ACCEPTED
03-15-00290-CR
7177140
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/30/2015 7:42:42 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00290-CR
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE COURT OF APPEALS
9/30/2015 7:42:42 PM
FOR THE
JEFFREY D. KYLE
THIRD SUPREME JUDICIAL DISTRICT Clerk
AT AUSTIN, TEXAS
EX PARTE:
RAFEAL HERNANDEZ-PRADO
Appeal from the 33rd Judicial District Court
Cause No. 9767A
Burnet County, Texas
The Honorable J. Allan Garret, Judge Presiding
APPELLANT'S MOTION TO ABATE
Gary E. Prust
State Bar No. 24056166
1607 Nueces Street
Austin, Texas 78701
(512) 469-0092
Fax: (512) 469-9102
gary@prustlaw.com
ATTORNEY FOR APPELLANT
Motion to Abate Page 1 of 6
Ex Parte Hernandez-Prado
Appellate Cause No. 03-15-00290-CR
ORAL ARGUMENT IS NOT REQUESTED
APPELLANTS’ MOTION TO ABATE
Appellant, Rafeal Hernandez-Prado, file this, his “Motion to Abate” and in
support thereof shows as follows.
I.
1. Appellant's was placed on deferred adjudication probation on October 13,
2003. The record shows court-appointed counsel translated the plea of guilty and
the admonitions, waivers, judicial confession, and written plea of guilty. The
record also shows there was an immigration hold in 2003.
2. Thereafter, the State filed a Request to Adjudicate October 1, 2013 and a
capias was issued the following day. The Request alleged Appellant violated the
terms of his probation by failing to report to the probation department as directed,
by failing to remain in “Juanagato, Mexico”, failing to notify the probation officer
of a change of address or employment, by failing to complete community service
hours, by failing to pay various fines and costs, failing to complete psychiatric or
psychological testing within 90 days of the probation date, failing to attend
psychiatric or psychological counseling as directed, failing to submit a blood
sample to the Texas Department of Public Safety, and failing to submit to
polygraph testing as directed. See Exhibit A.
Motion to Abate Page 2 of 6
Ex Parte Hernandez-Prado
Appellate Cause No. 03-15-00290-CR
3. Appellant then filed an application for writ of habeas corpus pursuant to Art.
11.072 of the Texas Code of Criminal Procedure January 7, 2015. Exhibit B. In it,
Appellant averred the terms and conditions of community supervision were not
explained in a manner or language in which he could comprehend the requirements
before he entered his plea. Further, Appellant requested to withdraw the underlying
plea and have the terms of the plea agreement explained on the record by a
certified interpreter before deciding whether to accept the plea or continue to
negotiate with the State.
Appellant prayed the court to review the proceedings and determine whether
Appellant was properly educated about the terms and conditions of his plea
agreement, the consequences of violating community supervision, any obligations
to follow directions of the community supervision department, and determine
whether the language barrier prohibited him from understanding the criminal
proceedings he initially faced.
4. Appellant filed a motion to quash and exception to the form of the request to
adjudicate March 25, 2015. The motion to quash, writ of habeas corpus, and
request to adjudicate were heard March 25, 2015. See IV RR 1, et seq.
5. In two separate orders, the motion to quash and the application for writ of
habeas corpus were each denied. See Exhibit C. Each order is file stamped April
30, 2015. The order denying the application for writ of habeas corpus is dated
Motion to Abate Page 3 of 6
Ex Parte Hernandez-Prado
Appellate Cause No. 03-15-00290-CR
March 25, 2015.
6. The order denying the writ of habeas corpus does not say the application is
frivolous on its face, nor does it include written findings of fact or conclusions of
law. The court stated at the sentencing on May 5, 2015 as follows, “[T]he Court –
having taken [the request to adjudicate and application for writ of habeas corpus]
under advisement and reviewed defense counsel’s writ and pleadings and review of
the evidence before the Court, the Court finds that the Defendant did violate
Probation Terms and Conditions 5, 11, and 13, and the Sex Offender Supplement
Probation Terms and Conditions 1, 2, 8, and 9.” V RR 5. The trial court then
assessed Appellant’s punishment at fifteen years’ confinement and no fine. Id.;
Exhibit D.
7. The Texas Code of Criminal Procedure, in article 11.072, § 7(a) states that if
the court determines from the application that the applicant is not entitle to any
relief, the court shall enter a written order denying it as frivolous. In all other such
cases, “the court shall enter a written order including findings of fact and
conclusions of law.” Id.
8. After a review of the record, Appellant has not been able to find any written
findings of fact and conclusions of law nor any order denying the application for
the writ as frivolous.
9. This cause should be returned to the trial court for the entry of written
Motion to Abate Page 4 of 6
Ex Parte Hernandez-Prado
Appellate Cause No. 03-15-00290-CR
findings of fact and conclusions of law. Ex Parte Jones, 367 S.W.3d 696, 697
(Tex.App. – Texarkana 2012, no pet.); Ex Parte Enriquez, 227 S.W.3d 779
(Tex.App. – El Paso 2005, pet. ref’d) (The appellate court abated the appeal and
ordered the trial court to clarify its written order finding the Applicant manifestly
not entitled to relief and denying the writ. Following the word “denied”, the trial
court struck through type-written portions of the prepared order which read “as
frivolous”.); see also Ex Parte Ali, No. 03-10-00207-CR (Tex.App. – Austin 2010,
no pet.) (mem. op., not designated for publication).
10. Accordingly, Appellant’s counsel request this Court abate this appeal and
enter and order directing the trial court to enter written findings of fact and
conclusions of law in accordance with Tex. Code Crim. Proc. art. 11.072 § 7(a)
(West 2015).
Respectfully submitted,
/s/ Gary E. Prust
Gary E. Prust
SBN 24056166
1607 Nueces Street
Austin, Texas 78701
(512) 469-0092
Fax: (512) 469-9102
gary@prustlaw.com
Attorney for Appellant
Motion to Abate Page 5 of 6
Ex Parte Hernandez-Prado
Appellate Cause No. 03-15-00290-CR
CERTIFICATE OF SERVICE
In compliance with Rule 9.5(d) of the Texas Rules of Appellate Procedure,
the undersigned attorney certifies that a true and correct copy of the foregoing
Motion was served upon Mr. Gary Bunyard with the 33rd and 424th Judicial District
Attorney’s Office on this 30th day of September, 2015 via electronic transmission
through efiletexas.gov.
/s/ Gary Prust
Gary E. Prust
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. PROC. 9.4(i)(3), I hereby certify this brief contains
805 words. This is a computer-generated document created in Microsoft word,
using 14-point typeface. In making this this certificate, I rely on the word county
provided by the software use to prepare the document.
/s/ Gary Prust
Gary E. Prust
CERTIFICATE OF CONFERENCE
In compliance with Rule 10.1(a)(5) of the Texas Rules of Appellate
Procedure, the undersigned attorney certifies he conferred with Mr. Gary Bunyard
of the 33rd and 424th District Attorney’s Office on this 30th day of September,
2015, and opposing counsel neither joins nor opposes this motion.
/s/ Gary Prust
Gary E. Prust
Motion to Abate Page 6 of 6
Ex Parte Hernandez-Prado
Appellate Cause No. 03-15-00290-CR
N0.9767
THE STATE OF TEXAS X IN THE DISTRICT COURT OF
vs. y TI<'VA"
RAFAELHERNANDEbPRADO X 33RD/424THJUDICIAL DISTRICT
STATE'S REOPEST FOR ADJUDICATION
TUTHE tARU•;J : OJ<' c;: ATI) l'OIJJ{T:
NOW COMES the STATE OF TEXAS, represented herein by her Assistant District
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8. Submit to a blood sample or other specimen to the Department of Public Safety under ! !
Sub-chapter G, Chapter 411, Government Code, for the purpose of creating a DNA r•
· ' and nav cost nf thP ""'"" !
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9. Submit a polygraph testing as directed by the Community Supervision Officer or the
therapist and pay cost of the same.
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The defendant, while on Probation, committed the following violations: I
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5. The Defendant failed to report in person to the Probation Officer of the Community ~
;:,uperv!s!on ana corrections Department of H :T . { ounty, Texas, and i"
tnereatter report at such other times and in such manner as directed by the Court or !
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the Probation Officer. \
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Exhibit A !'
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111e ue.enuanc rauea to remam within the limits of JUANAGATO. MEXICO
' unless given permission by the Probation Officer to leave such limits. Defendant
! returned to the United States without permission. Defendant received a ticket for no
! seat belt on December 18, 2007, by the Texas Highway Patrol in Burnet County,
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11.
I' The Defendant failed to notify the Probation Officer that he had returned to the
United States of America.
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13. The Defendant failed to participate and work, without compensation, ten hours per
month in a community service program or task as directed by the Probation Officer
for a total of 750 hours.
14. The Defendant failed to oav the foil : tn •nil th•n ~h t~
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Supervision and Corrections Department:
a. Court costs in the amount of$ 203.00 due in full NOVEMBER 10. 2003.
u. 1ne ue.enoant IS l.lJlJ_ oelinquent in Probation fees. l'
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d. The Defendant is $2000.00 delinquent in his Fine. li
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e. The Defendant is $450.00 delinquent in Court appointed attorney fees~ It
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~_"!':':'_uu~n, 01 .<'UDIIC .:sarery unoer .:>Ub-cnapter~pter 411' Government Code,
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ror me purpose ot creatmg a DNA recording and pay cost of the same. t
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Exhibit A 1
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• "" ue.enuan, •alleu to suom1t a polygraph testing as directed by the Community
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Supervision Officer or the therapist and pay cost of the same.
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! Said violations of the law constitute violations of the probation in this cause and were
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committed after the time the Order Deferring Adjudication was entered in this cause.
WHER_!:ltl PR FJ\KTCt:IC =·~ .c
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PRADO, Defendant herein, be cited to appear before this Honorable Court at a time and place
specified by this Court to show cause, if any he have, why aili_udication her in_tbk
cause should not be had; and that upon final hearing the probation heretofore given to this Defendant
should be in all things be revoked and Judgment and Sentence entered and that the said RAFAEL
··-· ------ , '"' colllmeu m me cotate__t:_emtentiary_tor a_l)_eriod to be determined bY_the
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Court and that the Clerk of this Court be Ordered and authorized to issue all necessary papers I
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including Judgment, Sentence and Commitment the same as if adjudication had not been deferred
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748 S.W.2d at 557; Le v. State, 300 S.W.3d 324, 326-27 (Tex. AI1I1.-Houston [14th
Dist.] 2009, no Q!;:!.); Ex parte Wolf, 296 S.W.3d 160, 166-167 (Tex. App.-Houston
L'"'"' Lll>l.J .<.VV::T, P"'· '"'UJ. 11 " " '
m<~y ouu,;;1
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from his felony conviction, a trial court has jurisdiction to consider his application for
habeas relief. Schmidt, 109 S.W.3d at 483. Applicant's liberties are restrained as defined
in Article 11.22 of the Code of Criminal Procedure which defines restraint as:
Exhibit B
82
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''the kind of control which one person exercises over another, not to confine him
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person claiming such right."
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Applicant prays that the court grant this post conviction writ of habeas corpus and
that the conviction in the above entitled and numbered cause be set aside.
Resnectfullv Submitted
EddieGSheU
Shell & Shell
State Bar Number: 18191650
ovvv 1'1. nwy .:o 1
Marble .l'alls, Texas toO:l'l
(830)798-1690 telephone
(830)798-0328 telecopier
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Attorney for Applicant I
Exhibit B
83
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• CERTIFICATE OF SERVICE
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I hereby certify that a true and correct copy of the foregoing Application for Post
Conviction Writ of Habeas Co!'{JUS was served on the prosecuting attorney via facsimile
(512) 756-8572 on tbis the ~
davof Tr\'(\ 1 lC'I ( { " ....... 2015.
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Edffie G Shell" ~
Exhibit B
84
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STATE OF TEXAS §
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COUNTY OF BURNET §
AFFIDAVIT
Before me, the undersigned notary, on this day personally appeared Eddie G Shell
a person whose identity is known to me. After I administered an oath to him, upon his
uam, m: stau:u uu: -~·
"My name is Eddie G Shell, and I am capable of making this affidavit and the
IaclS StaLC:u in mis auluavit art: wimin my persOili11 I<.nO •WIU WC: UUC: WIU "v"""'· I
have read the foregoing Application for Post Conviction Writ of Habeas Corpus and all
facts contained therein are true and correct to the best of my knowledge."
........
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Eddie G Shell
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Sworn and Subscribed before me on this the Olffi day of
~~b_(~ , 2015 .
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~· SIIBRINA LYNN WILLS Notary Public, State ofTexas
f/(:~
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Notary PuDIIc. Stote 01 Texos
My commlsaiOn Expires
IIUQUII 21. 2011
Exhibit B
85
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N0.9767f-\
EX PARTE § IN THE 33rd DISTRICT COURT
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vs. § OF
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RAFEALHERNANDEZ-PRADO § BURNETCOUNTY,TEXAS
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On tJ7 ·v., , 2015, came on to be considered the Defendant's Application for
Post Conviction of Writ of Habeas Corpus in the above styled and numbered cause, and said
A .. L -L
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(GRANTED) DENIE9J
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Signed on v 7/7.5 I'/)
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<>; FILED
3 APR 3 0 2015 F
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Exhibit C ~cou~ I
86
5
1 hearing.
2 MR. CROWTHER: Frank Randolph.
3 THE COURT: Trooper Randolph. Okay. Thank you.
4 MR. SHELL: Pardon me.
5 THE COURT: And then at that hearing there was a
6 motion -- there was a writ of habeas corpus. There was
7 obviously the State's motion to adjudicate guilt. And there
8 was one other motion, I think, that was handled by the Court at
9 the hearing. Since that time, the Court -- having taken it
10 under advisement and reviewed defense counsel's writ and
11 pleadings and review of the evidence before the Court, the
12 Court finds that the Defendant did violate Probation Terms and
13 Conditions 5, 11, and 13, and the Sex Offender Supplement
14 Probation Terms and Conditions 1, 2, 8, and 9.
15 Based on those findings, the Court finds
16 Mr. Hernandez-Prado guilty of the first degree felony as pled
17 in his original plea agreement of burglary of a habitation with
18 an intent to commit a felony.
19 The range of punishment was 5 to 99 years. The
20 Court, having considered all the evidence before the Court,
21 finds the appropriate punishment to be 15 years in the
22 Institutional Division of the TDCJ and hereby sentences the
23 defendant to 15 years in the TDCJ with no fine.
24 There's court costs of $50 and court-appointed
25 attorneys fees.
Exhibit D
STEPHANIE A. LARSEN, CSR, RPR