ACCEPTED 01-14-00832-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 1/22/2015 7:55:37 PM CHRISTOPHER PRINE CLERK
NO. 011400832CR
IN THE FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 1/22/2015 7:55:37 PM COURT OF APPEALS CHRISTOPHER A. PRINE FOR THE Clerk
FIRST DISTRICT OF TEXAS AT HOUSTON ___________________________________________________
JOSEPH DARYL MATHIS Appellant v. THE STATE OF TEXAS Appellee ____________________________________________________
APPEAL IN CAUSE NO. 1173963 in the 183rd District Court of Harris County, Texas _____________________________________________________
APPELLANT’S BRIEF _____________________________________________________
JUAN M. CONTRERAS, JR. 102 S. LOCKWOOD HOUSTON, TEXAS 77011 (713) 9264604 FAX : 713/ 9260373 ATTORNEY FOR APPELLANT lsprof4@aol.com
ORAL ARGUMENT WAIVED
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Tex.R.App.P. 75, Appellant waives oral argument since the facts and legal arguments are presented adequately in the record and briefs, and the decisional process would not be aided significantly by oral argument.
IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 74(a), a complete list of the names of all interested parties is provided below so that members of the Honorable Court may at once determine whether they are disqualified to serve or should recuse themselves from participating in the decision of the case.
Counsel for State: JOSEPH MATTHEW SANCHEZ Appellant or criminal defendant: JOSEPH DARYL MATHIS Counsel at trial: ENRIQUE C. RAMIREZ Counsel on appeal: JUAN M. CONTRERAS, JR. Trial Judge: VANESSA VELASQUEZ
TABLE OF CONTENTS
PAGE
IDENTIFICATION OF THE PARTIES…………………………… 3
TABLE OF CONTENTS …………………………………....……. 4
INDEX OF AUTHORITIES ………………………………………. 5
PRELIMINARY STATEMENT ……..……………….……………. 6
STATEMENT OF FACTS …..…………………………….………. 7
POINT OF ERROR NUMBER ONE …………………………….... 8
ARGUMENT ………………………………………………………. 8
CONCLUSION AND PRAYER FOR RELIEF …………………… 11
CERTIFICATE OF SERVICE …………………………………..... 12
INDEX OF AUTHORITIES
Cases Page
State
Bigley v. State, 865 S.W.2d 26 (Tex.Crim.App. 1993).................. 10
Campos v. State, 927 S.W.2d 232 (Tex.App.Waco 1996)............ 10
Creeks v. State, 807 S.W.2d 853 (Tex.App.Dallas 1991)............. 10
French v. State, 830 S.W.2d 607 (Tex.Crim.App, 1992)............... 10
Statutes
TEX.R.APP. P. 80………………………………………………… 10
TO THE HONORABLE COURT OF APPEALS:
PRELIMINARY STATEMENT
Appellant was charged by indictment with Aggravated Assault Public
Servant. (CR 13). Appellant pled “Guilty” to the indictment and the trial court
deferred entering a finding of guilt and placed Appellant on community
supervision for a term of five years. (CR 66). Prior to the end of the probationary
term, the State moved to adjudicate Appellant’s guilt. (CR 83, 92, 97, 101).
Appellant plead “Not True” to the allegations contained in the State’s
motion. (CR 144). Following a hearing, the trial court revoked Appellant’s
community supervision, found him guilty of Aggravated Assault Public Servant
and assessed his punishment at 7 years confinement in the Texas Department of
Criminal Justice Institutional Division. (CR 113; 2 RR 53). It is from this
conviction that he appeals as an indigent. (CR 133). Appellant timely filed
written Notice of Appeal. (CR 120).
6 STATEMENT OF FACTS
Susan Taylor was the supervision officer for Appellant. (2 RR 8).
Appellant was placed on deferred adjudication on August 6, 2010 for 5 years. (2
RR 89). There were amendments to the conditions waiving fees and adding jail
therapy twice. (2 RR 10). Appellant was admonished by the Court on December
4, 2013. (2 RR 11). Appellant was required to report twice a month. (2 RR 12).
Appellant was instructed to report on January 14, 2014, but called in to inform
the officer he had a stomach virus. (2 RR 14). Appellant was rescheduled for
January 23, 2014, but did not report. (2 RR 15). Appellant was again rescheduled
for January 27, 2014, but did not report. (2 RR 18).
Ms. Taylor mailed a letter to Appellant instructing him to report on
February 3, 2014 at 8:30 a.m. (2 RR 1920). Appellant did not report. (2 RR 20).
Appellant did not provide proof of job searches. (2 RR 23). Appellant did not
have the assessment performed at MHMRA. (2 RR 26).
Shawn Ticer is the court liaison officer who filed the motion to adjudicate.
(2 RR 29). The court admitted the motion to adjudicate into evidence. (2 RR 31).
Appellant was ill and therefore unable to report as required. (2 RR 34). Appellant
worked for his sister’s landscaping business for a couple months. (2 RR 37).
Appellant never provided the job search form to the officer. (2 RR 38).
7 POINT OF ERROR ONE
THE TRIAL COURT MISTAKENLY ENTERED A JUDGMENT THAT APPELLANT PLEAD “TRUE” TO THE ALLEGATIONS IN THE MOTION TO ADJUDICATE RATHER THAN “NOT TRUE”
The judgment entered on September 12, 2014, states that Appellant entered
a plea of “True” to the State’s Motion to Adjudicate. (CR 113). However, it is
clear from the docket sheet entry taken at the trial that Appellant had actually
plead “Not True” and therefore the entry made in the judgment is in error. (CR
144).
Furthermore, although there does not appear to be a recording of
Appellant’s formal plea before the court in the court reporter’s record, it seems
apparent from the court’s findings following the hearing that Appellant had
actually plead “Not True” as indicated in the docket sheet:
(Open court, Defendant present, no jury)
THE COURT: All right. So, back on the record. Let the record reflect that
at this time the Court finds that it is true that the Defendant did fail to report for
office visits specifically on January 23rd of 2014, January 27th of 2014 and
February 3rd, 2014. Further, the Court finds that the Defendant did then and there
8 violate the terms and conditions of his community supervision by failing to
provide all attempts to secure employment at each office visit as ordered. And
finally, the Court finds the paragraph regarding that the Defendant failed to
comply fully with programs, rules, regulations and guidelines beginning August
6th, 2013, until successful completion, et cetera. I find that paragraph not true.
That was not proved by the Prosecutor. So, that particular paragraph is not true.
Additionally, the last paragraph of the Amended Motion to Adjudicate regarding
the Defendant's failure to remain on prescription medication as directed by the
Court, that's found not true. The Prosecutor did not prove that either. Mr. Mathis,
please stand. At this time the Court having found that the aforesaid allegations
are true, at this time I am adjudicating you. I find you guilty of this offense and
assessing your punishment at seven years in the Institutional Division of the
Texas Department of Corrections. I'll give you all of the credit that you have. I
believe it's somewhere about 590 days in the Harris County jail. I'll give you
credit for that. Good luck to you, sir. All right. Take him back.
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED 01-14-00832-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 1/22/2015 7:55:37 PM CHRISTOPHER PRINE CLERK
NO. 011400832CR
IN THE FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 1/22/2015 7:55:37 PM COURT OF APPEALS CHRISTOPHER A. PRINE FOR THE Clerk
FIRST DISTRICT OF TEXAS AT HOUSTON ___________________________________________________
JOSEPH DARYL MATHIS Appellant v. THE STATE OF TEXAS Appellee ____________________________________________________
APPEAL IN CAUSE NO. 1173963 in the 183rd District Court of Harris County, Texas _____________________________________________________
APPELLANT’S BRIEF _____________________________________________________
JUAN M. CONTRERAS, JR. 102 S. LOCKWOOD HOUSTON, TEXAS 77011 (713) 9264604 FAX : 713/ 9260373 ATTORNEY FOR APPELLANT lsprof4@aol.com
ORAL ARGUMENT WAIVED
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Tex.R.App.P. 75, Appellant waives oral argument since the facts and legal arguments are presented adequately in the record and briefs, and the decisional process would not be aided significantly by oral argument.
IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 74(a), a complete list of the names of all interested parties is provided below so that members of the Honorable Court may at once determine whether they are disqualified to serve or should recuse themselves from participating in the decision of the case.
Counsel for State: JOSEPH MATTHEW SANCHEZ Appellant or criminal defendant: JOSEPH DARYL MATHIS Counsel at trial: ENRIQUE C. RAMIREZ Counsel on appeal: JUAN M. CONTRERAS, JR. Trial Judge: VANESSA VELASQUEZ
TABLE OF CONTENTS
PAGE
IDENTIFICATION OF THE PARTIES…………………………… 3
TABLE OF CONTENTS …………………………………....……. 4
INDEX OF AUTHORITIES ………………………………………. 5
PRELIMINARY STATEMENT ……..……………….……………. 6
STATEMENT OF FACTS …..…………………………….………. 7
POINT OF ERROR NUMBER ONE …………………………….... 8
ARGUMENT ………………………………………………………. 8
CONCLUSION AND PRAYER FOR RELIEF …………………… 11
CERTIFICATE OF SERVICE …………………………………..... 12
INDEX OF AUTHORITIES
Cases Page
State
Bigley v. State, 865 S.W.2d 26 (Tex.Crim.App. 1993).................. 10
Campos v. State, 927 S.W.2d 232 (Tex.App.Waco 1996)............ 10
Creeks v. State, 807 S.W.2d 853 (Tex.App.Dallas 1991)............. 10
French v. State, 830 S.W.2d 607 (Tex.Crim.App, 1992)............... 10
Statutes
TEX.R.APP. P. 80………………………………………………… 10
TO THE HONORABLE COURT OF APPEALS:
PRELIMINARY STATEMENT
Appellant was charged by indictment with Aggravated Assault Public
Servant. (CR 13). Appellant pled “Guilty” to the indictment and the trial court
deferred entering a finding of guilt and placed Appellant on community
supervision for a term of five years. (CR 66). Prior to the end of the probationary
term, the State moved to adjudicate Appellant’s guilt. (CR 83, 92, 97, 101).
Appellant plead “Not True” to the allegations contained in the State’s
motion. (CR 144). Following a hearing, the trial court revoked Appellant’s
community supervision, found him guilty of Aggravated Assault Public Servant
and assessed his punishment at 7 years confinement in the Texas Department of
Criminal Justice Institutional Division. (CR 113; 2 RR 53). It is from this
conviction that he appeals as an indigent. (CR 133). Appellant timely filed
written Notice of Appeal. (CR 120).
6 STATEMENT OF FACTS
Susan Taylor was the supervision officer for Appellant. (2 RR 8).
Appellant was placed on deferred adjudication on August 6, 2010 for 5 years. (2
RR 89). There were amendments to the conditions waiving fees and adding jail
therapy twice. (2 RR 10). Appellant was admonished by the Court on December
4, 2013. (2 RR 11). Appellant was required to report twice a month. (2 RR 12).
Appellant was instructed to report on January 14, 2014, but called in to inform
the officer he had a stomach virus. (2 RR 14). Appellant was rescheduled for
January 23, 2014, but did not report. (2 RR 15). Appellant was again rescheduled
for January 27, 2014, but did not report. (2 RR 18).
Ms. Taylor mailed a letter to Appellant instructing him to report on
February 3, 2014 at 8:30 a.m. (2 RR 1920). Appellant did not report. (2 RR 20).
Appellant did not provide proof of job searches. (2 RR 23). Appellant did not
have the assessment performed at MHMRA. (2 RR 26).
Shawn Ticer is the court liaison officer who filed the motion to adjudicate.
(2 RR 29). The court admitted the motion to adjudicate into evidence. (2 RR 31).
Appellant was ill and therefore unable to report as required. (2 RR 34). Appellant
worked for his sister’s landscaping business for a couple months. (2 RR 37).
Appellant never provided the job search form to the officer. (2 RR 38).
7 POINT OF ERROR ONE
THE TRIAL COURT MISTAKENLY ENTERED A JUDGMENT THAT APPELLANT PLEAD “TRUE” TO THE ALLEGATIONS IN THE MOTION TO ADJUDICATE RATHER THAN “NOT TRUE”
The judgment entered on September 12, 2014, states that Appellant entered
a plea of “True” to the State’s Motion to Adjudicate. (CR 113). However, it is
clear from the docket sheet entry taken at the trial that Appellant had actually
plead “Not True” and therefore the entry made in the judgment is in error. (CR
144).
Furthermore, although there does not appear to be a recording of
Appellant’s formal plea before the court in the court reporter’s record, it seems
apparent from the court’s findings following the hearing that Appellant had
actually plead “Not True” as indicated in the docket sheet:
(Open court, Defendant present, no jury)
THE COURT: All right. So, back on the record. Let the record reflect that
at this time the Court finds that it is true that the Defendant did fail to report for
office visits specifically on January 23rd of 2014, January 27th of 2014 and
February 3rd, 2014. Further, the Court finds that the Defendant did then and there
8 violate the terms and conditions of his community supervision by failing to
provide all attempts to secure employment at each office visit as ordered. And
finally, the Court finds the paragraph regarding that the Defendant failed to
comply fully with programs, rules, regulations and guidelines beginning August
6th, 2013, until successful completion, et cetera. I find that paragraph not true.
That was not proved by the Prosecutor. So, that particular paragraph is not true.
Additionally, the last paragraph of the Amended Motion to Adjudicate regarding
the Defendant's failure to remain on prescription medication as directed by the
Court, that's found not true. The Prosecutor did not prove that either. Mr. Mathis,
please stand. At this time the Court having found that the aforesaid allegations
are true, at this time I am adjudicating you. I find you guilty of this offense and
assessing your punishment at seven years in the Institutional Division of the
Texas Department of Corrections. I'll give you all of the credit that you have. I
believe it's somewhere about 590 days in the Harris County jail. I'll give you
credit for that. Good luck to you, sir. All right. Take him back.
(Proceedings adjourned)
(2 RR 5253).
9 “An appellate court has authority to reform a judgment to include an
affirmative finding to make the record speak the truth when the matter has been
called to its attention. French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App,
1992)(approving Asberry v. State, 813 S.W.2d at 531). The authority of the
appellate courts to reform judgments is not limited to those situations involving
mistakes of a clerical nature. Bigley v. State, 865 S.W.2d 26, 27 (Tex.Crim.App.
1993); TEX.R.APP. P. 80.” Campos v. State, 927 S.W.2d 232, 236237
(Tex.App.Waco 1996). Also Creeks v. State, 807 S.W.2d 853 (Tex.App.Dallas
1991). It is therefore respectfully requested that this Court order the judgment be
reformed to reflect Appellant’s punishment proceedings as indicated by the
docket sheet.
CONCLUSION AND PRAYER FOR RELIEF
It is respectfully requested that the judgment be reformed to correct the
error regarding Appellant’s plea at trial.
Respectfully submitted,
_/S/ JUAN M. CONTRERAS, JR._ JUAN M. CONTRERAS, JR. 102 S. LOCKWOOD HOUSTON, TEXAS 77011 (713) 9264604 FAX : 713/ 9260373 ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above brief has been
delivered to the Harris County District Attorney’s Office, Appellate Division, on
this 22nd day of January, 2015.
_/S/ JUAN M. CONTRERAS, JR.____ Juan M. Contreras, Jr. Attorney for Appellant
Certification of Word Count
This is to certify that the word count for the above document is 929.
_/S/ JUAN M. CONTRERAS, JR.__ Juan M. Contreras, Jr. Attorney for Appellant