Lovill v. State
| Decision Date | 22 December 2008 |
| Docket Number | No. 13-07-00529-CR.,No. 13-07-00668-CR.,13-07-00529-CR.,13-07-00668-CR. |
| Citation | 287 S.W.3d 65 |
| Parties | Amber LOVILL, Appellant, v. The STATE of Texas, Appellee. Ex parte Amber Lovill. |
| Court | Texas Court of Appeals |
Brian C. Miller, Royston, Rayzor, Vickery & Williams, Corpus Christi, for appellant.
Carlos Valdez, Dist. Atty., Douglas K. Norman, Asst. Dist. Atty., Corpus Christi,
Before Chief Justice VALDEZ and Justices GARZA and BENAVIDES.
This case involves a claim of selective prosecution based on gender. Appellant, Amber Lovill, argues that the Nueces County District Attorney's Office selectively prosecuted her, seeking to revoke her probation and to incarcerate her in a drug-treatment facility because she was using drugs during her pregnancy. In cause number 13-07-529-CR, Lovill appeals the trial court's order modifying her probation and imposing sanctions for violating the terms of her probation. In cause number 13-07-668-CR, Lovill appeals the denial of her petition for writ of habeas corpus based on the same order. We have consolidated the two appeals and consider them together. We dismiss Lovill's direct appeal from the order modifying her probation for lack of jurisdiction. We reverse the trial court's order denying her petition for writ of habeas corpus and remand for further proceedings consistent with this opinion.
On November 15, 2001, Lovill was indicted on two counts of felony forgery resulting from checks she forged.1 See TEX. PENAL CODE ANN. § 32.21 (Vernon 2003 & Supp.2008). On January 10, 2005, Lovill entered into a plea bargain with the State and pleaded guilty. In accordance with the plea agreement, the trial court assessed a punishment of two years in state jail, a $1,000 fine, $700 in restitution, and costs; however, the court suspended the prison term and placed Lovill on community supervision for three years. See TEX.CODE CRIM. PROC. ANN. art. 42.12, § 3 (Vernon 2006 & Supp.2008). As one of the conditions of Lovill's probation, she was required to "[a]void injurious or vicious habits and[/]or, avoid the use of alcoholic beverages, narcotics or any other controlled substances and submit to testing/blood analysis/urinalysis as directed for alcohol or controlled substances...." See id. art. 42.12, § 11(a)(2), (14) (Vernon Supp.2008). Lovill was also ordered to participate in a substance abuse program, report weekly to her probation officer, and to "satisfactorily participate in a screening/assessment for substance abuse and submit to any counseling, urinalysis, and/or diversionary program as determine [sic] within the [Community Supervision and Corrections Department ("CSCD")] TREATMENT ALTERNATIVE TO INCARCERATION PROGRAM...." See id. art. 42.12, § 13(f) (Vernon Supp.2008).
On September 16, 2005, the State filed a motion to revoke Lovill's probation. CSCD filed with an "Adult Probation Violation Report" with the district attorney's office. The reports alleges several violations of Lovill's probation: (1) On April 15, 2005 and May 19, 2005, Lovill's urinalysis tested positive for amphetamine; (2) Lovill did not report to her CSCD officer weekly during months of May, June, July, and August 2005; (3) Lovill failed to pay costs, fines, restitution, and fees; and (4) Lovill failed to participate in a screening or assessment for substance abuse because on May 31, 2005, she was discharged from Coastal Bend Outpatient Services due to non-attendance.
On February 2, 2006, Lovill entered another plea bargain with the State and pleaded true to several of the counts in the motion to revoke. The trial court found that Lovill violated her probation on the counts she admitted, and on February 13, 2006, the trial court issued an "Order Imposing Sanctions on Defendant And Continuing or Modifying Probation." This order required Lovill to serve a term of confinement and treatment in the Nueces County Substance Abuse Treatment Facility ("SATF") for an indeterminate term of six to twelve months, and after release, to participate in drug or alcohol abuse continuum of care treatment plan. Lovill then went to SATF and remained there until February 8, 2007.
On July 17, 2007, the State filed a second motion to revoke Lovill's probation. The motion alleged that Lovill: (1) submitted a urine sample that was positive for amphetamines on July 10, 2007; (2) failed to report for an office visit in June 2007; (3) failed to attend her SATF after-care classes; and (4) failed to pay fines, restitution, costs, and fees. On August 6 and 7, 2007, at a hearing on the motion to revoke, Lovill admitted the violations alleged, and the court accepted her pleas of true.
The State called Sandra Garza to testify. Garza is a CSCD officer for Nueces County who was assigned to supervise Lovill a "couple of weeks" prior to the hearing. Garza recommended to the court that Lovill be sanctioned to the Substance Abuse Felony Punishment Facility ("SAFPF") special needs unit. When asked why, Garza answered, The following exchange then occurred between Garza and the prosecutor:
On cross-examination, Lovill's counsel explored the reason that CSCD sought to revoke Lovill's probation:
The State then rested, and Lovill took the stand. She testified that she would like to go to CASA, which is an outpatient drug treatment facility. She requested that the court continue her on probation with a sanction of CASA or additional jail time added to the probated sentence. She claimed that she wanted to go to outpatient treatment so she could keep the baby with her. Her attorney then argued:
It is obvious the probation would have worked with her, but for the fact that she was pregnant and they decide to revoke her and then send her off to SAFP without even giving Ms. Lovill an opportunity to maybe work with probation even though she is pregnant. She is willing to go to CASA or some other treatment facility that is local; so she can have her baby and not have to go to prison, Your Honor. She had like a year left or so on her probation, so she would like to try and finish out her probation and put this case behind her. She understands that that was poor judgment in her case with the testing positive for amphetamines. In the alternative, if the Court sees fit to revoke her, she would like to do one year and not have to go to SAFP at all.
Counsel for the State argued that Lovill had a serious drug problem. Specifically, the State argued that:
not only is her problem with drugs continuing to be a danger to her, now it is a danger to her unborn child. She needs proper drug treatment in a secure environment and S.A.F.P.F. is a program that will provide that for her.... And also to give her time to address her drug problem and ensure that she is not going to be using drugs during the term of her pregnancy.
Lovill's counsel then argued that the State "would not even have revoked her, even with the positive UA, but for the fact that she was pregnant; they would have continued to work with her." Lovill's counsel asked that the probation department continue to work with her and "give her a chance," reiterating that "the probation would have worked with her, but for the fact that she is pregnant, they would have kept her on probation."2
The trial court disagreed with Lovill's counsel that the State sought to revoke her probation because she was pregnant: "Well, I think the fact that she tested positive is the reason we are all here, right, not for the fact that she is pregnant." On August 13, 2007, the trial court issued an "Order Imposing Sanctions on Defendant and Continuing or Modifying Probation." The court extended Lovill's probation by one year so that it now expires on January 10, 2009. The court further ordered Lovill to serve an indeterminate term of three to twelve months confinement and treatment in SAFPF.
On August 30, 2007, Lovill filed a motion for new trial, which she amended on September 5, 2007. Lovill asserted that the motion to revoke probation should have been dismissed because she was selectively prosecuted based on her gender and in violation of her right to privacy. She argued that the prosecution of the motion to revoke violated her rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution; the Equal Rights Amendment of article I section 3a of the Texas Constitution; and the Due Process Clause of article I section 19 of the Texas Constitution. See U.S. CONST. amend. XIV; TEX. CONST. art. I, §§ 3a, 19.
On October 4, 2007, the trial court held a hearing on the motion for...
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Lovill v. The State Of Tex.
...Her pregnancy was incidental to the motion to revoke, not causative. I concur in the judgment of the Court. 1. Lovill v. State, 287 S.W.3d 65, 76-77 (Tex.App.-Corpus Christi 2008). Lovill, 287 S.W.3d at 69. 3. Id. at 74-77. 4. Id. at 76-77. 5. Id. at 76. 6. Id. 7. Id. 8. Id. 9. Id. 10. Id. ......
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