Joshua Austin Hankins a/k/a Joshua Hankins v. The State of Texas--Appeal from Criminal District Court No. 1 of Tarrant County (Per Curiam)

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State: Texas

Court: Texas Northern District Court

Docket No: 02-11-00117-CR

Case Date: 12/15/2011

Plaintiff: Joshua Austin Hankins a/k/a Joshua Hankins

Defendant: The State of Texas--Appeal from Criminal District Court No. 1 of Tarrant County (Per Curiam)

Preview:COURT OF APPEALS
SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-11-00117-CR JOSHUA AUSTIN HANKINS A/K/A JOSHUA HANKINS V. THE STATE OF TEXAS ---------FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY ---------STATE APPELLANT

MEMORANDUM OPINION1
---------I. Introduction In a single issue, Appellant Joshua Austin Hankins appeals the judgment adjudicating his guilt, claiming that he was not served with written notice of the State's petition to revoke his community supervision, thus violating his right of due process and due course of law. We affirm.

1

See Tex. R. App. P. 47.4.

II. Factual and Procedural Background Hankins pleaded guilty to fraudulent possession of a controlled substance or prescription (codeine) in exchange for three years' deferred adjudication community supervision, a $300 fine, and court costs. The trial court entered the deferred adjudication order in February 2010. On September 9, 2010, the State filed a petition to proceed to adjudication. The warrant for Hankins's arrest for violating his community supervision was issued on the same day and included a command to serve the said defendant with the attached copy of the petition. It was executed on September 14, 2010, by placing in jail Sheriff Dee Anderson, and signed by Deputy N.C. Rodd. There is no copy of the petition attached to the warrant in the clerk's record. On September 15, 2010, Hankins's new bond conditions were set, and his new bond was executed. The waiver of appointed counsel signed by Hankins was filed on September 17, 2010. The trial court held four hearings after Hankins's warrant was executed. At the first hearing, on November 29, 2010, the trial court considered and granted Hankins's request for a continuance to locate his two witnesses. Hankins and the State agreed that the State would proceed with its evidence and Hankins would put on his case after locating his witnesses.2 Hankins was present at the

Hankins's counsel affirmatively agreed to this, stating, [W]e're ready to proceed.

2

2

hearing and acknowledged that he understood the proceedings. The trial court read to Hankins the two allegations in the State's petition to proceed to adjudication--that he had possessed methamphetamine and had obtained or attempted to obtain a dangerous drug by fraud--and Hankins pleaded not true to both allegations. On December 3, 2010, Hankins filed another motion for continuance, requesting a hearing date change so that his witness, Dr. Anil Bangale, could be present and testify for the defense. On December 6, 2010, before the trial court continued hearing evidence, Hankins's counsel informed the trial court that Dr. Bangale would be available two days later, and the trial court agreed that Hankins could resume his case with Dr. Bangale on December 8. At the

December 8 hearing, the trial court gave Hankins permission to bring in one more witness, Dr. Norris Duane Purcell--Hankins's psychiatrist--on December 10. Hankins never raised lack of notice or service of citation in his motions or at the hearings. The trial court found the State's allegations to be true, entered a final judgment adjudicating Hankins guilty, and sentenced him to ten years' confinement. This appeal followed.

3

III. Notice Hankins complains on appeal that because he was never served with the petition to proceed to adjudication, he was deprived of due process and due course of law.3 The minimum requirements of due process that must be observed in community supervision revocation hearings include written notice of the claimed violations of probation. See Ruedas v. State, 586 S.W.2d 520, 523 (Tex. Crim. App. [Panel Op.] 1979) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761

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