                           NUMBER 13-12-00176-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

JAMES ROBERT HUGHES,                                                     Appellant,


                                          v.


THE STATE OF TEXAS,                                                      Appellee.


                   On appeal from the 24th District Court
                        of Jackson County, Texas.


           MEMORANDUM OPINION ON REHEARING
  Before Chief Justice Valdez and Justices Benavides, and Longoria
      Memorandum Opinion on Rehearing by Justice Longoria
      By one issue, appellant, James Robert Hughes, appeals the trial court’s

revocation of his deferred adjudication community supervision and adjudication of guilt
on the charge of cruelty to livestock animals. See TEX. PENAL CODE ANN. § 42.09 (West

2011). We affirm. 1

                                              I. BACKGROUND

        On November 8, 2010, Hughes pled guilty to the offense of cruelty to livestock

animals. See id. The trial court deferred adjudication of guilt and placed Hughes on

deferred adjudication community supervision for a term of ten years. On April 6, 2011,

the State filed a petition to revoke alleging four violations of the terms and conditions of

Hughes’s community supervision. 2 Hughes was appointed counsel on April 20, 2011.

        On July 27, 2011, before the State’s petition was heard, Hughes appeared before

a grand jury and gave testimony regarding an incident that occurred on or about May

17, 2011, while Hughes was imprisoned or confined in a correctional or detention

facility. Before Hughes testified, the district attorney stated to Hughes on the record that

(1) he was under investigation for the felony offense of harassment of a public servant;

(2) he did not have to testify to anything that might tend to incriminate him; (3) anything

he said could and would be used against him in a court of law; (4) he had the right to

have an attorney present; (5) he must be truthful in his testimony or potentially face a

charge of aggravated perjury; and (6) he had the right to quit the questioning at any




        1
           On March 21, 2013, this Court issued a memorandum opinion and judgment affirming the trial
court’s judgment. See Hughes v. State, No. 13-12-176-CR, 2013 WL 1188034 (Tex. App.—Corpus
Christi Mar. 21, 2013, no pet. h.) (mem. op., not designated for publication). Subsequently, on April 22,
2013, Hughes filed a motion for rehearing, arguing that this Court should decide whether the trial court
erred in admitting into evidence statements Hughes made when he was questioned by the State before
the grand jury without notice to his attorney. The Court, having fully considered Hughes’s motion and the
contentions made therein, concludes that the motion should be denied. Accordingly, the motion is
denied. Nevertheless, we withdraw our prior memorandum opinion and judgment of March 21, 2013 and
issue this memorandum opinion and judgment in their place.
        2
            The State’s original petition was not included in the appellate record.



                                                       2
time. The district attorney asked Hughes if he understood those rights and still wanted

to testify, and Hughes said he did.

      The district attorney then had Hughes sign a written statement of rights, which

provided as follows:

      I, James Robert Hughes, having been summoned to appear before the
      Jackson County grand jury on 7/27/11, hereby state that I was advised of
      the following rights which I have:

           1) “Your testimony before this grand jury is under oath”;

           2) “Any material question that is answered falsely before the grand
              jury subjects you to being prosecuted for Aggravated Perjury”;

           3) “You have the right to refuse to make answers to any question, the
              answer to which would incriminate you in any manner;”

           4) “You have the right to have a lawyer present outside this chamber
              to advise you before making answers to questions you feel might
              incriminate you”;

           5) “Any testimony you give may be used against you at any
              subsequent proceeding”;

           6) “If you are unable to employ a lawyer, you have the right to have a
              lawyer appointed to advise you before making an answer to a
              question, the answer to which you feel might incriminate you”.

      I HEREBY understand these rights and knowingly, intelligently, and
      voluntarily waive such rights and request permission to testify before the
      Grand Jury.

      [signature of James Robert Hughes]

      DEFENDANT

The oral and written statement of rights provided by the State tracked the relevant

language of the Texas Code of Criminal Procedure. 3



      3
          The Texas Code of Criminal Procedure states in relevant part:



                                                  3
           Thereafter, Hughes testified before the grand jury and answered questions

regarding allegations that he committed the offense of harassment of a public servant

while on community supervision.

           On September 2, 2011, the State filed an amended petition to adjudicate

Hughes’s guilt alleging eight violations of the terms and conditions of Hughes’s

community supervision. 4 Included in the State’s amended petition was the following

allegation involving the subject matter of Hughes’s testimony before the grand jury:


           Prior to any questioning of an accused or suspected person who is subpoenaed to
           appear before the grand jury, the accused or suspected person shall be furnished a
           written copy of the warnings contained in Subsection (c) of this section and shall be given
           a reasonable opportunity to retain counsel or apply to the court for an appointed attorney
           and to consult with counsel prior to appearing before the grand jury.

TEX. CODE CRIM. PROC. ANN. art. 20.17(b) (West 2005).

           The warnings contained in Subsection (c) provide as follows:

           (1) “Your testimony before this grand jury is under oath”;

           (2) “Any material question that is answered falsely before this grand jury subjects you to
           being prosecuted for aggravated perjury”;

           (3) “You have the right to refuse to make answers to any question, the answer to which
           would incriminate you in any manner”;

           (4) “You have the right to have a lawyer present outside this chamber to advise you
           before making answers to questions you feel might incriminate you”;

           (5) “Any testimony you give may be used against you at any subsequent proceeding”;

           (6) “If you are unable to employ a lawyer, you have the right to have a lawyer appointed
           to advise you before making an answer to a question, the answer to which you feel might
           incriminate you.”

Id. art. 20.17(c).
           4
               The State’s Amended Petition for Revocation and Final Adjudication alleged in relevant part as
follows:

                    In support of the State’s Petition for Revocation and Final Adjudication, the State
           would show that the Defendant has violated the terms and conditions of said probation in
           the following respects, to-wit:

                   . . . Condition Number One (1) . . . “Commit no offense against the laws of this
           State or any other State or the United States of America.” . . .


                                                        4
The State would show to the Court that the said JAMES ROBERT
HUGHES violated Condition Number One (1) of his probation which
provided that he shall “Commit no offense against the laws of this State or
any other state or the United States of America.” The State would further
show to the Court that the said JAMES ROBERT HUGHES on or about
May 17, 2011 in Jackson County, Texas did then and there while
imprisoned or confined in a correctional or detention facility, to wit:
Jackson County Detention Facility, and with intent to assault, harass,
alarm or annoy another person, to-wit: Russell Durrant, a person JAMES
ROBERT HUGHES knew to be a public servant, to-wit: a Jailer with the
Jackson County Detention Facility, to contact the saliva of JAMES
ROBERT HUGHES, while Russell Durrant was lawfully discharging an
official duty in retaliation and on account of the exercise of Russell
Durrant’s official power and performance of an official duty, to-wit: by



         Condition Number Eleven (11) . . . “Report to the officer as directed by the Judge
or Officer by submitting an accurately completed and signed Monthly Report to the
Officer and cooperating with the Officer during said report and obeying all rules and
regulations of the Community Supervision and Corrections Department.” . . .

        Condition Number Fourteen (14) . . . “Abide by a 10:00 p.m. curfew every night.
The defendant shall be in the defendant’s home or place of residence before 10:00 p.m.
each night and shall not leave such home or place of residence between 10:00 p.m. and
5:00 a.m. without the written permission of the Officer. The written permission, when
issued, is to be kept on the defendant’s person when away from home or place of
residence.” . . .

       Condition Number Seventeen (17) . . . “Pay Court Costs in the amount of
$348.00 at $55.00 per month, with the first payment being due and payable on or before
January 8, 2011, and a like payment being due and payable on or before the same day of
each month thereafter until fully paid through the CACD having jurisdiction.” . . .

       Condition Number Eighteen (18) . . . “Pay a fee of $60.00 per month, each and
every month during the term of Community Supervision, with payments beginning
November 8, 2010 to the CSCD having jurisdiction.” . . .

        Condition Number Twenty-Four (24) . . . “Perform satisfactorily 300 Community
Service hours on or before July 8, 2012 through the Community Service Restitution
Project of the CSCD beginning January 8, 2011 at a minimum of 17 hours per month.” . .
.

         Condition Number Twenty-Five (25) . . . “Serve 30 days in the Jackson County
Jail with credit for time served beginning March 11, 2011 by 7:00 p.m.” . . .

         Condition Number Twenty-Eight (28) . . . “Submit a copy of your income tax
return filed with the IRS or Proof of Extension to the CSCD having jurisdiction by April
   th
15 of each year during the term of Community Supervision and bring your IRS Income
Tax Refund check to the CSCD having jurisdiction immediately upon receipt and endorse
the check to the CSCD to be applied to fees payable through the CSCD by the
defendant.”



                                            5
      spitting on the said Russell Durrant, in violation of Condition Number One
      (1) of his probation as aforesaid.

      Hughes pled not true to the alleged violations. The trial court held an evidentiary

hearing on the State’s amended petition and heard evidence regarding the eight alleged

violations of the terms and conditions of Hughes’s community supervision, including

testimony from Russell Durrant and a second corrections officer regarding the spitting

incident. During the hearing, the State also offered into evidence State’s Exhibit 32, an

audio recording of Hughes’s testimony in the grand jury proceeding in which Hughes

admitted to telling Durrant to “go fuck” himself and to spitting “at” him, and State’s

Exhibit 33, the written waiver of rights signed by Hughes prior to testifying before the

grand jury.   The trial court admitted the evidence over the following objection by

Hughes’s counsel:

      Your Honor, I’m going to object based on the fact that these statements
      were taken while the Defendant had a counsel of record and counsel was
      not notified of the statements and these were done during a custodial
      interrogation. I understand he waived these rights and there may be an
      issue whether they can be used in other cases, but I believe as far as this
      revocation hearing that he was questioned without an attorney present
      and he had an attorney at the time.

      The trial court found all the violations alleged in the State’s amended petition to

adjudicate to be true, revoked Hughes’s community supervision, adjudicated Hughes

guilty, and assessed a 20 year prison sentence. This appeal ensued.

                                      II. ANALYSIS

      In one issue, Hughes argues that the trial court erred in admitting into evidence

State’s Exhibit 32, the audio recording of Hughes’s grand jury testimony, and State’s

Exhibit 33, the written waiver of rights signed by Hughes prior to testifying before the

grand jury.



                                           6
A. Standard of Review

       We review a trial court’s order revoking community supervision for an abuse of

discretion.   Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) (citing

Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)). The State bears the

burden of showing by a preponderance of the evidence that the defendant committed a

violation of his community supervision conditions. Cobb v. State, 851 S.W.2d 871, 873

(Tex. Crim. App. 1993). If the State does not meet its burden of proof, the trial court

abuses its discretion in revoking the community supervision. Cardona, 665 S.W.2d at

493–94.

       Proof by a preponderance of the evidence of any one of the alleged violations of

the community supervision conditions is sufficient to support a revocation order.

Antwine v. State, 268 S.W.3d 634, 636 (Tex. App.—Eastland 2008, pet. ref’d) (citations

omitted). Thus, to obtain reversal of a revocation order, the appellant must successfully

challenge each ground on which the trial court relied to support revocation. Sterling v.

State, 791 S.W.2d 274, 277 (Tex. App.—Corpus Christi 1990, pet. ref’d) (citing Moore v.

State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980); Grim v. State, 656 S.W.2d 542,

543 (Tex. App.—Corpus Christi 1983, no pet.)).

B. Applicable Law

       Revocation proceedings “are judicial proceedings, to be governed by the rules

established to govern judicial proceedings.” Ex parte Doan, 369 S.W.3d 205, 212 (Tex.

Crim. App. 2012). “[F]ormal rules of evidence do apply, . . . [and] [t]he [Texas] Rules of

Evidence and the exclusionary rule to bar illegally seized evidence apply fully in a Texas

probation revocation hearing.” Id. at 210.




                                             7
C. Discussion

        In this case, we must decide whether the trial court erred in admitting into

evidence statements Hughes made when he was questioned by the State before the

grand jury without notice to his attorney. 5 The Texas Court of Criminal Appeals has

held that “[o]nly through notice to defense counsel may authorities initiate the

interrogation of an indicted and represented defendant.” Holloway v. State, 780 S.W.2d

787, 795 (Tex. Crim. App. 1989) (en banc). According to the court, “that counsel must

be notified of any attempt to interrogate his client was made clear in Powell v. Texas,

492 U.S. 680 (1989) (per curiam).” Id. Thus, in Holloway, the court held as follows:

        In the case before us, at the time of the police-initiated interrogation,
        appellant had been indicted for capital murder and had been appointed
        counsel. Appellant had met with counsel. The Sixth Amendment right to
        counsel had attached at the time appellant was indicted and the attorney-
        client relationship was established; as such, appellant’s unilateral waiver
        of his Sixth Amendment right was invalid despite appellant having
        received the required Miranda warnings.             Appellant’s subsequent
        confession was obtained in violation of his Sixth Amendment right to
        counsel and the trial court erred in refusing to suppress it.

Id. at 796.

        In this case, Hughes had been indicted for the offense of cruelty to livestock

animals and was placed on deferred adjudication community supervision. The State

then filed a motion to adjudicate guilt, which triggered Hughes’s Sixth Amendment right

to counsel, and counsel was appointed to represent Hughes in the revocation

proceeding. See Montejo v. State, 556 U.S. 778, 786 (2009) (“[O]nce the adversary

judicial process has been initiated, the Sixth Amendment guarantees a defendant the

right to have counsel present at all ‘critical’ stages of the criminal proceedings.”).


        5
          The State does not dispute the assertion by Hughes’s counsel that the questioning was initiated
without counsel’s knowledge or presence.


                                                   8
       The State contends that Hughes had no right to counsel because the questioning

before the grand jury pertained to a “completely separate offense” for which he had not

been indicted. See Wesbrook v. State, 29 S.W.3d 103, 117 (Tex. Crim. App. 2000)

(“This right to counsel is considered offense specific and cannot be invoked once for all

future prosecution.”). Although we agree that the offenses were separate, we conclude

that Hughes had a right to counsel because the State’s questioning of Hughes before

the grand jury constituted a “critical stage” of the criminal proceeding in which counsel

had been appointed to represent Hughes. See Montejo, 556 U.S. at 786.

       When the State initiated the questioning of Hughes before the grand jury, it

announced that Hughes was under investigation for the offense of harassment of a

public servant.   At that time, the State also knew that Hughes was on deferred

adjudication community supervision, one of the terms and conditions of which was that

Hughes commit no violation of any law of this State. The State also knew that Hughes

had been appointed counsel because he was accused of violating the terms and

conditions of his community supervision. The questioning of Hughes before the grand

jury constituted a “critical stage” of the revocation proceeding because the State’s

interrogation of Hughes incriminated him in violating the terms and conditions of his

community supervision by committing the offense of harassment of a public servant.

See id. (“Interrogation by the State is such a [critical] stage.”). Accordingly, we conclude

that Hughes had a right to counsel under the Sixth Amendment. See U.S. CONST.

amend VI.

       Among other things, the Sixth Amendment gave Hughes “the right to rely on

counsel as a ‘medium’ between him and the State.” Maine v. Moulton, 474 U.S. 159,




                                             9
176 (1985); see Thompson v. State, 93 S.W.3d 16, 25 (Tex. Crim. App. 2001) (“Thus, if

the right to counsel has attached as to a charged offense, and the police interrogate the

defendant in the absence of his counsel about matters that the police knew or should

have known might elicit incriminating evidence pertaining to the pending charges, the

Sixth Amendment right to counsel has been violated and such evidence is inadmissible

at the trial of those charges.”). Here, the State went directly to Hughes to initiate an

interrogation before the grand jury without giving notice to Hughes’s counsel. As noted

above, the State did obtain an oral and written waiver of Hughes’s right to counsel.

However, under circumstances such as these, courts have held that “an accused’s

unilateral waiver of his Sixth Amendment right is invalid.” Cloer v. State, 88 S.W.3d

285, 288 (Tex. App.—San Antonio 2002, no pet.); Upton v. State, 853 S.W.2d 548, 557

(Tex. Crim. App. 1993) (en banc) (“[W]hen an attorney-client relationship has been

established after a defendant’s Sixth Amendment right to counsel attaches, the police

may initiate interrogation only through notice to defense counsel. That was not done

here.    Therefore, the two statements were taken in violation of appellant’s Sixth

Amendment right to counsel.”) (citations omitted).

        Nevertheless, according to more recent cases, the Sixth Amendment does not

bar state-initiated interrogation of an accused who has previously asserted his right to

counsel. See Hughen v. State, 297 S.W.3d 330, 335 (Tex. Crim. App. 2009). Thus, “a

court can no longer presume that a waiver of a right to counsel executed after the right

to counsel has attached is invalid.” Flores v. State, 299 S.W.3d 843, 852 (Tex. App.—

El Paso 2009, pet. ref’d). “Formerly, once an accused requested the assistance of

counsel based on his Sixth Amendment right the police could not initiate any




                                           10
questioning or attempt to induce a waiver of his right to counsel for that police

interrogation and any waiver obtained was invalid.”        Id. at 851 (citing Michigan v.

Jackson, 475 U.S. 625, 635–36 (1986)).           However, in Montejo, the United States

Supreme Court overruled this bright-line rule. See Montejo, 556 U.S. at 797. The Court

rejected the notion that “no represented defendant can ever be approached by the State

and asked to consent to an interrogation.” Id. at 789 (emphasis in original). Under

current law, an accused must make a clear assertion of the right to counsel when the

State initiates interrogation and in that case no interrogation should take place. Flores,

299 S.W.3d at 852. In this case, there is no evidence that Hughes made any assertion

of the right to counsel when the State initiated his questioning before the grand jury.

       Furthermore, “[o]ur precedents also place beyond doubt that the Sixth

Amendment right to counsel may be waived by a defendant so long as a relinquishment

of this right is voluntary, knowing, and intelligent.” Id. “The defendant may waive the

right whether or not he is already represented by counsel; the decision to waive need

not itself be counseled.” Montejo, 556 U.S. at 853. “Waiver is demonstrated regarding

pretrial questioning if an accused decides voluntarily not to rely on his right to counsel

and that decision is made under the understanding that he could remain silent and

request a lawyer and that the State could use any statement he gave against him.”

Flores, 299 S.W.3d at 852. Here, the criteria for a valid waiver are met.

       State’s Exhibit 32, the audio recording of Hughes’s grand jury testimony, and

State’s Exhibit 33, the written waiver of rights signed by Hughes prior to testifying before

the grand jury, establish that the State advised Hughes orally and in writing that he had

a right not to testify, a right to have a lawyer present, and that any statement he gave




                                            11
would be used against him.        The record affirmatively demonstrates that Hughes

understood the foregoing admonishments and made a knowing, voluntary, and

intelligent choice to speak outside the presence of his lawyer. Moreover, Hughes does

not deny that he knowingly and voluntarily waived his right to have an attorney present.

      Hughes’s sole contention is that the State violated his right to counsel by

initiating the questioning without the knowledge or presence of counsel. As set forth

above, however, the Supreme Court has overruled the bright-line rule that once an

accused requested the assistance of counsel based on his Sixth Amendment right, the

State cannot initiate any questioning or attempt to induce a waiver of his right to counsel

for that interrogation and that any waiver obtained was invalid. See Montejo, 556 U.S.

at 797.   Accordingly, we reject Hughes’s contention that the waiver of his right to

counsel was invalid. On this record, Hughes has not established a violation of his Sixth

Amendment right to counsel or that the trial court erred in admitting into evidence

State’s Exhibits 32 and 33.

      Furthermore, Hughes has not challenged the sufficiency of the evidence to

support the trial court’s finding that he violated the terms and conditions of his

community supervision, as alleged by the State in its amended petition. Accordingly,

we conclude that Hughes has not demonstrated that the trial court abused its discretion

in revoking his community supervision. See Sterling, 791 S.W.2d at 277.

      Hughes’s issue is overruled.




                                            12
                                     III. CONCLUSION

       The judgment of the trial court is affirmed.




                                                 ___________________
                                                 NORA L. LONGORIA
                                                 Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
24th day of October, 2013.




                                            13
