### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00141-CR

Charley W. Kuykendall, Appellant

v.

The State of Texas, Appellee

FROM THE COUNTY COURT OF SAN SABA COUNTY

NO. 6,398, HONORABLE HARLEN D. BARKER, JUDGE PRESIDING

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

Charley W. Kuykendall appeals from the revocation of his community supervision

probation for driving while intoxicated (DWI). S ee Tex. Pen. Code Ann. § 49.04 (West 2003); Tex.

Code Crim. Proc. Ann. § 42.12 (West 2003). He contends that, because the State’s motion to revoke

alleged that he was arrested and charged with a subsequent DWI, but did not allege that he actually

drove while intoxicated, it was insufficient to revoke his probation. On appeal, Kuykendall argues

that the trial court erred in (1) deny ing his motion to quash and (2) admitting evidence at the

revocation hearing that was not contained in the motion to revoke. We will affirm the revocation

order.2 BACKGROUND

On August 20, 2001, Kuykendall was sentenced to ninety days’ confinement in the

San Saba County jail and fined $1,000 following a jury conviction for driving while intoxicated. S ee

Tex. Pen. Code Ann. § 49.04 (West 2003). The county court suspended Kuykendall’s jail sentence

and placed him on probation for one year. S ee Tex. Code Crim. Proc. Ann. § 42.12 (West 2003).

Among the conditions of that probation were that Kuykendall should:

1. Commit no offense against the laws of this State or of any other State or of the

United States.

2. Avoid injurious or vicious habits, including the use of narcotic or habit forming

drugs and alcoholic beverages.

. . . [and]

13. Drink no alcoholic beverages during probationary period.

Kuykendall was involved in an automobile accident on December 3, 2001, in Llano,

Texas. The responding officer observed that Kuykendall staggered as he walked, slurred his speech,

and had bloodshot eyes. The officer also smelled a strong odor of an alcoholic beverage on or about

Kuykendall’s person. Based on these observations, the officer arrested Kuykendall for driving while

intoxicated.

Kuykendall refused to submit to a field sobriety test or an i n toxilyzer test. Upon

arrival at the Llano County jail, the processing officer noticed that Kuykendall was having difficulty

retaining his balance, that his eyes were bloodshot, and that his face was flushed. The officer also3

smelled alcohol on Kuykendall. During the booking procedure, Kuykendall asked the processing

officer, “Why don’t you just charge me for PI [public intoxication]?”

Based on these events, the State moved to revoke Kuykendall’s prob ation on

December 17, 2001. S ee Tex. Code Crim. Proc. Ann. § 42.12 (West 2003). At a subsequent

hearing, the county court granted the motion. On appeal, this Court reversed and remanded the cause

because no record was made of the hearing. K uykendall v. State

, No. 03-02-00148-CR, 2002 Tex.

App. LEXIS 6321 (Tex. App.—Austin Aug. 30, 2002, no pet.) (not designated for publication). The

State then filed an amended motion to revoke Kuykendall’s pr o bation. At a second hearing on

November 25, 2002, Kuykendall’s motion to quash was denied and his probation was revoked.

Kuykendall raises two issues on this appeal. First, Kuykendall argues that the county

court erred in denying his motion to quash the State’s first amended motion to revoke probation.

Second, Kuykendall contends that the county court abused its discretion in revoking his probation

by basing its ruling on evidence not alleged in the motion to revoke.

DISCUSSION

The State’s first amended motion to revoke alle g es that Kuykendall violated the

conditions of hi s probation because he was “arrested for and charged with the offense of driving

while intoxicated in the city of Llano, Llano County, Texas,” on December 3, 2001. Kuykendall’s

motion to quash asserted that, although driving while intoxicated would violate his probation, being

arrested for and charged with DWI does not. He now argues that his probation could not be revoked

because the State’s motion failed to specifically allege that Kuykendall actually committed the

offense of DWI.4 We reject Kuykendall’s argument. A motion to revoke is only required to give the

defendant fair notice of the violation asserted in order to comport with minimum due process

requirements. L abelle v. State

, 720 S.W.2d 101, 108 (Tex. Crim. App. 1986). The notice must be

such as would enable the defendant to prepare a defense. Id

. To determine whether the motion to

revoke provided the necessary notice, we are first required to decide whether some requisite item of

notice was absent. I

d

. If we find that an item of notice was absent, we must determine whether, in

context of the case at issue, the absence of such item impacted the defendant’s ability to prepare a

defense and the extent of such impact. Id

.

In Labelle

, Labelle’s probation was revoked for destroying a government document

in violation of the law. I

d

. at 103. Labelle moved to quash the State’s motion to revoke because it

did not specify the law he allegedly violated or the governm ent document he allegedly destroyed.

Id

. In affirming the revocation of Labelle’s probation, the court of criminal appeals held that the

motion to revoke did lack requisite items of notice, but that the absence of those items did not impact

Labelle’s ability to prepare his defense. Id . at 109.

In our case, the State’s first amended motion to revoke was sufficie nt to give

Kuykendall notice that enabled him to prepare his defense for the revocation hearing. The State’s

motion informed Kuykendall, by specific number, of the conditions of his probation that he had

allegedly violated. It informed him of the time and place that these alleged violations took place.

Although the motion to revoke did not specifically allege that Kuykendall had actually driven under

the influence of alcohol, it did state that Kuykendall violated his probation because he was arrested

for DWI. The State thus put Kuykendall on notice that at his hearing it would attempt to prove that1 The State provided Kuykendall further notice on December 17, 2001, by filing a notice to

show cause. It alleged that Kuykendall “failed to avoid injurious or vicious habits, including the use

of a narcotic or habit forming drugs and alcoholic beverages, as directed by the court, in violation

of condition two (2) of the terms and conditions of [his] probation” and that he “failed to comply that

[he ] drink no alcoholic beverages during [his] probation period, in violation of condition thirteen

(13) of the terms and conditions of [his] probation.”

5 Kuykendall actually drove under the influence of alcohol, conduct that would constitute the offense

of DWI and violate condition one of his probation. Furthermore, the State’s motion to revoke was

sufficient to give Kuykendall notice that the State would attempt to show that he violated conditions

two and thirteen of his probation by drinking an alcoholic beverage. Armed with this knowledge,

Kuykendall had adequate warning to prepare his defense. 1 In addition, Kuykendall failed to show

how any possible lack of notice impacted hi s ability to prepare his defense. We overrule

Kuykendall’s first issue.

Kuykendall also asserts t hat the county court abused its discretion by revoking his

probation on grounds not alleged in the petition. Whereas the motion to revoke alleged that

Kuykendall was arrested for and charged with DWI, the county court revoked Kuykendall’s

probation based on evidence that Kuykendall actually committed the offense of DWI. We review

the trial court’s revocation of probation for abuse of discretion. C ardona v. State

, 665 S.W.2d 492,

493-94 (Tex. Crim. App. 1984) (citing Caddell v. State

, 605 S.W.2d 275 (Tex. Crim. App. 1980)).

In determining whether the trial court abused its discretion, we view the evidence presented at the

hearing in the light most favorable to the trial court’s finding. G arrett v. State

, 619 S.W.2d 172, 174

(Tex. Crim. App. 1981); Mauney v. State

, 107 S.W.3d 693, 695 (Tex. App.—Austin 2003, no pet.).6 Because Kuykendall received fair notice of the violation asserted in the order, the

county court did not abuse its discretion by hearing evidence that Kuykendall did in fact drive under

the influence of alcohol. S ee Robinson v. State

, 686 S.W.2d 323, 325 (Tex. App.—Houston [14th

Dist.] 1985, pet. ref’d) (finding no abuse of discretion when trial court revoked probation based on

statutes that were not listed in motion to revoke); see also Matte v. State

, 572 S.W.2d 547, 548 (Tex.

Crim. App. 1978) (noting that allegations in motion to revoke need not be al leged with same

particularity required in indictment); Diaz v. State

, 516 S.W.2d 154, 156 (T ex. Crim. App. 1974)

(same). At Kuykendall’s hearing, the arresting officer and the processing officer both testified that

he staggered as he walked, had bloodshot eyes, and that he smelled of alcohol. Viewed in the light

most favorable to the county court’s finding, the evidence is sufficient to show that Kuykendall

violated his probation. We overrule Kuykendall’s second issue.

We affirm the revocation order.

Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed

Filed: October 9, 2003

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