IN THE

TENTH COURT OF APPEALS

No. 10-09-00390-CR

No. 10-09-00391-CR

JOHN EDISON LASHER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 278th District Court

Leon County, Texas

Trial Court Nos. CM-01-192 and CM-01-193

MEMORANDUM OPINION

John Edison Lasher pled guilty to aggravated sexual assault of a child and was 

placed on ten years deferred adjudication community supervision (10-09-00390-CR). 

TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2009). At the same time, Lasher pled 

guilty to the offense of indecency with a child and was sentenced to ten years in prison 

(10-09-00391-CR). TEX. PENAL CODE ANN. § 21.11 (Vernon Supp. 2009). He was later 

placed on community supervision for ten years for this offense. In 2005, after the trial 

court conducted a hearing on the State’s third amended motion to adjudicate and its 
Lasher v. State Page 2

third amended motion to revoke Lasher’s community supervision, Lasher was 

sentenced to life in prison for the aggravated sexual assault offense and ten years in 

prison for the indecency with a child offense. He appeals both convictions. We affirm.

Lasher presents the same singular issue for each appeal, that the trial court 

denied Lasher due process when the trial court slept while testimony was being 

presented during the hearing to revoke Lasher’s community supervision. It is helpful 

to a determination of this issue for us to set out Lasher’s brief below. All emphasis and 

inserts are as presented in the brief.

SUMMARY OF THE ARGUMENT

The Trial Court DENIED Appellant due process, when the Trial 

Court slept while testimony was being presented during the hearing on 

the State’s Motions to revoke Appellant’s Community Supervision.

STATEMENT OF FACTS

During the hearing on the State’s Motions to revoke Appellant’s 

Community Supervision, the following colloquy occurred between the 

Trial Court, Appellant’s Counsel MARK R. MALTZBERGER, and witness 

SHELLY RENE MONEHAN. (RPTR. REC. I – 45 – 46).

MR. MALTZBERGER: Let me ask you this ma’am. I would like 

you to address the Judge with this. If [Appellant] were released back on 

probation, how can you guarantee this Court that [Appellant] would be 

more successful on probation when [Appellant] was released now?

MS. MONEHAN: He - - like, what do you mean?

MR. MALTZBERGER: Tell the Judge how would that 

happen?

MS. MONEHAN: Is [the Judge] awake over there?

MR. MALTZBERGER: Excuse me, Your Honor. Excuse 

me, Judge.
Lasher v. State Page 3

THE COURT: What?

ARGUMENT AND AUTHORITIES

The Due Process Clause of the Fourteenth Amendment provides 

that no State may “deprive any person of life, liberty, or property, without 

due process of law.” The touchstone of due process is fundamental 

fairness. Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). Here, Appellant 

was denied the opportunity to have the Trial Court evaluate testimony 

when the Trial Court slept while testimony was being presented during 

the hearing on the State’s Motions to revoke Appellant’s Community 

Supervision. Accordingly, this Court should sustain Appellant’s ISSUE 

NUMBER ONE; reverse the Judgments and Sentences of the Trial Court 

below; and remand the Causes to the Trial Court for a new hearing on the 

allegations set out in the State’s Motions to revoke Appellant’s 

Community Supervision.

CONCLUSION AND PRAYER

For the foregoing reasons, Appellant respectfully prays that this 

Honorable Court REVERSE the Judgments and Sentences of the Trial 

Court below; and, REMAND the Causes to the Trial Court for a new 

hearing on the allegations set out in the State’s Motions to revoke 

Appellant’s Community Supervision.

There are many reasons why Lasher’s issue is overruled. First, no alleged error 

is preserved. No objection was made to the alleged incident by either party. See TEX. R.

APP. P. 33.1. Further, the record does not show that the trial court missed any testimony 

at all. It is clear from the record that the witness had not begun her answer to the 

question proposed. And, after the court replied “what?,” Lasher’s counsel summarized 

what he had asked the witness. The witness then answered the question. At best, the 

record only shows a momentary lack in concentration by the court.

Second, the issue is inadequately briefed and presents nothing for review. TEX.

R. APP. P. 38.1(h); see Johnson v. State, 263 S.W.3d 405 (Tex. App.—Waco 2008, pet. ref’d). 
Lasher v. State Page 4

Lasher cites to one case for the proposition that the touchstone of due process is 

fundamental fairness. He fails to explain how this or any other case supports his 

argument that he was denied due process by the trial court’s alleged action. Even if this 

was a novel argument made by Lasher for which there was no authority directly on 

point, Lasher must still provide relevant authority suggesting how the court’s alleged 

action violated Lasher’s due process rights. See Tong v. State, 25 S.W.3d. 707, 710 (Tex. 

Crim. App. 2000).

Third, even if the trial court’s alleged action was error, a result we expressly do 

not hold, Lasher fails to show that he was harmed. See TEX. R. APP. P. 44.2. In addition 

to pleading not true to some of the State’s allegations, Lasher pled true to many of the 

State’s allegations of violations of his community supervision alleged in both its motion 

to revoke and its motion to adjudicate. Because a plea of true, standing alone, is 

sufficient to support the revocation of probation, Cole v. State, 578 S.W.2d 127, 128 (Tex. 

Crim. App. 1979), Lasher could not have been harmed by the trial court’s alleged action. 

Accordingly, Lasher’s sole issue is overruled, and the trial court’s judgment is 

affirmed.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed September 1, 2010

Do not publish 

[CRPM]