Cause No. PD-1627-14

In the Court of Criminal Appeals of Texas

Michael Wade Riddle , Petitioner

v. The State of Texas , Respondent

On Review from Cause No. 02-14-00180-CR in the Second Court of Appeals Fort Worth, Texas

State’s Response to Petitioner’s PDR

Maureen Shelton Wichita County Criminal District Attorney Anthony Bates Carey Jensen Asst. Criminal District Attorney Asst. Criminal District Attorney Wichita County, Texas Wichita County, Texas State Bar No. 24076904 State Bar No. 24083252 Tony.Bates@co.wichita.tx.us Carey.Jensen@co.wichita.tx.us

900 Seventh Street Wichita Falls, Texas 76301 (940) 766-8113 phone (940) 716-8530 fax Attorneys for Respondent State of Texas Oral Argument Not Requested PD-1627-14 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 12/29/2014 9:05:12 AM Accepted 12/30/2014 9:59:38 AM

ABEL ACOSTA CLERK2

To the Court of Criminal Appeals: Pursuant to Rule 68.9 of the Rules of Appellate Pr ocedure, the State submits its reply to Appellant’s petition for discr etionary review. The State makes this reply in order to briefly address argume nts set forth by Appellant in his petition.

Statement Regarding Oral Argument The State is not requesting oral argument in this case. Argument The State respectfully requests this Court deny App ellant’s petition because (1) the Petitioner expressly waived his rig ht to closing argument prior to the trial court’s announcement of the sent ence; and (2) the probation condition that required the Petitioner to successfully complete sex offender treatment counseling was not modified; therefore, Tex. Crim. Proc. Code Ann. Art 42.12 §10(e) was not triggered. Petitioner expressly waived his right to closing ar gument in the disposition phase of trial. Petitioner argues that the trial court refused to allow closing arguments on sentencing. Petitioner asserts that h e did make an objection prior to the trial court pronouncing sentence and f urther that he was “not required to formally make a request again or except to the court’s ruling.” (PDR at 7)3

Petitioner was represented by his court-appointed counsel, Brennon Brady, at the sentencing hearing. 1 Mr. Brady did make an objection prior to the pronouncement of sentence. However, Petitioner misleads this Court by insinuating that the objection pertained to clos ing arguments. (PDR at 5, 7) Immediately preceding the trial court’s denial o f Petitioner’s motion for continuance, Mr. Brady stated, ““...there’s really no thing left for us [to do]

other than hear the Court’s sentence in this case. And I’m prepared to hear the sentence and Mr. Riddle just would like to ask for a continuance so that [another attorney] would be present at the sentenci ng.” (R.R. 5:6) This constituted an express waiver of the right to closi ng argument by the

Petitioner. The probation condition at issue was not modified. The condition at issue required Petitioner to “rema in in the Sexual Abuse Treatment Program until the program [had] bee n successfully completed, as determined by the treatment specialis t...” (C.R. 61) This condition did not specify who the treatment special ist would be or describe the program in any way, except by calling it the Se xual Abuse Treatment Program. As such, a change in provider or even the program itself did not

1 Despite repeated references to Mr. Brady as a fill -in attorney, he was in fact the Petitioner’s attorney of record at the time of tria l. (C.R. 70)4

constitute a modification of the condition, so long as it remained the Sexual Abuse Treatment Program. This is not to say that the State could have requir ed Petitioner to participate in an unrelated program without proper modification simply by labeling that unrelated program the “Sexual Abuse T reatment Program.” Clearly, this was not such a situation. The progra m, regardless of changes in provider, really was

always the Sexual Abuse Treatment Program, and nothing in the record indicates evidence to the con trary. As such, the only way for Petitioner to continue in the program as re quired by the probation condition was to continue with the new treatment pr ovider. Prayer The State prays that the Court deny Appellant’s pe tition for discretionary review. Respectfully submitted,

Maureen Shelton Criminal District Attorney Wichita County, Texas /s/Anthony Bates Anthony Bates Asst. Criminal District Attorney Wichita County, Texas State Bar No. 24076904 Tony.Bates@co.wichita.tx.us5 /s/Carey Jensen Carey Jensen Asst. Criminal District Attorney Wichita County, Texas State Bar No. 24083252 Carey.Jensen@co.wichita.tx.us

900 Seventh Street Wichita Falls, Texas 76301 (940) 766-8113 phone (940) 766-8177 fax

Certificate of Compliance

I certify that this document contains 523 words. T he body text is in 14 point font, and the footnote text is in 12 point font. /s/Carey Jensen

Certificate of Service I certify that on December 29, 2014, a true and cor rect copy of the

above document has been forwarded Paul Francis via electronic service to pfrancis@birch.net as well as the State Prosecuting Attorney, Lisa C. McMinn, via electronic service to information@spa.texas.gov

. /s/Carey Jensen