NO. 07-14-00408-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO, TEXAS

________________________________________________________

JESUS RIVERA DAVILA, APPELLANT

VS.

THE STATE OF TEXAS, APPELLEE

________________________________________________________

APPELLANT’S BRIEF

________________________________________________________

APPEALED FROM THE 100TH DISTRICT COURT OF CARSON COUNTY;

NO. 5158; HONORABLE STUART MESSER, JUDGE

________________________________________________________

ORAL ARGUMENT IS REQUESTED

MAY 18, 2015

 Respectfully submitted,

 BIRD, BIRD & RABE

 ATTORNEYS AT LAW

 P.O. BOX 1257

 CHILDRESS, TEXAS 79201

 BY: /s/ Dale A. Rabe, Jr. 

 DALE A. RABE, JR.,

 ATTORNEY FOR APPELLANT

 TELEPHONE NO.: 940-937-2543

 FACSIMILE NO.: 940-937-3431

 E-MAIL: birdbirdrabe@gmail.com

 STATE BAR NO.: 24027638

ACCEPTED

07-14-00408-CR

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

5/18/2015 10:36:11 PM

Vivian Long, Clerk

 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 5/18/2015 10:36:11 PM VIVIAN LONG CLERK
IDENTITY OF PARTIES AND COUNSEL

I hereby certify that the following listed persons 

or entities have rights which may be adversely affected 

by the outcome of these appeals in this Court so that 

the Justices of this Court may review the same to 

determine the need for recusal or disqualifications, if 

necessary, herein:

APPELLANT: Jesus Rivera Davila

TRIAL COUNSEL (Plea):

Hon. James Mosley

SBOT # 00797116

P.O. Box 1181

Stinnett, Texas 79083

806-878-4019

TRIAL COUNSEL (Adjudication):

Mr. Bryan Denham

SBOT # 24078415

P.O. Box 981

Pampa, Texas 79006

806-886-4504

806-553-5432 (Facsimile)

denhamlaw@yahoo.com

APPELLATE COUNSEL:

Mr. Dale A. Rabe, Jr.

SBOT # 24027638

P.O. Box 1257

Childress, Texas 79201

940-937-2543

940-937-3431 (Facsimile)

birdbirdrabe@gmail.com

2
APPELLEE: The State of Texas

TRIAL AND APPELLATE COUNSEL:

Mr. Luke Inman

SBOT # 24050806

800 West Avenue, Box 1

Wellington, Texas 79095

806-447-0055

866-233-2738 (Facsimile)

Luke.inman@windstream.net

TRIAL JUDGE: Hon. Stuart Messer

P.O. Box 887

Clarendon, Texas 79226

806-874-0122

806-874-5146 (Facsimile)

Respectfully submitted,

/s/ Dale A. Rabe, Jr.

DALE A. RABE, JR.,

ATTORNEY FOR APPELLANT

3
TABLE OF CONTENTS

SUBJECT INDEX

SUBJECT PAGE

Identity of Parties and Counsel 2

Table of Contents 4

Subject Index 4

Index of Authorities 6

Statement of the Case 8

Statement Regarding Oral Argument 8

Issue Presented 9

Statement of Facts 9

Summary of the Argument 19

ISSUE NUMBER ONE 9, 20

APPELLANT WAS DENIED DUE PROCESS PROVIDED 

BY THE FOURTEENTH AMENDMENT TO THE UNITED 

STATES CONSTITUTION AND THE RIGHT TO 

CONFRONT HIS ACCUSERS UNDER THE SIXTH 

AMENDMENT TO THE UNITED STATES CONSTITUTION 

WHEN HE WAS NOT PROVIDED AN INTERPRETER TO 

REVIEW HIS CONDITIONS OF PROBATION DURING 

HIS INTAKE INTERVIEW WITH THE 100TH JUDICIAL 

DISTRICT COMMUNNITY SERVICE AND CORRECTIONS 

DEPARTMENT. (ENTIRE RECORD).

Argument 20

Prayer 24

4
Certificate of Compliance 25

Certificate of Service 25

5
INDEX OF AUTHORITIES

STATUTES

TEX. CODE CRIM. PROC. ANN. art. 38.30 (West 2014) 21

CASES

Cobb v. State, 851 S.W.2d 871 (Tex. 1993) 22

Garcia v. State, 149 S.W.3d (Tex. 2004) 21

Gonzalez v. State, No. 07–12–00210–CR, 22

2013 WL 6044451 (Tex. App.—Amarillo 2013)

(mem. op., not designated for publication)

Linton v. State, 275 S.W.3d 493 (Tex. 2009) 21

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NO. 07-14-00408-CR

JESUS RIVERA DAVILA, § IN THE COURT OF APPEALS

APPELLANT §

§

VS. § 7TH DISTRICT OF TEXAS

§

THE STATE OF TEXAS, §

APPELLEE § AMARILLO, TEXAS

APPELLANT’S BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

Comes now, Jesus Rivera Davila, the Appellant in the 

above styled and numbered cause, by and through his 

attorney of record on appeal herein, and submits in and 

to this Court his Brief on appeal complaining of errors 

of fact and law in the trial court below as follows:

For convenience, the Appellant, Jesus Rivera Davila,

and the Appellee, the State of Texas, will hereinafter 

be referred to as the “Appellant” and the “State,” 

respectively, throughout this brief hereinafter.

For convenience the Clerk’s Record will be referred 

to as “CR”, the Reporter’s Record will be referred to as 

“RR”, and the Supplemental Reporter’s Record will be 

referred to as “SRR”.

7
STATEMENT OF THE CASE

This is an appeal from the 100th Judicial District 

Court in Carson County, Texas, the Honorable Stuart 

Messer, presiding. This appeal is from a Motion to 

Adjudicate Guilt of the Defendant filed by the 100th

Judicial District Attorney’s Office.

A hearing on this matter was held on November 19, 

2014, and resulted in Appellant’s deferred adjudication 

community supervision being revoked. Appellant was 

fully and finally convicted of the first degree felony 

offense of possession of a controlled substance, and 

sentenced to 55 years in the Texas department of 

Criminal Justice – Institutional Division.

Notice of Appeal was timely filed.

STATEMENT REGARDING ORAL ARGUMENT

The issues presented are of constitutional dimension 

and Appellant asserts that oral argument would be 

beneficial to the Court.

8
POINT OF ERROR

POINT OF ERROR NUMBER ONE

APPELLANT WAS DENIED DUE PROCESS PROVIDED BY THE 

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION 

AND THE RIGHT TO CONFRONT HIS ACCUSERS UNDER THE SIXTH 

AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN HE WAS 

NOT PROVIDED AN INTERPRETER TO REVIEW HIS CONDITIONS OF 

PROBATION DURING HIS INTAKE INTERVIEW WITH THE 100TH

JUDICIAL DISTRICT COMMUNNITY SERVICE AND CORRECTIONS 

DEPARTMENT. (ENTIRE RECORD).

STATEMENT OF THE FACTS

For the purpose of brevity and convenience, that 

portion of this brief entitled “Statement of the Case” 

is incorporated herein by reference.

In Cause Number 5158, Carson County, Texas, 

Appellant was charged by indictment alleging that 

Appellant on or about the 21st day of July, 2012, and 

before the presentment of the indictment, in the County 

of Carson and State of Texas, Appellant did 

intentionally or knowingly possess a controlled 

substance, namely, methamphetamine, in an amount of 400 

grams or more. CR 17.

9
On April 22, 2013, Appellant pleaded guilty to 

possession of a controlled substance in an amount of 

greater than 400 grams, in the 100th District Court of 

Carson County, Texas. SRR 12. Appellant was found to 

be in need of an interpreter and was appointed an 

interpreter for the purpose of the plea hearing. SRR 5. 

Appellant was sentenced to 5 years deferred adjudication 

community supervision, $2,000.00 fine, $140.00 lab fee, 

400 hours of community service, out-of-state probation 

transfer fee, and court costs. SRR 27. The conditions 

of probation were not announced by the trial court 

during the hearing (Entire Supplemental Reporter’s 

Record). Appellant did not have an interpreter at the 

time Appellant’s conditions of community supervision 

were reviewed with him by the 100th Judicial District 

Community Supervision Department. RR 21.

Among other conditions of community supervision, 

conditions pertinent to this appeal were: (a) Condition 

1 required that Appellant “commit no offense against the 

laws of this State, any other State, the United States, 

10
or any governmental entity,” and “notify the Community 

Supervision Officer in charge of the case within fortyeight (48) hours if arrested and/or charged with a 

criminal offense”; (b) Condition 2 required that 

Appellant “avoid injurious or vicious conduct and 

totally abstain from the purchase, use or consumption of 

alcoholic beverages of any kind, marihuana, pills, 

narcotics, controlled substances, harmful drugs, glue or 

paint sniffing, or any chemical which might cause 

intoxication unless prescribed by a licensed physician 

for legitimate medical reasons”; (c) Condition 7 

required that the Appellant “report monthly to the 

Community Supervision Officer assigned beginning on the 

1st day of May, 2013, or as directed by the Community 

Supervisions Officer and continue to report every month 

thereafter, for the remainder of the Community 

Supervision period. Should the [Appellant] transfer to 

another county or state, the [Appellant] must report in 

person in that jurisdiction as set out above and must 

report by mail to the 100th Judicial District Community 

11
Supervision Office on the 1st day of each month, 

beginning the 1st day of the first month after the date 

of this order”; and (d) Condition 10 of the Order of 

Community Supervision was that the Appellant “complete 

400 hours of community service. 100 hours of community 

service by the 1st day of October 2013; 100 hours of 

community service by the 1st day of April 2014; 100 

hours of community service by the 1st day of October 

2014; 100 hours of community service by the 1st day of 

April 2015.” CR 28.

On March 7, 2014, the State filed its Motion to 

Adjudicate Guilt of Defendant in Cause Number 5158

styled The State of Texas vs. Jesus Rivera Davila

alleging four violations of the terms of Appellant’s 

community supervision, to-wit: (a) that Appellant 

violated condition 1 in that Appellant committed the 

offense of “Possession of Cocaine” on or about the 14th

day of October, 2013, in Polk County, Florida; and that 

Appellant committed the offense of “Possession of Drug 

Paraphernalia” on or about the 14th day of October, 

12
2013, in Polk County, Florida; (b) that the Appellant 

violated condition 2 in that consumed cocaine on or 

about the 25th day of May, 2013; and that Appellant 

consumed cocaine on or about the 3rd day of August, 

2013; (c) that Appellant violated condition 7 in that 

Appellant failed to report monthly by mail as directed 

to the 100th Judicial District Community Supervision 

Officer assigned for the month of November 2013; and 

(d) that Appellant violated condition 10 in that 

Appellant failed to complete 100 hours of community 

service due by the 1st day of October 2013. CR 52.

On November 19, 2014, the trial court called the 

case for hearing on the State’s Motion to Adjudicate. 

RR 7. Again, the trial court appointed an interpreter 

for Appellant. RR 7. Appellant pleaded “not true” to 

the State’s contention that he violated conditions 1, 2, 

7, and 10 of his conditions of community supervision. 

RR 14.

The State called Mark White, 100th Judicial District 

Community Supervision Officer. RR 16. Mark White 

13
testified that as part of his employment he performs 

intakes on people place on probation which includes 

reviewing the conditions of community supervision. RR 

17. Mark White performed the intake on Appellant. RR 

18. Mark White stated he reviewed the conditions of 

community supervision with Appellant. RR 21. Mark 

White testified that there was no interpreter present 

when he did the intake of Appellant and when he reviewed 

the conditions of community supervision with Appellant. 

RR 21. Mark White stated he did not believe Appelant 

required an interpreter. RR 21. The State offered 

State’s Exhibit 2, the Order Imposing Conditions of 

Community Supervision, and State’s Exhibit 2 was 

admitted without objection. RR 22. Appellant signed 

State’s Exhibit 2. RR 24. Mark White testified that 

Appellant understood the conditions of probation because 

he signed the Order Imposing Conditions of Community 

Supervision. RR 26. The Order Imposing Conditions of 

Community Supervision is written entirely in English. 

CR 28. On the day the intake was done on Appellant the 

14
interpreter for the 100th Judicial District Community 

Supervision Department, Jacob Henderson, did not assist 

with the intake. RR 30. Mark White believed Appellant 

understood his conditions of probation because he would 

nod his head yes or say “okay.” RR 35. Mark White 

agreed that most probationers, even non-native English 

speakers, could recite there vital statistic information 

typically taken during a probation intake interview. RR 

39.

The State next called Carol Holcomb, Assistant 

Director of the 100th Judicial District Community 

Supervision and Corrections Department. RR 40. Carol 

Holcomb served as Appellant’s indirect community 

supervision officer in Texas. RR 43. Carol Holcomb 

filed the violation report on Appellant. RR 44. Carol 

Holcomb alleged that he violated his probation by 

possessing cocaine and drug paraphernalia. RR 45. The 

State offered State’s Exhibit 3, a certified copy of a 

Florida judgment. RR 49. State’s Exhibit 3 was 

admitted. RR 51. Appellant pleaded nolo contender and 

15
was sentenced to 120 day in jail on Count Two of State’s

Exhibit 3, possession of drug paraphernalia. RR 52. 

Carol Holcomb testified that she had no personal 

knowledge, only a report from Appellant’s Florida 

probation officer that Appellant admitted to cocaine 

use. RR 54. Carol Holcomb testified that Appellant 

failed to report by mail for the month of November 2013. 

RR 55. Carol Holcomb stated that Appellant completed 

67.5 of the 100 hours of community service he was 

supposed to complete by October 2013. RR 55.

The State and Appellant rested on the adjudication 

portion of the hearing. RR 61.

The State waived the first application paragraph in 

its motion to adjudicate that Appellant committed the 

offense of possession of a controlled substance. RR 61. 

The State waived both application paragraphs in its

motion to adjudicate that Appellant consumed illegal 

controlled substances. RR 61.

The trial court found that Appellant violated the 

remaining application paragraph that Appellant violated 

16
Condition 1 of his probation, that Appellant violated 

Condition 7 of his probation, and that Appellant 

violated Condition 10 of his probation; and fully and 

finally convicted Appellant. RR 62. The hearing next 

continued to the sentencing portion. RR 62.

Appellant called Rosanna Rivera Reyes, Appellant’s 

daughter, as his first witness. RR 63. Rosanna Reyes 

testified that Appellant is the bread winner for the 

family. RR 64. Rosanna Reyes testified that her 

brother, Appellant’s son, was murdered and that had a 

devastating effect on Appellant. RR 64. Appellant did

not use controlled substances until the death of his 

son. RR 66. Appellant sought help for his problems. 

RR 66. Appellant serves as a father figure to Rosanna 

Reyes’ son. RR 68.

Appellant next called Deeanna Rivera, Appellant’s 

wife, as a witness. RR 72. Deeanna Rivera testified 

that the family relies on Appellant. RR 74. Appellant 

is active in the church. RR 74.

17
Appellant finally called Aris Rojas, Appellant’s 

grandson. RR 84. Appellant has been a large part of 

his grandson’s life. RR 86. Appellant is needed in 

their household. RR 87. Appellant is Aris Rojas’ 

father figure. RR 89.

The trial court sentenced Appellant to 55 years in 

the institutional division of the Texas Department of 

Criminal Justice. RR 95.

Appellant appeals.

18
SUMMARY OF ARGUMENT

The federal constitution requires that a defendant 

sufficiently understand the proceedings against him to 

be able to assist in his own defense. Furthermore, the 

Texas Code of Criminal Procedure provides that an 

interpreter be sworn for an accused in a criminal 

proceeding.

In the case at bar, the uncontroverted facts are 

that Appellant was determined to be in need of an 

interpreter for both the plea hearing and motion to 

adjudicate guilt hearing and that an interpreter was 

appointed and assisted Appellant. The uncontroverted 

facts also establish that Appellant was not afforded an 

interpreter for Appellant’s intake interview with the 

100th Judicial District Community Service and Corrections 

Department where the Order of Conditions of Community 

Supervision were reviewed with Appellant. Moreover, the 

Order of Conditions of Community Supervision were 

written entirely in the English language.

19
Appellant was denied his due process right to a fair 

trial guaranteed under the Fourteenth Amendment to the 

United States Constitution because Appellant was not 

provided an interpreter through every phase of 

Appellant’s trial. Appellant was further denied his 

Sixth Amendment right under the United States 

Constitution to confront the witnesses against him when 

Appellant was not provided an interpreter through every 

phase of Appellant’s trial.

ARGUMENT

POINT OF ERROR NUMBER ONE

APPELLANT WAS DENIED DUE PROCESS PROVIDED BY THE 

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION 

AND THE RIGHT TO CONFRONT HIS ACCUSERS UNDER THE SIXTH 

AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN HE WAS 

NOT PROVIDED AN INTERPRETER TO REVIEW HIS CONDITIONS OF 

PROBATION DURING HIS INTAKE INTERVIEW WITH THE 100TH

JUDICIAL DISTRICT COMMUNNITY SERVICE AND CORRECTIONS 

DEPARTMENT. (ENTIRE RECORD).

For purposes of brevity and convenience that portion 

of this brief entitled “Statement of the Case” and 

“Statement of the Facts” is resubmitted hereunder in its 

entirety in support of these points of error.

20
Appellate courts must apply an abuse of discretion 

standard in reviewing whether a trial court took 

adequate steps to ensure a defendant sufficiently 

understands the proceedings to assist in his own 

defense. Linton v. State, 275 S.W.3d 493, 502 (Tex. 

2009). Article 38.30 of the Texas Code of Criminal 

Procedure requires that if a court determines that a 

person charged with a crime does not speak the English 

language, then an interpreter must be sworn to interpret 

for the person charged. TEX. CODE CRIM. PROC. ANN. art. 

38.30 (West 2014). If a defendant cannot hear or does 

not speak English well enough to understand the trial 

proceedings or communicate with counsel, fundamental 

fairness and due process of law require that an 

interpreter be provided to translate between English and 

the accused’s own language. Linton at 500. The Sixth 

Amendment to the United States Constitution guarantees 

an accused the right to confront the witnesses against 

him which includes the right to understand the testimony 

and proceedings. Garcia v. State, 149 S.W.3d (Tex. 

21
2004). A trial court has continuing jurisdiction of a 

case which imposes conditions of probation and the 

probation revocation hearing is an extension of the 

original sentencing portion of the trial. Cobb v. 

State, 851 S.W.2d 871, 874 (Tex. 1993). “Where the 

judgment or order of probation contain clerical errors, 

the defendant can challenge the particulars of the order 

at the probation revocation hearing.” Id. Unlike the 

case at bar, this Honorable Court has previously noted

that the providing of an interpreter to review the 

conditions of probation to a non-English speaking 

defendant cures possible error. Gonzalez v. State, No. 

07–12–00210–CR, 2013 WL 6044451 (Tex. App.—Amarillo 

2013)(mem. op., not designated for publication).

In this case, the fact that Appellant was not given 

an interpreter during the review of his conditions of 

probation is uncontroverted. The review of the 

conditions of probation is an extension of the 

sentencing by the trial court. The importance of an 

understanding of the conditions of probation cannot be 

22
understated and is arguably one of the most important 

steps of the process of a person being placed on 

probation. The appointment of an interpreter cannot be 

waived and the need for an interpreter was clearly 

recognized by the trial court as evidenced by the trial 

court’s appointment of an interpreter for Appellant 

during Appellant’s two hearings before the court. 

Appellant was denied due process and confrontation of 

his accusers when he was not afforded an interpreter to 

explain his conditions of probation. Had Appellant 

been provided an interpreter to explain his conditions 

of probation, Appellant would have fully understood 

what was expected of him; moreover, Appellant could 

have filed a motion for new trial or requested 

additional services if he knew he could not 

successfully complete and abide by the conditions 

imposed on him. Texas law required that Appellant be 

assisted by an interpreter during the review of his 

conditions of probation with the 100th Judicial District 

Community Service and Corrections Department, an 

23
extension of the sentencing portion of the trial 

process, and no interpreter was present to assist 

Appellant.

Therefore, since Appellant was denied due process

and the right to effectively confront his accusers, the 

trial court’s judgment should be reversed and remanded.

PRAYER

WHEREFORE, PREMISES CONSIDERED, the Appellant 

respectfully prays that the judgment of the trial court 

below be reversed and remanded to the trial court for a 

ruling consistent with this Honorable Court’s 

determination.

Respectfully submitted,

BIRD, BIRD & RABE

ATTORNEYS AT LAW

P.O. BOX 1257

CHILDRESS, TEXAS 79201

BY: /s/ Dale A. Rabe, Jr.

DALE A. RABE, JR.,

ATTORNEY FOR APPELLANT

TELEPHONE NO.: 940-937-2543

FACSIMILE NO.: 940-937-3431

E-MAIL: birdbirdrabe@gmail.com

STATE BAR NO.: 24027638

24
CERTIFICATE OF COMPLIANCE

I hereby certify that the above and foregoing 

Appellant’s Brief is 3,275 words in its completion, 

signed on this the 18th day of May, 2015, in accordance 

with the rules governing same.

/s/ Dale A. Rabe, Jr.

DALE A. RABE, JR.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the 

foregoing Appellant’s Brief was delivered as indicated 

below on this the 18th day of May, 2015, to the 

following:

Mr. Luke Inman VIA E-SERVICE

800 West Avenue, Box 1

Wellington, Texas 79095

E-Mail: luke.inman@windstream.net

Mr. Jesus Rivera Davila VIA U.S. MAIL

TDCJ #50108575

810 FM 2821

Huntsville, Texas 77349

/s/ Dale A. Rabe, Jr.

DALE A. RABE, JR.

25