Kevin Johnson v. State ( 2015 )

ACCEPTED
04-15-00608-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
12/29/2015 5:46:51 PM
KEITH HOTTLE
CLERK
NO.
04-­‐15-­‐00608-­‐CR
IN
THE
COURT
OF
APPEALS
FILED IN
4th COURT OF APPEALS
FOURTH
COURT
OF
APPEALS
DISTRICT
SAN ANTONIO, TEXAS
SAN
ANTONIO,
TEXAS
12/29/15 5:46:51 PM
KEITH E. HOTTLE
Clerk
KEVIN
DSHON
JOHNSON,
Appellant
V.
THE
STATE
OF
TEXAS,
Appellee
ON
APPEAL
FROM
THE
187th
DISTRICT
COURT
OF
BEXAR
COUNTY
TEXAS
CAUSE
NUMBER
2011-­‐CR-­‐0685
BRIEF
FOR
THE
APPELLANT
EDWARD
F.
SHAUGHNESSY
206
E.
Locust
Street
San
Antonio,
Texas
78212
(210)
212-­‐6700
(210)
212-­‐2178
(FAX)
Shaughnessy727@gmail.com
SBN
18134500
ORAL
ARGUMENT
WAIVED
ATTORNEY
FOR
APPELLANT
TABLE
OF
CONTENTS
Table of Contents ............................................................................................. i
Table of Interested Parties .............................................................................. ii
Table of Authorities ........................................................................................iii
Brief for the Appellant..................................................................................... 1
Summary of the Argument.............................................................................. 3
Appellant’s
Sole
Point
of
Error
.................................................................................................
4
Argument and Authorities .............................................................................. 4
Conclusion and Prayer .................................................................................... 8
Certificate of Service ....................................................................................... 9
Certificate of
Compliance…………………………………………………………………………... ............. 10
i
PARTIES
AND
COUNSEL
TRIAL
COUNSEL
FOR
THE
STATE:
MICHAEL
DE
LEON
Assistant
Criminal
District
Attorney
Bexar
County,
Texas
San
Antonio,
Texas
78205
TRIAL
COUNSEL
FOR
APPELLANT:
DEBORAH
BURKE
325
South
Main
San
Antonio,
Texas
78205
APPELLANT’S
ATTORNEY
ON
APPEAL:
EDWARD
F.
SHAUGHNESSY,
III
206
E.
Locust
Street
San
Antonio,
Texas
(210)212-­‐6700
(210)
212-­‐2178
Fax
SBN
18134500
TRIAL
JUDGE:
PAT
PRIEST
187th
Judicial
District
Bexar
County,
Texas
ii
TABLE
OF
AUTHORITIES
Case(s)
Page(s)
Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967) ............. 6
Davila v. State, 767 S.W.2d 205 (Tex. App.-Corpus Christi, 1989) .................. 7
Diaz v. State, 172 S.W.3d 668 (Tex. App.-San Antonio, 2005) ......................... 6
Ex Parte Shivers, 501 S.W.2d 898 (Tex. Crim. App. 1973) ............................... 6
LeBlanc v. State, 768 S.W.2d 881 (Tex. App.-Beaumont, 1989) ....................... 6
Morris v. State, 837 S.W.2d 789 (Tex. App.-Houston [14th Dst.], 1993) .......... 6
iii
NO.
04-­‐15-­‐00608-­‐CR
KEVIN
DSHON
JOHNSON,
§
COURT
OF
APPEALS,
FOURTH
Appellant
§
V.
§
COURT
OF
APPEALS
DISTRICT
THE
STATE
OF
TEXAS,
§
Appellee
§
SAN
ANTONIO,
TEXAS
BRIEF FOR THE APPELLANT
TO THE HONORABLE COURT OF APPEALS:
Now comes the appellant, Kevin Dshon Johnson, and files this
brief in Cause No. 04-15-00608-CR. The appellant appeals from an
order revoking his probation and sentencing him to five years of
confinement in cause number 2011-CR-0685 entered on August 19,
2015. The appellant was indicted by a Bexar County Grand Jury on
August 6, 2013 for the offense of Possession of a Controlled Substance
in cause number 2011-CR-0685. The appellant was subsequently
placed on community supervision for a period of five years. The
appellant’s community supervision was subsequently revoked and he
1
was sentenced to the Texas Department of Criminal Justice-
Institutional Division for a period of five years. A two-thousand
($2,000.00) dollar fine was also assessed. The appellant filed a timely
Notice of Appeal and this appeal has followed.
2
SUMMARY OF ARGUMENT
The trial Court erred in revoking the appellant’s community
supervision and sentencing him to five years of incarceration because
the record does not demonstrate a knowing plea of true to the
allegations found to be true by the trial Court at the hearing on the
motion to revoke community supervision.
3
APPELLANT’S SOLE
POINT OF ERROR
The trial Court erred in granting the State’s motion to revoke
the appellant’s community supervision in the absence of a knowing
and voluntary plea of true by the appellant to the allegations set forth
in the State’s First Amended Motion to Revoke Community
Supervision (Adult Probation).
STATEMENT OF APPLICABLE FACTS
On October 10, 2014 the State of Texas caused to be filed a First
Amended Motion to revoke Community Supervision (Adult
Probation) in cause number 2011-CR-0655. On August 15, 2015 the
motion came to be heard in the 187th District Court of Bexar County.
Counsel for the appellant informed the trial Court that the parties had
not been able to reach an agreement as to the disposition of the
matter. During the course of the hearing on the State’s motion, an
abbreviated evidentiary hearing was conducted in the convicting
court. During the course of that hearing, the trial Court informed the
appellant that the State of Texas had filed with the Court an amended
motion to revoke his probation along with a supplement to that
motion. (R.R.4-3) The record reflects that the appellant’s attorney
4
had informed him that if he entered a plea of true he would receive a
three-year sentence, which appellant’s counsel confirmed.1
Additionally trial counsel informed the trial Court that the
appellant was going to plead true to “everything” and that she had
told the appellant of the contents of the various motions. (R.R.4-3)
The trial Court then informed the appellant that there were “ a lot of
allegations of failure to report and so forth; allegations of use of
marijuana… failure to pay all the fees you were supposed to pay.”
(R.R.4-5) The appellant was then asked by the trial Court if except
failure to pay was true: the appellant then answered the trial Court in
the affirmative. (R.R.4-5) The State of Texas presented no evidence
in support of the motion or motions. Nor did the State ask leave of
the Court to proceed on the amended motion to revoke of the
supplement thereto. After the sides had rested, the appellant
inquired of the Court regarding the fact that his Court of Bexar
County.
1
This representation is in accord with the prosecutor’s recommendation that the appellant be
revoked and sentenced to a term of three years incarceration. The trial Court at that point
informed the parties that the minimum punishment available was in fact five years of
incarceration. (R.R.4-6)
5
ARGUMENT AND AUTHORITIES
The defendant at a hearing on a State’s motion to revoke his
probation enjoys a constitutional right to due process of law that
includes the right to assistance of effective counsel. Ex Parte Shivers,
501 S.W.2d 898 (Tex. Crim. App. 1973). See: Diaz v. State, 172
S.W.3d 668 (Tex. App.-San Antonio, 2005). The Sixth Amendment’s
right to effective assistance of counsel is implicated in the course of a
motion to revoke hearing. Mempa v. Rhay, 389 U.S. 128, 88 S. Ct.
254, 19 L. Ed. 2d 336 (1967).
The instant case reveals a scenario wherein the appellant was
denied his right to due process of law as implicated by his Sixth
Amendment right to effective assistance of counsel. This violation is
not speculative; on the contrary the record demonstrates that the
appellant’s plea of true was premised upon his misguided belief that
his plea of true would result in the imposition of a three-year
sentence. The appellant’s misperception was confirmed both by the
comments of his counsel and those of the prosecutor. Consequently
the plea of true entered by the appellant was involuntary and cannot
be considered valid. See: Morris v. State, 837 S.W.2d 789 (Tex. App.-
6
Houston [14th Dst.], 1993); LeBlanc v. State, 768 S.W.2d 881 (Tex.
App.-Beaumont, 1989); Davila v. State, 767 S.W.2d 205 (Tex. App.-
Corpus Christi, 1989).
7
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant, Kevin
Johnson, prays that this Court, reverse the judgment of the trial
Court and remand the cause.
//Edward F. Shaughnessy,III
EDWARD F. SHAUGHNESSY, III
206 E. Locust
San Antonio, Texas 78212
(210) 212-6700
(210) 212-2178 (fax)
SBN 18134500
Shaughnessy727@gmail.com
Attorney for the appellant
8
CERTIFICATE OF SERVICE
I, Edward F. Shaughnessy, III, attorney for the appellant hereby
certify that a true and correct copy of the instant pleading was served
upon Nico LaHood Criminal District Attorney for Bexar County,
attorney for the appellee, at 101 W. Nueva , San Antonio, Texas 78205
by use of the U.S. Mail on this the ___ of December, 2015.
//Edward F. Shaughnessy,III
____________________
Edward F. Shaughnessy, III
Attorney for the Appellant
9
CERTIFICATE OF COMPLIANCE
I, Edward F. Shaughnessy, III, attorney for the appellant,
hereby certify that the instant document contains 1251 words.
//Edward F. Shaughnessy,III
_____________________
Edward F. Shaughnessy, III
10