                                                                                     PD-1091-15
                                                                   COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                 Transmitted 12/18/2015 4:56:01 PM
                           CAUSE NO. PD-1091-15                   Accepted 12/19/2015 11:39:12 AM
                                                                                    ABEL ACOSTA
                                                                                            CLERK
                 IN THE COURT OF CRIMINAL APPEALS
                      FOR THE STATE OF TEXAS

                                    *****

             BEDROS NOBAR MINASSIAN, Petitioner / Appellant

                                       VS.

               THE STATE OF TEXAS, Respondent / Appellee

                                    *****

              On Petition from a Decision of the Court of Appeals
                for the Fifth District of Texas, Dallas Division
                         in Cause No. 05-13-00936-CR


                     MOTION FOR REHEARING OF
                PETITION FOR DISCRETIONARY REVIEW


TO THE HONORABLE JUDGES OF SAID COURT:

      COMES NOW, BEDROS NOBAR MINASSIAN, the Petitioner / Appellant,

and pursuant to Rule 79.1 of the Texas Rules of Appellate Procedure files this his

Motion for Rehearing of the Petition for Discretionary Review timely filed on

September 16, 2015. In support of said motion, counsel would show the following

substantial intervening circumstances for the granting of Petitioner’s Motion for

Rehearing:


                                                        December 18, 2015


                                        1
                                        I.

      The Court of Appeals reviewed the transcript and some of the evidence (the

Petitioner’s “probation file” was offered and allowed into evidence over the

Petitioner’s objection, but was not made part of the appellate record) of the Trial

Court’s proceeding and determined that the State met its burden of proving that the

Petitioner violated the terms of his community supervision.

                                        II.

                          GROUNDS FOR REVIEW

      1.    The Court of Appeals erred in upholding the Trial Court’s finding where

            there was no evidence that the person before the Court was the same

            person that was placed on probation.

      2.    The Court of Appeals erred in upholding the Trial Court’s finding that

            the State met its burden of proving that the Petition violated the terms

            of his community supervision by traveling outside Dallas County

            without having first obtained written permission by admitting “into”

            evidence an unmarked probation file under the guise of a custodian of

            the business record exception to the hearsay rule.

                                       III.

                        REASONS FOR REHEARING

      The basis of the Petitioner’s Motion for Rehearing is the Court’s failure to

apply the proper standard. The Court relied on Johnson v. State, 386 S.W.3d 347

                                         2
(Tex.App.-Amarillo 2012, no pet.) in stating that the Petitioner waived his challenge

to the identity issue. The proper standard would have been the “no evidence”

standard set out in Cobb v. State, 851 S.W.2d 871 (Ct. Crim. App. 1993). The Court

of Criminal Appeals in Cobb clearly demonstrates that identity is an element that

must be affirmatively proved.

                                         IV.

                                    ANALYSIS

      The Appellate Court ruled that “the State must still prove the probationer’s

identity but failure to do so will not result in error on appeal unless the probationer

raises the issue at trial.” Johnson v. State, 386 S.W.3d 347, 350 (Tex.App.-Amarillo

2012, no pet.). However, the Appellate Court relied on the wrong legal standard.

The proper standard is a “no evidence” standard. Where, as here, the Trial Court had

no evidence that the Defendant before it was the same Defendant who was placed on

probation and given the Conditions of Probation in 2008. The proper Appellate Court

ruling should be reversal. Especially where the Court of Criminal Appeals explicitly

addresses the necessity of proving the violation. Cobb v. State, 851 S.W.2d 871

(1993).

      The Appellate Court cites Johnson as standing for the premises that failure to

raise identity waives the issue. That is not accurate. Johnson states “the record here,

therefore contains evidence to support the Trial Court’s conclusion that the State

established by a preponderance of the evidence that the appellant is the individual

                                          3
who was placed on community supervision by order signed April 23, 2003, for

murder in trial court cause number 44,703-B ... The Trial Court did not abuse its

discretion by finding that a preponderance of the evidence established that appellant

was the individual subject to the terms and conditions of the 2003 order placing him

on community supervision.”

      There was no evidence at the revocation hearing to establish that the man in

court is the same man given the conditions of probation and placed on probation in

2008. Especially absent the testimony from the Petitioner’s Probation Officer.

      Without the file that was discussed, there is no way to know exactly what was

done or not done by the Community Supervision Officer vis-a-vis its Probationer.

What can be said with certainty is that the testifying witness, Mr. Pacheco, had no

personal or first-hand knowledge regarding the Petitioner. Therefore, his hearsay

testimony has no evidentiary value as to any of the elements of the alleged violation

of traveling outside the county. Merely because the probation revocation proceedings

are not a jury trial does not excuse the State or the Trial Court from following

evidentiary rules and the law. Mr. Pacheco gave hearsay from “duplicates” (unknown

originals) in a probationer’s file, a file that was never offered into evidence, much less

marked and numbered as an exhibit. Further, that file appeared to be, in part, a paper

file and, in part, a computer file. Finally, nothing from that file made its way into the

record for the Trial Court or the Appellate Court to review. As such, Mr. Pacheco’s

improper hearsay testimony can only be treated as having no evidentiary value.

                                            4
Therefore, the State’s proof of a violated probation condition fails as a matter of law

under the no-evidence standard.

      This Court must insist by its rulings that courts follow rules and that people not

be sent to prison when the courts fail to follow those rules. A review of the Appellate

Court’s ruling will clarify and reinforce a trial court’s necessity of following the law

in probation revocation proceedings.

                              PRAYER FOR RELIEF

      The Petitioner respectfully prays that this Court grant this Motion for

Rehearing of Petition for Discretionary Review, after briefing and argument, reverse

the Court of Appeals’ opinion, and reinstate his probation.

                                        Respectfully submitted,

                                        /s/ Thomas G. Pappas
                                        _______________________________
                                        THOMAS G. PAPPAS
                                        TEXAS BAR CARD No.15455300
                                        BURLESON PATE & GIBSON, L.L.P.

                                        900 Jackson Street, Suite 330
                                        Dallas, Texas 75202
                                        Telephone: (214) 871-4900
                                        Facsimile: (214) 871-7543
                                        Email: tpappas@bp-g.com

                                        COUNSEL FOR PETITIONER /
                                        APPELLANT BEDROS NOBAR
                                        MINASSIAN




                                           5
                           CERTIFICATE OF SERVICE

      This will certify that a copy of the foregoing was delivered via electronic filing
and/or certified mail, return receipt requested to the following:

Susan Hawk                                            Lisa C. McMinn
Dallas County District Attorney's Office              State Prosecuting Attorney
133 N. Riverfront Blvd., LB 19                        P.O. Box 13046
Dallas, Texas 75207                                   Austin, Texas 78711

DATED the 18th day of December, 2015.

                                        /s/ Thomas G. Pappas
                                        _______________________________
                                        THOMAS G. PAPPAS




                                           6
