Revocation or Revoke Probation
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Right to an Attorney:
A defendant has a right to counsel at a hearing on a revocation proceeding unless affirmatively waived. CCP Art. 42.12 §21(d); Lugaro v. State, 904 S.W.2d 842 (Tex.App. -- Corpus Christi 1995, no pet.).
Burden of Proof at Revocation:
The burden of proof in a revocation hearing is on the state to prove the allegations in the petition by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871 (Tex.Cr.App. 1993).
The evidence is sufficient when the greater weight of credible evidence before the court creates a reasonable belief that the probation condition was violated. Evans v. State, 728 S. W.2d 452 (Tex.App. -- Fort Worth, 1987, no pet.). The state must prove each element of the petition by this standard. Moore v. State, 11 S.W.3d 495 (Tex.App.--Houston [14th Dist.] 2000, no pet.).
Sentencing after Revocation:
Following revocation of the community supervision the judge may sentence the defendant to any term within the term of years probated on a straight community supervision or to any term within the statutory range of punishment for a deferred adjudication community supervision. Art. 42.12 §23(a).
A probation officer has no authority to bind the state by his recommendation as to the resolution of a revocation matter; so that the defendant has no right to withdraw his plea of true if the recommendation is not followed by the court. Lanum v. State, 952 S.W.2d 36 (Tex. App. -- San Antonio 1997, no pet.). The defendant is not entitled to credit against his sentence for the time he has spent on probation. Art. 42.12 §23(b).