Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/27/2015 8:08:00 AM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-15-00133-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 4/27/2015 12:00:00 AM CHRISTOPHER PRINE CLERK
NO. 01-15-00133-CR IN THE COURT OF APPEALS FOR THE FIRST SUPREME JUDICIAL DISTRICT OF TEXAS
______________________________ DEZMOND MARTIN GARCIA APPELLANT VS.
THE STATE OF TEXAS APPELLEE ______________________________ APPELLANT’S BRIEF Crespin Michael Linton 440 Louisiana, Suite 900 Houston, Texas 77002 Texas Bar No. 12392850 (713) 236-1319 (713) 236-1242 (Fax) crespin@hal-pc.org *2 LIST OF PARTIES
The Appellant is Dezmond Martin Garcia.
The Appellant’s counsel at trial was Wendy Baker.
The Appellant’s counsel on appeal is Crespin Michael Linton.
The Trial Judge is The Honorable Renee Magee.
The appellate attorney representing the State is Alan Curry, Assistant
District Attorney, Harris County, Texas.
i *3 TABLE OF CONTENTS List of Parties ………………………………………………… i
Table of Contents ………………………………………………… ii
Table of Citations …………………………………………… iv
Preliminary Statement ……………………………………………. 1
Statement of Facts …………………….………………………. 1
A. State’s Witnesses ………………………………………… 2
1. Michelle Nelson ……………………………………….. 2 2. Michael Medina ………………………………………. 4 B. Defense’s Witnesses ……………………………………… 5
1. Carlos Huerta …………………………………………. 2. Janie Gonzales …………………………………….. 6 C. Trial Court’s Ruling ……………………………… 7
Points of Error …………………………………….……………… 8
Point of Error Number One ………………………………………. 9
Argument and Authorities on
Point of Error Number One .……………….…………….. 9
Point of Error Number Two ………………………………………. 13
ii
Argument and Authorities on
Point of Error Number Two .…………………… 13 Conclusion …….………………………………………… 15
Certificate of Service …………………………………... 15
iii *5 TABLE OF CITATIONS CASES
Battle v. State , 571 S.W.2d 20, 22
(Tex. Crim. App. 1978)………………………………………. . 9
Buerger v. State , 60 S.W.3d, 358, 365
(Tex. App. – Houston [1 st Dist.] 2001, review ref’d.)………. 13
Corpus v. State , 26 S.W.3d 660, 662
(Tex. App. – Corpus Christi 2000, no writ)………………… 13
Moore v. State , 11 S.W.3d 495, 498
(Tex. App. – Houston [14 th Dist.] 2000, no pet.)…………… 9
Rickels v. State , 202 S.W.3d 759,763
(Tex. Crim. App. 2006)…………………..…………………… 10 Staten v. State , 328 S.W.3d 901, 905
(Tex. App. – Beaumont 2010, no pet.)…………………….. 9 CONSTITUTION
U.S. Const., Art. I, § 8 …………………………………………….… 13
Tex. Const., Art. I, § 13 ………………………………………………
iv *6 PRELIMINARY STATEMENT
On January 7, 2015, Appellant, Dezmond Martin Garcia, pleaded “Not T rue ” to 6 allegations and “True” to 3 allegations that he had violated
the conditions of his 4 year deferred adjudication community supervision
for Aggravated Assault. After an adjudication hearing, the trial court found
that Garcia had violated 5 of the conditions of his community supervision,
and assessed a punishment of 8 years in the Texas Department Of
Criminal Justice. On February 4, 2015, Garcia perfected his appeal.
STATEMENT OF FACTS On May 4, 2011, Appellant Dezmond Martin Garcia, pleaded guilty to the felony offense of Aggravated Assault, and the trial court assessed
a punishment of 5 years deferred adjudication community supervision.
(TR. at 28) On March 7, 2013, the Harris County District Attorney’s Office
filed its Motion To Adjudicate Guilt. (TR. at 33) On September 18, 2014,
the Harris County D istrict Attorney’s Office filed its Amended Motion To
Adjudicate Guilt in which it alleged that Garcia had violated nine
conditions of his community supervision by 1) giving a fictitious name to
a peace officer, 2) failing to report to his community supervision officer, 3)
failing to perform his community service restitution hours, 4) failing to pay
supervision fees, 5) failing to pay fines and court costs, 6) failing to pay
laboratory fees, 7) failure to pay for his offender identification card, 8)
failure to pay the Crimestopper’s fee , and 9) failure to participate in Anger
Management meetings. (TR. at 35) On January 7, 2015, the Appellant
pleaded “ Not True ” to allegations 1, 3, 4, 7, 8, and 9 and pleaded “True”
to allegations 2, 5, and 6. (R.R. Vol. 2 at 8-12)
A. State’s Witnesses
1. Michelle Nelson
Michelle Nelson testified that she used to work as a supervision officer for the Harris County Community Supervision and Corrections
Department and personally supervised Appellant for some of his
probation which he began on May 4, 2011. (R.R. Vol. 2 at 13-15) Nelson
stated that Appellant had absconded and that his probation had not been
terminated. (R.R. Vol. 2 at 16) She testified that Appellant acknowledged
that he understood the conditions of his probation as late as August 27,
2012 when she explained the requirements to him. (R.R. Vol. 2 at 18)
Nelson stated that Appellant failed to report to his probation officer for the
following months: September 2012, October 2012, November 2012,
December 2012, January 2013, and February 2013. (R.R. Vol. 2 at 19)
Nelson testified that Appellant failed to perform community service restitution hours for the following months: September 2012, October
2012, November 2012, December 2012, January 2013, and February
2013. (R.R. Vol. 2 at 20) She testified that Appellant failed to pay
supervision fees, fines and court costs, and laboratory fees for the
following months: September 2012, October 2012, November 2012,
December 2012, January 2013, and February 2013. (R.R. Vol. 2 at 21-
22) She stated that Appellant also failed to pay for his $12.50 offender
identification card, $50.00 Crimestopper’s fee, and failed to participate in
his anger management classes. (R.R. Vol. 2 at 22) Nelson testified that
a motion to adjudicate guilt was filed on August 28, 2012, and an
amended motion to adjudicate guilt was filed on September 28, 2014.
On cross-examination, Nelson admitted that she left the Harris County Community Supervision and Corrections Department in
December of 2012 and has no personal knowledge of Appellant’s
caseload after that date. (R.R. Vol. 2 at 24) She admitted that the case
file had no evidence to support the allegation that Appellant failed to report
to his probation officer in September of 2012. (R.R. Vol. 2 at 25) Nelson
also conceded that a further review of the case file showed that Appellant
paid his Crimestopper’s fee and offender identification card fee on March
4, 2012. (R.R. Vol. 2 at 33) She admitted that a further review of the case
file shows that Appellant was only $537.50 in arrears for his supervision
fees and not the alleged $1,197.00. (R.R. Vol. 2 at 37) Nelson conceded
that she resigned her job as a probation department employee because
of mismanagement of probation files. (R.R. Vol. 2 at 41) She also
admitted that the case file was missing certain documents which would
have helped the court in this hearing. (R.R. Vol. 2 at 42) On redirect
examination, Nelson stated that the probationer’s pa yment history is
calculated by a computer. (R.R. Vol. 2 at 42)
2. Michael Medina
Harris County Sheriff’s Deputy Michael Medina te stified that on September 2, 2014, he conducted a traffic stop on a Mercedes in which
Appellant was the front seat passenger. (R.R. Vol. 2 at 43-46) Medina
stated that he saw the driver named Zermano hand Appellant an unknown
object inside the vehicle. (R.R. Vol. 2 at 47) He testified that Appellant
claimed that he did not have any identification and stated that his name
was Dimas Saenz with a birthdate of 7/15/88. (R.R. Vol. 2 at 48) Medina
testified that he could not locate any information with that name and
birthdate after a computer check. (R.R. Vol. 2 at 48) He stated that
Appellant was not wearing a seatbelt and dropped his cell phone and an
orange pill bottle as he exited the vehicle. (R.R. Vol. 2 at 49-50) Medina
testified that the pill bottle contained 19 clear plastic baggies of cocaine
which weighed about 6.5 grams. (R.R. Vol. 2 at 51) He stated that a
fingerprint check of the Appellant at the police station revealed that
Appellant’s name was Dezmond Garcia who had an outstanding warrant
for his arrest. (R.R. Vol. 2 at 52)
On cross-examination, Medina stated that Appellant never volunteered his correct name and birthdate. (R.R. Vol. 2 at 56) He
admitted that he did not see the object that Zermano handed to Appellant,
but claimed that Appellant dropped both the pill bottle and his cell phone
as he exited the vehicle. (R.R. Vol. 2 at 61) Medina conceded that he
opened the pill bottle because he believed it contained contraband. (R.R.
Vol. 2 at 67)
B. Defense Witnesses
1. Carlos Huerta
Carlos Huerta testified that he operates a refrigeration business and that Appellant is his nephew. (R.R. Vol. 3 at 6) Huerta stated that
Appellant is a good boy who often worked for him during the busy summer
months. (R.R. Vol. 3 at 7) He explained that his nephew is a good family
man who has a pregnant wife and 3 daughters. (R.R. Vol. 3 at 8) Huerta
acknowledged that he will have job available for Appellant if the court
reinstates him on probation. (R.R. Vol. 3 at 9)
On cross-examination, Huerta stated that that Appellant had no physical impediments to working. (R.R. Vol. 3 at 11) He admitted that he
was not aware of Appellant’s criminal activities. (R.R. Vol. 3 at 11)
2. Janie Gonzales
Janie Gonzales testified that she and Appellant have 3 daughters named Emily, Evelyn, and Emery. (R.R. Vol. 3 at 12) She admitted that
she did not know that her husband had stopped reporting to his probation
officer. (R.R. Vol. 3 at 52) Gonzales explained that he stopped reporting
to his probation officer because he had to work to support his family. (R.R.
Vol. 3 at 14) She testified that she is pregnant with their son who is due
in a month. (R.R. Vol. 3 at 15-16) Gonzales stated that they lost their
apartment soon after he was arrested. (R.R. Vol. 3 at 17) She promised
that she would ensure that her husband would faithfully report to his
probation officer if the court allows him to return home. (R.R. Vol. 3 at 17)
Gonzales described Appellant as a good father who attended his
children’s medical appointments. (R.R. Vol. 3 at 19)
On cross-examination, Gonzales admitted that she cannot follow her husband everywhere. (R.R. Vol. 3 at 20) She conceded that she did
not know if his work hours conflicted with his probation requirements.
(R.R. Vol. 3 at 21)
C. Trial Court’s Ruling
After arguments of counsel, the trial court found that the following 5 allegations to be True: 1) that Appellant gave a peace officer a fictitious
name, that he failed to report to his supervision officer, 2) that he failed to
perform community service hours, 3) that he failed to pay his supervision
fees, 4) that he failed to pay fines and court costs, and 5) that he failed to
pay his laboratory fees. (R.R. Vol. 3 at 24-25) The trial court found the
other 4 allegations to be Not True. (R.R. Vol. 3 at 24-25) The trial court
adjudicated Garcia guilty of Aggravated Assault and sentenced him to 8
years in the Texas Department Of Criminal Justice and a fine of $500.00.
(R.R. Vol. 3 at 26) Appellant perfected his appeal on February 7, 2015.
(TR. at 46)
POINTS OF ERROR POINT OF ERROR ONE:
The evidence was insufficient to support the trial court’s revocation of A ppellant’s co mmunity supervision for violation of a condition of
supervision.
POINT OF ERROR TWO:
The trial court erred by assessing a sentence against Appellant which was excessive and disproportionate to the crime committed.
POINT OF ERROR NO. 1 THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE TRIAL COURT’S REVOCATION OF APPELLANT’S COMMUNITY SUPERVISION FOR VIOLATION OF A CONDITION OF SUPERVISION
“In a hearing on a motion to revoke probation, the State must prove every element of the ground asserted for revocation by a
preponderance of the evidence.” Moore v. State , 11 S.W. 3d 495, 498
(Tex. App. – Houston [14 th Dist.] 2000, no pet.) To meet the State’s
burden of proof, the greater weight of the evidence must create a
reasonable belief that the defendant violated a condition of probation.
Id . at 498. “The State satisfies its burden when the greater weight of the
evidence before the trial court creates a reasonable belief demonstrating
it is more probable than not that the defendant has violated a condition
of his community supervision.” Staten v. State , 328 S.W.3d 901, 905
(Tex. App. – Beaumont 2010, no pet.) The trial court is the sole trier of
fact and also determines the credibility of the witnesses and the weight
to be given their testimony. Battle v. State , 571 S.W.2d 20, 22 (Tex.
Crim. App. 1978) The appellate court examines whether the trial court
a bused its discretion in revoking the appellant’s probation. Rickels v.
State , 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).
Appellant contends that the State failed to prove by a preponderance of the evidence the five allegations which the trial court
found to be true.
Fictitious Name
Deputy Medina testified that Appellant gave him a false name and birthdate. (R.R. Vol. 2 at 48) However, Medina admitted that Appellant
may have told his real name and birthdate to Deputy McClerkin before
he was fingerprin ted based on an entry in Medina’s supplemental report.
(R.R. Vol. 2 at 58)
Failure To Report, Perform Community Service, Pay Fine & Courts,
and Pay Laboratory Fees
While Nelson testified that Appellant violated his probation by failing to report, perform community service, pay fines and courts, and
pay laboratory fees, she admitted that she was simply testifying from a
copy of the amended motion to adjudicate guilt and based on the
contents of the probation officer’ s case file. (R.R. Vol. 2 at 25) In fact,
Nelson admitted that she had no personal knowledge of the case file
because she had resigned from the Harris County Community
Supervision and Corrections Department in December of 2012 for
mismanagement of probat ioner’s case files. (R.R. Vol. 2 at 41) She
even conceded that many important documents were missing from
Appellant’s case file that would have assisted the court in this
adjudication hearing. (R.R. Vol. 2 at 42) In addition, Nelson grudgingly
admitted that she was wrong when she testified that Appellant had not
paid the Crimestopper’s fee and the offender identification card fee.
(R.R. Vol. 2 at 33)
Appellant contends that Medina’s admission that Appellant may have given his true name to Deputy McClerkin before fingerprinting is
not sufficient proof that Appellant violated his probation by providing a
fictitious name to police. Appellant also contends the Nelson’s
testimony was not sufficient to prove that Appellant violated the 4 listed
conditions because Nelson had no personal knowledge of the case file
and because her testimony lacked credibility because of her resignation
for mismanagement of probationer’s case files. The prosecutor should
have introduced testimony from a probation officer who was familiar with
Appellant’s case file instead of a former employee who resigned under
pressure for incompetence. Appellant contends that the trial court erred
by adjudicating Appellant’s guilt based on the questionable testimony of
a discredited witness.
Based on the foregoing, Appellant contends that the trial court abused its discretion by finding the allegations to be true and revoking
Appellant’s community supervision. Therefore, Appellant requests the
court reverse and remand this case for a new trial.
POINT OF ERROR NO. 2 THE TRIAL COURT ERRED BY ASSESSING A SENTENCE AGAINST
APPELLANT WHICH WAS EXCESSIVE AND DISPROPORTIONATE
TO THE CRIME COMMITTED Appellant contends that the sentence assessed against him was excessive and disproportionate to the crime committed. “If the trial court
assesses a punishment within the statutorily prescribed limits, the
punishment is not cruel and unusual and generally will not be disturbed
on appeal.” Buerger v. State , 60 S.W. 3d 358, 365 (Tex. App. – Houston
[1 st Dist.] 2001, review ref’d ). “A trial judge has broad discretion in
determining whether to revoke community supervision, and must be the
sole judge of the cre dibility of the witnesses before him.” Corpus v. State ,
26 S.W.3d 660, 662 (Tex. App. – Corpus Christi 2000). However,
Appellant contends that the trial court’s punishment was disproportionate
to the crime committed and did violate his constitutional rights under the
Eighth Amendment to the United States Constitution and Article I, Section
Thirteen of the Texas Constitution.
By revoking Appellant ’s probation , the court has penalized Appellant for ignoring his community supervision requirements by working
to support his wife and three children. To make matters more difficult for
his family, Appellant is now the father of a fourth child born while he was
in jail to a wife who lost the family’s apartment because her husband could
no longer financially provide for the family. The trial court had the
discretion to sentence Garcia anywhere from a minimum of 2 years in
prison to a maximum of 20 years in prison. The trial court also had the
discretion to reinstate Garcia on probation after hearing testimony that
Appellant was a good husband and father who tried his best to support
his family. By assessing Garcia the lengthy sentence of 8 years and by
rejecting the reinstatement of his probation, the trial court failed to
consider that Garcia had valid reasons for not fulfilling all of the
requirements of his probation. By not reinstating Appellant on probation
or by not sentencing him closer to the low end of the punishment range,
the trial court administered an excessive and disproportionate sentence
for the community supervision conditions which Appellant violated.
CONCLUSION
For the reasons stated, Appellant Garcia prays the Court to reverse and acquit or in the alternative to reverse and remand this cause for a
new trial.
Respectfully submitted, _/s/ Crespin Michael Linton_ Crespin Michael Linton 440 Louisiana, Suite 900 Houston, Texas 77002 Texas Bar No. 12392850 (713) 236-1319 (713) 236-1242 (Fax) CERTIFICATE OF COMPLIANCE I hereby certify that Appellant’s Brief, as calculated under Texas Appellate Rule of Appellate Procedure 9.4, contains 2,982 words as
determined by the Word program used to prepare this document.
_/s/ Crespin Michael Linton Crespin Michael Linton CERTIFICATE OF SERVICE I do hereby certify that on this the 26 th day of May 2015, a true and correct copy of the foregoing Appellant’s Brief was served by E -service in
compliance with Local Rule 4 of the Court of Appeals or was served in
compliance with Article 9.5 of the Rules of Appellate Procedure delivered
to the Assistant District Attorney of Harris County, Texas, 1201 Franklin
Street, Suite 600 Houston, Texas 77002 at curry_alan@dao.hctx.net.
__/s/_Crespin Michael Linton__ Crespin Michael Linton