PD-0881-15
No. ______________________
IN THE COURT OF CRIMINAL APPEALS OF TEXAS SITTING AT AUSTIN, TEXAS _______________________________________________
RICHARD SCOTT CRAWFORD, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE _______________________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _______________________________________________
FROM THE SEVENTH COURT OF APPEALS, SITTING AT AMARILLO HONORABLE BRIAN QUINN, CHIEF JUSTICE, PRESIDING (UNPUBLISHED OPINION BY CHIEF JUSTICE QUINN) (SEVENTH COURT OF APPEALS NO. 07-13-00108-CR) (LUBBOCK COUNTY TRIAL COURT NO. 2004-407,817) _______________________________________________
RODERIQUE S. HOBSON, JR. State Bar No. 09744900 816 Main Street Lubbock, Texas 79410 Tel: 806/762-6030 Fax: 806/763-3220
Attorney for Appellant
July 15, 2015
ORAL ARGUMENT REQUESTED July 17, 2015 1 TABLE OF CONTENTS
Table of Contents ...................................................................................................... 2
Index of Authorities ................................................................................................... 3
Statement Regarding Oral Argument ........................................................................ 4
Statement of the Case ................................................................................................ 4
Statement of Procedural History ............................................................................... 5
Sole Question Presented for Review
Did the Court of Appeals err when it affirmed the trial court’s arbitrary and capricious revocation of Appellant’s probation where the State failed to prove any violations that occurred after the trial court previously exercised its discretion to allow Appellant to continue on probation? ............................................................... 6
Reasons for Granting Review .................................................................................... 6
Argument and Authorities ......................................................................................... 8
Prayer for Relief ...................................................................................................... 15
Certificate of Service ............................................................................................... 16
Certificate of Compliance........................................................................................ 16
Appendix A (Court of Appeals Slip Opinion) ............................................................i
Appendix B (Appellant’s Motion for Rehearing) .................................................... ii
2 INDEX OF AUTHORITIES
CASES PAGE
Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008) ........................................ 14
Lisenba v. Calfiornia, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941) ............... 12
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ............................. 14
Rogers v. State, 640 S.W.2d 248 (Tex. Crim. App. 1982) ...................................... 10
Webb v. State, 161 Tex. Crim. 442, 278 S.W.2d 158 (1955) .................................. 12
Wester v. State, 542 S.W.2d 403 (Tex. Crim. App. 1976) ................................ 11, 12
CONSTITUTIONAL AMENDMENTS, STATUTES AND RULES
U.S. CONST. Amend. 5......................................................................................... 8, 14
U.S. CONST. Amend. 14....................................................................................... 8, 14
Texas Penal Code §§ 22.02 ....................................................................................... 4
Tex. R. App. P. 66.3 .................................................................................................. 7
Tex. R. App. P. 68.2 .................................................................................................. 6
3 STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument because the issues presented herein can
best be addressed in a question-and-answer format at oral argument. Appellant
attempted to fully explain the main issue in this Petition while keeping it as brief as
possible, but it could be further clarified during oral argument.
STATEMENT OF THE CASE
On December 21, 2004, Appellant was charged via a two-count indictment
with committing the second degree felony offense of aggravated assault on or
about November 11, 2004, in violation of Texas Penal Code §§ 22.02(a) (1) and
(2) (Vernon 2003) (CR 5). On March 17, 2005 the defendant pleaded guilty to the
charge and was placed on deferred adjudication probation for a term of 10 years.
(CR 18). In 2012 the State filed a motion to proceed with adjudication of guilt
containing several allegations that were the subject of previous attempts to revoke
Appellant’s probation in a motion to proceed with adjudication of guilt that was
dismissed in 2011. The trial court revoked Appellant’s probation based upon the
2011 allegations and sentenced Appellant to eight years imprisonment.
Prior to the revocation hearing the Defense objected to the use of previously
alleged-and-resolved violations of the Appellant’s probation in the current hearing
as a violation of Appellant’s right to due process of law. This is because if no new
4 violations occurred (or were even alleged) after the 2011 motion to proceed was
dismissed, then essentially the trial court reversed its own discretion to continue
Appellant on probation in a completely arbitrary and capricious manner.
STATEMENT OF PROCEDURAL HISTORY
On May 7, 2014, the Seventh Court of Appeals issued an unpublished per
opinion and judgment affirming the Appellant’s probation revocation in the trial
court and overruling his sole appellate issue. (See, Appendix - Court of Appeals’
slip opinion at 3).1 On May 22, 2014, Appellant filed a Motion for Rehearing
contesting the intermediate court’s determination that the trial court did not abuse
its discretion in revoking Appellant’s probation. (See, Appendix – Motion for
Rehearing). On May 30, 2014, the court denied Appellant’s Motion for Rehearing
without issuing a further opinion.
However, Appellant’s counsel failed to timely inform Appellant of his right
to seek discretionary review following the intermediate court’s mandate. Appellant
filed a Writ of Habeas Corpus claiming that counsel’s failure to inform him of his
right to seek review constituted ineffective assistance of counsel. On May 20,
2015, this Court issued an opinion granting Appellant’s Writ of Habeas Corpus and
1 Crawford v. State, No. 07-13-00108-CR, 2013 Tex. Ap. LEXIS 13146 (Tex. App. – Amarillo October 22, 2013) (not designated for publication). 5 issued a mandate on June 15, 2015.2
This Petition for Discretionary Review is timely filed since it is being filed
within thirty days of the mandate granting Appellant’s Writ of Habeas Corpus.3
ISSUE ONE: Did the Court of Appeals err when it affirmed the trial court’s arbitrary and capricious revocation of Appellant’s probation where the State failed to prove any violations that occurred after the trial court previously exercised its discretion to allow Appellant to continue on probation?
REASONS FOR GRANTING REVIEW
The ruling by the Seventh Court of Appeals sanctioned an arbitrary and
capricious decision by the trial court to revoke Appellant’s probation where the
trial court previously exercised its discretion not to revoke Appellant’s probation
when the same allegations were brought before it. In other words, the trial court
reversed its own decision approximately eighteen months later based upon
absolutely no evidence of additional violations of Appellant’s probation. The
intermediate court focused on the procedural circumstances surrounding the
exercise of the trial court’s discretion instead of the fact that once that discretion
has been exercised, it is a denial of due process of law to suddenly reverse course
2 Ex parte Crawford, No. WR-64,596-03 (Tex. Crim. App. June 15, 2015). 3 See Tex. R. App. P. 68.2 (Vernon 2013). 6 without proof of any new violations. This creates the risk for absurd results and a
lack of repose for any person who is allowed to continue on community
supervision after a motion to revoke supervision is dismissed.
Thus, this is an important question of constitutional law that must be settled
by this Court4. Furthermore, by allowing a trial court to reverse itself without the
presentation of new evidence the Seventh Court of Appeals so far departed from
accepted and well-settled tenets of fundamental fairness and due process as to call
for an exercise of this Court’s discretion.5
4 See, Tex. R. App. P. 66.3(b). 5 See, Tex. R. App. P. 66.3(f). 7 ARGUMENT AND AUTHORITIES
Appellant’s argument to the intermediate court was premised upon a denial
of substantive due process of law in violation of the Fifth and Fourteenth
Amendments to the United States Constitution. On October 12, 2012 the State of
Texas filed a Motion to Proceed with Adjudication of Guilt alleging that Appellant
violated his probation by committing the class B misdemeanor offense of
harassment on or about September 9, 2012 in Haskell County, Texas. (CR 24). The
Order for Capias to Issue that was signed by the trial court stated, “the Court
further takes judicial knowledge of all documents, orders, the judgment and other
matters in this above entitled and numbered cause, the same having been heard
and duly considered, the Court is of the opinion that the facts and information set
out in the said Motion to Proceed with Adjudication of Guilt are sufficient to
establish probable cause for the issuance of said capias.” (CR 25) (emphasis added
in bold).
On October 31, 2012 the State filed its First Amended Motion to Proceed
with Adjudication of Guilt in which it added several allegations of other violations
of Appellant’s probation. (CR 30-31). On November 19, 2012 the State filed its
Second Amended Motion to Proceed with Adjudication of Guilt in which it alleged
even more violations of Appellant’s probation. (CR 35-36).
8 Several of the allegations in the first and second amended motions to
proceed with adjudication of guilt were previously the subject of earlier attempts to
revoke Appellant’s probation. (RR vol. 4, p. 158). In fact, a February 3, 2011
Motion to Proceed with Adjudication of Guilt that was essentially incorporated by
reference into the State’s 2012 motions contained the only violations that the trial
court found to be “true” and upon which it based its revocation decision. (RR vol.
4, pp. 158-159). However, the 2011 motion to proceed was dismissed by order of
the trial court on July 21, 2011. (RR vol. 4, p. 142). The trial court’s order stated:
On this the 21st day of July, A.D. 2011, came on to be heard the Motion of the Assistant Criminal District Attorney of Lubbock County, Texas, to set aside the Motion to Proceed with Adjudication of Guilt heretofore filed in this cause, and it being the opinion of the Court that there is sufficient grounds for setting same aside; therefore, IT IS ORDERED, ADJUDGED AND DECREED that the Motion to Proceed with Adjudication of Guilt in this cause, heretofore filed, to-wit: on February 3, 2011, be and is hereby set aside and is held for naught. IT IS FURTHER ORDERED that the Defendant forthwith be discharged from custody hereunder. The Probation is to remain in full force and effect. (RR vol. 4, p. 142) (emphasis added in bold).
Prior to the November 20, 2012 probation revocation hearing, Appellant’s
counsel argued to the trial court that the allegations that were previously disposed
of by the July 21, 2011 dismissal were not properly before the court. (RR vol. 2,
9 pp. 9-15). Appellant’s counsel quoted this Court’s language from Rogers v. State6
that “It would be the epitome of arbitrariness for a Court to first conduct a hearing
on the alleged violations and to exercise its discretion to return the probationer to
probation, whether by a continuance of the hearing, or by a continuance of the
probation, and then decide several months later to exercise its discretion in the
opposite fashion by revoking the probation without a determination of a new
violation.” (RR vol. 2, p. 12).
The Seventh Court of Appeals ignored the fact that the trial court had
exercised its discretion once before on these alleged violations and instead focused
on the procedural aspects of whether a formal hearing took place. 7 The
intermediate court also disregarded the plain language of the trial court’s written
proclamations contained within the Order for Capias to Issue that it took judicial
notice of the entire file and “heard and duly considered” the facts and evidence set
forth in the State’s Motion to Proceed with Adjudication, and that on July 21,
2011the trial court “heard” the Motion to Dismiss with a footnote stating, “That
verbiage appears to be boilerplate incorporated by the party who drafted and
submitted the order to the trial court. Though it alludes to a prior hearing, the trial
6 640 S.W.2d 248, 252 (Tex. Crim. App. 1982) 7 Op. at 2, “But outside the scope of that prohibition are situations wherein no plea was made to, hearing held on, or evidence received on the prior motion [to revoke probation].” 10 court iterated at the hearing on the 2012 motion that it ‘did not have a hearing, the
evidence regarding the allegations in the [2011] Motion to Proceed to
Adjudicate.”8
Even if the above-referenced orders signed by the trial court contain
“boilerplate” language, the trial court would still have to make certain findings
based upon some evidence in order to sign them. If what the intermediate court is
saying is true, then the role of a trial court in issuing warrants and dismissing
motions to revoke probation is nothing more than that of an inanimate rubber
stamp unless there happens to be a formal hearing.9
This Court previously rejected this purely ministerial characterization in
Wester v. State10 in which the Court held that “when a revocation proceeding has
been had and the defendant continued on probation in the discretion of the court
(although there was an adequate basis for revocation demonstrated at the hearing),
the continuation cannot subsequently be arbitrarily withdrawn at the whim of the
trial court or upon mere fact of an arrest. To hold otherwise would violate due
8 Op. at 3, n. 1. 9 See Appellant’s Motion for Rehearing for further examples of where the trial court actively participated in the decision to file each previous Motion to Proceed with Adjudication of Guilt and all of the evidence that the trial court heard and considered outside of a formal courtroom hearing. 10 542 S.W.2d 403 (Tex. Crim. App. 1976). 11 process, due course of law of the land and fundamental fairness.”11
Wester is particularly compelling in the case before the Court since the
initial hearing in that case merely consisted of the defendant entering a plea of
“true” to one of the allegations in the motion to revoke probation.12 Once Wester
entered his plea the trial court merely followed the State’s recommendation to
allow him to continue on probation and no other evidence to support the violations
was ever presented.13 Thus, in the context of what is fundamentally fair for the
purposes of substantive due process, the deciding factor should simply be whether
the trial court previously exercised its discretion to continue, modify, or revoke
probation, and not on the procedural aspects surrounding the exercise of the court’s
discretion.
The denial of due process is the result of the failure to observe the
fundamental fairness that is essential to the very concept of justice.14 While “due
process” remains a malleable concept, it has always required that an accused in a
criminal case be accorded the fundamental fairness necessary to the due
administration of justice.15
11 Id. at 406. 12 Id. at 404. 13 Id. 14 Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941). 15 Webb v. State, 161 Tex. Crim. 442, 278 S.W.2d 158, 160 (1955). 12 In this case, the State of Texas suspected that Appellant had committed the
misdemeanor criminal offense of harassment and filed a motion to proceed with
adjudication of guilt with the harassment claim as the lone alleged violation. (CR
24). At some point prior to the hearing on the State’s motion, the State began to
doubt its ability to prove that violation actually occurred, and then during the
hearing the State abandoned it completely. (RR vol. 2, p. 165). As a result, the
foundation of the entire proceeding vanished from underneath it and the State was
left with claims that had already been presented to the trial court in a previous
motion proceed and upon which the trial court had already exercised its discretion
by allowing Appellant to continue on his probation when it signed and approved
the July 21, 2011 Order to Dismiss Motion to Proceed with Adjudication of Guilt.
(RR vol. 4, p. 142).
The inescapable fact is that nothing changed between the July 21, 2011 and
February 27, 2013 when the trial court signed the judgment revoking Appellant’s
probation and sentenced him to serve time in the penitentiary. As such, if no new
provable violation occurred then how can it possibly be fair for Appellant to have
his probation revoked a year and a half later?
The ruling of the trial court and the subsequent affirmation by the
intermediate court creates a situation where a probationer can be accused of
13 violating his probation during Year One of a ten-year probation. Then, if that
motion to proceed with adjudication of guilt is subsequently dismissed and no
other violations are even alleged to occur during the remainder of his probation, he
can still be revoked and sentenced to the penitentiary on the last day of
probationary term. That leads to an absurd result that violates all rational notions of
fundamental fairness.
The bottom line is that on February 27, 2013 the trial court acted arbitrarily
and capriciously by reversing its July 21, 2001 decision to continue Appellant on
his probation without finding any credible evidence that any new violations had
occurred. 16 Therefore, Appellant’s right to substantive due process of law as
guaranteed by the Fifth and Fourteenth Amendments to the United States
Constitution was violated and the trial court’s order should be reversed by this
Court.
16 See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (holding that a trial court abuses its discretion when it acts without reference to any guiding rules and principles, or it acts in an arbitrary or capricious manner); see also Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008). 14 PRAYER FOR RELIEF
For the reasons set out above, Appellant respectfully prays that this
Honorable Court grant this Petition for Discretionary Review, and upon
considering the merits of Appellant’s claim reverse the order of the trial court and
allow Appellant to complete his probation.
Respectfully submitted,
RODERIQUE S. HOBSON, JR. 816 Main Street Lubbock, Texas 79410 Tel: 806/762-6030 Fax: 806/763-3220
BY: /s/ Roderique S. Hobson, Jr. RODERIQUE S. HOBSON JR. SBN 09744900 Attorney for Richard Scott Crawford
15 CERTIFICATE OF SERVICE
Service of the foregoing Brief for Appellant was made on July 15, 2015 by sending a copy via electronic mail to Jeff Ford of the Lubbock Criminal District Attorney’s Office at jford@lubbockcda.com.
/s/ Roderique S. Hobson, Jr. RODERIQUE S. HOBSON, JR. Attorney for Appellant
CERTIFICATE OF COMPLIANCE
This is to certify that this document was prepared with Microsoft Word in
14 point font, and that, according to that program’s word count function, this
document contains 2,899 words (counting all parts of the document).
/s/ Roderique S. Hobson, Jr. RODERIQUE S. HOBSON, JR., Attorney for Appellant
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Envelope 6077866 Case Information Location Court Of Criminal Appeals Date Filed 07/15/2015 02:00:27 PM Case Number Case Description Assigned to Judge Attorney Roderique HobsonJr Firm Name Law Office of Rod Robson Filed By Cindy Tapia Filer Type Not Applicable Fees Convenience Fee $0.00 Total Court Case Fees $0.00 Total Court Filing Fees $0.00 Total Court Service Fees $0.00 Total Filing & Service Fees $0.00 Total Service Tax Fees $0.00 Total Provider Service Fees $0.00 Total Provider Tax Fees $0.00 Grand Total $0.00 Payment Account Name Rod's New Card Transaction Amount $0.00 Transaction Response Transaction ID 9970868 Order # 006077866-1
Petition for Discretionary Review Filing Type EFile Filing Code Petition for Discretionary Review Filing Description Appellant's Petition for Discretionary Review Reference Number Comments jford@lubbockcda.com, rho9948907@aol.com, Courtesy Copies kres31@yahoo.com Status Rejected Fees Court Fee $0.00 Service Fee $0.00 Rejection Information Rejection Time Rejection Comment Reason
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=9066cb4a-e5b5-4a3c-90ee-2cac955385a6[7/17/2015 1:37:17 PM] Envelope Details
07/17/2015 The petition for discretionary review does not contain the identity of Judge, Parties Other 01:33:47 and Counsel [Rule 68.4(a)]. You have ten days to tender a corrected petition for PM discretionary review. Documents Lead Document (Crawford, Scott) PDR .pdf [Original] Attachments appendix 1059309.pdf [Original] Attachments appendix2.pdf [Original]
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