                                                                                 PD-1627-14
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                             Transmitted 12/29/2014 9:05:12 AM
                                                               Accepted 12/30/2014 9:59:38 AM
                                                                                  ABEL ACOSTA
                             Cause No. PD-1627-14                                         CLERK

                             In the Court of Criminal
                                 Appeals of Texas


                             Michael Wade Riddle,
                                  Petitioner

December 30, 2014                       v.

                               The State of Texas,
                                  Respondent

                    On Review from Cause No. 02-14-00180-CR
                         in the Second Court of Appeals
                                Fort Worth, Texas


                      State’s Response to Petitioner’s PDR


                               Maureen Shelton
                     Wichita County Criminal District Attorney

          Anthony Bates                                Carey Jensen
  Asst. Criminal District Attorney             Asst. Criminal District Attorney
     Wichita County, Texas                         Wichita County, Texas
    State Bar No. 24076904                        State Bar No. 24083252
  Tony.Bates@co.wichita.tx.us                  Carey.Jensen@co.wichita.tx.us

                              900 Seventh Street
                           Wichita Falls, Texas 76301
                            (940) 766-8113 phone
                              (940) 716-8530 fax

                    Attorneys for Respondent State of Texas

                         Oral Argument Not Requested
To the Court of Criminal Appeals:

      Pursuant to Rule 68.9 of the Rules of Appellate Procedure, the State

submits its reply to Appellant’s petition for discretionary review. The State

makes this reply in order to briefly address arguments set forth by

Appellant in his petition.

                   Statement Regarding Oral Argument

      The State is not requesting oral argument in this case.

                                 Argument

      The State respectfully requests this Court deny Appellant’s petition

because (1) the Petitioner expressly waived his right to closing argument

prior to the trial court’s announcement of the sentence; and (2) the

probation condition that required the Petitioner to successfully complete

sex offender treatment counseling was not modified; therefore, Tex. Crim.

Proc. Code Ann. Art 42.12 §10(e) was not triggered.

     Petitioner expressly waived his right to closing argument in the
disposition phase of trial.

      Petitioner argues that the trial court refused to allow closing

arguments on sentencing. Petitioner asserts that he did make an objection

prior to the trial court pronouncing sentence and further that he was “not

required to formally make a request again or except to the court’s ruling.”

(PDR at 7)
                                     2
      Petitioner was represented by his court-appointed counsel, Brennon

Brady, at the sentencing hearing.1 Mr. Brady did make an objection prior to

the pronouncement of sentence. However, Petitioner misleads this Court

by insinuating that the objection pertained to closing arguments. (PDR at 5,

7) Immediately preceding the trial court’s denial of Petitioner’s motion for

continuance, Mr. Brady stated, ““…there’s really nothing left for us [to do]

other than hear the Court’s sentence in this case. And I’m prepared to hear

the sentence and Mr. Riddle just would like to ask for a continuance so that

[another attorney] would be present at the sentencing.” (R.R. 5:6) This

constituted an express waiver of the right to closing argument by the

Petitioner.

              The probation condition at issue was not modified.

      The condition at issue required Petitioner to “remain in the Sexual

Abuse Treatment Program until the program [had] been successfully

completed, as determined by the treatment specialist…” (C.R. 61) This

condition did not specify who the treatment specialist would be or describe

the program in any way, except by calling it the Sexual Abuse Treatment

Program. As such, a change in provider or even the program itself did not



1
 Despite repeated references to Mr. Brady as a fill-in attorney, he was in fact the
Petitioner’s attorney of record at the time of trial. (C.R. 70)
                                            3
constitute a modification of the condition, so long as it remained the Sexual

Abuse Treatment Program.

     This is not to say that the State could have required Petitioner to

participate in an unrelated program without proper modification simply by

labeling that unrelated program the “Sexual Abuse Treatment Program.”

Clearly, this was not such a situation. The program, regardless of changes

in provider, really was always the Sexual Abuse Treatment Program, and

nothing in the record indicates evidence to the contrary. As such, the only

way for Petitioner to continue in the program as required by the probation

condition was to continue with the new treatment provider.

                                  Prayer

     The State prays that the Court deny Appellant’s petition for

discretionary review.

                                      Respectfully submitted,

                                      Maureen Shelton
                                      Criminal District Attorney
                                      Wichita County, Texas

                                      /s/Anthony Bates
                                      Anthony Bates
                                      Asst. Criminal District Attorney
                                      Wichita County, Texas
                                      State Bar No. 24076904
                                      Tony.Bates@co.wichita.tx.us



                                      4
                                        /s/Carey Jensen
                                        Carey Jensen
                                        Asst. Criminal District Attorney
                                        Wichita County, Texas
                                        State Bar No. 24083252
                                        Carey.Jensen@co.wichita.tx.us

                                        900 Seventh Street
                                        Wichita Falls, Texas 76301
                                        (940) 766-8113 phone
                                        (940) 766-8177 fax


                          Certificate of Compliance

      I certify that this document contains 523 words. The body text is in

14 point font, and the footnote text is in 12 point font.

                                            /s/Carey Jensen



                            Certificate of Service

      I certify that on December 29, 2014, a true and correct copy of the

above document has been forwarded Paul Francis via electronic service to

pfrancis@birch.net as well as the State Prosecuting Attorney, Lisa C.

McMinn, via electronic service to information@spa.texas.gov.

                                            /s/Carey Jensen




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