PD-1091-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/18/2015 4:56:01 PM
CAUSE NO. PD-1091-15 Accepted 12/19/2015 11:39:12 AM
ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS
*****
BEDROS NOBAR MINASSIAN, Petitioner / Appellant
VS.
THE STATE OF TEXAS, Respondent / Appellee
*****
On Petition from a Decision of the Court of Appeals
for the Fifth District of Texas, Dallas Division
in Cause No. 05-13-00936-CR
MOTION FOR REHEARING OF
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF SAID COURT:
COMES NOW, BEDROS NOBAR MINASSIAN, the Petitioner / Appellant,
and pursuant to Rule 79.1 of the Texas Rules of Appellate Procedure files this his
Motion for Rehearing of the Petition for Discretionary Review timely filed on
September 16, 2015. In support of said motion, counsel would show the following
substantial intervening circumstances for the granting of Petitioner’s Motion for
Rehearing:
December 18, 2015
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I.
The Court of Appeals reviewed the transcript and some of the evidence (the
Petitioner’s “probation file” was offered and allowed into evidence over the
Petitioner’s objection, but was not made part of the appellate record) of the Trial
Court’s proceeding and determined that the State met its burden of proving that the
Petitioner violated the terms of his community supervision.
II.
GROUNDS FOR REVIEW
1. The Court of Appeals erred in upholding the Trial Court’s finding where
there was no evidence that the person before the Court was the same
person that was placed on probation.
2. The Court of Appeals erred in upholding the Trial Court’s finding that
the State met its burden of proving that the Petition violated the terms
of his community supervision by traveling outside Dallas County
without having first obtained written permission by admitting “into”
evidence an unmarked probation file under the guise of a custodian of
the business record exception to the hearsay rule.
III.
REASONS FOR REHEARING
The basis of the Petitioner’s Motion for Rehearing is the Court’s failure to
apply the proper standard. The Court relied on Johnson v. State, 386 S.W.3d 347
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(Tex.App.-Amarillo 2012, no pet.) in stating that the Petitioner waived his challenge
to the identity issue. The proper standard would have been the “no evidence”
standard set out in Cobb v. State, 851 S.W.2d 871 (Ct. Crim. App. 1993). The Court
of Criminal Appeals in Cobb clearly demonstrates that identity is an element that
must be affirmatively proved.
IV.
ANALYSIS
The Appellate Court ruled that “the State must still prove the probationer’s
identity but failure to do so will not result in error on appeal unless the probationer
raises the issue at trial.” Johnson v. State, 386 S.W.3d 347, 350 (Tex.App.-Amarillo
2012, no pet.). However, the Appellate Court relied on the wrong legal standard.
The proper standard is a “no evidence” standard. Where, as here, the Trial Court had
no evidence that the Defendant before it was the same Defendant who was placed on
probation and given the Conditions of Probation in 2008. The proper Appellate Court
ruling should be reversal. Especially where the Court of Criminal Appeals explicitly
addresses the necessity of proving the violation. Cobb v. State, 851 S.W.2d 871
(1993).
The Appellate Court cites Johnson as standing for the premises that failure to
raise identity waives the issue. That is not accurate. Johnson states “the record here,
therefore contains evidence to support the Trial Court’s conclusion that the State
established by a preponderance of the evidence that the appellant is the individual
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who was placed on community supervision by order signed April 23, 2003, for
murder in trial court cause number 44,703-B ... The Trial Court did not abuse its
discretion by finding that a preponderance of the evidence established that appellant
was the individual subject to the terms and conditions of the 2003 order placing him
on community supervision.”
There was no evidence at the revocation hearing to establish that the man in
court is the same man given the conditions of probation and placed on probation in
2008. Especially absent the testimony from the Petitioner’s Probation Officer.
Without the file that was discussed, there is no way to know exactly what was
done or not done by the Community Supervision Officer vis-a-vis its Probationer.
What can be said with certainty is that the testifying witness, Mr. Pacheco, had no
personal or first-hand knowledge regarding the Petitioner. Therefore, his hearsay
testimony has no evidentiary value as to any of the elements of the alleged violation
of traveling outside the county. Merely because the probation revocation proceedings
are not a jury trial does not excuse the State or the Trial Court from following
evidentiary rules and the law. Mr. Pacheco gave hearsay from “duplicates” (unknown
originals) in a probationer’s file, a file that was never offered into evidence, much less
marked and numbered as an exhibit. Further, that file appeared to be, in part, a paper
file and, in part, a computer file. Finally, nothing from that file made its way into the
record for the Trial Court or the Appellate Court to review. As such, Mr. Pacheco’s
improper hearsay testimony can only be treated as having no evidentiary value.
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Therefore, the State’s proof of a violated probation condition fails as a matter of law
under the no-evidence standard.
This Court must insist by its rulings that courts follow rules and that people not
be sent to prison when the courts fail to follow those rules. A review of the Appellate
Court’s ruling will clarify and reinforce a trial court’s necessity of following the law
in probation revocation proceedings.
PRAYER FOR RELIEF
The Petitioner respectfully prays that this Court grant this Motion for
Rehearing of Petition for Discretionary Review, after briefing and argument, reverse
the Court of Appeals’ opinion, and reinstate his probation.
Respectfully submitted,
/s/ Thomas G. Pappas
_______________________________
THOMAS G. PAPPAS
TEXAS BAR CARD No.15455300
BURLESON PATE & GIBSON, L.L.P.
900 Jackson Street, Suite 330
Dallas, Texas 75202
Telephone: (214) 871-4900
Facsimile: (214) 871-7543
Email: tpappas@bp-g.com
COUNSEL FOR PETITIONER /
APPELLANT BEDROS NOBAR
MINASSIAN
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CERTIFICATE OF SERVICE
This will certify that a copy of the foregoing was delivered via electronic filing
and/or certified mail, return receipt requested to the following:
Susan Hawk Lisa C. McMinn
Dallas County District Attorney's Office State Prosecuting Attorney
133 N. Riverfront Blvd., LB 19 P.O. Box 13046
Dallas, Texas 75207 Austin, Texas 78711
DATED the 18th day of December, 2015.
/s/ Thomas G. Pappas
_______________________________
THOMAS G. PAPPAS
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