                                                                                                         ACCEPTED
                                                                                                       13-15-074-CR
                                                                                    THIRTEENTH COURT OF APPEALS
        FILED                                                                              CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS                                                                   9/15/2015 9:13:19 AM
        CORPUS CHRISTI                                                                             Dorian E. Ramirez
                                                                                                              CLERK
          9/15/15
DORIAN E. RAMIREZ, CLERK                    No. 13-15-074-CR
BY DTello
                                      IN THE COURT OF APPEALS RECEIVED IN
                                                             13th COURT OF APPEALS
                                FOR THE THIRTEENTH DISTRICT OF TEXAS
                                                          CORPUS  CHRISTI/EDINBURG, TEXAS
                                          AT CORPUS CHRISTI   9/15/2015 9:13:19 AM
                                                                       DORIAN E. RAMIREZ
                                                                            Clerk

                                             JOHN LOPEZ,
                                             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@nuecesco.com

                                               Attorney for Appellee


                                   ORAL ARGUMENT IS REQUESTED
                                    TABLE OF CONTENTS

INDEX OF AUTHORITIES .......................................................................... ii

SUMMARY OF THE ARGUMENT ..............................................................1

ARGUMENT ...................................................................................................2

Reply Point No. 1
The trial court acted within its discretion in revoking Lopez’s probation
based on judicial notice of prior testimony by which the trial court
found by a preponderance of the evidence that Lopez committed a
criminal offense in violation of the terms of his probation. .......................2

         I. The One-Violation Rule...................................................................2
         II. Proof of the Criminal Offense Violation. .....................................3

Reply Point No. 2.
The statutory requirement for proof of ability to pay did not apply
because technical violations were not the only ones alleged at the
revocation hearing. .......................................................................................6

Reply Point No. 3
The trial court did not err in refusing to credit Lopez’s present sentence
with time spent in prison on a separate offense before his probation was
revoked in the present case. ..........................................................................7

         I. Statement of Facts. ...........................................................................7
         II. Time Credits. ..................................................................................8
         III. Concurrent Sentencing. ................................................................8
         IV. Application. ....................................................................................9

PRAYER ....................................................................................................... 10

RULE 9.4 (i) CERTIFICATION .................................................................. 11

CERTIFICATE OF SERVICE ..................................................................... 11
                                  INDEX OF AUTHORITIES

                                                    Cases

Ashe v. Swenson, 397 U.S. 436 (1970). ...........................................................3

Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991). .............................7

Bradley v. State, 564 S.W.2d 727 (Tex. Crim. App. 1978). ....................... 3, 6

Ex parte Bynum, 772 S.W.2d 113 (Tex. Crim. App. 1989). ...................... 8, 9

Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437 (1886). .............................4

Gipson v. State, 428 S.W.3d 107 (Tex. Crim. App. 2014). .............................6

Jones v. State, 571 S.W.2d 191 (Tex. Crim. App. [Panel Op.] 1978). ............2

McDonald v. State, 608 S.W.2d 192 (Tex. Crim. App. 1980). .......................4

Moore v. State, 605 S.W.2d 924 (Tex. Crim. App. 1980). ..............................2

Moreno v. State, 22 S.W.3d 482 (Tex. Crim. App. 1999). ..............................4

Murphy v. State, 239 S.W.3d 791 (Tex. Crim. App. 2007)....................... 3, 4

United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S. Ct.
1099 (1984). ................................................................................................ 4, 5

Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006). ............................ 2

Russell v. State, 551 S.W.2d 710 (Tex. Crim. App. 1977). .............................4

Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009). ...............................2

Ex parte Taylor, 101 S.W.3d 434 (Tex. Crim. App. 2002). ............................4

Ex parte Wickware, 853 S.W.2d 571 (Tex. Crim. App. 1993). ......................9



                                                        ii
                                          Statutes & Rules
Tex. Code Crim. Proc. art. 42.03. ....................................................................8

Tex. Code Crim. Proc. art. 42.08. ....................................................................9

Tex. Code Crim. Proc. art. 42.12. ....................................................................6

Tex. R. App. P. 34.6. .......................................................................................5

43A Texas Practice, Criminal Practice and Procedure § 48:67. ....................4




                                                     iii
                             NO. 13-15-074-CR

JOHN LOPEZ,                             §    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:

                   SUMMARY OF THE ARGUMENT

      First Issue – Lopez’s acquittal under the higher burden of beyond a

reasonable doubt did not bar the trial court from considering the same

testimony as establishing his guilt by a preponderance for purposes of

revocation.

      Second Issue – Article 42.12 § 21 (c) requires the State to prove

ability to pay when “only” certain technical violations are alleged at the

revocation hearing, and thus does not apply to the present proceeding where

the State also alleged a separate-offense violation.

      Third Issue – Lopez was not entitled to have the prison time he was

serving on one concurrently running sentence credited to the second

sentence when his probation in that second case was later revoked.
                               ARGUMENT

                             Reply Point No. 1
The trial court acted within its discretion in revoking Lopez’s probation
based on judicial notice of prior testimony by which the trial court
found by a preponderance of the evidence that Lopez committed a
criminal offense in violation of the terms of his probation.

                        I. The One-Violation Rule.

      The trial court's decision to revoke probation is reviewed for an abuse

of discretion, and the evidence presented at a revocation hearing is reviewed

in the light most favorable to that decision. See Rickels v. State, 202 S.W.3d

759, 763 (Tex. Crim. App. 2006). The State must prove that a defendant

violated a condition of his probation by a preponderance of the evidence.

Rickels, 202 S.W.3d at 763–64.

      Proof of one violation of the terms and conditions of community

supervision is sufficient to support the revocation. Smith v. State, 286

S.W.3d 333, 342 (Tex.Crim.App.2009); Moore v. State, 605 S.W.2d 924,

926 (Tex. Crim. App. 1980). Therefore, in order to succeed on appeal, the

defendant must successfully challenge all of the trial court's findings that

support the revocation order. Moore, 605 S.W.2d at 926; Jones v. State, 571

S.W.2d 191, 193–94 (Tex. Crim. App. [Panel Op.] 1978).

      In the present case, in order to succeed on his challenge to revocation,

Lopez must prevail on both his first and second issues on appeal.


                                      2
                II. Proof of the Criminal Offense Violation.

      By his first issue on appeal, Lopez does not complain about the

manner in which the trial court took judicial notice of the prior testimony or

in general about the sufficiency of that testimony to show that he committed

an offense in violation of the terms of his probation, 1 but only that the trial

court should not have relied upon that testimony in view of the fact that

Lopez was acquitted of the underlying offense by the jury. In other words,

Lopez complains that the jury’s acquittal of the defendant collaterally estops

the State from using the testimony at trial to find true the allegation that he

committed the offense for purposes of the motion to revoke probation.

      The doctrine of collateral estoppel provides “that when an issue of

ultimate fact has once been determined by a valid and final judgment, that

issue cannot again be litigated between the same parties in any future lawsuit

relating to the same event or situation.” Murphy v. State, 239 S.W.3d 791,

794 (Tex. Crim. App. 2007) (citing Ashe v. Swenson, 397 U.S. 436, 445

(1970)).    To decide whether collateral estoppel bars a subsequent

prosecution, a court must determine (1) exactly what facts were necessarily


1
 The trial court may consider, as a basis for probation revocation, testimony
from a previous trial of the same defendant in the same court showing that
he committed a separate offense in violation of the terms of probation. See
Bradley v. State, 564 S.W.2d 727, 729 (Tex. Crim. App. 1978).
                                       3
decided in the first proceeding, and (2) whether those “necessarily decided”

facts constitute essential elements of the offense in the second trial. Murphy,

239 S.W.3d at 795; see Ex parte Taylor, 101 S.W.3d 434, 441 (Tex. Crim.

App. 2002).

      The Court of Criminal Appeals has long held that a prior finding of

not guilty in a criminal trial does not bar the State from proving the same

offense as a basis for revoking probation. Russell v. State, 551 S.W.2d 710,

714-15 (Tex. Crim. App. 1977) The jury verdict in the prior criminal trial

decides nothing more than that the State failed to prove him guilty beyond a

reasonable doubt, and does not foreclose the possibility that the same

testimony would be sufficient to show a probation violation under the lesser

standard of preponderance of the evidence. See Moreno v. State, 22 S.W.3d

482, 488 (Tex. Crim. App. 1999); McDonald v. State, 608 S.W.2d 192, 199

(Tex. Crim. App. 1980) (on rehearing); Russell, 551 S.W.2d at 714 (all

noting the difference between the two burdens of proof); see also 43A Texas

Practice, Criminal Practice and Procedure § 48:67.

      Moreover, Lopez’s reliance on Coffey v. United States, 116 U.S. 436,

6 S.Ct. 437 (1886), is misplaced. In United States v. One Assortment of 89

Firearms, 465 U.S. 354, 104 S. Ct. 1099 (1984), the Supreme Court later

disapproved of the reasoning in Coffey, holding that “an acquittal on


                                       4
criminal charges does not prove that the defendant is innocent; it merely

proves the existence of a reasonable doubt as to his guilt,” Id., 465 U.S. at

361, that “the jury verdict in the criminal action did not negate the

possibility that a preponderance of the evidence could show that [the

defendant committed the crime],” Id., 465 U.S. at 362, and that acquittal

thus does not bar actions based on that lesser burden of proof. Id.

      Accordingly, in the present case, the jury verdict of acquittal did not

prevent the trial court from considering the same testimony to find that

Lopez committed the crime in question under the lesser standard of

preponderance of the evidence.

      With regard to Lopez’s request for supplementation of the record with

a transcript of the prior testimony, although it may be within this Court’s

discretion to allow such supplementation, See Tex. R. App. P. 34.6(d),

Lopez fails to argue that the testimony in question was insufficient to prove

by a preponderance that he committed the offense in question and thus has

failed to provide a good reason to delay the present appeal with the

cumbersome procedure of preparing and filing a supplemental record and

another round of appellate briefs by the parties.

      However, should this Court determine that Lopez has in fact raised a

challenge to the sufficiency of the evidence to support revocation based on


                                       5
the separate offense, the State would agree that the proper procedure to

follow has been set out by the Court of Criminal Appeals as abatement for

the transcript of the testimony in question to be added as a supplemental

record. See Bradley v. State, 564 S.W.2d 727, 732 (Tex. Crim. App. 1978).

      Lopez’s first issue on appeal should be overruled.

                          Reply Point No. 2.
The statutory requirement for proof of ability to pay did not apply
because technical violations were not the only ones alleged at the
revocation hearing.

      The terms of Article 42.12 did not require the State to prove Lopez’s

ability to pay. That article provides, in pertinent part, that:

      In a community supervision revocation hearing at which it is alleged
      only that the defendant violated the conditions of community
      supervision by failing to pay community supervision fees or court
      costs ... , the state must prove by a preponderance of the evidence that
      the defendant was able to pay and did not pay as ordered by the judge.

Tex. Code Crim. Proc. art. 42.12. § 21 (c) (emphasis added).

      In the present case, the State not only alleged technical violations set

out in Section 21 (c), but also a separate-offense violation. Accordingly, the

statutory requirement to prove ability to pay simply did not arise here.

      The Court of Criminal Appeals has consistently held that a statute is

to be construed in accordance with the plain meaning of its text unless the

plain meaning leads to absurd results that the legislature could not have

possibly intended. See Gipson v. State, 428 S.W.3d 107, 108 (Tex. Crim.

                                        6
App. 2014); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

Had the legislature intended to extend the requirement to all technical

violations of this nature, it easily could have worded the statute to include all

such allegations. Nor is it absurd to make the requirement applicable only

when technical violations alone are alleged. The legislature may reasonably

have determined that it would be less of a burden to require such additional

proof from the State when only technical violations are alleged.

      Lopez’s second issue on appeal should be overruled.

                             Reply Point No. 3
The trial court did not err in refusing to credit Lopez’s present sentence
with time spent in prison on a separate offense before his probation was
revoked in the present case.

                            I. Statement of Facts.

      For the present DWI offense in Cause No. 11-CR-1593-C, on August

11, 2011, Lopez received a ten-year sentence, suspended for ten years,

which noted that it was to run “concurrently,” though there was no reference

to any other sentence to which it was to run concurrently. (CR p. 47)

      The next day, on August 12, 2011, in Cause No. 11-CR-1390-C,

Lopez was sentenced to five-years in prison for a separate DWI offense, also

simply noting that the sentence was to run “concurrently.” (Supp. CR p. 27)

      When Lopez probation for the present offense was revoked on

February 2, 2015, he was sentenced to seven years in prison and given time

                                        7
credit for 429 days, again noting simply that the sentence was to run

“concurrently.” (CR p. 65)

                              II. Time Credits.

      The Code of Criminal Procedure generally provides for time credit as

follows:

      In all criminal cases the judge of the court in which the defendant is
      convicted shall give the defendant credit on the defendant's sentence
      for the time that the defendant has spent: (1) in jail for the case, ….

Tex. Code Crim. Proc. art. 42.03, § (2)(a) (emphasis added). A person is

entitled to such credit only when he is being held “for the case” in which he

is seeking credit, as when a detainer or “hold” is lodged against him based

on the case for which he is seeking credit. See Ex parte Bynum, 772 S.W.2d

113, 114 (Tex. Crim. App. 1989).

                        III. Concurrent Sentencing.

      Separately, the Code of Criminal Procedure allows for concurrent or

consecutive sentences, in pertinent part, as follows:

      (a) When the same defendant has been convicted in two or more
      cases, judgment and sentence shall be pronounced in each case in the
      same manner as if there had been but one conviction. Except as
      provided by Sections (b) and (c) of this article, in the discretion of the
      court, the judgment in the second and subsequent convictions may
      either be that the sentence imposed or suspended shall begin when the
      judgment and the sentence imposed or suspended in the preceding
      conviction has ceased to operate, or that the sentence imposed or
      suspended shall run concurrently with the other case or cases, and
      sentence and execution shall be accordingly; ….

                                       8
      ….
      (c) If a defendant has been convicted in two or more cases and the
      court suspends the imposition of the sentence in one of the cases, the
      court may not order a sentence of confinement to commence on the
      completion of a suspended sentence for an offense.

Tex. Code Crim. Proc. art. 42.08.

                               IV. Application.

      In the present appeal, Lopez appears to suggest that serving time in

prison in Cause No. 11-CR-1390-C should count as serving time in prison

on the present sentence, and that he should get time credit for that prison

time. This argument misunderstands the nature of concurrent sentencing and

equates it with credit for time served.

      Simply because the sentences are running at the same time does not

mean that the prison time the defendant is serving on one sentence counts as

prison time on the other. Lopez has pointed to no legal authority to support

his argument.

      Moreover, under Article 42.03 time credit analysis, Lopez would only

be entitled to credit for pre-revocation time spent in prison if he were being

“simultaneously confined” both for the separate offense and for the present

offense. See Ex parte Wickware, 853 S.W.2d 571, 573 (Tex. Crim. App.

1993); Bynum, 772 S.W.2d at 114. Nothing in the present record suggests




                                          9
that Lopez was being confined for the present offense when he went to

prison on the separate offense.

      Nor does the prohibition in Article 42.08 (c) apply in the present case

where confinement on the non-suspended sentence began before completion

of the present suspended sentence and there was no stacking order.

      Lopez’s third issue on appeal should be overruled.

                                   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@nuecesco.com




                                       10
                      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 2,079.

                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman



                       CERTIFICATE OF SERVICE

      This is to certify that a copy of this brief was e-mailed on September

15, 2015, to Appellant’s attorney, Mr. Donald Edwards, mxlplk@swbell.net.



                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman




                                      11
