Crawford, Richard Scott

PD-0881-15

No. ______________________

IN THE COURT OF CRIMINAL APPEALS OF TEXAS SITTING AT AUSTIN, TEXAS _______________________________________________

RICHARD SCOTT CRAWFORD, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE _______________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _______________________________________________

FROM THE SEVENTH COURT OF APPEALS, SITTING AT AMARILLO HONORABLE BRIAN QUINN, CHIEF JUSTICE, PRESIDING (UNPUBLISHED OPINION BY CHIEF JUSTICE QUINN) (SEVENTH COURT OF APPEALS NO. 07-13-00108-CR) (LUBBOCK COUNTY TRIAL COURT NO. 2004-407,817) _______________________________________________

RODERIQUE S. HOBSON, JR. State Bar No. 09744900 816 Main Street Lubbock, Texas 79410 Tel: 806/762-6030 Fax: 806/763-3220

Attorney for Appellant

July 15, 2015

ORAL ARGUMENT REQUESTED July 17, 2015

TABLE OF CONTENTS

Table of Contents ...................................................................................................... 2 Index of Authorities ................................................................................................... 3 Statement Regarding Oral Argument ........................................................................ 4 Statement of the Case ................................................................................................ 4 Statement of Procedural History ............................................................................... 5

Sole Question Presented for Review

Did the Court of Appeals err when it affirmed the trial court’s arbitrary and capricious revocation of Appellant’s probation where the State failed to prove any violations that occurred after the trial court previously exercised its discretion to allow Appellant to continue on probation? ............................................................... 6

Reasons for Granting Review .................................................................................... 6 Argument and Authorities ......................................................................................... 8 Prayer for Relief ...................................................................................................... 15 Certificate of Service ............................................................................................... 16 Certificate of Compliance........................................................................................ 16 Appendix A (Court of Appeals Slip Opinion) ............................................................i Appendix B (Appellant’s Motion for Rehearing) .................................................... ii

INDEX OF AUTHORITIES

CASES PAGE Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008) ........................................ 14 Lisenba v. Calfiornia, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941) ............... 12 Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ............................. 14 Rogers v. State, 640 S.W.2d 248 (Tex. Crim. App. 1982) ...................................... 10 Webb v. State, 161 Tex. Crim. 442, 278 S.W.2d 158 (1955) .................................. 12 Wester v. State, 542 S.W.2d 403 (Tex. Crim. App. 1976) ................................ 11, 12

CONSTITUTIONAL AMENDMENTS, STATUTES AND RULES

U.S. CONST. Amend. 5......................................................................................... 8, 14 U.S. CONST. Amend. 14....................................................................................... 8, 14 Texas Penal Code §§ 22.02 ....................................................................................... 4 Tex. R. App. P. 66.3 .................................................................................................. 7 Tex. R. App. P. 68.2 .................................................................................................. 6

STATEMENT REGARDING ORAL ARGUMENT

Appellant requests oral argument because the issues presented herein can best be addressed in a question-and-answer format at oral argument. Appellant attempted to fully explain the main issue in this Petition while keeping it as brief as possible, but it could be further clarified during oral argument.

STATEMENT OF THE CASE

On December 21, 2004, Appellant was charged via a two-count indictment with committing the second degree felony offense of aggravated assault on or about November 11, 2004, in violation of Texas Penal Code §§ 22.02(a) (1) and (2) (Vernon 2003) (CR 5). On March 17, 2005 the defendant pleaded guilty to the charge and was placed on deferred adjudication probation for a term of 10 years. (CR 18). In 2012 the State filed a motion to proceed with adjudication of guilt containing several allegations that were the subject of previous attempts to revoke Appellant’s probation in a motion to proceed with adjudication of guilt that was dismissed in 2011. The trial court revoked Appellant’s probation based upon the 2011 allegations and sentenced Appellant to eight years imprisonment.

Prior to the revocation hearing the Defense objected to the use of previously alleged-and-resolved violations of the Appellant’s probation in the current hearing as a violation of Appellant’s right to due process of law. This is because if no new *5 violations occurred (or were even alleged) after the 2011 motion to proceed was dismissed, then essentially the trial court reversed its own discretion to continue Appellant on probation in a completely arbitrary and capricious manner.

STATEMENT OF PROCEDURAL HISTORY

On May 7, 2014, the Seventh Court of Appeals issued an unpublished per opinion and judgment affirming the Appellant’s probation revocation in the trial court and overruling his sole appellate issue. (See, Appendix - Court of Appeals’ slip opinion at 3).1 On May 22, 2014, Appellant filed a Motion for Rehearing contesting the intermediate court’s determination that the trial court did not abuse its discretion in revoking Appellant’s probation. (See, Appendix – Motion for Rehearing). On May 30, 2014, the court denied Appellant’s Motion for Rehearing without issuing a further opinion.

However, Appellant’s counsel failed to timely inform Appellant of his right to seek discretionary review following the intermediate court’s mandate. Appellant filed a Writ of Habeas Corpus claiming that counsel’s failure to inform him of his right to seek review constituted ineffective assistance of counsel. On May 20, 2015, this Court issued an opinion granting Appellant’s Writ of Habeas Corpus and

1 Crawford v. State, No. 07-13-00108-CR, 2013 Tex. Ap. LEXIS 13146 (Tex. App. – Amarillo October 22, 2013) (not designated for publication).

issued a mandate on June 15, 2015.2

This Petition for Discretionary Review is timely filed since it is being filed within thirty days of the mandate granting Appellant’s Writ of Habeas Corpus.3

SOLE QUESTION PRESENTED FOR REVIEW

ISSUE ONE: Did the Court of Appeals err when it affirmed the trial court’s arbitrary and capricious revocation of Appellant’s probation where the State failed to prove any violations that occurred after the trial court previously exercised its discretion to allow Appellant to continue on probation?

REASONS FOR GRANTING REVIEW

The ruling by the Seventh Court of Appeals sanctioned an arbitrary and capricious decision by the trial court to revoke Appellant’s probation where the trial court previously exercised its discretion not to revoke Appellant’s probation when the same allegations were brought before it. In other words, the trial court reversed its own decision approximately eighteen months later based upon absolutely no evidence of additional violations of Appellant’s probation. The intermediate court focused on the procedural circumstances surrounding the exercise of the trial court’s discretion instead of the fact that once that discretion has been exercised, it is a denial of due process of law to suddenly reverse course

2 Ex parte Crawford, No. WR-64,596-03 (Tex. Crim. App. June 15, 2015). 3 See Tex. R. App. P. 68.2 (Vernon 2013).

without proof of any new violations. This creates the risk for absurd results and a lack of repose for any person who is allowed to continue on community supervision after a motion to revoke supervision is dismissed.

Thus, this is an important question of constitutional law that must be settled by this Court4. Furthermore, by allowing a trial court to reverse itself without the presentation of new evidence the Seventh Court of Appeals so far departed from accepted and well-settled tenets of fundamental fairness and due process as to call for an exercise of this Court’s discretion.5

4 See, Tex. R. App. P. 66.3(b). 5 See, Tex. R. App. P. 66.3(f).

ARGUMENT AND AUTHORITIES

Appellant’s argument to the intermediate court was premised upon a denial of substantive due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution. On October 12, 2012 the State of Texas filed a Motion to Proceed with Adjudication of Guilt alleging that Appellant violated his probation by committing the class B misdemeanor offense of harassment on or about September 9, 2012 in Haskell County, Texas. (CR 24). The Order for Capias to Issue that was signed by the trial court stated, “the Court further takes judicial knowledge of all documents, orders, the judgment and other matters in this above entitled and numbered cause, the same having been heard and duly considered, the Court is of the opinion that the facts and information set out in the said Motion to Proceed with Adjudication of Guilt are sufficient to establish probable cause for the issuance of said capias.” (CR 25) (emphasis added in bold).

On October 31, 2012 the State filed its First Amended Motion to Proceed with Adjudication of Guilt in which it added several allegations of other violations of Appellant’s probation. (CR 30-31). On November 19, 2012 the State filed its Second Amended Motion to Proceed with Adjudication of Guilt in which it alleged even more violations of Appellant’s probation. (CR 35-36).

Several of the allegations in the first and second amended motions to proceed with adjudication of guilt were previously the subject of earlier attempts to revoke Appellant’s probation. (RR vol. 4, p. 158). In fact, a February 3, 2011 Motion to Proceed with Adjudication of Guilt that was essentially incorporated by reference into the State’s 2012 motions contained the only violations that the trial court found to be “true” and upon which it based its revocation decision. (RR vol. 4, pp. 158-159). However, the 2011 motion to proceed was dismissed by order of the trial court on July 21, 2011. (RR vol. 4, p. 142). The trial court’s order stated:

On this the 21st day of July, A.D. 2011, came on to be heard the Motion of the Assistant Criminal District Attorney of Lubbock County, Texas, to set aside the Motion to Proceed with Adjudication of Guilt heretofore filed in this cause, and it being the opinion of the Court that there is sufficient grounds for setting same aside; therefore, IT IS ORDERED, ADJUDGED AND DECREED that the Motion to Proceed with Adjudication of Guilt in this cause, heretofore filed, to-wit: on February 3, 2011, be and is hereby set aside and is held for naught. IT IS FURTHER ORDERED that the Defendant forthwith be discharged from custody hereunder. The Probation is to remain in full force and effect. (RR vol. 4, p. 142) (emphasis added in bold).

Prior to the November 20, 2012 probation revocation hearing, Appellant’s counsel argued to the trial court that the allegations that were previously disposed of by the July 21, 2011 dismissal were not properly before the court. (RR vol. 2, *10 pp. 9-15). Appellant’s counsel quoted this Court’s language from Rogers v. State6 that “It would be the epitome of arbitrariness for a Court to first conduct a hearing on the alleged violations and to exercise its discretion to return the probationer to probation, whether by a continuance of the hearing, or by a continuance of the probation, and then decide several months later to exercise its discretion in the opposite fashion by revoking the probation without a determination of a new violation.” (RR vol. 2, p. 12).

The Seventh Court of Appeals ignored the fact that the trial court had exercised its discretion once before on these alleged violations and instead focused on the procedural aspects of whether a formal hearing took place. 7 The intermediate court also disregarded the plain language of the trial court’s written proclamations contained within the Order for Capias to Issue that it took judicial notice of the entire file and “heard and duly considered” the facts and evidence set forth in the State’s Motion to Proceed with Adjudication, and that on July 21, 2011the trial court “heard” the Motion to Dismiss with a footnote stating, “That verbiage appears to be boilerplate incorporated by the party who drafted and submitted the order to the trial court. Though it alludes to a prior hearing, the trial

6 640 S.W.2d 248, 252 (Tex. Crim. App. 1982) 7 Op. at 2, “But outside the scope of that prohibition are situations wherein no plea was made to, hearing held on, or evidence received on the prior motion [to revoke probation].”

court iterated at the hearing on the 2012 motion that it ‘did not have a hearing, the evidence regarding the allegations in the [2011] Motion to Proceed to Adjudicate.”8

Even if the above-referenced orders signed by the trial court contain “boilerplate” language, the trial court would still have to make certain findings based upon some evidence in order to sign them. If what the intermediate court is saying is true, then the role of a trial court in issuing warrants and dismissing motions to revoke probation is nothing more than that of an inanimate rubber stamp unless there happens to be a formal hearing.9

This Court previously rejected this purely ministerial characterization in Wester v. State10 in which the Court held that “when a revocation proceeding has been had and the defendant continued on probation in the discretion of the court (although there was an adequate basis for revocation demonstrated at the hearing), the continuation cannot subsequently be arbitrarily withdrawn at the whim of the trial court or upon mere fact of an arrest. To hold otherwise would violate due

8 Op. at 3, n. 1. 9 See Appellant’s Motion for Rehearing for further examples of where the trial court actively participated in the decision to file each previous Motion to Proceed with Adjudication of Guilt and all of the evidence that the trial court heard and considered outside of a formal courtroom hearing. 10 542 S.W.2d 403 (Tex. Crim. App. 1976).

process, due course of law of the land and fundamental fairness.”11

Wester is particularly compelling in the case before the Court since the initial hearing in that case merely consisted of the defendant entering a plea of “true” to one of the allegations in the motion to revoke probation.12 Once Wester entered his plea the trial court merely followed the State’s recommendation to allow him to continue on probation and no other evidence to support the violations was ever presented.13 Thus, in the context of what is fundamentally fair for the purposes of substantive due process, the deciding factor should simply be whether the trial court previously exercised its discretion to continue, modify, or revoke probation, and not on the procedural aspects surrounding the exercise of the court’s discretion.

The denial of due process is the result of the failure to observe the fundamental fairness that is essential to the very concept of justice.14 While “due process” remains a malleable concept, it has always required that an accused in a criminal case be accorded the fundamental fairness necessary to the due administration of justice.15

11 Id. at 406. 12 Id. at 404. 13 Id. 14 Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941). 15 Webb v. State, 161 Tex. Crim. 442, 278 S.W.2d 158, 160 (1955).

In this case, the State of Texas suspected that Appellant had committed the misdemeanor criminal offense of harassment and filed a motion to proceed with adjudication of guilt with the harassment claim as the lone alleged violation. (CR 24). At some point prior to the hearing on the State’s motion, the State began to doubt its ability to prove that violation actually occurred, and then during the hearing the State abandoned it completely. (RR vol. 2, p. 165). As a result, the foundation of the entire proceeding vanished from underneath it and the State was left with claims that had already been presented to the trial court in a previous motion proceed and upon which the trial court had already exercised its discretion by allowing Appellant to continue on his probation when it signed and approved the July 21, 2011 Order to Dismiss Motion to Proceed with Adjudication of Guilt. (RR vol. 4, p. 142).

The inescapable fact is that nothing changed between the July 21, 2011 and February 27, 2013 when the trial court signed the judgment revoking Appellant’s probation and sentenced him to serve time in the penitentiary. As such, if no new provable violation occurred then how can it possibly be fair for Appellant to have his probation revoked a year and a half later?

The ruling of the trial court and the subsequent affirmation by the intermediate court creates a situation where a probationer can be accused of *14 violating his probation during Year One of a ten-year probation. Then, if that motion to proceed with adjudication of guilt is subsequently dismissed and no other violations are even alleged to occur during the remainder of his probation, he can still be revoked and sentenced to the penitentiary on the last day of probationary term. That leads to an absurd result that violates all rational notions of fundamental fairness.

The bottom line is that on February 27, 2013 the trial court acted arbitrarily and capriciously by reversing its July 21, 2001 decision to continue Appellant on his probation without finding any credible evidence that any new violations had occurred. 16 Therefore, Appellant’s right to substantive due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution was violated and the trial court’s order should be reversed by this Court.

16 See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (holding that a trial court abuses its discretion when it acts without reference to any guiding rules and principles, or it acts in an arbitrary or capricious manner); see also Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).

PRAYER FOR RELIEF

For the reasons set out above, Appellant respectfully prays that this Honorable Court grant this Petition for Discretionary Review, and upon considering the merits of Appellant’s claim reverse the order of the trial court and allow Appellant to complete his probation.

Respectfully submitted,

RODERIQUE S. HOBSON, JR. 816 Main Street Lubbock, Texas 79410 Tel: 806/762-6030 Fax: 806/763-3220

BY: /s/ Roderique S. Hobson, Jr. RODERIQUE S. HOBSON JR. SBN 09744900 Attorney for Richard Scott Crawford

CERTIFICATE OF SERVICE

Service of the foregoing Brief for Appellant was made on July 15, 2015 by sending a copy via electronic mail to Jeff Ford of the Lubbock Criminal District Attorney’s Office at jford@lubbockcda.com.

/s/ Roderique S. Hobson, Jr. RODERIQUE S. HOBSON, JR. Attorney for Appellant

CERTIFICATE OF COMPLIANCE

This is to certify that this document was prepared with Microsoft Word in 14 point font, and that, according to that program’s word count function, this document contains 2,899 words (counting all parts of the document).

/s/ Roderique S. Hobson, Jr. RODERIQUE S. HOBSON, JR., Attorney for Appellant

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Petition for Discretionary Review Filing Type EFile Filing Code Petition for Discretionary Review Filing Description Appellant's Petition for Discretionary Review Reference Number Comments jford@lubbockcda.com, rho9948907@aol.com, Courtesy Copies kres31@yahoo.com Status Rejected Fees Court Fee $0.00 Service Fee $0.00 Rejection Information Rejection Time Rejection Comment Reason

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07/17/2015 The petition for discretionary review does not contain the identity of Judge, Parties Other 01:33:47 and Counsel [Rule 68.4(a)]. You have ten days to tender a corrected petition for PM discretionary review. Documents Lead Document (Crawford, Scott) PDR .pdf [Original] Attachments appendix 1059309.pdf [Original] Attachments appendix2.pdf [Original]

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