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Kevin Johnson v. State
ACCEPTED 04-15-00608-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 12/29/2015 5:46:51 PM KEITH HOTTLE CLERK
NO. 04-‐15-‐00608-‐CR
IN THE COURT OF APPEALS FILED IN 4th COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 12/29/15 5:46:51 PM KEITH E. HOTTLE Clerk
KEVIN DSHON JOHNSON,
Appellant
V.
THE STATE OF TEXAS,
Appellee
ON APPEAL FROM THE 187th DISTRICT COURT OF BEXAR COUNTY TEXAS CAUSE NUMBER 2011-‐CR-‐0685
BRIEF FOR THE APPELLANT
EDWARD F. SHAUGHNESSY 206 E. Locust Street San Antonio, Texas 78212 (210) 212-‐6700 (210) 212-‐2178 (FAX) Shaughnessy727@gmail.com SBN 18134500
ORAL ARGUMENT WAIVED ATTORNEY FOR APPELLANT
TABLE OF CONTENTS
Table of Contents ............................................................................................. i Table of Interested Parties .............................................................................. ii Table of Authorities ........................................................................................iii Brief for the Appellant..................................................................................... 1 Summary of the Argument.............................................................................. 3 Appellant’s Sole Point of Error ................................................................................................. 4 Argument and Authorities .............................................................................. 4 Conclusion and Prayer .................................................................................... 8 Certificate of Service ....................................................................................... 9
Certificate of Compliance…………………………………………………………………………... ............. 10
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PARTIES AND COUNSEL
TRIAL COUNSEL FOR THE STATE:
MICHAEL DE LEON Assistant Criminal District Attorney Bexar County, Texas San Antonio, Texas 78205
TRIAL COUNSEL FOR APPELLANT:
DEBORAH BURKE 325 South Main San Antonio, Texas 78205
APPELLANT’S ATTORNEY ON APPEAL:
EDWARD F. SHAUGHNESSY, III 206 E. Locust Street San Antonio, Texas (210)212-‐6700 (210) 212-‐2178 Fax SBN 18134500
TRIAL JUDGE:
PAT PRIEST 187th Judicial District Bexar County, Texas
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TABLE OF AUTHORITIES
Case(s) Page(s) Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967) ............. 6 Davila v. State, 767 S.W.2d 205 (Tex. App.-Corpus Christi, 1989) .................. 7 Diaz v. State, 172 S.W.3d 668 (Tex. App.-San Antonio, 2005) ......................... 6 Ex Parte Shivers, 501 S.W.2d 898 (Tex. Crim. App. 1973) ............................... 6 LeBlanc v. State, 768 S.W.2d 881 (Tex. App.-Beaumont, 1989) ....................... 6 Morris v. State, 837 S.W.2d 789 (Tex. App.-Houston [14th Dst.], 1993) .......... 6
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NO. 04-‐15-‐00608-‐CR
KEVIN DSHON JOHNSON, § COURT OF APPEALS, FOURTH Appellant §
V. § COURT OF APPEALS DISTRICT
THE STATE OF TEXAS, § Appellee § SAN ANTONIO, TEXAS
BRIEF FOR THE APPELLANT
TO THE HONORABLE COURT OF APPEALS:
Now comes the appellant, Kevin Dshon Johnson, and files this
brief in Cause No. 04-15-00608-CR. The appellant appeals from an
order revoking his probation and sentencing him to five years of
confinement in cause number 2011-CR-0685 entered on August 19,
2015. The appellant was indicted by a Bexar County Grand Jury on
August 6, 2013 for the offense of Possession of a Controlled Substance
in cause number 2011-CR-0685. The appellant was subsequently
placed on community supervision for a period of five years. The
appellant’s community supervision was subsequently revoked and he *2 was sentenced to the Texas Department of Criminal Justice-Institutional Division for a period of five years. A two-thousand ($2,000.00) dollar fine was also assessed. The appellant filed a timely Notice of Appeal and this appeal has followed.
SUMMARY OF ARGUMENT
The trial Court erred in revoking the appellant’s community supervision and sentencing him to five years of incarceration because the record does not demonstrate a knowing plea of true to the allegations found to be true by the trial Court at the hearing on the motion to revoke community supervision.
APPELLANT’S SOLE POINT OF ERROR
The trial Court erred in granting the State’s motion to revoke the appellant’s community supervision in the absence of a knowing and voluntary plea of true by the appellant to the allegations set forth in the State’s First Amended Motion to Revoke Community Supervision (Adult Probation).
STATEMENT OF APPLICABLE FACTS
On October 10, 2014 the State of Texas caused to be filed a First Amended Motion to revoke Community Supervision (Adult Probation) in cause number 2011-CR-0655. On August 15, 2015 the motion came to be heard in the 187th District Court of Bexar County. Counsel for the appellant informed the trial Court that the parties had not been able to reach an agreement as to the disposition of the matter. During the course of the hearing on the State’s motion, an abbreviated evidentiary hearing was conducted in the convicting court. During the course of that hearing, the trial Court informed the appellant that the State of Texas had filed with the Court an amended motion to revoke his probation along with a supplement to that motion. (R.R.4-3) The record reflects that the appellant’s attorney *5 had informed him that if he entered a plea of true he would receive a three-year sentence, which appellant’s counsel confirmed.1
Additionally trial counsel informed the trial Court that the appellant was going to plead true to “everything” and that she had told the appellant of the contents of the various motions. (R.R.4-3) The trial Court then informed the appellant that there were “ a lot of allegations of failure to report and so forth; allegations of use of marijuana… failure to pay all the fees you were supposed to pay.” (R.R.4-5) The appellant was then asked by the trial Court if except failure to pay was true: the appellant then answered the trial Court in the affirmative. (R.R.4-5) The State of Texas presented no evidence in support of the motion or motions. Nor did the State ask leave of the Court to proceed on the amended motion to revoke of the supplement thereto. After the sides had rested, the appellant inquired of the Court regarding the fact that his Court of Bexar County.
1 This representation is in accord with the prosecutor’s recommendation that the appellant be revoked and sentenced to a term of three years incarceration. The trial Court at that point informed the parties that the minimum punishment available was in fact five years of incarceration. (R.R.4-6)
ARGUMENT AND AUTHORITIES
The defendant at a hearing on a State’s motion to revoke his probation enjoys a constitutional right to due process of law that includes the right to assistance of effective counsel. Ex Parte Shivers, 501 S.W.2d 898 (Tex. Crim. App. 1973). See: Diaz v. State, 172 S.W.3d 668 (Tex. App.-San Antonio, 2005). The Sixth Amendment’s right to effective assistance of counsel is implicated in the course of a motion to revoke hearing. Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967).
The instant case reveals a scenario wherein the appellant was denied his right to due process of law as implicated by his Sixth Amendment right to effective assistance of counsel. This violation is not speculative; on the contrary the record demonstrates that the appellant’s plea of true was premised upon his misguided belief that his plea of true would result in the imposition of a three-year sentence. The appellant’s misperception was confirmed both by the comments of his counsel and those of the prosecutor. Consequently the plea of true entered by the appellant was involuntary and cannot be considered valid. See: Morris v. State, 837 S.W.2d 789 (Tex. App.-*7 Houston [14th Dst.], 1993); LeBlanc v. State, 768 S.W.2d 881 (Tex. App.-Beaumont, 1989); Davila v. State, 767 S.W.2d 205 (Tex. App.-Corpus Christi, 1989).
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant, Kevin Johnson, prays that this Court, reverse the judgment of the trial Court and remand the cause. //Edward F. Shaughnessy,III
EDWARD F. SHAUGHNESSY, III 206 E. Locust San Antonio, Texas 78212 (210) 212-6700 (210) 212-2178 (fax) SBN 18134500 Shaughnessy727@gmail.com Attorney for the appellant
CERTIFICATE OF SERVICE
I, Edward F. Shaughnessy, III, attorney for the appellant hereby certify that a true and correct copy of the instant pleading was served upon Nico LaHood Criminal District Attorney for Bexar County, attorney for the appellee, at 101 W. Nueva , San Antonio, Texas 78205 by use of the U.S. Mail on this the ___ of December, 2015.
//Edward F. Shaughnessy,III ____________________
Edward F. Shaughnessy, III Attorney for the Appellant
CERTIFICATE OF COMPLIANCE
I, Edward F. Shaughnessy, III, attorney for the appellant, hereby certify that the instant document contains 1251 words.
//Edward F. Shaughnessy,III _____________________ Edward F. Shaughnessy, III