Case Information
*0 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 2/23/2015 11:41:44 PM CATHY S. LUSK Clerk *1 ACCEPTED 12-14-00225-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 2/23/2015 11:41:44 PM CATHY LUSK CLERK
NUMBER 12-14-00225-CR IN THE TWELFTH DISTRICT COURT OF APPEALS TYLER, TEXAS FATIMA RAHMAN, Appellant v.
THE STATE OF TEXAS, Appellee From the 114th District Court of Smith County, Texas Trial Cause Number 114-1451-10 STATE’S BRIEF ORAL ARGUMENT NOT REQUESTED D. MATT BINGHAM Criminal District Attorney Smith County, Texas AARON REDIKER Assistant District Attorney State Bar of Texas Number 24046692 Smith County Courthouse, 4th Floor Tyler, Texas 75702 Phone: (903) 590-1720 Fax: (903) 590-1719 Email: arediker@smith-county.com *2 T ABLE OF C ONTENTS Index of Authorities .................................................................................................. 2
Statement of Facts ....................................................................................................3
Summary of Argument ............................................................................................. 4
Standard of Review ................................................................................................... 4
I.Issue One : Appellant waived any error in the imposition of appointed
attorney fees as court costs by failing to raise the issue on direct appeal from
the order originally placing her on community supervision. ............................... 4
Argument ................................................................................................................... 4
II.Issues Two and Three : By failing raise the alleged defect in the State’s
application to revoke her community supervision in a timely motion to quash,
appellant failed to preserve any error for review. ................................................. 6
Argument ................................................................................................................... 6
Certificate of Compliance ......................................................................................... 9
Certificate of Service ................................................................................................ 9
I NDEX OF A UTHORITIES Texas Cases
Flournoy v. State , 589 S.W.2d 705 (Tex. Crim. App. 1979) ............................................. 4
Fuller v. State , 253 S.W.3d 220 (Tex. Crim. App. 2008) ................................................... 7
Gibson v. State , 516 S.W.2d 406 (Tex. Crim. App. 1974) ................................................. 7
Gordon v. State , 575 S.W.2d 529 (Tex. Crim. App. 1978) ................................................ 8
Grantham v. State , 547 S.W.2d 286 (Tex. Crim. App. 1977) .......................................... 8
Guinn v. State , 163 Tex. Crim. 181 (Tex. Crim. App. 1956) ............................................ 7
Isabell v. State , 494 S.W.2d 572 (Tex. Crim. App. 1973).................................................. 4
Kinard v. State , 477 S.W.2d 896 (Tex. Crim. App. 1972) ................................................. 7
Labelle v. State , 720 S.W.2d 101 (Tex. Crim. App. 1986) ................................................ 7
Manuel v. State , 994 S.W.2d 658 (Tex. Crim. App. 1999) ................................................ 5
Martinez v. State , 493 S.W.2d 954 (Tex. Crim. App. 1973) ............................................ 7
Peoples v. State , 566 S.W.2d 640 (Tex. Crim. App. 1978) ................................................ 8
Rodriguez v. State , 951 S.W.2d 199 (Tex. App.—Corpus Christi 1997, no pet.) .... 8
Spruill v. State , 382 S.W.3d 518 (Tex. App.—Austin 2012, no pet.) ........................... 7
Vance v. State , 485 S.W.2d 580 (Tex. Crim. App. 1972) ................................................... 8
Wiley v. State , 410 S.W.3d 313 (Tex. Crim. App. 2013) ................................................... 6
Texas Rules
Tex. R. App. P. 33.1(a) ................................................................................................................... 7
NUMBER 12-14-00225-CR IN THE TWELFTH DISTRICT COURT OF APPEALS TYLER, TEXAS FATIMA RAHMAN, Appellant v.
THE STATE OF TEXAS, Appellee From the 114th District Court of Smith County, Texas Trial Cause Number 114-1451-10 STATE’S BRIEF T O THE H ONORABLE C OURT OF A PPEALS :
Comes now the State of Texas, by and through the undersigned Assistant Criminal District Attorney, respectfully requesting that this Court overrule appellant’s alleged
issues and affirm the judgment of the trial court in the above-captioned cause.
S TATEMENT OF F ACTS Appellant has stated the essential nature of the proceedings and the evidence
presented at trial (Appellant's Br. 3-4). In the interest of judicial economy, any other
facts not mentioned therein that may be relevant to the disposition of appellant's issues
will be discussed in the State's arguments in response.
S UMMARY OF A RGUMENT Appellant has failed to preserve any error for review in all three of her alleged
issues, as she did not raise the erroneous assessment of appointed attorney fees as court
costs on direct appeal from the original order imposing community supervision, and
she did not raise the defect in the application to revoke through a timely motion to
quash.
S TANDARD OF R EVIEW "The only question legitimately before this Court on a probation revocation proceeding is whether or not there was an abuse of discretion in the trial court,"
Flournoy v. State , 589 S.W.2d 705, 709 (Tex. Crim. App. 1979) (quoting Isabell v.
State , 494 S.W.2d 572, 573-574 (Tex. Crim. App. 1973)).
I. I SSUE O NE : Appellant waived any error in the imposition of appointed
attorney fees as court costs by failing to raise the issue on direct appeal from
the order originally placing her on community supervision.
A RGUMENT In her first issue, appellant argues that the trial court abused its discretion by imposing appointed attorney fees as court costs and that the Smith County District
Clerk erred by including these fees in the itemized bill of costs (Appellant’s Br. 6-11).
“[A] defendant placed on ‘regular’ community supervision may raise issues relating to
the conviction, such as evidentiary sufficiency, only in appeals taken when community
supervision is originally imposed. That is, such issues may not be raised in appeals
filed after ‘regular’ community supervision is revoked.” Manuel v. State , 994 S.W.2d
658, 661 (Tex. Crim. App. 1999) (citations omitted).
After appellant entered a negotiated plea of “guilty” to the charge of felony driving
while intoxicated, the trial court found her guilty of the offense as charged in the
indictment, sentenced her to confinement for ten years in the Texas Department of
Criminal Justice—Institutional Division, suspended the sentence for a term of seven
years under numerous conditions of supervision, and ordered appellant to pay court
costs in the amount of $694.00 (Clerk’s R. at 19-24). On 23 July 2014, the trial court
entered its judgment revoking appellant’s community supervision and sentencing her
to confinement for five years ( Id . at 68-70). Neither the judgment nor the withdrawal
order reflects the imposition of any court costs against appellant following the
revocation of her community supervision ( Id .). Further, the itemized bill of costs
prepared by the Smith County District Clerk after appellant’s revocation, showing total
costs in the amount of $394.00 and a $0.00 balance, does not list attorney fees among
the court costs assessed ( Id . at 75). If any appointed attorney fees were assessed
against appellant at the time she was initially placed on community supervision,
appellant forfeited the error by failing to raise it on direct appeal of the original order
imposing community supervision. Wiley v. State , 410 S.W.3d 313, 318 (Tex. Crim.
App. 2013). As appellant failed to preserve the error of which she now complains for
the first time, on appeal from the revocation of her supervision, her first issue should
be overruled. Id .
II. I SSUES T WO AND T HREE : By failing raise the alleged defect in the State’s
application to revoke her community supervision in a timely motion to quash,
appellant failed to preserve any error for review.
A RGUMENT In her second and third issues, appellant argues that the trial court abused its discretion in revoking appellant’s community supervision based on an unsigned
application to revoke (Appellant’s Br. 12-15). Appellant’s supervision officer signed
the application, which was filed on 8 July 2014, but not the prosecutor (Clerk’s R. at
62). However, appellant did not file a motion to quash the application to revoke based
on this defect, object at the revocation hearing, or file a motion for new trial. Texas
Rule of Appellate Procedure 33.1 provides in pertinent part that, “[a]s a prerequisite
to presenting a complaint for appellate review, the record must show that the complaint
was made to the trial court by a timely request, objection, or motion that stated the
grounds for the ruling that the complaining party sought from the trial court with
sufficient specificity to make the trial court aware of the complaint, unless the specific
grounds were apparent from the context; and . . . the trial court ruled on the request,
objection, or motion, either expressly or implicitly; or refused to rule on the request,
objection, or motion, and the complaining party objected to the refusal.” Tex. R. App.
P. 33.1(a). “It has repeatedly been held that even constitutional guarantees can be
waived by failure to object properly at trial.” Gibson v. State , 516 S.W.2d 406, 409
(Tex. Crim. App. 1974). “Failure to preserve error at trial forfeits the later assertion
of that error on appeal. In fact, almost all error - even constitutional error - may be
forfeited if the appellant failed to object.” Fuller v. State , 253 S.W.3d 220, 232 (Tex.
Crim. App. 2008).
Not surprisingly then, the sufficiency of a motion to revoke community supervision
may not generally be challenged for the first time on appeal. Martinez v. State , 493
S.W.2d 954, 955 (Tex. Crim. App. 1973); Kinard v. State , 477 S.W.2d 896, 897-898
(Tex. Crim. App. 1972); Guinn v. State , 163 Tex. Crim. 181 (Tex. Crim. App. 1956).
While jurisdictional defects may be raised at any time, “motions to revoke probation
do not invoke the jurisdiction of the court, as do indictments or informations; rather,
revocation jurisdiction is retained by the trial court in which the defendant was granted
probation.” Labelle v. State , 720 S.W.2d 101, 106 (Tex. Crim. App. 1986). See also
Spruill v. State , 382 S.W.3d 518, 520-22 (Tex. App.—Austin 2012, no pet.)
(revocation of regular community supervision affirmed even though trial court had
proceeded on wrongly titled “Motion to Proceed with an Adjudication of Guilt"). Thus,
“[t]he pleadings of a motion to revoke probation need not meet the requirements of an
indictment. It is enough that the pleadings give the defendant fair notice of the
allegations against him so that he may prepare a defense.” Peoples v. State , 566 S.W.2d
640, 642 (Tex. Crim. App. 1978) (citing Grantham v. State , 547 S.W.2d 286 (Tex.
Crim. App. 1977)). Therefore, as no jurisdictional issue is involved and appellant did
not timely raise the defect in a motion to quash the application to revoke, she has failed
to preserve any error for review, and her second and third issues should be overruled.
Gordon v. State , 575 S.W.2d 529, 531 (Tex. Crim. App. 1978); Vance v. State , 485
S.W.2d 580, 582 (Tex. Crim. App. 1972); Rodriguez v. State , 951 S.W.2d 199, 204
(Tex. App.—Corpus Christi 1997, no pet.).
P RAYER WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the
Court overrule appellant’s alleged issues and affirm the judgment of the 114th District
Court of Smith County, Texas, in the above-captioned cause.
Respectfully submitted, D. MATT BINGHAM Criminal District Attorney Smith County, Texas /s/ Aaron Rediker Aaron Rediker Assistant District Attorney SBOT #: 24046692 100 North Broadway, 4th Floor Tyler, Texas 75702 Office: (903) 590-1720 Fax: (903) 590-1719 (fax) arediker@smith-county.com C ERTIFICATE OF C OMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned attorney
certifies that the word count for this document is 1,216 words as calculated by
Microsoft Word 2013.
/s/ Aaron Rediker Aaron Rediker C ERTIFICATE OF S ERVICE The undersigned hereby certifies that on this 23rd day of February 2015, the State’s Brief in the above-numbered cause has been electronically filed, and a legible copy of
the State's Brief has been sent by email to James W. Huggler Jr., attorney for appellant,
at jhugglerlaw@sbcglobal.net.
/s/ Aaron Rediker Aaron Rediker