Background
Jerry John Leshikar pleaded guilty to two counts of retaliation against a public servant. Under the plea bargain, the State dismissed a stalking charge and recommended concurrent five-year sentences that would be suspended while Leshikar served six years of community supervision. The district court followed that recommendation.
The State later moved to revoke Leshikar’s community supervision, alleging, among other things, that he had violated a condition requiring him to commit no new offense. The motion described repeated Facebook posts targeting Brandt Rydell, then a Taylor city official, including sexual comments about Rydell’s wife and daughters, altered family photographs, an image appearing to place crosshairs on Rydell’s forehead, and a post suggesting that Leshikar knew details about Rydell’s vehicle. Rydell testified that the posts alarmed his family and led him to obtain additional police patrols and home-security measures.
The district court found the alleged violations true, revoked community supervision, and imposed the 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 difference between the motions’ allegation that the Facebook conduct occurred “on or about” February 12, 2022, and evidence that the posts occurred 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 date discrepancy did not render the evidence insufficient.
The court held that Leshikar had not preserved his complaint that the motions failed to identify a specific criminal offense or statute because he did not raise that pleading defect in the trial court. It further concluded that the evidence permitted the district court to find, by a preponderance of the evidence, that Leshikar’s repeated Facebook communications violated Texas’s harassment statute and therefore the condition prohibiting new offenses.
Leshikar did not brief whether the communications fell within the statutory exception for matters of public concern, so the majority declined to consider that theory despite the dissent’s reliance on it. Because proof of one community-supervision violation was sufficient to support revocation, the court did not decide whether Leshikar also violated the separate condition barring threatening or harassing contact with law-enforcement personnel.
Key Takeaways
- An “on or about” allegation in a motion to revoke permits proof of conduct occurring on another date while the defendant was on community supervision and before the motion was filed.
- A challenge to the specificity of allegations in a revocation motion must be raised in the trial court; recasting it as an evidentiary-sufficiency argument on appeal does not preserve it.
- Repeated social-media posts, their escalating tone, and their effect on the targeted person may support an inference of intent to harass or torment under Texas Penal Code Section 42.07(a)(8).
- One proven violation, established by a preponderance of the evidence, is enough to sustain revocation of community supervision.
Why It Matters
The decision illustrates the comparatively flexible pleading and proof standards governing Texas community-supervision revocations. A nonmaterial date discrepancy will not defeat revocation where the motion gives fair notice and the evidence places the conduct within the supervision period.
It also underscores the importance of issue preservation and appellate briefing. The majority refused to address both an unpreserved objection to the revocation motion and an unbriefed argument concerning the statutory exception for communications connected to a matter of public concern.