John Edison Lasher v. State ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00390-CR
No. 10-09-00391-CR
JOHN EDISON LASHER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 278th District Court
Leon County, Texas
Trial Court Nos. CM-01-192 and CM-01-193
MEMORANDUM OPINION
John Edison Lasher pled guilty to aggravated sexual assault of a child and was
placed on ten years deferred adjudication community supervision (10-09-00390-CR).
TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2009). At the same time, Lasher pled
guilty to the offense of indecency with a child and was sentenced to ten years in prison
(10-09-00391-CR). TEX. PENAL CODE ANN. § 21.11 (Vernon Supp. 2009). He was later
placed on community supervision for ten years for this offense. In 2005, after the trial
court conducted a hearing on the State’s third amended motion to adjudicate and its
third amended motion to revoke Lasher’s community supervision, Lasher was
sentenced to life in prison for the aggravated sexual assault offense and ten years in
prison for the indecency with a child offense. He appeals both convictions. We affirm.
Lasher presents the same singular issue for each appeal, that the trial court
denied Lasher due process when the trial court slept while testimony was being
presented during the hearing to revoke Lasher’s community supervision. It is helpful
to a determination of this issue for us to set out Lasher’s brief below. All emphasis and
inserts are as presented in the brief.
SUMMARY OF THE ARGUMENT
The Trial Court DENIED Appellant due process, when the Trial
Court slept while testimony was being presented during the hearing on
the State’s Motions to revoke Appellant’s Community Supervision.
STATEMENT OF FACTS
During the hearing on the State’s Motions to revoke Appellant’s
Community Supervision, the following colloquy occurred between the
Trial Court, Appellant’s Counsel MARK R. MALTZBERGER, and witness
SHELLY RENE MONEHAN. (RPTR. REC. I – 45 – 46).
MR. MALTZBERGER: Let me ask you this ma’am. I would like
you to address the Judge with this. If [Appellant] were released back on
probation, how can you guarantee this Court that [Appellant] would be
more successful on probation when [Appellant] was released now?
MS. MONEHAN: He - - like, what do you mean?
MR. MALTZBERGER: Tell the Judge how would that
happen?
MS. MONEHAN: Is [the Judge] awake over there?
MR. MALTZBERGER: Excuse me, Your Honor. Excuse
me, Judge.
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THE COURT: What?
ARGUMENT AND AUTHORITIES
The Due Process Clause of the Fourteenth Amendment provides
that no State may “deprive any person of life, liberty, or property, without
due process of law.” The touchstone of due process is fundamental
fairness. Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). Here, Appellant
was denied the opportunity to have the Trial Court evaluate testimony
when the Trial Court slept while testimony was being presented during
the hearing on the State’s Motions to revoke Appellant’s Community
Supervision. Accordingly, this Court should sustain Appellant’s ISSUE
NUMBER ONE; reverse the Judgments and Sentences of the Trial Court
below; and remand the Causes to the Trial Court for a new hearing on the
allegations set out in the State’s Motions to revoke Appellant’s
Community Supervision.
CONCLUSION AND PRAYER
For the foregoing reasons, Appellant respectfully prays that this
Honorable Court REVERSE the Judgments and Sentences of the Trial
Court below; and, REMAND the Causes to the Trial Court for a new
hearing on the allegations set out in the State’s Motions to revoke
Appellant’s Community Supervision.
There are many reasons why Lasher’s issue is overruled. First, no alleged error
is preserved. No objection was made to the alleged incident by either party. See TEX. R.
APP. P. 33.1. Further, the record does not show that the trial court missed any testimony
at all. It is clear from the record that the witness had not begun her answer to the
question proposed. And, after the court replied “what?,” Lasher’s counsel summarized
what he had asked the witness. The witness then answered the question. At best, the
record only shows a momentary lack in concentration by the court.
Second, the issue is inadequately briefed and presents nothing for review. TEX.
R. APP. P. 38.1(h); see Johnson v. State, 263 S.W.3d 405 (Tex. App.—Waco 2008, pet. ref’d).
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Lasher cites to one case for the proposition that the touchstone of due process is
fundamental fairness. He fails to explain how this or any other case supports his
argument that he was denied due process by the trial court’s alleged action. Even if this
was a novel argument made by Lasher for which there was no authority directly on
point, Lasher must still provide relevant authority suggesting how the court’s alleged
action violated Lasher’s due process rights. See Tong v. State, 25 S.W.3d. 707, 710 (Tex.
Crim. App. 2000).
Third, even if the trial court’s alleged action was error, a result we expressly do
not hold, Lasher fails to show that he was harmed. See TEX. R. APP. P. 44.2. In addition
to pleading not true to some of the State’s allegations, Lasher pled true to many of the
State’s allegations of violations of his community supervision alleged in both its motion
to revoke and its motion to adjudicate. Because a plea of true, standing alone, is
sufficient to support the revocation of probation, Cole v. State, 578 S.W.2d 127, 128 (Tex.
Crim. App. 1979), Lasher could not have been harmed by the trial court’s alleged action.
Accordingly, Lasher’s sole issue is overruled, and the trial court’s judgment is
affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed September 1, 2010
Do not publish
[CRPM]
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