Hector Hato LaBoy v. State ( 2015 )

ACCEPTED
03-15-00433-CR
7814253
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/13/2015 9:57:44 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00433-CR
FILED IN
3rd COURT OF APPEALS
In the Texas Court of Appeals AUSTIN, TEXAS
Third District, at Austin 11/13/2015 9:57:44 AM
JEFFREY D. KYLE
Hector Hato Laboy, Clerk
Appellant
v.
The State of Texas,
Appellee
Appeal from the County Court at Law No. 4 of Travis County
Cause Number D-1-DC-13-204642
STATE’S BRIEF
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
Oral argument is not requested
Table of Contents
Index of Authorities............................................................................. ii
Summary of the State’s Argument........................................................1
Standard of Review.............................................................................. 3
Argument ............................................................................................. 3
Reply Point One: The evidence is legally sufficient to show that
Appellant committed a terroristic threat. ......................................... 3
Reply Point Two: Appellant has not shown ineffective assistance of
counsel. ............................................................................................. 5
Prayer ...................................................................................................7
Certificate of Compliance and Service ................................................. 8
i
Index of Authorities
Cases
Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006)................... 3
Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003) .................7
Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009) ................ 5, 6
Strickland v. Washington, 466 U.S. 668 (1984) ................................. 5
Statutes
Tex. Penal Code § 22.07....................................................................... 3
ii
No. 03-15-00433-CR
In the Texas Court of Appeals
Third District, at Austin
Hector Hato Laboy,
Appellant
v.
The State of Texas,
Appellee
Appeal from the County Court at Law No. 4 of Travis County
Cause Number D-1-DC-13-204642
STATE’S BRIEF
To the Honorable Third Court of Appeals:
Now comes the State of Texas and files this brief in response to
Appellant’s brief.
Summary of the State’s Argument
Point One: The motion to revoke probation alleged that Appellant
committed a new offense of terroristic threat. Appellant argues that
the evidence is legally insufficient to show that he intended to place
anyone in fear of imminent serious bodily injury.
1
Reply: Considering the surrounding circumstances and the lower
burden of proof in a revocation hearing, the trial court did not abuse
its discretion in finding that Appellant committed the offense of
terroristic threat. Additionally, the court’s judgment should be upheld
because there are several other independent grounds for revocation.
Point Two: Appellant claims that he received ineffective
assistance of counsel because his attorney did not make a hearsay and
confrontation clause objection to testimony about a criminal mischief
offense alleged in the motion to revoke.
Reply: It is not clear that a hearsay or confrontation clause
objection would have been sustained, but in any case, there is no
harm because the testimony was cumulative of previously-admitted
testimony. There is also no harm because the court had multiple
other grounds for revocation. Additionally, trial counsel has not had
an opportunity to defend herself. For all of these reasons, Appellant
has not shown that counsel was ineffective, and the court’s judgment
should be affirmed.
2
Standard of Review
A trial court’s order revoking probation is reviewed for an abuse of
discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
2006).
Argument
Reply Point One: The evidence is legally sufficient to show
that Appellant committed a terroristic threat.
The State filed a motion to revoke Appellant’s probation, which
alleged that Appellant had committed a new offense of terroristic
threat (among other things). CR 61. The State had the burden to
prove the terroristic threat by a preponderance of the evidence.
Rickels, 202 S.W.3d at 763-64.
A person commits the offense of terroristic threat if he threatens
to commit any offense involving violence to any person or property
with intent to place any person in fear of imminent serious bodily
injury. Tex. Penal Code § 22.07.
Appellant does not dispute that he called his ex-girlfriend Cassie
and threatened to kill her friend Jakuri, but Appellant argues that the
evidence is legally insufficient to show that he intended to place
3
anyone in fear of imminent serious bodily injury because Appellant
made the threat in a single phone call, he did not elaborate, he did not
say that he was looking for Jakuri and would kill him when he found
him, and Appellant had already left the victims’ house.
Appellant fails to account for the surrounding circumstances:
Appellant made the threat on the same night that he slashed Jakuri’s
tires. 2RR 15. Appellant made the threat soon after the police stopped
and questioned him about the tire slashing, so he knew that Jakuri
had called the police, and he knew that he was facing criminal
penalties, including possible prison time, for his actions. 2RR 10-12.
Appellant was last seen only two blocks away from the victims’ house.
2RR 14. Appellant has a history of violence. 2RR 18; CR 16. And
Appellant did not say anything to indicate that the threat was not
imminent. To the contrary, the point of the threat was to cause Cassie
and Jakuri immediate fear. In fact, Jakuri was afraid for himself and
his kids, who were also at the house. 2RR 14.
Considering the circumstances, as well as the lower burden of
proof in a revocation hearing, the trial court did not abuse its
4
discretion in finding that Appellant committed the offense of
terroristic threat.
Even assuming, for the sake of argument, that the evidence is
insufficient to prove terroristic threat, the court’s order revoking
probation should be upheld because only one sufficient ground is
needed to uphold the trial court’s order. Smith v. State, 286 S.W.3d
333, 342 (Tex. Crim. App. 2009). In this case, the trial court found
that Appellant 1) committed the offense of terroristic threat, 2)
committed the offense of criminal mischief, 3) tested positive for
cocaine, 4) tested positive for marijuana, and 5) failed to submit a
specimen as directed. CR 64. Because there are multiple independent
grounds for revoking probation, the court’s order should be upheld.
Reply Point Two: Appellant has not shown ineffective
assistance of counsel.
In an ineffective assistance claim, the burden is on the appellant
to show by a preponderance of the evidence that (1) counsel's
performance was deficient, and (2) there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668 (1984).
5
Appellant claims that he received ineffective assistance of counsel
because his attorney did not make hearsay and confrontation clause
objections to Officer Lucas’s testimony that, “I originally started
talking to Jakuri and he was -- informed me of the criminal mischief
act, and he was showing me the tires.” 2RR 13.
First, it does not appear that a hearsay or confrontation clause
objection would have been successful. What is the objectionable out-
of-court statement, exactly?
Second, Appellant cannot show that this testimony harmed him
because Officer Lucas had already testified that he responded to a
criminal mischief call and that he personal observed the victim’s car
with all four tires slashed. 2RR 10-12. The complained-of testimony
did not add anything to this previously-admitted testimony.
Third, Appellant cannot show that there is a reasonable
probability that, but for counsel’s errors, the result of the proceeding
would have been different because there were multiple grounds for
revocation. See Smith, 286 S.W.3d at 342-45. Indeed, the trial court
indicated that it would have revoked probation based on the
terroristic threat offense alone. 2RR 35-38.
6
Finally, trial counsel should not be denounced as ineffective
because she has not had an opportunity to defend herself. Rylander
v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
For all of these reasons, Appellant has not shown that counsel was
ineffective, and the trial court’s order revoking probation should be
upheld.
Prayer
The State asks this Court to overrule Appellant’s points of error
and affirm the trial court’s judgment.
Respectfully submitted,
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
7
Certificate of Compliance and Service
I certify that this brief contains 1,036 words. I further certify that,
on the 13th day of November, 2015, a true and correct copy of this
brief was served, by U.S. mail, electronic mail, facsimile, or
electronically through the electronic filing manager, to the
defendant’s attorney, John S. Butler, 700 Lavaca Street, Suite 1400,
Austin, Texas 78701.
Angie Creasy
8