Terry Atkins v. State

Opinion

ACCEPTED 03-13-00509-CR 6859841 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/10/2015 9:49:48 AM JEFFREY D. KYLE

No. 03-13-00509-CR CLERK

IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS

FOR THE THIRD JUDICIAL DISTRICT9/10/2015 9:49:48 AM AUSTIN, TEXAS

JEFFREY D. KYLE Clerk

TERRY ATKINS vs. STATE OF TEXAS

APPELLANT’S MOTION FOR REHEARING

Amber Vazquez Bode Attorney at Law State Bar No. 24039225 1004 West Ave. Austin, Texas 78701 (512) 220-8507 (office) (512) 917-3676 (cell) (512) 480-0760 (fax)

ATTORNEY FOR APPELLANT TO THE HONORABLE COURT OF APPEALS:

COMES NOW, Appellant Terry Atkins, who files this Motion for

Rehearing, and respectfully asks this Court to revise its judgment in Cause

Number 03-13-00509-CR only.

I. GROUND FOR REHARDING

The Court of Appeals decision should be reconsidered because it is based

on the premise that there were other reasons to revoke Appellant’s

community supervision, such as a missed home visit, various supervision

fees and charging a GPS monitor, however, those reasons had been waived

by the State.

II. ARGUMENT AND AUTHORITIES

The Third Court of Appeals held that even one violation will support

the decision to adjudicate, and that “[t]he trial court expressly based its

decision on its finding that the allegations concerning the failure to allow the

home visit and the failure to participate in the GPS program were true.”

A decision based on those two violations should be reconsidered because the

State waived the violations regarding the home visit and GPS, stating,

“First of all I’d like to say that I believe the first- certainly the first six allegations in the motion to adjudicate really have very

little- it sounds like Mr.- even the probation officer believed that,

you know, he was having a hard time with his money, things like

that. Maybe the home visit thing has been explained.” The

State went on to argue, “No. 7 is the failure to participate

in the Global Positioning system, not charging you phone for

two days. It sounds like it might have been an inadvertence, too.

It doesn’t sound like anybody was hurt as a result of that.

The main thing the State is proceeding on in this case is this

criminal offense on February 22nd.” (RR pg. 130).

Courts of Appeal have recognized that the liberty of a probationer is

protected by the due process and due course of law provisions of the

constitution. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d

656 (1973); Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1976). This is

because his liberty, although indeterminate, includes many of the core values

of unqualified liberty, such as freedom to be with family and friends,

freedom to form other enduring attachments of normal life, freedom to be

gainfully employed, and freedom to function as a responsible and self-reliant

person. Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593 2600, 33

L.Ed.2d 484 (1972). In the current case, Appellant maintains that the evidence of the third

degree felony of Retaliation was insufficient, and was subsequently

dismissed after the hearing. The trial court erred by making affirmative

findings that Appellant violated terms of community supervision,

specifically failure to allow a home visit and failure to participate in the GPS

monitoring program, both of which had been expressly waived by the State.

The State made a clear argument to the trial court that their basis for

pursuing a Motion to Adjudicate was the subsequent Retaliation charge.

Therefore, the Court’s decision which was based exclusively on the same

violations that were waived, and did not address the sufficiency of the

evidence on the Retaliation charge should be reconsidered.

PRAYER

Wherefore, the Appellant prays that the Appellant’s Motion for Rehearing

be granted.

/s/ Amber Vazquez Bode AMBER VAZQUEZ BODE Attorney for Appellant State Bar No. 24039225 1004 West Ave. Austin, Texas 78701 PH: 512-220-8507 FAX: 512-480-0760 amberv@lawyers.com CERTIFICATE OF COMPLIANCE

I hereby certify that, pursuant to Rule 9.4 of the Texas Rules of

Appellate Procedure, Appellant’s Motion for Rehearing contains 725

words according to the computer generated program Microsoft Word.

/s/Amber Vazquez Bode Amber Vazquez Bode

CERTIFICATE OF SERVICE

I hereby certify that on September 9, 2015, a true and correct copy of

the Appellant’s Motion for Rehearing was sent to the following counsel by

eservice:

The Honorable Lisa C. McMinn State Prosecuting Attorney P.O. Box 13046 Austin, TX 78711

The Honorable Velva L. Price Criminal District Clerk P.O. BOX 1748 Austin, TX 78767

Ms. Kathryn A. Scales Assistant District Attorney PO Box 1748 Austin, TX 78767-1748 /s/ Amber Vazquez Bode Amber Vazquez Bode