                                                                  ACCEPTED
                                                             07-15-00249-CR
                                                SEVENTH COURT OF APPEALS
                                                          AMARILLO, TEXAS
                                                        12/9/2015 2:33:32 PM
                                                            Vivian Long, Clerk



            NO. 07-15-00249-CR

                                             FILED IN
                                      7th COURT OF APPEALS
     IN THE COURT OF APPEALS            AMARILLO, TEXAS
FOR THE SEVENTH DISTRICT OF TEXAS     12/9/2015 2:33:32 PM
                                           VIVIAN LONG
         AMARILLO, TEXAS                      CLERK


            RUDY CORTINAS
                    V.
         THE STATE OF TEXAS


   APPEALING THE TRIAL COURT'S JUDGMENT
          IN CAUSE NUMBER 1345818D
     FROM THE 432ND DISTRICT COURT OF
           TARRANT COUNTY, TEXAS
   HON. RUBEN GONZALEZ, PRESIDING JUDGE
            HON. ELIZABETH BERRY




      APPELLANT'S BRIEF


          RICHARD A. HENDERSON
       RICHARD A. HENDERSON, P.C.
  100 THROCKMORTON STREET, SUITE 540
         FORT WORTH, TEXAS 76102
                 (817) 332-9602
               (817) 335-3940fax
            State Bar No. 09427100
           richard@rahenderson.com
        ATTORNEY FOR APPELLANT


          Oral Argument Requested
                                          TABLE OF CONTENTS

Table of Contents                                                                                                          .i

List of Interested Parties........................................................................................ii,iii

Indexof Authorities..................................................................................................iv

IssuesPresented.........................................................................................................v

Issue For Review No. 1:
THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING
APPELLANT'S DEFERRED ADJUDICATION AND SENTENCING
APPELLANT TO SEVEN (7) YEARS IN PRISON . .............................................. v

Statementof the Case................................................................................................1

Summary of the Facts of the Case............................................................................2

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

Arguments and Authorities .......................................................................................4

Issue For Review No. 1: (Restated)
THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING
APPELLANT'S DEFERRED ADJUDICATION AND SENTENCING
APPELLANT TO SEVEN (7) YEARS IN PRISON ...............................................4


Prayer.........................................................................................................................6

Certificate of Compliance .........................................................................................7

Certificateof Service.................................................................................................7



                                                               1
                     LIST OF INTERESTED PARTIES

Rudy Cortinas
CID #0259844
Tarrant County Jail
100 N. Lamar Street
Fort Worth, Texas 76102
Appellant


Carl J. Lazarus
Assistant Criminal District Attorney - Trial Attorney
Jim Hudson
Assistant Criminal District Attorney —Revocation Hearing
District Attorney's Office
401 West Belknap
Fort Worth, Texas 76196-0201
Mr. Joe Shannon, Jr.
Former Tarrant County Criminal District Attorney
401 West Belknap
Fort Worth, Texas 76196-0201
Ms. Debra Windsor,
Assistant Criminal District Attorney
Post-Conviction
401 West Belknap
Fort Worth, Texas 76196-0201
Ms. Sharen Wilson,
Criminal District Attorney
Tarrant County, Texas
401 West Belknap
Fort Worth, Texas 76196-0201
Attorneys for the State




                                       11
William M. Harber
1424 Junior Drive
Dallas, Texas 75208
David Pearson
222 West Exchange, Suite 103
Fort Worth, Texas 76164
Trial Attorneys for Defendant

Jack Strickland
909 Throckmorton Street
Fort Worth, Texas 76102
Defense Attorney at Revocation Hearing

Richard A. Henderson
Richard A.Henderson, P.C.
100 Throckmorton Street, Suite 540
Fort Worth, Texas 76102
Attorney for Appellant




                                     111
                         LIST OF INTERESTED PARTIES

                             INDEX OF AUTHORITIES

CASES:

Bennett v. State, 476 S.W.2d 281, 282 (Tex.Crim.App. 1972) .................................4

Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App. 1984) ............................ 4

Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1981)............. 5

Jenkins v. State, 740 S.W.2d 435,437 (Tex.Crim.App.1983) ................................. 5

Langford v. State, 578 S.W.2d 737, 739 (Tex.Crim.App. 1979)............................... 5

Ross v. State, 523 S.W.2d 402, 403 (Tex.Crim.App.1975)...................................... 5

Saxton v. State, 804 S.W.2d 910, 912 n. 3 (Tex.Crim.App.1991)............................ 5

Taylor v. State, 604 S.W.2d 175, 179 (Tex.Crim.App. [Panel Op.] 1980) .............. 5

Wilson v. State, 645 S.W.2d 932, 934 (Tex.App.—Dallas 1983, no pet.) ...............4




                                              lv
                     ISSUES PRESENTED

                  ISSUE FOR REVIEW NO. ONE


    THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING

APPELLANT'S DEFERRED ADJUDICATION AND SENTENCING

APPELLANT TO SEVEN (7) YEARS IN PRISON.




                              im
                 IN THE COURT OF APPEALS FOR THE
                     SEVENTH DISTRICT OF TEXAS
                            AMARILLO

RUDY CORTINAS,                             §
      APPELLANT                            §
                                           §
V.                                         §    NO. 07-15-00249-CR
                                           §
THE STATE OF TEXAS,                        §
      APPELLEE

            APPEALED FROM CAUSE NUMBER 1345818D
              FROM THE 432ND DISTRICT COURT OF
                   TARRANT COUNTY, TEXAS
     THE HONORABLE, RUBEN GONZALEZ, JR., JUDGE PRESIDING
              THE HONORABLE, ELIZABETH BERRY

TO THE HONORABLE COURT OF APPEALS:

                        STATEMENT OF THE CASE

      This is an appeal (CR-52, 53) from pleas of true from a deferred

adjudication probation revocation (CR 43, 47). Appellant had previously pleaded

guilty to possession of a controlled substance under 1 gram, methamphetamine

enhanced to a second degree felony (CR-5,17,26). A Petition to Proceed to

Adjudication was filed. (CR-36). The allegations included failure to report for

October, November, and December of 2014 and failure to complete an outpatient

care program. (RR 3:6-37). The plea was true to the violations (CR-43,47),



                                       1
(RR 2:13, 18-19). The court found the allegations to be true and adjudicated

Appellant guilty and assessed seven (7) years punishment in the Institutional

Division of the Texas Department of Criminal Justice. (CR-47), (RR 2: 68-70).



                 SUMMARY OF THE FACTS OF THE CASE

      The facts of the underlying possession case do not appear in the record. The

summary of facts will be limited to the reasons and extenuating circumstances

surrounding the violations of the deferred adjudication probation.

      Appellant pleaded true to the violations of not reporting for three months

and not completing an outpatient drug program. (RR 2:18-19). After the pleas of

true the State did not offer any evidence as to the violations. (RR 2: 21). Appellant

waived his right not to testify and took the stand in his own behalf and stated he

wanted to give explanations for the violations (RR 2:22-23). Appellant explained

that beginning in September, 2014, he began taking interferon shot treatments for

hepatitis C that continued through December of 2014. Appellant had to ride a bus

to the John Peter Smith Hospital to take some 16 shots. Side effects included

depression and vomiting (RR 2:28-31). His doctor told Appellant this was a once

in a lifetime opportunity. Appellant had to make bus transfers to get to the clinic



                                          2
(RR 2:32). Appellant conceded that he could have reported on the dates of his

treatment (RR2: 33). Appellant introduced medical records verifying his medical

needs and condition, (DX 1,3,4). Appellant stated that once he stopped reporting

he became scared and concerned that being jailed would interfere with his

treatments. He became depressed and believed his "hole was getting deeper". (RR

2:34-38). Appellant lost his job and the depression and fear increased. (RR 2:36-

38).

       The outpatient drug treatment was also along distance away from where

Appellant lived. Appellant was having transportation issues that are not clear from

the record (RR 2:35-36). Appellant missed the first out-patient assessment because

of a funeral and was apparently late and not allowed in at the next assessment. He

then stopped trying to go to the outpatient drug treatment when he stopped

reporting for probation. (RR 2:60-63).

       Appellant also testified that his mother is elderly and that Appellant is an

essential primary caregiver. This was verified by a letter from a doctor. (RR 2:24-

25), (DX2). Appellant finally asked for reinstatement because of the extenuating

circumstances and the fact that he had spent some 7-8 months in jail already for the

charge (RR 2:54-55).



                                         ii
                         SUMMARY OF ARGUMENT

      Appellant believes it was an abuse of discretion for the trial judge to revoke

his probation and sentence him to seven years in prison.



                     ARGUMENTS AND AUTHORITIES

                 ISSUE FOR REVIEW NO. ONE (RESTATED)

    THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING
APPELLANT'S DEFERRED ADJUDICATION AND SENTENCING
APPELLANT TO SEVEN (7) YEARS IN PRISON.

      Appellant cites the above Statement of Facts above and incorporates them
      into his Argument and Authorities.


      Probation may be revoked upon a finding that an appellant has violated the

terms of his or her probation. Wilson v. State, 645 S.W.2d 932, 934 (Tex.App.-

Dallas 1983, no pet.). Appellate review of a probation revocation proceeding is

limited to a determination of whether the trial court abused its discretion. Bennett

v. State, 476 S.W.2d 281, 282 (Tex.Crim.App.1972); Wilson, 645 S.W.2d at 934.

To determine whether the trial court has abused its discretion, the courts look to

determine whether the State has met its burden of proof. See Cardona v. State, 665

S.W.2d 492 5 493-94 (Tex.Crim.App.1984). The State meets its burden when the

greater weight of the evidence before the court creates a reasonable belief that

                                         4
the probationer violated a condition of probation. Jenkins v. State, 740 S.W.2d

435, 437 (Tex.Crim.App.1983), disapproved on other grounds by Saxton v. State,

804 S.W.2d 910, 912 n. 3 (Tex. Crim.App. 199 1).

      In revocation proceedings, the trial judge is the sole trier of the facts, the

credibility of the witnesses, and the weight to be given the testimony. Taylor v.

State, 604 S.W.2d 175, 179 (Tex.Crim.App. [Panel op.] 1980); Ross v. State, 523

S.W.2d 402, 403 (Tex.Crim.App.1975). It is the trial court's duty to judge the

credibility of the witnesses and to determine whether the allegations in the motion

to revoke are true or not. Langford v. State, 578 S.W.2d 737, 739

(Tex.Crim.App. 1979). This Court must therefore view the evidence presented at

the revocation proceeding in a light most favorable to the trial court's ruling.

Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1981).

       Appellant conceded that he had violated his probation, and pleaded true to

the violations; however, Appellant contends that he presented evidence of such

extenuating circumstances, which included Appellant's severe health issues, such

that it was an abuse of discretion by the trial court to revoke his probation and

sentence him to prison. Appellant was undergoing intense medical treatments for

hepatitis C which interfered with his ability to report. These treatments also made



                                         5
it difficult for Appellant to attend the outpatient drug treatment.

          Appellant contends that these relatively minor violations do not warrant

revocation and a seven year sentence. Add these issues to the fact that Appellant

was basically the main health care provider of his elderly mother and the fact that

he had already spent several months in jail on a minor drug charge, is further proof

that that it was an abuse of discretion to find that Appellant had violated his

probation and sentence him to prison.

                                     PRAYER

      Appellant respectfully requests the case be reversed and rendered in his

favor or at least he be granted for a new revocation hearing. Appellant also prays

for all such additional or future relief to which he may be entitled to in law or in

equity.

                                        Respectfully Submitted,

                                        RICHARD A. HENDERSON, P.C.
                                        Two City Place
                                        100 Throckmorton Street, Suite 540
                                        Fort Worth, Texas 76102
                                        Telephone: (817) 332-9602
                                        Telecopier: (817) 335-3940
                                        richMa nd

                                        RICHARD A. HENDERSON
                                        State Bar No. 09427100
                                        ATTORNEY FOR APPELLANT
                                        6
                     CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of TEx.R.APP. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of TEx.R.APP. P. 9.4(i) because it contains 1,765 words,

excluding any parts exempted by TEx.R.APP.P. 9.4(i)(1), as computed by the

word-count feature of Microsoft Office Word 2010, the computer software used to

prepare the document.


                                        chard A. Henderson


                        CERTIFICATE OF SERVICE

      A true copy of the Appellant's Brief has been electronically served on

opposing counsel, Ms. Debra Windsor, Assistant Criminal District Attorney, Post-

Conviction, Tarrant County District Attorney's Office, 401 W. Belknap Street,

Fort Worth, Texas 76196 and mailed U.S. Regular Mail to Appellant, Mr. Rudy

Cortinas, CID#0259844, Tarrant County Jail, 100 N. Lamar Street, Fort Worth,

Texas 76102, on this the 9th ofDecembe,r01


                                             A. Hender'son

                                        7
