Unreported / Non-Citable
Background
Jerry John Leshikar pleaded guilty to two counts of retaliation against a public servant under a plea agreement. The district court imposed concurrent five-year prison terms, suspended the sentences, and placed him on community supervision for six years. The State later moved to revoke his community supervision, alleging, among other things, that he violated a condition requiring him to commit no new offense.
The State alleged that Leshikar repeatedly published threatening or harassing Facebook communications targeting Brandt Rydell, then a Taylor city official, and his family. The evidence included sexually explicit comments about Rydell’s wife and daughters, altered photographs depicting Rydell with demonic imagery and apparent crosshairs, and a post suggesting that Leshikar had inspected Rydell’s vehicle at night. Rydell testified that the posts alarmed his family and led him to request police patrols, restrict his children’s movements, and install additional security.
The district court found the State’s allegations true, revoked community supervision, and imposed the previously suspended five-year sentences. Leshikar appealed, arguing that the evidence did not match the date alleged in the revocation motions and that the State had not adequately alleged or proved a criminal offense.
The Court’s Holding
The Third Court of Appeals affirmed the judgments revoking community supervision nunc pro tunc. It held that the discrepancy between the motions’ allegation that the Facebook conduct occurred “on or about” February 12, 2022, and evidence placing the posts in 2021 was not a material variance. Because the conduct occurred while Leshikar was on community supervision and before the revocation motions were filed, the State was permitted to prove a date different from the one alleged.
The court held that Leshikar failed to preserve his complaint that the motions did not expressly identify a criminal offense or cite a statute because he had not raised that pleading objection in the trial court. It further concluded that the evidence permitted the district court to find by a preponderance of the evidence that Leshikar violated the no-new-offense condition by committing harassment through repeated electronic communications under Texas Penal Code section 42.07(a)(8).
The court declined to decide whether the State proved that the communications were not made in connection with a matter of public concern because Leshikar did not brief that issue. Because proof of one community-supervision violation was sufficient to support revocation, the court did not address whether the evidence also established prohibited contact with Leshikar’s former probation officer.
Key Takeaways
- An “on or about” allegation in a revocation motion permits proof of conduct on another date if the conduct occurred during community supervision and before the motion was filed.
- A defendant must challenge defects in a revocation motion’s allegations in the trial court; reframing an unpreserved notice objection as evidentiary insufficiency does not preserve it for appeal.
- Repeated, targeted social-media posts involving sexual accusations, altered images, apparent threats, and references suggesting surveillance supported an inference of intent to torment and a finding of harassment by a preponderance of the evidence.
- One sufficiently proved violation supports revocation, and an appellate court need not address additional alleged violations.
Why It Matters
The decision illustrates the comparatively flexible pleading rules and lower burden of proof governing community-supervision revocations. The State need prove only one violation by a preponderance of the evidence, and a nonmaterial difference between the alleged and proved dates will not defeat revocation.
It also underscores the importance of preserving pleading objections and briefing every disputed statutory element. Although the dissent questioned whether posts relating to a public official fell within the harassment statute’s exception for communications connected to a matter of public concern, the majority refused to reach that question because Leshikar had not presented it.