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Probation Revocation is NOT a hearsay “free-for-all”

Texas DWI, Mimi Coffey DWI Lawyer, DWI ProbationIt is particularly accepted that that the rules of evidence do not apply to probation revocation hearings in Texas. This is a dangerous practice when it comes to people’s liberty. Courts are starting to push back against this practice, but many issues still exist when it comes to probation revocation proceedings.

Torres v. State

Facts

A recent case out of the 1st district of Houston is hopefully a step in the right direction. In Torres v. State, No. 01-18-01074-CR (Tex. App.-Houston [1st Dist.] Dec. 22, 2020), the Prosecution moved to revoke Defendant’s probation for failing to “successfully complete” the SAFP program. One of the primary problems with this revocation is that it was based on the testimony of a SAFP coordinator and a discharge report that did not state any specific violations, but merely stated that Defendant had committed “rule violations”. Furthermore, the testimony of the SAFP coordinator was based on information relayed to him and not on his personal knowledge of the “violations” alleged. In addition, a records custodian with no personal knowledge authenticated Defendant’s probation records.

Confrontation and Authentication in Probation Revocation

The opinion largely focuses on the issue of whether the conclusory statement of general “rule violations” provides sufficient basis for revoking probation. However, as you can see above, there are also issues of authentication and confrontation. Luckily, the Houston court assumed that there was a confrontation right in probation revocation proceedings, even though there is no clear precedent supporting that assumption.

The closest precedent, used by the Houston Court, came in Ex Parte Doan where the Court of Criminal Appeals held that the rules of confrontation apply to probation revocation proceedings. In other words, the court held that a probation revocation is a judicial, not administrative, process. The court did not speak further on the confrontation issue, and the Court of Criminal Appeals has not yet heard another case involving Confrontation in probation revocation proceedings to clarify its holding. Regardless, the Houston court did not deep-dive into the Confrontation issue or the authentication issue.

Fortunately, the concurrence in Torres focused primarily on the Confrontation issue. Justice Keyes believes Doan overrules any case saying that there is no Confrontation right in probation revocation. He also briefly touches upon the hearsay issue by saying that the discharge report is double hearsay despite the business records predicate.

Hearsay and Due Process in Probation Revocation

On the main issue, the Houston court held that there must be a specific basis to support revocation. In other words, testimony and reports with general, conclusory statements are not enough. There must be facts supporting those statements, and there must be some personal knowledge of the bases for the statements. Due Process still exists in probation revocation proceedings. The court must determine that the the reason for revocation is legitimate. Courts must do this “to ensure [discretion] was used on a basis that was rational and connected to the purposes of [revocation]”. Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012). Under the facts of Torres, no specific basis for discharge from SAFP existed in the discharge report. Further, the SAFP coordinator knew nothing about the specific bases for discharge.

Score One for Justice for All Texans on Probation!

About Mimi

Mimi is listed on several “top” directory listings such as DWI Lawyers for Wise County, DWI Lawyer Tarrant CountyDWI Lawyer Dallas County, DWI Lawyer Collin County, DWI Lawyer in Johnson County and DWI Lawyer Parker County. Mimi is a caring DWI Lawyer in DFW. She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

About Mimi Coffey

Mimi Coffey
Mimi Coffey is a trial attorney with 24 years experience. She is the founder of The Coffey Firm, serving Dallas, Tarrant and Collin counties. She is board-certified in DWI by the National College of DUI Defense (NCDD) and is a Regent of the NCDD. Mimi Coffey also listed on several “top” directory listings such as DWI attorneys Tarrant County, DWI Lawyer Fort Worth, DWI attorney Dallas County, DWI attorneys Collin County and DWI attorneys Parker County. I am very involved with the community DFW caring DWI lawyer, Texas Tech School of Law foundation and I enjoy using the skills I have developed to give back to the community. She has also appeared numerous times as a legal commentator for CNN, National Fox News, as well as local Dallas/Fort Worth stations on DWI-related stories. She is also a frequent speaker at both national and statewide seminars. She is a prolific trial attorney with a proven trial record. She has tried over 300 cases, with 80% of them being jury trials in her 18-year career. Her success includes everything from .21 breath tests, blood tests to 3 car accident cases just to name a few. Mimi’s cases have also made good case law for the State of Texas. For example, in Tarvin v. State, it was found that weaving within your own lane was not a traffic violation. In Lajoie v. State, the courts determined that the defendant’s request to have his attorney must be suppressed as opposed to used as evidence of guilt. She is the author of Texas DWI Defense: The Law and Practice. She is also the author of three nationally-published articles and four statewide articles. Mimi has twice attended Indiana University’s Borkenstein Course for state toxicologists both on alcohol and drugs. She has also completed the NHTSA SFST Course, SFST Instructor Course and the 12-Step DRE Mini-Course Program. She is also one of the first attorneys in the United States to attend the Axion Labs Gas Chromatography Training. Her minor in college was Geology lending her a comprehensive and disciplined scientific mind when it comes to scientific and mathematical issues such as blood and breath testing. Mimi has won the President’s Heart of a Champion Award presented by the Texas Criminal Defense Lawyers Association (TCDLA) numerous times. Mimi also led the effort to get the State Bar of Texas’ Board of Legal Specialization to recognize the NCDD’s DWI Certification. Mimi has been active in 4 legislative sessions in fighting against bad DWI laws. Her efforts prevented the breath/blood test refusal as being a separate crime. She has advocated for true deferred adjudication for DWI. Mimi also sued a Dalworthington Gardens police officer for illegally drawing blood. Since her lawsuit, the 2nd Court of Appeals ruled against police officers drawing blood. (The Court of Criminal Appeals overturned this). Mimi also sued the Texas Department of Public Safety for its double jeopardy surcharge program. Since the initiation of her suit, Texas DPS has instituted amnesty programs based on one’s earning potential.

If you would like to contact the author, please visit: https://www.mimicoffey.com


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