Affirmed and Memorandum Opinion filed June 22, 2023

In The

Fourteenth Court of Appeals

NO. 14-21-00419-CR

DARIUS ALLEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1551047

MEMORANDUM OPINION

Appellant Darius Allen was sentenced to deferred adjudication for a period of 

four years for the offense of aggravated assault with a deadly weapon. The State 

subsequently moved to revoke appellant’s community supervision. Following a 

hearing, the trial court found one of the allegations in the State’s motion to be true, 

revoked appellant’s community supervision, adjudicated him guilty of the offense 

of aggravated assault with a deadly weapon, and sentenced him to two years’ 

imprisonment. Appellant appeals the revocation of his community supervision, 
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contending that (1) there was insufficient evidence that he violated the terms and 

conditions of his community supervision, (2) his due process rights were violated, 

and (3) he did not receive effective assistance of counsel. For the reasons set forth 

below, we affirm the judgment of the trial court.

Background

On June 4, 2019, the trial court sentenced appellant to deferred adjudication

for a period of four years for the offense of aggravated assault with a deadly weapon. 

In addition to a number of other standard conditions of community supervision, 

appellant was ordered to (1) report to the community supervisor officer as directed 

for the remainder of the supervision term unless so ordered differently by the Court, 

(2) pay a fine of $100 and court costs, (3) pay $50 to Crime Stoppers of Houston, 

(4) pay $10 per month to cover expenses of drug testing, and (5) pay a one-time fee 

of $100 to Harris County Community Supervision & Corrections Department.

On January 26, 2021, the State filed an amended motion to proceed on 

adjudication0F

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, alleging that appellant “failed to report [to the community supervision 

officer] as directed on May 4, 2020, and had not reported to his community 

supervision officer since.” Appellant pleaded “not true” to each of the State’s 

allegations. 

At the hearing revocation hearing, the State called Officer Dominque Brown 

as a witness. Officer Brown was employed by the Harris County Community 

Supervision & Corrections Department and was assigned as appellant’s community 

supervision officer. During the hearing, Officer Brown testified that she was initially 

supervising appellant in person, and appellant was scheduled to report twice a month 

1 The State filed its original motion to adjudicate on July 2, 2020. The original motion, 

however, is not part of the record. 
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during his supervision term. 

In March 2020, the Harris County Community Supervision & Corrections 

Department closed its offices in response to the COVID-19 pandemic. Thereafter, 

Officer Brown began supervising appellant virtually while the offices were closed. 

Appellant was scheduled to report virtually on May 4, 2020. On this date, 

appellant “contacted [her] 25 minutes after his appointment time.” Officer Brown 

explained that “a missed appointment is if the client doesn’t show up at all, no-call, 

no-show, or if the client shows up 15 minutes late without contacting the officer to 

let them know that they’re going to be running late.” She testified that appellant was 

rescheduled for May 8, 2020. Appellant, however, never accessed this scheduled 

meeting either.

Officer Brown testified that from the time she began supervising appellant in 

June 2019 through July 2020, she had to reschedule appellant eleven times, he failed 

to report at least eight times, and that she had attempted to contact appellant at least 

fifteen times. 

Following the hearing, the trial court found the allegations in paragraph 3 of 

the State’s motion to be true, adjudicated appellant guilty of the second-degree 

offense of aggravated assault, and sentenced him to two years’ imprisonment. This 

appeal followed.

Discussion

In three issues, appellant argues the trial court erred by finding each of the 

State’s allegations true in its motions for revocation of community supervision and 

adjudication of guilt and abused its discretion by revoking his community 

supervision.

In a proceeding to revoke community supervision, the State must prove, by a 
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preponderance of the evidence, that the defendant violated a term or condition of his 

community supervision. Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 

2006); Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The State 

satisfies its burden when the greater weight of the credible evidence before the trial 

court creates a reasonable belief that it is more probable than not that the defendant 

violated a condition of his community supervision as alleged in the State's motion. 

Cobbs, 851 S.W.2d at 873. In a revocation hearing, the trial judge is the sole trier of 

fact and determines the credibility of the witnesses and the weight to be given to 

their testimony. See Battle v. State, 571 S.W.2d 20, 22 (Tex. Crim. App. 1978). If 

the State fails to meet its burden of proof, then revocation would be an abuse of the 

trial court’s discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.

1984). Proof by a preponderance of the evidence as to any one of the alleged 

violations is sufficient to support a trial court’s decision to revoke community 

supervision. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 

1980). Our review of an order revoking community supervision is limited to 

determining whether the trial court abused its discretion. Rickels, 202 S.W.3d at 763.

I. Sufficiency of the Evidence

In his first issue, appellant argues that the trial court abused its discretion and 

challenges the sufficiency of the evidence to support the trial court’s finding that he 

failed to report to the community supervisor officer. We disagree. 

In its Motion to Adjudicate, the State alleged that appellant failed to report to 

his community supervision officer and that he failed to pay supervision fees, fine 

and court costs, and other required fees and assessments. In support of its motion, 

the State called Officer Brown, who had been assigned as appellant’s community 

supervision officer. Officer Brown testified that appellant failed to report to the 

community supervision office for the months of May and June. She also testified 
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that appellant was $938 in arrears for supervision fees, $312 in arrears for fines and 

court costs, $50 in arrears for Crime Stoppers of Houston fee, and $180 in arrears 

for drug testing fees, and $100 in arrears for an assessment fee. Though appellant’s 

trial counsel cross-examined Officer Brown, appellant did not testify or offer any 

other evidence against the State’s motion.

Here, it was well within the trial court’s discretion to accept or reject any or 

all of Officer Brown’s testimony. Maddox v. State, 466 S.W.2d 755, 757 (Tex. Crim.

App. 1971). The evidence was clear that appellant was rescheduled eleven times 

while on community supervision and failed to report as required by the conditions 

of his community supervision at least eight times in May and June 2020. Appellant’s 

failure to report provided a sufficient reason for the trial court to revoke his 

community supervision. See Flournoy v. State, 589 S.W.2d 705, 709–10 (Tex. Crim.

App. [Panel Op.] 1979); Greer v. State, 999 S.W.2d 484, 489 (Tex. App.—Houston 

[14th Dist.] 1999, pet. ref’d) (no abuse of discretion to revoke for failing to report 

for single month). Accordingly, we overrule appellant’s first issue.

II. Due Process Violation

In his second issue, appellant contends that his “constitutional right to the due 

process of law . . . was violated when the trial court adjudicated him guilty for being 

25 minutes late to one probation meeting during the height of the COVID-19 

pandemic. We disagree.

At a revocation of probation proceeding, a defendant need not be afforded the 

full range of constitutional and statutory protections available at a criminal trial. 

Gagnon v. Scarpelli, 411 U.S. 778, 789 (1973). In Gagnon, the Supreme Court 

enunciated the minimum requirements of due process which must be observed in 

community supervision revocation hearings: (1) written notice of the claimed 

violations of probation; (2) disclosure to the probationer of the evidence against him; 
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(3) opportunity to be heard in person and to present witnesses and evidence, and the 

right to confront and cross-examine adverse witnesses; (4) a neutral and detached 

hearing body; and (5) a written statement by the fact finders as to the evidence relied 

on and the reasons for revoking probation. Gagnon, 411 U.S. at 786 (1973) (citing 

Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). In Texas, the procedure for 

revoking probation affords a probationer greater safeguards than those required by 

Gagnon and Morrissey. See Ruedas v. State, 586 S.W.2d 520, 523 (Tex. Crim. App.

1979) (citing to Whisenant v. State, 557 S.W.2d 102 (Tex. Crim. App. 1977)). In 

Texas, a probationer has the right to be represented by counsel at a revocation 

hearing. Ex parte Guzman, 551 S.W.2d 387 (Tex. Crim. App. 1977); Ex parte 

Flores, 537 S.W.2d 458 (Tex. (Tex. Crim. App. 1976). At such a proceeding, guilt 

or innocence is not at issue, and the trial court is not concerned with determining the 

defendant’s original criminal culpability. Davenport v. State, 574 S.W.2d 73, 75

(Tex. Crim. App. 1978). “The question at a revocation hearing is whether the 

appellant broke the contract he made with the court after the determination of his 

guilt.” Kelly v. State, 483 S.W.2d 467, 469 (Tex. Crim. App. 1972). 

The record from the revocation proceeding reflects that appellant was 

represented by counsel and had written notice of the State’s allegations alleging that 

he failed to report to his community supervision officer and failed to pay fines, court 

costs, and other assessments as required by the conditions of his community 

supervision. The State presented evidence to support the alleged violations, and 

appellant had an opportunity to be heard, present witnesses and evidence, and 

confront and cross-examine adverse witnesses. There is nothing before us to indicate 

that the proceedings did not take place before a neutral and detached hearing body, 

nor did appellant make this argument. Though the trial court clearly articulated its 

rulings on the record after the hearing and found that appellant failed to report to his 
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community supervision officer, there was evidence presented for each of the other 

violations alleged by the State in its adjudication motion.

Under the facts of this case, appellant’s due process rights were adequately 

protected. Accordingly, we overrule appellant’s second issue. 

III. Ineffective Assistance of Counsel

In appellant’s third issue, he alleges that he did not receive effective assistance 

of counsel because trial counsel failed to (1) raise the affirmative defense of due 

diligence and his tardiness (2) argue that appellant’s tardiness to a scheduled 

probation meeting should have been excused. We disagree. 

To prevail under Strickland, an appellant must show both that (1) counsel’s 

performance fell below an objective standard of reasonableness and (2) but for 

counsel’s unprofessional error, there is a reasonable probability that the result of the 

proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 

(1984); Vasquez v. State, 830 S.W.2d 948, 949 (Tex. Crim. App. 1992). In order to 

satisfy the first prong, appellant must prove, by a preponderance of the evidence, 

that his trial counsel’s performance fell below an objective standard of 

reasonableness under the prevailing professional norms. Strickland, 466 U.S. at 687.

To prove prejudice, appellant must show that there is a reasonable probability, or a 

probability sufficient to undermine confidence in the outcome, that the result of the 

proceeding would have been different. Id.

The Texas Code of Criminal Procedure provides an affirmative defense to 

revocation for failure to report to a supervision officer as directed where no 

supervision officer, peace officer, or other officer contacted or attempted to contact 

the defendant in person at the defendant’s last known residence address or last 

known employment address. See Tex. Code Crim. Proc. Ann. art. 42A.109; see also 
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Garcia v. State, 387 S.W.3d 20, 22–24 (Tex. (Tex. Crim. App. 2012). The Texas 

Court of Criminal Appeals determined the Legislature intended this affirmative 

defense to apply in those instances in which the State has timely alleged violations 

but has not arrested the defendant before the community supervision period expired. 

See Garcia, 387 S.W.3d at 25 (interpreting Tex. Code Crim. Proc. art. 42.12, § 24, 

which was later repealed and re-codified at Tex. Code Crim. Proc. art. 42A.109).

Here, appellant’s contention that he was entitled to the due diligence 

affirmative defense is misplaced. The record reflects that appellant was charged with 

several violations prior to the expiration of his community supervision period. Thus, 

appellant was not eligible to raise this affirmative defense. See Garcia, 387 S.W.3d 

at 25 (“The application of the due diligence defense is limited to “those instances in 

which the State has timely alleged violations but has not arrested the defendant 

before the community supervision period has expired.”); see also Tex. Code Crim. 

Proc. Ann. art. 42A.109. Because appellant failed to meet the “deficiency” part of 

the Strickland test, we need not reach the question of whether appellant was 

prejudiced. 

Presuming without deciding that counsel’s failure to argue that “being 25 

minutes late to one probation meeting” would satisfy the first prong of Strickland, 

appellant’s ineffective assistance claim still fails because the second Strickland

prong is not satisfied. Appellant has not shown a reasonable probability that, but for 

counsel’s presumptively deficient performance, the result of the trial would have 

been different. See Strickland, 466 U.S. at 687; Mallett v. State, 65 S.W.3d 59, 63

(Tex. Crim. App. 2001).

Accordingly, we overrule appellant’s third issue. 
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Conclusion

We affirm the trial court’s judgments.

/s/ Frances Bourliot

Justice

Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson.

Do Not Publish — TEX. R. APP. P. 47.2(b).