                                                                                ACCEPTED
                                                                            03-15-00433-CR
                                                                                    7814253
                                                                 THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                      11/13/2015 9:57:44 AM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK


                     No. 03-15-00433-CR
                                                           FILED IN
                                                    3rd COURT OF APPEALS
                   In the Texas Court of Appeals         AUSTIN, TEXAS
                      Third District, at Austin     11/13/2015 9:57:44 AM
                                                        JEFFREY D. KYLE
                      Hector Hato Laboy,                     Clerk

                           Appellant

                                  v.

                      The State of Texas,
                           Appellee

    Appeal from the County Court at Law No. 4 of Travis County
                Cause Number D-1-DC-13-204642

                        STATE’S BRIEF


                                 Rosemary Lehmberg
                                 District Attorney
                                 Travis County

                                 Angie Creasy
                                 Assistant District Attorney
                                 State Bar No. 24043613
                                 P.O. Box 1748
                                 Austin, Texas 78767
                                 (512) 854-9400
                                 Fax (512) 854-4810
                                 Angie.Creasy@traviscountytx.gov
                                 AppellateTCDA@traviscountytx.gov

Oral argument is not requested
                                     Table of Contents

Index of Authorities............................................................................. ii
Summary of the State’s Argument........................................................1
Standard of Review.............................................................................. 3
Argument ............................................................................................. 3
 Reply Point One: The evidence is legally sufficient to show that
 Appellant committed a terroristic threat. ......................................... 3
 Reply Point Two: Appellant has not shown ineffective assistance of
 counsel. ............................................................................................. 5
Prayer ...................................................................................................7
Certificate of Compliance and Service ................................................. 8




                                                       i
                               Index of Authorities

    Cases
Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006)................... 3
Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003) .................7
Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009) ................ 5, 6
Strickland v. Washington, 466 U.S. 668 (1984) ................................. 5

    Statutes
Tex. Penal Code § 22.07....................................................................... 3




                                                 ii
                        No. 03-15-00433-CR

                     In the Texas Court of Appeals
                        Third District, at Austin

                        Hector Hato Laboy,
                             Appellant

                                   v.

                         The State of Texas,
                              Appellee

     Appeal from the County Court at Law No. 4 of Travis County
                 Cause Number D-1-DC-13-204642

                          STATE’S BRIEF


To the Honorable Third Court of Appeals:

   Now comes the State of Texas and files this brief in response to

Appellant’s brief.


                Summary of the State’s Argument

   Point One: The motion to revoke probation alleged that Appellant

committed a new offense of terroristic threat. Appellant argues that

the evidence is legally insufficient to show that he intended to place

anyone in fear of imminent serious bodily injury.




                                        1
   Reply: Considering the surrounding circumstances and the lower

burden of proof in a revocation hearing, the trial court did not abuse

its discretion in finding that Appellant committed the offense of

terroristic threat. Additionally, the court’s judgment should be upheld

because there are several other independent grounds for revocation.

   Point Two: Appellant claims that he received ineffective

assistance of counsel because his attorney did not make a hearsay and

confrontation clause objection to testimony about a criminal mischief

offense alleged in the motion to revoke.

   Reply: It is not clear that a hearsay or confrontation clause

objection would have been sustained, but in any case, there is no

harm because the testimony was cumulative of previously-admitted

testimony. There is also no harm because the court had multiple

other grounds for revocation. Additionally, trial counsel has not had

an opportunity to defend herself. For all of these reasons, Appellant

has not shown that counsel was ineffective, and the court’s judgment

should be affirmed.




                                     2
                        Standard of Review

   A trial court’s order revoking probation is reviewed for an abuse of

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

2006).


                              Argument

Reply Point One: The evidence is legally sufficient to show
that Appellant committed a terroristic threat.

   The State filed a motion to revoke Appellant’s probation, which

alleged that Appellant had committed a new offense of terroristic

threat (among other things). CR 61. The State had the burden to

prove the terroristic threat by a preponderance of the evidence.

Rickels, 202 S.W.3d at 763-64.

   A person commits the offense of terroristic threat if he threatens

to commit any offense involving violence to any person or property

with intent to place any person in fear of imminent serious bodily

injury. Tex. Penal Code § 22.07.

   Appellant does not dispute that he called his ex-girlfriend Cassie

and threatened to kill her friend Jakuri, but Appellant argues that the

evidence is legally insufficient to show that he intended to place



                                     3
anyone in fear of imminent serious bodily injury because Appellant

made the threat in a single phone call, he did not elaborate, he did not

say that he was looking for Jakuri and would kill him when he found

him, and Appellant had already left the victims’ house.

   Appellant fails to account for the surrounding circumstances:

Appellant made the threat on the same night that he slashed Jakuri’s

tires. 2RR 15. Appellant made the threat soon after the police stopped

and questioned him about the tire slashing, so he knew that Jakuri

had called the police, and he knew that he was facing criminal

penalties, including possible prison time, for his actions. 2RR 10-12.

Appellant was last seen only two blocks away from the victims’ house.

2RR 14. Appellant has a history of violence. 2RR 18; CR 16. And

Appellant did not say anything to indicate that the threat was not

imminent. To the contrary, the point of the threat was to cause Cassie

and Jakuri immediate fear. In fact, Jakuri was afraid for himself and

his kids, who were also at the house. 2RR 14.

   Considering the circumstances, as well as the lower burden of

proof in a revocation hearing, the trial court did not abuse its




                                     4
discretion in finding that Appellant committed the offense of

terroristic threat.

   Even assuming, for the sake of argument, that the evidence is

insufficient to prove terroristic threat, the court’s order revoking

probation should be upheld because only one sufficient ground is

needed to uphold the trial court’s order. Smith v. State, 286 S.W.3d

333, 342 (Tex. Crim. App. 2009). In this case, the trial court found

that Appellant 1) committed the offense of terroristic threat, 2)

committed the offense of criminal mischief, 3) tested positive for

cocaine, 4) tested positive for marijuana, and 5) failed to submit a

specimen as directed. CR 64. Because there are multiple independent

grounds for revoking probation, the court’s order should be upheld.


Reply Point Two: Appellant has not shown ineffective
assistance of counsel.

   In an ineffective assistance claim, the burden is on the appellant

to show by a preponderance of the evidence that (1) counsel's

performance was deficient, and (2) there is a reasonable probability

that, but for counsel’s errors, the result of the proceeding would have

been different. Strickland v. Washington, 466 U.S. 668 (1984).



                                      5
   Appellant claims that he received ineffective assistance of counsel

because his attorney did not make hearsay and confrontation clause

objections to Officer Lucas’s testimony that, “I originally started

talking to Jakuri and he was -- informed me of the criminal mischief

act, and he was showing me the tires.” 2RR 13.

   First, it does not appear that a hearsay or confrontation clause

objection would have been successful. What is the objectionable out-

of-court statement, exactly?

   Second, Appellant cannot show that this testimony harmed him

because Officer Lucas had already testified that he responded to a

criminal mischief call and that he personal observed the victim’s car

with all four tires slashed. 2RR 10-12. The complained-of testimony

did not add anything to this previously-admitted testimony.

   Third, Appellant cannot show that there is a reasonable

probability that, but for counsel’s errors, the result of the proceeding

would have been different because there were multiple grounds for

revocation. See Smith, 286 S.W.3d at 342-45. Indeed, the trial court

indicated that it would have revoked probation based on the

terroristic threat offense alone. 2RR 35-38.



                                      6
   Finally, trial counsel should not be denounced as ineffective

because she has not had an opportunity to defend herself. Rylander

v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).

   For all of these reasons, Appellant has not shown that counsel was

ineffective, and the trial court’s order revoking probation should be

upheld.


                               Prayer

   The State asks this Court to overrule Appellant’s points of error

and affirm the trial court’s judgment.


                              Respectfully submitted,

                              Rosemary Lehmberg
                              District Attorney
                              Travis County




                              Angie Creasy
                              Assistant District Attorney
                              State Bar No. 24043613
                              P.O. Box 1748
                              Austin, Texas 78767
                              (512) 854-9400
                              Fax (512) 854-4810
                              Angie.Creasy@traviscountytx.gov
                              AppellateTCDA@traviscountytx.gov

                                     7
             Certificate of Compliance and Service
   I certify that this brief contains 1,036 words. I further certify that,

on the 13th day of November, 2015, a true and correct copy of this

brief was served, by U.S. mail, electronic mail, facsimile, or

electronically through the electronic filing manager, to the

defendant’s attorney, John S. Butler, 700 Lavaca Street, Suite 1400,

Austin, Texas 78701.




                              Angie Creasy




                                      8
