                                                                      ACCEPTED
                                                                 12-14-00225-CR
                                                     TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                            1/21/2015 8:43:52 PM
                                                                    CATHY LUSK
                                                                          CLERK

            ORAL ARGUMENT NOT REQUESTED

                   NO. 12-14-00225-CR            FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
               IN THE COURT OF APPEALS    1/21/2015 8:43:52 PM
                 12TH JUDICIAL DISTRICT        CATHY S. LUSK
                                                   Clerk
                       TYLER, TEXAS


                   FATIMA RAHMAN,
                     APPELLANT


                             VS.


                  THE STATE OF TEXAS,
                       APPELLEE


       ON APPEAL IN CAUSE NUMBER 114-1451-10
       FROM THE 114th JUDICIAL DISTRICT COURT
             OF SMITH COUNTY, TEXAS
    HONORABLE CHRISTI KENNEDY, JUDGE PRESIDING


                  APPELLANT’S BRIEF

JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437

ATTORNEY FOR APPELLANT
             IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
    Fatima Rahman

APPELLANT’S TRIAL COUNSEL
    A. M. Thompson
    2108 S. Wall
    Tyler, Texas 75701
    903-596-7856

     James Huggler
     100 E. Ferguson, Suite 805
     Tyler, Texas 75702
     903-593-2400

     A. Reeve Jackson
     112 E. Line, Suite 310
     Tyler, Texas 75702
     903-595-6070

APPELLANT’S APPELLATE COUNSEL
    James Huggler
    100 E. Ferguson, Suite 805
    Tyler, Texas 75702
    903-593-2400
    903-593-3830 (fax)

APPELLEE
    The State of Texas

APPELLEE’S TRIAL COUNSEL
    Whitney Tharpe
    Richard Crowther
    Jacob Putman
    Chris Gatewood
    Smith County Criminal District Attorney’s Office
                                  ii
     100 N. Broadway, 4th Floor
     Tyler, Texas 75702
     903-590-1720
     903-590-1719 (fax)

APPELLEE’S APPELLATE COUNSEL
    Michael West
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720
    903-590-1719 (fax)




                                  iii
                                 TABLE OF CONTENTS
                                                                                             PAGE

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

       ISSUE ONE: The trial court erred in imposing attorney fees
       following a finding that Ms. Rahman was indigent and was
       appointed counsel.

       ISSUE TWO: The trial court erred in proceeding upon an
       unsigned application to revoke community supervision violating
       her right to due course of law under the Texas Constitution.

       ISSUE THREE: The trial court erred in proceeding upon an
       unsigned application to revoke community supervision violating
       her right to due process of law under the United States
       Constitution.

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

       A. Law on Attorney Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
       B. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
       C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
                                                  iv
        D. Remedy and Relief Requested.. . . . . . . . . . . . . . . . . . . . . . . . . 11

ISSUE TWO, RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ISSUE THREE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

        A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      12
        B. Law on Probation Revocation Proceedings. . . . . . . . . . . . . . . .                     12
        C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . .          14
        D. Remedy and Relief Requested.. . . . . . . . . . . . . . . . . . . . . . . . .              15

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17




                                                    v
                              TABLE OF AUTHORITIES
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 1.052( c) (West 2009). . . . . . . . . . . . 14
TEX. CODE CRIM. PROC. ANN. art. 2.04 (West 2013). . . . . . . . . . . . . . . . 14
TEX. CODE CRIM. PROC. ANN. art. 15.05 4 (West 2013). . . . . . . . . . . . . 15
TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West 2009).. . . . . . . . . . . . . 6
TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2009). . . . . . . . . . . . . . 6
TEX. CODE CRIM. PROC. ANN. art. 42.12§21(b) (West 2009). . . . . . . . . . 13
TEX. CODE CRIM. PROC. ANN. art. 103.001 (West 2009). . . . . . . . . . . . . . 7
TEX. GOV’T CODE ANN. §§ 102.001-.142 (West 2009). . . . . . . . . . . . . . . . 7
TEX. GOV’T CODE ANN. § 102.021 (West 2009). . . . . . . . . . . . . . . . . . . . . 7
TEX. GOV’T CODE ANN. § 103.006 (West 2009). . . . . . . . . . . . . . . . . . . . . 8
TEX. PENAL CODE ANN. §49.04 (West 2009).. . . . . . . . . . . . . . . . . . . . 1, 3
TEX. PENAL CODE ANN. § 49.09(b)(2) (West 2009). . . . . . . . . . . . . . . . 2, 3


CASES
Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011). . . . . . . 7, 8
Bradley v. State, 564 S.W.2d 727, 729 (Tex. Crim. App. 1978). . . . . . . 12
Brent v. State, 916 S.W.2d 34, 37 (Tex. App. – Houston
   [1st Dist.] 1995, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Davenport v. State, 574 S.W.2d 73, 76 (Tex. Crim. App. 1978).. . . . . . 12
Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656,
   93 S. Ct. 1756 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Garner v. State, 545 S.W.2d 178, 179 (Tex. Crim. App. 1977). . . . . . . 13
Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005).. . . . . . . . 9
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
   61 L. Ed. 2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
                                                 vi
Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). . . . . . . 8
Johnson v. State, 405 S.W.3d 350, 354 (Tex. App. – Tyler
    2013, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9
Lugaro v. State, 904 S.W.2d 842 (Tex. App. –
    Corpus Christi 1995, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010). . . . . . . 6, 9
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991). . . . . 9, 12
Naquin v. State, 607 S.W.2d 583, 586 (Tex. Crim. App. 1980). . . . . . . 12
Owen v. State, 352 S.W.3d 542, 5148 (Tex. App. – Amarillo
    2011, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Shackelford v. State, 516 S.W.2d 180 (Tex. Crim. App. 1974). . . . . . . 15
Spruill v. State, 382 S.W.3d 518 (Tex. App. – Austin 2012, no pet.). . . 13
Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). . . . . . . . . . 7
Whitson v. State, 429 S.W.3d 632 (Tex. Crim. App. 2014). . . . . . . . . . 13
Williams v. State, 332 S.W.3d 694, 699 (Tex. App. – Amarillo
    2011, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9



RULES
TEX. R. APP. PROC. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
TEX. R. APP. PROC. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




                                                   vii
                                 NO. 12-14-00225-CR


FATIMA RAHMAN                                 §   IN THE COURT OF APPEALS
APPELLANT                                     §
                                              §
VS.                                           §   12TH JUDICIAL DISTRICT
                                              §
THE STATE OF TEXAS,                           §
APPELLEE                                      §   TYLER, TEXAS


                                APPELLANT’S BRIEF


TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:


       Fatima Rahman, (“Appellant”), by and through her attorney of

record, James Huggler, and pursuant to the provisions of TEX. R. APP.

PROC. 38, et seq., respectfully submits this brief on appeal.




                           STATEMENT OF THE CASE

       Appellant was indicted in Cause Number 114-1451-10 and charged

with the felony offense of driving while intoxicated. I CR 21; see TEX.

       1
        References to the Clerk’s Record are designated “CR” with a roman numeral preceding
“CR” indicating the correct volume and an arabic numeral following “CR” specifying the correct
                                               1
PENAL CODE ANN. §§49.04, 49.09(b)(2) (West 2009). A guilty plea with an

agreement for a probated sentence was entered. I CR 7; I RR 15-162. The

State filed an Application to Revoke Community Supervision. I CR 54-56.

Mr. Rahman entered a plea of true to each allegation and after evidence

and argument, the court revoked her probation and sentenced her to five

years confinement. I CR 76-77; IV RR 34-35. Notice of appeal was timely

filed. I CR 78. This Brief is timely filed on or before January 22, 2015

following proper extension granted by this Court.




page in the record.

       2
         References to the Reporter’s Record are designated “RR” with a roman numeral
preceding “RR” indicating the correct volume, and an arabic numeral following “RR” specifying
the correct page.
                                               2
                         ISSUES PRESENTED

ISSUE ONE: THE TRIAL COURT ERRED IN IMPOSING ATTORNEY
FEES FOLLOWING A FINDING THAT MS. RAHMAN WAS INDIGENT
AND WAS APPOINTED COUNSEL.


ISSUE TWO, RESTATED: THE TRIAL COURT ERRED IN
PROCEEDING UPON AN UNSIGNED APPLICATION TO REVOKE
COMMUNITY SUPERVISION VIOLATING HER RIGHT TO DUE
COURSE OF LAW UNDER THE TEXAS CONSTITUTION.


ISSUE THREE, RESTATED: THE TRIAL COURT ERRED IN
PROCEEDING UPON AN UNSIGNED APPLICATION TO REVOKE
COMUNITY SUPERVISION VIOLATING HER RIGHT TO DUE
PROCESS OF LAW UNDER THE UNITED STATES CONSTITUTION.




                     STATEMENT OF THE FACTS

     Fatimah Rahman was indicted for the third degree felony offense of

driving while intoxicated. I CR 3. TEX. PENAL CODE ANN. §§49.04 and

49.09(b)(2)(West 2009). A plea agreement was reached and Ms. Rahman

received a sentence of ten years probated for a period of seven years. I RR

11. A guilty plea was entered to the indictment and the two jurisdictional

paragraphs. I RR 15-16. The court followed the plea agreement and

sentenced Ms. Rahman accordingly. II RR 8; I CR 19-20, 21-24.
                                     3
     The State filed three different motions to revoke the probation. I

CR32-34, 44-46. The first motion was dismissed and the probation was

modified. I CR 37-38. The second motion was also dismissed. I CR 47.

The third motion to revoke filed on July 9, 2012 included the following

allegations: (1) that Ms. Rahman was placed on probation; (2) that she

used or consumed marijuana; (3) that she possessed marijuana; (4) and (5)

that she failed to submit to urinalysis testing. I CR 54-56. Another

application to revoke containing different allegations was also filed on

July 8, 2014. I CR 60-62. This application alleged that Ms. Rahman (1)

was placed on probation; (2) that she operated a motor vehicle while her

driver’s license was suspended in Tarrant County; (3) that she operated

a motor vehicle while her license was suspended in Hood County; and (4)

that she failed to pay supervision fees. I CR 60-62.

     Ms. Rahman entered a plea of true to identity, and all substantive

paragraphs to the July 8, 2014 application. I CR 73; IV 17-19. We know

it was the July 8, 2014 application because the trial court read each

allegation prior to asking a plea. IV RR 17-19. Following evidence and

argument of counsel, the trial court found each paragraph true, revoked

her probation and sentenced her to five years confinement. IV RR 34-35.
                                    4
Further discussion of relevant facts is included below. Timely notice of

appeal was filed. I CR 78. This appeal follows.




                     SUMMARY OF ARGUMENT

     The error for this Court to consider in Issues One involves the

improper assessment of court costs. The trial court improperly ordered

reimbursement of attorney fees after Ms. Rahman was found to be

indigent and was appointed counsel.

     The second and third issues allege a violation of due process or due

course of law because the trial court proceeded in the revocation

proceedings upon an unsigned application to revoke probation which had

been superseded by a signed application to revoke.




                                    5
                              ARGUMENT

ISSUE ONE, RESTATED: THE TRIAL COURT ERRED IN IMPOSING
ATTORNEY FEES FOLLOWING A FINDING THAT MS. RAHMAN
WAS INDIGENT AND WAS APPOINTED COUNSEL.


                       A. Law on Attorney’s Fees

     A trial court has the authority to assess attorney’s fees against a

criminal defendant who received court-appointed counsel. TEX. CODE

CRIM. PROC. ANN. art. 26.05(g)(West 2009). Once a defendant has been

determined to be indigent, she is presumed to remain indigent for the

remainder of the proceedings unless a material change in her financial

circumstances occurs. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West

2009). Before attorney’s fees may be imposed, the trial court must make

a determination supported by some factual basis in the record that the

defendant has financial resources to enable him to offset in whole or in

part the costs of the legal services provided. Johnson v. State, 405 S.W.3d

350, 354 (Tex. App. – Tyler 2013, no pet). If the record does not show any

material change in the defendant’s financial circumstances, the evidence

will be insufficient to support the imposition of attorney’s fees. TEX. CODE

CRIM. PROC. ANN. art. 26.04(p); Mayer v. State, 309 S.W.3d 552, 553, 557

                                     6
(Tex. Crim. App. 2013).

     Court costs are pre-determined, legislatively-mandated obligations

resulting from a conviction. See, e.g., TEX. GOV'T CODE ANN. §§

102.001-.142 (West 2009) (setting forth various court costs that a

convicted person "shall" pay).    A sentencing court shall impose the

statutory court costs at the time a defendant is sentenced. Armstrong v.

State, 340 S.W.3d 759 (Tex. Crim. App. 2011); TEX. GOV’T CODE ANN.

§102.021 (West 2009). Court costs are not punitive in nature and do not

have to be included in an oral pronouncement of a sentence. Weir v.

State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009).

     A cost is not payable by the person charged with the cost until a

written bill is produced or is ready to be produced, containing the items

of cost, signed by the officer who charged the cost or the officer who is

entitled to receive payment of the cost. TEX. CODE CRIM. PROC. ANN. art.

103.001 (West 2013). The clerk of the trial court is required to keep a fee

record, and a statement of an item therein is prima facie evidence of the

correctness of the statement. Owen v. State, 352 S.W.3d 542, 548 (Tex.

App.—Amarillo 2011, no pet.) (citing TEX.CODE CRIM. PROC. ANN. art.

103.009(a), (c)). Until a certified bill of costs has been made part of the
                                     7
record, a defendant has no obligation to pay court costs. Owen, 352

S.W.3d at 547 (citing Armstrong, 340 S.W.3d at 765; Williams v. State,

332 S.W.3d 694, 699 (Tex. App. – Amarillo 2011, pet. denied).

      If a criminal action is appealed, "an officer of the court shall certify

and sign a bill of costs stating the costs that have accrued and send the

bill of costs to the court to which the action or proceeding is transferred or

appealed." TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2009).




                          B. Standard of Review

      The imposition of court costs upon a criminal defendant is a

“nonpunitive recoupment of the costs of judicial resources expended in

connection with the trial of the case.” Johnson v. State, 423 S.W.3d 385,

390 (Tex. Crim. App. 2014). When the imposition of court costs is

challenged on appeal, the court reviews the assessment of costs to

determine if there is a basis for the cost, not to determine if there is

sufficient evidence offered at trial to prove each cost. Johnson, 423 S.W.3d

at 390.

      The standard for reviewing a legal sufficiency challenge is whether

                                      8
any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. at

315-16, 99 S. Ct. at 2786-787; see also Mayer v. State, 309 S.W.3d 552,

557 (Tex. Crim. App. 2010)(sufficiency review of evidence to support order

of repayment of attorney fees as costs).

     A challenge to a withdrawal of funds notification is reviewed for an

abuse of discretion. Williams, 332 S.W.3d at 698. A trial court abuses

its discretion when it acts “without reference to any guiding rules and

principles. Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005);

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). The

reviewing court may modify a withdrawal order on direct appeal if the

evidence is insufficient to support the assessment of court costs. Johnson

v. State, 405 S.W.3d at 355.




                     C. Application to These Facts

     Ms. Rahman has been represented at all times following the initial

trial of the case by appointed counsel. The record contains two different

orders appointing counsel. I CR 36, 64. Finally, appellate counsel was

                                    9
appointed for this appeal. IV RR 36. A motion was filed with the trial

court seeking a free reporter’s record on appeal. I CR 85-87. This motion

was granted by the trial court without opposition from the State of Texas.

I CR 88.

     The November 22, 2010 order placing Ms. Spears on probation

included $694.00 in court costs. I CR 19. However, the bill of costs

prepared by the District Clerk’s Office on July 30, 2012 does not match

this amount, it specifically totals costs at $394.00. I CR 75. The final

judgment signed July 23, 2014 reflects a zero balance for court costs. I CR

68-69.

     The items listed on the bill of costs appear to be properly assessed

costs. I CR 75. The properly assessed costs is exactly $300 less than the

costs assessed in the initial judgment and paid by Ms. Rahman.

     There is no evidence to contest the finding that Ms. Rahman was

found indigent. Assessment of attorney’s fees following a finding of

indigence is improper. While the final judgment does not include the

attorney’s fee, the bill of costs does, and court costs, including attorney

fees were improperly collected by the probation department impacting,


                                    10
among other things the restitution owed.

     The State of Texas collected an excess $300 attorney fee from Ms.

Rahman. As this Court is aware, Smith County trial courts were, for a

period of time, assessing a $300 fee as court costs to defendants who

received appointed counsel.      This Court has modified a number of

judgments when this error occurred, and in most cases the State of Texas

conceded the error.




                      D. Remedy and Relief Requested

     The fee seeking reimbursement for the appointed attorney was

improperly assessed by the court and the clerk’s office. The judgment and

the bill of costs should be modified to reflect the amount of proper taxable

court costs due, and the clerk’s office should be ordered to return the

improperly collected monies to Ms. Rahman.




                                     11
ISSUE TWO, RESTATED: THE TRIAL COURT ERRED IN
PROCEEDING UPON AN UNSIGNED APPLICATION TO REVOKE
COMMUNITY SUPERVISION VIOLATING HER RIGHT TO DUE
COURSE OF LAW UNDER THE TEXAS CONSTITUTION.


ISSUE THREE, RESTATED: THE TRIAL COURT ERRED IN
PROCEEDING UPON AN UNSIGNED APPLICATION TO REVOKE
COMUNITY SUPERVISION VIOLATING HER RIGHT TO DUE
PROCESS OF LAW UNDER THE UNITED STATES CONSTITUTION.


                         A. Standard of Review

     An appeal from an order revoking community supervision is

reviewed using an abuse of discretion standard. Naquin v. State, 607

S.W.2d 583, 586 (Tex. Crim. App. 1980). A trial court abuses its discretion

when its action or decision is not within the zone of reasonable

disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.

App. 1991).




              B. Law on Probation Revocation Proceedings

     Probation revocation proceedings are not criminal trials in the

constitutional sense; rather, they are administrative in nature. Davenport

v. State, 574 S.W.2d 73, 76 (1978); Bradley v. State, 564 S.W.2d 727, 729

(1978). However, a person placed on probation does not lose all their
                                    12
rights. A probationer is entitled to a written motion to revoke that fully

informs her of the violation of a term of probation which she is alleged to

have breached. Garner v. State, 545 S.W.2d 178, 179 (Tex. Crim. App.

1977). A probationer is entitled to minimum requirements of due process

which must be observed in revocation proceedings. Gagnon v. Scarpelli,

411 U.S. 778, 7869, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973).

     The State cannot file an application to revoke after the term of

supervision has ended. Whitson v. State, 429 S.W.3d 632 (Tex. Crim. App.

2014). A motion to revoke must give fair notice of the allegations. Spruill

v. State, 382 S.W.3d 518, 520 (Tex. App. – Austin 2012, no pet). A

defendant has the right to counsel at revocation proceedings. Lugaro v.

State, 904 S.W.2d 842, 843-44 (Tex. App. – Corpus Christi 1995, no pet).

The State may amend a motion to revoke community supervision any time

up to seven days before the date of the revocation hearing, after which

time the motion may not be amended except for good cause shown, and in

no event may the State amend the motion after the commencement of

taking evidence at the hearing. TEX. CODE CRIM. PROC. ANN. art. 42.12

§21(b) (West 2009).



                                    13
                      C. Application to These Facts

     There are two documents contained in the record seeking revocation

of supervision. The first was filed on July 8, 2014 and contained four

paragraphs. I CR 60-62. The second was filed on July 9, 2014 and

contained five paragraphs. I CR 54-56. The trial court took a plea of true

to each paragraph contained in the July 8, 2014 application. IV RR 17-19.

     There are two problems with the trial court taking proceeding on the

July 8, 2014 application. First, the July 8, 2014 application to revoke was

superseded by the July 9, 2014 application to revoke. The second is that

the pleading which was used was not signed by an attorney representing

the State of Texas. I CR 62.

     If a pleading is not signed, the court shall strike it unless it is signed

promptly after the omission is called to the attention of the attorney or the

defendant. TEX. CODE CRIM. PROC. ANN. art. 1.052( c) (West 2014). While

that provision is contained in a section entitled “Signed Pleadings of

Defendant”, it applies equally to pleadings signed by the State of Texas.

     A criminal complaint must be signed and attested to by a

prosecuting attorney. TEX. CODE CRIM. PROC. ANN. art. 2.04 (West 2013).

                                     14
A defect in a complaint if undated is defective. Shackelford v. State, 516

S.W.2d 180 (Tex. Crim. App. 1974). A complaint must also be signed.

TEX. CODE CRIM. PROC. ANN. art. 15.05 4 (West 2013); Brent v. State, 916

S.W.2d 34.37 (Tex. App. – Houston [1st Dist.] 1995, pet. ref’d).

      While Appellant does not claim that a motion to revoke probation is

identical to a criminal complaint, it is certainly similar, especially in a due

process or due course of law analysis. The trial court erred in proceeding

using an unsigned document.




                     D. Remedy and Relief Requested

      The trial court erred in proceeding upon an unsigned document and

the proper remedy is to reverse the judgment and remand the matter to

the trial court.




                                      15
                        PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Counsel respectfully

prays that this Court modify the judgment of the trial court and order

reimbursement of improperly assessed fees in the first issue, and reverse

and remand in the second issue.



                                    Respectfully submitted,


                                     /s/ James Huggler
                                    James W. Huggler, Jr.
                                    State Bar Number 00795437
                                    100 E. Ferguson, Suite 805
                                    Tyler, Texas 75702
                                    903-593-2400
                                    903-593-3830 fax
                                    ATTORNEY FOR APPELLANT




                                   16
                      CERTIFICATE OF SERVICE


A true and correct copy of the foregoing Brief of the Appellant has been
forwarded to counsel for the State by electronic filing on this the 21st day
of January, 2015.


/s/ James Huggler
James W. Huggler, Jr.



Attorney for the State:
Mr. Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702



                   CERTIFICATE OF COMPLIANCE

I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 3,527 words as counted by
Corel WordPerfect version x5.


/s/ James Huggler
James Huggler




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