                                                                          ACCEPTED
                                                                     07-14-00408-CR
                                                        SEVENTH COURT OF APPEALS
                                                                  AMARILLO, TEXAS
                                                               5/18/2015 10:36:11 PM
                                                                    Vivian Long, Clerk


                   NO. 07-14-00408-CR

                IN THE COURT OF APPEALS            FILED IN
                                            7th COURT OF APPEALS
                                                AMARILLO, TEXAS
           FOR THE SEVENTH DISTRICT OF   TEXAS
                                            5/18/2015 10:36:11 PM
                                                  VIVIAN LONG
                   AT AMARILLO, TEXAS                CLERK
________________________________________________________

             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
              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




                              6
                       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 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

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
