### 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 94 TH DISTRICT COURT NUECES COUNTY, TEXAS


### BRIEF FOR THE STATE

Douglas K. Norman State Bar No. 15078900 Assistant District Attorney 105 th 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 REQ UEST ED ACCEPTED 13-14-00522-CR THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS 5/4/2015 1:36:35 PM DORIAN RAMIREZ

CLERKTABLE OF CONTENTS
IND EX 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 Ort iz has failed to prove that h er trial attorney was deficient for failing to address the court on sentencing.

................................ ............................. 7
PRAYER

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

................................ ................................ ..... 9
CERTIFICATE OF SERVICE

................................ ................................ ..... 10INDEX OF AUTHORITIES
Cases
Calderon v. State , 75 S.W.3d 555 (Tex. App.

— San Antonio 2002, pet. ref'd)

. ................................ ................................ ................................ ................ 4 United States v. Carey , 56 5 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. Cri m. 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. C rim. 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

iiUnited 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. 66 8, 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 T EX

. R. A PP

. P. 33.1

. ................................ ................................ ........................ 6

iiiNO. 13

- 14

- 522

- CR
MAGDA LENA 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 Magdale na 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

- y ear 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
superv ision 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)

1At 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, revoke s 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 cou rt

. Second Issue

– Ortiz waived her c omplaint that the trial court failed to conduct a separate punishment hearing by failing to raise that complaint in the trial court by either object ion or mo ti on 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

2ineffective 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
. A ppointment 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 generall y “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 r equires 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 ne ed 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

3counsel 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, n either the Supreme Court nor the Texas Court of Criminal Appe als has directly addressed the right to counsel at a modification or extension of probation proceeding

. T he federal circuit courts and Texas intermediate courts of appeals have generally rejected any due process right to a hearing or counsel at modificatio n 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 , 56 5 F.2d 545, 54 7 (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 als o 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).

4The 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 l oss 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 mak e 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 ca se, 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.

5Reply 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

c ourt 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. T EX

. R. A PP

. P. 33.1(a)(1); Lovill v. State , 319 S.W.3d 687, 691

- 92 (Tex.
C rim. 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; T EX

. R. A PP

. P. 33.1 ; see also Euler v. State, 218 S.W.3d 88, 91 (Tex. Cri m. 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 announce d 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

6evidence or, if the defendant had no opportunity to object at th at time, at least by
motion for new trial. See Vidaurri , 49 S.W.3d at 88 6 ; 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 h er deferred

- adjudication probation, nor did s he file a motion for new trial. Accordingly, O rtiz waived error.
Ortiz’s second issue on appeal should be overruled. Reply Point No. 3 Ort iz has failed to prove that h er 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. 66 8, 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 opportun ity 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 wou ld have engaged in it.

7Menefield v. State , 363 S.W.3d 591, 592

- 93 (Tex. Crim. App. 2012) (citations omitted).
Orti z complains that h er trial attorney failed to offer any evidence or argument regarding an appropriate punishment . However, Ortiz was required to show why h er 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 defenda nt 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 s he had any witnesses or punishment
evidence to pres ent

. 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 ha ve 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.

8PRAYER 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 105 th Judicial District of Texas 901 Leopard, Room 206 Corpus Christi, Texas 78401 (361) 888

- 0410 (361) 88 8

- 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 li sted in Rule
9

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

.
/s/ 

# Douglas K. Norman

_________ __________ Douglas K. Norman

9CERTIFICATE OF SERVICE This is to certify that a copy of this brief was e
- mailed this 4th day of May , 20 15 , to Appellant’s attorney, Mr. Donald B. Edwards

.

/s/ 

# Douglas K. Norman

_____ ______________ Douglas K. Norman

10