Court of Appeals of Texas, Fourth District, San Antonio
the County Court at Law No. 6, Bexar County, Texas Trial
Court No. 544462 Honorable Wayne A. Christian, Judge
Sitting: Rebeca C. Martinez, Justice, Patricia O. Alvarez,
Justice Liza A. Rodriguez, Justice
C. MARTINEZ, JUSTICE
Jacobs appeals a judgment revoking her community supervision.
Jacobs argues the trial court abused its discretion when it
found alleged violations of the terms of Jacobs's
community supervision to be "true" because: (1) the
evidence is legally insufficient to support the judgment; and
(2) Jacobs was denied due process when she was not allowed to
call witnesses in her defense. In a case that presents review
of an unsuitable practice by a county court at law judge in
Bexar County, the State concedes error.
August 8, 2018, Jacobs pled no contest to the offense of
driving while intoxicated and was sentenced to fourteen
months of community supervision. On September 13, 2018, the
State filed a motion to revoke Jacobs's community
supervision, and later amended the motion to add a third
violation of a condition of probation. A hearing was
scheduled on the State's amended motion for October 1,
2018, before Judge Wayne Christian in County Court at Law No.
6. Judge Christian called Jacobs and her attorney up to the
bench, along with Susan Gross, the Chief Liaison Officer
("CLO"), a representative of the probation
department. The State admits, "[a]s is customary in
Judge Christian's court, no representative of the State
came to the bench." According to both Jacobs and the
State, it is the customary practice of Judge Christian to
consider and determine the merits of a motion to revoke
without the presence of the State or the proper admission of
evidence. Here, the State was not present at the
"hearing" and was offered no opportunity to present
evidence supporting its motion to revoke. From the bench, the
judge asked how Jacobs pled to the allegations in the motion
to revoke, to which Jacobs's attorney responded,
"not true." The judge then asked the CLO for an
update on Jacobs. The CLO told the court Jacobs was nearing
the end of her probation period and had substantially
complied with the terms of her community supervision but
failed three drug tests. The CLO was not a sworn witness and
offered nothing into evidence. Jacobs's counsel was not
permitted to cross examine the CLO and was denied a request
to present evidence contesting the alleged drug test results.
Jacobs's attorney advised the trial court she wanted to
present evidence that Jacobs was taking a diet pill that had
been shown to cause false positives. The CLO then stated one
of the tests was confirmed as being positive for
methamphetamines, and the trial court immediately granted the
State's motion to revoke. Jacobs's counsel asked the
trial court for a contested hearing, and the trial court
responded: "It's a little late for the contested
hearing." Over repeated objections from defense counsel,
the trial judge found all allegations "true,"
revoked Jacobs's probation, and sentenced her to one year
in jail. Jacob's motion for new trial was summarily
denied without a hearing.
review the trial court's order revoking community
supervision for an abuse of discretion. Hacker v.
State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). A
trial court abuses its discretion when it acts without
reference to any guiding rules or principles. State v.
Thomas, 428 S.W.3d 99, 103 (Tex. Crim. App. 2014). The
trial court is vested with discretion to decide whether a
defendant will continue community supervision, or have it
revoked. DeGay v. State, 741 S.W.2d 445, 449 (Tex.
Crim. App. 1987). However, the trial court does not have
absolute discretion in the decision to revoke community
supervision. Id. Once a defendant is on community
supervision, it should not be arbitrarily withdrawn by the
court, and the court is not authorized to revoke without a
showing that the defendant violated a condition of the
community supervision imposed by the court. Leonard v.
State, 385 S.W.3d 570, 576 (Tex. Crim. App. 2012).
evaluating a legal sufficiency challenge, we view the
evidence in the light most favorable to the factfinder to
determine whether it could make the findings that were
returned. Brooks v. State, 323 S.W.3d 893, 899 (Tex.
Crim. App. 2010) (plurality op.). A preponderance of the
evidence is the evidentiary standard in a motion to revoke
hearing. Rickels v. State, 202 S.W.3d 759, 763 (Tex.
Crim. App. 2006). "Preponderance of the evidence means
'that greater weight of the credible evidence which would
create a reasonable belief that the defendant has violated a
condition' of his [or her] community supervision."
Carreon v. State, 548 S.W.3d 71, 77 (Tex.
App.-Corpus Christi 2018, no pet.) (citing Rickels,
202 S.W.3d at 763-64). "When the State has failed to
meet its burden of proof, the trial [court] abuses [its]
discretion in issuing an order to revoke [community
supervision]." Cardona v. State, 665 S.W.2d
492, 493-94 (Tex. Crim. App. 1984).
central issue to be determined in reviewing the trial
court's exercise of discretion in a community supervision
revocation case is whether the defendant was afforded due
process. Tapia v. State, 462 S.W.3d 29, 41 (Tex.
Crim. App. 2015). "[T]he minimum requirements of due
process which must be observed in community supervision
revocation hearings [are]: (1) written notice of the claimed
violations of probation; (2) disclosure to the probationer of
the evidence against him [or her]; (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." Id. at
41-42 (citing Gagnon v. Scarpelli, 411 U.S. 778, 786
the State concedes that Jacobs was denied due process and
that no evidence supports revocation. Jacobs pled "not
true," which cannot be used to support the trial
court's finding. Cf. Hays v. State, 933 S.W.2d
659, 661 (Tex. App.-San Antonio 1996, no pet.) ("When a
plea of true is made, the sufficiency of the evidence may not
be challenged."). A trial judge who orders revocation of
probation without affording either the State or the defendant
an opportunity to be heard fails to act under the guidance of
any law or principle. Although the trial judge is the sole
judge of the credibility of witnesses and the weight to be
given to their testimony, the judge is not authorized to
revoke probation without evidence from the State and without
affording the accused an opportunity to be heard. As the
State and Jacobs jointly argue, the trial court abused its
discretion both by failing to permit the State to satisfy its
burden and by refusing to afford Jacobs the minimum
requirements of due process. Here, the trial judge committed
legal error by ignoring the law and ruling without guiding
principles, adversely affecting the interests of the public
generally, along with the fundamental constitutional and
procedural rights of the accused.
State further concedes that Jacobs was denied the opportunity
to be heard in person and to present and confront witnesses
or to present other evidence. Jacobs expressed a desire to
have her mother testify regarding Jacobs's normal
behavior while she was allegedly using drugs. Jacobs also was
denied the opportunity to confront and cross-examine adverse
witnesses when she was not allowed to test the CLO's
credibility or basis of knowledge or contest the accuracy of
the drug tests averred to. Jacobs's attorney tried to
inform the judge that she pled "not true" to the
allegations, that she was asking for a contested hearing, and
that the State had not submitted evidence. Jacobs's
attorney again attempted to inform the judge the evidence was
"not adequate" to support the judgment, but the
judge cut her off and replied, "this is done." By
finding the allegations true and revoking Jacobs's
probation without hearing any actual evidence, the trial
court deprived Jacobs of the minimum requirements of due