Hector Hato LaBoy v. State
Opinion
ACCEPTED
03-15-00433-CR
7814253
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/13/2015 9:57:44 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00433-CR
FILED IN
3rd COURT OF APPEALS
In the Texas Court of Appeals AUSTIN, TEXAS Third District, at Austin 11/13/2015 9:57:44 AM JEFFREY D. KYLE
Hector Hato Laboy, Clerk
Appellant
v.
The State of Texas,
Appellee
Appeal from the County Court at Law No. 4 of Travis County Cause Number D-1-DC-13-204642
STATE’S BRIEF
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov AppellateTCDA@traviscountytx.gov
Oral argument is not requested
Table of Contents
Index of Authorities............................................................................. ii Summary of the State’s Argument........................................................1 Standard of Review.............................................................................. 3 Argument ............................................................................................. 3 Reply Point One: The evidence is legally sufficient to show that Appellant committed a terroristic threat. ......................................... 3 Reply Point Two: Appellant has not shown ineffective assistance of counsel. ............................................................................................. 5 Prayer ...................................................................................................7 Certificate of Compliance and Service ................................................. 8
i
Index of Authorities
Cases Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006)................... 3 Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003) .................7 Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009) ................ 5, 6 Strickland v. Washington, 466 U.S. 668 (1984) ................................. 5
Statutes Tex. Penal Code § 22.07....................................................................... 3
ii
No. 03-15-00433-CR
In the Texas Court of Appeals Third District, at Austin
Hector Hato Laboy,
Appellant
v.
The State of Texas,
Appellee
Appeal from the County Court at Law No. 4 of Travis County Cause Number D-1-DC-13-204642
STATE’S BRIEF
To the Honorable Third Court of Appeals:
Now comes the State of Texas and files this brief in response to Appellant’s brief.
Summary of the State’s Argument Point One: The motion to revoke probation alleged that Appellant committed a new offense of terroristic threat. Appellant argues that the evidence is legally insufficient to show that he intended to place anyone in fear of imminent serious bodily injury.
Reply: Considering the surrounding circumstances and the lower burden of proof in a revocation hearing, the trial court did not abuse its discretion in finding that Appellant committed the offense of terroristic threat. Additionally, the court’s judgment should be upheld because there are several other independent grounds for revocation.
Point Two: Appellant claims that he received ineffective assistance of counsel because his attorney did not make a hearsay and confrontation clause objection to testimony about a criminal mischief offense alleged in the motion to revoke.
Reply: It is not clear that a hearsay or confrontation clause objection would have been sustained, but in any case, there is no harm because the testimony was cumulative of previously-admitted testimony. There is also no harm because the court had multiple other grounds for revocation. Additionally, trial counsel has not had an opportunity to defend herself. For all of these reasons, Appellant has not shown that counsel was ineffective, and the court’s judgment should be affirmed.
Standard of Review
A trial court’s order revoking probation is reviewed for an abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).
Argument
Reply Point One: The evidence is legally sufficient to show that Appellant committed a terroristic threat.
The State filed a motion to revoke Appellant’s probation, which alleged that Appellant had committed a new offense of terroristic threat (among other things). CR 61. The State had the burden to prove the terroristic threat by a preponderance of the evidence. Rickels, 202 S.W.3d at 763-64.
A person commits the offense of terroristic threat if he threatens to commit any offense involving violence to any person or property with intent to place any person in fear of imminent serious bodily injury. Tex. Penal Code § 22.07.
Appellant does not dispute that he called his ex-girlfriend Cassie and threatened to kill her friend Jakuri, but Appellant argues that the evidence is legally insufficient to show that he intended to place
anyone in fear of imminent serious bodily injury because Appellant made the threat in a single phone call, he did not elaborate, he did not say that he was looking for Jakuri and would kill him when he found him, and Appellant had already left the victims’ house.
Appellant fails to account for the surrounding circumstances: Appellant made the threat on the same night that he slashed Jakuri’s tires. 2RR 15. Appellant made the threat soon after the police stopped and questioned him about the tire slashing, so he knew that Jakuri had called the police, and he knew that he was facing criminal penalties, including possible prison time, for his actions. 2RR 10-12. Appellant was last seen only two blocks away from the victims’ house. 2RR 14. Appellant has a history of violence. 2RR 18; CR 16. And Appellant did not say anything to indicate that the threat was not imminent. To the contrary, the point of the threat was to cause Cassie and Jakuri immediate fear. In fact, Jakuri was afraid for himself and his kids, who were also at the house. 2RR 14.
Considering the circumstances, as well as the lower burden of proof in a revocation hearing, the trial court did not abuse its
discretion in finding that Appellant committed the offense of terroristic threat.
Even assuming, for the sake of argument, that the evidence is insufficient to prove terroristic threat, the court’s order revoking probation should be upheld because only one sufficient ground is needed to uphold the trial court’s order. Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009). In this case, the trial court found that Appellant 1) committed the offense of terroristic threat, 2) committed the offense of criminal mischief, 3) tested positive for cocaine, 4) tested positive for marijuana, and 5) failed to submit a specimen as directed. CR 64. Because there are multiple independent grounds for revoking probation, the court’s order should be upheld.
Reply Point Two: Appellant has not shown ineffective assistance of counsel.
In an ineffective assistance claim, the burden is on the appellant to show by a preponderance of the evidence that (1) counsel's performance was deficient, and (2) there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668 (1984).
Appellant claims that he received ineffective assistance of counsel because his attorney did not make hearsay and confrontation clause objections to Officer Lucas’s testimony that, “I originally started talking to Jakuri and he was -- informed me of the criminal mischief act, and he was showing me the tires.” 2RR 13.
First, it does not appear that a hearsay or confrontation clause objection would have been successful. What is the objectionable out- of-court statement, exactly?
Second, Appellant cannot show that this testimony harmed him because Officer Lucas had already testified that he responded to a criminal mischief call and that he personal observed the victim’s car with all four tires slashed. 2RR 10-12. The complained-of testimony did not add anything to this previously-admitted testimony.
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