S.W.2d 793, 795 (Tex.Crim.App. 1972). However, the trial court is not required to issue separate findings if the j udgment or revocation order discloses the grounds for revocation found by the court. See Joseph, 3 S.W.3d at 640 (concluding that handwritten notations on the revocation order sufficed). Here, the record reflects appellant did not request the entry of s pecific findings of fact. The judgment listed the conditions vi olated by paragraph num ber and description of the condition. The record also reflects the trial court orally specified the particular conditions violated and their factual bases at the end of the revocation hearing, finding each of the two violations A true. @ The court = s written judgment recites, A [t]he Court, after hearing all of the evid ence for the State and the Defendant and arguments of counsel, was of the opinion and found that the Def endant violated the conditions of community supervision as stated above. @ Thus, the record shows appellant was afforded adequate notice of the grounds underlying the court = s revocation, and his ability to prosecute an6 appeal was not diminished by the absence of further findings. See Reasor v. State, 281 S.W.3d 129 (Tex.App.

B San Antonio 2008, no pet.) We overrule appellant = s first issue.

Notice in State = s First Amended Motion to Revoke In appellant = s last issue, he contends his due process rights were violated because the State = s amended motion stated that A [t]he defendant probationer [appellant] failed to remain within the confines of Deaf Smith County, Texas in violation of Article 13 of his probated sentence. He was in El Paso, Texas on or about July 25, 2007. @ However, testimony at trial indica ted appellant was trans ported on July 30, 2007. Appellant never claimed surprise or requested a continuance of the hearing based on the different dates. Nevertheless, appellant now argues t he difference in the dates constitutes a material variance that violated appellant = s due process rights because the motion did not provide not ice of the charges against appellant.

We find the State = s motion provided adequate notic e of the charges against appellant. Due process entit les probationers facing a revo cation proceeding to written notice of their a lleged violations. Ruedas v. State, 586 S.W.2d 520, 523 (Tex.Crim.App. 1979), citing Gagnon, 411 U.S. at 778; Weed v. State, 891 S.W.2d 22, 24 n.4 (Tex.App.

B Fort Worth 1995, no writ). An application to re voke need not meet the specificity requirements of an in dictment or information; it is sufficient that the State allege a violation of the law and gi ve the probationer fair notice. Pierce v. State, 113 S.W.3d 431, 436 (Tex.App.—Texarkana 2003), citing Chacon v. State, 558 S.W.2d 874, 876 (Tex.Crim.App. 1977). See also Poteet v. State, No. 07-06-0238-CR, 2008 WL7 2579675, *2 (Tex.App.

B Amarillo June 27, 2008, no pet.) (mem. op., not designated for publication).

It is well established that the State may allege t he commission of an offense A on or about @ a certain date, and this a llegation allows t he State to prove any date that is anterior to presentment and within t he statutory limitations period. See Garcia v. State, 981 S.W.2d 683, 685-86 (T ex.Crim.App. 1998); Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997); Ferrell v. State, 968 S.W.2d 471, 473 (Tex.App.

B Fort Worth 1998, pet. ref = d). An indictment that alleges an A on or about @ date puts a defendant on notice that he must be prepared to defend against the alleged act of criminal misconduct within the applicable statute of limitations. See Garcia, 981 S.W.2d at 686; Ferrell, 968 S.W.2d at 473; Kosick v. State, No. 02-06-056-CR, 2007 WL 2460351 (Tex.App.

B Fort Worth Aug. 31, 2007, no pe t.) (mem. op., not designated for publication). Given the less restrictive requ irements that apply in a revocation hearing, we find the same principle app lies to motions to revoke. See Pierce, 113 S.W.3d at 436. See also Mauney v. State, 107 S.W.3d 693, 695 (Tex.App. —Austin 2003, no pet.), citing Labelle v. State, 720 S.W.2d 101, 104 (Tex.Crim.App. 1986) (the Stat e is free to prove a violation occurred any time before t he filing of the motion to revoke and during the probation period so long as the State pl eads the violation occu rred “on or about” a specified date and that it occurred while the defendant was on probat ion). Therefore, the State = s allegation of A on or about July 25, 2007" encom passes the date of July 30, 2007, on which the police officer retrieved appellant from El Paso, Texas. We find nodue process violation as the motion provi ded adequate notice of the term appellant was alleged to have violated. We overrule appellant = s last issue. Reformation of Judgment
In our review of the record, it came to our attention that t he judgment nunc pro tunc includes a clerical e rror. The judgment indicates appellant plead “true” to the State’s allegations. The reporter’s record indicates appellant plead “not true” to the State’s allegations. This court has the power to modify the judgment of the cour t below to make the record speak the truth when we have the necessary information to do so. Tex. R. App. P. 43.2(b) ; Bigley v. State , 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993) ; Asberry v. State , 813 S.W.2d 526, 529-30 (Tex.A pp.--Dallas 1991, pet. ref'd) . "The authority of an appellate court to reform an incorrect judgment is not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court." Asberry , 813 S.W.2d at 529-30

. Because the record unambiguously indica tes appellant plead “not true” to the State’s allegations, we modify the judgment nunc pro tunc to correct the error. As modified, we affirm the judgment of the trial court.

James T. Campbell Justice Do not publish.

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