                                                                  ACCEPTED
                                                              01-15-00133-CR
                                                   FIRST COURT OF APPEALS
                                                           HOUSTON, TEXAS
                                                        4/27/2015 12:00:00 AM
                                                        CHRISTOPHER PRINE
                                                                       CLERK




                                           FILED IN
                                    1st COURT OF APPEALS
             NO. 01-15-00133-CR         HOUSTON, TEXAS
                                    4/27/2015 8:08:00 AM
         IN THE COURT OF APPEALS CHRISTOPHER A. PRINE
FOR   THE FIRST SUPREME JUDICIAL DISTRICTClerk
                  OF TEXAS


       ______________________________




          DEZMOND MARTIN GARCIA
                                     APPELLANT

                     VS.


            THE STATE OF TEXAS
                                     APPELLEE


       ______________________________



             APPELLANT’S BRIEF



                                Crespin Michael Linton
                                440 Louisiana, Suite 900
                                Houston, Texas 77002
                                Texas Bar No. 12392850
                                (713) 236-1319
                                (713) 236-1242 (Fax)
                                crespin@hal-pc.org
                         LIST OF PARTIES


The Appellant is Dezmond Martin Garcia.


The Appellant’s counsel at trial was Wendy Baker.


The Appellant’s counsel on appeal is Crespin Michael Linton.


The Trial Judge is The Honorable Renee Magee.


The appellate attorney representing the State is Alan Curry, Assistant
District Attorney, Harris County, Texas.




                                  i
                        TABLE OF CONTENTS


List of Parties      …………………………………………………           i

Table of Contents    …………………………………………………           ii

Table of Citations   ……………………………………………             iv

Preliminary Statement …………………………………………….           1

Statement of Facts      …………………….……………………….        1

A.    State’s Witnesses …………………………………………           2

      1.    Michelle Nelson………………………………………..       2

      2.    Michael Medina……………………………………….         4

B.    Defense’s Witnesses ………………………………………          5

      1.    Carlos Huerta………………………………………….         5

      2.    Janie Gonzales……………………………………..         6

C.    Trial Court’s Ruling   ………………………………          7


Points of Error      …………………………………….………………         8


Point of Error Number One ……………………………………….         9


Argument and Authorities on
     Point of Error Number One   .……………….……………..   9


Point of Error Number Two ……………………………………….         13


                                 ii
Argument and Authorities on
     Point of Error Number Two   .……………………   13


Conclusion …….…………………………………………               15


Certificate of Service …………………………………...      15




                                 iii
                      TABLE OF CITATIONS
                               CASES


Battle v. State, 571 S.W.2d 20, 22
      (Tex. Crim. App. 1978)………………………………………..                     9


Buerger v. State, 60 S.W.3d, 358, 365
     (Tex. App. – Houston [1st Dist.] 2001, review ref’d.)……….   13


Corpus v. State, 26 S.W.3d 660, 662
     (Tex. App. – Corpus Christi 2000, no writ)…………………           13


Moore v. State, 11 S.W.3d 495, 498
     (Tex. App. – Houston [14th Dist.] 2000, no pet.)……………        9


Rickels v. State, 202 S.W.3d 759,763
      (Tex. Crim. App. 2006)…………………..……………………                    10


Staten v. State, 328 S.W.3d 901, 905
      (Tex. App. – Beaumont 2010, no pet.)……………………..              9



                          CONSTITUTION

U.S. Const., Art. I, § 8 …………………………………………….…                     13


Tex. Const., Art. I, § 13 ……………………………………………… 13




                                 iv
                      PRELIMINARY STATEMENT



      On January 7, 2015, Appellant, Dezmond Martin Garcia, pleaded

“Not True” to 6 allegations and “True” to 3 allegations that he had violated

the conditions of his 4 year deferred adjudication community supervision

for Aggravated Assault. After an adjudication hearing, the trial court found

that Garcia had violated 5 of the conditions of his community supervision,

and assessed a punishment of 8 years in the Texas Department Of

Criminal Justice. On February 4, 2015, Garcia perfected his appeal.



                         STATEMENT OF FACTS

      On May 4, 2011, Appellant Dezmond Martin Garcia, pleaded guilty

to the felony offense of Aggravated Assault, and the trial court assessed

a punishment of 5 years deferred adjudication community supervision.

(TR. at 28) On March 7, 2013, the Harris County District Attorney’s Office

filed its Motion To Adjudicate Guilt. (TR. at 33) On September 18, 2014,

the Harris County District Attorney’s Office filed its Amended Motion To

Adjudicate Guilt in which it alleged that Garcia had violated nine

conditions of his community supervision by 1) giving a fictitious name to

a peace officer, 2) failing to report to his community supervision officer, 3)


                                      1
failing to perform his community service restitution hours, 4) failing to pay

supervision fees, 5) failing to pay fines and court costs, 6) failing to pay

laboratory fees, 7) failure to pay for his offender identification card, 8)

failure to pay the Crimestopper’s fee, and 9) failure to participate in Anger

Management meetings. (TR. at 35) On January 7, 2015, the Appellant

pleaded “Not True” to allegations 1, 3, 4, 7, 8, and 9 and pleaded “True”

to allegations 2, 5, and 6. (R.R. Vol. 2 at 8-12)

A.    State’s Witnesses

      1.    Michelle Nelson
      Michelle Nelson testified that she used to work as a supervision

officer for the Harris County Community Supervision and Corrections

Department and personally supervised Appellant for some of his

probation which he began on May 4, 2011. (R.R. Vol. 2 at 13-15) Nelson

stated that Appellant had absconded and that his probation had not been

terminated. (R.R. Vol. 2 at 16) She testified that Appellant acknowledged

that he understood the conditions of his probation as late as August 27,

2012 when she explained the requirements to him. (R.R. Vol. 2 at 18)

Nelson stated that Appellant failed to report to his probation officer for the

following months:    September 2012, October 2012, November 2012,

December 2012, January 2013, and February 2013. (R.R. Vol. 2 at 19)



                                      2
      Nelson testified that Appellant failed to perform community service

restitution hours for the following months: September 2012, October

2012, November 2012, December 2012, January 2013, and February

2013. (R.R. Vol. 2 at 20) She testified that Appellant failed to pay

supervision fees, fines and court costs, and laboratory fees for the

following months: September 2012, October 2012, November 2012,

December 2012, January 2013, and February 2013. (R.R. Vol. 2 at 21-

22) She stated that Appellant also failed to pay for his $12.50 offender

identification card, $50.00 Crimestopper’s fee, and failed to participate in

his anger management classes. (R.R. Vol. 2 at 22) Nelson testified that

a motion to adjudicate guilt was filed on August 28, 2012, and an

amended motion to adjudicate guilt was filed on September 28, 2014.



      On cross-examination, Nelson admitted that she left the Harris

County Community Supervision and Corrections Department in

December of 2012 and has no personal knowledge of Appellant’s

caseload after that date. (R.R. Vol. 2 at 24) She admitted that the case

file had no evidence to support the allegation that Appellant failed to report

to his probation officer in September of 2012. (R.R. Vol. 2 at 25) Nelson

also conceded that a further review of the case file showed that Appellant



                                      3
paid his Crimestopper’s fee and offender identification card fee on March

4, 2012. (R.R. Vol. 2 at 33) She admitted that a further review of the case

file shows that Appellant was only $537.50 in arrears for his supervision

fees and not the alleged $1,197.00. (R.R. Vol. 2 at 37) Nelson conceded

that she resigned her job as a probation department employee because

of mismanagement of probation files. (R.R. Vol. 2 at 41) She also

admitted that the case file was missing certain documents which would

have helped the court in this hearing. (R.R. Vol. 2 at 42) On redirect

examination, Nelson stated that the probationer’s payment history is

calculated by a computer. (R.R. Vol. 2 at 42)



     2.    Michael Medina
     Harris County Sheriff’s Deputy Michael Medina testified that on

September 2, 2014, he conducted a traffic stop on a Mercedes in which

Appellant was the front seat passenger. (R.R. Vol. 2 at 43-46) Medina

stated that he saw the driver named Zermano hand Appellant an unknown

object inside the vehicle. (R.R. Vol. 2 at 47) He testified that Appellant

claimed that he did not have any identification and stated that his name

was Dimas Saenz with a birthdate of 7/15/88. (R.R. Vol. 2 at 48) Medina

testified that he could not locate any information with that name and



                                    4
birthdate after a computer check. (R.R. Vol. 2 at 48) He stated that

Appellant was not wearing a seatbelt and dropped his cell phone and an

orange pill bottle as he exited the vehicle. (R.R. Vol. 2 at 49-50) Medina

testified that the pill bottle contained 19 clear plastic baggies of cocaine

which weighed about 6.5 grams. (R.R. Vol. 2 at 51) He stated that a

fingerprint check of the Appellant at the police station revealed that

Appellant’s name was Dezmond Garcia who had an outstanding warrant

for his arrest. (R.R. Vol. 2 at 52)

      On cross-examination, Medina stated that Appellant never

volunteered his correct name and birthdate. (R.R. Vol. 2 at 56) He

admitted that he did not see the object that Zermano handed to Appellant,

but claimed that Appellant dropped both the pill bottle and his cell phone

as he exited the vehicle. (R.R. Vol. 2 at 61) Medina conceded that he

opened the pill bottle because he believed it contained contraband. (R.R.

Vol. 2 at 67)



B.    Defense Witnesses
      1.    Carlos Huerta
      Carlos Huerta testified that he operates a refrigeration business and

that Appellant is his nephew. (R.R. Vol. 3 at 6) Huerta stated that

Appellant is a good boy who often worked for him during the busy summer

                                      5
months. (R.R. Vol. 3 at 7) He explained that his nephew is a good family

man who has a pregnant wife and 3 daughters. (R.R. Vol. 3 at 8) Huerta

acknowledged that he will have job available for Appellant if the court

reinstates him on probation. (R.R. Vol. 3 at 9)

      On cross-examination, Huerta stated that that Appellant had no

physical impediments to working. (R.R. Vol. 3 at 11) He admitted that he

was not aware of Appellant’s criminal activities. (R.R. Vol. 3 at 11)

      2.    Janie Gonzales
      Janie Gonzales testified that she and Appellant have 3 daughters

named Emily, Evelyn, and Emery. (R.R. Vol. 3 at 12) She admitted that

she did not know that her husband had stopped reporting to his probation

officer. (R.R. Vol. 3 at 52) Gonzales explained that he stopped reporting

to his probation officer because he had to work to support his family. (R.R.

Vol. 3 at 14) She testified that she is pregnant with their son who is due

in a month. (R.R. Vol. 3 at 15-16) Gonzales stated that they lost their

apartment soon after he was arrested. (R.R. Vol. 3 at 17) She promised

that she would ensure that her husband would faithfully report to his

probation officer if the court allows him to return home. (R.R. Vol. 3 at 17)

Gonzales described Appellant as a good father who attended his

children’s medical appointments. (R.R. Vol. 3 at 19)



                                     6
      On cross-examination, Gonzales admitted that she cannot follow

her husband everywhere. (R.R. Vol. 3 at 20) She conceded that she did

not know if his work hours conflicted with his probation requirements.

(R.R. Vol. 3 at 21)



C.    Trial Court’s Ruling
      After arguments of counsel, the trial court found that the following 5

allegations to be True: 1) that Appellant gave a peace officer a fictitious

name, that he failed to report to his supervision officer, 2) that he failed to

perform community service hours, 3) that he failed to pay his supervision

fees, 4) that he failed to pay fines and court costs, and 5) that he failed to

pay his laboratory fees. (R.R. Vol. 3 at 24-25) The trial court found the

other 4 allegations to be Not True. (R.R. Vol. 3 at 24-25) The trial court

adjudicated Garcia guilty of Aggravated Assault and sentenced him to 8

years in the Texas Department Of Criminal Justice and a fine of $500.00.

(R.R. Vol. 3 at 26) Appellant perfected his appeal on February 7, 2015.

(TR. at 46)




                                      7
                          POINTS OF ERROR




POINT OF ERROR ONE:

     The evidence was insufficient to support the trial court’s revocation
of Appellant’s community supervision for violation of a condition of
supervision.




POINT OF ERROR TWO:

     The trial court erred by assessing a sentence against Appellant
which was excessive and disproportionate to the crime committed.




                                    8
                       POINT OF ERROR NO. 1

   THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE TRIAL

      COURT’S REVOCATION OF APPELLANT’S COMMUNITY

        SUPERVISION FOR VIOLATION OF A CONDITION OF

                             SUPERVISION


     “In a hearing on a motion to revoke probation, the State must

prove every element of the ground asserted for revocation by a

preponderance of the evidence.” Moore v. State, 11 S.W. 3d 495, 498

(Tex. App. – Houston [14th Dist.] 2000, no pet.) To meet the State’s

burden of proof, the greater weight of the evidence must create a

reasonable belief that the defendant violated a condition of probation.

Id. at 498. “The State satisfies its burden when the greater weight of the

evidence before the trial court creates a reasonable belief demonstrating

it is more probable than not that the defendant has violated a condition

of his community supervision.” Staten v. State, 328 S.W.3d 901, 905

(Tex. App. – Beaumont 2010, no pet.)     The trial court is the sole trier of

fact and also determines the credibility of the witnesses and the weight

to be given their testimony. Battle v. State, 571 S.W.2d 20, 22 (Tex.

Crim. App. 1978) The appellate court examines whether the trial court




                                    9
abused its discretion in revoking the appellant’s probation. Rickels v.

State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).



      Appellant contends that the State failed to prove by a

preponderance of the evidence the five allegations which the trial court

found to be true.



Fictitious Name

      Deputy Medina testified that Appellant gave him a false name and

birthdate. (R.R. Vol. 2 at 48) However, Medina admitted that Appellant

may have told his real name and birthdate to Deputy McClerkin before

he was fingerprinted based on an entry in Medina’s supplemental report.

(R.R. Vol. 2 at 58)

Failure To Report, Perform Community Service, Pay Fine & Courts,
and Pay Laboratory Fees

      While Nelson testified that Appellant violated his probation by

failing to report, perform community service, pay fines and courts, and

pay laboratory fees, she admitted that she was simply testifying from a

copy of the amended motion to adjudicate guilt and based on the

contents of the probation officer’s case file. (R.R. Vol. 2 at 25) In fact,

Nelson admitted that she had no personal knowledge of the case file

                                     10
because she had resigned from the Harris County Community

Supervision and Corrections Department in December of 2012 for

mismanagement of probationer’s case files. (R.R. Vol. 2 at 41) She

even conceded that many important documents were missing from

Appellant’s case file that would have assisted the court in this

adjudication hearing. (R.R. Vol. 2 at 42) In addition, Nelson grudgingly

admitted that she was wrong when she testified that Appellant had not

paid the Crimestopper’s fee and the offender identification card fee.

(R.R. Vol. 2 at 33)

      Appellant contends that Medina’s admission that Appellant may

have given his true name to Deputy McClerkin before fingerprinting is

not sufficient proof that Appellant violated his probation by providing a

fictitious name to police. Appellant also contends the Nelson’s

testimony was not sufficient to prove that Appellant violated the 4 listed

conditions because Nelson had no personal knowledge of the case file

and because her testimony lacked credibility because of her resignation

for mismanagement of probationer’s case files. The prosecutor should

have introduced testimony from a probation officer who was familiar with

Appellant’s case file instead of a former employee who resigned under

pressure for incompetence. Appellant contends that the trial court erred



                                    11
by adjudicating Appellant’s guilt based on the questionable testimony of

a discredited witness.



     Based on the foregoing, Appellant contends that the trial court

abused its discretion by finding the allegations to be true and revoking

Appellant’s community supervision. Therefore, Appellant requests the

court reverse and remand this case for a new trial.




                                    12
                        POINT OF ERROR NO. 2

THE TRIAL COURT ERRED BY ASSESSING A SENTENCE AGAINST

APPELLANT WHICH WAS EXCESSIVE AND DISPROPORTIONATE

                      TO THE CRIME COMMITTED



      Appellant contends that the sentence assessed against him was

excessive and disproportionate to the crime committed. “If the trial court

assesses a punishment within the statutorily prescribed limits, the

punishment is not cruel and unusual and generally will not be disturbed

on appeal.” Buerger v. State, 60 S.W. 3d 358, 365 (Tex. App. – Houston

[1st Dist.] 2001, review ref’d).   “A trial judge has broad discretion in

determining whether to revoke community supervision, and must be the

sole judge of the credibility of the witnesses before him.” Corpus v. State,

26 S.W.3d 660, 662 (Tex. App. – Corpus Christi 2000).             However,

Appellant contends that the trial court’s punishment was disproportionate

to the crime committed and did violate his constitutional rights under the

Eighth Amendment to the United States Constitution and Article I, Section

Thirteen of the Texas Constitution.




                                      13
      By revoking Appellant’s probation, the court has penalized

Appellant for ignoring his community supervision requirements by working

to support his wife and three children. To make matters more difficult for

his family, Appellant is now the father of a fourth child born while he was

in jail to a wife who lost the family’s apartment because her husband could

no longer financially provide for the family. The trial court had the

discretion to sentence Garcia anywhere from a minimum of 2 years in

prison to a maximum of 20 years in prison. The trial court also had the

discretion to reinstate Garcia on probation after hearing testimony that

Appellant was a good husband and father who tried his best to support

his family. By assessing Garcia the lengthy sentence of 8 years and by

rejecting the reinstatement of his probation, the trial court failed to

consider that Garcia had valid reasons for not fulfilling all of the

requirements of his probation. By not reinstating Appellant on probation

or by not sentencing him closer to the low end of the punishment range,

the trial court administered an excessive and disproportionate sentence

for the community supervision conditions which Appellant violated.




                                    14
                             CONCLUSION

      For the reasons stated, Appellant Garcia prays the Court to reverse
and acquit or in the alternative to reverse and remand this cause for a
new trial.
                                         Respectfully submitted,

                                         _/s/ Crespin Michael Linton_
                                         Crespin Michael Linton
                                         440 Louisiana, Suite 900
                                         Houston, Texas 77002
                                         Texas Bar No. 12392850
                                         (713) 236-1319
                                         (713) 236-1242 (Fax)

                   CERTIFICATE OF COMPLIANCE

     I hereby certify that Appellant’s Brief, as calculated under Texas
Appellate Rule of Appellate Procedure 9.4, contains 2,982 words as
determined by the Word program used to prepare this document.

                                         _/s/ Crespin Michael Linton
                                         Crespin Michael Linton

                      CERTIFICATE OF SERVICE

      I do hereby certify that on this the 26th day of May 2015, a true and
correct copy of the foregoing Appellant’s Brief was served by E-service in
compliance with Local Rule 4 of the Court of Appeals or was served in
compliance with Article 9.5 of the Rules of Appellate Procedure delivered
to the Assistant District Attorney of Harris County, Texas, 1201 Franklin
Street, Suite 600 Houston, Texas 77002 at curry_alan@dao.hctx.net.

                                         __/s/_Crespin Michael Linton__
                                         Crespin Michael Linton




                                    15
