Hector Hato LaBoy v. State
03-15-00433-CR
Tex. App.Oct 14, 2015Background
- Appellant Hector Hato Laboy was placed on five years' felony probation for Assault Family Violence (Aug. 12, 2013).
- On March 13, 2015 the State moved to revoke probation alleging positive/ missed UA tests, failure to pay fees, and new offenses: Terroristic Threat and Criminal Mischief (Feb. 13–14, 2015).
- At the June 12, 2015 revocation hearing the State amended the terroristic-threat date to Feb. 14; Laboy admitted to the drug-related violations but did not object to the amendment.
- Officer Travis Lucas testified he detained Laboy near the criminal-mischief scene, spoke with a witness (Jakuri/ Jacuri McLaurin) who said Laboy slashed tires, and related that Laboy, during a phone call played on speaker, said "I'm going to kill Jakuri."
- The trial judge stated he was not revoking based on fees or urine tests but found the threats and property-damage allegations true and revoked probation, sentencing Laboy to three years' imprisonment.
Issues
| Issue | Plaintiff's Argument (Laboy) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether evidence supports that Laboy committed a Terroristic Threat (imminence element) | Single statement "I'm going to kill Jakuri" was not sufficiently imminent to meet §22.07(a)(2) (no showing threat was "on the point of happening") | Threat and surrounding circumstances supported revocation for terroristic threat | Trial court revoked probation based on threats (judge relied on threats and property damage) |
| Whether counsel was ineffective for failing to object to hearsay testimony about Criminal Mischief | Failure to object to Officer Lucas's testimony repeating McLaurin's out-of-court statements was deficient and violated Confrontation; without it there was no evidence of criminal mischief, which prejudiced Laboy | State relied on officer's testimony to prove criminal mischief and on the totality of evidence to support revocation | Trial court proceeded; appellate brief argues counsel's omission was prejudicial and would warrant reversal/remand |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes ineffective-assistance standard)
- Devine v. State, 786 S.W.2d 268 (Tex. Crim. App.) (definition/analysis of imminence for terroristic-threat-type conduct)
- Cook v. State, 940 S.W.2d 344 (Tex. App.–Amarillo 1997) (examples of sufficient threat evidence where repeated, explicit threats were made)
- In re A.C., 48 S.W.3d 899 (Tex. App.–Fort Worth 2001) (imminence and terroristic-threat analysis)
- Frangias v. State, 392 S.W.3d 642 (Tex. Crim. App. 2013) (reviewing counsel performance under Strickland; single serious error can be egregious)
- Davis v. State, 413 S.W.3d 813 (Tex. App.–Austin 2013) (ineffective-assistance precedents and prejudice analysis)