Case Information
*0 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 9/15/2015 9:13:19 AM DORIAN E. RAMIREZ Clerk *1 ACCEPTED 13-15-074-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 9/15/2015 9:13:19 AM Dorian E. Ramirez CLERK No. 13-15-074-CR
IN THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS AT CORPUS CHRISTI JOHN LOPEZ,
APPELLANT,
v. THE STATE OF TEXAS, APPELLEE.
ON APPEAL FROM THE 94TH DISTRICT COURT NUECES COUNTY, TEXAS BRIEF FOR THE STATE Douglas K. Norman State Bar No. 15078900 Assistant District Attorney 105 th Judicial District of Texas 901 Leopard, Room 206 Corpus Christi, Texas 78401 (361) 888-0410
(361) 888-0399 (fax) douglas.norman@nuecesco.com Attorney for Appellee ORAL ARGUMENT IS REQUESTED *2 TABLE OF CONTENTS INDEX OF AUTHORITIES .......................................................................... ii
SUMMARY OF THE ARGUMENT ..............................................................1
ARGUMENT ...................................................................................................2
Reply Point No. 1
The trial court acted within its discretion in revoking Lopez’s probation
based on judicial notice of prior testimony by which the trial court
found by a preponderance of the evidence that Lopez committed a
criminal offense in violation of the terms of his probation. .......................2
I. The One-Violation Rule. ..................................................................2 II. Proof of the Criminal Offense Violation. .....................................3
Reply Point No. 2.
The statutory requirement for proof of ability to pay did not apply
because technical violations were not the only ones alleged at the
revocation hearing. .......................................................................................6
Reply Point No. 3
The trial court did not err in refusing to credit Lopez’s present sentence
with time spent in prison on a separate offense before his probation was
revoked in the present case. ..........................................................................7
I. Statement of Facts. ...........................................................................7 II. Time Credits. ..................................................................................8 III. Concurrent Sentencing. ................................................................8 IV. Application. ....................................................................................9
PRAYER ....................................................................................................... 10
RULE 9.4 (i) CERTIFICATION .................................................................. 11
CERTIFICATE OF SERVICE ..................................................................... 11
INDEX OF AUTHORITIES Cases
Ashe v. Swenson, 397 U.S. 436 (1970). ...........................................................3
Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991). .............................7
Bradley v. State , 564 S.W.2d 727 (Tex. Crim. App. 1978). ....................... 3, 6
Ex parte Bynum , 772 S.W.2d 113 (Tex. Crim. App. 1989). ...................... 8, 9
Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437 (1886). .............................4
Gipson v. State , 428 S.W.3d 107 (Tex. Crim. App. 2014). .............................6
Jones v. State, 571 S.W.2d 191 (Tex. Crim. App. [Panel Op.] 1978). ............2
McDonald v. State , 608 S.W.2d 192 (Tex. Crim. App. 1980). .......................4
Moore v. State, 605 S.W.2d 924 (Tex. Crim. App. 1980). ..............................2
Moreno v. State , 22 S.W.3d 482 (Tex. Crim. App. 1999). ..............................4
Murphy v. State, 239 S.W.3d 791 (Tex. Crim. App. 2007). ...................... 3, 4
United States v. One Assortment of 89 Firearms , 465 U.S. 354, 104 S. Ct.
1099 (1984). ................................................................................................ 4, 5
Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006). ............................ 2
Russell v. State , 551 S.W.2d 710 (Tex. Crim. App. 1977). .............................4
Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009). ...............................2
Ex parte Taylor, 101 S.W.3d 434 (Tex. Crim. App. 2002). ............................4
Ex parte Wickware , 853 S.W.2d 571 (Tex. Crim. App. 1993). ......................9
ii
Statutes & Rules
Tex. Code Crim. Proc. art. 42.03. ....................................................................8
Tex. Code Crim. Proc. art. 42.08. ....................................................................9
Tex. Code Crim. Proc. art. 42.12. ....................................................................6
Tex. R. App. P. 34.6. .......................................................................................5
43A Texas Practice, Criminal Practice and Procedure § 48:67. ....................4
iii
NO. 13-15-074-CR
JOHN LOPEZ, § COURT OF APPEALS
Appellant, §
§
V. § FOR THE THIRTEENTH
§
THE STATE OF TEXAS, §
Appellee. § DISTRICT OF TEXAS BRIEF FOR THE STATE TO THE HONORABLE COURT OF APPEALS:
SUMMARY OF THE ARGUMENT First Issue – Lopez’s acquittal under the higher burden of beyond a reasonable doubt did not bar the trial court from considering the same
testimony as establishing his guilt by a preponderance for purposes of
revocation.
Second Issue – Article 42.12 § 21 (c) requires the State to prove ability to pay when “only” certain technical violations are alleged at the
revocation hearing, and thus does not apply to the present proceeding where
the State also alleged a separate-offense violation.
Third Issue – Lopez was not entitled to have the prison time he was serving on one concurrently running sentence credited to the second
sentence when his probation in that second case was later revoked.
ARGUMENT
Reply Point No. 1
The trial court acted within its discretion in revoking Lopez’s probation
based on judicial notice of prior testimony by which the trial court
found by a preponderance of the evidence that Lopez committed a
criminal offense in violation of the terms of his probation.
I. The One-Violation Rule. The trial court's decision to revoke probation is reviewed for an abuse of discretion, and the evidence presented at a revocation hearing is reviewed
in the light most favorable to that decision. See Rickels v. State, 202 S.W.3d
759, 763 (Tex. Crim. App. 2006). The State must prove that a defendant
violated a condition of his probation by a preponderance of the evidence.
Rickels, 202 S.W.3d at 763–64.
Proof of one violation of the terms and conditions of community supervision is sufficient to support the revocation. Smith v. State, 286
S.W.3d 333, 342 (Tex.Crim.App.2009); Moore v. State, 605 S.W.2d 924,
926 (Tex. Crim. App. 1980). Therefore, in order to succeed on appeal, the
defendant must successfully challenge all of the trial court's findings that
support the revocation order. Moore , 605 S.W.2d at 926; Jones v. State, 571
S.W.2d 191, 193–94 (Tex. Crim. App. [Panel Op.] 1978).
In the present case, in order to succeed on his challenge to revocation, Lopez must prevail on both his first and second issues on appeal.
II. Proof of the Criminal Offense Violation. By his first issue on appeal, Lopez does not complain about the manner in which the trial court took judicial notice of the prior testimony or
in general about the sufficiency of that testimony to show that he committed
an offense in violation of the terms of his probation, [1] but only that the trial
court should not have relied upon that testimony in view of the fact that
Lopez was acquitted of the underlying offense by the jury. In other words,
Lopez complains that the jury’s acquittal of the defendant collaterally estops
the State from using the testimony at trial to find true the allegation that he
committed the offense for purposes of the motion to revoke probation.
The doctrine of collateral estoppel provides “that when an issue of ultimate fact has once been determined by a valid and final judgment, that
issue cannot again be litigated between the same parties in any future lawsuit
relating to the same event or situation.” Murphy v. State, 239 S.W.3d 791,
794 (Tex. Crim. App. 2007) (citing Ashe v. Swenson, 397 U.S. 436, 445
(1970)). To decide whether collateral estoppel bars a subsequent
prosecution, a court must determine (1) exactly what facts were necessarily
*8 decided in the first proceeding, and (2) whether those “necessarily decided”
facts constitute essential elements of the offense in the second trial. Murphy,
239 S.W.3d at 795; see Ex parte Taylor, 101 S.W.3d 434, 441 (Tex. Crim.
App. 2002).
The Court of Criminal Appeals has long held that a prior finding of not guilty in a criminal trial does not bar the State from proving the same
offense as a basis for revoking probation. Russell v. State , 551 S.W.2d 710,
714-15 (Tex. Crim. App. 1977) The jury verdict in the prior criminal trial
decides nothing more than that the State failed to prove him guilty beyond a
reasonable doubt, and does not foreclose the possibility that the same
testimony would be sufficient to show a probation violation under the lesser
standard of preponderance of the evidence. See Moreno v. State , 22 S.W.3d
482, 488 (Tex. Crim. App. 1999); McDonald v. State , 608 S.W.2d 192, 199
(Tex. Crim. App. 1980) (on rehearing); Russell , 551 S.W.2d at 714 (all
noting the difference between the two burdens of proof); see also 43A Texas
Practice, Criminal Practice and Procedure § 48:67.
Moreover, Lopez’s reliance on Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437 (1886), is misplaced. In United States v. One Assortment of 89
Firearms , 465 U.S. 354, 104 S. Ct. 1099 (1984), the Supreme Court later
disapproved of the reasoning in Coffey , holding that “an acquittal on
criminal charges does not prove that the defendant is innocent; it merely
proves the existence of a reasonable doubt as to his guilt,” Id. , 465 U.S. at
361, that “the jury verdict in the criminal action did not negate the
possibility that a preponderance of the evidence could show that [the
defendant committed the crime],” Id. , 465 U.S. at 362, and that acquittal
thus does not bar actions based on that lesser burden of proof. Id.
Accordingly, in the present case, the jury verdict of acquittal did not prevent the trial court from considering the same testimony to find that
Lopez committed the crime in question under the lesser standard of
preponderance of the evidence.
With regard to Lopez’s request for supplementation of the record with a transcript of the prior testimony, although it may be within this Court’s
discretion to allow such supplementation, See Tex. R. App. P. 34.6(d),
Lopez fails to argue that the testimony in question was insufficient to prove
by a preponderance that he committed the offense in question and thus has
failed to provide a good reason to delay the present appeal with the
cumbersome procedure of preparing and filing a supplemental record and
another round of appellate briefs by the parties.
However, should this Court determine that Lopez has in fact raised a challenge to the sufficiency of the evidence to support revocation based on
the separate offense, the State would agree that the proper procedure to
follow has been set out by the Court of Criminal Appeals as abatement for
the transcript of the testimony in question to be added as a supplemental
record. See Bradley v. State , 564 S.W.2d 727, 732 (Tex. Crim. App. 1978).
Lopez’s first issue on appeal should be overruled.
Reply Point No. 2.
The statutory requirement for proof of ability to pay did not apply
because technical violations were not the only ones alleged at the
revocation hearing.
The terms of Article 42.12 did not require the State to prove Lopez’s ability to pay. That article provides, in pertinent part, that:
In a community supervision revocation hearing at which it is alleged only that the defendant violated the conditions of community supervision by failing to pay community supervision fees or court costs ... , the state must prove by a preponderance of the evidence that the defendant was able to pay and did not pay as ordered by the judge.
Tex. Code Crim. Proc. art. 42.12. § 21 (c) (emphasis added).
In the present case, the State not only alleged technical violations set out in Section 21 (c), but also a separate-offense violation. Accordingly, the
statutory requirement to prove ability to pay simply did not arise here.
The Court of Criminal Appeals has consistently held that a statute is to be construed in accordance with the plain meaning of its text unless the
plain meaning leads to absurd results that the legislature could not have
possibly intended. See Gipson v. State , 428 S.W.3d 107, 108 (Tex. Crim.
App. 2014); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
Had the legislature intended to extend the requirement to all technical
violations of this nature, it easily could have worded the statute to include all
such allegations. Nor is it absurd to make the requirement applicable only
when technical violations alone are alleged. The legislature may reasonably
have determined that it would be less of a burden to require such additional
proof from the State when only technical violations are alleged.
Lopez’s second issue on appeal should be overruled.
Reply Point No. 3
The trial court did not err in refusing to credit Lopez’s present sentence
with time spent in prison on a separate offense before his probation was
revoked in the present case.
I. Statement of Facts. For the present DWI offense in Cause No. 11-CR-1593-C, on August 11, 2011, Lopez received a ten-year sentence, suspended for ten years,
which noted that it was to run “concurrently,” though there was no reference
to any other sentence to which it was to run concurrently. (CR p. 47)
The next day, on August 12, 2011, in Cause No. 11-CR-1390-C, Lopez was sentenced to five-years in prison for a separate DWI offense, also
simply noting that the sentence was to run “concurrently.” (Supp. CR p. 27)
When Lopez probation for the present offense was revoked on
February 2, 2015, he was sentenced to seven years in prison and given time
credit for 429 days, again noting simply that the sentence was to run
“concurrently.” (CR p. 65)
II. Time Credits. The Code of Criminal Procedure generally provides for time credit as follows:
In all criminal cases the judge of the court in which the defendant is convicted shall give the defendant credit on the defendant's sentence for the time that the defendant has spent: (1) in jail for the case , …. Tex. Code Crim. Proc. art. 42.03, § (2)(a) (emphasis added). A person is
entitled to such credit only when he is being held “for the case” in which he
is seeking credit, as when a detainer or “hold” is lodged against him based
on the case for which he is seeking credit. See Ex parte Bynum , 772 S.W.2d
113, 114 (Tex. Crim. App. 1989).
III. Concurrent Sentencing. Separately, the Code of Criminal Procedure allows for concurrent or consecutive sentences, in pertinent part, as follows:
(a) When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Except as provided by Sections (b) and (c) of this article, in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases, and sentence and execution shall be accordingly; ….
….
(c) If a defendant has been convicted in two or more cases and the court suspends the imposition of the sentence in one of the cases, the court may not order a sentence of confinement to commence on the completion of a suspended sentence for an offense.
Tex. Code Crim. Proc. art. 42.08.
IV. Application. In the present appeal, Lopez appears to suggest that serving time in prison in Cause No. 11-CR-1390-C should count as serving time in prison
on the present sentence, and that he should get time credit for that prison
time. This argument misunderstands the nature of concurrent sentencing and
equates it with credit for time served.
Simply because the sentences are running at the same time does not mean that the prison time the defendant is serving on one sentence counts as
prison time on the other. Lopez has pointed to no legal authority to support
his argument.
Moreover, under Article 42.03 time credit analysis, Lopez would only be entitled to credit for pre-revocation time spent in prison if he were being
“simultaneously confined” both for the separate offense and for the present
offense. See Ex parte Wickware , 853 S.W.2d 571, 573 (Tex. Crim. App.
1993); Bynum, 772 S.W.2d at 114. Nothing in the present record suggests
that Lopez was being confined for the present offense when he went to
prison on the separate offense.
Nor does the prohibition in Article 42.08 (c) apply in the present case where confinement on the non-suspended sentence began before completion
of the present suspended sentence and there was no stacking order.
Lopez’s third issue on appeal should be overruled.
PRAYER For the foregoing reasons, the State respectfully requests that the judgment of the trial court be affirmed.
Respectfully submitted, /s/ Douglas K. Norman
___________________ Douglas K. Norman State Bar No. 15078900 Assistant District Attorney 105 th Judicial District of Texas 901 Leopard, Room 206 Corpus Christi, Texas 78401 (361) 888-0410
(361) 888-0399 (fax) douglas.norman@nuecesco.com *15 RULE 9.4 (i) CERTIFICATION In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that the number of words in this brief, excluding those matters listed
in Rule 9.4(i)(1), is 2,079.
/s/ Douglas K. Norman
___________________ Douglas K. Norman CERTIFICATE OF SERVICE This is to certify that a copy of this brief was e-mailed on September 15, 2015, to Appellant’s attorney, Mr. Donald Edwards, mxlplk@swbell.net.
/s/ Douglas K. Norman
___________________ Douglas K. Norman
[1] The trial court may consider, as a basis for probation revocation, testimony from a previous trial of the same defendant in the same court showing that he committed a separate offense in violation of the terms of probation. See Bradley v. State, 564 S.W.2d 727, 729 (Tex. Crim. App. 1978).
[3]