TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00657-CR

NO. 03-02-00705-CR

Ian Evans, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NOS. 910774 & 910775, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

In January1996, appellantIanEvans was placed on deferred adjudication community

supervision forsix years after he pleaded guilty to filing a false fuel report and failing to remit diesel

fuel taxes. See Tex. Tax Code Ann. §§ 153.221, .403 (West 2002). In September 1998, appellant

was adjudicated guilty in both causes and continued on community supervision for five years. He

now appeals from October 2002 orders revoking supervision and imposing three-year prison

sentences. He urges that the evidence does not support the court’s finding that he violated the

conditions of supervision, and that the judge who revoked supervision was not authorized to do so.

We will overrule these contentions and affirm the revocation orders.
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The State alleged that appellant failed to report to his probation officer from

November 1998 through February 2002, and that he failed to pay required fees. The trial court found

both allegations to be true. Appellant contends the evidence does not support these findings.

Appellant’s probation officer testified without contradiction that appellant did not

report a single time between October 2000 through September 2002. Appellant offered two excuses

for this failure to report. First, he testified that after he was adjudicated guilty in September 1998,

he was in the continuous custody of either Harris County or the Immigration and Naturalization

Service until October 31, 2000. Second, he testified that after his release from custody in October

2000, he made several unsuccessful attempts to contact the Travis County probation office by

telephone from his residence in Montgomery County. According to appellant, when he finally got

through to someone in Travis County, he was told they had no record of him. Appellant made no

further effort to contact or report to the Travis County probation department.

Appellant arguesthat because he wasin custody, he was excused fromreporting from

November 1998 until his release in October 2000. Thus, he urges that the State failed to prove its

allegation: that he failed to report from November 1998 through February 2002. We understand him

to be asserting a variance between the allegations in the motions to revoke and the proof adduced

at the hearing. Assuming that the variance rule applies to probation revocations, and assuming

further that there was a variance between the allegations and the proof in these causes, the variance

was not material. See Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001). The motions

to revoke gave appellant fair notice of the alleged violation and are sufficient to prevent revocations
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for the same violations at a later time. See id.;see also Mitchell v. State, 608 S.W.2d 226, 229 (Tex.

Crim. App. 1980) (motions to revoke need not comply with pleading rules governing indictments).

Regarding his failure to report after being released from custody in October 2000,

appellant asserts that the State failed to use due diligence to find him. The due diligence rule to

which appellant refers holdsthat a trial court may revoke supervision following the expiration of the

supervisory period only if a motion to revoke was filed and a capias was issued during the term of

supervision, and if the State thereafter used due diligence to apprehend the probationer and

determine the allegationsin the motion. See Peacock v. State, 77 S.W.3d 285, 287 (Tex. Crim. App.

2002). The rule has no application here because the hearing on the motions to revoke was held

before the supervisory period expired.

The decision to revoke community supervision is committed to the discretion of the

trial court. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The allegations in a

motion to revoke must be proved by a preponderance of the evidence. Id. The trial court did not

abuse its discretion by finding that appellant failed to report as alleged in the motions to revoke.

Because this ground is alone sufficient to support the court’s orders, we need not decide whether the

State proved the other alleged violation. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App.

1980). Point of error one is overruled.

In his second point of error, appellant asserts that there was a violation of article

42.12, section 10(a) because the judge who revoked supervision was not the judge who originally

deferred adjudication and placed appellant on community supervision. See Tex. Code Crim. Proc.

Ann. art. 42.12, § 10(a) (West Supp. 2004). The statute provides that “[o]nly the court in which the
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defendant was tried may grant community supervision, impose conditions, revoke the community

supervision, or discharge the defendant, unless the judge has transferred jurisdiction of the case to

another court with the latter’s consent.” Id. The statute distinguishes between the court having

jurisdiction of the cause and the judge presiding in that court. Under the statute, a revocation

proceeding must be held in the convicting court but not necessarily before the same judge. In these

causes, the original deferred adjudication proceedings, the subsequent adjudications, and the

probation revocations now on appeal were all conducted in the 147th Judicial District Court.

Appellant draws our attention to other portions of the statute providing that “only the judge may alter

conditions of community supervision” and “only the judge who originally sentenced the defendant

may suspend execution thereof and place the defendant under community supervision.” Id. This

language is not applicable to these causes. No violation of article 42.12, section 10(a) is shown.

Point of error two is overruled.

The orders revoking community supervision are affirmed.

__________________________________________

David Puryear, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: March 25, 2004

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