Juan Leal, Jr. v. State

Opinion

ACCEPTED 03-15-00095-CR 6812878 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/4/2015 5:35:02 PM JEFFREY D. KYLE CLERK

No. 03—15—00095—CR FILED IN 3rd COURT OF APPEALS IN THE TEXAS COURT OF APPEALS AUSTIN, TEXAS THIRD DISTRICT 9/4/2015 5:35:02 PM AT AUSTIN JEFFREY D. KYLE Clerk

JUAN LEAL v. THE STATE OF TEXAS

Appeal from Cause Number D-1-DC—13—300082 299th Judicial District Court, Austin, Travis County, Texas Honorable Karen Sage, Judge Presiding

APPELLANT’S BRIEF

TO THE HONORABLE THIRD COURT OF APPEALS:

Comes now Paul M. Evans, appointed counsel for Appellant Juan Leal, and files this, his Appellant’s Brief, in compliance with the Texas Rules of Appellate Procedure.

Respectfully submitted,

___/s/ Paul M. Evans_____________ Paul M. Evans Attorney for Appellant SBN 24038885 811 Nueces Street Austin, Texas 78701 (512) 569-1418 (512) 692-8002 FAX paulmatthewevans@hotmail.com

1 Identities of the Parties and Counsel

Presiding Judge: Honorable Karen Sage

Appellant: Juan Leal

Trial Counsel: Stephen M. Orr 1107 Nueces Street Austin, TX 78701

Appellate Counsel: Paul M. Evans 811 Nueces Street Austin, Texas 78701

Appellee: State of Texas

Trial Counsel: Mary Farrington Yvonne Patton Assistant District Attorneys Travis County District Attorney P.O. Box 1748 Austin, Texas 78767

Lead Appellate Counsel: Rosemary Lehmberg District Attorney c/o Appellate Division Travis County District Attorney P.O. Box 1748 Austin, Texas 78767

2 Table of Contents

Identity of Parties and Counsel 2

Table of Contents 3

Index of Authorities 3

Statement of the Case 5

Issue Presented 6

Statement of Facts 7

Summary of Arguments 23

Issue Number One 24

Prayer 29

Certificate of Service 30

Certificate of Compliance 31

Index of Authorities

Federal Constitution Fourth Amendment………………………………………………….…7-11, 19

Sixth Amendment………………………………………...……….8, 12, 17, 20

Federal Cases

Arizona v. Gant, 556 U.S. 332 (2009)………………………………..………9

3 Texas State Constitution Article I, Section 9……………………………………….…………7-9, 19

Texas State Statutes

Code of Criminal Procedure § 38.23………………………....……7, 9, 19

Code of Criminal Procedure § 42.12, Sec.5………...…………..……6, 25

Code of Criminal Procedure § 42.12, Sec.21………………..….………25

Penal Code § 12.42…………………………………………...….…..6, 29

Penal Code § 22.01…………………………………………….…….6, 29

Texas Cases

Antwine v. State, 268 S.W.3d 634 (Tex.App.—Eastland 2008, pet. ref’d)……………………………………………………….………25

Barrett v. State, 630 S.W.2d 335 (Tex.App.—Houston [14th Dist.] 1982, no pet.)…………………………………………………………..28

Brooks v. State, 153 S.W.3d 124 (Tex. App.—Beaumont 2004, no pet.)…………………………………………………………………27

Caddell v. State, 605 S.W.2d 275 (Tex.Crim.App. 1980)……………..26

Cantu v. State, 842 S.W.2d 667 (Tex.Crim.App. 1992)……………….26

Cardona v. State, 665 S.W.2d 492 (Tex.Crim.App. 1984)…....…….26-7

Cobb v. State, 851 S.W.2d 871 (Tex.Crim.App. 1993)………….….26-7

Coffey v. State, 979 S.W.2d 326 (Tex.Crim.App. 1998)…………..….25

4 Diaz v. State, 516 S.W.2d 154 (Tex.Crim.App. 1974)……………….27

Greer v. State, 999 S.W.2d 484 (Tex.App.—Houston [14th Dist.] 1999, pet. ref’d)………………………………………………………27

Hacker v. State, 389 S.W.3d 860 (Tex.Crim.App. 2013)…………26-7

Harris v. State, 160 S.W.3d 621 (Tex. App.—Waco 2005, pet. dism’d)………………………………………………………….27

Hart v. State, 264 S.W.3d 364 (Tex.App.—Eastland 2008, pet. ref’d)………………………………………………………….26-7

Jones v. State, 571 S.W.2d 191 (Tex.Crim.App. 1978 [Panel Op.])………………………………………………………….27

Ex parte Madding, 70 S.W.3d 131 (Tex.Crim.App. 2002)………....25

Moore v. State, 605 S.W.2d 924 (Tex.Crim.App. 1980)………...….26

Rickels v. State, 202 S.W.3d 759 (Tex.Crim.App. 2006)…………...26

Solis v. State, 589 S.W.2d 444 (Tex.Crim.App. 1979)…………..…26

Taylor v. State, 131 S.W.3d 497 (Tex.Crim.App. 2004)…………...25

Statement of the Case

Appellant Juan Leal was originally charged by indictment with one count of

Assault Family Violence, enhanced by prior convictions for the same, and further

enhanced by a prior felony conviction, thereby making the offense punishable as a

second degree felony. RR2 7-8; CR1 7-8; see Tex. Penal Code §§ 12.42(a),

22.01(b)(2),(A). Appellant entered into a plea bargain agreement with the State,

5 whereby he entered a plea of guilty and was placed on a term of deferred

adjudication community supervision for a period of three (3) years. CR1 9-26; see

Tex.Code Crim.Proc. §42.12, Sec. 5. Subsequently, the State filed a ―Motion to

Proceed with an Adjudication of Guilt,‖ followed by two amended motions

containing additional alleged violations of the terms of community supervision.

CR1 44, 47, 50-2.

In a hearing before the trial court, Appellant entered a plea of not true to the

allegations contained in the State’s second amended motion. RR2 7-8; CR1 50-2,

64, 70. After hearing evidence, the trial court found that Appellant violated several

terms and conditions of his community supervision, and the court adjudicated his

guilt. The trial court then proceeded to assess a term of eighteen (18) years in the

Institutional Division of the Texas Department of Criminal Justice. RR2 149-54;

CR1 64, 70-2. The trial court certified Appellant’s right to appeal, and he filed

timely notice of appeal. CR1 62, 80. This appeal followed.

Issue Presented

The trial court’s ―Judgment Adjudicating Guilt‖ should be modified, in that

the written judgment alleges that the trial court found two violations of the terms

and conditions of Appellant’s probation that were not reflected by the trial court’s

oral pronouncement of judgment. RR2 149-52; CR1 70-2.

6 Statement of Facts

The Second Amended Motion to Proceed with an Adjudication of Guilt

contained 23 separate alleged violations of the terms and conditions of Deferred

Adjudication. Appellant entered a plea of not true to these allegations. The trial

court held an evidentiary hearing on the State’s motion. RR2 7-8; CR1 50-2, 64,

70. At the outset of the hearing, the State moved to amend a ―typo‖ in the motion,

namely, the use of the name ―Andrea Leal‖ where ―Angela Budzinski‖ was

intended. The trial court allowed the amendment over trial counsel’s objection.

RR2 8-9; CR1 51.

Austin Police Department Sergeant Greg White testified he effected a

traffic stop on Appellant on the afternoon of February 24, 2014. White testified he

observed two traffic violations, excessive amplified music from a motor vehicle

and changing traffic lanes within an intersection. Trial counsel objected to the

legality of the traffic stop and obtained a running objection, citing the protections

of the Fourth Amendment of the United States Constitution, Article I, Section 9 of

the Texas Constitution, and Tex. Code Crim. Proc. § 38.23. RR2 10-16. White

stopped Appellant and obtained his identification. After checking on Appellant’s

name and involvement, White testified he learned that Appellant had a gang

association, past narcotics arrests, and a history of concealing narcotics in his

vehicle. Citing safety, White conducted a frisk of Appellant and his passenger

7 compartment. Upon entering the car, White detected the odor of burning

marijuana, and he saw a glass marijuana pipe with residue in the center console.

White felt he had probable cause at that point to search the car for illegal

substances or contraband. RR2 13-14.

White testified he found a magnetic box with suspected cocaine residue in

the center console, a digital scale in the driver’s door, another scale in the back

seat, and a black jacket containing a number of empty baggies. RR2 14-17; RR3

SX # 2-6. White issued Appellant citations for driving with license invalid, no

driver’s license, amplified music from a motor vehicle, and possession of drug

paraphernalia. White identified Appellant in court. The trial court admitted a

certified copy of Appellant’s conviction for possession of drug paraphernalia over

objections lodged by trial counsel: that the conviction was obtained in violation of

the Fourth Amendment of the United States Constitution and Article I, Section 9 of

the Texas Constitution, and that the document did not afford Appellant his right of

confrontation under the Sixth Amendment of the United States Constitution. RR2

17-18; RR3 SX # 1. On cross-examination, trial counsel questioned White about

the traffic stop. White confirmed there were no passengers in the car. White did not

know if anyone else had access to the vehicle. White confirmed that Appellant did

not grant him consent to search the car. White did not know how long the items

found in the car had been there. RR2 19-21. On redirect and recross examination,

8 White testified the items found in the car were consistent with drug paraphernalia.

RR2 21-2.

Austin Police Officer Michael Schultheis testified he was assigned to the

organized crime division and the firearms unit. On May 22, 2014, Schultheis was

instructed to locate Appellant and arrest him pursuant to outstanding traffic

warrants. Schultheis identified Appellant in court. Schultheis saw Appellant

driving on that date and effected a traffic stop in a convenience store parking lot.

White placed Appellant into custody and handcuffed him. RR2 22-6. When

Schultheis was asked if he searched Appellant incident to his arrest, trial counsel

objected on grounds provided by the Fourth Amendment of the United States

Constitution and Article I, Section 9 of the Texas Constitution, and Tex. Code

Crim. Proc. § 38.23. Trial counsel also argued the search was not tied to the reason

for the stop and arrest, citing Arizona v. Gant, 556 U.S. 332 (2009). These

objections were overruled, and trial counsel obtained a running objection to any

evidence obtained from Appellant’s person or his car. RR2 26-7. Schultheis

testified he found a black zippered bag in the front left pocket of Appellant’s

shorts, containing a bag of what Schultheis recognized to be cocaine, as well as a

bag containing what Schultheis recognized to be methamphetamine. A videotape

9 of the traffic stop was introduced into evidence over objection. RR2 27-8; RR3 SX

# 11.1

On cross-examination, trial counsel asked how the decision was made to

stop and arrest Appellant. Schultheis confirmed he did personally observe

Appellant driving and was able to positively identify him prior to making the stop.

Schultheis described the events leading to the stop. He testified he saw a passenger

in the car. Schultheis verified that he was aware of Appellant’s outstanding warrant

at the time, and he confirmed he was specifically looking to find Appellant at the

time in question. Schultheis could not recall how long it took for backup officers to

arrive. Schultheis did not ask for Appellant’s consent to search the car, as he

believed he had the authority to search the car incident to Appellant’s arrest. RR2

28-33.

Austin Police forensic chemist Ryan Forsyth testified regarding the

analysis of suspected controlled substances. Forsyth tested the contents of two

baggies containing a ―loose compressed white powder‖ and another baggie

containing ―an off-white crystal substance.‖ Forsyth was asked to describe the

results of this testing, when trial counsel objected on the basis that the items had

been obtained in violation of the Fourth Amendment of the United States

Constitution. Trial counsel also objected to the lack of a chain of custody to

1 Nota bene, there are two exhibits designated as ―SX # 11.‖ See RR3.

10 establish ―how those got from the street to this chemist.‖ The trial court overruled

the Fourth Amendment objection but requested the State to provide more

foundation on the chain of custody issue. RR2 34-9.

Forsyth could not identify the signatures on the property tags associated

with the baggies. Forsyth testified there was an electronic chain of custody

maintained by his laboratory, and it reflected that Forsyth received the items from

the chemistry vault cabinet ―on June 12 at 8:25.‖ Trial counsel renewed his chain

of custody objection. The trial court overruled the objection, and the items were

admitted into evidence. Forsyth testified the first bag tested positive for cocaine in

an amount of approximately 12.176 grams, while the second bag tested positive for

methamphetamine in an amount of approximately 1.780 grams. RR2 39-41; RR3

SX # 9-10. On cross-examination, Forsyth testified that these items would have

been brought to the vault by an evidence technician, and Forsyth would then take

the items from the vault before testing them. Forsyth did not personally know how

the items in evidence were brought to the vault, and he did not personally witness

their transfer. RR2 41-2.

Andrea2 Leal testified she had been married to Appellant for thirteen years.

The two of them had a twelve-year-old son. Andrea identified Appellant in court.

Andrea confirmed she was the victim of the offense Appellant was on probation

2 To avoid confusion, the present Brief will henceforth refer to Andrea Leal by her given name.

11 for, as well as the victim of a prior offense of Violation of a Protective Order that

caused Appellant to go to prison. Andrea testified her maiden name was Pineda at

the time of the latter offense. Andrea continued to have an on-and-off relationship

with Appellant while he was on probation for the instant offense. Andrea

confirmed Appellant was consistently abusive to her during the course of the

relationship. Her mother often saw her with injuries, and Andrea would routinely

lie about how she received them because she did not want her mother to call the

police. Appellant’s mother was present during some assaults, and she would urge

him to stop so that he would not ―end up going back to jail‖ because of her. RR2

43-6, 70-1. The State introduced certified copies of the judgment and sentence,

probable cause affidavit in support of arrest, and the indictment arising from the

prior conviction for Violation of a Protective Order. Trial counsel objected that

these documents constituted hearsay, and that their admission denied Appellant his

rights under the Confrontation Clause of the Sixth Amendment of the United States

Constitution. These objections were overruled. RR2 70-1; RR3 SX # 40-2.

On September 10, 2013, Andrea’s mother called the police after seeing an

injury caused by Appellant—Andrea thought she ―had a black eye‖—but Andrea

did not tell them the truth about how she was injured. After ―a month or so‖ later,

Andrea began seeing Appellant again. Andrea then testified about an incident that

occurred on April 8, 2014. At the time, Andrea lived with her cousin, Roxanne.

12 Appellant was supposed to take their son to school, but when he did not follow

through, Andrea took him to school on the bus. Appellant called Andrea while she

was returning home on the bus, and she hung up on him because she was angry he

had not shown up to give their son a ride. When Andrea arrived at her apartment,

Appellant was waiting in his car in the parking lot. Andrea ignored him, but he

followed her to her door and continued to bang on the door after she went inside.

Andrea let him in so that he would stop knocking, and the two of them went into

her room. RR2 46-51.

Appellant began to accuse Andrea of staying up all night, doing ―meth‖

with her cousin, who would sometimes buy drugs from Appellant. Appellant

pushed Andrea on the bed and began choking her with both hands around her neck.

Andrea testified she could not breathe. Appellant struck her on the side with

something, and Andrea could feel blood coming down her face. Appellant got up,

and Andrea ran to the shower. Appellant left while she was in the shower.

Appellant called her after he left, saying he was sorry and asking her not to call the

police. Appellant told Andrea he had hit her with a cell phone. Andrea suffered a

―slit,‖ ―a really big knot,‖ and a black eye. RR2 51-9; RR3 SX # 23.

Andrea continued to see Appellant after this incident. Andrea testified that

on April 20, 2014, Appellant had promised to bring an Easter basket for their son,

but he did not. Andrea was angry about this and called him. Appellant came to get

13 her at Roxanne’s apartment, and they went to his mother’s house. On the way,

Appellant was accusing Andrea of cheating on him. When they arrived, Appellant

had Andrea remove her clothes so he could see if she ―had been with someone.‖

Appellant slapped Andrea, and his mother came into the room to warn him about

going back to jail. Andrea testified the slap hurt and aggravated a prior injury

Appellant had caused to her nose. Andrea did not report this incident right away.

Appellant eventually dropped her off late at night at a store by Interstate 35, about

a fifteen minute walk away from where she stayed with Roxanne. Andrea later

called police about this incident, in part because she had learned that Appellant had

allegedly slept with Roxanne. Andrea testified that before she called the police, she

did send several text messages to Appellant, threatening to turn him in for the

incident if he did not answer her calls or her requests for him to visit. Andrea

testified she had received assistance from SafePlace and the County Attorney’s

Office. RR2 59-72.

On cross-examination, Andrea admitted she had used illegal drugs. She

acknowledged using cocaine and methamphetamine during the period of time she

had testified about. Andrea denied that this had affected her memory of the events

she had recounted. Andrea admitted she had threatened Appellant, but she denied

making threats ―to make anything up.‖ Andrea confirmed that she waited ―a few

weeks after the last assault‖ on April 20, 2014 before calling the police. She

14 admitted she used this incident as leverage to try to get Appellant to be with her

and act like a father to their son. She denied doing this after previous assaults. She

agreed that learning about his indiscretion with her cousin, Roxanne, was the ―final

straw.‖ She had been aware of other infidelities, but this was the first time with a

family member. RR2 73-7. On redirect, Andrea denied being high during the

assaults she testified about. She affirmed that her drug use had not affected her

testimony. She testified her mother had also urged her to call police on Appellant.

RR2 77-8.

Helen Vasquez testified she was Andrea’s mother. She testified she knew

Appellant, she identified him in court, and she affirmed he remained married to

Andrea. Vasquez never saw Appellant assault Andrea, but she came over to her

house ―beaten up a lot of times.‖ The last time was when Andrea filed charges on

Appellant and moved into SafePlace. Vasquez testified Andrea had a cut and a

black eye. After she reported the last incident to police, Andrea told Vasquez what

had happened. Vasquez had made a report to the police in September 2013, after

Andrea had been beaten yet again, but Andrea refused to press charges at that time.

On cross-examination, Vasquez again confirmed she had never seen Appellant

assault Andrea. RR2 78-82.

Angela Budzinski testified she dated Appellant for about three months,

beginning in September 2013, when he was already on deferred adjudication

15 probation. She identified him in court. Budzinski testified Appellant dealt cocaine

during the time they were dating, and she presumed he used narcotics as well. At

first, Appellant was not abusive, but around October 10, 2013, there was an

incident that occurred after Budzinski came home from work. She was living with

Appellant in his mother’s house. On this occasion, Appellant punched Budzinski a

number of times, choked her, and dragged her by the hair when she tried to get

away. Budzinski suffered two black eyes. Budzinski eventually went to sleep. She

called a friend the next day, Esther Herrera, who picked her up and gave her a ride

to work. Budzinski covered her visible injuries with makeup. Budzinski did not

report the incident to police, because she felt she had nowhere else to go. She did

take pictures of her injuries that were introduced into evidence. RR2 82-92; RR3

SX # 11-14.3

Budzinski testified she would allow Appellant to take her money and use

her car as he wished because she did not ―want any more problems than what had

already happened.‖ In November 2013, there was another incident. The two of

them were arguing when Budzinski returned home from work, and she went

outside to call the police ―just to diffuse the situation.‖ Appellant walked up and

grabbed the phone with enough force to break her finger. Her friend Maria took her

to the doctor for treatment the next day. The State sought to admit the certified

3 As noted above, two separate exhibits were introduced as ―SX # 11.‖

16 medical records from Budzinski’s treatment. Trial counsel objected, citing the

Confrontation Clause of the Sixth Amendment to the United States Constitution.

The trial court received the exhibit over objection. When she went to the hospital,

Budzinski did not tell the truth about what happened, because she knew she would

have to go back to where she lived with Appellant. Budzinski did tell Maria what

had happened. RR2 92-5; RR3 SX # 22.

Appellant threatened Budzinski over reporting these matters to the police,

and he told her he would face ―25 to life‖ in prison if she did so. Budzinski did

finally call the police, because they began to argue again and she did not want a

similar incident to occur. Budzinski identified photos of her injuries that were

admitted into evidence. She also described the extent of the injury to her finger.

Appellant later threatened her for calling the police. Budzinski testified she was

trying to call the police when Appellant grabbed her phone, and Appellant’s

actions prevented Budzinski from calling 911. RR2 95-101; RR3 SX # 15-21. On

cross-examination, Budzinski testified she lived at Appellant’s mother’s house for

―about three months.‖ She did not leave that house until the time she finally called

police, in November 2013. Budzinski asserted she had nowhere else to go,

although she did make money from work and she did have friends. Budzinski

denied doing drugs, but she admitted she had been drinking on the night she finally

17 called police. She also admitted she called Appellant afterwards in order to have

him bring her belongings to her at work. RR2 102-5.

Maria Rizo testified she was a friend of Budzinski’s while she was dating

Appellant. Rizo observed the injury to Budzinski’s hand, and she also saw her with

a black eye during this period. Rizo took Budzinski to the hospital after her finger

was injured. Budzinski told Rizo who did it. RR2 107-9. On cross-examination,

Rizo in essence confirmed she was no longer friends with Budzinski, in part

because of the ―whole end of her relationship‖ with Appellant. Rizo denied

Budzinski used drugs, but she acknowledged that she drank alcohol. Rizo testified

that when she took Budzinski to the hospital, she said she had fell and hurt herself.

On redirect, Rizo said Budzinski changed her story and eventually told her

Appellant had caused the injury. On re-cross examination, trial counsel questioned

Rizo about Budzinski changing her story. RR2 109-12.

Austin Police Officer Seth Glass testified he made a traffic stop on

Appellant—whom he identified in court—on November 14, 2013. Glass saw

Appellant approach an intersection and make a right turn without signaling his

intent. Appellant had a passenger in the car named Rudy Soto. After he pulled

Appellant over, Glass ran a check on him and noted he had prior involvement with

Austin Police, as well as documentation as a ―Tango Blast‖ gang member. Glass

asked Appellant to step out of the car, and he asked where he had been. Finding

18 Appellant’s story to be suspicious, Glass asked for Appellant’s consent to search

the car, which Appellant granted. Inside the car, Glass found a digital scale and a

bottle of white powder, labeled ―Vitablend.‖ Trial counsel objected to unlawful

search and seizure under the Fourth Amendment of the United States Constitution.

The objection was overruled, and trial counsel obtained a running objection. RR2

113-17.

The Vitablend was in a black velvet bag, which Glass found to be

suspicious. Glass was aware through training and experience that this powder was

used to cut drugs such as cocaine. In the trunk, under the spare tire, Glass found a

clear bag containing approximately 100 smaller clear Ziploc bags, as well as a

clear vial and five glass tubes containing plastic roses, commonly used as ―stems‖

to smoke crack cocaine. The State introduced an evidence bag containing all of the

items Glass seized. Trial counsel objected that the items were seized in violation of

the Fourth Amendment of the United States Constitution, Article I, Section 9 of the

Texas Constitution, and Tex. Code Crim. Proc. § 38.23. The trial court overruled

these objections. Glass testified he wrote Appellant a citation for Possession of

Drug Paraphernalia for the items he found in the car. A certified copy of

Appellant’s conviction was also introduced into evidence, over trial counsel’s

objections that these documents constituted hearsay, and that their admission

19 denied Appellant his rights under the Confrontation Clause of the Sixth

Amendment of the United States Constitution. RR2 117-21; RR3 SX # 7-8.

On cross-examination, Glass testified Appellant was driving a rental car at

the time. Glass agreed that most of the items he seized were found in the center

console. Glass confirmed there was a passenger in the car who was not arrested.

Appellant told Glass he and his ex-girlfriend had been using the car, and Glass

conceded the items he found could have belonged to the ex-girlfriend. On redirect,

Glass gave this woman’s name as Rosie Hernandez. RR2 122-3.

Beth Jones testified she was a probation supervisor for Travis County

Adult Probation. Jones testified Appellant was assigned to her caseload after he

was placed on probation on May 13, 2013, and she identified Appellant in court.

Jones testified there were a number of conditions of probation imposed upon

Appellant, including avoiding injurious and vicious habits, avoiding persons or

places of disreputable or harmful character, and avoiding the use of all narcotics,

habit-forming drugs, alcoholic beverages, and controlled substances. Jones testified

Appellant was ordered to pay a community supervision fee, and that he was

delinquent $296.18 as of May 20, 2014, with the delinquency totaling $776.18 at

the time of the hearing. Jones testified he was also ordered to pay a family violence

center fee and was delinquent $64.62 as of May 20, 2014. Jones testified he was

also ordered to have no contact whatsoever with Andrea Leal, and any such contact

20 was a violation of the conditions of his probation. Jones testified Appellant also

had a delinquent balance of $107.87 on his supervision fees, a delinquent balance

of $80.89 towards his court costs, a delinquent balance of $53.90 towards the fine

assessed against him, and a delinquent balance of $539.29 towards restitution for

Andrea Leal’s medical bills. Jones testified Appellant had made no payments since

his ―arrest,‖ presumably meaning his most recent arrest. Jones testified her office

made clear to all probationers that they were not to violate the laws of the State of

Texas while on probation, and that any such offenses constituted a violation of

probation. Jones testified Appellant was penalized with two days’ of jail time on

her department’s ―sanctions docket‖ for failure to report, an infraction not listed in

the motion to adjudicate. RR2 123-9.

On cross-examination, trial counsel questioned Jones about this sanction.

Jones stated Appellant made his last payment on March 13, 2014. Jones

acknowledged that Appellant had told his probation officer he was having

difficulties making his payments. RR2 129-30. At the State’s request, the trial

court took judicial notice of the terms and conditions of Appellant’s probation, and

the State then rested. RR2 130.

Trial counsel called Rudy Soto as a witness. Soto testified he worked for

himself, doing remodeling and miscellaneous construction and repair work. Soto

identified Appellant as someone who used to work for him. Soto lived near his

21 mother’s house, where Appellant stayed, and Soto would see him coming in and

out of his mother’s house when he was working. Soto testified he was doing a

remodeling job on some apartments across the street from their house. Soto

testified he knew Budzinski, and he had seen her over at the house ―about 20, 30

times.‖ Soto never spoke to her. Soto testified he ―always saw her drunk,‖ and

―always outside yelling.‖ Soto saw her fall down once, at ―the time that those two

laws showed up.‖ From a distance, Soto saw her talking to officers, and he saw

them taking pictures of her. Soto was not close enough to hear what was being

said. Soto testified they put her in the patrol car and drove away, and he never saw

her again. Soto was unsure if she hurt herself when she fell. Soto never saw her get

into a fight with Appellant. Soto testified he was with Appellant when they were

pulled over once, when Appellant was giving Soto a ride back to their job site.

Soto did not get arrested, but Appellant received a ticket. Soto testified a drug dog

was brought to the scene but it did not detect anything. RR2 131-7.

On cross-examination, Soto confirmed it would have been November 11

when he saw the officers speaking to Budzinski and taking pictures. Soto testified

that on the day he was stopped with Appellant, the officers ―didn’t find nothing‖

and ―just gave [Appellant] a ticket.‖ Soto did not see anything being taken out of

the car. Soto denied having any drug paraphernalia in the car. Soto denied knowing

that Appellant was dealing drugs. Soto testified Appellant was working for him at

22 the rate of $10.00 per hour, at least seven hours a day, during the time Appellant

was on probation. Soto did not know whether Appellant paid rent at his mother’s,

nor did he know whether her duplex was subsidized. Soto was unaware of

Appellant being arrested in possession of cocaine and methamphetamine. Soto

testified he never saw him using drugs, and he volunteered that Appellant did not

even drink. Soto affirmed this statement on redirect. RR2 137-40.

The defense then rested. The State did not offer any rebuttal evidence. After

hearing the argument of counsel, the trial court found that a number of the

allegations found in the State’s ―Second Amended Motion to Proceed with an

Adjudication of Guilt‖ were true. The trial court then proceeded to sentencing and

assessed a term of eighteen (18) years in the Institutional Division of the Texas

Department of Criminal Justice. RR2 140-54; CR1 64, 70-2. The trial court

certified Appellant’s right to appeal, and he filed timely notice of appeal. CR1 62,

80. This appeal followed.

Summary of Argument

The trial court’s ―Judgment Adjudicating Guilt‖ should be modified, in that

the written judgment alleges that the trial court found two violations of the terms

and conditions of Appellant’s probation that were not reflected by the trial court’s

oral pronouncement of judgment. RR2 149-52; CR1 70-2. Because the oral

pronouncement of judgment controls where there is a variance from the written

23 judgment entered by the trial court, the ―Judgment Adjudicating Guilt‖ should be

modified by deleting these two findings.

Issue Number One The written “Judgment Adjudicating Guilt” should be modified by deleting violations of the terms and conditions of community supervision that were not included in the trial court’s oral pronouncement adjudicating Appellant’s guilt.

The ―Second Amended Motion to Proceed with an Adjudication of Guilt‖

filed in the instant cause contains 23 different alleged violations of the terms and

conditions of Appellant’s community supervision. CR1 50-2. The written

―Judgment Adjudicating Guilt‖ reflects that the trial court found 21 of these

alleged violations to be true, including:

FAILED TO HAVE NO CONTACT WITH ANDREA LEAL, EITHER IN WRITING, IN PERSON, BY PHONE, ELECTRONICALLY, OR THROUGH THIRD PARTIES AND STAY 200 YARD[S] FROM WHERE THEY LIVE, WORK, OR ANY PLACE THEY MAY BE;

*****

COMMITTED A SUBSEQUENT CRIMINAL OFFENSE IN THAT ON OR ABOUT THE 10TH DAY OF SEPTEMBER 2013, IN TRAVIS COUNTY, TEXAS JUAN LEAL DID THEN AND THERE INTENTIONALLY, KNOWINGLY AND RECKLESSLY CAUSE BODILY INJURY TO ANDREA LEAL, A MEMBER OF JUAN LEAL’S FAMILY AND HOUSEHOLD AND A PERSON WITH WHOM JUAN LEAL HAS HAD A DATING RELATIONSHIP, BY STRIKING ANDREA LEAL ON OR ABOUT THE FACE WITH HIS HAND OR BY PUSHING HER WITH HIS HAND.

24 CR1 70-1. These two findings were not included in the trial court’s oral

pronouncement of judgment adjudicating guilt. RR2 149-52. To the extent there is

a variance between the trial court’s oral pronouncement of judgment and the

written judgement, the oral pronouncement controls. Taylor v. State, 131 S.W.3d

497, 500-2 (Tex.Crim.App. 2004); Ex parte Madding, 70 S.W.3d 131, 135

(Tex.Crim.App. 2002); Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App.

1998). The written ―Judgment Adjudicating Guilt‖ should be modified by deleting

these findings in order to conform to the trial court’s oral pronouncement of

judgment.

Otherwise, trial counsel must reluctantly concede that the judgment and

sentence must be otherwise affirmed as modified. Deferred adjudication

community supervision differs from regular probation by allowing a defendant

who pleads guilty to an offense and who successfully completes community

supervision to avoid ―conviction.‖ The only issue to be determined by the trial

court in a deferred adjudication revocation proceeding is whether to proceed with

an adjudication of guilt. Tex.Code Crim.Proc. §42.12, Sec. 5(b). A determination

by a trial court to adjudicate guilt is reviewable in the same manner as a revocation

of community supervision under Tex.Code Crim.Proc. §42.12, Sec. 21. Antwine v.

State, 268 S.W.3d 634, 636 (Tex.App.—Eastland 2008, pet. ref’d). The review of a

trial court’s order revoking community supervision is limited to determining

25 whether the trial court abused its discretion, taking into account the sufficiency of

the evidence supporting the basis for revocation. Hacker v. State, 389 S.W.3d 860,

865 (Tex.Crim.App. 2013); Caddell v. State, 605 S.W.2d 275, 277 (Tex.Crim.App.

1980). Abuse of discretion occurs ―only when the trial judge’s decision was so

clearly wrong as to lie outside the zone within which reasonable persons might

disagree.‖ Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992).

The State must prove by a preponderance of the evidence that a defendant

violated the terms of his probation. Cobb v. State, 851 S.W.2d 871 (Tex.Crim.App.

1993); Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984). The State’s

burden of proof is satisfied if the greater weight of credible evidence creates a

reasonable belief that the defendant violated a condition of his probation as alleged

by the State. Rickels v. State, 202 S.W.3d 759, 764 (Tex.Crim.App. 2006); Solis v.

State, 589 S.W.2d 444, 447 (Tex.Crim.App. 1979). However, when a trial court

finds several violations of probationary conditions, as is the case in the instant

cause, the order revoking probation must be affirmed on appeal if the proof of any

single allegation is sufficient. Moore v. State, 605 S.W.2d 924, 926

(Tex.Crim.App. 1980) (―We need not address appellant’s other contentions since

one sufficient ground for revocation will support the court’s order to revoke

probation.‖); Hart v. State, 264 S.W.3d 364, 367 (Tex.App.—Eastland 2008, pet.

26 ref’d); Greer v. State, 999 S.W.2d 484, 486 (Tex.App.—Houston [14th Dist.]

1999, pet. ref’d).

In community supervision revocation cases, a claim of insufficient

evidence is limited to the traditional legal-sufficiency analysis, in which the

evidence is viewed in the light most favorable to the decision to revoke. Hart, 264

S.W.3d at 367. In a revocation proceeding, the trial judge is the sole trier of the

facts, the credibility of the witnesses, and the weight to be given their testimony.

Diaz v. State, 516 S.W.2d 154, 156 (Tex.Crim.App. 1974). When the State fails to

meet its burden, it is an abuse of discretion for the trial court to issue a revocation

order. Cobb, 851 S.W.2d at 874; Cardona, 665 S.W.2d at 493–94. ―To overturn a

revocation order, a defendant must successfully challenge each finding on which

the revocation is based.‖ Harris v. State, 160 S.W.3d 621, 626 (Tex. App.—Waco

2005, pet. dism’d); see also Jones v. State, 571 S.W.2d 191, 193-4 (Tex.Crim.App.

1978 [Panel Op.]); Brooks v. State, 153 S.W.3d 124, 126 (Tex. App.—Beaumont

2004, no pet.). The degree of proof required to establish the truth of the allegation

in a motion to revoke probation is not the same as a criminal prosecution. Hacker,

389 S.W.3d at 865. This means that a defendant may be acquitted of a crime and

still have his probation revoked based on the same act, because a ―preponderance-

of-the-evidence‖ standard—rather than a ―beyond-a-reasonable-doubt‖ standard—

27 applies to revocation proceedings. See Barrett v. State, 630 S.W.2d 335, 336-7

(Tex.App.—Houston [14th Dist.] 1982, no pet.).

The State presented unchallenged and uncontroverted evidence that

Appellant caused Angela Budzinski bodily injury on October 10, 2013, as alleged

in its motion, by striking her on or about her face with his hand and pushing her

with his hand and by dragging her by his hand and pulling her hair with his hand.

The State also presented unchallenged and uncontroverted evidence that Budzinski

was a member of Appellant’s household or had been in a dating relationship with

Appellant. RR2 83-92; RR3 SX # 11-14; CR1 51. The State presented

unchallenged and uncontroverted evidence that Appellant caused Budzinski bodily

injury on November 3, 2013, by seizing a phone from her hand and bending her

finger with his hand, and that he knowingly prevented or interfered with her ability

to place an emergency call or request assistance by seizing her phone. RR2 92-

101; RR3 SX # 15-21; CR1 51. The State presented unchallenged and

uncontroverted evidence that Appellant caused Andrea Leal bodily injury on April

8, 2014, by striking her on or about the face with a cell phone, by pushing her with

his hand, and by seizing her on or about the throat and neck and impeding her

normal breathing and circulation of the blood by applying pressure with his hand.

RR2 47-59; RR3 SX # 23; CR1 52. The State also presented unchallenged and

uncontroverted evidence that Appellant caused Andrea Leal bodily injury on April

28 20, 2014, by striking her on or about her face with his hand. RR2 60-6; CR1 52.

All of these violations were duly reflected both by the trial court’s oral and written

pronouncement of judgment. RR2 150-2; CR1 71-2. Even if one freely assumes

that the other allegations alleged were not satisfactorily proven by the State, or that

trial counsel’s various objections should have been fully sustained, the evidence

adduced at the hearing sufficed to support the trial court’s decision to adjudicate

Appellant’s guilt. See, e.g., RR2 8-9, 11-12, 15-16, 18, 26-8, 38-41, 117, 120-1.

The punishment assessed was within the range authorized by statute. See Tex.

Penal Code §§ 12.42(a), 22.01(b)(2),(A). Except as noted herein, the judgment of

the trial court must be affirmed.

PRAYER

WHEREFORE, PREMISES CONSIDERED, for the reasons stated above,

Appellant prays that this Court modify the ―Judgement Adjudicating Guilt‖ by

deleting the recitals described above. Appellant prays for all other general relief to

which he may be entitled.

29 Respectfully submitted,

__/s/ Paul M. Evans__________ Paul M. Evans 811 Nueces Street Austin, Texas 78701 (512) 569-1418 (512) 692-8002 FAX SBN 24038885 paulmatthewevans@hotmail.com

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing

Appellant’s Brief was delivered by e-service facsimile to the office of the District

Attorney of Travis County—mailing address P.O. Box 1748, Austin, Texas 78767,

physical address 509 W. 11th Street, Austin, Texas 78701—on this the 4th day of

September, 2015.

___/s/ Paul M. Evans_____________

Paul M. Evans

30 CERTIFICATE OF COMPLIANCE

Relying on the Microsoft Word 97-2003 Document word count utility, I

hereby certify that the present document contains 6,427 words, counting all

contents herein.