Judge Michael McC _ nick - Voice For The Defense Online

1972); Ganble v. Sip, 484 S.W.2d 713,714 (Tex.Crim.App. 1972); Jamson v.State, 473 S.W.2d 40,42 (Tex.Crim.App.1971); and Trcka v. State, 744 S.W.Zd677,680 (Tx. App. -Austin 1988, no pet.).1. Whenthe motiontorevoke probationfails to fully inform the probationer, he isdenied the rudiments of due process. La-Belle v. State, 720 S.W.2d 101 flex.Crim.App. 1986); Caddell v. State, 605S.W.2d 275,277 (Tex.Crim.App. 1980);Garner v. State, 545 S.W.2d 178, 179(Tex.Crim.App. 1977); Graham v. State,502 S.W.2d 809, 811 (Tex. Crim.App.1973); and Kuenstler v. State, 486 S.W.2d367,370 (Tex.Crim.App. 1972).When the allegations in the motion torevoke fail to fully inform the probationer,and the trial court has refused to sustain anexception timely filed, the probationer isdenied the mdiments of due process; theaccused is entitled to have the motion torevokeset forthin clearlanguagetheviolationrelied upon. Garner, 545 S.W.2d at179. In Gamer, it was held that referenceto the indictment was not sufficient notice537 S.W.2d 16,18 (Tex.Crim.App. 1976);andScamardo, 517 S.W.2d 293,298 (Tex.Crim.App. 1974). NOTE: Chief JusticeOnion consistently holds that the properstandard of proof is beyond a reasonabledoubt. Kelly, 483 S.W.2d at 480.2. While the trial court is the fmder offact and the sole judge of the weight andcredibility to be given to the witnesses, thejudge does not have absolute discretion inthedecisiontorevoke probation. Probationmay not be temnated without an a h -ative findiig of a violation of the conditionsof probation. Campbell, 456 S.W.2datY22; and Wozencrap, 388 S.W.2dat426.That fmding must undoubtedly be supported by some degree of sufficientevidence. Robens v. State, 537 S.W.2d461,463 (Tex.Crim.App. 1976); Scarnardo,517 S.W.2d at 297; andKubat v. State,503 S.W.2d 258, 260 (Tex. Crim.App.1974).3. Standard employed by the 5th circuitCourt of Appeals: "A revocation of probationdoes not require proof sufficient tosustain acriminal conviction. All that is reof the offense relied on for therevocation. auired is enoueh evidence. within a sound2. NOTE: The Court of Criminal Ap- Gdicial discreTion, to satisfy the districtpeals has held that the due process clause judge that the conduct of the probationerof the 14th amendment does apply to has not met the conditions of the pmbarevocationofpmbationhearings. Herndon tion." United States v. Garur, 484 F.2d 88,v. State, 679 S.W.2d 520, 522 (Tex. 89 (5th Cir. 1976); see also, United StatesCrim.App. 1984); and Wright v. State, 640 v. Evers, 534 F.2d 1186, 1188 (5th cir.S.W.2d 265,269 (Tex. Crim.App. 1982). 1976), cen. denied, 429 U.S. 1024 (1976).3. Further, the allegations in the motion 4. NOTE: Probation revocation is ato revoke probation should specifically matter entrusted to the sound judicial dispointout what the new offense is and in cretion of the district court, and only uponwhat way it is a violation of the conditions a clear showing of abuse of that discretionof probation. Garner v. State, 545 S.W.2d will the district court's decision be dis-178, 179 (Tex.Crim.App. 1977); and turbed. Bums v. United States, 287 US.Mason v. State, 495 S.W.2d 248, 250 216 (1932); andPickensv. Texas,497F.2dflex.Crim.App. 1973);seealso, LaBellev. 981,982 (5th cu. 1974), cen. denied, 419State, 720 S.W.2d 101, 104 (Tex. US. 880 (1974).Crim.App. 1986); and Matte v. State, 572S.W.2d 547,549 flex.Crim.App. 1978).D. Quantum of Proof Required toRevoke Probation.1. The majority of the Court of CrirmnalAppeals has held that apreponderance ofthe evidence must support the motion torevoke probation. Gomez v. State, 685S.W.2d 333, 336 (Tex.Crim.App. 1985);Cardona v. State, 665 S.W.2d 492, 493(Tex.Crim.App. 1984); Jackson v. State,645 S.W.2d 303, 305 (Tex.Crim.App.1983);Shawv. State, 622S.W.2d 862,863(Tex. Crim.App. 1981); Johnson v. State,E. Other Grounds for Revocation1. Revocation based upon failure to payrestitution, supervisory fees or costs,failure to suppoa dependants or failure toobtain employment will be invalid unlessthe evidence shows that the failure waswillful and intentional. Hill v. State, 719S.W.2d 199,201 (Tex.Crim.App. 1986);Jones v. State, 589 S.W.2d 419 (Tex.Crim.App. 1979); Basaldua v. State, 558S.W.2d2,7 (Tex.Crim.App. 1977); Curtisv. State, 548 S.W.2d 57, 58 (Tex.Crim.App. 1977); Herrington v. State, 534S.W.2d 331, 334 (Tex.Crim.App. 1976);Germany v. State, 486 S.W.2d 324, 325(Tex.Crim.App. 1972); and Pool v. State,471 S.W.2d 863, 864 (Tex.Crim.App.1971). But see Standfield v. State, 718S.W.2d 734 (Tex.Crim.App. 1986) (Statebears the burden of proving that an allegedfailure to pay fees and costs was intentional,but the probationer has the burden ofproving inability to pay as an affirmativedefense).2. Revocations based upon associationswith bad persons are invalid unless theevidence shows that the defendant hadknowledge of thebadcharacter of his companions.Gill v. Sfate, 556S.W.@354,355(Tex.Crim.App. 1977); Prince v. State,477 S.W.2d 542, 543 (Tex.Crim.App.1972); and Jackson v. State, 464 S.W.2d153,155 (Tex.Crim.App. 1971).3. Where revocation is based on afailure to avoid injurious or vicious habits,the state must allege and prove that therewas a habit and that the habit was injuriousor vicious. Campbell, 456 S.W.2d920-21.4. Where revocation is based on failureto report to the probation officer as'directed, the statemust introduce evidenceofwhen and how often the probationer wasdirected to repoa to the probation officer;lackof suchevidence willdefeatthe state'smotion to revoke. Campbell v. State, 420S.W.2d 715,716 (Tex.Crim.App. 1967);see also, Brown v. State, 508 S.W.2d 366,368 (Tex.Crim.App. 1974).5. Where revocation is based on thefailure by the defendant to remain withinthe boundaries of the state or a specifiedcounty, the state must show that theprobationer went outside the limits,generally for a substantial length of time,and that he did so without the permissionof the probation officer. McDonald v.State, 442 S.W.2d 386 (Tex.Crim.App.1969).IV. Constitutional RightsofProbationer in a RevocationProceedingA. It is clear from case law that aprobationer has a right to counsel at aprobation revocation hearing.1. An order of revocation bas beenrendered void by a showing that theprobationer was denied the right to counselat a revocation proceeding. Ruedas v.State, 586 S.W.2d 520, 523 (Tex.Crim.App. 1979); Exparte G~runan, 55126 VOICE for the Defense I January 1989