Fatima Rahman v. State ( 2015 )

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
Will. 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
17