No. 13-14-522-CR 

IN THE COURT OF APPEALS

FOR THE THIRTEENTH DISTRICT OF TEXAS

AT CORPUS CHRISTI

MAGDALENA ORTIZ, 

APPELLANT, 

v.

THE STATE OF TEXAS,

APPELLEE.

ON APPEAL FROM THE 94TH DISTRICT COURT

NUECES COUNTY, TEXAS

BRIEF FOR THE STATE

Douglas K. Norman

State Bar No. 15078900

Assistant District Attorney

105th Judicial District of Texas

901 Leopard, Room 206

Corpus Christi, Texas 78401

(361) 888-0410

(361) 888-0399 (fax)

douglas.norman@co.nueces.tx.us

Attorney for Appellee

ORAL ARGUMENT IS REQUESTED 

ACCEPTED

13-14-00522-CR

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

5/4/2015 1:36:35 PM

DORIAN RAMIREZ

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 5/4/2015 1:36:35 PM DORIAN E. RAMIREZ Clerk
TABLE OF CONTENTS

INDEX OF AUTHORITIES .......................................................................... ii

STATEMENT OF FACTS..............................................................................1

SUMMARY OF THE ARGUMENT..............................................................2

ARGUMENT...................................................................................................3

Reply Point No. 1

The trial court properly extended the period of community supervision 

at a review hearing without the presence of counsel..................................3

Reply Point No. 2

Ortiz waived error by failing to complain that she was denied the 

opportunity to present evidence or argument on punishment. .................6

Reply Point No. 3

Ortiz has failed to prove that her trial attorney was deficient for failing 

to address the court on sentencing. .............................................................7

PRAYER..........................................................................................................9

RULE 9.4 (i) CERTIFICATION.....................................................................9

CERTIFICATE OF SERVICE..................................................................... 10
INDEX OF AUTHORITIES

Cases

Calderon v. State, 75 S.W.3d 555 (Tex. App.—San Antonio 2002, pet. 

ref'd). ................................................................................................................4

United States v. Carey, 565 F.2d 545 (8th Cir. 1977). ....................................4

Cooks v. State, 240 S.W.3d 906 (Tex. Crim. App. 2007). ..............................3

United States v. Cornwell, 625 F.2d 686 (5th Cir. 1980)........................... 4, 5

Euler v. State, 218 S.W.3d 88 (Tex. Crim. App. 2007). .................................6

Forgues v. United States, 636 F.2d 1125 (6th Cir.1980). ...............................4

Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973). ........................ 3, 4

Garza v. State, 213 S.W.3d 338 (Tex. Crim. App. 2007). ..............................8

Ex parte Harrington, 883 S.W.2d 396 (Tex. App.—Fort Worth 1994, pet. 

ref'd). ........................................................................................................... 4, 5

King v. State, 649 S.W.2d 42 (Tex. Crim. App. 1983)....................................8

Lovill v. State, 319 S.W.3d 687 (Tex. Crim. App. 2009)................................6

Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254 (1967). .....................................3

Menefield v. State, 363 S.W.3d 591 (Tex. Crim. App. 2012). ........................8

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593 (1972)..............................3

Pearson v. State, 994 S.W.2d 176 (Tex. Crim. App. 1999)............................7

Sanchez v. State, 603 S.W.2d 869 (Tex. Crim. App. 1980). ...........................4

Skipworth v. United States, 508 F.2d 598 (3d Cir. 1975)........................... 4, 5

ii
United States v. Silver, 83 F.3d 289 (9th Cir.1996).................................... 4, 5

State v. Smith, 769 A.2d 698 (Conn. 2001). ....................................................4

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984)............... 7, 8

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).............................8

Vidaurri v. State, 49 S.W.3d 880 (Tex. Crim. App. 2001)......................... 6, 7

Ex parte White, 160 S.W.3d 46 (Tex. Crim. App. 2004). ...............................8

Statutes & Rules

TEX. R. APP. P. 33.1. ........................................................................................6

iii
NO. 13-14-522-CR

MAGDALENA ORTIZ, § COURT OF APPEALS

Appellant, §

§

V. § FOR THE THIRTEENTH 

§

THE STATE OF TEXAS, §

Appellee. § DISTRICT OF TEXAS

BRIEF FOR THE STATE

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF FACTS

Magdalena Ortiz was indicted for the Third-Degree Felony offense of 

Possessing a Dangerous Drug in a Correctional Facility. (CR p. 5) See Tex. Penal 

Code § 38.11.

On February 27, 2012, Ortiz was placed on deferred-adjudication 

community supervision for a two-year period. (CR p. 56)

On January 22, 2014, at an unrecorded hearing at which Ortiz and a 

representative of the Community Supervision and Corrections Department were 

before the court, the trial court signed an order extending the term of community 

supervision by twelve months. (Supp. CR p. 4)

On August 21, 2014, pursuant to a motion to revoke, the trial court revoked 

community supervision, adjudicated Ortiz guilty, and sentenced her to three years 

in prison. (CR p. 75)

1
At a joint hearing on the motion to revoke in the present case and one in a 

separate case against Ortiz, after finding the majority of the alleged violations to be 

true, the trial court heard the State’s recommendation to revoke and the defense 

recommendation for the probationary period to be extended again and for Ortiz to 

be given the chance to comply with her conditions. (RR pp. 17-19) After going 

over Ortiz’s history of non-compliance, the trial court concluded the proceeding as 

follows:

the Court hereby adjudicates Defendant, revokes Defendant's community

supervision, ... and in Cause No. 11-4008, sentence her to three years TDC.

If you want to appeal the judgment and sentence of the Court, you 

must file notice of appeal within 30 days of today's date. Defendant's 

remanded, counsel's excused.

(Proceedings adjourned.)

(RR p. 20)

SUMMARY OF THE ARGUMENT

First Issue – Ortiz had no due process right to counsel before her 

probationary period could be extended by the trial court.

Second Issue – Ortiz waived her complaint that the trial court failed to 

conduct a separate punishment hearing by failing to raise that complaint in the trial 

court by either objection or motion for new trial.

Third Issue – By failing to develop a record concerning the evidence and 

arguments she might have raised, Ortiz failed to show that her trial attorney was 

2
ineffective for failing to assert her right to present evidence and argument on 

punishment.

ARGUMENT

Reply Point No. 1

The trial court properly extended the period of community supervision at a

review hearing without the presence of counsel.

Appointment of counsel for an indigent defendant is required at every stage 

of a criminal proceeding where substantial rights of a criminal accused may be 

affected. Mempa v. Rhay, 389 U.S. 128, 134, 88 S. Ct. 254 (1967) (holding that a 

lawyer must be afforded at a revocation of probation or a deferred sentencing 

proceeding); Cooks v. State, 240 S.W.3d 906, 910 (Tex. Crim. App. 2007) (citing 

Mempa). Whether such procedural protections are necessary generally “depends 

on the extent to which an individual would be condemned to suffer grievous loss.” 

Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593 (1972).

In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973), the Supreme 

Court held that due process requires that an individual on probation be given notice 

and the right to hearing prior to his parole being revoked. 411 U.S. at 782. 

However, with regard to the right to counsel, the Supreme Court clarified that “the 

decision as to the need for counsel [in a probation or parole revocation proceeding] 

must be made on a case-by-case basis,” and that “the presence and participation of 

3
counsel will probably be both undesirable and constitutionally unnecessary in most 

revocation hearings.” 411 U.S. at 790.

The Court of Criminal Appeals has generally held that due process does not 

require a hearing in order for the trial court to modify the terms of probation. 

Sanchez v. State, 603 S.W.2d 869, 870 (Tex. Crim. App. 1980) (terms modified 

concerning the probation officer to whom probationer reported and an additional 

requirement that he ingest antabuse). However, neither the Supreme Court nor the 

Texas Court of Criminal Appeals has directly addressed the right to counsel at a 

modification or extension of probation proceeding.

The federal circuit courts and Texas intermediate courts of appeals have 

generally rejected any due process right to a hearing or counsel at modification and 

extension proceedings. See United States v. Silver, 83 F.3d 289, 292 (9th 

Cir.1996); United States v. Cornwell, 625 F.2d 686, 688 (5th Cir. 1980); Forgues 

v. United States, 636 F.2d 1125, 1127 (6th Cir.1980); United States v. Carey, 565 

F.2d 545, 547 (8th Cir. 1977); Skipworth v. United States, 508 F.2d 598, 601-02

(3d Cir. 1975); Calderon v. State, 75 S.W.3d 555, 558-59 (Tex. App.—San 

Antonio 2002, pet. ref'd); Ex parte Harrington, 883 S.W.2d 396, 401 (Tex. App.—

Fort Worth 1994, pet. ref'd); see also State v. Smith, 769 A.2d 698, 704 (Conn. 

2001) (due process does not require a court hearing or counsel before the 

conditions of an individual's probation may be modified or extended).

4
The Fifth Circuit has adopted the reasoning of the Third Circuit that “the 

primary loss occasioned by extension of the probationary period is the possibility 

of future revocation, a loss which is only potential at the time of the extension. 

Since a probationer is entitled to a hearing prior to revocation, the potential of loss 

caused by extension was not considered sufficiently ‘grievous’ to require a 

hearing.” Cornwell, 625 F.2d at 688 (citing Skipworth, 508 F.2d at 601-02); see 

also Silver, 83 F.3d at 292 (noting also that the judge in an extension proceeding 

need not make a detailed factual inquiry into whether the probationer committed a 

violation, but only must determine what is in the best interest of society). 

Likewise, the Fort Worth Court of Appeals has noted the distinction that 

“[p]robation revocation results in incarceration and proceeding to adjudication 

results in a conviction with the present possibility of incarceration. Extension of 

probation, however, results only in the future possibility of incarceration.” 

Harrington, 883 S.W.2d at 401.

In the present case, the State would urge this Court to follow the same 

reasoning in rejecting Ortiz’s claimed due process right to counsel before her 

probation could be extended.

Ortiz’s first issue on appeal should be overruled.

5
Reply Point No. 2

Ortiz waived error by failing to complain that she was denied the opportunity 

to present evidence or argument on punishment.

To preserve a complaint for review, a party must have presented to the trial 

court a timely request, objection, or motion that states the specific grounds for the 

desired ruling if they are not apparent from the context of the request, objection, or 

motion. TEX. R. APP. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. 

Crim. App. 2009).

In Vidaurri v. State, 49 S.W.3d 880, 885-86 (Tex. Crim. App. 2001), the 

Court of Criminal Appeals held that the defendant waived any complaint he had on 

appeal to the lack of a separate punishment hearing following revocation of 

deferred-adjudication probation, by failing to object to the sentence imposed by the 

trial court without such a hearing after it found a violation of the conditions of 

deferred adjudication. Id. at 885-86; TEX. R. APP. P. 33.1; see also Euler v. State,

218 S.W.3d 88, 91 (Tex. Crim. App. 2007) (“If appellant wanted an opportunity to 

present evidence and argument on the question of punishment, it was incumbent 

upon him to ask for that opportunity and to be ready to present such evidence and 

argument as soon as the trial court announced its finding that he had violated the

conditions of his probation.”). Such an objection should have been made at the 

time the trial court denied the defendant an opportunity to present punishment 

6
evidence or, if the defendant had no opportunity to object at that time, at least by 

motion for new trial. See Vidaurri, 49 S.W.3d at 886; Pearson v. State, 994 

S.W.2d 176, 179 (Tex. Crim. App. 1999).

In the present case, Ortiz failed to object to the trial court imposing sentence 

without a separate punishment hearing after revoking her deferred-adjudication 

probation, nor did she file a motion for new trial. Accordingly, Ortiz waived error.

Ortiz’s second issue on appeal should be overruled.

Reply Point No. 3

Ortiz has failed to prove that her trial attorney was deficient for failing to 

address the court on sentencing. 

A claim that trial counsel was ineffective is generally analyzed under the 

familiar standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 

2052 (1984). The Court of Criminal Appeals has recently explained this standard 

as follows:

For a claim of ineffective assistance of counsel to succeed, the record must 

demonstrate both deficient performance by counsel and prejudice suffered 

by the defendant. An ineffective-assistance claim must be firmly founded in 

the record and the record must affirmatively demonstrate the meritorious 

nature of the claim. Direct appeal is usually an inadequate vehicle for 

raising such a claim because the record is generally undeveloped. This 

statement is true with regard to the deficient performance prong of the 

inquiry, when counsel's reasons for failing to do something do not appear in 

the record. Trial counsel should ordinarily be afforded an opportunity to 

explain his actions before being denounced as ineffective. If trial counsel is 

not given that opportunity, then the appellate court should not find deficient 

performance unless the challenged conduct was so outrageous that no 

competent attorney would have engaged in it.

7
Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012) (citations 

omitted).

Ortiz complains that her trial attorney failed to offer any evidence or 

argument regarding an appropriate punishment. However, Ortiz was required to 

show why her attorney failed to offer punishment evidence, and that this did not 

amount to a legitimate trial strategy, in order to succeed on a claim of ineffective 

assistance for failure to present such evidence. See Garza v. State, 213 S.W.3d 

338, 347-48 (Tex. Crim. App. 2007). A claim of ineffective assistance of counsel 

based on counsel's failure to present evidence or call witnesses requires of a 

showing that such witnesses were available to testify and that the defendant would 

have benefitted from their testimony. Ex parte White, 160 S.W.3d 46, 52 (Tex. 

Crim. App. 2004) (citing King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 

1983)). Ortiz has failed to show that she had any witnesses or punishment 

evidence to present.

In addition, Ortiz fails to argue that there is a reasonable probability that, but 

for counsel's alleged error, the result of the proceeding would have been different. 

See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); see also 

Strickland, 466 U.S. at 694. 

Ortiz’s third issue on appeal should be overruled.

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PRAYER

For the foregoing reasons, the State respectfully requests that the judgment 

of the trial court be affirmed.

Respectfully submitted,

/s/ Douglas K. Norman

___________________

Douglas K. Norman

State Bar No. 15078900

Assistant District Attorney

105th Judicial District of Texas

901 Leopard, Room 206

Corpus Christi, Texas 78401

(361) 888-0410

(361) 888-0399 (fax)

douglas.norman@co.nueces.tx.us

RULE 9.4 (i) CERTIFICATION

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify 

that the number of words in this brief, excluding those matters listed in Rule 

9.4(i)(1), is 1,783.

/s/Douglas K. Norman

___________________

Douglas K. Norman

9
CERTIFICATE OF SERVICE

This is to certify that a copy of this brief was e-mailed this 4th day of May, 

2015, to Appellant’s attorney, Mr. Donald B. Edwards.

/s/ Douglas K. Norman

___________________

Douglas K. Norman

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