                                                                         ACCEPTED
                                                                     13-14-00522-CR
                                                     THIRTEENTH COURT OF APPEALS
                                                            CORPUS CHRISTI, TEXAS
                                                                 5/4/2015 1:36:35 PM
                                                                  DORIAN RAMIREZ
                                                                              CLERK




              No. 13-14-522-CR
                                        FILED IN
                                13th COURT OF APPEALS
         IN THE COURT OF APPEALS
                             CORPUS CHRISTI/EDINBURG, TEXAS
 FOR   THE THIRTEENTH DISTRICT OF5/4/2015
                                   TEXAS  1:36:35 PM
             AT CORPUS CHRISTI    DORIAN E. RAMIREZ
                                         Clerk



           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
                                     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.




                                           8
                                      PRAYER

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

of the trial court be affirmed.


                                  Respectfully submitted,
                                    Douglas K. Norman
                                  /s/
                                  ___________________
                                  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.

                                    Douglas K. Norman
                                  /s/
                                  ___________________
                                  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




                                         10
