Jacobs v. State
| Decision Date | 12 June 2019 |
| Docket Number | No. 04-18-00750-CR,04-18-00750-CR |
| Citation | 594 S.W.3d 377 |
| Parties | Allison Michelle JACOBS, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Opinion by: Rebeca C. Martinez, Justice
Allison 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.
On 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 trial1 was summarily denied without a hearing.
We 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).
When 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).
The 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, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) ).
Again, 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.
The 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 process, including her right to disclosure of the evidence against her, an opportunity to be heard, present evidence and cross-examine witnesses, and "a neutral and detached hearing body." See Tapia , 462 S.W.3d at 41–42 (citing Gagnon , ...
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