First Court of Appeals - Texas Courts

Case Number: 01-15-00917-CR

Judge: Michael Massengale

Court: First Court of Appeals - Texas Courts

Plaintiff's Attorney: Melissa H. Stryker
Daniel C. McCrory
The Honorable Kim K Ogg

Defendant's Attorney: Mark Hochglaube

Description: Denerick Fulford was indicted for possession of a controlled substance with
intent to distribute, with an enhancement for use of a firearm during the offense.
Pursuant to a plea agreement, the State abandoned the intent-to-distribute and use
of-a-firearm allegations, and Fulford pleaded guilty to possession of a controlled
substance. The court accepted his guilty plea, but it deferred adjudication and
placed him on community supervision for five years. The original term of
community supervision was set to expire on May 22, 2013.
During the original community-supervision term, the State filed a motion to
adjudicate guilt, alleging that Fulford had violated several conditions of his
community supervision. The court amended the conditions and ordered a one-year
extension of community supervision. The State dismissed its motion. The court
later amended the terms again and extended the final expiration date of Fulford’s
community supervision to November 22, 2014. It also issued two amended orders
that did not further extend Fulford’s probationary period. On April 28, 2014, the
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State filed a second motion to adjudicate guilt, again alleging that Fulford had
committed numerous violations of the conditions of his community supervision. A
capias was issued on the same day the motion was filed.
At the adjudication hearing, the State alleged four violations of the
community-supervision conditions, and Fulford entered a plea of “true” to all four.
When asked by the State if testimony from Fulford’s probation officer was
required, the court responded that its file was sufficient. The State presented no
further evidence. Fulford presented testimony from the court liaison officer, who
stated, inaccurately, that the term had been extended to March 2014.
After the conclusion of the hearing, and following a risk-assessment
analysis, the court adjudged Fulford guilty of the underlying possession offense
and sentenced him to four years in prison. Consistent with the clerk’s record, the
trial judge observed at the sentencing hearing that the community-supervision term
expired on November 22, 2014.
Analysis
Fulford raises one issue on appeal. He argues that despite the record’s
accurate reflection of the November 22, 2014 expiration date for his community
supervision, the court erred by finding that it had jurisdiction to adjudicate his guilt
because the State never presented evidence at the hearing to establish that he was
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still under community supervision on April 28, 2014 when it filed its second
motion to adjudicate guilt.
The probation revocation proceeding is an administrative hearing, rather
than a civil or criminal trial. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App.
1993). It is considered an extension of the original sentencing portion of the
defendant’s trial, and therefore it is subject to the continuing jurisdiction of the trial
court. Id. at 874. The trial court maintains its jurisdiction to hear a motion to
adjudicate guilt as long as the motion is filed with the court and a capias is issued
before the end of the defendant’s probationary period. See Ex parte Moss, 446
S.W.3d 786, 792 (Tex. Crim. App. 2014) (citing former article 42.12, section 5(h)
of the Code of Criminal Procedure).
The State’s second motion to adjudicate guilt was filed and a capias was
issued on April 28, 2014, well within the probationary period that was set to expire
on November 22, 2014. The trial court therefore had jurisdiction to hear the
motion. At the adjudication hearing, Fulford admitted to four violations of the
conditions of his community supervision as alleged by the State. This alone is
sufficient to support the revocation of Fulford’s community supervision. Duncan v.  The Legislature repealed article 42.12, effective January 1, 2017, and it enacted chapter 42A of the Code of Criminal Procedure as part of a nonsubstantive revision of community-supervision law. See Act of May 26, 2015, 84th Leg., R.S., ch. 770, § 3.01, 2015 Tex. Sess. Law Serv. 2394. The current version of the pertinent statute is codified at article 42A.108(c) of the Code of Criminal Procedure.
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State, 321 S.W.3d 53, 58 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)
(holding that appellant’s plea of true, standing alone, is sufficient to support the
revocation of community supervision).
Fulford does not assert that the evidence presented at the hearing was either
insufficient to prove his identity or that he violated at least one term of his
community supervision. Nor does he challenge the validity of the orders extending
his community supervision to November 22, 2014. Instead, he argues that because
the State never offered the amended orders or other evidence to establish that he
was still on probation at the time the State filed its second motion to adjudicate
guilt, the trial court lacked jurisdiction to revoke his community supervision.
When the record on appeal includes the original judgment and order of
probation, there is no requirement that the State introduce formal proof of the
terms of probation at the revocation hearing. Cobb, 851 S.W.2d at 873–74. Nor is
there any requirement that the court take formal judicial notice of such documents.
Id.; see also Demease v. State, No. 01-07-01121-CR, 2009 WL 469115, at *2 (Tex.
App.—Houston [1st Dist.] Feb. 26, 2009, pet. ref’d) (mem. op., not designated for
publication).
The appellate record includes the original judgment and order of community
supervision, as well as all four trial court orders amending the conditions of
Fulford’s community supervision. Each amendment was signed by Fulford,
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indicating his acceptance of the modified terms. The “4th Amended Conditions of
Community Supervision” designated November 22, 2014 as the expiration date.
Because these documents appear in the record, we conclude that the trial court
correctly exercised its jurisdiction to revoke Fulford’s community supervision and
to adjudge him guilty. We overrule his sole issue.

Outcome: We affirm the decision of the trial court.

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Defendant's Experts:

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