Nixon, Cleveland

SEPTEMBER 9, 2015 NO. ____________

IN THE COURT OF CRIMINAL APPEALS FOR TEXAS

• • * * * * * * * * * * * CLEVELAND NIXON

V.

THE STATE OF TEXAS

• • * * * * * * * * * * * *

ON APPEAL FROM THE FIFTH COURT OF APPEALS AND FROM CRIMINAL DISTRICT COURT NO. 6 OF DALLAS COUNTY, TEXAS THE HON. JEANINE HOWARD, PRESIDING TRIAL COURT NO. F-1121243

• • * * * * * * * * * * * *

PETITION FOR DISCRETIONARY REVIEW

• • * * * * * * * * * * * *

DYER & LIBBY James H. Dyer Bar Card No. 06315700 Joseph D. Libby Bar Card No. 12318500 3501 Prairie St., Suite 100 Houston, Texas 77002 (713) 222-7757 phone (713) 222-7758 fax Email: josephlibbyattorney@yahoo.com

ATTORNEYS FOR PETITIONER

IDENTITY OF JUDGE, PARTIES AND COUNSEL

The following is a list of the Judge and all parties and counsel in this matter:

Judge: Jeanine Howard Judge of the Criminal District Court No. 6 of Dallas County, Texas 133 N Riverfront Blvd. Dallas, Texas 75007 Phone: 972-739-3910 Fax: 214-875-2342 Email: JLHoward@dallascounty.org

Petitioner: Cleveland Nixon Attorneys for Petitioner at the trial court level:

L. Charles Humphreys Bar Card No. 10277010 Humphreys & Peterson Law Firm, P.L.L.C. 5502 Broadway Garland, Texas 75043 (972) 303-4529 phone (972) 303-1673 fax

James E. Polk, II Bar Card No. 16089500 Attorney and Counselor at Law 2201 Main Street Suite 1018, Lock Box 107 Dallas, Texas 75201 (214) 742-9805 phone (214) 742-7212 fax

Kristen R. Brown Bar Card No. 24081458 Attorney at Law 1701 North market Street, Suite 402 Dallas, Texas 75202 (214) 446-3909 phone

(214) 481-4868 fax Attorneys for Petitioner at the appellate court level:

DYER & LIBBY James H. Dyer Bar Card No. 06315700 Joseph D. Libby Bar Card No. 12318500 3501 Prairie St., Suite 100 Houston, Texas 77002 (713) 222-7757 phone (713) 222-7758 fax Email: josephlibbyattorney@yahoo.com

Respondent: The State of Texas Attorneys for Respondent at the trial court level:

Craig Watkins, former District Attorney for Dallas County State Bar No. 00791886

Josh Healy, Assistant District Attorney, Dallas County State Bar No. 24026288

Attorneys for Respondent at the appellate court level:

Susan Hawk, District Attorney for Dallas County 133 N Riverfront Blvd. Dallas, Texas 75207 Phone: 214-653-3600 Fax: 214-653-5774 Email: shawk@dallascounty.org

TABLE OF CONTENTS

Identity of Judge, Parties and Counsel ....................................................................... 1 Table of Contents ....................................................................................................... 4 Index of Authorities ................................................................................................... 8 Statement of Oral Argument .................................................................................... 11 Statement of the Case ............................................................................................... 12 Statement of Procedural History .............................................................................. 13 Grounds for Review ................................................................................................. 14

I. Whether the Fifth Court of Appeals erred in holding that the trial court was not restricted to the evidence presented at the October 14, 2014 request for bond on appeal hearing under 44.04 (c) C.C.P.?

II. Whether the Fifth Court of Appeals erred in holding that “The trial court is not required to use magic words to establish that it has considered the evidence previously presented to it.”?

III. Whether the Fifth Court of Appeals erred in considering evidence not brought before it in the appellate record?

IV. Whether the trial court as affirmed by the Fifth Court of Appeals denied Petitioner due course of law under art. 1 § 19 of the Texas Constitution in its opinion which lessened the defendant’s right to know the evidence considered by the court against the defendant and consequently deprived the defendant of his right to a meaningful hearing ?

V. Whether the trial court as affirmed by the Fifth Court of Appeals denied Petitioner due process of law under the Fifth,

Eighth and Fourteen Amendments to the United States Constitution in its opinion which lessened the defendant’s right to know the evidence considered by the court against the defendant and consequently deprived the defendant of his right to a meaningful hearing?

VI. Whether the trial court abused its discretion by denying Petitioner a bond on appeal?

VII. Whether any of the following findings are supported by the record of the hearing on the 44.04(c) request for bond pending appeal?

1. The Court finds that the Defendant violated the no contact order in place and had prohibited contact with the complainant Keisha Pope while on probation.

2. At the hearings on the motion to revoke, which were conducted in September and October of 2014, the Court heard testimony that the Defendant and the complainant had a history of violent confrontations. For example, during their relationship, the Defendant assaulted both of the complainant’s sons. One son was slammed against the wall and the other son was punched in the head and face, while trying to help protect their mother from being assaulted by Defendant.

3. In March, 2014, the Complainant reported that the Defendant assaulted her by strangulation and she injured her arm. During this timeframe, the Complainant also reportedly fell out of a car the Defendant was driving.

4. In July of 2014, the Defendant had the Complainant arrested after coming to his house uninvited. The Defendant has asked the Complainant to stay away from him.

5. On 8/14/14, the Complainant went to the emergency room for a knee injury she suffered when the Defendant grabbed her by the arm and threw her down during an argument with the Defendant. The Defendant and the complainant were arguing over his affair with a co-worker.

6. On August 27, 2014, the Complainant called the Grand Prairie police department and reported that the Defendant choked her, beat her, and sat on her chest.

7. On October 27, 2014, another assault report was made by the Complainant.

VIII. Whether there is insufficient evidence to support the trial court’s finding “That the defendant is a continuing threat to the Complainant and that there is a high likelihood that the Defendant will commit another assaultive offense against the complainant if allowed an appeal bond.”?

Argument ..................................................................................................................17 Reasons for Granting This Petition .......................................................................... 35 Prayer for Relief ....................................................................................................... 35 Certificate of Service................................................................................................ 36 Certificate of Compliance ........................................................................................ 37 Appendix *7 A. Opinion of the Court of Appeals B. Trial court order denying bond on appeal C. Order of the Court of Appeals by Justice Ada Brown, May 7, 2015 D. Online website docket of Court of Appeals

E. Letter of Court Reporter requesting that all five volumes be filed in this appeal, May 6, 2015

F. Reporter’s Record Volume 5 G. The State’s Brief in the Court of Appeals H. The Supplemental Clerk’s Record I. Petitioner’s designation of reporter’s record J. Petitioner’s designation of clerk’s record

INDEX OF AUTHORITIES

Cases Ballard v. Texas, 438 F.2d 640 (5th Cir. 1971) ...............................................................................23

Barrientez v. State, 500 S.W.2d 474, 475 (Tex. Crim. App. 1973) ....................................................20

Black v. Romano, 471 U.S. 606, 611-12, 105 S.Ct. 2254, 85 L.Ed.2d 1756 ....................................25

Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971)............................24

Bradley v. State, 564 S.W.2d 727, 730-732 (Tex. Crim. App. 1978 en banc) .................. 21, 24, 33

Broussard v. State, 598 S.W.2d 873, 876 (Tex. Crim. App. 1980 en banc) ......................................21

Brown v. Wilmot, 572 F.2d 404 (2d Cir. 1978).................................................................................23

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) ........................................24

Dervishi v. State, (unpublished opinion 2-04-495-CR Fort Worth delivered May 26, 2005) .. 20, 29

Eldridge v. State, 731 S.W.2d 618 (Tex. App. – Houston [1st Dist.] 1987) .............................. 19, 25

Ex parte Spaulding, 612 S.W.2d 509, 511 (Tex. Crim. App. 1981) ....................................................29

Ex parte Turner, 612 S.W.2d 611, 612 (Tex. Crim. App. 1981) ....................................................20

Ex parte Utley, 2001 WL 301475, 05-00-01336-CR (Tex. App. – Dallas 2001 not designated for publication) ..........................................................................................................31

Ex Parte Williams, 630 S.W.2d 803, 804 (Tex.App. -- San Antonio 1982), PDR refused ................24

Finetti v. Harris, 609 F.2d 594 (2d Cir. 1979).................................................................................23

Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S.Ct. 1756, 1759-760, 36 L. Ed2d 656 (1973) .... 24, 25

Kaman v. State, 923 S.W.2d 129, 132 (Tex. App. – Houston [1st Dist.] 1996) .............................34

Matthews v. Eldridge 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976)..............................19

Moore v. State, 11 S.W.3d 495, 499 (Tex. App. – Houston [14th Dist.]2000, no pet.).................24

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ..........................................25

O’Hern v. State, Tex.Cr. App., 527 S.W.2d 568 ............................................................................22

Putnam v. State, 582 S.W.2d 146 (Tex. Crim. App. 1979) ..................................................... 30, 34

Rogers v. State, 640 S.W.2d 248, 252 (Tex. Crim. App 1982) .....................................................25

Ruedas v. State, 583 S.W.2d 520 (Tex. Crim. App. 1979) ............................................................25

Shockley v. State, 717 S.W.2d 922 (Crim. App. 1986 en banc) .......................................... 19, 20, 23

State v. Cobb, 851 S.W.2d 871 (Tex. Crim. App. 1993 en banc) ........................................ 25, 26

Staten v. State, 328 S.W.3d 901 (Tex. App. – Beaumont 2010) .................................................24

Stephenson v. State, Tex. Cr. App., 500 S.W.2d 855 ...........................................................................22

Taylor v. State, 2014 WL 5463810, 11-14-00208 (Tex. App. – Eastland 2014 unpublished memorandum opinion) .........................................................................................32

Statutes Tex. Code of Crim. Procedure § 44.04 (c).................................................. 27, 29, 30

Other Authorities Black’s Law Dictionary (Revised 4th Ed., 1968) .....................................................31

Rules Rules of Appellate Procedure Rule 66.3 ..................................................................35

Constitutional Provisions art. 1 § 19 of the Texas Constitution ........................................................... 14, 19, 25 Fifth, Eighth and Fourteenth Amendments to the United States Constitution ........19

STATEMENT REGARDING ORAL ARGUMENT The Petitioner believes that the issue of requiring the record to reflect the

evidence that the trial court is considering against the Petitioner at the hearing is one of importance to the jurisprudence of the State of Texas.

However the Petitioner believes that the issues reflected in this Brief are set out with sufficient clarity that the Petitioner’s position and legal arguments are clear.

The Petitioner remains without his liberty as a result of the Order denying bond on appeal in this case, and does not wish to prolong the appeal process.

However, in the event that the State seeks oral argument and that this court believes that oral argument may be of assistance in resolving this appeal, counsel for Petitioner is prepared to make an oral argument.

STATEMENT OF THE CASE

Nature of the case: This case involves an accelerated appeal from the denial of bail or bond on appeal following a contested proceeding to adjudicate guilt and an assessment of five years of incarceration. (Supp. CR p. 8 and RR Vol. 5 p. 4 ll. 9 -16) The trial court incorrectly refers to the proceeding as a revocation of probation as opposed to an adjudication proceeding. (RR Vol. 5 p. 4 ll. 9 - 16) There is a separate appeal pending in the Court of Appeals Fifth District of Texas at Dallas [No. 05-14-01627-CR] appealing from the adjudication proceeding. Course of Proceedings: A formal hearing for bail on appeal was held on October 14, 2014 and is contained in volume 5 of the Reporter’s Record. On May 7, 2015, Justice Ada Brown of the Fifth Court of Appeals sua sponte ordered the Clerk to file only Volume 5 of the Reporter’s Record in this appeal. (App. C) The State did not move for any additional reporter’s record to be made part of the record on appeal in this appeal. The Fifth Court of Appeals entered no further or additional order(s) regarding the record on appeal, other than the Order by Justice Brown. (APP C and D) Trial Court’s disposition of the case: On October 14, 2014, following a contested hearing on the oral Motion for Bail Pending Appeal, the trial court denied the motion for bond on appeal. (RR vol. 5 p. 16 ll. 8 - 9) On April 2, 2015, following a mandamus proceeding, [No. 05-15-00263-CV] the trial court entered a *13 written order denying bond on appeal and in the same order entered findings of fact. (App. B) This appeal is taken from the order denying bond on appeal. (App. B) Petitioner’s counsel filed a timely Notice of Appeal. (Supp. CR p. 16, App. H)

STATEMENT OF PROCEDURAL HISTORY

1. The date that the opinion of the Fifth Court of Appeals was handed down

is August 4, 2015.

2. No motion for rehearing was filed.

GROUNDS FOR REVIEW

I. Whether the Fifth Court of Appeals erred in holding that the trial court was not restricted to the evidence presented at the October 14, 2014 request for bond on appeal hearing under 44.04 (c) C.C.P.?

II. Whether the Fifth Court of Appeals erred in holding that “The trial court is not required to use magic words to establish that it has considered the evidence previously presented to it.”?

III. Whether the Fifth Court of Appeals erred in considering evidence not brought before it in the appellate record?

IV. Whether the trial court as affirmed by the Fifth Court of Appeals denied Petitioner due course of law under art. 1 § 19 of the Texas Constitution in its opinion which lessened the defendant’s right to know the evidence considered by the court against the defendant and consequently deprived the defendant of his right to a meaningful hearing ?

V. Whether the trial court as affirmed by the Fifth Court of Appeals denied Petitioner due process of law under the Fifth, Eighth and Fourteen Amendments to the United States Constitution in its opinion which lessened the defendant’s right to know the evidence considered by the court against the defendant and consequently deprived the defendant of his right to a meaningful hearing?

VI. Whether the trial court abused its discretion by denying Petitioner a bond on appeal?

VII. Whether any of the following findings are supported by the record of the hearing on the 44.04(c) request for bond pending appeal?

K. The Court finds that the Defendant violated the no contact order in place and had prohibited contact with the complainant Keisha Pope while on probation.

L. At the hearings on the motion to revoke, which were conducted in September and October of 2014, the Court heard testimony that the Defendant and the complainant had a history of violent confrontations. For example, during their relationship, the Defendant assaulted both of the complainant’s sons. One son was slammed against the wall and the other son was punched in the head and face, while trying to help protect their mother from being assaulted by Defendant.

M. In March, 2014, the Complainant reported that the Defendant assaulted her by strangulation and she injured her arm. During this timeframe, the Complainant also reportedly fell out of a car the Defendant was driving.

N. In July of 2014, the Defendant had the Complainant arrested after coming to his house uninvited. The Defendant has asked the Complainant to stay away from him.

O. On 8/14/14, the Complainant went to the emergency room for a knee injury she suffered when the Defendant grabbed her by the arm and threw her down during an argument with the Defendant. The Defendant and the complainant were arguing over his affair with a co-worker.

P. On August 27, 2014, the Complainant called the Grand Prairie police department and reported that the Defendant choked her, beat her, and sat on her chest.

Q. On October 27, 2014, another assault report was made by the Complainant.

VIII. Whether there is insufficient evidence to support the trial court’s finding “That the defendant is a continuing threat to the Complainant and that there is a high likelihood that the Defendant will commit another assaultive offense against the complainant if allowed an appeal bond.”?

ARGUMENT GROUNDS I – V

The following is taken from the opinion of the Dallas Court of Appeals in this case, but is not found in the appellate record in this case:

This appeal is from an order denying bond on appeal entered after a mandamus proceeding [05-15-00263-CV] to compel the trial court to make a written order for purposes of appeal from the bond denial hearing on October 14, 2014 (RR Vol 5, App. F).

At the beginning of the hearing for a bond on appeal pursuant to 44.04(c) of the Texas Code of Criminal Procedure the court made the following statement on the record:

“ THE COURT: With the E. Okay. Back on September 29, 2004, (sic) we had a contested revocation hearing, and at that time you had plead true – plead not true, and after hearing the additional testimony on that date, combined with testimony from September 25, the Court found you had violated your probation, granted the state’s motion, revoked your probation, found you guilty and charged of injury (sic) to a child and set your punishment at five years confinement in the penitentiary.

Your attorney later that day, or two days after that, I should have that on another docket sheet documented, I’m not asking you to get it right now, but you approached me about an appeal bond, and I denied that request based on the testimony I had heard, you know, during the revocation hearing and pursuant to Article 44.04(c) of the Code of Criminal Procedure.

Now, Mr. Humphreys, today you want to put a little more testimony on the record concerning the appeal bond?” (RR Vol. 5 page 4 ll. 9 – 24, see App. F)

At the conclusion of the hearing on the oral 44.04 (c) bond on appeal motion the trial court concluded with this statement:

“THE COURT: All right. I’m going to deny your motion on the bond. Again, it’s the same ruling as before. I’m going to deny bond pursuant to Article 44.04(c) of the Code of Criminal Procedure.” (RR Vol. 5 page 16 ll. 8 – 11, see App. F)

As of October 14, 2014 there had not been any testimony adduced of any nature and at any time in regard to the oral request for an appeal bond pursuant to 44.04 (c). (RR Vol. 5)

There was no written motion upon which the hearing on October 14, 2014 was held. (RR Vol. 5)

The statement of the trial court at the beginning of the hearing refers to non existent testimony. (RR Vol. 5 page 4) The statement by the trial court, who could have stated for the record that the court was taking judicial notice of the testimony from the prior hearings, but did not, does not indicate that the court is considering any evidence in the case other than the testimony which is being presented to the court on October 14, 2014. (RR Vol. 5 page 4)

The hearing on the oral motion for an appeal bond under 44.04 (c) was a finite hearing on the matter of a bond on appeal. (RR Vol. 5)

Each case or type of case is considered independently in the analysis of what is required for a meaningful hearing. In the criminal context, due course of law and due process of law are violated when there is a lack of notice to the Defendant *19 of what is being offered in evidence and considered by the court because as a fundamental due course and due process tenant, the defendant is deprived of fair notice of the evidence against him and an opportunity to respond to that evidence.

This is at least part of the reasoning behind requiring judicial notice of testimony and evidence offered in a separate hearing, because it gives the Defendant notice of what the court is being asked to consider, or if the judicial notice is recited by the court itself, it gives the defendant notice of what the court is intending to consider that is not apparent in the record. Additionally, the defendant is then afforded an opportunity to object to the taking of judicial notice.

A meaningful hearing and its elements and balancing tests were extensively discussed by the United States Supreme Court in the case of Matthews v. Eldridge 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976).

In the matter of a deferred adjudication case, the defendant is entitled to due course of law under art. 1 § 19 of the Texas Constitution and also entitled to due process of law under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution. See Eldridge v. State, 731 S.W.2d 618 (Tex. App. – Houston [1st Dist.] 1987) and Shockley v. State, 717 S.W.2d 922 (Crim. App. 1986 en banc).

In the matter of a bond on appeal, assuming the statutory qualifications are met, the defendant is entitled to due course of law under art. 1 § 19 of the Texas Constitution and is also entitled to due process of law under the Fifth, Eighth and *20 Fourteenth Amendments to the United States Constitution. See Shockley v. State, 717 S.W.2d 922 (Crim. App. 1986 en banc)

Petitioner’s counsel requested that Volume 5, which represented the entire hearing on the 44.04 (c) bond on appeal request. be filed in this case. (App. I) The Court reporter attempted to file the entire record in this case. (App. E) The Dallas Court of Appeals, sua sponte, entered its order signed by Justice Ada Brown, that only volume 5 be filed in this appeal. (App. C) The State never requested or attempted to supplement the reporter’s record, and almost the entirety of its brief is outside the record of this appeal. (App. G Brief of Appellee) It is unknown how the Dallas Court of Appeals arrived at an Opinion referencing facts that are neither in reporter’s record volume 5 nor in the clerk’s record before the appeals court.

In the case of Dervishi v. State, (unpublished opinion 2-04-495-CR Fort Worth delivered May 26, 2005) the court of appeals stated:

“At the hearing on Dervishi’s motion to set bond, the trial court took judicial notice of the court’s file and the proceedings of the trial on the underlying offense, and heard testimony from Dervishi.”

Also in footnote 3 the Second Court of Appeals stated in Dervishi:

“3. See Ex parte Turner, 612 S.W.2d 611, 612 (Tex. Crim. App. 1981) (holding taking of judicial notice at habeas corpus hearing of evidence adduced at prior revocation hearing before same judge proper); Barrientez v. State, 500 S.W.2d 474, 475 (Tex. Crim. App. 1973) (holding trial judge presiding over

revocation hearing could take judicial notice of evidence adduced at criminal trial over which he presided).”

In the case of Broussard v. State, 598 S.W.2d 873, 876 (Tex. Crim. App. 1980 en banc) Presiding Judge Onion in a dissent stated:

“… It is not proper for this court to look to another appellate record to supply any deficiency in the proof of another case under consideration on appeal.” Citations omitted.

In the case of Bradley v. State, 564 S.W.2d 727, 730-732 (Tex. Crim. App. 1978 en banc) written by Judge Odom, the Court of Criminal Appeals, in a case of an appeal from an order revoking probation, stated:

“We draw a distinction between the obligation to secure inclusion in the record on appeal of material that was part of the record in the proceedings in the trial court and the obligation urged by the State, that the appealing party go beyond the record to secure and place in the record matter that is part of the State’s case. It is proper that the appealing party be required to present as complete a record of the trial proceedings as is necessary to consider and dispose of the issues urged on appeal. Here, the complete record of the probation revocation proceeding has been made a part of the record on appeal. It is not proper to require the appellant to go beyond that trial record to make the State’s case against himself. In short, we draw a distinction between the burden on the appellant to bring from the trial record the matter he relies on for appeal issues and the burden on the State to bring to the trial record the evidence it relies on to meet its burden of proof. Appellant has presented a complete record; the State did not meet its burden to present the material relied on to meet its burden of proof in a manner capable of reflection in the trial record, so that a meaningful review could be had on the appellate record in this Court.

Although this record reflects all that occurred at the hearing on the motion to revoke probation, it does not reflect the content of the matters judicially noticed by the trial court upon the State’s motion and necessary to meet the State’s burden of proof. While the theory allowing judicial notice of a fact is that the fact ‘is so easily determinable with certainty from sources considered reliable, it would not be good sense to require formal proof.’ 1 McCormick and Ray, Texas Law of Evidence, 2nd ed., Sec. 151, this does not dispense with the requirement, for purposes of review, that the facts so noticed be apparent from the record. Under the Barrientez rule for revocation of probation hearings, the facts judicially noticed here were matters of testimony heard in the prior criminal trial, i.e., that certain witnesses gave certain testimony. Those facts, i.e., what the testimony was, are not shown in this record and are not known to this Court, and yet, to dispose of the issue of the sufficiency of the evidence raised in this case, such facts judicially noticed must be made known to this Court. The statement in the record that judicial notice was being taken of unstated facts is not a sufficient presentation of the matter relied on by the State to meet its burden of proof such as to be meaningful to this Court and to allow disposition of the issue raised in this appeal. How are we to dispose of this matter?

....

The defect to be avoided or cured is the failure of the record to reflect the fact or facts judicially noticed by the trial court. The defect may be avoided in the first instance by precisely reciting such facts for the record or placing them in the record. For judicial notice of such facts as here considered, this may be done by placing the transcribed court reporter’s notes, appropriately identified, into the record, as was done in O’Hern v. State, Tex.Cr. App., 527 S.W.2d 568, or, if the matter is not excessively long, by reading the testimony judicially noticed into the record, as was done in Stephenson v. State, Tex. Cr. App., 500 S.W.2d 855.”

In a third en banc opinion from the Texas Court of Appeals, Shockley v. State, 717 S.W.2d 922 (Tex. Crim App. 1986 en banc) Justice Miller in his concurring Opinion caused to be published the “thinking” of the Court of Criminal Appeals as to the constitutional protections afforded a defendant in a hearing on bail pending appeal. The Shockley opinion has been quoted by various Courts of Appeal in Texas as to the following aspects of Constitutional protections provided in a 44.04 hearing. The Court of Criminal Appeals in Shockley, having determined that a 44.04 bail request provided due process protection to the eligible convicted defendant, the Court of Criminal Appeals, proceeded to address the issue of:

“II. How Much Due Process is Required Before the Trial Court May Deny Bail Pending Appeal?

....

In examining the meaning of due process, once a state has made provision for bail pending appeal, the federal courts have stated: ‘the Eighth and Fourteen Amendments require that it not be denied arbitrarily or unreasonably.’ Finetti, supra at 599; Brown v. Wilmot, 572 F.2d 404 (2d Cir. 1978); Ballard, supra. However this does not clarify what due process would have to be supplied before a decision to deny bail would not be arbitrary or unreasonable. To determine the quantum of due process required, we must look to the basic ingredients of due process itself.

....

We now balance those competing interests. First, a defendant’s private interest in retaining liberty while his appeal is pending cannot be dismissed as insignificant. The

opportunity to remain at liberty pending appeal is a ‘substantial right.’ Williams, supra at 804. The importance of liberty to a defendant who is seeking review of a conviction is no less important than the liberty he enjoys before trial. Therefore, we accord great weight to defendant’s private interest in retaining liberty while his appeal is pending.

....

The nature of the hearing prior to denial of bond pending appeal does not require a full adversarial proceeding extant in a criminal trial. As the Supreme Court has indicated, ‘[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.’ Cleveland, supra 105 S.Ct. at 1495, quoting Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971). What is required is that the trial court provide the defendant with reasonable notice that it intends to deny bail pending appeal and allow the defendant a meaningful opportunity to be heard.”

In the case of Staten v. State, 328 S.W.3d 901 (Tex. App. – Beaumont 2010) the Beaumont Court of Appeals stated:

“While a defendant at a revocation proceeding need not be afforded the full range of constitutional and statutory protections that are available in the trial of a criminal case, a person on community supervision is entitled to certain due process protections. Gagnon v. Scarpelli, 411 U.S. 778, 781- 82, 93 S.Ct. 1756, 1759-760, 36 L. Ed2d 656 (1973); Bradley v. State, 564 S.W.2d 727, 729-30 (Tex. Crim. App. 1978); Moore v. State, 11 S.W.3d 495, 499 (Tex. App. – Houston [14th Dist.] 2000, no pet.) In Scarpelli, the United States Supreme Court recognized that due process protections extend to state revocation proceedings because the revocation deprives an individual of a conditional liberty, 411 U.S. at 781-82; 93 S.Ct. 1756. Due process in connection with community supervision

revocation proceedings, entitles a defendant to (1) the written notice of the claimed violations of the terms of the community supervision order; (2) the disclosure of the evidence against him; (3) the opportunity to be heard in person and to present witnesses and documentary evidence; (4) a neutral and detached hearing body; (5) the opportunity to cross-examine adverse witnesses, ‘unless the hearing body specifically finds good cause for not allowing confrontation [;]’ and (6) a written statement by the fact-finder as to the evidence relied on and reasons for revoking community supervision. See Black v. Romano, 471 U.S. 606, 611-12, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985); Scarpelli, 411 U.S. at 786, 93 S.Ct. 1756. The defendant who has been placed on community supervision is also protected by the due course of law provisions of the Texas Constitution. Tex. Const. art. I, § 19; Rogers v. State, 640 S.W.2d 248, 252 (Tex. Crim. App 1982).”

In the case of Eldridge v. State, 731 S.W.2d 618 (Tex. App. – Houston [1st Dist.] 1987) the Houston First Court of Appeals looked to Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) for what due process requires in probation revocation cases and noted:

“… They include: written notice of the claimed violations of probation, disclosure to the probationer of the evidence against him, the opportunity to be heard in person, and by counsel, and to present witnesses, the right to confront and cross-examine adverse witnesses, a ‘neutral and detached’ hearing body and a written statement by the factfinder as to the evidence relied on and the reasons for revoking probation. See also Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Ruedas v. State, 586 S.W.2d 520 (Tex. Crim. App. 1979)” emphasis ours

In 1993, in the case of State v. Cobb, 851 S.W.2d 871 (Tex. Crim. App. 1993 en banc), this Court was presented with a probation revocation hearing in *26 which the defense appealed on sufficiency of the evidence grounds contending that the fact that the judgement of conviction and order of probation were not introduced into evidence, nor were they judicially noticed by the trial court created an insufficiency of the evidence. The Court of Appeals had held the failure of the trial court to judicially notice these documents in accordance with Rule 201 of the Texas Rules of Criminal Evidence to be fatal.

This court reversed the court of appeals in Cobb because the judgment and order were contained in the appellate record on appeal, even if not filed or proved up in the trial court record, and this court held that it had never required these documents [judgment of conviction and order of probation] to be formally proved in a probation revocation hearing. See Cobb, supra, at page 873

The case presently before this court presents a missing evidence attack on the sufficiency of the evidence to have denied bond on appeal.

The mischief that can or will be wrought by the underlying court of appeals opinion in this case is significant. In nearly every case, it can be anticipated that the trial judge’s position is that the trial judge recalls the evidence previously introduced before it in earlier hearings, and there is a tendency and desire by the trial judge to not have to have any prior testimony from different hearings repeated, however, without evidence in the record of what prior testimony from what hearing is actually being considered by the court, the Petitioner is deprived of *27 the notice of what evidence the court intends to consider against him that is not contained in the record of testimony and evidence adduced at the hearing. At a minimum, this Court of Criminal Appeals should preserve the process, requiring judicial notice of prior evidence and testimony admitted before the defendant, to be identified 1) so it can be objected to by the Defendant or the State; and 2) so it can be located and transcribed for purposes of appeal.

ARGUMENT GROUNDS VI – VIII

The relatively short § 44.04 (c) Tex. Code of Crim. Procedure hearing (RR vol. 5) set forth the following facts:

Petitioner’s counsel called petitioner’s wife, Keisha Nixon to the stand. (RR vol. 5 p. 5 ll. 14 – 15 and p. 11 ll. 15 - 22)

The gist of Keisha Nixon’s testimony both direct and cross was to this effect:

Mrs. Nixon denied that she had been assaulted by Petitioner, except for one occasion which resulted in a misdemeanor deferred adjudication in 2011, which was successfully completed by Petitioner. (RR vol. 5 p. 7 ll. 24-25 p. 8. ll. 1 – 12 and p. 12 ll. 20 - 23)

Mrs. Nixon agreed that Petitioner had assaulted her children one time for which he was placed on the felony deferred adjudication involved in the *28 adjudication proceeding and the imposition of the 5 year incarceration sentence. (RR vol. 5 p. 8 ll. 25 p. 9 ll. 1 - 2 and p. 12 ll. 24 – 25 and p. 13 ll.1 - 4)

Mrs. Nixon testified that she was impaired with alcohol and medications and her reports to the police were not accurate, and she had made up some allegations. (RR vol. 5 p. 10 ll. 2 – 25 and p. 11 ll. 1 - 5)

Mrs. Nixon testified that she and Petitioner had been together in a marriage relationship and had gone to Las Vegas together. (RR vol. p. 11 ll. 15 - 25)

Mrs. Nixon further testified that the reason there were no pictures of injuries or witnesses other than herself was because she had made up the allegations. (RR vol. 5 p. 12 ll. 12 - 19)

Mrs. Nixon asked the trial court to set a bond on appeal. (RR vol. 5 p. 6 ll. 16 - 18)

There were no exhibits offered or admitted. There was no request made by either party’s counsel for the court to take judicial notice of any fact, or any document, or any prior testimony or evidence offered in any court proceeding. The trial court did not sua sponte take any judicial notice during the hearing on the oral request to grant bond on appeal. (RR vol. 5)

No other witnesses were called, no documents were offered or admitted. The court was not requested to take judicial notice of any document, evidence or prior testimony. (RR vol. 5)

Following a hearing on an oral Motion for Bail Pending Appeal, the trial court denied Petitioner a bond on appeal. (Supp. CR p. 8)

The trial court made findings of fact, which findings are not supported by the record, in support of the conclusion that Petitioner “is a continuing threat to the Complainant”, [identified as Keisha Pope in the order denying bond] and “there is a high likelihood that the Defendant will commit another assaultive offense against the Complainant if allowed an appeal bond.”

The only evidence in the record is the testimony of Keisha Nixon, the wife of Petitioner.

The standard for review for denial of a bond on appeal is abuse of discretion. Ex parte Spaulding, 612 S.W.2d 509, 511 (Tex. Crim. App. 1981), Dervishi v. State, 2-04-495-CR (Tex. App. – Fort Worth 2005).

§ 44.04(c) of the Tex. Code of Crim. Procedure contains the statutory provisions allowing for bail on appeal. § 44.04(c) provides:

“(c) Pending the appeal from any felony conviction other than a conviction described in Subsection (b) of this section, the trial court may deny bail and commit the defendant to custody if there then exists good cause to believe that the defendant would not appear when his conviction became final or is likely to commit another offense

while on bail, permit the defendant to remain at large on the existing bail, or, if not then on bail, admit him to reasonable bail until his conviction becomes final. The court may impose reasonable conditions on bail pending the finality of his conviction. On a finding by the court on a preponderance of the evidence of a violation of a condition, the court may revoke the bail.”

There was no evidence or argument offered to the court, nor any reference by the court in either the hearing or in the trial court’s findings that the Petitioner would not appear when his conviction became final.

The issue in this case is confined to that portion of 44.04(c) that permits the trial court to deny bail on appeal if there is “good cause to believe” that the defendant “is likely to commit another offense while on bail.”

Cases interpreting this portion of § 44.04(c) are:

The Court of Criminal Appeals addressed 44.04(c) in the case of Putnam v. State, 582 S.W.2d 146 (Tex. Crim. App. 1979) at a time when the statute provided for up to 15 years rather than the present day 10 year provision. The language of the statute relating to “good cause to believe” that the defendant . . . “is likely to commit another offense while on bail” has not changed since the Putnam case. In Putnam, the defendant had been released on bail following his conviction, and following this release the State filed a motion to hold Putnam without bail pending his appeal under 44.04(c). Putnam attacked the statutory language of “good cause to believe” for failure to give notice to the defendant of what he may need to *31 establish to remain on bail pending appeal. The Court of Criminal Appeals in Putnam cited Black’s law dictionary as follows:

“Black’s Law Dictionary (Revised 4th Ed., 1968) defines ‘good cause’ as ‘Substantial reason, one that affords a legal excuse. Legally sufficient ground or reason.’ We find that the term ‘good cause’ as used by the Legislature does find ‘adequate interpretation in common usage and understanding.’ Sproles v. Binford, supra. The failure to specifically elaborate what ‘good cause to believe’ entails does not render this statute void for vagueness and indefiniteness.

Appellant’s attack on the term ‘good cause to believe’ is too narrowly confined. Article 44.04(c), supra, limits this discretionary belief in that it must be grounded in evidence that the defendant ‘is likely to commit another offense while on trial.’”

In the Putnam case, the State proved that “Appellant Did commit another offense while on bail far exceeds the statutory requirement that the court find only that he Is likely to commit another offense while on bail, . . .” at 151.

Many of the cases that have affirmed trial court denials of bail pending appeal involve the taking of judicial notice of other hearings involving the defendant seeking bail on appeal, particularly in the context of probation revocation proceedings. Examples of these cases are: Ex parte Utley, 2001 WL 301475, 05-00-01336-CR (Tex. App. – Dallas 2001 not designated for publication). (court took judicial notice on its own motion of the contents in appellant’s court and probation files) Ex parte Turner, 612 S.W.2d 611 (Tex. Crim. App. 1981 en banc) Opinion by Judge Odom affirming that the taking of *32 judicial notice “of the evidence adduced at the revocation of probation hearing.” was a proper approach by the court.

In Taylor v. State, 2014 WL 5463810, 11-14-00208 (Tex. App. – Eastland 2014 unpublished memorandum opinion) In Taylor the Court of Appeals found that the record showed “that Appellant has an extensive criminal history, including a failure to appear; that Appellant would probably continue to use illegal drugs while on bond; and that Appellant committed the offense of assault family violence while he was out on bond.” The trial court findings and the record on appeal:

Because there were no documents introduced and no judicial notice taken of any facts, documents, evidence or testimony that may or may not have occurred earlier, this Court is left with an obscure record of testimony by one reluctant and unhappy witness. There is no evidence of what probation conditions existed, when they were put in place, whether conditions such as a “no contact” provision was violated and if so when. It is apparent that there must be evidence of the likelihood of committing an “offense” and a judge’s no contact order is not an “offense” under Texas criminal law. There is no support in the record before the court for linking a no contact order to a protective order. In fact, it is hard to follow what occurred, what is alleged to have occurred and what did not occur. The details of the allegations and questions are missing and not filled in with any supplemental *33 evidence in order to try to make sense of the situations alluded to in the testimony given by the Petitioner’s wife.

Finding of Fact number 7 is particularly troubling for the following reasons: The hearing on the denial of bond on appeal was held and concluded on October 14, 2014, so how can an alleged assault report by “Complainant” have been made on October 27, 2014 and form any part of the support for the denial of bail on appeal on October 14, 2014? Further, the trial court begins the hearing referencing the probation revocation (sic) of September 29, 2014 having occurred and the oral request for an appeal bond by Counsel for Petitioner occurring within a few days of the revocation and then the hearing on October 14, 2014 denying Petitioner a bond, and his continued no bond status, making this appeal a live controversy for appellate purposes. So how is it possible that a man who the record (RR vol. 5) shows to have been continuously incarcerated since at least September 29, 2014 could have committed an assault offense against the complainant in the time frame of October 27, 2014?

Because the court’s findings are not supported by the record, there is no requirement that they be addressed further and no burden on the Petitioner to bring forth evidence not in the record to attempt to dispute the accuracy or show the inaccuracy of the findings. Bradley v. State, 564 S.W.2d 727, 730 - 731 (Tex. Crim. App. 1978 en banc)

“This court cannot consider an item that is not a part of the record on appeal.” Kaman v. State, 923 S.W.2d 129, 132 (Tex. App. – Houston [1st Dist.] 1996)

In this appeal Counsel for Petitioner made a specific request to the Clerk for the Clerk’s Record and instead of complying with the request of Petitioner’s counsel, the Clerk efiled or attempted to efile the reporter’s record related to the entire case and underlying appeal of the revocation proceeding in appeal No. 05-14-01627-CR. The only proper Clerk’s Record before this Court is the Supplemental Clerk’s Record that this Court instructed the District Clerk to file. (see Appendix C)

The trial court’s order denying bond on appeal (Supp. CR p. 8) to Petitioner does not correctly set out the law which requires “good cause to believe” that the defendant “is likely to commit another offense while on bail”.

Applying the Putnam, supra, explanation of proof of “good cause to believe” which must be “grounded in evidence that the defendant is likely to commit another offense while on bail” which sets out the legal parameters for whether the trial court abused its discretion in this appeal, the trial court has abused its discretion by going outside the record and not taking its findings and conclusions and ruling from the facts and evidence produced at the hearing, which in this case fail to meet the level and nature of proof required to deny bond.

REASONS FOR GRANTING THIS PETITION

Rule 66.3 Rules of Appellate Procedure provide the following as reasons to grant a petition for discretionary review. Petitioner states that he believes that the following two basis are particularly important under the facts and decision of the Court of Appeals in this case: (b) whether a court of appeals has decided an important question of state or federal law that has not been, but should be, settled by the Court of Criminal appeals; (f) whether a court of appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of the Court of Criminal Appeals’ power of supervision.

PRAYER FOR RELIEF

Petitioner prays that the Court of Criminal Appeals reverse the trial court’s order denying bond on appeal, reverse the Fifth Court of Appeals, and in light of the problems at trial court level that the court of appeals set a reasonable bond or alternatively, remand the cause to the trial court with instructions to set a reasonable bond on appeal for Petitioner.

Respectfully submitted,

DYER & LIBBY

/s/ James H. Dyer ______________________________ James H. Dyer Bar Card No. 06315700

/s/ Joseph D. Libby ______________________________ Joseph D. Libby Bar Card No. 12318500

3501 Prairie St., Suite 100 Houston, Texas 77002 (713) 222-7757 phone (713) 222-7758 fax Email: josephlibbyattorney@yahoo.com

CERTIFICATE OF SERVICE

We hereby certify that a copy of the above and foregoing Petition for Discretionary Review has been served on September 3, 2015 via fax to:

Susan Hawk District Attorney Dallas County, Texas

/s/ James H. Dyer ___________________________________ James H. Dyer

/s/ Joseph D. Libby ___________________________________ Joseph D. Libby

CERTIFICATE OF COMPLIANCE

We hereby certify that this computer-generated document contains 5142 words (not including the caption, identity of Judge, Parties and Counsel, Table of Contents, Statement of Oral Argument, Statement of the Issues Presented, the Index of Authorities, Statement of the Case and Procedural History, signature, certification, and certification of compliance and the appendix) and that we rely upon the word count generator of Word 13 in making this representation to the court.

/s/ James H. Dyer

______________________________ James H. Dyer

/s/ Joseph D. Libby ______________________________ Joseph D. Libby

APPENDIX A. Opinion of the Fifth Court of Appeals

B. Trial court order denying bond on appeal

C. Order of Justice Ada Brown, Fifth Court of Appeals

D. Docket sheet from website of Fifth Court of Appeals

E. Letter of Court Reporter requesting that all five volumes be filed in this appeal, May 6, 2015

F. Reporter’s Record Volume 5 G. The State’s Brief in the Court of Appeals H. The Supplemental Clerk’s Record I. Petitioner’s designation of reporter’s record J. Petitioner’s designation of clerk’s record