Joubert, Trivon Nashon

Opinion

PD-0559-15

No- 09-13-O0375-CR

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

TRITON NASHON JOUBERT,

Petitioner

v.

THE STATE OF TEXAS,

Appellees

ON DISCRETIONARY REVIEW FROM THE NINTH DISTRICT OF TEXAS COURT OF APPEALS IN CAUSE NO. 09-13-00375-CR

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

Trivon Nashon Joubert

TDCJ-TDiUllWt

George Beto Unit

1391 FM 3328

Tennessee Colony/ Texas 75880

PRO SE

F.H \H

30UHT OF CRIMINALISM

MAY 08 20b

RECEIVED MAY - 4 2015 AbslAcoste, Clerk CAROL ANNE HARLEY CLERK OF THE COURT NINTH COURT OF APPEALS

TABLE OF CONTENTS

Page

Table of Contents i- Index of Authorities ii- Statement Regarding Oral Argument 1 Statement of the Case 1

Statement of the Procedural History 1 Grounds for Review 2

Arguments

1. Error in giving maximum sentence. 3 2. Error in assessing fine. 7

Prayer 7 Certificate of Service 9 Appendix

INDEX OF AUTHORITIES

CASES PAGE

MsCleran v. State, S.W.2d 108 (Tex. Crim. App. 1983) 3 Geraales v. Jbhnscn, 994 F.Sup?. 759, 762 (N.D. Tex. 1997) 3 United States v. Sciuto, 531 F.2d 842, 846 (7th Cir. 1976). 3 Earley v. State, 855 S.W.2d 260, 262-63 (Tex. App. - Corpus Christi 1993) 3 Gcnzales, 994 F.Supp. at 764 4

Fielding v. State, 719 S.W.2d 361, 365-370 (Tex. App. Dallas 1985, pet. ref'd) 4 Teixeira v. State, 89 S.W.3d 190, 192 (Tex. App. - Texarkana 2002, pet. ref'd.) 4

Earley v. State, 855 S.W.2d 260 Tex. App. - Corpus Christi 1993) 4 Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App. 2004) 7 WLltumer v. State, Kb. C9-13-002CO-CR (Tex. App. - Beaumont 2013, no pet. )(lSbt published)7

STATUTES

Texas Constitution Article I, § 19 7 8th Amendrent United States Constitution 4 Article I, Section 13, Texas Constitution 4

n.

STATEMENT REGARDING ORAL ARGUMENT Petitioner submits that oral argument will not assist the Court and that disposition by per curiam opinion is appropriate.

STATEMENT OF THE CASE

Petitioner, Trivon Nashon Joubert was indicted for the offense of aggravated robbery. (CRp.6). On April 23, 2012, Petitioner was granted deferred adjudication by the District Court. (CR p.23 - 24). Later, the State moved to revoke Petitioner's un-adjudicated probation. (R.R. 4). Petitioner pled true to counts 1-8 of the State's motion. (R.R. p. 4). However, the State's written motion to revoke the un-adjudicated probation is not in the clerk's record. See CR.

Txriex. Petitioner filed a written objection to the trial court's sentence.

(.CR. p. 53).

PROCEDaRAL HISTORY OF THE CASE

* The trial court revoked Petitioner's unadjudicated probation, found Petitioner guilty of aggravated robbery and assessed punishment at forty-five (45) years in the Institutional Division. (R.R. 1:12). The trial court also certified that this is not a plea-bargain case and the Petitioner filed a timely Notice of Appeal on August 12, 2013. The Court of Appeals affirmed the Petitioner's conviction. Thus, Petitioner files this present action.

Page 1 of 9

GROONDS FOR REVIEW

1. The trial court erred in assessing an excessive sentence over Petitioner's objection. (RR p. 12). (CR. p. 53).

2. The trial court erred in assessing a fine of five hundred dollars in the written judgment without oral pronouncement in open court. (RR pp.

11 - 12; CR p. 43).

Page 2 of 9

ARGUMENT FOR FIRST GROUND

1. The trial court erred in assessing an excessive sentence over Petitioner's objection. (RR p. 12). (C.R. p- 53).

1. Preservation of Alleged Error In Mcderan v. State, S.W.2d 108 (Tex. Crim. App. 1983), the Court noted, in dictum,

that "[a] court's arbitrary refusal to consider the entire range of punishment would constitute a denial of due process[.]" Texas trial courts have wide discretion in determining the proper punishment in a revocation hearing, but due process guarantees a defendant the right to a hearing before a "neutral and detached hearing body." One feder court has stated, in holding that Judge Baraka prejudged a probationer's punishment:

[A] defendant is entitled to a pro bation revocation hearing befoe a judicial officer who has not pre determined that probation should be revoked or that a particular pun ishment should be imposed. Gonzales v.

Johnson, 994 F.Supp. 759, 762 (N.D. Tex. 1997).

In supervising a probationer, a trial judge must "constantly remember that he may one day be cast in the role of trier of fact in a revocation proceeding, and that in that event he will be required to disqualify humself unless he has refrained from pre-judgment, united States v. Sciuto, 531 F.2d 842, 846 (7th dr. 1976).

A trial court's arbitrary refusal to consider the entire range of punish ment in a particular case violates due process. Earley v. State, 855 S.W.2d 260, 262-63 (Tex. App. -Corpus Christi 1993), pat. dism'd, 872 S.W.2d 758 (Tex. Crim. App. 1994). A trial judge may certainly impress upon a prospective probationer the seriousness of the possible consequences of a failure to abide by the terms and conditions of probation, but it is an altogether different thing to promise to impose the maximum punishment if a probationer fails to abide by the terms of probation

Rage 3 of 9

and then carry through on that promise without "actually considering the evidence presented at the revocation hearing. Gonzales, 994 F.Supp. at 764.

This is the evil which the eminent Chief Justice Guittard warned of in his dissent in Fielding v. State, 719 S.W.2d 361, 365-370 (Tex. App. Dallas 1986, pet. ref'd). The Chief Justice considered an approach that pre-determines a sentence witout considering mitigating factors (1) effectively excludes evidence rel

evant to punishment; (2) it precludes the judge from considering the full range of punishment prescribed by law; (3) hence, it deprives the defendant of a fair and impartial tribunal at the punishmnent hearing. Id at 358.

The State erroneously relies on Tejxeira v. State, claiming Petitioner failed to preserve this error by not making a timely objection. However, Petitioner's attorney did file a handwritten objection to the sentence on the day of sentencing wherein he alleged the sentence was excessively disproportionage and unreasonable under the 8th Amendment to the United State's Constitution and Article I, Sec. 13 of the Texas Constitution. (See CR: 53).

2. The Record Expressly Supports Petitioner's Allegations:

The Courts have visited an issue of this exact magnitude in Earley v. State, 855 S.W.2d 260 (Tex. App. - Corpus Christi 1993), where the record contained comments which [they] ffound] highly relevant to appellant's point of error. At the opening of [Earley*s] revocation proceeding, Judge Baraka, before hearing any evidence, told [Earley] that, "I am just upset that ... you did a thirddegree felony, I would rather have seen you with a first degree, because I would like to give you life." This statement, in combination with his earlier comments, clearly shows that Judge Baraka effectively decided the cases before listening to the evidence and puts his prior comments into pro spective. Id. at 262-263.

Likewise, the record in this present case, clearly reflects that Judge Layne Walker showed bias in his opinionated rant during defense counsel's

Page 4 of 9

attempt to present mitigating evidence from Petitioner's mother:

[Reporter's Record, Volume I, Page 7]

8 [THE DEFENDANT]: I would like to get one 9 more chance, sir, even — 10 [THE COURT]: One more chance to do what? 11 Kill somebody? 12 [THE DEFENDANT]: No, sir. Sow you that I 13 can do better. 14 [THE COURT]: Do better? 15 [THE DEFENDANT]: So that I can prove to you 16 I can get off papers. 17 [THE COURT]: Here's teh deal: You don't 18 even have any remorese for going to Dunkin' Donuts and 19 you — was it your brother? 20 [THE DEFENDANT]: Yes, sir. 21 [THE COURT]: You and your brother go in 22 there sticking a gun in that person's face and robbing 23 them. You never even had remorese for that. You didn't 24 feel a bit bad about it. 25 [THE DEFENDANT]: That was the past, sir. I [Reporter's Redord, Volume T, Page 8]

1 got remorse now. 2 [THE COURT]: It may be the past, but I'm 3 going to judge you based on your past. Make sure you 4 understand that. Everything that's fixing to come your

5 way is for everything you've done in the past. That's 6 what this is all about. You told your probation after you

7 robbed that — those peopel and y'all stuck that gun in

Page 5 of 9

8 their face, or wherever you pointed it, "

After the above exchange, the judge then looks to the new allegations of burglary of a habitation, (Cause No. 13-17057), which was dismissed, on the State's Motion, less than 30 days later, to contemporaneously prosecute the new cause within the State's revocation hearing: (See Appendix, Exhibit A)

[Reporter's Record/ Volume 1/ Page 8]

17 [THE DEFENDANT]: I've changed since that 18 day, sir. 19 [THE COURT]: You did. I agree with you. 20 You did change. 21 [THE DEFENDANT]: I changed a whole lot. 22 [THE COURT]: Instead of committing a new 23 robbery case where you stick a gun in somebody's face, 24 you went and broke in somebody's home; yes, no? 25 [THE DEFENDANT]: Yes, sir. But they got [Reporter's Record/ Volume 1/ Page 9]

1 all they — they got their stuff back. 2 [THE COURT]: Does that make it okay? Who 3 taught you that? 4 [THE DEFENDANT]: It don't make it okay. I 5 went back and talked to the man, apologized to the man. 6 [THE COURT]: Who told you that that was an 7 okay way to live? You get caught, and then you go give 8 the stuff back. Had you not been caught, you'd have 9 never gave that stuff back. The next step for you is 10 shooting somebody, because the rules don't apply to 11 you. You do whatever you want to do. You roll however 12 you choose to roll. And anybody that gets in your

Page 6 of 9

13 way — if you have to use a gun, you'll use a gun. If 14 you have to break into their home, that's what you're

15 going to do. But the rules'just don't apply to you, 16 Trivon. You tell me where I'm wrong.

It is obvious, by the above exchange, that Judge Walker pre-judged the Petitioner and denied him due couse of law in revoking his probation after

stating, before mitigating evidence was finished being presented, , "[i]t may be the past, but I'm going to judge you based on your past. Everything that's fixing to come your way is for everything you've done in the past."

Vemcn's Ann. Texas Const. Art. I, § 19.

ARGUMENT FOR SECOND GROUND

II. Trial Court erred in assessing a fine of $500-oo without oral findings.

The Court of Criminal Appeals in Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App.

2004) holds that when the trial court revokes an order for deferred adjudication

probation, it cannot include the fine that it previously imposed in the original proceedings unless it orally pronounces the fine at the revocation hearing (131 S.W.3d at 502). See also Wiltumsr v. State, Nd. 09-13-00200-CR (Tex. App - Beaurcnt 2013,

no pet.) (NDt published).

PRAYER

WHEREFORE PREMISES CONSIDERED, the Petitioner prays that his sentence be set aside and that he be given a new sentencing hearing and that he be

given such relief as justice may demand.

Respectfully submitted,

Trivon Nashon Joubert

TDCJ# {frSh^fr

George Beto Unit

1391 FM 3328

Tennessee Colony, Texas 85880

Page 7 of 9

INMATE DECLARATION

Pursuant to Title 6, Texas Civil Practice and Remedies Code §§ 132.001-003.

I, "^Wlun^ "VooWcA i TDCJ-ID* \%%\<\H % , being presently incarcerated at the George Beto Unit, in Anderson County, Texas,

do declare under penalties of perjury that I am the Petitioner in the attached Petition For Discretionary Review, and all statements contained therein are true and correct.

Signed on this the y~J— day of |Vyc^p C.K ' 20 _J_S_.

SIGNATURE OF DECLARANT/PETITIONER

Page 8 of 9

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Petition for Discretionary Review was served on the Counsel for the State, Wayln G. Thompson, Asst. District Attorney, Jefferson County, Texas, 1001 Pearl St., Suite 300, Beaumont, Texas 77701 on this ^L3— day of MaCcK '20 \5~ '

SrJSUAmm/ llMLWhAI

Signature of TMVON NASHON JOUBERT

Page 9 of 9

•UWW^..; 'M,w^pF^%vwi

APPENDIX

uigMMdfeiewBWaSMHfi MJHHHIMHunilTIl "EXHIBIT 'A'

*Q> no. 13-17057 DA #706170 (Burglary of a Habitation)

THE STATE OF TEXAS § IN THE 252Dd DISTRICT COURT

VS.

§ OF

TRTVON N. JOUBERT § JEFFERSON COUNTY, TEXAS MfiTTON TO DISMISS

TO THE HONORABLE JUDGE OF SAID COURT;

NOW COMES the State of Texas by and through the undersigned Assistant Criminal District Attorney in and for the County of Jefferson, State of Texas and respectfully requests the Court dismiss the above entitled and numbered criminal action for the reason:

I.

DISMISS: ATTHE REQUEST OF COMPLAINING WITNESS.

WHEREFORE, PREMISES CONSIDERED, it is prayed that the above entitled and numbered cause be dismissed.

Respectfully submitted,

RA^gELGIlOVE, Assistant

£SOi5&. Criminal District Attorney Jefferson County, Texas

1001 Pearl St., Suite 300 Beaumont, Texas 77701

Telephone No. 409-835-8550 Bar Card No. 24058440

ORDER

$k*

/egoing Motioa toDismiss having been presented to me on this the ' Iday of ZMi rS/^ 20 / jlnd the same having been considered, rt is therefore, ORDERED, ADp5GWand DECREED that the said entitled and numbered cause be the same is hereby dismissed.

JUDGE PRESIDING