                                                                            ACCEPTED
                                                                       12-14-00225-CR
                                                           TWELFTH COURT OF APPEALS
                                                                        TYLER, TEXAS
                                                                 2/23/2015 11:41:44 PM
                                                                          CATHY LUSK
                                                                                CLERK

             NUMBER 12-14-00225-CR
                                                       FILED IN
                                                12th COURT OF APPEALS
IN THE TWELFTH DISTRICT COURT OF                APPEALS
                                                     TYLER, TEXAS
              TYLER, TEXAS                      2/23/2015 11:41:44 PM
                                                     CATHY S. LUSK
                                                         Clerk

                 FATIMA RAHMAN,
                       Appellant

                            v.

              THE STATE OF TEXAS,
                        Appellee

   From the 114th District Court of Smith County, Texas
            Trial Cause Number 114-1451-10


                   STATE’S BRIEF


     ORAL ARGUMENT NOT REQUESTED

                 D. MATT BINGHAM
                Criminal District Attorney
                 Smith County, Texas

                   AARON REDIKER
                Assistant District Attorney
          State Bar of Texas Number 24046692
           Smith County Courthouse, 4th Floor
                   Tyler, Texas 75702
                 Phone: (903) 590-1720
                  Fax: (903) 590-1719
           Email: arediker@smith-county.com
                                               TABLE OF CONTENTS


Index of Authorities ..................................................................................................2


Statement of Facts ....................................................................................................3


Summary of Argument .............................................................................................4


Standard of Review...................................................................................................4


I.Issue One: Appellant waived any error in the imposition of appointed
attorney fees as court costs by failing to raise the issue on direct appeal from
the order originally placing her on community supervision. ...............................4
Argument...................................................................................................................4


II.Issues Two and Three: By failing raise the alleged defect in the State’s
application to revoke her community supervision in a timely motion to quash,
appellant failed to preserve any error for review. .................................................6
Argument...................................................................................................................6


Certificate of Compliance .........................................................................................9


Certificate of Service ................................................................................................9




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                                                  INDEX OF AUTHORITIES



Texas Cases
Flournoy v. State, 589 S.W.2d 705 (Tex. Crim. App. 1979)............................................. 4
Fuller v. State, 253 S.W.3d 220 (Tex. Crim. App. 2008) ................................................... 7
Gibson v. State, 516 S.W.2d 406 (Tex. Crim. App. 1974) ................................................. 7
Gordon v. State, 575 S.W.2d 529 (Tex. Crim. App. 1978) ................................................ 8
Grantham v. State, 547 S.W.2d 286 (Tex. Crim. App. 1977) .......................................... 8
Guinn v. State, 163 Tex. Crim. 181 (Tex. Crim. App. 1956) ............................................ 7
Isabell v. State, 494 S.W.2d 572 (Tex. Crim. App. 1973).................................................. 4
Kinard v. State, 477 S.W.2d 896 (Tex. Crim. App. 1972) ................................................. 7
Labelle v. State, 720 S.W.2d 101 (Tex. Crim. App. 1986) ................................................ 7
Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999) ................................................ 5
Martinez v. State, 493 S.W.2d 954 (Tex. Crim. App. 1973) ............................................ 7
Peoples v. State, 566 S.W.2d 640 (Tex. Crim. App. 1978)................................................ 8
Rodriguez v. State, 951 S.W.2d 199 (Tex. App.—Corpus Christi 1997, no pet.).... 8
Spruill v. State, 382 S.W.3d 518 (Tex. App.—Austin 2012, no pet.) ........................... 7
Vance v. State, 485 S.W.2d 580 (Tex. Crim. App. 1972) ................................................... 8
Wiley v. State, 410 S.W.3d 313 (Tex. Crim. App. 2013) ................................................... 6


Texas Rules
Tex. R. App. P. 33.1(a) ................................................................................................................... 7




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                           NUMBER 12-14-00225-CR


            IN THE TWELFTH DISTRICT COURT OF APPEALS
                          TYLER, TEXAS


                                FATIMA RAHMAN,
                                    Appellant

                                          v.

                             THE STATE OF TEXAS,
                                   Appellee

             From the 114th District Court of Smith County, Texas
                      Trial Cause Number 114-1451-10


                                 STATE’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

   Comes now the State of Texas, by and through the undersigned Assistant Criminal

District Attorney, respectfully requesting that this Court overrule appellant’s alleged

issues and affirm the judgment of the trial court in the above-captioned cause.


                                STATEMENT OF FACTS

   Appellant has stated the essential nature of the proceedings and the evidence

presented at trial (Appellant's Br. 3-4). In the interest of judicial economy, any other




                                           3
facts not mentioned therein that may be relevant to the disposition of appellant's issues

will be discussed in the State's arguments in response.


                              SUMMARY OF ARGUMENT

   Appellant has failed to preserve any error for review in all three of her alleged

issues, as she did not raise the erroneous assessment of appointed attorney fees as court

costs on direct appeal from the original order imposing community supervision, and

she did not raise the defect in the application to revoke through a timely motion to

quash.


                                STANDARD OF REVIEW

   "The only question legitimately before this Court on a probation revocation

proceeding is whether or not there was an abuse of discretion in the trial court,"

Flournoy v. State, 589 S.W.2d 705, 709 (Tex. Crim. App. 1979) (quoting Isabell v.

State, 494 S.W.2d 572, 573-574 (Tex. Crim. App. 1973)).


I. ISSUE ONE: Appellant waived any error in the imposition of appointed
attorney fees as court costs by failing to raise the issue on direct appeal from
the order originally placing her on community supervision.

                                      ARGUMENT

   In her first issue, appellant argues that the trial court abused its discretion by

imposing appointed attorney fees as court costs and that the Smith County District



                                           4
Clerk erred by including these fees in the itemized bill of costs (Appellant’s Br. 6-11).

“[A] defendant placed on ‘regular’ community supervision may raise issues relating to

the conviction, such as evidentiary sufficiency, only in appeals taken when community

supervision is originally imposed. That is, such issues may not be raised in appeals

filed after ‘regular’ community supervision is revoked.” Manuel v. State, 994 S.W.2d

658, 661 (Tex. Crim. App. 1999) (citations omitted).

   After appellant entered a negotiated plea of “guilty” to the charge of felony driving

while intoxicated, the trial court found her guilty of the offense as charged in the

indictment, sentenced her to confinement for ten years in the Texas Department of

Criminal Justice—Institutional Division, suspended the sentence for a term of seven

years under numerous conditions of supervision, and ordered appellant to pay court

costs in the amount of $694.00 (Clerk’s R. at 19-24). On 23 July 2014, the trial court

entered its judgment revoking appellant’s community supervision and sentencing her

to confinement for five years (Id. at 68-70). Neither the judgment nor the withdrawal

order reflects the imposition of any court costs against appellant following the

revocation of her community supervision (Id.). Further, the itemized bill of costs

prepared by the Smith County District Clerk after appellant’s revocation, showing total

costs in the amount of $394.00 and a $0.00 balance, does not list attorney fees among

the court costs assessed (Id. at 75). If any appointed attorney fees were assessed



                                           5
against appellant at the time she was initially placed on community supervision,

appellant forfeited the error by failing to raise it on direct appeal of the original order

imposing community supervision. Wiley v. State, 410 S.W.3d 313, 318 (Tex. Crim.

App. 2013). As appellant failed to preserve the error of which she now complains for

the first time, on appeal from the revocation of her supervision, her first issue should

be overruled. Id.


II. ISSUES TWO AND THREE: By failing raise the alleged defect in the State’s
application to revoke her community supervision in a timely motion to quash,
appellant failed to preserve any error for review.

                                       ARGUMENT

   In her second and third issues, appellant argues that the trial court abused its

discretion in revoking appellant’s community supervision based on an unsigned

application to revoke (Appellant’s Br. 12-15). Appellant’s supervision officer signed

the application, which was filed on 8 July 2014, but not the prosecutor (Clerk’s R. at

62). However, appellant did not file a motion to quash the application to revoke based

on this defect, object at the revocation hearing, or file a motion for new trial. Texas

Rule of Appellate Procedure 33.1 provides in pertinent part that, “[a]s a prerequisite

to presenting a complaint for appellate review, the record must show that the complaint

was made to the trial court by a timely request, objection, or motion that stated the

grounds for the ruling that the complaining party sought from the trial court with



                                            6
sufficient specificity to make the trial court aware of the complaint, unless the specific

grounds were apparent from the context; and . . . the trial court ruled on the request,

objection, or motion, either expressly or implicitly; or refused to rule on the request,

objection, or motion, and the complaining party objected to the refusal.” Tex. R. App.

P. 33.1(a). “It has repeatedly been held that even constitutional guarantees can be

waived by failure to object properly at trial.” Gibson v. State, 516 S.W.2d 406, 409

(Tex. Crim. App. 1974). “Failure to preserve error at trial forfeits the later assertion

of that error on appeal. In fact, almost all error - even constitutional error - may be

forfeited if the appellant failed to object.” Fuller v. State, 253 S.W.3d 220, 232 (Tex.

Crim. App. 2008).

   Not surprisingly then, the sufficiency of a motion to revoke community supervision

may not generally be challenged for the first time on appeal. Martinez v. State, 493

S.W.2d 954, 955 (Tex. Crim. App. 1973); Kinard v. State, 477 S.W.2d 896, 897-898

(Tex. Crim. App. 1972); Guinn v. State, 163 Tex. Crim. 181 (Tex. Crim. App. 1956).

While jurisdictional defects may be raised at any time, “motions to revoke probation

do not invoke the jurisdiction of the court, as do indictments or informations; rather,

revocation jurisdiction is retained by the trial court in which the defendant was granted

probation.” Labelle v. State, 720 S.W.2d 101, 106 (Tex. Crim. App. 1986). See also

Spruill v. State, 382 S.W.3d 518, 520-22 (Tex. App.—Austin 2012, no pet.)



                                            7
(revocation of regular community supervision affirmed even though trial court had

proceeded on wrongly titled “Motion to Proceed with an Adjudication of Guilt"). Thus,

“[t]he pleadings of a motion to revoke probation need not meet the requirements of an

indictment. It is enough that the pleadings give the defendant fair notice of the

allegations against him so that he may prepare a defense.” Peoples v. State, 566 S.W.2d

640, 642 (Tex. Crim. App. 1978) (citing Grantham v. State, 547 S.W.2d 286 (Tex.

Crim. App. 1977)). Therefore, as no jurisdictional issue is involved and appellant did

not timely raise the defect in a motion to quash the application to revoke, she has failed

to preserve any error for review, and her second and third issues should be overruled.

Gordon v. State, 575 S.W.2d 529, 531 (Tex. Crim. App. 1978); Vance v. State, 485

S.W.2d 580, 582 (Tex. Crim. App. 1972); Rodriguez v. State, 951 S.W.2d 199, 204

(Tex. App.—Corpus Christi 1997, no pet.).




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                                       PRAYER

   WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the

Court overrule appellant’s alleged issues and affirm the judgment of the 114th District

Court of Smith County, Texas, in the above-captioned cause.

                                              Respectfully submitted,

                                              D. MATT BINGHAM
                                              Criminal District Attorney
                                              Smith County, Texas

                                              /s/ Aaron Rediker
                                              Aaron Rediker
                                              Assistant District Attorney
                                              SBOT #: 24046692
                                              100 North Broadway, 4th Floor
                                              Tyler, Texas 75702
                                              Office: (903) 590-1720
                                              Fax: (903) 590-1719 (fax)
                                              arediker@smith-county.com


                           CERTIFICATE OF COMPLIANCE

   Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned attorney
certifies that the word count for this document is 1,216 words as calculated by
Microsoft Word 2013.

                                              /s/ Aaron Rediker
                                              Aaron Rediker


                             CERTIFICATE OF SERVICE

   The undersigned hereby certifies that on this 23rd day of February 2015, the State’s
Brief in the above-numbered cause has been electronically filed, and a legible copy of

                                          9
the State's Brief has been sent by email to James W. Huggler Jr., attorney for appellant,
at jhugglerlaw@sbcglobal.net.

                                                /s/ Aaron Rediker
                                                Aaron Rediker




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