NO CR IN THE FIFTH COURT OF APPEALS OF TEXAS DALLAS, TEXAS LINH PHUONG NGUYEN, APPELLANT VS. THE STATE OF TEXAS, APPELLEE

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1 NO CR IN THE FIFTH COURT OF APPEALS 5th Court of Appeals FILED: 3/29/11 14:00 Lisa Matz, Clerk OF TEXAS DALLAS, TEXAS LINH PHUONG NGUYEN, APPELLANT VS. THE STATE OF TEXAS, APPELLEE On Appeal from the 204th Judicial District Court Of Dallas County, Texas Trial Court Cause No. F Q BRIEF FOR THE APPELLANT DAVID J. PIRE 4144 NORTH CENTRAL EXPRESSWAY SUITE 250 DALLAS, TEXAS TELEPHONE (214) FACSIMILE (214) STATE BAR NO ATTORNEY FOR APPELLANT Oral Argument Not Requested

2 IDENTITY OF PARTIES AND COUNSEL 1. Trial Judge: The Honorable Lena Levario presided over the trial of this case, Presiding Judge of the 204th Judicial District Court of Dallas County, 133 N. Riverfront Blvd. Dallas, Texas Appellant: Lihn Phuong Nguyen, TCD # , Dawson State Jail, P.O. Box , Dallas, Texas Counsel for Appellant: a. The Appellant was represented at the Trial Court by Kenneth Witherspoon, Attorney at Law, 417 S. Jackson Street, Suite 310, Dallas, Texas Appellant was represented at the Revocation Hearing by Assistant Public Defender, Mr. David Bulbow, Attorney at Law, 133 N. Riverfront Blvd. LB 2, Dallas, Texas b. The Appellant is represented on appeal by David J. Pire, 4144 N. Central Expressway, Suite 250, Dallas, Texas Counsel for the State of Texas: a. The State of Texas was represented by Justin L. McCants and Marcia T. Taylor, Dallas County Assistant District Attorneys at the trial court level. b. The State is represented on appeal by and through Craig M. Watkins, Criminal District Attorney of Dallas County, 133 N. Riverfront Blvd., L.B. 19, Dallas, Texas Brief of the Appellant Page i

3 STATEMENT REGARDING ORAL ARGUMENT Appellant does not request oral argument as the decisional process of this Court would not be significantly aided by oral argument since the facts and legal arguments are adequately presented in the brief submitted to this Court by the Appellant. Brief of the Appellant Page ii

4 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL...i STATEMENT REGARDING ORAL ARGUMENT...ii INDEX OF AUTHORITIES...iv STATEMENT OF THE CASE...v ISSUES PRESENTED...v STATEMENT OF FACTS...1 SUMMARY OF THE ARGUMENT...5 APPELLANT S ISSUE NO. ONE...5 The Evidence is Legally Insufficient To Support The Verdict Since The State Failed to Prove that Appellant was the Same Person Convicted of the Offense of Possession of Cocaine...5 PRAYER...13 CERTIFICATE OF SERVICE...13 Brief of the Appellant Page iii

5 INDEX OF AUTHORITIES Cases Allen v. State, 249 S.W.3d 680 (Tex.App. Austin 2008)...6 Bradley v. State, 564 S.W.2d 727 (Tex.Crim.App.1978)...6 Bowden v. State, 628 S.W.2d 782 (Tex.Crim.App.1982)....6 Burden v. State, 55 S.W.3d 608 (Tex.Crim.App.2001)...5 Cardona v. State, 665 S.W.2d 492 (Tex.Crim.App.1984)...6 Cobb v. State, 851 S.W.2d 871 (Tex. Crim. App. 1993)...6, 7 Jackson v. Virginia, 443 U.S. 307 (1979)....6 Lane v. State, 933 S.W.2d 504 (Tex.Crim.App.1996)...5, 6 Long v. State, 214 S.W.2d 303 (Tex.Crim.App. 1948)...7 Pellum v. State, CR, 2007 WL (Tex. App.--Tyler Aug. 8, 2007, no pet.)(not designated for publication)...7 Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App.2006)...7 Sharp v. State, 707 S.W.2d 611(Tex.Crim.App.1986)...6 Statutes Texas Code Crim Pro. 10(a),...7 Rules TEX. R. APP. PRO. 43.2(c) TEX. R. APP. PRO Tex.R.Crim.Evid. 1101(d)(2) Brief of the Appellant Page iv

6 STATEMENT OF THE CASE Appellant was charged by indictment with Possession of Cocaine in cause number F Q which was pending in the 204th Judicial District Court of Dallas County, Texas, the Honorable Lena Levario, Presiding, (CR 1-2). The Record shows that on December 22, 2009, Linh Phuong Nguyen pled guilty to the offense as charged in the indictment, (CR 16-20, RR II 4, 9-10). The Court set punishment at two (2) years incarceration in the State Jail, sentence was suspended and Appellant was placed on probation for five (5) years, (CR 21-22; RR II 13) 1. A motion to revoke probation was filed and a hearing was held on the motion, (CR 27 30; RR III IV) The Court found two of three allegations in the Motion to Revoke to be True, probation was revoked and a sentence of eighteen (18) months incarceration in the State Jail with credit for time served was imposed, (CR 38 42, RR IV 31). Appellant timely filed a Notice of Appeal, (CR 43-45). ISSUES PRESENTED 1. The Evidence is Legally Insufficient To Support The Verdict Since The State Failed to Prove that Appellant was the Same Person Convicted of the Offense of Possession of Cocaine? 1 CR refers to the Clerk s Record, RR refers to the Reporter s Record. Brief of the Appellant Page v

7 STATEMENT OF FACTS Appellant was charged by indictment with Possession of Cocaine in cause number F Q which was pending in the 204th Judicial District Court of Dallas County, Texas, the Honorable Lena Levario, Presiding, (CR 1-2). The Record shows that on December 22, 2009, Linh Phuong Nguyen pled guilty to the offense as charged in the indictment, (CR 16-20, RR II 4, 9-10). The Court set punishment at two (2) years incarceration in the State Jail, sentence was suspended and Appellant was placed on probation for five (5) years, (CR 21-22; RR II 13) 2. A motion to revoke probation was filed and a hearing was held on the motion, (CR 27 30; RR III IV) The Court found two of three allegations in the Motion to Revoke to be True, probation was revoked and a sentence of eighteen (18) months incarceration in the State Jail with credit for time served was imposed, (CR 38 42, RR IV 31). Appellant timely filed a Notice of Appeal, (CR 43-45). Linh Phuong Nguyen is a Vietnamese national, whose first language is Vietnamese but was not provided a Vietnamese/English interpreter at the initial plea hearing, (RR IV 16 17). During the plea the Judge inquired of her attorney why she should not be sent to rehab, (RR II 6). Her attorney responded that Ms. Nguyen told him she did not have a drug problem, (RR II 6). The Court then expressed some concern with following the plea offer of 180 days in the State Jail, (RR II 7). The Court did not follow the plea bargain of confinement in the State Jail for 180 days but rather imposed a 2 CR refers to the Clerk s Record, RR refers to the Reporter s Record. Brief of the Appellant Page 1

8 sentence of 2 years confinement in the State Jail probated for 5 years, (CR 21-22; RR II 12 13). A Motion to Revoke was filed by the State on April 1, 2010, (CR 27). Appellant was served with the Motion on May 10, 2010, (CR 27). The Motion alleged Appellant violated conditions A (no new law violations), M (failed to report to community supervision), and O (refrain from alcohol) of her probation, (CR 28). Appellant requested and was appointed a Public Defender for purposes of the Probation Revocation Hearing, (CR 31-32). Appointed counsel filed a Motion for Speedy Revocation Hearing on August 16, 2010, (CR 35-37). Hearing on the Motion to Revoke began on September 2, 2010, and concluded on September 7, 2010, (CR 43; RR III 1, RR IV 1). During hearing on the Motion to Revoke, the State called as its witnesses: Officer P. F. Chilcoat, Kenneth Traylor, and Dan Jones. The Appellant did not testify nor did she present any witnesses during this phase of the trial. Officer Chilcoat testified that on March 7, 2010, he was called to a disturbance at the Shell station located at 3501 West Walnut Street in Dallas County, Texas, (RR III 8). His memory of events was imperfect, but after reviewing his report, he testified that he responded to a fight in progress, (RR III 8). He observed Appellant and determined that she appeared to be intoxicated, (RR III 10 11). Appellant admitted to Officer Chilcoat that she had consumed two (2) beers and identified herself to Officer Chilcoat as Thuy Ngoc Nguyen, (RR III 11). Appellant was arrested for public intoxication and was taken to the jail, where she was identified by one of the jailers, (RR III 12 13). The jailer identified Appellant and her correct identification was located, (RR III 13-14). After Brief of the Appellant Page 2

9 confirming Appellant s true identity, she was booked for failure to identify giving false information, (RR III 19). On cross-examination Appellant s attorney established that Officer Chilcoat had little, if any, recollection of the events that occurred on March 7, Officer Chilcoat was unable to answer a number of questions without referring to his notes, (RR III 26 28). Officer Chilcoat admitted to having a hard time understanding Appellant when she gave her name, (RR III 24 25). He testified that he wrote down the name she gave, but did not bring the notebook with him to court, (RR 25). He then testified to the reasons for believing Appellant was intoxicated, (RR III 33 35). On re-direct Officer Chilcoat testified that his interactions with Appellant at the scene and at the station were in English, (RR III 43). He then testified, including spelling, the name Appellant gave at the scene and its difference from her true name, (RR 44 45). The State s second witness was Kenneth Traylor, a court officer for the 204th Judicial Court, (RR III 48 49). He testified that Linh Phuong Nguyen was placed on probation on December 22, 2009, for the offense of possession of cocaine, (RR III 49). He testified to the conditions of probation that Ms. Nguyen was served with, (RR 51). He testified that she violated three (3) conditions of probation, (RR III 52 53). He then identified Appellant in open court, (RR III 53). On cross-examination he admitted that it was Dan Jones, rather than himself, that served Ms. Nguyen with the conditions of probation, (RR III 54). He testified that, to his knowledge, there was no interpreter used when the conditions of probation were served, Brief of the Appellant Page 3

10 (RR III 55). The file indicated that Ms. Nguyen was served with conditions of probation in English, (RR III 56). On re-direct he testified that Ms. Nguyen signed the conditions of probation, indicating her receipt of those conditions, (RR III 57). On re-cross-examination he admitted that he is familiar with people signing documents while in the holdover without reading or understanding them, (RR III 58). At that point the Court recessed for the day, (RR III 58). Appellant s attorney indicated his desire to have the proceedings finished, as he was presenting no evidence and the State was ready to rest, (RR III 59 61). The Court s failure to finish the hearing on that day would result in the hearing not being concluded within the twenty (20) day window allowed by his Motion for Speedy Revocation Hearing, (RR III 59). The Court discussed its understanding of the running of the 20-day period and concluded the 20th day would occur on Sunday, September 5, 2010, (RR III 62 64). The State s final witness, called on September 7, 2010, was Dan Jones, (RR IV 4). Mr. Jones testified that he served Appellant s probation conditions during her postsentence interview in the jail hold-over cell, (RR IV 6-7). He identified Appellant s signature and was passed for cross-examination, (RR IV 7). On cross-examination he testified that Department policy was to enter all narratives within 48 hours, (RR IV 8). He testified that Appellant had a functional level of English ability, (RR IV 9). He did not recall the use of an interpreter during the postsentence interview, (RR IV 9-10). He admitted that he does not read the conditions of probation word-for-word, but rather elects to summarize them, (RR IV 10). Brief of the Appellant Page 4

11 On re-direct he testified to including the prohibition of alcohol in the terms he discusses, (RR IV 12-13). He also discusses the requirement that no new violations of the law are committed, (RR IV 12). On re-cross-examination he was asked about whether an interpreter was present for the PSI, (RR IV 14 15). The Court took judicial notice of the letters sent to her by Appellant, (RR IV 15). The Court then reviewed the initial guilty plea and determined no interpreter was present, (RR IV 16 17). Both sides then rested and closed, (RR IV 17 18). SUMMARY OF THE ARGUMENT Appellant asserts that the evidence is insufficient to establish that Appellant is one and the same person that was previously convicted and placed on probation for possession of cocaine. ARGUMENT APPELLANT S ISSUE NO. ONE The Evidence is Legally Insufficient To Support The Verdict Since The State Failed to Prove that Appellant was the Same Person Convicted of the Offense of Possession of Cocaine. AUTHORITIES In reviewing a challenge to the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict and determine whether a rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App.2001); Lane v. State, 933 Brief of the Appellant Page 5

12 S.W.2d 504, 507 (Tex.Crim.App.1996) (citing the due process standard from Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The trier of fact is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony, Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988). The trier of fact is also entitled to accept one version of the events and reject another and to accept or reject all or any portion of a particular witness's testimony, Id. at 614. Furthermore, the reconciliation of any conflicts in the evidence is within the province of the jury, Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App.1982). In assaying all the evidence under the Jackson standard of review, an appellate court must consider all evidence, rightly or wrongly admitted, that the trier of fact was permitted to consider, Allen v. State, 249 S.W.3d 680, (Tex.App. Austin 2008, rehearing overruled). A probation revocation proceeding is neither a criminal nor a civil trial, but rather an administrative hearing. Bradley v. State, 564 S.W.2d 727, 729 (Tex.Crim.App.1978) (en banc). Yet the Rules of Criminal Evidence are generally applicable to a revocation hearing. Tex.R.Crim.Evid. 1101(d)(2). The State must prove by a preponderance of the evidence that a defendant violated the terms of his probation. Cardona v. State, 665 S.W.2d 492, (Tex.Crim.App.1984). Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993) Brief of the Appellant Page 6

13 Appellate review of an order revoking probation is limited to abuse of the trial court's discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App.2006). Pellum v. State, CR, 2007 WL (Tex. App.--Tyler Aug. 8, 2007, no pet.) Only the court in which the defendant was tried may grant probation, impose conditions, revoke the probation, or discharge the defendant, unless the court has transferred jurisdiction of the case to another court with the later's consent. Tex. Code Crim. Pro. art. 10(a). The execution of the sentence has been delayed contingent upon the successful completion of certain specified requirements. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993) Hearsay is not admissible in a probation revocation proceeding. Long v. State, 590 S.W.2d 138, 140 (Tex. Crim. App. 1979) [W]ithout the connecting link of the booking sheet which showed the same name, driver's license number, and birth date as those on the probationer information sheet, there is no proof that the judgment and sentence of conviction for the misdemeanor offense of theft related to the same person who was on probation at the time Long v. State, 590 S.W.2d 138, 140 (Tex. Crim. App. 1979) If the appellate record in a criminal case reveals constitutional error that is subject to a harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment, TEX. R. APP. PRO FACT STATEMENT Brief of the Appellant Page 7

14 Linh Phuong Nguyen plead guilty to the charge of Possession of Cocaine in the amount of 0.1g on December 22, The evidence stipulated to showed that Linh Phuong Nguyen was the passenger in a vehicle that was stopped for a lane-change violation. Upon the vehicle being stopped, Linh Phuong Nguyen placed something underneath the front-passenger seat while watching the Officer approach. The officer removed Linh Phuong Nguyen from the vehicle, conducted a Terry-frisk, and then proceeded to find a baggie with two (2) crack cocaine rocks under the seat Linh Phuong Nguyen occupied in the vehicle. Linh Phuong Nguyen was arrested for possession of cocaine, (RR II 9-10). Linh Phuong Nguyen is a Vietnamese national, whose first language is Vietnamese. Linh Phuong Nguyen was not provided a translator when she entered her plea of guilty, (RR IV 16 17). During the plea the Judge inquired of her attorney why she should not be sent to rehab, (RR II 6). Her attorney responded that Ms. Nguyen told him she did not have a drug problem, (RR II 6). Ms. Ngyuen then asked if the Court could help her go to rehab, (RR II 6). The Court then expressed some concern with following the plea offer of 180 days in the State Jail, (RR II 7). Ms. Nguyen was arraigned, her attorney found her to be competent, and the State admitted Ms. Nguyen s judicial confession, (RR II 10). The State then rested, (RR II 10). Ms. Nguyen was called briefly to address the possible immigration consequences of a guilty plea, (RR II 11 12). The Court then accepted Ms. Nguyen s guilty plea, (RR II 12). The Court did not follow the plea bargain, (RR II 12 13). Linh Phuong Nguyen and her attorney discussed Brief of the Appellant Page 8

15 whether she wished to withdraw the guilty plea, (RR II 13 16). Ms. Nguyen elected not to withdraw her guilty plea, (RR II 16). A Motion to Revoke was filed by the State on April 1, 2010, (CR 27). Appellant was served with the Motion on May 10, 2010, (CR 27). The Motion alleged Appellant violated conditions A (no new law violations), M (failed to report to community supervision), and O (refrain from alcohol) of her probation, (CR 28). Appellant requested and was appointed a Public Defender for purposes of the Probation Revocation Hearing, (CR 31-32). Appointed counsel filed a Motion for Speedy Revocation Hearing on August 16, 2010, (CR 35-37). Hearing on the Motion to Revoke began on September 2, 2010, and concluded on September 7, 2010, (CR 43; RR III 1, RR IV 1). During hearing on the Motion to Revoke, the State called as its witnesses: Officer P. F. Chilcoat, Kenneth Traylor, and Dan Jones. The Appellant did not testify nor did she present any witnesses during this phase of the trial. Officer Chilcoat testified that on March 7, 2010, he was called to a disturbance at the Shell station located at 3501 West Walnut Street in Dallas County, Texas, (RR III 8). His memory of events was imperfect, but after reviewing his report, he testified that he responded to a fight in progress, (RR III 8). He observed Appellant and determined that she appeared to be intoxicated, (RR III 10 11). Appellant admitted to Officer Chilcoat that she had consumed two (2) beers and identified herself to Officer Chilcoat as Thuy Ngoc Nguyen, (RR III 11). Appellant was arrested for public intoxication and was taken to the jail, where she was identified by one of the jailers, (RR III 12 13). The jailer identified Appellant and her correct identification was located, (RR III 13-14). After Brief of the Appellant Page 9

16 confirming Appellant s true identity, she was booked for failure to identify giving false information, (RR III 19). On cross-examination Appellant s attorney established that Officer Chilcoat had little, if any, recollection of the events that occurred on March 7, Officer Chilcoat was unable to answer a number of questions without referring to his notes, (RR III 26 28). Officer Chilcoat admitted to having a hard time understanding Appellant when she gave her name, (RR III 24 25). He testified that he wrote down the name she gave, but did not bring the notebook with him to court, (RR 25). He then testified to the reasons for believing Appellant was intoxicated, (RR III 33 35). On re-direct Officer Chilcoat testified that his interactions with Appellant at the scene and at the station were in English, (RR III 43). He then testified, including spelling, the name Appellant gave at the scene and its difference from her true name, (RR 44 45). The State s second witness was Kenneth Traylor, a court officer for the 204th Judicial Court, (RR III 48 49). He testified that Linh Phuong Nguyen was placed on probation on December 22, 2009, for the offense of possession of cocaine, (RR III 49). He testified to the conditions of probation that Ms. Nguyen was served with, (RR 51). He testified that she violated three (3) conditions of probation, (RR III 52 53). He then identified Appellant in open court, (RR III 53). On cross-examination he admitted that it was Dan Jones, rather than himself, that served Ms. Nguyen with the conditions of probation, (RR III 54). He testified that, to his knowledge, there was no interpreter used when the conditions of probation were served, Brief of the Appellant Page 10

17 (RR III 55). The file indicated that Ms. Nguyen was served with conditions of probation in English, (RR III 56). On re-direct he testified that Ms. Nguyen signed the conditions of probation, indicating her receipt of those conditions, (RR III 57). On re-cross-examination he admitted that he is familiar with people signing documents while in the holdover without reading or understanding them, (RR III 58). At that point the Court recessed for the day, (RR III 58). Appellant s attorney indicated his desire to have the proceedings finished, as he was presenting no evidence and the State was ready to rest, (RR III 59 61). The Court s failure to finish the hearing on that day would result in the hearing not being concluded within the twenty (20) day window allowed by his Motion for Speedy Revocation Hearing, (RR III 59). The Court discussed its understanding of the running of the 20-day period and concluded the 20th day would occur on Sunday, September 5, 2010, (RR III 62 64). The State s final witness, called on September 7, 2010, was Dan Jones, (RR IV 4). Mr. Jones testified that he served Appellant s probation conditions during her postsentence interview in the jail hold-over cell, (RR IV 6-7). He identified Appellant s signature and was passed for cross-examination, (RR IV 7). On cross-examination he testified that Department policy was to enter all narratives within 48 hours, (RR IV 8). He testified that Appellant had a functional level of English ability, (RR IV 9). He did not recall the use of an interpreter during the postsentence interview, (RR IV 9-10). He admitted that he does not read the conditions of probation word-for-word, but rather elects to summarize them, (RR IV 10). Brief of the Appellant Page 11

18 On re-direct he testified to including the prohibition of alcohol in the terms he discusses, (RR IV 12-13). He also discusses the requirement that no new violations of the law are committed, (RR IV 12). On re-cross-examination he was asked about whether an interpreter was present for the PSI, (RR IV 14 15). The Court took judicial notice of the letters sent to her by Appellant, (RR IV 15). The Court then reviewed the initial guilty plea and determined no interpreter was present, (RR IV 16 17). Both sides then rested and closed, (RR IV 17 18). ARGUMENTS AND AUTHORITIES Appellant argues that even under the abuse of discretion standard, the evidence adduced at Appellant s Revocation Hearing was insufficient to establish that she was one and the same Lihn Phuong Nguyen that was previously convicted for possession of cocaine and placed on probation. The three (3) witnesses called by the State included no person tied to the original guilty plea. No person who testified on behalf of the State alleged that they were present when Appellant pled guilty to possession of cocaine on December 22, The only witness who had any contact with Appellant whatsoever was Dan Jones, and absent a delay in the proceedings his testimony would have been unavailable and, as the Court indicated, the State s proof would have been insufficient. Dan Jones testified that he discussed the conditions of probation with Appellant. His testimony wholly lacks any indication that he discussed, or was even aware of, the offense for which Appellant was being placed on probation. His testimony that he Brief of the Appellant Page 12

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