PD-0724-15
PD-0724-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
Transmitted 7/17/2015 1:32:55 PM Accepted 7/17/2015 4:36:02 PM ABEL ACOSTA
ORAL ARGUMENT REQUESTED CLERK
NO. PD-0724-15
IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS SITTING AT AUSTIN, TEXAS
FATIMAH RAHMAN,
Petitioner,
VS.
THE STATE OF TEXAS
Respondent
On Petition for Discretionary Review To the Court of Appeals Twelfth Supreme Judicial District Cause No. 12-14-00225-CR
PETITION SEEKING DISCRETIONARY REVIEW
James W. Huggler State Bar No. 00795437 100 E. Ferguson, Suite 805 Tyler, Texas 75702 Telephone: 903-593-2400 July 17, 2015 Facsimile: 903-593-3830 jhugglerlaw@sbcglobal.net
ATTORNEY FOR PETITIONER
IDENTITY OF PARTIES
Trial Court Judge: Christi Kennedy, Presiding 114th Judicial District Court Smith County, Texas 100 N. Broadway, 2nd Floor Tyler, Texas 75702
Appellant/Petitioner: Fatima Rahman TDCJ# 01943470 Halbert Unit 800 Ellen Halbert Drive Burnet, Texas 78611
Appellant’s A. M. Thompson Trial Counsel: 2108 S. Wall Tyler, Texas 75701
James Huggler 100 E. Ferguson, Suite 805 Tyler, Texas 75702
A. Reeve Jackson 112 E. Line, Suite 310 Tyler, Texas 75702
Appellant’s James Huggler Appellate Counsel: 100 E. Ferguson, Suite 805 Tyler, Texas 75702
Appellee/Respondent: State of Texas Smith County Criminal District Attorney’s Office
State’s Whitney Tharpe Trial Counsel: Richard Crowther Jacob Putman Chris Gatewood
i
Smith County District Attorney’s Office 100 N. Broadway, 4th Floor Tyler, Texas 75702
State’s Michael West Appellate Counsel: Aaron Rediker Smith County District Attorney’s Office 100 N. Broadway, 4th Floor Tyler, Texas 75702
TABLE OF CONTENTS
DESCRIPTION PAGE IDENTITY OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 3
GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 What is a Defendant’s right to due process of law in a revocation proceeding, or are those rights violated if a Motion to Revoke probation proceeds without a signature from a prosecutor?
What is a Defendant’s right to due course of law in a revocation proceeding, or are those rights violated if a Motion to Revoke probation proceeds without a signature from a prosecutor?
REASONS FOR GRANTING REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. Reasons for Granting Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 B. Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 C. Application to these facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 D. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 iii
4
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
APPENDIX A - Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
INDEX OF AUTHORITIES
STATUTES Tex. Code Crim. Proc. Ann. Art. ann. 1.052( c) (West 2014). . . . . . . . . . 9 Tex. Code Crim. Proc. Ann. art. 2.04 (West 2013). . . . . . . . . . . . . . . . . . 9 Tex. Code Crim. Proc. Ann. art. 15.05 4 (West 2013). . . . . . . . . . . . . . 10 Tex. Code Crim. Proc. Ann. art. 42.12 §21(b) (West 2009). . . . . . . . . . . 8 TEX. PENAL CODE ANN. §49.04 (West 2009). . . . . . . . . . . . . . . . . . . . . 2, 4 TEX. PENAL CODE ANN. §49.09(b)(2) (West 2009). . . . . . . . . . . . . . . . . 2, 4
CASES Bradley v. State, 564 S.W.2d 727 (Tex. Crim. App. 1978). . . . . . . . . . . . 7 Brent v. State, 916 S.W.2d 34, 37 (Tex. App. – Houston [1st Dist.]
1995, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Caddell v. State, 605 S.W.2d 275 (Tex. Crim. App. 1980). . . . . . . . . . . . 6 Davenport v. State, 574 S.W.2d 73 ((Tex. Crim. App. 1978). . . . . . . . . . 7 Gagnon v. Scarpelli, 411 U.S. 778, 786, 36 L.Ed. 2d 656, 93 S. Ct. 1756 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Garner v. State, 545 S.W.2d 178 (Tex. Crim. App. 1977). . . . . . . . . . . . 8 Lugaro v. State, 904 S.W.2d 842 (Tex. App. – Corpus Christi 1995, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Rahman v. State, No. 12-14-00225-CR, Tex. App. – Tyler, May 13, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim Schackelford v. State, 516 S.W.3d 180 (Tex. Crim. App. 1974). . . . . . . . 9 Spruill v. State, 382 S.W.2d 842 (Tex. App. – Austin 1995, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
v
6
Staten v. State, 328 S.W.3d 901 (Tex. App. – Beaumont 2010, no pet.). 6 Whitson v. State, 429 S.W.3d 632 (Tex. Crim. App. 2014). . . . . . . . . . . 8
RULES TEX. R. APP. P. ANN. 9.4 (West 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . 12 TEX. R. APP. P. ANN. 66.3(a) (West 2014). . . . . . . . . . . . . . . . . . . . . . . . . 3 TEX. R. APP. P. ANN. 66.3(b) (West 2014). . . . . . . . . . . . . . . . . . . . . . . . . 4 TEX. R. APP. P. ANN. 66.3(e) (West 2014). . . . . . . . . . . . . . . . . . . . . . . . . 4
OTHER SOURCES Office of Court Administration, Annual Statistical Report for the Texas Judiciary, Fiscal Year 2014. . . . . . . . . . . . . . . . . . . . . . . . 7
PD-0724-15
FATIMA RAHMAN, § IN THE COURT OF PETITIONER § §
VS. § CRIMINAL APPEALS §
THE STATE OF TEXAS, § APPELLEE § AUSTIN, TEXAS
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Now Comes Fatima Rahman, Petitioner and Defendant in the trial
court, and respectfully submits this her Petition for Discretionary Review
complaining of the ruling and opinion by the Court of Appeals for the
Twelfth Supreme Judicial District, and would show the Court as follows:
STATEMENT REGARDING ORAL ARGUMENT
In the event this Court grants this petition, Petitioner requests the
Court to grant oral argument herein so that all matters may be clarified
and any questions presented by the briefs of the parties may be addressed
in a proper manner.
STATEMENT OF THE CASE
Appellant was indicted in Cause Number 114-1451-10 and charged
with the felony offense of driving while intoxicated. I CR 21; see TEX.
PENAL CODE ANN . §§49.04, 49.09(b)(2) (West 2009). A guilty plea with an
agreement for a probated sentence was entered. I CR 7; I RR 15-162. The
State filed an Application to Revoke Community Supervision. I CR 54-56.
Ms. Rahman entered a plea of true to each allegation and after evidence
and argument, the court revoked her probation and sentenced her to five
years confinement. I CR 76-77; IV RR 34-35. Notice of appeal was timely
filed. I CR 78. The Court of Appeals affirmed the trial court’s sentence
in an unpublished opinion, and this petition follows. The Petition is
timely filed on or before July 25, 2015 following proper extensions granted
by this Court.
1 References to the Clerk’s Record are designated “CR” with a roman numeral preceding “CR” indicating the correct volume and an arabic numeral following “CR” specifying the correct page in the record.
2 References to the Reporter’s Record are designated “RR”
with a roman numeral preceding “RR” indicating the correct volume, and an arabic numeral following “RR” specifying the correct page.
STATEMENT OF PROCEDURAL HISTORY
The Twelfth Court of Appeals issued an opinion in number 12-14-
00225-CR on May 13, 2015. No motion for rehearing was filed. On June
12, 2015, a Motion to Extend Time to File Petition for Discretionary
Review was filed. That Motion was granted and the time to file a petition
for discretionary review was extended until July 13, 2015. Counsel
inadvertently did not include the identity of the parties and was granted
ten days to correct and refile the Petition.
GROUND FOR REVIEW
What is a Defendant’s right to due process of law in a revocation proceeding, or are those rights violated if a Motion to Revoke probation proceeds without a signature from a prosecutor?
What is a Defendant’s right to due course of law in a revocation proceeding, or are those rights violated if a Motion to Revoke probation proceeds without a signature from a prosecutor?
REASONS FOR GRANTING REVIEW
The decision of the Court of Appeals conflicts with another court of
appeals decision on the same issue. TEX. R. APP. P. ANN. 66.3(a) (West
4
2014).
The decision of the Court of Appeals decided an important question
of state or federal law that has not been, but should be, settled by the
Court of Criminal Appeals. Tex. R. App. P. Ann. 66.3(b) (West 2014).
The decision of the Court of Appeals conflicts with an applicable
decision of the Court of Criminal Appeals on an important question of
state law. TEX. R. APP. PROC. ANN. 66.3( c)(West 2014).
STATEMENT OF FACTS
Fatima Rahman was indicted for the third degree felony offense of
driving while intoxicated. I CR 3. TEX. PENAL CODE ANN. §§49.04 and
49.09(b)(2)(West 2009). A plea agreement was reached and Ms. Rahman
received a sentence of ten years probated for a period of seven years. I RR
11. A guilty plea was entered to the indictment and the two jurisdictional
paragraphs. I RR 15-16. The court followed the plea agreement and
sentenced Ms. Rahman accordingly. II RR 8; I CR 19-20, 21-24.
The State filed three different motions to revoke the probation. I
CR32-34, 44-46. The first motion was dismissed and the probation was
5
modified. I CR 37-38. The second motion was also dismissed. I CR 47.
The third motion to revoke filed on July 9, 2012 included the following
allegations: (1) that Ms. Rahman was placed on probation; (2) that she
used or consumed marijuana; (3) that she possessed marijuana; (4) and (5)
that she failed to submit to urinalysis testing. I CR 54-56. Another
application to revoke containing different allegations was also filed on
July 8, 2014. I CR 60-62. This application alleged that Ms. Rahman (1)
was placed on probation; (2) that she operated a motor vehicle while her
driver’s license was suspended in Tarrant County; (3) that she operated
a motor vehicle while her license was suspended in Hood County; and (4)
that she failed to pay supervision fees. I CR 60-62.
Ms. Rahman entered a plea of true to identity, and all substantive
paragraphs to the July 8, 2014 application. I CR 73; IV 17-19. We know
it was the July 8, 2014 application because the trial court read each
allegation prior to asking a plea. IV RR 17-19. Following evidence and
argument of counsel, the trial court found each paragraph true, revoked
her probation and sentenced her to five years confinement. IV RR 34-35.
Further discussion of relevant facts is included below.
ARGUMENTS AND AUTHORITIES
A. Reasons for Granting Review
While it is clear that a defendant is not entitled to the same level of
due process or due course of law in revocation proceedings, no court has
ever stated that a defendant does not have any right to due process or due
course of law. Courts have stated that there are certain minimums in
revocation proceedings. Those include: (1) written notice of the claimed
violations of the terms of supervision; (2) the disclosure of evidence
against him; (3) the opportunity to be heard and present witnesses and
evidence; (4) a neutral and detached hearing body; (5) the opportunity to
cross-examine witnesses; and (6) a written statement as to the evidence
relied on and the reasons for revoking supervision. Staten v. State, 328
S.W.3d 901, 905 (Tex. App. – Beaumont, 2010, no pet.)(internal citations
omitted).
This Court has stated that a probationer is entitled to the
“rudiments of due process.” one of which is a written motion to revoke that
fully informs him of the violation of a term of probation which he is
alleged to have breached. Caddell v. State, 605 S.W.2d 275, 277 (Tex.
Crim. App. 1980). Surely one of those rudiments of due process is the
7
simple requirement that a motion to revoke probation be reviewed and
signed by a prosecutor.
In fiscal year 2014, there were 61,338 motions to revoke filed in the
State of Texas. Office of Court Administration, Annual Statistical Report
for the Texas Judiciary, Fiscal Year 2014, p. 54-55.3 This Court has not
reviewed the minimum due process requirements for revocation
proceedings in some time. However, stating whether a prosecutor has to
review and sign a motion to revoke should be a minimal due process
requirement is an important issue which should be decided by this Court.
Rahman No. 12-14-00225-CR at 4.
B. Analysis
Probation revocation proceedings are not criminal trials in the
constitutional sense; rather, they are administrative in nature. Davenport
v. State, 574 S.W.2d 73, 76 (Tex. Crim. App. 1978); Bradley v. State, 564
S.W.2d 727, 729 (Tex. Crim. App. 1978). However, a person placed on
probation does not lose all their rights. A probationer is entitled to a
3 Accessed at http://www.txcourts.gov/media/885306/Annual-Statistical-Report-FY -2014.pdf on July 13, 2015.
8
written motion to revoke that fully informs her of the violation of a term
of probation which she is alleged to have breached. Garner v. State, 545
S.W.2d 178, 179 (Tex. Crim. App. 1977). A probationer is entitled to
minimum requirements of due process which must be observed in
revocation proceedings. Gagnon v. Scarpelli, 411 U.S. 778, 7869, 36 L. Ed.
2d 656, 93 S. Ct. 1756 (1973).
The State cannot file an application to revoke after the term of
supervision has ended. Whitson v. State, 429 S.W.3d 632 (Tex. Crim. App.
2014). A motion to revoke must give fair notice of the allegations. Spruill
v. State, 382 S.W.3d 518, 520 (Tex. App. – Austin 2012, no pet). A
defendant has the right to counsel at revocation proceedings. Lugaro v.
State, 904 S.W.2d 842, 843-44 (Tex. App. – Corpus Christi 1995, no pet).
The State may amend a motion to revoke community supervision any time
up to seven days before the date of the revocation hearing, after which
time the motion may not be amended except for good cause shown, and in
no event may the State amend the motion after the commencement of
taking evidence at the hearing. TEX. CODE CRIM. PROC. ANN. art. 42.12
§21(b) (West 2009).
9
C. Application to These Facts
There are two documents contained in the record seeking revocation
of supervision. The first was filed on July 8, 2014 and contained four
paragraphs. I CR 60-62. The second was filed on July 9, 2014 and
contained five paragraphs. I CR 54-56. The trial court took a plea of true
to each paragraph contained in the July 8, 2014 application. IV RR 17-19.
There are two problems with the trial court taking proceeding on the
July 8, 2014 application. First, the July 8, 2014 application to revoke was
superseded by the July 9, 2014 application to revoke. The second is that
the pleading which was used was not signed by an attorney representing
the State of Texas. I CR 62.
If a pleading is not signed, the court shall strike it unless it is signed
promptly after the omission is called to the attention of the attorney or the
defendant. TEX. CODE CRIM . PROC. ANN. art. 1.052( c) (West 2014). While
that provision is contained in a section entitled “Signed Pleadings of
Defendant”, it applies equally to pleadings signed by the State of Texas.
A criminal complaint must be signed and attested to by a
prosecuting attorney. TEX. CODE CRIM. PROC. ANN. art. 2.04 (West 2013).
A defect in a complaint if undated is defective. Shackelford v. State, 516
10
S.W.2d 180 (Tex. Crim. App. 1974). A complaint must also be signed.
TEX. CODE CRIM. PROC. ANN. art. 15.05 4 (West 2013); Brent v. State, 916
S.W.2d 34.37 (Tex. App. – Houston [1st Dist.] 1995, pet. ref’d).
While Appellant does not claim that a motion to revoke probation is
identical to a criminal complaint, it is certainly similar, especially in a due
process or due course of law analysis. Mistakes can occur, but when those
mistakes are of Constitutional magnitude, this Court should address them
to prevent Constitutional error in the future.
E. Conclusion
A probation revocation has a lower burden of proof and lower
minimums of due process. However, there is still a due process
requirement and this Court should require that a motion to revoke be
signed and reviewed by a prosecuting attorney prior to being acted upon
by a trial court. Otherwise, as in this case, there is no indication that
anyone except a non-attorney probation officer reviewed the facts of the
allegations, or the language to revoke, and that offends our concept of due
process.
CONCLUSION
Under all circumstances, the Court of Appeals erred in affirming the
trial court’s decision. This court should grant discretionary review, allow
complete briefing, and, upon such review, reverse the Court of Appeals
and remand the case to the Court of Appeals.
PRAYER
WHEREFORE, Petitioner prays the Court to grant discretionary
review and, upon such review, to reverse the judgment of the Court of
Appeals; and for such other and further relief to which he may show
himself justly entitled.
Respectfully submitted,
/s/ James Huggler James W. Huggler State Bar No. 00795437 100 E. Ferguson, Suite 805 Tyler, Texas 75702 Telephone: 903-593-2400 Facsimile: 903-593-3830 jhugglerlaw@sbcglobal.net ATTORNEY FOR PETITIONER
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Petition
has been forwarded to Mike West, Smith County District Attorney’s
Office, and on the State Prosecuting Attorney through the State of Texas
Electronic Filing System on this the 17th day of July, 2015 at the
addresses listed below
/s/ James Huggler James W. Huggler
Mike West Smith County District Attorney’s Office 100 N. Broadway, 4th Floor Tyler, Texas 75702
Lisa McMinn State Prosecuting Attorney PO Box 12405 Austin, Texas 78711
CERTIFICATE OF COMPLIANCE I certify that this Petition complies with Tex. R. App. P. 9.4, specifically using 14 point Century font and contains 1, 912 words as counted by Corel WordPerfect version x6.
/s/ James Huggler James W. Huggler, Jr.
NO. PD-0724-15
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS SITTING AT
AUSTIN, TEXAS
*********************************************************
FATIMA RAHMAN,
Petitioner
VS.
THE STATE OF TEXAS,
Respondent
*********************************************************
On Petition for Discretionary Review To the Court of Appeals Twelfth Supreme Judicial District Cause No. 12-14-00225-CR
********************************************************* APPENDIX
*********************************************************
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FATIMA RAHMAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE
NO. 12-14-00225-CR
COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER
2015 Tex. App. LEXIS 4820
May 13, 2015, Opinion Delivered
NOTICE: PLEASE CONSULT THE which she was sentenced to imprisonment TEXAS RULES OF APPELLATE for five years. In three issues, Appellant PROCEDURE FOR CITATION OF argues that the trial court erred in UNPUBLISHED OPINIONS. imposing attorney's fees and in proceeding on an unsigned application to PRIOR HISTORY: [*1] Appeal from revoke community supervision. We the 114th District Court of Smith County, affirm. Texas. (Tr.Ct.No. 114-1451-10). Judge Christi J. Kennedy. BACKGROUND Appellant was charged by indictment with felony driving while intoxicated. She COUNSEL: James Huggler, for pleaded "guilty" to the offense. The trial Appellant. court assessed an agreed sentence of imprisonment for ten years, suspended the Aaron Rediker, for State. sentence, and placed Appellant on community supervision for a term of JUDGES: Panel consisted of Worthen, seven years. C.J., Hoyle, J., and Neeley, J.
Subsequently, the State filed an OPINION BY: BRIAN HOYLE application to revoke Appellant's community supervision alleging three OPINION violations of the terms. Appellant pleaded true to all three allegations. The trial court MEMORANDUM OPINION found the allegations to be true, revoked Appellant's community supervision, and Fatima Rahman appeals her conviction assessed her punishment at imprisonment for felony driving while intoxicated, for for five years.
This appeal followed. [*2] enable him to [*3] offset in part or in whole the costs of the legal services ATTORNEY'S FEES provided. See Johnson v. State, 405 S.W.3d 350, 354 (Tex. App.--Tyler 2013, In her first issue, Appellant argues that no pet.). If the record does not show that the trial court improperly assessed the defendant's financial circumstances attorney's fees when it placed her on materially changed, there is no basis for community supervision. the imposition of attorney's fees. See TEX.
CODE CRIM. PROC. ANN. art. 26.04(p);
Standard of Review and Applicable Mayer v. State, 309 S.W.3d 552, 553, 557 Law (Tex. Crim. App. 2010); Johnson, 405 The imposition of court costs upon a S.W.3d at 354.
criminal defendant is a "nonpunitive recoupment of the costs of judicial Analysis resources expended in connection with Appellant argues that attorney's fees the trial of the case." Johnson v. State were improperly assessed against her 423 S.W.3d 385, 390 (Tex. Crim. App. when she was placed on community 2014). When the imposition of court costs supervision because she was found to be is challenged on appeal, we review the indigent. She contends that because the assessment of costs to determine if there record contains no evidence to support a is a basis for the costs, not to determine if finding that she is not indigent, the sufficient evidence to prove each cost was judgment and bill of costs should be offered at trial. Id. modified to delete the attorney's fees. She A trial court has the authority to assess further asserts that she has already paid attorney's fees against a criminal the attorney's fees, and she contends the defendant who received court-appointed clerk's office should be ordered to return counsel. TEX. CODE CRIM . PROC. ANN. art. the money to her. 26.05(g) (West Supp. 2014). But once a Appellant pleaded guilty and was criminal defendant has been determined placed on community supervision in to be indigent, he "is presumed to remain November 2010. The judgment of indigent for the remainder of the conviction assesses an amount of $694.00 proceedings unless a material change in in court costs. No bill of costs itemizing his financial circumstances occurs." TEX. these costs appears in the record. In July CODE CRIM. PROC. ANN. art. 26.04(p) 2014, after a hearing on the State's (West Supp. 2014). Before attorney's fees application to revoke, the trial court may be imposed, the trial court must make revoked App ella nt's co mmunit y a determination supported by some supervision. The judgment revoking factual basis in the record that the community supervision shows court costs defendant has the financial resources to of $0.00. A bill of costs dated July [*4]
16
30, 2014 appears in the record and lists In her second and third issues, court costs totaling $394.00. Attorney's Appellant argues that the trial court erred fees are not listed among these costs. The by revoking her community supervision record indicates that the trial court based on an unsigned application to determined Appellant was indigent revoke, violating her right to due process because it appointed counsel to represent and due course of law under the United her at the guilty plea hearing, at two States and Texas Constitutions. revocation hearings, and in this appeal.
Nothing in the record shows that the Standard of Review and Applicable court costs assessed in the judgment of Law conviction included attorney's fees. We review a trial court's order Therefore, the record does not support revoking a defendant's placement on Appellant's argument that she was community supervision for an abuse of improperly assessed attorney's fees. discretion. Rickels v. State, 202 S.W.3d Consequently, her challenge is more 759, 763 (Tex. Crim. App. 2006). The appropriately termed a challenge to the state's burden of proof in a revocation lack of a bill of costs itemizing the costs proceeding is by a preponderance of the named in the judgment of conviction. As evidence. Cobb v. State, 851 S.W.2d 871, a general rule, issues related to the 874 (Tex. Crim. App. 1993). conviction of a defendant placed on community supervision may be raised While a defendant at a revocation only in an appeal taken when community proceeding need not be afforded the full supervision is originally imposed. range of constitutional and statutory Manuel v. State, 994 S.W.2d 658, 661 protections that are available in the trial (Tex. Crim. App. 1999). In other words, of a criminal case, a person on community such issues may not be raised in an appeal supervision is entitled to certain due filed after community supervision is process protections. Gagnon v. Scarpelli, revoked. Id. 411 U.S. 778, 781-82, 93 S. Ct. 1756, 1759-60, 36 L. Ed. 2d 656 (1973);
The app rop riate ve hicle for Bradley v. State, 564 S.W.2d 727, 729-30 challenging the lack of a bill of costs (Tex. Crim. App. 1978). Due process, in itemizing the costs named in the judgment connection with community supervision of conviction was in a direct appeal from revocation proceedings, entitles a that judgment. See Manuel, 994 S.W.2d at defendant to (1) written notice of the 661. However, that did not occur. claimed violations of the terms of the Therefore, [*5] we conclude that the community supervision order; (2) the issue was forfeited. Accordingly, we disclosure of the evidence against him; overrule Appellant's first issue. (3) the opportunity to be heard in person and to present [*6] witnesses and UNSIGNED APPLICATION TO REVOKE
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documentary evidence; (4) a neutral and prosecutor. No mention [*7] of the lack detached hearing body; (5) the of a prosecutor's signature was made at opportunity to cross examine adverse the hearing on the application. witnesses, unless the hearing body In support of her argument, Appellant specifically finds good cause for not cites only authority that a complaint must allowing confrontation; and (6) a written be signed. See TEX. CODE CRIM. PROC. statement by the fact finder as to the ANN. art. 15.05(4) (West 2005); Brent v. evidence relied on and the reasons for State, 916 S.W.2d 34, 37 (Tex. App.-- revoking community supervision. Staten Houston [1st] 1995, pet. ref'd). Appellant v. State, 328 S.W.3d 901, 905 (Tex. App.-- concedes that an application to revoke Beaumont 2010, no pet.). community supervision is not identical to In the context of community a criminal complaint, but she argues that supervision revocation proceedings, due it is similar enough that we should apply process entitles a defendant to a written the same analysis. We disagree. The motion to revoke that fully informs him of motion to revoke Appellant's community the alleged violation of the term of supervision was not required to meet the community supervision. Caddell v. State, particularities of an indictment, 605 S.W.2d 275, 277 (Tex. Crim. App. information, or complaint. See Staten, 1980). A trial court's authority to revoke 328 S.W.3d at 906. We conclude that community supervision is limited to the Appellant's rights to due process and due grounds alleged in the state's motion to course of law were not violated because revoke community supervision. Moore v. of the lack of a prosecutor's signature on State, 11 S.W.3d 495, 499 (Tex. App.-- the application to revoke. Houston [14th Dist.] 2000, no pet.). A Accordingly, we overrule Appellant's motion to revoke community supervision second and third issues. is not required to meet the particularities of an indictment, information, or DISPOSITION complaint because the motion is held to a less rigorous standard. Staten, 328 S.W.3d Having overruled Appellant's first, at 906. The state's motion to revoke need second, and third issues, we affirm the only fully and clearly set forth the basis trial court's judgment. on which the state seeks revocation so BRIAN HOYLE that the defendant and his counsel have Justice
notice. Id.
Opinion delivered May 13, 2015.
Analysis JUDGMENT
In this case, the State's application to revoke is signed by a community THIS CAUSE came to be heard on the supervision officer, but not by a appellate record and briefs filed herein,
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and the same being considered, it is the things affirmed, and that this decision be opinion of this court that there was no certified to the court below for error in the judgment. observance.
It [*8] is therefore ORDERED, Brian Hoyle, Justice. ADJUDGED and DECREED that the judgment of the court below be in all