                                                                                       ACCEPTED
                                                                                   03-15-00433-CR
                                                                                           7215141
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                              10/2/2015 4:46:22 PM
October 14, 2015                                                                 JEFFREY D. KYLE
                                                                                            CLERK
                             NO. 03-00433-CR
                                    15-00433-CR

                                                                 RECEIVED IN
                                                            3rd COURT OF APPEALS
                                  * * *                         AUSTIN, TEXAS
                                                            10/2/2015 4:46:22 PM
                             In The 3rd District              JEFFREY D. KYLE
                                                                    Clerk
                          Court of Appeals of Texas

                                  * * *

                             Hector Hato Laboy

                                     v.

                             The State of Texas

                                  * * *

                               Appealed from the
                                 Travis County
                           County Court at Law No. 4
                   Trial Court Cause No. D-1-DC-13-204642

   ___________________________________________________________________

                           APPELLANT’S BRIEF
   ___________________________________________________________________

                                   John S. Butler
                                   State Bar No. 03526150
                                   700 Lavaca Street, Suite 1400
                                   Austin, Texas 78701
                                   Telephone (512) 472-3887
                                   Facsimile (512) 233-1787
                                   Email     butler@lawyer.com
                                   ATTORNEY FOR APPELLANT


                     ORAL ARGUMENT REQUESTED
                        Identities of Parties and Counsel



Appellant:                                   Hector Hato Laboy

Trial Counsel:                               Donna Keith
                                             605 West Oltorf Street
                                             Austin, Texas 78755

Appellee:                                    The State of Texas

Appellant Counsel and
Trial Counsel:                               Rosemary Lehmberg
                                             Travis County District Attorney
                                             P O Box 1748
                                             Austin, Texas 78767
                                                   -by-
                                             Kelly Gier
                                             Assistant District Attorney

Trial Judge:                                 Hon. Mike Denton
                                             P O Box 1748
                                             Austin, Texas 78767




                                       -2-
                                  Table of Contents

Identity of Parties and Counsel                       …2

Table of Contents                                     …3

Index of Authorities                                  …4

Statement Regarding Oral Argument                     …4

Statement of the Case                                 …5

Issues Presented                                      …5

Statement of the Facts                                …5

Summary of the Arguments                              …7

Argument                                              …10

Prayer for Relief                                     …11

Certifications                                        …13




                                         -3-
                                Index of Authorities

Strickland v. Washington, 466 U.S. 668 (1984)                …8

Devine v. State, 786 S.W.2d 268 (Tex.Crim.App.1989)          …7

Cook v. State, 940 S.W.2d 344 (Tex.App.—Amarillo 1997,)      …7, 8

In re A.C. 48 S.W.3d 899 (Tex.App.—Fort Worth 2001)          …7

Davis v. State, 413 S.W.3d.813 (Tex.App.—Austin 2013)        …8

Frangias v. State, 392 S.W.3d 642 (Tex.Crim.App.2013)        …8, 9

Davis v. State, 413 S.W.3d.813 (Tex.App.—Austin 2013)        …9

United States Constitution Amendments 5 and 14               …9

Texas Constitution art. I §10                                …9

TEX. PEN. CODE ANN. §22.07(a)(2)                             …9

BLACK’S LAW DICTIONARY (6th ed.1990)                         …7, 10




                      Statement Regarding Oral Argument


      Due to the fact-intensive nature of the arguments presented herein,

Appellant requests that the Court hear oral argument.




                                        -4-
                              Statement of the Case



      Appellant was placed on five years probation for the offense of Assault

Family Violence, a third-degree felony. On June 12, 2015, a hearing was held on

the State’s Motion to Revoke Probation. After hearing evidence and argument the

trial court revoked Appellant’s probation and sentenced him to three years

imprisonment.

                                 Issues Presented


   1. The trial court erred in finding that Appellant violated the term of his
      probation by committing the offense of Terroristic Threat.

   2. Trial court counsel was ineffective in failing to object to testimony that was
      hearsay and violated Appellant’s right to confrontation under Federal and
      State constitutional law.



                                Statement of Facts

On August 12, 2013, Appellant Hector Laboy was placed on five years’ probation

for felony assault family violence. On March 13, 2015, the State filed a Motion to

Revoke Community Supervision, alleging that he submitted positive urine



                                        -5-
specimens for controlled substances, he failed to submit a urine or breath specimen

at his probation officer’s request, failed to pay various court costs and fines, failed to

have no contact with victim, committed the offense of Terroristic Threat on or about

February 13, 2015, and committed the offense of Criminal Mischief on or about

February 14, 2015. (Clerk’s Record [CR] p.50). A hearing on this Motion was held

on June 12, 2015. At the start of the hearing, The State waived the ―no contact‖

allegation and the allegation of Terroristic Threat of February 13, 2015, while

adding an allegation of Terroristic Threat on February 14, 2015. Appellant did not

object to the amendments. (Court Reporter’s Record [CRR] v.2 p.5.).

        Appellant pled true to the allegations about controlled substances. (CRR. V.2

p.7).

        Travis Lucas of the Smithville Police Department testified that he was

responding to call of Criminal Mischief when he encountered Appellant, driving

silver Honda sedan. As the call described the suspect leaving the scene in a silver

Honda, the officer detained Appellant, searched his vehicle, and released him.

Officer Lucas then proceeded to the scene, wherehe spoke to Jakuri McLaurin, who

―informed [him] of the criminal mischief act.‖ (CRR v. p.13) and that ―Jacuri stated

that he actually observed [Appellant] slash the tires.‖ (CRR v.2 p.15). The office




                                           -6-
also testified that he listened to a phone call (on speakerphone) received by Cassie

Durfee, and that he recognized Appellant on the phone by his voice and his

description of his recent encounter with Officer Lucas.        According to Lucas,

[Appellant] ―stated that he was going to kill Jakuri.‖ (CRR v.2 p.14).




                           Summary of the Arguments


          There is insufficient evidence to support the conclusion that

             Appellant committed the offense of Terroristic Threat



      The offense of Terroristic Threat requires that the victim be placed ―in fear on

imminent serious bodily injury.‖ TEX. PEN. CODE ANN. §22.07(a)(2). Imminent

means ―[n]ear at hand; mediate rather than immediate; close rather than touching;

impending; on the point of happening; threatening; menacing; perilous.‖

BLACK’S LAW DICTIONARY 750 (6th ed.1990); see also Devine v. State, 786

S.W.2d 268, 270 (Tex.Crim.App.1989); Cook v. State, 940 S.W.2d 344, 347




                                         -7-
(Tex.App.—Amarillo 1997, pet. ref’d).          In re A.C. 48 S.W.3d 899, 904

(Tex.App.—Fort Worth 2001).

      The injury in this case was not ―on the point of happening.‖ There was only:

―He stated that he was going to kill Jakuri.‖ (CRR v.2 p.14). In Cook v. State, the

Amarillo Court of Appeals found sufficient evidence of Terroristic Threat where

the defendant left three message ―in rapid succession‖, explicitly stating ―this is a

g---damn threat‖ and that ―he was looking for [his victim] and that he would injure

him when he found him.‖ Cook v. State, 940 S.W.2d 344, 348 (Tex.App.–Amarillo

1997). In this case, Appellant ―stated that he was going to kill Jakuri‖ once,

without elaborating, in a telephone call. (CRR v.2 p.14). Appellant had last been

seen ―leaving the scene.‖ (CRR v.2 p.10).



       Trial court counsel was ineffective in failing to object to testimony
        that was hearsay and violated Appellant’s right to confrontation
                  under Federal and State constitutional law.


      An ineffective assistance of counsel claim is subject to the Strickland
      standard, requiring a defendant to prove by a preponderance of the
      evidence that (1) counsel’s representation fell below an objective
      standard of reasonableness under prevailing professional norms and
      (2) the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).



                                         -8-
      An accused is not entitled to entirely errorless representation, and we
      look to the totality of the representation in gauging the adequacy of
      counsel’s performance. Frangias v. State, 392 S.W.3d 642, 653
      (Tex.Crim.App.2013). But even a single instance of counsel’s error
      can rise to the level of deficient performance, ―if the error was
      egregious and had a seriously deleterious impact on the balance of the
      representation.‖ Id.

Davis v. State, 413 S.W.3d.813, 828 (Tex.App.—Austin 2013, pet. ref’d.).

      In this case, the error was counsel’s failure to object to the testimony of

Travis Lucas: ―I originally started talking to Jacuri [McLaurin] and he … informed

me of the criminal mischief act, and he was showing me the tires.‖ (CRR v.2 p.13).

This was unadulterated hearsay. Tex. R. Evid 801(d); 802. It also violated

Appellant’s right to confront his accusers under the United States Constitution

Amendments 5 and 14 and the Texas Constitution art. I §10. Insofar as this was the

only evidence presented on the issue of whether Appellant committed the offense of

Criminal Mischief, there could be no reason to allow this testimony to go

unchallenged. If trial counsel had objected, it would have been excluded, and there

would have been no evidence to support this particular allegation. Failure to object

in this instance clearly ―had a seriously deleterious impact.‖ Frangias at 653.




                                         -9-
                                     Argument

      The State alleged in this case that Appellant violated the terms of his

probation by (a) submitting positive urine specimens for controlled substances, (b)

failing to submit a urine specimen when directed by his probation officer, (c) failure

to pay money, (d) committing the offenses of Terroristic Threat and Criminal

Mischief.

      The written judgment notwithstanding, the trial court judge explicitly stated

in open court that he was not revoking Appellant’s probation because of money or

urine samples. See CRR v.2 p.33: ―I’m not concerned about fees.‖ and CRR v.2

p.36: ―[T]he missed UA’s the positive UA’s … I’m not going forward on that.‖

The judge made it clear that his only bases for revocation were the two new

offenses: ―But I will go forward on what is correct, if I'm on probation for an assault

and then I make threats, these kinds of threats as well as destroy property, sir, I do

find that allegation -- those allegations true, so I am going to revoke your

probation.‖ (CRR v.2 p.36).

      Though a threat was made, it did not rise to the level of ―terroristic‖ because

it was not imminent, not ―[n]ear at hand; mediate rather than immediate; close

rather than touching; impending; on the point of happening; threatening;




                                         -10-
menacing; perilous.‖ BLACK’S LAW DICTIONARY 750 (6th ed.1990). Thus,

no offense.

      But for trial counsel’s failure to object to testimony – about Criminal

Mischief - that was clearly inadmissible on both hearsay and confrontation

grounds, there would be no evidence at all to support the judge’s decision to

revoke Appellant’s probation.



                                       Prayer


WHEREFORE, Appellant prays this Court grant the request, and reverse the

judgment and sentence of the trial court, and remand the case to the trial court for a

new hearing. Appellant further requests any and all such other relief to which he

may be entitled.




                                         -11-
       Respectfully submitted,




       John S. Butler

       ATTORNEY FOR APPELLANT
       700 Lavaca Street, Suite 1400
             Austin, Texas 78701
       Telephone (512) 472-3887
       Facsimile (512) 233-1787
       STATE BAR #03526150




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                           CERTIFICATE OF SERVICE

   As Attorney of Record for Appellant, I do hereby certify that a true and correct
copy of this Appellant’s Brief was this date provided to the District Attorney of
Travis County, P O Box 1748, Austin, Texas 78767, via U.S. Mail.


Date: October 2, 2015




JOHN S. BUTLER
Attorney for Appellant


                         CERTIFICATE OF COMPLIANCE

   As Attorney of Record for Appellant, I do hereby certify that this document
contains 1,679 words, as determined by Microsoft Word 2010, the computer
program used to prepare the document.


                                      Date: October 2, 2015




                                      JOHN S. BUTLER
                                      Attorney for Appellant




                                       -13-
