NO. 07 -14- 00 408

- 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**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 disqualificat ions, if necessary, herein:

**APPELLANT:** Jesus Rivera Davila TRIAL COUNSEL (Plea) : Hon
. James Mosley SBOT # 00797116 P.O. Box 1181 Stinnett , Texas 79 083 806

- 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

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- 2543 940

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- 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 79 095 806

- 447

- 0055 866

- 233

- 2738 (Facsimile) Luke.inman@windstream.net
**TRIAL JUDGE:** Hon. Stuart Messer P.O. Box 887 Clarendon, Texas 79226 806

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- 0122 806

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- 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 H IS INTAKE INTERVIEW WITH THE 100 TH JUDICIAL DISTRICT COMMUNNITY SERVICE AND CORRECTIONS DEPARTMENT. (ENTIRE RECORD). Argument 20 Prayer 24 4Certificate of Compliance 25 Certificate of Service 25

5**INDEX OF AUTHORITIES**
**STATUTES**

T EX . C ODE C RIM . P ROC . A NN . art. 38.30 (West 2014) 21
**CASE S**  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

6NO. 07

- 14

- 00 408

- 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 la w in the trial court below as follows: For convenience, the Appellant, Jesus Rivera Davila , and the Appellee, t he State of Texas, will hereinafter be referred to as the “Appellant” and the “State,” respectively, throughout this brief hereinafter.

For con venience 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 100 th 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 100 th Judicial District Attorney’s Office. A hearing on this matter was held on Novem ber 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 Tex as 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 W HEN HE WAS NOT PROVIDED AN INTERPRETER TO REVIEW HIS CONDITIONS OF PROBATION DURING HIS INTAKE INTERVIEW WITH THE 100 TH JUDICIAL DISTRICT COMMUNNITY SERVICE AND CORRECTIONS DEPARTMENT. (ENTIRE RECORD).

**STATEMENT OF**  **THE FACT**  **S** 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 , 201 2 , 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

.

9On April 22 , 2013, Ap pellant 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 t he 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 100 th 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 ot her State, the United States, 10or any governmental entity,” and “notify the Community Supervision Officer in charge of the case within forty

eight (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 intoxic ation 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
1 st day of May, 2013 , or as directed by the Communit y 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 100 th Judicial District Community 11Supervision Office on the 1 st day of each month, beginning the 1 st day of the first month after the date of this order ”; and (d) Condition 10 of the Order of Community Supervision was t hat the Appellant “ complete 400 hours of community service. 100 hours of community service by the 1 st day of October 2013; 100 hours of community service by the 1 st day of April 2014; 100 hours of community service by the 1 st day of October 2014; 100 hour s of community service by the 1 st day of April 2015 .” CR 28

. On March 7 , 201 4 , 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 App ellant’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 14 th day of October, 2013, in Polk County, Florida; and that Appellant committed the offense of “Possession of Drug Paraphernalia” on or about the 14 th day of October, 122013, in Polk County, Florida ; (b) that the Appellant violated condition 2 in that consumed cocaine on or about the 25 th day of May, 2013; and that Appellant consumed cocaine on or about the 3 rd day of August, 2013 ; (c) that Appellant violated condition 7 in that Appellant failed to report monthly by mail as directed to the 100 th Judicial District Community Supervision Officer assigned for the month of November 2013 ; and (d) that App ellant violated condition 10 in that Appellant failed to complete 100 hours of community service due by the 1 st 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

. Aga in, 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 1 4

. The State called Mark White, 100 th J udicial District Community Supervision Officer . RR 16 . Mark White 13testified 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 th e 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 condition s 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 14interpreter for the 100 th Judicial District Community
Su pervision 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 no n - 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 100 th Judicial District Community Supervision and Correct ions 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 cocai ne 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 15was 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 Appell ant 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 com plete by October 2013. RR 55. The State and Appellant rested on the adjud ication 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 16Condition 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, a s 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 e ffect 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.

17Appellant 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**S UMMARY 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 100 th Judicial District Community Service and Corrections Department where the Order of Conditions of Com munity Supervision were reviewed with Appellant. Moreover, the Order of Conditions of Community Supervision were written entirely in the English language.

19Appellant was denied his due process right to a fair trial guaranteed under the Fourteenth Amendmen t 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 h im 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 100 TH 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

. 20Appellate 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 38.3 0 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. T EX . C ODE C RIM . P ROC . A NN . 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 E nglish 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. Garci a v. State , 149 S.W.3d (Tex. 212004) . 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 201 3 )(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 impo r tance of an understanding of the conditions of probation cannot be 22understated 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 int erpreter 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 w as 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 probat ion with the 100 th Judicial District Community Service and Corrections Department, an 23extension 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 r ight 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 1 8 th day of May , 201 5 , 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 1 8 th day of May , 201 5 , 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 7 7349 /s/ Dale A. Rabe, Jr. DALE A. RABE, JR.

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