NO. 07-15-00249-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AMARILLO, TEXAS 

RUDY CORTINAS 

V. 

THE STATE OF TEXAS 

APPEALING THE TRIAL COURT'S JUDGMENT 

IN CAUSE NUMBER 1345818D 

FROM THE 432ND DISTRICT COURT OF 

TARRANT COUNTY, TEXAS 

HON. RUBEN GONZALEZ, PRESIDING JUDGE 

HON. ELIZABETH BERRY 

APPELLANT'S BRIEF 

RICHARD A. HENDERSON 

RICHARD A. HENDERSON, P.C. 

100 THROCKMORTON STREET, SUITE 540 

FORT WORTH, TEXAS 76102 

(817) 332-9602 

(817) 335-3940fax 

State Bar No. 09427100 

richard@rahenderson.com 

ATTORNEY FOR APPELLANT 

Oral Argument Requested 

ACCEPTED

07-15-00249-CR

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

12/9/2015 2:33:32 PM

Vivian Long, Clerk

 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 12/9/2015 2:33:32 PM VIVIAN LONG CLERK
TABLE OF CONTENTS 

Table of Contents . i 

List of Interested Parties........................................................................................ii,iii 

Indexof Authorities..................................................................................................iv 

IssuesPresented.........................................................................................................v 

Issue For Review No. 1: 

THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING 

APPELLANT'S DEFERRED ADJUDICATION AND SENTENCING 

APPELLANT TO SEVEN (7) YEARS IN PRISON . .............................................. v 

Statementof the Case................................................................................................1 

Summary of the Facts of the Case............................................................................2 

Summary of Argument..............................................................................................4 

Arguments and Authorities .......................................................................................4 

Issue For Review No. 1: (Restated) 

THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING 

APPELLANT'S DEFERRED ADJUDICATION AND SENTENCING 

APPELLANT TO SEVEN (7) YEARS IN PRISON ...............................................4 

Prayer.........................................................................................................................6 

Certificate of Compliance .........................................................................................7 

Certificateof Service.................................................................................................7 

1 
LIST OF INTERESTED PARTIES 

Rudy Cortinas 

CID #0259844 

Tarrant County Jail 

100 N. Lamar Street 

Fort Worth, Texas 76102 

Appellant 

Carl J. Lazarus 

Assistant Criminal District Attorney - Trial Attorney 

Jim Hudson 

Assistant Criminal District Attorney —Revocation Hearing 

District Attorney's Office 

401 West Belknap 

Fort Worth, Texas 76196-0201 

Mr. Joe Shannon, Jr. 

Former Tarrant County Criminal District Attorney 

401 West Belknap 

Fort Worth, Texas 76196-0201 

Ms. Debra Windsor, 

Assistant Criminal District Attorney 

Post-Conviction 

401 West Belknap 

Fort Worth, Texas 76196-0201 

Ms. Sharen Wilson, 

Criminal District Attorney 

Tarrant County, Texas 

401 West Belknap 

Fort Worth, Texas 76196-0201 

Attorneys for the State 

11 
William M. Harber 

1424 Junior Drive 

Dallas, Texas 75208 

David Pearson 

222 West Exchange, Suite 103 

Fort Worth, Texas 76164 

Trial Attorneys for Defendant 

Jack Strickland 

909 Throckmorton Street 

Fort Worth, Texas 76102 

Defense Attorney at Revocation Hearing 

Richard A. Henderson 

Richard A.Henderson, P.C. 

100 Throckmorton Street, Suite 540 

Fort Worth, Texas 76102 

Attorney for Appellant 

111 
LIST OF INTERESTED PARTIES 

INDEX OF AUTHORITIES 

CASES: 

Bennett v. State, 476 S.W.2d 281, 282 (Tex.Crim.App. 1972) .................................4 

Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App. 1984) ............................ 4 

Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1981)............. 5 

Jenkins v. State, 740 S.W.2d 435,437 (Tex.Crim.App.1983) ................................. 5 

Langford v. State, 578 S.W.2d 737, 739 (Tex.Crim.App. 1979)............................... 5 

Ross v. State, 523 S.W.2d 402, 403 (Tex.Crim.App.1975)...................................... 5 

Saxton v. State, 804 S.W.2d 910, 912 n. 3 (Tex.Crim.App.1991)............................ 5 

Taylor v. State, 604 S.W.2d 175, 179 (Tex.Crim.App. [Panel Op.] 1980) .............. 5 

Wilson v. State, 645 S.W.2d 932, 934 (Tex.App.—Dallas 1983, no pet.) ...............4 

lv 
ISSUES PRESENTED 

ISSUE FOR REVIEW NO. ONE 

THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING 

APPELLANT'S DEFERRED ADJUDICATION AND SENTENCING 

APPELLANT TO SEVEN (7) YEARS IN PRISON. 

im 
IN THE COURT OF APPEALS FOR THE 

SEVENTH DISTRICT OF TEXAS 

AMARILLO 

RUDY CORTINAS, § 

APPELLANT § 

§ 

V. § NO. 07-15-00249-CR 

§ 

THE STATE OF TEXAS, § 

APPELLEE 

APPEALED FROM CAUSE NUMBER 1345818D 

FROM THE 432ND DISTRICT COURT OF 

TARRANT COUNTY, TEXAS 

THE HONORABLE, RUBEN GONZALEZ, JR., JUDGE PRESIDING 

THE HONORABLE, ELIZABETH BERRY 

TO THE HONORABLE COURT OF APPEALS: 

STATEMENT OF THE CASE 

This is an appeal (CR-52, 53) from pleas of true from a deferred 

adjudication probation revocation (CR 43, 47). Appellant had previously pleaded 

guilty to possession of a controlled substance under 1 gram, methamphetamine 

enhanced to a second degree felony (CR-5,17,26). A Petition to Proceed to 

Adjudication was filed. (CR-36). The allegations included failure to report for 

October, November, and December of 2014 and failure to complete an outpatient 

care program. (RR 3:6-37). The plea was true to the violations (CR-43,47), 

1 
(RR 2:13, 18-19). The court found the allegations to be true and adjudicated 

Appellant guilty and assessed seven (7) years punishment in the Institutional 

Division of the Texas Department of Criminal Justice. (CR-47), (RR 2: 68-70). 

SUMMARY OF THE FACTS OF THE CASE 

The facts of the underlying possession case do not appear in the record. The 

summary of facts will be limited to the reasons and extenuating circumstances 

surrounding the violations of the deferred adjudication probation. 

Appellant pleaded true to the violations of not reporting for three months 

and not completing an outpatient drug program. (RR 2:18-19). After the pleas of 

true the State did not offer any evidence as to the violations. (RR 2: 21). Appellant 

waived his right not to testify and took the stand in his own behalf and stated he 

wanted to give explanations for the violations (RR 2:22-23). Appellant explained 

that beginning in September, 2014, he began taking interferon shot treatments for 

hepatitis C that continued through December of 2014. Appellant had to ride a bus 

to the John Peter Smith Hospital to take some 16 shots. Side effects included 

depression and vomiting (RR 2:28-31). His doctor told Appellant this was a once 

in a lifetime opportunity. Appellant had to make bus transfers to get to the clinic 

2 
(RR 2:32). Appellant conceded that he could have reported on the dates of his 

treatment (RR2: 33). Appellant introduced medical records verifying his medical 

needs and condition, (DX 1,3,4). Appellant stated that once he stopped reporting 

he became scared and concerned that being jailed would interfere with his 

treatments. He became depressed and believed his "hole was getting deeper". (RR 

2:34-38). Appellant lost his job and the depression and fear increased. (RR 2:36- 

38). 

The outpatient drug treatment was also along distance away from where 

Appellant lived. Appellant was having transportation issues that are not clear from 

the record (RR 2:35-36). Appellant missed the first out-patient assessment because 

of a funeral and was apparently late and not allowed in at the next assessment. He 

then stopped trying to go to the outpatient drug treatment when he stopped 

reporting for probation. (RR 2:60-63). 

Appellant also testified that his mother is elderly and that Appellant is an 

essential primary caregiver. This was verified by a letter from a doctor. (RR 2:24-

25), (DX2). Appellant finally asked for reinstatement because of the extenuating 

circumstances and the fact that he had spent some 7-8 months in jail already for the 

charge (RR 2:54-55). 

ii 
SUMMARY OF ARGUMENT 

Appellant believes it was an abuse of discretion for the trial judge to revoke 

his probation and sentence him to seven years in prison. 

ARGUMENTS AND AUTHORITIES 

ISSUE FOR REVIEW NO. ONE (RESTATED) 

THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING 

APPELLANT'S DEFERRED ADJUDICATION AND SENTENCING 

APPELLANT TO SEVEN (7) YEARS IN PRISON. 

Appellant cites the above Statement of Facts above and incorporates them 

into his Argument and Authorities. 

Probation may be revoked upon a finding that an appellant has violated the 

terms of his or her probation. Wilson v. State, 645 S.W.2d 932, 934 (Tex.App.-

Dallas 1983, no pet.). Appellate review of a probation revocation proceeding is 

limited to a determination of whether the trial court abused its discretion. Bennett 

v. State, 476 S.W.2d 281, 282 (Tex.Crim.App.1972); Wilson, 645 S.W.2d at 934. 

To determine whether the trial court has abused its discretion, the courts look to 

determine whether the State has met its burden of proof. See Cardona v. State, 665 

S.W.2d 4925 493-94 (Tex.Crim.App.1984). The State meets its burden when the 

greater weight of the evidence before the court creates a reasonable belief that 

4 
the probationer violated a condition of probation. Jenkins v. State, 740 S.W.2d 

435, 437 (Tex.Crim.App.1983), disapproved on other grounds by Saxton v. State, 

804 S.W.2d 910, 912 n. 3 (Tex. Crim.App. 199 1). 

In revocation proceedings, the trial judge is the sole trier of the facts, the 

credibility of the witnesses, and the weight to be given the testimony. Taylor v. 

State, 604 S.W.2d 175, 179 (Tex.Crim.App. [Panel op.] 1980); Ross v. State, 523 

S.W.2d 402, 403 (Tex.Crim.App.1975). It is the trial court's duty to judge the 

credibility of the witnesses and to determine whether the allegations in the motion 

to revoke are true or not. Langford v. State, 578 S.W.2d 737, 739 

(Tex.Crim.App. 1979). This Court must therefore view the evidence presented at 

the revocation proceeding in a light most favorable to the trial court's ruling. 

Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1981). 

Appellant conceded that he had violated his probation, and pleaded true to 

the violations; however, Appellant contends that he presented evidence of such 

extenuating circumstances, which included Appellant's severe health issues, such 

that it was an abuse of discretion by the trial court to revoke his probation and 

sentence him to prison. Appellant was undergoing intense medical treatments for 

hepatitis C which interfered with his ability to report. These treatments also made 

5 
it difficult for Appellant to attend the outpatient drug treatment. 

Appellant contends that these relatively minor violations do not warrant 

revocation and a seven year sentence. Add these issues to the fact that Appellant 

was basically the main health care provider of his elderly mother and the fact that 

he had already spent several months in jail on a minor drug charge, is further proof 

that that it was an abuse of discretion to find that Appellant had violated his 

probation and sentence him to prison. 

PRAYER 

Appellant respectfully requests the case be reversed and rendered in his 

favor or at least he be granted for a new revocation hearing. Appellant also prays 

for all such additional or future relief to which he may be entitled to in law or in 

equity. 

Respectfully Submitted, 

RICHARD A. HENDERSON, P.C. 

Two City Place 

100 Throckmorton Street, Suite 540 

Fort Worth, Texas 76102 

Telephone: (817) 332-9602 

Telecopier: (817) 335-3940 

richMa nd 

RICHARD A. HENDERSON 

State Bar No. 09427100 

ATTORNEY FOR APPELLANT 

6 
CERTIFICATE OF COMPLIANCE 

This document complies with the typeface requirements of TEx.R.APP. P. 

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the 

word-count limitations of TEx.R.APP. P. 9.4(i) because it contains 1,765 words, 

excluding any parts exempted by TEx.R.APP.P. 9.4(i)(1), as computed by the 

word-count feature of Microsoft Office Word 2010, the computer software used to 

prepare the document. 

chard A. Henderson 

CERTIFICATE OF SERVICE 

A true copy of the Appellant's Brief has been electronically served on 

opposing counsel, Ms. Debra Windsor, Assistant Criminal District Attorney, PostConviction, Tarrant County District Attorney's Office, 401 W. Belknap Street, 

Fort Worth, Texas 76196 and mailed U.S. Regular Mail to Appellant, Mr. Rudy 

Cortinas, CID#0259844, Tarrant County Jail, 100 N. Lamar Street, Fort Worth, 

Texas 76102, on this the 9th ofDecembe,r01 

A. Hender'son 

7