                    PD-0881-15

                 No. ______________________

                           IN THE
           COURT OF CRIMINAL APPEALS OF TEXAS
                 SITTING AT AUSTIN, TEXAS
       _______________________________________________

          RICHARD SCOTT CRAWFORD, APPELLANT

                              v.

               THE STATE OF TEXAS, APPELLEE
       _______________________________________________

     APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
       _______________________________________________

 FROM THE SEVENTH COURT OF APPEALS, SITTING AT AMARILLO
     HONORABLE BRIAN QUINN, CHIEF JUSTICE, PRESIDING
      (UNPUBLISHED OPINION BY CHIEF JUSTICE QUINN)
       (SEVENTH COURT OF APPEALS NO. 07-13-00108-CR)
      (LUBBOCK COUNTY TRIAL COURT NO. 2004-407,817)
        _______________________________________________

                      RODERIQUE S. HOBSON, JR.
                      State Bar No. 09744900
                      816 Main Street
                      Lubbock, Texas 79410
                      Tel: 806/762-6030
                      Fax: 806/763-3220

                      Attorney for Appellant

                      July 15, 2015


ORAL ARGUMENT REQUESTED
                                                   July 17, 2015
                              1
                                         TABLE OF CONTENTS

Table of Contents ...................................................................................................... 2

Index of Authorities ................................................................................................... 3

Statement Regarding Oral Argument ........................................................................ 4

Statement of the Case ................................................................................................ 4

Statement of Procedural History ............................................................................... 5

                                  Sole Question Presented for Review

Did the Court of Appeals err when it affirmed the trial court’s arbitrary and
capricious revocation of Appellant’s probation where the State failed to prove any
violations that occurred after the trial court previously exercised its discretion to
allow Appellant to continue on probation? ............................................................... 6

Reasons for Granting Review .................................................................................... 6

Argument and Authorities ......................................................................................... 8

Prayer for Relief ...................................................................................................... 15

Certificate of Service ............................................................................................... 16

Certificate of Compliance........................................................................................ 16

Appendix A (Court of Appeals Slip Opinion) ............................................................i

Appendix B (Appellant’s Motion for Rehearing) .................................................... ii




                                                            2
                                      INDEX OF AUTHORITIES

CASES                                                                                                         PAGE

Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008) ........................................ 14

Lisenba v. Calfiornia, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941) ............... 12

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ............................. 14

Rogers v. State, 640 S.W.2d 248 (Tex. Crim. App. 1982) ...................................... 10

Webb v. State, 161 Tex. Crim. 442, 278 S.W.2d 158 (1955) .................................. 12

Wester v. State, 542 S.W.2d 403 (Tex. Crim. App. 1976) ................................ 11, 12




CONSTITUTIONAL AMENDMENTS, STATUTES AND RULES

U.S. CONST. Amend. 5......................................................................................... 8, 14

U.S. CONST. Amend. 14....................................................................................... 8, 14

Texas Penal Code §§ 22.02 ....................................................................................... 4

Tex. R. App. P. 66.3 .................................................................................................. 7

Tex. R. App. P. 68.2 .................................................................................................. 6




                                                           3
              STATEMENT REGARDING ORAL ARGUMENT

      Appellant requests oral argument because the issues presented herein can

best be addressed in a question-and-answer format at oral argument. Appellant

attempted to fully explain the main issue in this Petition while keeping it as brief as

possible, but it could be further clarified during oral argument.

                          STATEMENT OF THE CASE

      On December 21, 2004, Appellant was charged via a two-count indictment

with committing the second degree felony offense of aggravated assault on or

about November 11, 2004, in violation of Texas Penal Code §§ 22.02(a) (1) and

(2) (Vernon 2003) (CR 5). On March 17, 2005 the defendant pleaded guilty to the

charge and was placed on deferred adjudication probation for a term of 10 years.

(CR 18). In 2012 the State filed a motion to proceed with adjudication of guilt

containing several allegations that were the subject of previous attempts to revoke

Appellant’s probation in a motion to proceed with adjudication of guilt that was

dismissed in 2011. The trial court revoked Appellant’s probation based upon the

2011 allegations and sentenced Appellant to eight years imprisonment.

      Prior to the revocation hearing the Defense objected to the use of previously

alleged-and-resolved violations of the Appellant’s probation in the current hearing

as a violation of Appellant’s right to due process of law. This is because if no new

                                          4
violations occurred (or were even alleged) after the 2011 motion to proceed was

dismissed, then essentially the trial court reversed its own discretion to continue

Appellant on probation in a completely arbitrary and capricious manner.

                    STATEMENT OF PROCEDURAL HISTORY

      On May 7, 2014, the Seventh Court of Appeals issued an unpublished per

opinion and judgment affirming the Appellant’s probation revocation in the trial

court and overruling his sole appellate issue. (See, Appendix - Court of Appeals’

slip opinion at 3).1 On May 22, 2014, Appellant filed a Motion for Rehearing

contesting the intermediate court’s determination that the trial court did not abuse

its discretion in revoking Appellant’s probation. (See, Appendix – Motion for

Rehearing). On May 30, 2014, the court denied Appellant’s Motion for Rehearing

without issuing a further opinion.

      However, Appellant’s counsel failed to timely inform Appellant of his right

to seek discretionary review following the intermediate court’s mandate. Appellant

filed a Writ of Habeas Corpus claiming that counsel’s failure to inform him of his

right to seek review constituted ineffective assistance of counsel. On May 20,

2015, this Court issued an opinion granting Appellant’s Writ of Habeas Corpus and


        1
            Crawford v. State, No. 07-13-00108-CR, 2013 Tex. Ap. LEXIS 13146 (Tex. App. –
                  Amarillo October 22, 2013) (not designated for publication).
                                              5
issued a mandate on June 15, 2015.2

      This Petition for Discretionary Review is timely filed since it is being filed

within thirty days of the mandate granting Appellant’s Writ of Habeas Corpus.3

                  SOLE QUESTION PRESENTED FOR REVIEW

ISSUE ONE:            Did the Court of Appeals err when it affirmed the trial court’s
                      arbitrary and capricious revocation of Appellant’s probation
                      where the State failed to prove any violations that occurred after
                      the trial court previously exercised its discretion to allow
                      Appellant to continue on probation?

                       REASONS FOR GRANTING REVIEW

      The ruling by the Seventh Court of Appeals sanctioned an arbitrary and

capricious decision by the trial court to revoke Appellant’s probation where the

trial court previously exercised its discretion not to revoke Appellant’s probation

when the same allegations were brought before it. In other words, the trial court

reversed its own decision approximately eighteen months later based upon

absolutely no evidence of additional violations of Appellant’s probation. The

intermediate court focused on the procedural circumstances surrounding the

exercise of the trial court’s discretion instead of the fact that once that discretion

has been exercised, it is a denial of due process of law to suddenly reverse course


      2
          Ex parte Crawford, No. WR-64,596-03 (Tex. Crim. App. June 15, 2015).
      3
          See Tex. R. App. P. 68.2 (Vernon 2013).
                                              6
without proof of any new violations. This creates the risk for absurd results and a

lack of repose for any person who is allowed to continue on community

supervision after a motion to revoke supervision is dismissed.

      Thus, this is an important question of constitutional law that must be settled

by this Court4. Furthermore, by allowing a trial court to reverse itself without the

presentation of new evidence the Seventh Court of Appeals so far departed from

accepted and well-settled tenets of fundamental fairness and due process as to call

for an exercise of this Court’s discretion.5




      4
          See, Tex. R. App. P. 66.3(b).
      5
          See, Tex. R. App. P. 66.3(f).
                                           7
                      ARGUMENT AND AUTHORITIES

      Appellant’s argument to the intermediate court was premised upon a denial

of substantive due process of law in violation of the Fifth and Fourteenth

Amendments to the United States Constitution. On October 12, 2012 the State of

Texas filed a Motion to Proceed with Adjudication of Guilt alleging that Appellant

violated his probation by committing the class B misdemeanor offense of

harassment on or about September 9, 2012 in Haskell County, Texas. (CR 24). The

Order for Capias to Issue that was signed by the trial court stated, “the Court

further takes judicial knowledge of all documents, orders, the judgment and other

matters in this above entitled and numbered cause, the same having been heard

and duly considered, the Court is of the opinion that the facts and information set

out in the said Motion to Proceed with Adjudication of Guilt are sufficient to

establish probable cause for the issuance of said capias.” (CR 25) (emphasis added

in bold).

      On October 31, 2012 the State filed its First Amended Motion to Proceed

with Adjudication of Guilt in which it added several allegations of other violations

of Appellant’s probation. (CR 30-31). On November 19, 2012 the State filed its

Second Amended Motion to Proceed with Adjudication of Guilt in which it alleged

even more violations of Appellant’s probation. (CR 35-36).

                                         8
      Several of the allegations in the first and second amended motions to

proceed with adjudication of guilt were previously the subject of earlier attempts to

revoke Appellant’s probation. (RR vol. 4, p. 158). In fact, a February 3, 2011

Motion to Proceed with Adjudication of Guilt that was essentially incorporated by

reference into the State’s 2012 motions contained the only violations that the trial

court found to be “true” and upon which it based its revocation decision. (RR vol.

4, pp. 158-159). However, the 2011 motion to proceed was dismissed by order of

the trial court on July 21, 2011. (RR vol. 4, p. 142). The trial court’s order stated:

      On this the 21st day of July, A.D. 2011, came on to be heard the
      Motion of the Assistant Criminal District Attorney of Lubbock
      County, Texas, to set aside the Motion to Proceed with Adjudication
      of Guilt heretofore filed in this cause, and it being the opinion of the
      Court that there is sufficient grounds for setting same aside;
      therefore, IT IS ORDERED, ADJUDGED AND DECREED that the
      Motion to Proceed with Adjudication of Guilt in this cause, heretofore
      filed, to-wit: on February 3, 2011, be and is hereby set aside and is
      held for naught. IT IS FURTHER ORDERED that the Defendant
      forthwith be discharged from custody hereunder. The Probation is to
      remain in full force and effect. (RR vol. 4, p. 142) (emphasis added
      in bold).

      Prior to the November 20, 2012 probation revocation hearing, Appellant’s

counsel argued to the trial court that the allegations that were previously disposed

of by the July 21, 2011 dismissal were not properly before the court. (RR vol. 2,




                                           9
pp. 9-15). Appellant’s counsel quoted this Court’s language from Rogers v. State6

that “It would be the epitome of arbitrariness for a Court to first conduct a hearing

on the alleged violations and to exercise its discretion to return the probationer to

probation, whether by a continuance of the hearing, or by a continuance of the

probation, and then decide several months later to exercise its discretion in the

opposite fashion by revoking the probation without a determination of a new

violation.” (RR vol. 2, p. 12).

       The Seventh Court of Appeals ignored the fact that the trial court had

exercised its discretion once before on these alleged violations and instead focused

on the procedural aspects of whether a formal hearing took place. 7 The

intermediate court also disregarded the plain language of the trial court’s written

proclamations contained within the Order for Capias to Issue that it took judicial

notice of the entire file and “heard and duly considered” the facts and evidence set

forth in the State’s Motion to Proceed with Adjudication, and that on July 21,

2011the trial court “heard” the Motion to Dismiss with a footnote stating, “That

verbiage appears to be boilerplate incorporated by the party who drafted and

submitted the order to the trial court. Though it alludes to a prior hearing, the trial

       6
         640 S.W.2d 248, 252 (Tex. Crim. App. 1982)
       7
         Op. at 2, “But outside the scope of that prohibition are situations wherein no plea was
made to, hearing held on, or evidence received on the prior motion [to revoke probation].”
                                                10
court iterated at the hearing on the 2012 motion that it ‘did not have a hearing, the

evidence regarding the allegations in the [2011] Motion to Proceed to

Adjudicate.”8

       Even if the above-referenced orders signed by the trial court contain

“boilerplate” language, the trial court would still have to make certain findings

based upon some evidence in order to sign them. If what the intermediate court is

saying is true, then the role of a trial court in issuing warrants and dismissing

motions to revoke probation is nothing more than that of an inanimate rubber

stamp unless there happens to be a formal hearing.9

       This Court previously rejected this purely ministerial characterization in

Wester v. State10 in which the Court held that “when a revocation proceeding has

been had and the defendant continued on probation in the discretion of the court

(although there was an adequate basis for revocation demonstrated at the hearing),

the continuation cannot subsequently be arbitrarily withdrawn at the whim of the

trial court or upon mere fact of an arrest. To hold otherwise would violate due



       8
          Op. at 3, n. 1.
       9
          See Appellant’s Motion for Rehearing for further examples of where the trial court
actively participated in the decision to file each previous Motion to Proceed with Adjudication of
Guilt and all of the evidence that the trial court heard and considered outside of a formal
courtroom hearing.
        10
           542 S.W.2d 403 (Tex. Crim. App. 1976).
                                               11
process, due course of law of the land and fundamental fairness.”11

      Wester is particularly compelling in the case before the Court since the

initial hearing in that case merely consisted of the defendant entering a plea of

“true” to one of the allegations in the motion to revoke probation.12 Once Wester

entered his plea the trial court merely followed the State’s recommendation to

allow him to continue on probation and no other evidence to support the violations

was ever presented.13 Thus, in the context of what is fundamentally fair for the

purposes of substantive due process, the deciding factor should simply be whether

the trial court previously exercised its discretion to continue, modify, or revoke

probation, and not on the procedural aspects surrounding the exercise of the court’s

discretion.

      The denial of due process is the result of the failure to observe the

fundamental fairness that is essential to the very concept of justice.14 While “due

process” remains a malleable concept, it has always required that an accused in a

criminal case be accorded the fundamental fairness necessary to the due

administration of justice.15

      11
         Id. at 406.
      12
         Id. at 404.
      13
         Id.
      14
         Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941).
      15
         Webb v. State, 161 Tex. Crim. 442, 278 S.W.2d 158, 160 (1955).
                                             12
      In this case, the State of Texas suspected that Appellant had committed the

misdemeanor criminal offense of harassment and filed a motion to proceed with

adjudication of guilt with the harassment claim as the lone alleged violation. (CR

24). At some point prior to the hearing on the State’s motion, the State began to

doubt its ability to prove that violation actually occurred, and then during the

hearing the State abandoned it completely. (RR vol. 2, p. 165). As a result, the

foundation of the entire proceeding vanished from underneath it and the State was

left with claims that had already been presented to the trial court in a previous

motion proceed and upon which the trial court had already exercised its discretion

by allowing Appellant to continue on his probation when it signed and approved

the July 21, 2011 Order to Dismiss Motion to Proceed with Adjudication of Guilt.

(RR vol. 4, p. 142).

      The inescapable fact is that nothing changed between the July 21, 2011 and

February 27, 2013 when the trial court signed the judgment revoking Appellant’s

probation and sentenced him to serve time in the penitentiary. As such, if no new

provable violation occurred then how can it possibly be fair for Appellant to have

his probation revoked a year and a half later?

      The ruling of the trial court and the subsequent affirmation by the

intermediate court creates a situation where a probationer can be accused of

                                         13
violating his probation during Year One of a ten-year probation. Then, if that

motion to proceed with adjudication of guilt is subsequently dismissed and no

other violations are even alleged to occur during the remainder of his probation, he

can still be revoked and sentenced to the penitentiary on the last day of

probationary term. That leads to an absurd result that violates all rational notions of

fundamental fairness.

         The bottom line is that on February 27, 2013 the trial court acted arbitrarily

and capriciously by reversing its July 21, 2001 decision to continue Appellant on

his probation without finding any credible evidence that any new violations had

occurred. 16 Therefore, Appellant’s right to substantive due process of law as

guaranteed by the Fifth and Fourteenth Amendments to the United States

Constitution was violated and the trial court’s order should be reversed by this

Court.




         16
            See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (holding that a
trial court abuses its discretion when it acts without reference to any guiding rules and principles,
or it acts in an arbitrary or capricious manner); see also Bigon v. State, 252 S.W.3d 360, 367
(Tex. Crim. App. 2008).
                                                 14
                            PRAYER FOR RELIEF

      For the reasons set out above, Appellant respectfully prays that this

Honorable Court grant this Petition for Discretionary Review, and upon

considering the merits of Appellant’s claim reverse the order of the trial court and

allow Appellant to complete his probation.


                                   Respectfully submitted,

                                   RODERIQUE S. HOBSON, JR.
                                   816 Main Street
                                   Lubbock, Texas 79410
                                   Tel: 806/762-6030
                                   Fax: 806/763-3220


                                   BY: /s/ Roderique S. Hobson, Jr.
                                      RODERIQUE S. HOBSON JR.
                                      SBN 09744900
                                      Attorney for Richard Scott Crawford




                                        15
                         CERTIFICATE OF SERVICE

         Service of the foregoing Brief for Appellant was made on July 15, 2015
by sending a copy via electronic mail to Jeff Ford of the Lubbock Criminal District
Attorney’s Office at jford@lubbockcda.com.



                                   /s/ Roderique S. Hobson, Jr.
                                   RODERIQUE S. HOBSON, JR.
                                   Attorney for Appellant




                      CERTIFICATE OF COMPLIANCE

         This is to certify that this document was prepared with Microsoft Word in

14 point font, and that, according to that program’s word count function, this

document contains 2,899 words (counting all parts of the document).



                                   /s/ Roderique S. Hobson, Jr.
                                   RODERIQUE S. HOBSON, JR.,
                                   Attorney for Appellant




                                        16
Envelope Details


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   Case Information
   Location                               Court Of Criminal Appeals
   Date Filed                             07/15/2015 02:00:27 PM
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   Attorney                               Roderique HobsonJr
   Firm Name                              Law Office of Rod Robson
   Filed By                               Cindy Tapia
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   Petition for Discretionary Review
   Filing Type                                                               EFile
   Filing Code                                                               Petition for Discretionary Review
   Filing Description                                                        Appellant's Petition for Discretionary Review
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Envelope Details

           07/17/2015 The petition for discretionary review does not contain the identity of Judge, Parties
   Other   01:33:47 and Counsel [Rule 68.4(a)]. You have ten days to tender a corrected petition for
           PM         discretionary review.
   Documents
   Lead Document             (Crawford, Scott) PDR .pdf                                 [Original]
   Attachments               appendix 1059309.pdf                                       [Original]
   Attachments               appendix2.pdf                                              [Original]




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