Riddle, Michael Wade

• Court: Court of Appeals of Texas
• Decided: December 30, 2014
• Docket: PD-1627-14
• Status: Published

Opinion

PD-1627-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/29/2014 9:05:12 AM Accepted 12/30/2014 9:59:38 AM ABEL ACOSTA Cause No. PD-1627-14 CLERK

In the Court of Criminal Appeals of Texas

Michael Wade Riddle, Petitioner

December 30, 2014 v.

The State of Texas, Respondent

On Review from Cause No. 02-14-00180-CR in the Second Court of Appeals Fort Worth, Texas

State’s Response to Petitioner’s PDR

Maureen Shelton Wichita County Criminal District Attorney

Anthony Bates Carey Jensen Asst. Criminal District Attorney Asst. Criminal District Attorney Wichita County, Texas Wichita County, Texas State Bar No. 24076904 State Bar No. 24083252 Tony.Bates@co.wichita.tx.us Carey.Jensen@co.wichita.tx.us

900 Seventh Street Wichita Falls, Texas 76301 (940) 766-8113 phone (940) 716-8530 fax

Attorneys for Respondent State of Texas

Oral Argument Not Requested To the Court of Criminal Appeals:

Pursuant to Rule 68.9 of the Rules of Appellate Procedure, the State

submits its reply to Appellant’s petition for discretionary review. The State

makes this reply in order to briefly address arguments set forth by

Appellant in his petition.

Statement Regarding Oral Argument

The State is not requesting oral argument in this case.

Argument

The State respectfully requests this Court deny Appellant’s petition

because (1) the Petitioner expressly waived his right to closing argument

prior to the trial court’s announcement of the sentence; and (2) the

probation condition that required the Petitioner to successfully complete

sex offender treatment counseling was not modified; therefore, Tex. Crim.

Proc. Code Ann. Art 42.12 §10(e) was not triggered.

Petitioner expressly waived his right to closing argument in the disposition phase of trial.

Petitioner argues that the trial court refused to allow closing

arguments on sentencing. Petitioner asserts that he did make an objection

prior to the trial court pronouncing sentence and further that he was “not

required to formally make a request again or except to the court’s ruling.”

(PDR at 7) 2 Petitioner was represented by his court-appointed counsel, Brennon

Brady, at the sentencing hearing.1 Mr. Brady did make an objection prior to

the pronouncement of sentence. However, Petitioner misleads this Court

by insinuating that the objection pertained to closing arguments. (PDR at 5,

7) Immediately preceding the trial court’s denial of Petitioner’s motion for

continuance, Mr. Brady stated, ““…there’s really nothing left for us [to do]

other than hear the Court’s sentence in this case. And I’m prepared to hear

the sentence and Mr. Riddle just would like to ask for a continuance so that

[another attorney] would be present at the sentencing.” (R.R. 5:6) This

constituted an express waiver of the right to closing argument by the

Petitioner.

The probation condition at issue was not modified.

The condition at issue required Petitioner to “remain in the Sexual

Abuse Treatment Program until the program [had] been successfully

completed, as determined by the treatment specialist…” (C.R. 61) This

condition did not specify who the treatment specialist would be or describe

the program in any way, except by calling it the Sexual Abuse Treatment

Program. As such, a change in provider or even the program itself did not

1 Despite repeated references to Mr. Brady as a fill-in attorney, he was in fact the Petitioner’s attorney of record at the time of trial. (C.R. 70) 3 constitute a modification of the condition, so long as it remained the Sexual

Abuse Treatment Program.

This is not to say that the State could have required Petitioner to

participate in an unrelated program without proper modification simply by

labeling that unrelated program the “Sexual Abuse Treatment Program.”

Clearly, this was not such a situation. The program, regardless of changes

in provider, really was always the Sexual Abuse Treatment Program, and

nothing in the record indicates evidence to the contrary. As such, the only

way for Petitioner to continue in the program as required by the probation

condition was to continue with the new treatment provider.

Prayer

The State prays that the Court deny Appellant’s petition for

discretionary review.

Respectfully submitted,

Maureen Shelton Criminal District Attorney Wichita County, Texas

/s/Anthony Bates Anthony Bates Asst. Criminal District Attorney Wichita County, Texas State Bar No. 24076904 Tony.Bates@co.wichita.tx.us

4 /s/Carey Jensen Carey Jensen Asst. Criminal District Attorney Wichita County, Texas State Bar No. 24083252 Carey.Jensen@co.wichita.tx.us

900 Seventh Street Wichita Falls, Texas 76301 (940) 766-8113 phone (940) 766-8177 fax

Certificate of Compliance

I certify that this document contains 523 words. The body text is in

14 point font, and the footnote text is in 12 point font.

/s/Carey Jensen

Certificate of Service

I certify that on December 29, 2014, a true and correct copy of the

above document has been forwarded Paul Francis via electronic service to

pfrancis@birch.net as well as the State Prosecuting Attorney, Lisa C.

McMinn, via electronic service to information@spa.texas.gov.