Monique Danyell Napihaa v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 9, 2023
• Docket: 07-22-00178-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-22-00178-CR ________________________

MONIQUE DANYELL NAPIHAA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 108th District Court Potter County, Texas Trial Court No. 081159-E-CR, Honorable Douglas Woodburn, Presiding

January 9, 2023

MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

“What a difference a day makes.”1

The matter at bar concerned action on the State’s amended motion to revoke

Monique Danyell Napihaa’s community supervision. She had earlier been convicted of

assaulting a public servant. The trial court levied a five-year prison sentence, suspended

1 Dinah Washington it, and assigned her four years of probation. Determining that Napihaa violated various

conditions of that probation, the State moved to revoke it. The trial court heard the motion

on June 23, 2022, accepted Napihaa’s plea of true to the allegations therein, revoked

probation, and assessed the same sentence levied earlier, which again included four

years of probation. One day later, the same motion appeared again on the trial court’s

docket. At that hearing, the court again received and accepted Napihaa’s renewed plea

of true to the accusations. This time, though, it heard evidence before granting the very

motion it granted the previous day. Its sentence differed, however. No longer was

Napihaa allowed to remain on probation. Instead, the trial court ordered her to prison for

five years. We affirm.

The sole issue before us concerns whether her right to due process was denied

her. She argues that the denial stemmed from the inadequate warning of and deficient

amount of time to prepare for the second hearing. Admittedly, we are left to wonder why

the trial court held a second hearing and resentenced Napihaa the day after the first

hearing and sentence. No motion for new trial or reconsideration appears of record. Nor

did anyone explain to us the need or reason for the second hearing. Furthermore, the

identity of the counsel, trial court, and appellant remained the same; so, it can hardly be

suggested that those appearing at the June 24th proceeding were unaware on the 23rd.

What we do know, though, is that no one complained to the trial court about

proceeding anew. Rather, all did as they did a day earlier, announced ready to proceed,

and heard Napihaa’s second plea of true. On the 24th, though, she tendered evidence,

signed a document through which she waived “any right I may have to prepare for a

2 hearing on my community supervision revocation,” and received an unsuspended

sentence to prison. Odd, indeed. What a difference a day makes.

And, what a difference the absence of complaint makes. A defendant is required

to preserve an argument that the procedure used to revoke her community supervision

failed to comply with due process. Sneed v. State, 493 S.W.3d 218, 220 (Tex. App.—

Fort Worth 2016, no pet.). Should she not, the due process complaint falls beyond review.

Id. at 220-21. This is true even if the claim arose from an appellant first being reinstated

to probation in response to a motion to revoke and, via a second hearing on the same

motion, having probation revoked. Rogers v. State, 640 S.W.2d 248, 263-65 (Tex. Crim.

App. 1982). In view of Napihaa’s silence below, she waived her due process issue on

appeal.

We overrule the unpreserved issue and affirm the judgment of the trial court.

Brian Quinn Chief Justice

Do not publish.