ACCEPTED
03-13-00509-CR
6859841
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/10/2015 9:49:48 AM
JEFFREY D. KYLE
No. 03-13-00509-CR
CLERK
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT9/10/2015 9:49:48 AM
AUSTIN, TEXAS
JEFFREY D. KYLE
Clerk
TERRY ATKINS
vs.
STATE OF TEXAS
APPELLANT’S MOTION FOR REHEARING
Amber Vazquez Bode
Attorney at Law
State Bar No. 24039225
1004 West Ave.
Austin, Texas 78701
(512) 220-8507 (office)
(512) 917-3676 (cell)
(512) 480-0760 (fax)
ATTORNEY FOR APPELLANT
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Appellant Terry Atkins, who files this Motion for
Rehearing, and respectfully asks this Court to revise its judgment in Cause
Number 03-13-00509-CR only.
I. GROUND FOR REHARDING
The Court of Appeals decision should be reconsidered because it is based
on the premise that there were other reasons to revoke Appellant’s
community supervision, such as a missed home visit, various supervision
fees and charging a GPS monitor, however, those reasons had been waived
by the State.
II. ARGUMENT AND AUTHORITIES
The Third Court of Appeals held that even one violation will support
the decision to adjudicate, and that “[t]he trial court expressly based its
decision on its finding that the allegations concerning the failure to allow the
home visit and the failure to participate in the GPS program were true.”
A decision based on those two violations should be reconsidered because the
State waived the violations regarding the home visit and GPS, stating,
“First of all I’d like to say that I believe the first- certainly the
first six allegations in the motion to adjudicate really have very
little- it sounds like Mr.- even the probation officer believed that,
you know, he was having a hard time with his money, things like
that. Maybe the home visit thing has been explained.” The
State went on to argue, “No. 7 is the failure to participate
in the Global Positioning system, not charging you phone for
two days. It sounds like it might have been an inadvertence, too.
It doesn’t sound like anybody was hurt as a result of that.
The main thing the State is proceeding on in this case is this
criminal offense on February 22nd.” (RR pg. 130).
Courts of Appeal have recognized that the liberty of a probationer is
protected by the due process and due course of law provisions of the
constitution. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d
656 (1973); Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1976). This is
because his liberty, although indeterminate, includes many of the core values
of unqualified liberty, such as freedom to be with family and friends,
freedom to form other enduring attachments of normal life, freedom to be
gainfully employed, and freedom to function as a responsible and self-reliant
person. Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593 2600, 33
L.Ed.2d 484 (1972).
In the current case, Appellant maintains that the evidence of the third
degree felony of Retaliation was insufficient, and was subsequently
dismissed after the hearing. The trial court erred by making affirmative
findings that Appellant violated terms of community supervision,
specifically failure to allow a home visit and failure to participate in the GPS
monitoring program, both of which had been expressly waived by the State.
The State made a clear argument to the trial court that their basis for
pursuing a Motion to Adjudicate was the subsequent Retaliation charge.
Therefore, the Court’s decision which was based exclusively on the same
violations that were waived, and did not address the sufficiency of the
evidence on the Retaliation charge should be reconsidered.
PRAYER
Wherefore, the Appellant prays that the Appellant’s Motion for Rehearing
be granted.
/s/ Amber Vazquez Bode
AMBER VAZQUEZ BODE
Attorney for Appellant
State Bar No. 24039225
1004 West Ave.
Austin, Texas 78701
PH: 512-220-8507
FAX: 512-480-0760
amberv@lawyers.com
CERTIFICATE OF COMPLIANCE
I hereby certify that, pursuant to Rule 9.4 of the Texas Rules of
Appellate Procedure, Appellant’s Motion for Rehearing contains 725
words according to the computer generated program Microsoft Word.
/s/Amber Vazquez Bode
Amber Vazquez Bode
CERTIFICATE OF SERVICE
I hereby certify that on September 9, 2015, a true and correct copy of
the Appellant’s Motion for Rehearing was sent to the following counsel by
eservice:
The Honorable Lisa C. McMinn
State Prosecuting Attorney
P.O. Box 13046
Austin, TX 78711
The Honorable Velva L. Price
Criminal District Clerk
P.O. BOX 1748
Austin, TX 78767
Ms. Kathryn A. Scales
Assistant District Attorney
PO Box 1748
Austin, TX 78767-1748
/s/ Amber Vazquez Bode
Amber Vazquez Bode