probation revocation hearing in Texas

2025“The burden of proof at a probation revocation hearing is by a preponderance of the evidence.” Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim.

2025“The burden of proof at a probation revocation hearing is by a preponderance of the evidence.” Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim.

2025In a probation revocation hearing, if the trial court finds the State’s allegations true, the trial court “has wide discretion to modify, revoke, or continue the [community supervision].” See Ex parte Tarver, 725 S.W.2d 195, 200 (Tex. Crim.

2012But if a defendant’s probation is revoked, the State is not barred from prosecuting the offense that was the basis for revocation.49 “It is totally inconsistent to argue,” the Sixth Circuit explained, “that double jeopardy does not attach to a probation-revocation hearing if the government ‘wins,’ but only attaches if the government ‘loses.’ Either the defendant is placed in jeopardy when he appears before a judge at 45 342 S.W.3d at 551 & n.151 (citing cases). 46 397 U.S. at 445-46. 47 Id. at 438. 48 Id. at 445-46. 49 Tarver, 725 S.W.2d at 197 ; Miller, 797 F.2d at 341 .

2025PROC. art. 46B.003(b); see Thompson v. State, 654 S.W.2d 26, 28 (Tex. App.—Tyler 1983, no pet.) (recognizing a probation revocation hearing is a trial for purposes of competency issues).

2022Thompson v. State, 654 S.W.2d 26, 28 (Tex. App.—Tyler 1983, no pet.). -2- 04-21-00216-CR court’s attention.

2012See Battle v. State, 571 S.W.2d 20, 22 (Tex. Crim.

2003Battle v. State, 571 S.W.2d 20, 21 (Tex.Crim.App.1978).

2005Bradley v. State, 564 S.W.2d 727, 729 (Tex.Crim.App.1978).

2005Bradley v. State, 564 S.W.2d 727, 729 (Tex.Crim.App.1978).

2015Quoting Hill v. State, 480 S.W.2d 200 , 202- 3 (Tex.Crim.App. 1971), “A probation revocation hearing is not an adversarial 7 proceeding, a civil action or a criminal prosecution…instead, it is administrative in nature, a means of protecting society and rehabilitating law breakers” also citing Hyser v. Reed, 115 U.S.App.D.C. 254 , 318 F.2d 255 (1963), United States ex re.

2011In Morrissey, the United States Supreme Court held “the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.” Morrissey v. Brewer, 408 U.S. 471, 480 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972) (emphasis added); see also Hill v. State, 480 S.W.2d 200, 202-03 (Tex.Crim.App.1971) (“A probation revocation hearing is not an adversarial proceeding, a civil action, or a criminal prosecution ... instead, it is administrative in nature, a means of protecting society and rehabilitating lawbre

2016“The burden of proof at a probation revocation hearing is by a preponderance of the evidence.” Cobb v. State, 851 S.W.2d 851 , 874 (Tex.Crim.App. 1993); see Hacker, 389 S.W.3d at 864–65; Little v. State, 376 S.W.3d 217, 219 (Tex.App.--Fort Worth 2012, pet. ref’d).

2015“The burden of proof at a probation revocation hearing is by a preponderance of the evidence.” Cobb, 851 S.W.2d at 874 ; see Hacker, 389 S.W.3d at 864–65; Little v. State, 376 S.W.3d 217, 219 (Tex. App.—Fort Worth 2012, pet. ref'd).

2008Wester v. State , 542 S.W.2d 403, 405 (Tex. Crim.

2003Wester v. State, 542 S.W.2d 403, 405 (Tex.Crim.App.1976).

2004Thompson v. State, 654 S.W.2d 26, 28 (Tex. App.--Tyler 1983, no pet.) (holding that due process requires that no person shall have his probation revoked while incompetent); see also Reeves v. State, 46 S.W.3d 397, 399 (Tex. App.-- Texarkana 2001, pet. dism'd) (the court addressed the trial court's failure to conduct a competency hearing with respect to the revocation of the defendant's probation). 3.

2003Thompson v. State, 654 S.W.2d 26, 28 (Tex. App.--Tyler 1983, no pet.) (holding that due process requires that no person shall have his probation revoked while incompetent); see also Reeves v. State, 46 S.W.3d 397, 399 (Tex. App.-- Texarkana 2001, pet. dism'd) (the court addressed the trial court's failure to conduct a competency hearing with respect to the revocation of the defendant's probation). 3.

2026“At a probation revocation hearing, [a defendant] has the right to a ‘neutral and detached’ hearing body as one of the minimum requirements of due process.” Steadman v. State, 31 3 S.W.3d 738, 741 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (citing Ruedas v. State, 586 S.W.2d 520, 523 (Tex. Crim.

2003"This is not to say, however, that all constitutional guarantees of due process fly out the window at a probation revocation hearing." Ruedas v. State , 586 S.W.2d 520, 523 (Tex. Crim.

2009Ann. art. 42.12, § 5(b) (Vernon Supp. 2009) (describing proceeding that occurred in the instant case as "a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge ... reviewable in the same manner as a revocation hearing conducted under Section 21 of this article”); Jones v. State, 728 S.W.2d 801, 803 (Tex.Crim.App.1987) (holding that a probation-revocation hearing is not a criminal trial and therefore that it did not fall under the term "trial on the merits” in the magistrate statute); Davenport v. State, 574 S.W.2d 73, 75

2009ANN. art. 42.12, § 5(b) (Vernon Supp. 2009) (describing proceeding that occurred in the instant case as "a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge ... reviewable in the same manner as a revocation hearing conducted under Section 21 of this article"); Jones v. State, 728 S.W.2d 801, 803 (Tex.Crim.App.1987) (holding that a probation-revocation hearing is not a criminal trial and therefore that it did not fall under the term "trial on the merits" in the magistrate statute); Davenport v. State, 574 S.W.2d 73, 75

2025The trial court at a probation revocation hearing “is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.” Id. 7 “When the State has failed to meet its burden of proof, the trial judge abuses [her] discretion in issuing an order to revoke probation.” Cardona, 665 S.W.2d at 493–94.

2008Cardona v. State , 665 S.W.2d 492, 493 (Tex. Crim.

2005Even if this testimony were considered hearsay without objection, “[h]earsay testimony admitted without proper objection at a probation revocation hearing has some probative value and may, in and of itself, constitute sufficient evidence in support of an Order revoking probation.” Gloria v. State , 676 S.W.2d 194, 197 (Tex.App.–Corpus Christi 1984, no pet.) (citing Frazier v. State , 600 S.W.2d 271, 274 (Tex.Crim.App. 1979) (Odom, J., dissenting)).

2005Even if this testimony were considered hearsay without objection, “[h]earsay testimony admitted without proper objection at a probation revocation hearing has some probative value and may, in and of itself, constitute sufficient evidence in support of an Order revoking probation.” Gloria v. State, 676 S.W.2d 194, 197 (Tex.App.–Corpus Christi 1984, no pet.) (citing Frazier v. State, 600 S.W.2d 271, 274 (Tex.Crim.App. 1979) (Odom, J., dissenting)). 5 prove only one ground to prevail on its Motions to Revoke, we need not address appellant’s issues regarding the other alleged violations.

2025“Likewise, a variance between pleadings and proof at a probation revocation hearing is material only if it operated to the defendant’s surprise or prejudiced his rights.” Steinberger v. State, No. 02-11-00269-CR, 2012 WL 662363 , at *3 (Tex. App.—Fort Worth Mar. 1, 2012, no pet.) (mem. op., not designated for publication) (first citing Pierce, 113 S.W.3d at 439 ; and then citing Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim.

2012This court recently explained that “a variance between the pleadings and proof at a probation revocation hearing is material only if it operated to the defendant’s surprise or prejudiced his rights” and that “[t]he burden to show surprise or prejudice resulting from a variance rests with the defendant.” Steinberger v. State , No. 02-11-00269-CR, 2012 WL 662363 , at *3 (Tex. App.—Fort Worth Mar. 1, 2012, no pet. h.); see Chacon v. State , 558 S.W.2d 874, 876 (Tex. Crim.

2008Jones v. State , 787 S.W.2d 96, 97 (Tex. App.-Houston [1st Dist.] 1990, pet. ref'd).

2006Jones v. State , 787 S.W.2d 96, 97 (Tex. App.—Houston [1st Dist.] 1990, writ ref’d).

2025The trial court at a probation revocation hearing “is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.” Hacker, 389 S.W.3d at 865 .

2025The trial court at a probation revocation hearing “is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.” Id. 7 “When the State has failed to meet its burden of proof, the trial judge abuses [her] discretion in issuing an order to revoke probation.” Cardona, 665 S.W.2d at 493–94.

2014P. 47.4 (distinguishing opinions and memorandum opinions). applicable to probation revocation proceedings.”); Fariss v. Tipps, 463 S.W.2d 176, 178 (Tex. 1971) (original proceeding) (holding that relator was entitled to a speedy trial in a probation revocation hearing because a revocation hearing was a criminal prosecution.”); see also Wisser v. State, 350 S.W.3d 161, 164 (Tex. App.—San Antonio 2011, no pet.).

2012App. 1978) (en banc) (“The right to a speedy trial guaranteed by the Constitutions of the United States and Texas is applicable to probation revocation proceedings.”); Fariss v. Tipps, 463 S.W.2d 176, 178 (Tex. 1971) (original proceeding) (holding that relator was entitled to a speedy trial in a probation revocation hearing because a revocation hearing 1 See TEX.

2025“Likewise, a variance between pleadings and proof at a probation revocation hearing is material only if it operated to the defendant’s surprise or prejudiced his rights.” Steinberger v. State, No. 02-11-00269-CR, 2012 WL 662363 , at *3 (Tex. App.—Fort Worth Mar. 1, 2012, no pet.) (mem. op., not designated for publication) (first citing Pierce, 113 S.W.3d at 439 ; and then citing Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim.

2012App. 1977) (“It is well settled that allegations in a revocation motion need not be made with the same particularity of an indictment although such allegations must be specific enough to give the accused notice of alleged violation of law contrary to conditions of probation.”); Pierce v. State , 113 S.W.3d 431, 439 (Tex. App.—Texarkana 2003, pet. ref’d) (holding variance between allegation in motion to revoke and proof at revocation hearing not material because it did not operate to the defendant’s surprise).

2016See id. at 212 (describing the State’s primary interest as “criminal punishment”); Ex parte Tarver, 725 S.W.2,d at 197 & 200 (speaking of whether a probation revocation hearing could result in punishment severe enough to resemble a second criminal “conviction”).

2012App. 1986); see also Doan II, 369 S.W.3d at 212 -13 n.33 (explaining that although Tarver addressed issue in terms of collateral estoppel, issue was whether “res judicata, whatever its basis, applied”). 6 In Tarver, the court of criminal appeals explained that res judicata can arise from determinations made in a probation-revocation hearing. 725 S.W.2d at 197 .

2012Showery, 814 F.2d at 202 ; Miller, 797 F.2d at 341 (because the "double jeopardy protection does not attach at a probation revocation hearing, Ashe , which is a double jeopardy case, provides no support for the defendant”); Krochta , 429 Mass, at 713, 711 N.E.2d at 144 ("Without a first incidence of jeopardy, the probationer cannot be in 'double’ jeopardy at a subsequent criminal trial."). .

2012Showery , 814 F.2d at 202 ; Miller , 797 F.2d at 341 (because the "double jeopardy protection does not attach at a probation revocation hearing, Ashe , which is a double jeopardy case, provides no support for the defendant"); Krochta , 429 Mass. at 713 , 711 N.E.2d at 144 ("Without a first incidence of jeopardy, the probationer cannot be in 'double' jeopardy at a subsequent criminal trial."). 52.

2009See Garrett , 619 S.W.2d at 174 ; Moore , 11 S.W.3d at 498 (in a probation revocation hearing the trial court makes credibility determinations and resolves evidentiary conflicts).

2008See Garrett , 619 S.W.2d at 174 ; Moore , 11 S.W.3d at 498 (in a probation revocation hearing, it is the trial court = s role to make credibility determinations and resolve evidentiary conflicts).

2009Ann. art. 42.12, § 5(b) (Vernon Supp. 2009) (describing proceeding that occurred in the instant case as "a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge ... reviewable in the same manner as a revocation hearing conducted under Section 21 of this article”); Jones v. State, 728 S.W.2d 801, 803 (Tex.Crim.App.1987) (holding that a probation-revocation hearing is not a criminal trial and therefore that it did not fall under the term "trial on the merits” in the magistrate statute); Davenport v. State, 574 S.W.2d 73, 75

2009ANN. art. 42.12, § 5(b) (Vernon Supp. 2009) (describing proceeding that occurred in the instant case as "a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge ... reviewable in the same manner as a revocation hearing conducted under Section 21 of this article"); Jones v. State, 728 S.W.2d 801, 803 (Tex.Crim.App.1987) (holding that a probation-revocation hearing is not a criminal trial and therefore that it did not fall under the term "trial on the merits" in the magistrate statute); Davenport v. State, 574 S.W.2d 73, 75

2014A ‘defendant is entitled to a probation revocation hearing before a judicial officer who has not predetermined that probation should be revoked or that a 4 particular punishment should be imposed.’ Ex parte Brown, 158 S.W.3d at 454 (quoting Gonzales v. Johnson, 994 F. Supp. 759, 762 (N.D.

2005Thus, a defendant is entitled a probation revocation hearing before a judicial officer who has not predetermined that probation should be revoked or that a particular punishment should be imposed") (citations omitted). [12] Gonzales, 994 F.Supp. at 764 . [13] At the hearing on remand, applicant also called a Dallas County criminal defense attorney who had investigated numerous cases in which defendants had alleged prejudgment of punishment by Judge Baraka.

2015McDonald, supra at 199; Barnett v. State, 615 S.W.2d 220, 222 (Tex.Cr.App.1981).

1986McDonald, supra at 199; Barnett v. State, 615 S.W.2d 220, 222 (Tex.Cr.App.1981).