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No. ______________________

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

SITTING AT AUSTIN, TEXAS

_______________________________________________

RICHARD SCOTT CRAWFORD, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

_______________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

_______________________________________________

FROM THE SEVENTH COURT OF APPEALS, SITTING AT AMARILLO

HONORABLE BRIAN QUINN, CHIEF JUSTICE, PRESIDING

(UNPUBLISHED OPINION BY CHIEF JUSTICE QUINN)

(SEVENTH COURT OF APPEALS NO. 07-13-00108-CR)

(LUBBOCK COUNTY TRIAL COURT NO. 2004-407,817)

_______________________________________________

RODERIQUE S. HOBSON, JR.

State Bar No. 09744900

816 Main Street

Lubbock, Texas 79410

Tel: 806/762-6030

Fax: 806/763-3220

Attorney for Appellant

July 15, 2015

ORAL ARGUMENT REQUESTED
2

TABLE OF CONTENTS

Table of Contents ......................................................................................................2

Index of Authorities...................................................................................................3

Statement Regarding Oral Argument ........................................................................4

Statement of the Case ................................................................................................4

Statement of Procedural History ...............................................................................5

Sole Question Presented for Review

Did the Court of Appeals err when it affirmed the trial court’s arbitrary and 

capricious revocation of Appellant’s probation where the State failed to prove any 

violations that occurred after the trial court previously exercised its discretion to 

allow Appellant to continue on probation? ...............................................................6

Reasons for Granting Review....................................................................................6

Argument and Authorities.........................................................................................8

Prayer for Relief ......................................................................................................15

Certificate of Service...............................................................................................16

Certificate of Compliance........................................................................................16

Appendix A (Court of Appeals Slip Opinion)............................................................i

Appendix B (Appellant’s Motion for Rehearing) .................................................... ii
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INDEX OF AUTHORITIES

CASES PAGE

Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008)........................................14

Lisenba v. Calfiornia, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941) ...............12

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990).............................14

Rogers v. State, 640 S.W.2d 248 (Tex. Crim. App. 1982)......................................10

Webb v. State, 161 Tex. Crim. 442, 278 S.W.2d 158 (1955)..................................12

Wester v. State, 542 S.W.2d 403 (Tex. Crim. App. 1976) ................................11, 12

CONSTITUTIONAL AMENDMENTS, STATUTES AND RULES

U.S. CONST. Amend. 5.........................................................................................8, 14

U.S. CONST. Amend. 14.......................................................................................8, 14

Texas Penal Code §§ 22.02 .......................................................................................4

Tex. R. App. P. 66.3 ..................................................................................................7

Tex. R. App. P. 68.2 ..................................................................................................6
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STATEMENT REGARDING ORAL ARGUMENT

Appellant requests oral argument because the issues presented herein can 

best be addressed in a question-and-answer format at oral argument. Appellant 

attempted to fully explain the main issue in this Petition while keeping it as brief as 

possible, but it could be further clarified during oral argument.

STATEMENT OF THE CASE

On December 21, 2004, Appellant was charged via a two-count indictment 

with committing the second degree felony offense of aggravated assault on or 

about November 11, 2004, in violation of Texas Penal Code §§ 22.02(a) (1) and 

(2) (Vernon 2003) (CR 5). On March 17, 2005 the defendant pleaded guilty to the 

charge and was placed on deferred adjudication probation for a term of 10 years. 

(CR 18). In 2012 the State filed a motion to proceed with adjudication of guilt 

containing several allegations that were the subject of previous attempts to revoke 

Appellant’s probation in a motion to proceed with adjudication of guilt that was 

dismissed in 2011. The trial court revoked Appellant’s probation based upon the 

2011 allegations and sentenced Appellant to eight years imprisonment. 

Prior to the revocation hearing the Defense objected to the use of previously 

alleged-and-resolved violations of the Appellant’s probation in the current hearing 

as a violation of Appellant’s right to due process of law. This is because if no new 
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violations occurred (or were even alleged) after the 2011 motion to proceed was 

dismissed, then essentially the trial court reversed its own discretion to continue 

Appellant on probation in a completely arbitrary and capricious manner. 

STATEMENT OF PROCEDURAL HISTORY

On May 7, 2014, the Seventh Court of Appeals issued an unpublished per 

opinion and judgment affirming the Appellant’s probation revocation in the trial 

court and overruling his sole appellate issue. (See, Appendix - Court of Appeals’ 

slip opinion at 3).1 On May 22, 2014, Appellant filed a Motion for Rehearing 

contesting the intermediate court’s determination that the trial court did not abuse 

its discretion in revoking Appellant’s probation. (See, Appendix – Motion for 

Rehearing). On May 30, 2014, the court denied Appellant’s Motion for Rehearing 

without issuing a further opinion. 

However, Appellant’s counsel failed to timely inform Appellant of his right 

to seek discretionary review following the intermediate court’s mandate. Appellant 

filed a Writ of Habeas Corpus claiming that counsel’s failure to inform him of his 

right to seek review constituted ineffective assistance of counsel. On May 20, 

2015, this Court issued an opinion granting Appellant’s Writ of Habeas Corpus and 

 1

Crawford v. State, No. 07-13-00108-CR, 2013 Tex. Ap. LEXIS 13146 (Tex. App. –

Amarillo October 22, 2013) (not designated for publication). 
6

issued a mandate on June 15, 2015.2

This Petition for Discretionary Review is timely filed since it is being filed 

within thirty days of the mandate granting Appellant’s Writ of Habeas Corpus.3

SOLE QUESTION PRESENTED FOR REVIEW

ISSUE ONE: Did the Court of Appeals err when it affirmed the trial court’s 

arbitrary and capricious revocation of Appellant’s probation 

where the State failed to prove any violations that occurred after 

the trial court previously exercised its discretion to allow 

Appellant to continue on probation?

REASONS FOR GRANTING REVIEW

The ruling by the Seventh Court of Appeals sanctioned an arbitrary and 

capricious decision by the trial court to revoke Appellant’s probation where the 

trial court previously exercised its discretion not to revoke Appellant’s probation 

when the same allegations were brought before it. In other words, the trial court 

reversed its own decision approximately eighteen months later based upon 

absolutely no evidence of additional violations of Appellant’s probation. The 

intermediate court focused on the procedural circumstances surrounding the 

exercise of the trial court’s discretion instead of the fact that once that discretion 

has been exercised, it is a denial of due process of law to suddenly reverse course 

 2 Ex parte Crawford, No. WR-64,596-03 (Tex. Crim. App. June 15, 2015). 

3 See Tex. R. App. P. 68.2 (Vernon 2013). 
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without proof of any new violations. This creates the risk for absurd results and a 

lack of repose for any person who is allowed to continue on community 

supervision after a motion to revoke supervision is dismissed. 

Thus, this is an important question of constitutional law that must be settled 

by this Court4. Furthermore, by allowing a trial court to reverse itself without the 

presentation of new evidence the Seventh Court of Appeals so far departed from 

accepted and well-settled tenets of fundamental fairness and due process as to call 

for an exercise of this Court’s discretion.5

 4 See, Tex. R. App. P. 66.3(b). 

5 See, Tex. R. App. P. 66.3(f). 
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ARGUMENT AND AUTHORITIES

Appellant’s argument to the intermediate court was premised upon a denial 

of substantive due process of law in violation of the Fifth and Fourteenth 

Amendments to the United States Constitution. On October 12, 2012 the State of 

Texas filed a Motion to Proceed with Adjudication of Guilt alleging that Appellant 

violated his probation by committing the class B misdemeanor offense of 

harassment on or about September 9, 2012 in Haskell County, Texas. (CR 24). The 

Order for Capias to Issue that was signed by the trial court stated, “the Court 

further takes judicial knowledge of all documents, orders, the judgment and other 

matters in this above entitled and numbered cause, the same having been heard 

and duly considered, the Court is of the opinion that the facts and information set 

out in the said Motion to Proceed with Adjudication of Guilt are sufficient to 

establish probable cause for the issuance of said capias.” (CR 25) (emphasis added 

in bold). 

On October 31, 2012 the State filed its First Amended Motion to Proceed 

with Adjudication of Guilt in which it added several allegations of other violations 

of Appellant’s probation. (CR 30-31). On November 19, 2012 the State filed its 

Second Amended Motion to Proceed with Adjudication of Guilt in which it alleged 

even more violations of Appellant’s probation. (CR 35-36). 
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Several of the allegations in the first and second amended motions to 

proceed with adjudication of guilt were previously the subject of earlier attempts to 

revoke Appellant’s probation. (RR vol. 4, p. 158). In fact, a February 3, 2011 

Motion to Proceed with Adjudication of Guilt that was essentially incorporated by 

reference into the State’s 2012 motions contained the only violations that the trial 

court found to be “true” and upon which it based its revocation decision. (RR vol. 

4, pp. 158-159). However, the 2011 motion to proceed was dismissed by order of 

the trial court on July 21, 2011. (RR vol. 4, p. 142). The trial court’s order stated:

On this the 21st day of July, A.D. 2011, came on to be heard the

Motion of the Assistant Criminal District Attorney of Lubbock 

County, Texas, to set aside the Motion to Proceed with Adjudication 

of Guilt heretofore filed in this cause, and it being the opinion of the 

Court that there is sufficient grounds for setting same aside; 

therefore, IT IS ORDERED, ADJUDGED AND DECREED that the 

Motion to Proceed with Adjudication of Guilt in this cause, heretofore 

filed, to-wit: on February 3, 2011, be and is hereby set aside and is 

held for naught. IT IS FURTHER ORDERED that the Defendant 

forthwith be discharged from custody hereunder. The Probation is to 

remain in full force and effect. (RR vol. 4, p. 142) (emphasis added 

in bold). 

Prior to the November 20, 2012 probation revocation hearing, Appellant’s 

counsel argued to the trial court that the allegations that were previously disposed 

of by the July 21, 2011 dismissal were not properly before the court. (RR vol. 2, 
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pp. 9-15). Appellant’s counsel quoted this Court’s language from Rogers v. State6

that “It would be the epitome of arbitrariness for a Court to first conduct a hearing 

on the alleged violations and to exercise its discretion to return the probationer to 

probation, whether by a continuance of the hearing, or by a continuance of the 

probation, and then decide several months later to exercise its discretion in the 

opposite fashion by revoking the probation without a determination of a new 

violation.” (RR vol. 2, p. 12). 

The Seventh Court of Appeals ignored the fact that the trial court had 

exercised its discretion once before on these alleged violations and instead focused 

on the procedural aspects of whether a formal hearing took place. 7 The 

intermediate court also disregarded the plain language of the trial court’s written 

proclamations contained within the Order for Capias to Issue that it took judicial 

notice of the entire file and “heard and duly considered” the facts and evidence set 

forth in the State’s Motion to Proceed with Adjudication, and that on July 21, 

2011the trial court “heard” the Motion to Dismiss with a footnote stating, “That 

verbiage appears to be boilerplate incorporated by the party who drafted and 

submitted the order to the trial court. Though it alludes to a prior hearing, the trial 

 6 640 S.W.2d 248, 252 (Tex. Crim. App. 1982)

7 Op. at 2, “But outside the scope of that prohibition are situations wherein no plea was 

made to, hearing held on, or evidence received on the prior motion [to revoke probation].” 
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court iterated at the hearing on the 2012 motion that it ‘did not have a hearing, the 

evidence regarding the allegations in the [2011] Motion to Proceed to 

Adjudicate.”8

Even if the above-referenced orders signed by the trial court contain 

“boilerplate” language, the trial court would still have to make certain findings 

based upon some evidence in order to sign them. If what the intermediate court is 

saying is true, then the role of a trial court in issuing warrants and dismissing 

motions to revoke probation is nothing more than that of an inanimate rubber 

stamp unless there happens to be a formal hearing.9

This Court previously rejected this purely ministerial characterization in 

Wester v. State10 in which the Court held that “when a revocation proceeding has 

been had and the defendant continued on probation in the discretion of the court 

(although there was an adequate basis for revocation demonstrated at the hearing), 

the continuation cannot subsequently be arbitrarily withdrawn at the whim of the 

trial court or upon mere fact of an arrest. To hold otherwise would violate due 

 8 Op. at 3, n. 1. 

9 See Appellant’s Motion for Rehearing for further examples of where the trial court 

actively participated in the decision to file each previous Motion to Proceed with Adjudication of 

Guilt and all of the evidence that the trial court heard and considered outside of a formal 

courtroom hearing. 

10 542 S.W.2d 403 (Tex. Crim. App. 1976). 
12

process, due course of law of the land and fundamental fairness.”11

Wester is particularly compelling in the case before the Court since the 

initial hearing in that case merely consisted of the defendant entering a plea of 

“true” to one of the allegations in the motion to revoke probation.12 Once Wester 

entered his plea the trial court merely followed the State’s recommendation to 

allow him to continue on probation and no other evidence to support the violations 

was ever presented.13 Thus, in the context of what is fundamentally fair for the 

purposes of substantive due process, the deciding factor should simply be whether 

the trial court previously exercised its discretion to continue, modify, or revoke 

probation, and not on the procedural aspects surrounding the exercise of the court’s 

discretion. 

The denial of due process is the result of the failure to observe the 

fundamental fairness that is essential to the very concept of justice.14 While “due 

process” remains a malleable concept, it has always required that an accused in a 

criminal case be accorded the fundamental fairness necessary to the due 

administration of justice.15

 11 Id. at 406. 

12 Id. at 404. 

13 Id. 14 Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941).

15 Webb v. State, 161 Tex. Crim. 442, 278 S.W.2d 158, 160 (1955).
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In this case, the State of Texas suspected that Appellant had committed the 

misdemeanor criminal offense of harassment and filed a motion to proceed with 

adjudication of guilt with the harassment claim as the lone alleged violation. (CR 

24). At some point prior to the hearing on the State’s motion, the State began to 

doubt its ability to prove that violation actually occurred, and then during the 

hearing the State abandoned it completely. (RR vol. 2, p. 165). As a result, the 

foundation of the entire proceeding vanished from underneath it and the State was 

left with claims that had already been presented to the trial court in a previous 

motion proceed and upon which the trial court had already exercised its discretion 

by allowing Appellant to continue on his probation when it signed and approved 

the July 21, 2011 Order to Dismiss Motion to Proceed with Adjudication of Guilt. 

(RR vol. 4, p. 142). 

The inescapable fact is that nothing changed between the July 21, 2011 and 

February 27, 2013 when the trial court signed the judgment revoking Appellant’s 

probation and sentenced him to serve time in the penitentiary. As such, if no new 

provable violation occurred then how can it possibly be fair for Appellant to have 

his probation revoked a year and a half later? 

The ruling of the trial court and the subsequent affirmation by the 

intermediate court creates a situation where a probationer can be accused of
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violating his probation during Year One of a ten-year probation. Then, if that 

motion to proceed with adjudication of guilt is subsequently dismissed and no 

other violations are even alleged to occur during the remainder of his probation, he 

can still be revoked and sentenced to the penitentiary on the last day of 

probationary term. That leads to an absurd result that violates all rational notions of 

fundamental fairness. 

The bottom line is that on February 27, 2013 the trial court acted arbitrarily 

and capriciously by reversing its July 21, 2001 decision to continue Appellant on 

his probation without finding any credible evidence that any new violations had 

occurred.16 Therefore, Appellant’s right to substantive due process of law as 

guaranteed by the Fifth and Fourteenth Amendments to the United States 

Constitution was violated and the trial court’s order should be reversed by this 

Court.

 16 See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (holding that a 

trial court abuses its discretion when it acts without reference to any guiding rules and principles, 

or it acts in an arbitrary or capricious manner); see also Bigon v. State, 252 S.W.3d 360, 367 

(Tex. Crim. App. 2008).
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PRAYER FOR RELIEF

For the reasons set out above, Appellant respectfully prays that this 

Honorable Court grant this Petition for Discretionary Review, and upon 

considering the merits of Appellant’s claim reverse the order of the trial court and 

allow Appellant to complete his probation. 

 Respectfully submitted,

RODERIQUE S. HOBSON, JR.

816 Main Street

Lubbock, Texas 79410

Tel: 806/762-6030

Fax: 806/763-3220

BY: /s/ Roderique S. Hobson, Jr. 

 RODERIQUE S. HOBSON JR. 

 SBN 09744900

 Attorney for Richard Scott Crawford
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CERTIFICATE OF SERVICE

Service of the foregoing Brief for Appellant was made on July 15, 2015 

by sending a copy via electronic mail to Jeff Ford of the Lubbock Criminal District 

Attorney’s Office at jford@lubbockcda.com. 

/s/ Roderique S. Hobson, Jr. 

RODERIQUE S. HOBSON, JR.

Attorney for Appellant

CERTIFICATE OF COMPLIANCE

This is to certify that this document was prepared with Microsoft Word in 

14 point font, and that, according to that program’s word count function, this 

document contains 2,899 words (counting all parts of the document).

/s/ Roderique S. Hobson, Jr. 

RODERIQUE S. HOBSON, JR.,

Attorney for Appellant

















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Case Information

Location Court Of Criminal Appeals

Date Filed 07/15/2015 02:00:27 PM

Case Number

Case Description

Assigned to Judge

Attorney Roderique HobsonJr

Firm Name Law Office of Rod Robson

Filed By Cindy Tapia

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Total Court Case Fees $0.00

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Order # 006077866-1

Petition for Discretionary Review

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Courtesy Copies jford@lubbockcda.com, rho9948907@aol.com,

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The petition for discretionary review does not contain the identity of Judge, Parties

and Counsel [Rule 68.4(a)]. You have ten days to tender a corrected petition for

discretionary review.

Documents

Lead Document (Crawford, Scott) PDR .pdf [Original]

Attachments appendix 1059309.pdf [Original]

Attachments appendix2.pdf [Original]