No. 05-10-00588-CR
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
AT DALLAS
JOE A. HERNANDEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
On Appeal from the
Criminal District Court Number Two
Dallas County, Texas
Trial No. F09-71588-MI
BRIEF FOR APPELLANT
Attorney for Appellant:
Christian T. Souza
SBN: 00785414
4303 N. Central Expressway
Dallas, Texas 75205
Tel. (214) 862-7462
Fax (214) 696-0867
LIST OF PARTIES
Appellant
Joe A. Hernandez
Attorneys for Appellant
Christian T. Souza
4303 N. Central Expressway
Dallas, Texas 75205
(on appeal)
Davey Lamb
PO Box 596244
Dallas, 75359
(at trial/motion to adjudicate)
Lisa Fox
5201 N. O’Conner Blvd.
Irving, Texas 75039
(at trial/negotiated plea)
Prosecutors
Hershell Woods
Assistant District Attorney
(at trial)
Craig Watkins
District Attorney
(on appeal)
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverside Blvd., LB 19
Dallas, Texas 75207-4399
ii
TABLE OF CONTENTS
INDEX OF
AUTHORITIES………………………………..………….……………………………..………..ii
STATEMENT OF THE
CASE……………………………………...………………………………….......….……………1
ISSUES
PRESENTED...................................................................................................................................1
STATEMENT OF
FACTS.............................................................................................................................................2
SUMMARY OF
ARGUMENT……………………………………………………………………………………...3
ARGUMENT………………………...……………………………………………………………3
POINTS OF ERROR
Point of Error One…………………………………………………………..……..3
The judgment is void because Appellant was denied 10 days to prepare for
the revocation proceedings.
Point of Error Two………………………………………………………………...7
The revocation order is insufficient to satisfy due process because it does
not state which allegation was found to be true.
PRAYER……………………………………………………………………….…………...……9
CERTIFICATE OF
SERVICE……………………………...…………..……………………………………………..10
iii
INDEX OF AUTHORITIES
CASES
Boykin v. Alabama, 395 U.S. 238 (1969)……….………………………………………5-6
Brady v. United States, 397 U.S. 742 (1970)………………………………………..…….5
Claybon v. State, 672 S.W.2d 881 (Tex.Crim.App. 1984)……………………………..4-6
Ex parte Battle, 817 S.W.2d 81 (Tex. Crim. App. 1991)…………………………………5
Garcia v. State, 488 S.W.2d 448 (Tex.Crim.App. 1972)…………………………………7
Johnson v. State, 476 S.W.2d 324 (Tex.Crim.App. 1972)……………………………...7-8
Johnson v. Zerbst, 304 U.S. 458 (1938)……………………………………….………..5-6
Johnson v. Zerbst, 304 U.S. 458 (1938)……………………………………………….… 5
Marin v. State, 891 S.W.2d 267 (Tex.Crim.App. 1994)…………………………………..5
Steward v. State, 422 S.W.2d 733 (Tex.Crim.App. 1968)………………………………...4
STATUTES AND RULES
TEX. R. APP. P. 43.2………………………………………………………………….....6, 8
TEX. CODE CRIM. PROC. art. 1.051(e)…………………………………………………..4-6
TEX. CODE CRIM. PROC. art. 26.04…………………………………….………………..4-5
CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. V…………………………………………………...……………..5-6
U.S. CONST. amend. VI…………………………………………………………………5-6
U.S. CONST. amend. XIV……………………………………………………………….5-6
iv
Joe A. Hernandez respectfully submits this brief in support of his appeal from the
judgment of the Criminal District Court Number Two in Trial No. F09-71588-MI. The trial
judge was the Honorable Don Adams.
STATEMENT OF THE CASE
The indictment alleged that Appellant committed burglary of a habitation, a seconddegree felony punishable by confinement in the penitentiary for two to 20 years and a fine not to
exceed $10,000. (CR: 2; RR2: 2-6).1 TEX. PENAL CODE §§ 12.33, 30.02(a)(1), 30.02(c)(2). On
December 15, 2009, Appellant waived his right to a jury trial and entered a negotiated plea of
guilty. (CR: 15; RR2: 7). The trial court accepted the plea agreement, found that the evidence
substantiated a finding of guilt and placed Appellant on deferred adjudication community
supervision for 10 years. (CR: 18; RR2: 6-8; RR3: 4-5). On March 15, 2010, the State filed a
Motion to Revoke Probation or Proceed to Adjudication of Guilt. (CR: 24). The State amended
its revocation motion on April 29, 2010. (CR: 30-31). On May 7, 2010, the trial court granted
the State’s motion and sentenced Appellant to confinement in the penitentiary for 15 years. (CR:
26, 28; RR4: 37). Appellant filed his Notice of Appeal on May 11, 2010. (CR: 34). On May 17,
2010, Appellant filed a Motion for New Trial that was denied by operation of law. (CR: 35-37).
ISSUES PRESENTED
Point of Error One
The judgment is void because Appellant was denied 10 days to prepare for the revocation
proceedings.
Point of Error Two
The revocation order is insufficient to satisfy due process because it does not state which
allegation was found to be true.
1
The three volumes of Reporter’s Record of the plea proceedings are cited as RR1 through RR3. The volume of
Reporter’s Record of the proceedings on the Motion to Proceed to Adjudication of Guilt is cited as RR4.
STATEMENT OF FACTS
Appellant was released from jail after the trial court accepted Appellant’s plea bargain
with the State on January 28, 2010. (RR3: 5; RR4: 26). Appellant was placed on deferred
adjudication community supervision on the basis that he committed a burglary of a residence at
720 Skillman Street in Dallas on December 2, 2008. (RR2: 7-8; RR3: 4-5; RR4: 9). As a
condition of probation, Appellant was ordered to remain more than 1,000 feet away from 720
Skillman Street, where he apparently formerly lived with the complainant. (CR: 18-22; RR3: 35; RR4: 8). Appellant was arrested near 720 Skillman Street on April 26, 2010. (RR4: 17-22).
The State filed its original Motion to Revoke Probation or Proceed to Adjudication of
Guilt on March 15, 2010, prior to Appellant’s arrest. (CR: 24). The State amended the revocation
motion on April 29, 2010, after Appellant was arrested. (CR: 30). The amended revocation
motion alleged that Appellant violated the conditions of his supervision on or after January 28,
2010 by failing (1) to report to begin community supervision on February 5, 2010 (condition T)
and (2) to remain more than 1,000 feet from 720 Skillman Street (condition S). (CR: 30-31).
Appellant pleaded true to the allegation that he never reported for supervision. (CR: 2627; RR4: 4-6). Appellant explained that he moved immediately to Seagoville when he was
released from jail and did not have transportation back to Dallas. (RR4: 25-26). Moreover,
Appellant suffered from “full blown” AIDS. (RR3: 5; RR4: 28-29).
Appellant contested whether he violated the stay away order, as alleged in the revocation
motion. (CR: 30-31; RR4: 4-5). Appellant explained that he went to Seagoville when he was
released from jail in late January of 2010 and stayed there until April 15, 2010, a few days before
he was arrested. (RR4: 25-27). Appellant would have been in jail or in Seagoville in late January
or early February of 2010, when Thelma Gonzalez, a resident at 728 Skillman Street, thought she
2
saw Appellant within 1,000 feet of 720 Skillman. (RR4: 9-10). In addition, Gonzalez, who called
the police in March of 2010, would not be able to identify Appellant to the police, because she
was not personally acquainted with Appellant, nor did Gonzalez measure the distance between
the person who she thought was Appellant and 720 Skillman Street. (RR4: 8-16). The officer
who arrested Appellant “two streets over” at 800 Glendale Street estimated the distance as within
300 or 400 feet of 720 Skillman Street, but the officer did not measure the distance, despite
questions about the variance in the block numbers due to the angle of the streets. (RR4: 19-23).
Appellant estimated that the distance between 800 Glendale Street and 720 Skillman Street was
more than 1,000 feet. (RR4: 30-31). Appellant was not worried about walking on the sidewalk at
800 Glendale Street because he believed that he was at least 1,000 feet from 720 Skillman Street.
(RR4: 31).
SUMMARY OF ARGUMENT
Appellant is entitled to a new revocation proceeding because Appellant was not given 10
days to prepare with counsel and the trial court failed to specify the basis for the revocation in
either the judgment or in verbal findings.
ARGUMENT
Point of Error One
The judgment is void because Appellant was denied 10 days to prepare for the revocation
proceedings.
Appellant was entitled to have 10 days to prepare with counsel to contest the allegation
that he violated the stay away order. The judgment is void because Appellant was given at least
two days less than ten days and there was no operative waiver.
3
Additional Facts
Appellant was arrested on April 26, 2010. (RR4: 18). Counsel was appointed on April
28, 2010. (CR: Supp.).2 The State amended its Motion to Revoke Probation or Proceed to an
Adjudication of guilt on April 29, 2010. (CR: 30). The proceedings on the revocation motion
were conducted on May 7, 2010, which was the ninth day after the appointment of counsel.3
(CR: 28; RR4: 10).
At the revocation hearing, Appellant admitted that he failed to report (condition T), but
contested whether he violated the conditions of his supervision by failing to remain within 1,000
feet from 720 Skillman Street (condition S). (CR: 30-31; RR4: 3-6). The trial court found that
Appellant’s pleas were voluntary, adjudicated guilt and sentenced Appellant to confinement for
15 years. (CR: 28-29; RR4: 37).
During the revocation hearing, the parties did not address Appellant’s right to have 10
days to prepare for the revocation proceeding with counsel. (RR4: 4-5). The trial court
referenced unspecified “paperwork” that was signed by Appellant. (CR: 26-27; RR4: 4-5). A
written “Plea Agreement” included language that “if you have a court-appointed attorney, you
have ten days from the date of the attorney’s appointment to prepare for the hearing” and that a
Appellant waived “my right to ten days to prepare for trial after the appointment of counsel.”
(CR: 26).
2
The Supplemental Clerk’s Record contains a document entitled “Appointment of Counsel for Indigent Defendant.”
(CR: Supp.). The trial court signed the order on April 28, 2010. (CR: Supp.). The trial court appointed Attorney
Davey Lamb. (CR: Supp.)
3
Beginning to count on April 29, 2010, the tenth day after the appointment of counsel was Saturday, May 8, 2010
(April 29, April 30, May 1, May 2, May 3, May 4, May 5, May 6, May 7 and May 8 of 2010). The first day after the
completion of 10 calendar days after the date of appointment of counsel was Sunday, May 9, 2010.
4
10-Day Rule
Under Article 1.051(e) of the Texas Code of Criminal Procedure, a defendant is entitled
to have appointed counsel for 10 days to prepare for trial. TEX. CODE CRIM. PROC. art. 1.051(e)
(eff. Sept. 1, 1987) (formerly contained in TEX. CODE CRIM. PROC. art. 26.04). The provisions
Article 1.05(e) are mandatory; failure to comply constitutes reversible error. Claybon v. State,
672 S.W.2d 881, 882 (Tex.Crim.App. 1984); Steward v. State, 422 S.W.2d 733, 737
(Tex.Crim.App. 1968).
The actual preparation time, not the time between formal appointment and trial,
determines whether a defendant has been given the mandatory preparation time for trial provided
by the statute. TEX. CODE CRIM. PROC. art. 1.051(e); Marin v. State, 891 S.W.2d 267, 272
(Tex.Crim.App. 1994).
In computing the period of days, the first day is excluded and the last day is included in
toto. TEX. CODE CRIM. PROC. art. 1.051(e); Claybon, 672 S.W.2d at 882.
Moreover, time limits pertaining to the duties of appointed counsel appear to run only on
“working days.” See TEX. CODE CRIM. PROC. art. 26.04(j)(1) (requiring that defense counsel
“make every reasonable effort to contact the defendant not later than the end of the first working
day after the date on which the attorney is appointed and to interview the defendant as soon as
practicable.)”
An appointed counsel may waive the preparation time with the consent of the defendant
in writing or on the record in open court. TEX. CODE CRIM. PROC. art. 1.051(e). To satisfy due
process requirements, a defendant who waives his right to have 10 days to prepare with counsel
must do so with a full understanding of the relevant circumstances and likely consequences.
Brady v. United States, 397 U.S. 742, 748 (1970); Ex parte Battle, 817 S.W.2d 81, 83 (Tex.
5
Crim. App. 1991). A waiver must be “intelligent and voluntary” and constitute an “intentional
relinquishment” of a known right or privilege. U.S. CONST. amends. V, VI, XIV; Johnson v.
Zerbst, 304 U.S. 458, 464 (1938). A waiver cannot be presumed from a silent record. Boykin,
395 U.S. at 242-43.
At Least Three Days Too Early
Assuming in the State’s favor that trial counsel began to meet with Appellant on the day
when trial counsel was appointed, i.e., by the end of the 28th of April of 2010, and that counsel
knew at the time of his appointment that the revocation motion would be amended to include an
allegation that Appellant violated the stay away order, the revocation proceeding should not have
been conducted until May 9, 2010, a Sunday. TEX. CODE CRIM. PROC. arts. 1.051(e), 26.04(j)(1);
Claybon, 672 S.W.2d at 882; Marin, 891 S.W.2d at 272. See footnote three, supra, at p. 4.
Because May 9, 2010 was a Sunday, the revocation proceeding could not have been properly
conducted until May 10, 2010. TEX. CODE CRIM. PROC. arts. 1.051(e). See footnote three, supra,
at p. 4.
It may not be assumed, however, that Appellant’s putative waiver of his right to prepare
with counsel for ten days was waived when: (1) there was no specific verbal consideration of the
putative waiver; (2) Appellant pleaded true to one of the allegations, his failure to report, which
rendered the waiver inapplicable in part; (3) the language of the written plea agreement does not
reflect the date when trial counsel actually began to work with Appellant, meaning that there is
no showing that Appellant was aware of how many days remained; (4) Appellant would have
wanted for trial counsel to have time to measure the distance involved in the alleged violation of
the stay away order; Appellant may have simply believed that, because he was arrested two days
before counsel was appointed, Appellant was out of time and had no choice but to go forward;
6
and (5) the trial court may have imposed less severe punishment had it found that Appellant
violated only his duty to report, which Appellant conceded, and might have considered
Appellant’s medical condition of “full blown” AIDS as a basis for continuing community
supervision. (RR3: 5; RR4: 28). The record thus does not establish a knowing and intelligent
waiver of Appellant’s right to have 10 days to work with counsel. U.S. CONST. amends. V, VI,
XIV; Boykin v. Alabama, 395 U.S. 238, 242-243 (1969); Johnson, 304 U.S. at 464.
For the reasons shown, the judgment of the trial court is void, and this Court should
sustain Point of Error One, reverse the judgment and remand for new revocation proceedings.
TEX. R. APP. P. 43.2.
Point of Error Two
The revocation order is insufficient to satisfy due process because it does not state which
allegation was found to be true.
Appellant has a due process right to know the basis for the decision against him. The trial
court made a docket entry that Appellant violated both conditions in question but did not inform
Appellant.
Additional Facts
The trial court considered two grounds for revocation: (1) whether Appellant failed to
report for orientation (condition T) and (2) whether Appellant failed to remain within 1,000 feet
from 720 Skillman Street (condition S). (CR: 30-31; RR4: 3-6). Appellant admitted that he
failed to report yet hotly contested whether he violated the stay away order. (RR4: 7-34). The
trial court made a docket entry that Appellant violated both conditions, but did not state those
findings in court or enter the findings in the written judgment. (CR: 5). The record does not
indicate that Appellant was ever advised or asked about the basis for the revocation. (RR4: 3537). Appellant may have believed that, due to the trial court’s awareness of Appellant’s medical
7
condition of “full blow” AIDS, the trial court may have showed mercy by declining to find that
Appellant failed to report. (RRR3: 5; RR4: 28-29).
Due Process Right to Know Basis of Revocation
A probationer is entitled to know why his probation is being revoked as a matter of due
process. Garcia v. State, 488 S.W.2d 448, 449 (Tex.Crim.App. 1972). An order revoking
probation can be held to be sufficient despite the omission of the grounds for the revocation only
when the grounds should be clear and the defendant did not request clarification. See Johnson v.
State, 476 S.W.2d 324, 325 (Tex.Crim.App. 1972) (rejecting a claim that the judgment was
insufficient when “there was only one condition alleged to be violated.”) The best practice is to
require findings to be made in “every case.” Garcia, 488 S.W.2d at 449.
Appellant could only speculate about the basis for the revocation of his community
supervision. Appellant submitted that the evidence failed to establish that he violated the stay
away order and hoped that his medical condition provided a basis for the trial court to decline to
find that he failed to report, despite Appellant’s concession. Johnson, 476 S.W.2d at 325.
Appellant is entitled to relief under the circumstances that are “particular” to his case. McDonald
v. State, 608 S.W.2d 192, 194 n.9 (Tex.Crim.App. 1980).
For the reasons shown, the judgment of the trial court is insufficient, and this Court
should sustain Point of Error Two, reverse the judgment and remand for new revocation
proceedings. TEX. R. APP. P. 43.2.
8
PRAYER
For the reasons shown, Appellant prays that this Honorable Court will sustain
Appellant’s Points of Error One and Two, reverse the judgment of the trial court and remand for
a new revocation proceedings. Appellant prays for such further and other relief to which he may
be justly entitled.
Respectfully submitted,
_______________________________
Christian T. Souza
SBN: 00785414
4303 N. Central Expressway
Dallas, Texas 75205
Tel. (214) 862-7462
Fax (214) 696-0867
Attorney for Appellant
9
CERTIFICATE OF SERVICE
A copy of this brief has been mailed to the Dallas County Criminal District Attorney’s
Office, Appellate Division, at 133 N. Riverside Blvd., Dallas, Texas 75207 or has been placed in
the receiving box of the District Attorney at the Clerk’s Office of the Fifth Court of Appeals on
or before January 10, 2010.
_______________________________
Christian T. Souza
10