ACCEPTED
07-15-00249-CR
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
12/9/2015 2:33:32 PM
Vivian Long, Clerk
NO. 07-15-00249-CR
FILED IN
7th COURT OF APPEALS
IN THE COURT OF APPEALS AMARILLO, TEXAS
FOR THE SEVENTH DISTRICT OF TEXAS 12/9/2015 2:33:32 PM
VIVIAN LONG
AMARILLO, TEXAS CLERK
RUDY CORTINAS
V.
THE STATE OF TEXAS
APPEALING THE TRIAL COURT'S JUDGMENT
IN CAUSE NUMBER 1345818D
FROM THE 432ND DISTRICT COURT OF
TARRANT COUNTY, TEXAS
HON. RUBEN GONZALEZ, PRESIDING JUDGE
HON. ELIZABETH BERRY
APPELLANT'S BRIEF
RICHARD A. HENDERSON
RICHARD A. HENDERSON, P.C.
100 THROCKMORTON STREET, SUITE 540
FORT WORTH, TEXAS 76102
(817) 332-9602
(817) 335-3940fax
State Bar No. 09427100
richard@rahenderson.com
ATTORNEY FOR APPELLANT
Oral Argument Requested
TABLE OF CONTENTS
Table of Contents .i
List of Interested Parties........................................................................................ii,iii
Indexof Authorities..................................................................................................iv
IssuesPresented.........................................................................................................v
Issue For Review No. 1:
THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING
APPELLANT'S DEFERRED ADJUDICATION AND SENTENCING
APPELLANT TO SEVEN (7) YEARS IN PRISON . .............................................. v
Statementof the Case................................................................................................1
Summary of the Facts of the Case............................................................................2
Summary of Argument..............................................................................................4
Arguments and Authorities .......................................................................................4
Issue For Review No. 1: (Restated)
THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING
APPELLANT'S DEFERRED ADJUDICATION AND SENTENCING
APPELLANT TO SEVEN (7) YEARS IN PRISON ...............................................4
Prayer.........................................................................................................................6
Certificate of Compliance .........................................................................................7
Certificateof Service.................................................................................................7
1
LIST OF INTERESTED PARTIES
Rudy Cortinas
CID #0259844
Tarrant County Jail
100 N. Lamar Street
Fort Worth, Texas 76102
Appellant
Carl J. Lazarus
Assistant Criminal District Attorney - Trial Attorney
Jim Hudson
Assistant Criminal District Attorney —Revocation Hearing
District Attorney's Office
401 West Belknap
Fort Worth, Texas 76196-0201
Mr. Joe Shannon, Jr.
Former Tarrant County Criminal District Attorney
401 West Belknap
Fort Worth, Texas 76196-0201
Ms. Debra Windsor,
Assistant Criminal District Attorney
Post-Conviction
401 West Belknap
Fort Worth, Texas 76196-0201
Ms. Sharen Wilson,
Criminal District Attorney
Tarrant County, Texas
401 West Belknap
Fort Worth, Texas 76196-0201
Attorneys for the State
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William M. Harber
1424 Junior Drive
Dallas, Texas 75208
David Pearson
222 West Exchange, Suite 103
Fort Worth, Texas 76164
Trial Attorneys for Defendant
Jack Strickland
909 Throckmorton Street
Fort Worth, Texas 76102
Defense Attorney at Revocation Hearing
Richard A. Henderson
Richard A.Henderson, P.C.
100 Throckmorton Street, Suite 540
Fort Worth, Texas 76102
Attorney for Appellant
111
LIST OF INTERESTED PARTIES
INDEX OF AUTHORITIES
CASES:
Bennett v. State, 476 S.W.2d 281, 282 (Tex.Crim.App. 1972) .................................4
Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App. 1984) ............................ 4
Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1981)............. 5
Jenkins v. State, 740 S.W.2d 435,437 (Tex.Crim.App.1983) ................................. 5
Langford v. State, 578 S.W.2d 737, 739 (Tex.Crim.App. 1979)............................... 5
Ross v. State, 523 S.W.2d 402, 403 (Tex.Crim.App.1975)...................................... 5
Saxton v. State, 804 S.W.2d 910, 912 n. 3 (Tex.Crim.App.1991)............................ 5
Taylor v. State, 604 S.W.2d 175, 179 (Tex.Crim.App. [Panel Op.] 1980) .............. 5
Wilson v. State, 645 S.W.2d 932, 934 (Tex.App.—Dallas 1983, no pet.) ...............4
lv
ISSUES PRESENTED
ISSUE FOR REVIEW NO. ONE
THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING
APPELLANT'S DEFERRED ADJUDICATION AND SENTENCING
APPELLANT TO SEVEN (7) YEARS IN PRISON.
im
IN THE COURT OF APPEALS FOR THE
SEVENTH DISTRICT OF TEXAS
AMARILLO
RUDY CORTINAS, §
APPELLANT §
§
V. § NO. 07-15-00249-CR
§
THE STATE OF TEXAS, §
APPELLEE
APPEALED FROM CAUSE NUMBER 1345818D
FROM THE 432ND DISTRICT COURT OF
TARRANT COUNTY, TEXAS
THE HONORABLE, RUBEN GONZALEZ, JR., JUDGE PRESIDING
THE HONORABLE, ELIZABETH BERRY
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
This is an appeal (CR-52, 53) from pleas of true from a deferred
adjudication probation revocation (CR 43, 47). Appellant had previously pleaded
guilty to possession of a controlled substance under 1 gram, methamphetamine
enhanced to a second degree felony (CR-5,17,26). A Petition to Proceed to
Adjudication was filed. (CR-36). The allegations included failure to report for
October, November, and December of 2014 and failure to complete an outpatient
care program. (RR 3:6-37). The plea was true to the violations (CR-43,47),
1
(RR 2:13, 18-19). The court found the allegations to be true and adjudicated
Appellant guilty and assessed seven (7) years punishment in the Institutional
Division of the Texas Department of Criminal Justice. (CR-47), (RR 2: 68-70).
SUMMARY OF THE FACTS OF THE CASE
The facts of the underlying possession case do not appear in the record. The
summary of facts will be limited to the reasons and extenuating circumstances
surrounding the violations of the deferred adjudication probation.
Appellant pleaded true to the violations of not reporting for three months
and not completing an outpatient drug program. (RR 2:18-19). After the pleas of
true the State did not offer any evidence as to the violations. (RR 2: 21). Appellant
waived his right not to testify and took the stand in his own behalf and stated he
wanted to give explanations for the violations (RR 2:22-23). Appellant explained
that beginning in September, 2014, he began taking interferon shot treatments for
hepatitis C that continued through December of 2014. Appellant had to ride a bus
to the John Peter Smith Hospital to take some 16 shots. Side effects included
depression and vomiting (RR 2:28-31). His doctor told Appellant this was a once
in a lifetime opportunity. Appellant had to make bus transfers to get to the clinic
2
(RR 2:32). Appellant conceded that he could have reported on the dates of his
treatment (RR2: 33). Appellant introduced medical records verifying his medical
needs and condition, (DX 1,3,4). Appellant stated that once he stopped reporting
he became scared and concerned that being jailed would interfere with his
treatments. He became depressed and believed his "hole was getting deeper". (RR
2:34-38). Appellant lost his job and the depression and fear increased. (RR 2:36-
38).
The outpatient drug treatment was also along distance away from where
Appellant lived. Appellant was having transportation issues that are not clear from
the record (RR 2:35-36). Appellant missed the first out-patient assessment because
of a funeral and was apparently late and not allowed in at the next assessment. He
then stopped trying to go to the outpatient drug treatment when he stopped
reporting for probation. (RR 2:60-63).
Appellant also testified that his mother is elderly and that Appellant is an
essential primary caregiver. This was verified by a letter from a doctor. (RR 2:24-
25), (DX2). Appellant finally asked for reinstatement because of the extenuating
circumstances and the fact that he had spent some 7-8 months in jail already for the
charge (RR 2:54-55).
ii
SUMMARY OF ARGUMENT
Appellant believes it was an abuse of discretion for the trial judge to revoke
his probation and sentence him to seven years in prison.
ARGUMENTS AND AUTHORITIES
ISSUE FOR REVIEW NO. ONE (RESTATED)
THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING
APPELLANT'S DEFERRED ADJUDICATION AND SENTENCING
APPELLANT TO SEVEN (7) YEARS IN PRISON.
Appellant cites the above Statement of Facts above and incorporates them
into his Argument and Authorities.
Probation may be revoked upon a finding that an appellant has violated the
terms of his or her probation. Wilson v. State, 645 S.W.2d 932, 934 (Tex.App.-
Dallas 1983, no pet.). Appellate review of a probation revocation proceeding is
limited to a determination of whether the trial court abused its discretion. Bennett
v. State, 476 S.W.2d 281, 282 (Tex.Crim.App.1972); Wilson, 645 S.W.2d at 934.
To determine whether the trial court has abused its discretion, the courts look to
determine whether the State has met its burden of proof. See Cardona v. State, 665
S.W.2d 492 5 493-94 (Tex.Crim.App.1984). The State meets its burden when the
greater weight of the evidence before the court creates a reasonable belief that
4
the probationer violated a condition of probation. Jenkins v. State, 740 S.W.2d
435, 437 (Tex.Crim.App.1983), disapproved on other grounds by Saxton v. State,
804 S.W.2d 910, 912 n. 3 (Tex. Crim.App. 199 1).
In revocation proceedings, the trial judge is the sole trier of the facts, the
credibility of the witnesses, and the weight to be given the testimony. Taylor v.
State, 604 S.W.2d 175, 179 (Tex.Crim.App. [Panel op.] 1980); Ross v. State, 523
S.W.2d 402, 403 (Tex.Crim.App.1975). It is the trial court's duty to judge the
credibility of the witnesses and to determine whether the allegations in the motion
to revoke are true or not. Langford v. State, 578 S.W.2d 737, 739
(Tex.Crim.App. 1979). This Court must therefore view the evidence presented at
the revocation proceeding in a light most favorable to the trial court's ruling.
Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1981).
Appellant conceded that he had violated his probation, and pleaded true to
the violations; however, Appellant contends that he presented evidence of such
extenuating circumstances, which included Appellant's severe health issues, such
that it was an abuse of discretion by the trial court to revoke his probation and
sentence him to prison. Appellant was undergoing intense medical treatments for
hepatitis C which interfered with his ability to report. These treatments also made
5
it difficult for Appellant to attend the outpatient drug treatment.
Appellant contends that these relatively minor violations do not warrant
revocation and a seven year sentence. Add these issues to the fact that Appellant
was basically the main health care provider of his elderly mother and the fact that
he had already spent several months in jail on a minor drug charge, is further proof
that that it was an abuse of discretion to find that Appellant had violated his
probation and sentence him to prison.
PRAYER
Appellant respectfully requests the case be reversed and rendered in his
favor or at least he be granted for a new revocation hearing. Appellant also prays
for all such additional or future relief to which he may be entitled to in law or in
equity.
Respectfully Submitted,
RICHARD A. HENDERSON, P.C.
Two City Place
100 Throckmorton Street, Suite 540
Fort Worth, Texas 76102
Telephone: (817) 332-9602
Telecopier: (817) 335-3940
richMa nd
RICHARD A. HENDERSON
State Bar No. 09427100
ATTORNEY FOR APPELLANT
6
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of TEx.R.APP. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of TEx.R.APP. P. 9.4(i) because it contains 1,765 words,
excluding any parts exempted by TEx.R.APP.P. 9.4(i)(1), as computed by the
word-count feature of Microsoft Office Word 2010, the computer software used to
prepare the document.
chard A. Henderson
CERTIFICATE OF SERVICE
A true copy of the Appellant's Brief has been electronically served on
opposing counsel, Ms. Debra Windsor, Assistant Criminal District Attorney, Post-
Conviction, Tarrant County District Attorney's Office, 401 W. Belknap Street,
Fort Worth, Texas 76196 and mailed U.S. Regular Mail to Appellant, Mr. Rudy
Cortinas, CID#0259844, Tarrant County Jail, 100 N. Lamar Street, Fort Worth,
Texas 76102, on this the 9th ofDecembe,r01
A. Hender'son
7