Riddle, Michael Wade ( 2014 )

PD-1627-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/29/2014 9:05:12 AM
Accepted 12/30/2014 9:59:38 AM
ABEL ACOSTA
Cause No. PD-1627-14 CLERK
In the Court of Criminal
Appeals of Texas
Michael Wade Riddle,
Petitioner
December 30, 2014 v.
The State of Texas,
Respondent
On Review from Cause No. 02-14-00180-CR
in the Second Court of Appeals
Fort Worth, Texas
State’s Response to Petitioner’s PDR
Maureen Shelton
Wichita County Criminal District Attorney
Anthony Bates Carey Jensen
Asst. Criminal District Attorney Asst. Criminal District Attorney
Wichita County, Texas Wichita County, Texas
State Bar No. 24076904 State Bar No. 24083252
Tony.Bates@co.wichita.tx.us Carey.Jensen@co.wichita.tx.us
900 Seventh Street
Wichita Falls, Texas 76301
(940) 766-8113 phone
(940) 716-8530 fax
Attorneys for Respondent State of Texas
Oral Argument Not Requested
To the Court of Criminal Appeals:
Pursuant to Rule 68.9 of the Rules of Appellate Procedure, the State
submits its reply to Appellant’s petition for discretionary review. The State
makes this reply in order to briefly address arguments set forth by
Appellant in his petition.
Statement Regarding Oral Argument
The State is not requesting oral argument in this case.
Argument
The State respectfully requests this Court deny Appellant’s petition
because (1) the Petitioner expressly waived his right to closing argument
prior to the trial court’s announcement of the sentence; and (2) the
probation condition that required the Petitioner to successfully complete
sex offender treatment counseling was not modified; therefore, Tex. Crim.
Proc. Code Ann. Art 42.12 §10(e) was not triggered.
Petitioner expressly waived his right to closing argument in the
disposition phase of trial.
Petitioner argues that the trial court refused to allow closing
arguments on sentencing. Petitioner asserts that he did make an objection
prior to the trial court pronouncing sentence and further that he was “not
required to formally make a request again or except to the court’s ruling.”
(PDR at 7)
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Petitioner was represented by his court-appointed counsel, Brennon
Brady, at the sentencing hearing.1 Mr. Brady did make an objection prior to
the pronouncement of sentence. However, Petitioner misleads this Court
by insinuating that the objection pertained to closing arguments. (PDR at 5,
7) Immediately preceding the trial court’s denial of Petitioner’s motion for
continuance, Mr. Brady stated, ““…there’s really nothing left for us [to do]
other than hear the Court’s sentence in this case. And I’m prepared to hear
the sentence and Mr. Riddle just would like to ask for a continuance so that
[another attorney] would be present at the sentencing.” (R.R. 5:6) This
constituted an express waiver of the right to closing argument by the
Petitioner.
The probation condition at issue was not modified.
The condition at issue required Petitioner to “remain in the Sexual
Abuse Treatment Program until the program [had] been successfully
completed, as determined by the treatment specialist…” (C.R. 61) This
condition did not specify who the treatment specialist would be or describe
the program in any way, except by calling it the Sexual Abuse Treatment
Program. As such, a change in provider or even the program itself did not
1
Despite repeated references to Mr. Brady as a fill-in attorney, he was in fact the
Petitioner’s attorney of record at the time of trial. (C.R. 70)
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constitute a modification of the condition, so long as it remained the Sexual
Abuse Treatment Program.
This is not to say that the State could have required Petitioner to
participate in an unrelated program without proper modification simply by
labeling that unrelated program the “Sexual Abuse Treatment Program.”
Clearly, this was not such a situation. The program, regardless of changes
in provider, really was always the Sexual Abuse Treatment Program, and
nothing in the record indicates evidence to the contrary. As such, the only
way for Petitioner to continue in the program as required by the probation
condition was to continue with the new treatment provider.
Prayer
The State prays that the Court deny Appellant’s petition for
discretionary review.
Respectfully submitted,
Maureen Shelton
Criminal District Attorney
Wichita County, Texas
/s/Anthony Bates
Anthony Bates
Asst. Criminal District Attorney
Wichita County, Texas
State Bar No. 24076904
Tony.Bates@co.wichita.tx.us
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/s/Carey Jensen
Carey Jensen
Asst. Criminal District Attorney
Wichita County, Texas
State Bar No. 24083252
Carey.Jensen@co.wichita.tx.us
900 Seventh Street
Wichita Falls, Texas 76301
(940) 766-8113 phone
(940) 766-8177 fax
Certificate of Compliance
I certify that this document contains 523 words. The body text is in
14 point font, and the footnote text is in 12 point font.
/s/Carey Jensen
Certificate of Service
I certify that on December 29, 2014, a true and correct copy of the
above document has been forwarded Paul Francis via electronic service to
pfrancis@birch.net as well as the State Prosecuting Attorney, Lisa C.
McMinn, via electronic service to information@spa.texas.gov.
/s/Carey Jensen
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