ACCEPTED
07-14-00408-CR
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
5/18/2015 10:36:11 PM
Vivian Long, Clerk
NO. 07-14-00408-CR
IN THE COURT OF APPEALS FILED IN
7th COURT OF APPEALS
AMARILLO, TEXAS
FOR THE SEVENTH DISTRICT OF TEXAS
5/18/2015 10:36:11 PM
VIVIAN LONG
AT AMARILLO, TEXAS CLERK
________________________________________________________
JESUS RIVERA DAVILA, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
________________________________________________________
APPELLANT’S BRIEF
________________________________________________________
APPEALED FROM THE 100TH DISTRICT COURT OF CARSON COUNTY;
NO. 5158; HONORABLE STUART MESSER, JUDGE
________________________________________________________
ORAL ARGUMENT IS REQUESTED
MAY 18, 2015
Respectfully submitted,
BIRD, BIRD & RABE
ATTORNEYS AT LAW
P.O. BOX 1257
CHILDRESS, TEXAS 79201
BY: /s/ Dale A. Rabe, Jr.
DALE A. RABE, JR.,
ATTORNEY FOR APPELLANT
TELEPHONE NO.: 940-937-2543
FACSIMILE NO.: 940-937-3431
E-MAIL: birdbirdrabe@gmail.com
STATE BAR NO.: 24027638
IDENTITY OF PARTIES AND COUNSEL
I hereby certify that the following listed persons
or entities have rights which may be adversely affected
by the outcome of these appeals in this Court so that
the Justices of this Court may review the same to
determine the need for recusal or disqualifications, if
necessary, herein:
APPELLANT: Jesus Rivera Davila
TRIAL COUNSEL (Plea):
Hon. James Mosley
SBOT # 00797116
P.O. Box 1181
Stinnett, Texas 79083
806-878-4019
TRIAL COUNSEL (Adjudication):
Mr. Bryan Denham
SBOT # 24078415
P.O. Box 981
Pampa, Texas 79006
806-886-4504
806-553-5432 (Facsimile)
denhamlaw@yahoo.com
APPELLATE COUNSEL:
Mr. Dale A. Rabe, Jr.
SBOT # 24027638
P.O. Box 1257
Childress, Texas 79201
940-937-2543
940-937-3431 (Facsimile)
birdbirdrabe@gmail.com
2
APPELLEE: The State of Texas
TRIAL AND APPELLATE COUNSEL:
Mr. Luke Inman
SBOT # 24050806
800 West Avenue, Box 1
Wellington, Texas 79095
806-447-0055
866-233-2738 (Facsimile)
Luke.inman@windstream.net
TRIAL JUDGE: Hon. Stuart Messer
P.O. Box 887
Clarendon, Texas 79226
806-874-0122
806-874-5146 (Facsimile)
Respectfully submitted,
/s/ Dale A. Rabe, Jr.
DALE A. RABE, JR.,
ATTORNEY FOR APPELLANT
3
TABLE OF CONTENTS
SUBJECT INDEX
SUBJECT PAGE
Identity of Parties and Counsel 2
Table of Contents 4
Subject Index 4
Index of Authorities 6
Statement of the Case 8
Statement Regarding Oral Argument 8
Issue Presented 9
Statement of Facts 9
Summary of the Argument 19
ISSUE NUMBER ONE 9, 20
APPELLANT WAS DENIED DUE PROCESS PROVIDED
BY THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND THE RIGHT TO
CONFRONT HIS ACCUSERS UNDER THE SIXTH
AMENDMENT TO THE UNITED STATES CONSTITUTION
WHEN HE WAS NOT PROVIDED AN INTERPRETER TO
REVIEW HIS CONDITIONS OF PROBATION DURING
HIS INTAKE INTERVIEW WITH THE 100TH JUDICIAL
DISTRICT COMMUNNITY SERVICE AND CORRECTIONS
DEPARTMENT. (ENTIRE RECORD).
Argument 20
Prayer 24
4
Certificate of Compliance 25
Certificate of Service 25
5
INDEX OF AUTHORITIES
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 38.30 (West 2014) 21
CASES
Cobb v. State, 851 S.W.2d 871 (Tex. 1993) 22
Garcia v. State, 149 S.W.3d (Tex. 2004) 21
Gonzalez v. State, No. 07–12–00210–CR, 22
2013 WL 6044451 (Tex. App.—Amarillo 2013)
(mem. op., not designated for publication)
Linton v. State, 275 S.W.3d 493 (Tex. 2009) 21
6
NO. 07-14-00408-CR
JESUS RIVERA DAVILA, § IN THE COURT OF APPEALS
APPELLANT §
§
VS. § 7TH DISTRICT OF TEXAS
§
THE STATE OF TEXAS, §
APPELLEE § AMARILLO, TEXAS
APPELLANT’S BRIEF
TO THE HONORABLE JUSTICES OF SAID COURT:
Comes now, Jesus Rivera Davila, the Appellant in the
above styled and numbered cause, by and through his
attorney of record on appeal herein, and submits in and
to this Court his Brief on appeal complaining of errors
of fact and law in the trial court below as follows:
For convenience, the Appellant, Jesus Rivera Davila,
and the Appellee, the State of Texas, will hereinafter
be referred to as the “Appellant” and the “State,”
respectively, throughout this brief hereinafter.
For convenience the Clerk’s Record will be referred
to as “CR”, the Reporter’s Record will be referred to as
“RR”, and the Supplemental Reporter’s Record will be
referred to as “SRR”.
7
STATEMENT OF THE CASE
This is an appeal from the 100th Judicial District
Court in Carson County, Texas, the Honorable Stuart
Messer, presiding. This appeal is from a Motion to
Adjudicate Guilt of the Defendant filed by the 100th
Judicial District Attorney’s Office.
A hearing on this matter was held on November 19,
2014, and resulted in Appellant’s deferred adjudication
community supervision being revoked. Appellant was
fully and finally convicted of the first degree felony
offense of possession of a controlled substance, and
sentenced to 55 years in the Texas department of
Criminal Justice – Institutional Division.
Notice of Appeal was timely filed.
STATEMENT REGARDING ORAL ARGUMENT
The issues presented are of constitutional dimension
and Appellant asserts that oral argument would be
beneficial to the Court.
8
POINT OF ERROR
POINT OF ERROR NUMBER ONE
APPELLANT WAS DENIED DUE PROCESS PROVIDED BY THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
AND THE RIGHT TO CONFRONT HIS ACCUSERS UNDER THE SIXTH
AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN HE WAS
NOT PROVIDED AN INTERPRETER TO REVIEW HIS CONDITIONS OF
PROBATION DURING HIS INTAKE INTERVIEW WITH THE 100TH
JUDICIAL DISTRICT COMMUNNITY SERVICE AND CORRECTIONS
DEPARTMENT. (ENTIRE RECORD).
STATEMENT OF THE FACTS
For the purpose of brevity and convenience, that
portion of this brief entitled “Statement of the Case”
is incorporated herein by reference.
In Cause Number 5158, Carson County, Texas,
Appellant was charged by indictment alleging that
Appellant on or about the 21st day of July, 2012, and
before the presentment of the indictment, in the County
of Carson and State of Texas, Appellant did
intentionally or knowingly possess a controlled
substance, namely, methamphetamine, in an amount of 400
grams or more. CR 17.
9
On April 22, 2013, Appellant pleaded guilty to
possession of a controlled substance in an amount of
greater than 400 grams, in the 100th District Court of
Carson County, Texas. SRR 12. Appellant was found to
be in need of an interpreter and was appointed an
interpreter for the purpose of the plea hearing. SRR 5.
Appellant was sentenced to 5 years deferred adjudication
community supervision, $2,000.00 fine, $140.00 lab fee,
400 hours of community service, out-of-state probation
transfer fee, and court costs. SRR 27. The conditions
of probation were not announced by the trial court
during the hearing (Entire Supplemental Reporter’s
Record). Appellant did not have an interpreter at the
time Appellant’s conditions of community supervision
were reviewed with him by the 100th Judicial District
Community Supervision Department. RR 21.
Among other conditions of community supervision,
conditions pertinent to this appeal were: (a) Condition
1 required that Appellant “commit no offense against the
laws of this State, any other State, the United States,
10
or any governmental entity,” and “notify the Community
Supervision Officer in charge of the case within forty-
eight (48) hours if arrested and/or charged with a
criminal offense”; (b) Condition 2 required that
Appellant “avoid injurious or vicious conduct and
totally abstain from the purchase, use or consumption of
alcoholic beverages of any kind, marihuana, pills,
narcotics, controlled substances, harmful drugs, glue or
paint sniffing, or any chemical which might cause
intoxication unless prescribed by a licensed physician
for legitimate medical reasons”; (c) Condition 7
required that the Appellant “report monthly to the
Community Supervision Officer assigned beginning on the
1st day of May, 2013, or as directed by the Community
Supervisions Officer and continue to report every month
thereafter, for the remainder of the Community
Supervision period. Should the [Appellant] transfer to
another county or state, the [Appellant] must report in
person in that jurisdiction as set out above and must
report by mail to the 100th Judicial District Community
11
Supervision Office on the 1st day of each month,
beginning the 1st day of the first month after the date
of this order”; and (d) Condition 10 of the Order of
Community Supervision was that the Appellant “complete
400 hours of community service. 100 hours of community
service by the 1st day of October 2013; 100 hours of
community service by the 1st day of April 2014; 100
hours of community service by the 1st day of October
2014; 100 hours of community service by the 1st day of
April 2015.” CR 28.
On March 7, 2014, the State filed its Motion to
Adjudicate Guilt of Defendant in Cause Number 5158
styled The State of Texas vs. Jesus Rivera Davila
alleging four violations of the terms of Appellant’s
community supervision, to-wit: (a) that Appellant
violated condition 1 in that Appellant committed the
offense of “Possession of Cocaine” on or about the 14th
day of October, 2013, in Polk County, Florida; and that
Appellant committed the offense of “Possession of Drug
Paraphernalia” on or about the 14th day of October,
12
2013, in Polk County, Florida; (b) that the Appellant
violated condition 2 in that consumed cocaine on or
about the 25th day of May, 2013; and that Appellant
consumed cocaine on or about the 3rd day of August,
2013; (c) that Appellant violated condition 7 in that
Appellant failed to report monthly by mail as directed
to the 100th Judicial District Community Supervision
Officer assigned for the month of November 2013; and
(d) that Appellant violated condition 10 in that
Appellant failed to complete 100 hours of community
service due by the 1st day of October 2013. CR 52.
On November 19, 2014, the trial court called the
case for hearing on the State’s Motion to Adjudicate.
RR 7. Again, the trial court appointed an interpreter
for Appellant. RR 7. Appellant pleaded “not true” to
the State’s contention that he violated conditions 1, 2,
7, and 10 of his conditions of community supervision.
RR 14.
The State called Mark White, 100th Judicial District
Community Supervision Officer. RR 16. Mark White
13
testified that as part of his employment he performs
intakes on people place on probation which includes
reviewing the conditions of community supervision. RR
17. Mark White performed the intake on Appellant. RR
18. Mark White stated he reviewed the conditions of
community supervision with Appellant. RR 21. Mark
White testified that there was no interpreter present
when he did the intake of Appellant and when he reviewed
the conditions of community supervision with Appellant.
RR 21. Mark White stated he did not believe Appelant
required an interpreter. RR 21. The State offered
State’s Exhibit 2, the Order Imposing Conditions of
Community Supervision, and State’s Exhibit 2 was
admitted without objection. RR 22. Appellant signed
State’s Exhibit 2. RR 24. Mark White testified that
Appellant understood the conditions of probation because
he signed the Order Imposing Conditions of Community
Supervision. RR 26. The Order Imposing Conditions of
Community Supervision is written entirely in English.
CR 28. On the day the intake was done on Appellant the
14
interpreter for the 100th Judicial District Community
Supervision Department, Jacob Henderson, did not assist
with the intake. RR 30. Mark White believed Appellant
understood his conditions of probation because he would
nod his head yes or say “okay.” RR 35. Mark White
agreed that most probationers, even non-native English
speakers, could recite there vital statistic information
typically taken during a probation intake interview. RR
39.
The State next called Carol Holcomb, Assistant
Director of the 100th Judicial District Community
Supervision and Corrections Department. RR 40. Carol
Holcomb served as Appellant’s indirect community
supervision officer in Texas. RR 43. Carol Holcomb
filed the violation report on Appellant. RR 44. Carol
Holcomb alleged that he violated his probation by
possessing cocaine and drug paraphernalia. RR 45. The
State offered State’s Exhibit 3, a certified copy of a
Florida judgment. RR 49. State’s Exhibit 3 was
admitted. RR 51. Appellant pleaded nolo contender and
15
was sentenced to 120 day in jail on Count Two of State’s
Exhibit 3, possession of drug paraphernalia. RR 52.
Carol Holcomb testified that she had no personal
knowledge, only a report from Appellant’s Florida
probation officer that Appellant admitted to cocaine
use. RR 54. Carol Holcomb testified that Appellant
failed to report by mail for the month of November 2013.
RR 55. Carol Holcomb stated that Appellant completed
67.5 of the 100 hours of community service he was
supposed to complete by October 2013. RR 55.
The State and Appellant rested on the adjudication
portion of the hearing. RR 61.
The State waived the first application paragraph in
its motion to adjudicate that Appellant committed the
offense of possession of a controlled substance. RR 61.
The State waived both application paragraphs in its
motion to adjudicate that Appellant consumed illegal
controlled substances. RR 61.
The trial court found that Appellant violated the
remaining application paragraph that Appellant violated
16
Condition 1 of his probation, that Appellant violated
Condition 7 of his probation, and that Appellant
violated Condition 10 of his probation; and fully and
finally convicted Appellant. RR 62. The hearing next
continued to the sentencing portion. RR 62.
Appellant called Rosanna Rivera Reyes, Appellant’s
daughter, as his first witness. RR 63. Rosanna Reyes
testified that Appellant is the bread winner for the
family. RR 64. Rosanna Reyes testified that her
brother, Appellant’s son, was murdered and that had a
devastating effect on Appellant. RR 64. Appellant did
not use controlled substances until the death of his
son. RR 66. Appellant sought help for his problems.
RR 66. Appellant serves as a father figure to Rosanna
Reyes’ son. RR 68.
Appellant next called Deeanna Rivera, Appellant’s
wife, as a witness. RR 72. Deeanna Rivera testified
that the family relies on Appellant. RR 74. Appellant
is active in the church. RR 74.
17
Appellant finally called Aris Rojas, Appellant’s
grandson. RR 84. Appellant has been a large part of
his grandson’s life. RR 86. Appellant is needed in
their household. RR 87. Appellant is Aris Rojas’
father figure. RR 89.
The trial court sentenced Appellant to 55 years in
the institutional division of the Texas Department of
Criminal Justice. RR 95.
Appellant appeals.
18
SUMMARY OF ARGUMENT
The federal constitution requires that a defendant
sufficiently understand the proceedings against him to
be able to assist in his own defense. Furthermore, the
Texas Code of Criminal Procedure provides that an
interpreter be sworn for an accused in a criminal
proceeding.
In the case at bar, the uncontroverted facts are
that Appellant was determined to be in need of an
interpreter for both the plea hearing and motion to
adjudicate guilt hearing and that an interpreter was
appointed and assisted Appellant. The uncontroverted
facts also establish that Appellant was not afforded an
interpreter for Appellant’s intake interview with the
100th Judicial District Community Service and Corrections
Department where the Order of Conditions of Community
Supervision were reviewed with Appellant. Moreover, the
Order of Conditions of Community Supervision were
written entirely in the English language.
19
Appellant was denied his due process right to a fair
trial guaranteed under the Fourteenth Amendment to the
United States Constitution because Appellant was not
provided an interpreter through every phase of
Appellant’s trial. Appellant was further denied his
Sixth Amendment right under the United States
Constitution to confront the witnesses against him when
Appellant was not provided an interpreter through every
phase of Appellant’s trial.
ARGUMENT
POINT OF ERROR NUMBER ONE
APPELLANT WAS DENIED DUE PROCESS PROVIDED BY THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
AND THE RIGHT TO CONFRONT HIS ACCUSERS UNDER THE SIXTH
AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN HE WAS
NOT PROVIDED AN INTERPRETER TO REVIEW HIS CONDITIONS OF
PROBATION DURING HIS INTAKE INTERVIEW WITH THE 100TH
JUDICIAL DISTRICT COMMUNNITY SERVICE AND CORRECTIONS
DEPARTMENT. (ENTIRE RECORD).
For purposes of brevity and convenience that portion
of this brief entitled “Statement of the Case” and
“Statement of the Facts” is resubmitted hereunder in its
entirety in support of these points of error.
20
Appellate courts must apply an abuse of discretion
standard in reviewing whether a trial court took
adequate steps to ensure a defendant sufficiently
understands the proceedings to assist in his own
defense. Linton v. State, 275 S.W.3d 493, 502 (Tex.
2009). Article 38.30 of the Texas Code of Criminal
Procedure requires that if a court determines that a
person charged with a crime does not speak the English
language, then an interpreter must be sworn to interpret
for the person charged. TEX. CODE CRIM. PROC. ANN. art.
38.30 (West 2014). If a defendant cannot hear or does
not speak English well enough to understand the trial
proceedings or communicate with counsel, fundamental
fairness and due process of law require that an
interpreter be provided to translate between English and
the accused’s own language. Linton at 500. The Sixth
Amendment to the United States Constitution guarantees
an accused the right to confront the witnesses against
him which includes the right to understand the testimony
and proceedings. Garcia v. State, 149 S.W.3d (Tex.
21
2004). A trial court has continuing jurisdiction of a
case which imposes conditions of probation and the
probation revocation hearing is an extension of the
original sentencing portion of the trial. Cobb v.
State, 851 S.W.2d 871, 874 (Tex. 1993). “Where the
judgment or order of probation contain clerical errors,
the defendant can challenge the particulars of the order
at the probation revocation hearing.” Id. Unlike the
case at bar, this Honorable Court has previously noted
that the providing of an interpreter to review the
conditions of probation to a non-English speaking
defendant cures possible error. Gonzalez v. State, No.
07–12–00210–CR, 2013 WL 6044451 (Tex. App.—Amarillo
2013)(mem. op., not designated for publication).
In this case, the fact that Appellant was not given
an interpreter during the review of his conditions of
probation is uncontroverted. The review of the
conditions of probation is an extension of the
sentencing by the trial court. The importance of an
understanding of the conditions of probation cannot be
22
understated and is arguably one of the most important
steps of the process of a person being placed on
probation. The appointment of an interpreter cannot be
waived and the need for an interpreter was clearly
recognized by the trial court as evidenced by the trial
court’s appointment of an interpreter for Appellant
during Appellant’s two hearings before the court.
Appellant was denied due process and confrontation of
his accusers when he was not afforded an interpreter to
explain his conditions of probation. Had Appellant
been provided an interpreter to explain his conditions
of probation, Appellant would have fully understood
what was expected of him; moreover, Appellant could
have filed a motion for new trial or requested
additional services if he knew he could not
successfully complete and abide by the conditions
imposed on him. Texas law required that Appellant be
assisted by an interpreter during the review of his
conditions of probation with the 100th Judicial District
Community Service and Corrections Department, an
23
extension of the sentencing portion of the trial
process, and no interpreter was present to assist
Appellant.
Therefore, since Appellant was denied due process
and the right to effectively confront his accusers, the
trial court’s judgment should be reversed and remanded.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the Appellant
respectfully prays that the judgment of the trial court
below be reversed and remanded to the trial court for a
ruling consistent with this Honorable Court’s
determination.
Respectfully submitted,
BIRD, BIRD & RABE
ATTORNEYS AT LAW
P.O. BOX 1257
CHILDRESS, TEXAS 79201
BY: /s/ Dale A. Rabe, Jr.
DALE A. RABE, JR.,
ATTORNEY FOR APPELLANT
TELEPHONE NO.: 940-937-2543
FACSIMILE NO.: 940-937-3431
E-MAIL: birdbirdrabe@gmail.com
STATE BAR NO.: 24027638
24
CERTIFICATE OF COMPLIANCE
I hereby certify that the above and foregoing
Appellant’s Brief is 3,275 words in its completion,
signed on this the 18th day of May, 2015, in accordance
with the rules governing same.
/s/ Dale A. Rabe, Jr.
DALE A. RABE, JR.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the
foregoing Appellant’s Brief was delivered as indicated
below on this the 18th day of May, 2015, to the
following:
Mr. Luke Inman VIA E-SERVICE
800 West Avenue, Box 1
Wellington, Texas 79095
E-Mail: luke.inman@windstream.net
Mr. Jesus Rivera Davila VIA U.S. MAIL
TDCJ #50108575
810 FM 2821
Huntsville, Texas 77349
/s/ Dale A. Rabe, Jr.
DALE A. RABE, JR.
25