ACCEPTED 06-14-00164-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 2/9/2015 10:47:26 AM DEBBIE AUTREY CLERK
ORAL ARGUMENT WAIVED
CAUSE NOS. 06-14-00164-CR FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS IN THE 2/10/2015 10:47:26 AM DEBBIE AUTREY COURT OF APPEALS Clerk
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ___________________________________________________________
CHRISTOPHER NEAL McGONIGAL, Appellant
V.
THE STATE OF TEXAS, Appellee ___________________________________________________________
ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT RED RIVER COUNTY, TEXAS; HONORABLE ERIC CLIFFORD; TRIAL COURT NO. CR01907 ___________________________________________________________
APPELLEE’S (STATE’S) BRIEF ____________________________________________________________
Val J. Varley, County and District Attorney Red River County and District Attorney’s Office Red River County Courthouse 400 North Walnut Street Clarksville, Texas 75426-4012 (903) 427-2009 (903) 427-5316 (Fax)
ATTORNEYS FOR THE STATE OF TEXAS
1 IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and
counsel is not required to supplement or correct the appellant’s list.
2 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 4
STATEMENT OF THE CASE 7
STATEMENT REGARDING ORAL ARGUMENT 8
INTRODUCTION 9
STATEMENT OF FACTS 10
SUMMARY OF THE ARGUMENT 15
ARGUMENT AND AUTHORITIES 16
PRAYER 27
CERTIFICATE OF COMPLIANCE 28
CERTIFICATE OF SERVICE 28
3 INDEX OF AUTHORITIES
TEXAS CASES: PAGE(S):
Armstrong v. State, 472 S.W.2d 150 (Tex. Crim. App. 1971). 15-16, 18
Barrientez v. State, 500 S.W.2d 474 (Tex. Crim. App. 1973). 23
Bradley v. State, 608 S.W.2d 652 (Tex. Crim. App. 1980). 17
Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984). 16-17
Chacon v. State, 558 S.W.2d 874 (Tex. Crim. App. 1977). 18
Davis v. State, 673 S.W.2d 956 (Tex. App.--San Antonio 1984, no pet.). 23
Davidson v. State, 422 S.W.3d 750 (Tex. App.--Texarkana 2013, pet. ref’d). 24
Ellerbe v. State, 80 S.W.3d 721 (Tex. App.--Houston [1st Dist.] 2002, pet. ref’d). 19-20
Ford v. State, 179 S.W.3d 203 (Tex. App.--Houston [14th Dist.] 2005, pet. ref’d), cert. denied, 549 U.S. 922, 127 S. Ct. 281, 166 L. Ed. 2d 215 (2006). 25-26
Jackson v. State, 822 S.W.2d 18 (Tex. Crim. App. 1990) (en banc). 26
Lively v. State, 338 S.W.3d 140 (Tex. App.--Texarkana 2011, no pet.). 17, 24
4 Lund v. State, 366 S.W.3d 848 (Tex. App.--Texarkana 2012, pet. ref’d). 25
Martinez v. State, 493 S.W.2d 954 (Tex. Crim. App. 1973). 18
Martinez v. State, 635 S.W.2d 762 (Tex. App.--Corpus Christi 1982, no pet.). 23
Meyer v. State, 366 S.W.3d 728 (Tex. App.--Texarkana 2012, no pet.). 16-17, 20-22, 24
Moore v. State, 11 S.W.3d 495 (Tex. App.--Houston [14th Dist.] 2000, no pet.). 17
Osbourn v. State, 92 S.W.3d 531 (Tex. Crim. App. 2002). 25
Pierce v. State, 113 S.W.3d 431 (Tex. App.--Texarkana 2003, pet. ref’d). 17-18
Powell v. State, 63 S.W.3d 435 (Tex. Crim. App. 2001). 25
Prince v. State, 503 S.W.2d 777 (Tex. Crim. App. 1974). 22
Royale, Donald Oreste v. The State of Texas, No. 06-02-00170-CR, 2003 Tex. App. LEXIS 4787 (Tex. App.--Texarkana, June 6, 2003, pet. ref’d). 11
Tucker v. State, 751 S.W.2d 919 (Tex. App.--Fort Worth 1988, no pet.). 20
Wright v. State, 523 S.W.2d 704 (Tex. Crim. App. 1975). 24
TEXAS CODE(S): PAGE(S):
5 Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 1989). 19-20
Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(C). 11
Tex. Penal Code Ann. § 21.11 (West 2011). 10
OTHER CODE(S): PAGE(S):
Kan. Stat. Ann. § 8-1567(a), (b)(1) (2007 Supp.). 21
TEXAS RULES OF APPELLATE PROCEDURE: PAGE(S):
Tex. R. App. P. 9.4(i)(3). 28
Tex. R. App. P. 9.5. 28
Tex. R. App. P. 38.2. 8, 9
Tex. R. App. P. 38.2(a)(1)(A). 2
6 STATEMENT OF THE CASE
This is an appeal from the trial court’s judgment adjudicating guilt and
revoking McGonigal’s community supervision. See CR, pgs. 118-119.
A grand jury in Red River County returned an original indictment that
charged McGonigal with the felony offense of indecency with a child. See
CR, pgs. 9-10. Subsequently, the trial court signed an order of deferred
adjudication. See CR, pgs. 65-66. Later, the State filed a motion to
proceed with adjudication, which was resolved by a contested hearing, and
the trial court signed an order continuing probation and modifying the terms
of probation. See CR, pgs. 102-103.
On May 9, 2014, McGonigal allegedly committed an offense of
driving under the influence of drugs or alcohol in Montgomery County,
Kansas; and the State filed another motion to proceed with adjudication.
See CR, pgs. 109-112. After a hearing, the trial court revoked McGonigal’s
community supervision and sentenced him to 20 years in the Texas
Department of Criminal Justice, Institutional Division. See RR, pg. 18.
From the trial court’s final judgment adjudicating guilt (CR, pgs.
118-119), McGonigal filed his notice of appeal. See CR, pg. 123. By this
appeal, McGonigal brought two (2) issues/points of error.
7 STATEMENT REGARDING ORAL ARGUMENT
The State will waive oral argument in the above-styled and numbered
appellate cause. See Tex. R. App. P. 38.2(a).
8 CAUSE NO. 06-14-00164-CR
IN THE
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ___________________________________________________________
THE STATE OF TEXAS, Appellee ___________________________________________________________
ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT RED RIVER COUNTY, TEXAS; HONORABLE ERIC CLIFFORD; TRIAL COURT NO. CR01907 ___________________________________________________________
APPELLEE’S (STATE’S) BRIEF ____________________________________________________________
COMES NOW, the State of Texas, by and through the elected County
and District Attorney of Red River County, Val J. Varley, and the County and
District Attorney’s Office of Red River County, files this Appellee’s Brief in
accordance with Rule 38.2 of the Rules of Appellate Procedure.
Unless otherwise indicated, Christopher Neal McGonigal will be
referred to as “McGonigal” or “the appellant.” The State of Texas will be
referred to as “the State” or “the appellee.”
9 STATEMENT OF FACTS
The Trial Court Placed McGonigal on Deferred Community Supervision, But the State Filed a Motion to Proceed with Adjudication.
On September 27, 2012, a grand jury in Red River County returned an
original indictment that charged McGonigal with the second-degree felony
offense of indecency with a child. See CR, pgs. 9-10. See Tex. Penal Code
Ann. § 21.11(a)(1), (d) (West 2011) (an offense under Subsection (a)(1) is a
felony of the second degree)). In due course, McGonigal voluntarily
entered a plea of guilty on February 19, 2013 to the offense of indecency
with a child by contact. See RR, pgs. 6-7.
On February 19, 2013, the trial court signed its order of deferred
adjudication. See CR, pgs. 65-66. McGonigal received a deferred
probation for 10 years. See RR, pg. 7. On the same day, the trial court also
signed its order imposing conditions of community supervision. See CR,
pgs. 67-70. As pertinent to this appeal, the trial court ordered McGonigal to
comply with the following condition[] of community supervision:
1. Defendant shall commit no offense against the laws of this or any State or of the United States or any other Country. Defendant shall notify the Community Supervision Officer in charge of the case within forty eight (48) hours of being arrested and/or charged with a criminal offense.
See CR, pg. 67.
10 On January 14, 2014, the State filed a motion to proceed with
adjudication. See CR, pgs. 72-80. After a contested hearing, the trial court
signed its judgment adjudicating guilt on February 13, 2014. By this
judgment of conviction (CR, pgs. 92-93), the trial court sentenced him to
nine (9) years in the Texas Department of Criminal Justice--Institutional
Division but suspended that sentence and continued him on probation for
nine (9) years with a jail sanction of 31 days and other terms and conditions
of community supervision. See CR, pgs. 92-93; 94-97.
On February 13, 2014, the State realized that the trial court could not
order “Adjudication Probation”1 and filed a motion for new trial. See CR,
pgs. 99-100. See also Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(C)
(limitation on judge ordered community supervision to a defendant adjudged
guilty under section 21.11(a)(1), Penal Code). On the same day, the trial
court signed an order approving new trial. See CR, pg. 101.
On February 19, 2014, the trial court signed an order continuing
probation and modifying the terms of probation. See CR, pgs. 102-103.
The State Filed Another Motion to Proceed with Adjudication.
1 See Donald Oreste Royale v. The State of Texas, No. 06-02-00170-CR, 2003 Tex. App. LEXIS 4787, at * 8 (Tex. App.--Texarkana, June 6, 2003, pet. ref’d) (Morriss, C.J.) (It is only once those defendants are formally found guilty of committing such an offense that they become ineligible for judge-granted community supervision.).
11 On June 2, 2014, the State filed another motion to proceed with
adjudication. See CR, pgs. 109-112. By this motion, the State alleged the
following:
I.
Petitioner would show unto the Court that the Defendant, Christopher Neal McGonigal, has willfully violated the terms of said probation in that the said Christopher Neal McGonigal committed the offense of Driving under Influence of Alcohol or Drugs on or about May 9, 2014 in Montgomery County, KS.
See CR, pg. 109.
Revocation Hearing.
On August 28, 2014, the trial court called cause number CR01907,
and the State read the allegation in the motion (RR, pgs. 5, 7), and
McGonigal entered a plea of “not true.” See RR, pg. 5.
As its first witness, the State called Miranda Dean (Dean), a probation
officer in Red River County, who was familiar with McGonigal and
identified him in open court. See RR, pg. 6. Subsequently, the State
showed Dean what’s been marked as State’s Exhibit 1, and she was “not
familiar with that document.” See RR, pg. 7. Dean later stated,
“Defendant Acknowledgement of Rights and Entry of Plea.” See RR, pg. 8.
The State then offered State’s Exhibit 1 into evidence. See RR, pg. 8.
Through defense counsel, McGonigal objected to the entire document as
12 hearsay and “no proper predicate.” See RR, pg. 8. The State responded.
See RR, pgs. 8-9. The trial court admitted State’s Exhibit 1. See RR, pg. 9.
As its second witness, the State called Alex Davidson (Davidson), an
investigator with the County and District Attorney’s office of Red River
County. See RR, pg. 13. Davidson testified that he contacted the
Montgomery County Sheriff’s Office and requested a book-in photograph of
McGonigal. See RR, pg. 13. Once proffered by the State, the trial court
admitted State’s Exhibit 2. See RR, pgs 14-15.
Following the testimony from Davidson, the State rested. See RR,
pg. 17. Through his counsel, McGonigal rested. See RR, pg. 17.
Afterwards, the trial court did find “by a preponderance of the evidence that
the Defendant has violated the terms and conditions of his community
supervision.” See RR, pg. 17. The trial court revoked his community
supervision and did find McGonigal guilty of the felony offense of
indecency with a child. See RR, pg. 17.
The trial court then inquired, “Do you have any evidence you want to
put on on (sic?) sentencing Mr. Meehan or Mr. Varley, either one?” The
State referenced the prior time “he was here” that the trial court remarked, “I
remember that very well.” See RR, pg. 18. Defense counsel for
McGonigal stated, “Your Honor, the Defense has no evidence.” See RR,
13 pg. 18. The trial court then sentenced McGonigal to 20 years in the Texas
Department of Criminal Justice, Institutional Division. See RR, pg. 18.
On August 28, 2014, the trial court signed its Judgment Adjudicating
Guilt. See CR, pgs. 118-119. On September 2, 2014, McGonigal filed his
notice of appeal. See CR, pg. 123. On September 11, 2014, the trial court
signed its certification of the defendant’s right of appeal. See CR, pg. 125.
Proceedings in this Court of Appeals.
On or about September 10, 2014, McGonigal filed his notice of appeal
in this Court. On October 27, 2014, the official court reporter filed the
Reporter’s Record. On October 28, 2014, the District Clerk of Red River
County filed the Clerk’s Record.
After this Court granted the first motion for extension of time,
McGonigal filed his brief on or about January 8, 2015. The State will be
filing its brief on February 9, 2015.
14 SUMMARY OF THE ARGUMENT
In the present case, the State’s motion to proceed with adjudication
was worded to the effect that appellant committed an offense. See CR, pg.
109. As worded, a conviction for an offense was not required as a proper
basis for the trial court’s revocation of probation. See Armstrong v. State,
472 S.W.2d 150, 151 (Tex. Crim. App. 1971).
To prove McGonigal committed an offense, the State proffered, and
the trial court, admitted State’s Exhibits 1 and 2. Taken together, the
exhibits, along with the testimony from Dean and Davidson, provided
sufficient evidence to support the trial court’s finding that McGonigal
committed an offense in violation of condition # 1 that “Defendant shall
commit no offense against the laws of this or any State or of the United
States or any other Country.” See CR, pg. 67. In conclusion, the trial court
did not abuse its discretion because the revocation order was supported by a
preponderance of the evidence. The appellant’s, McGonigal’s, first
issue/point of error should be overruled.
As for McGonigal’s second issue/point of error, the trial court did not
abuse its discretion in admitting State’s Exhibit 2 because the jail record was
admissible as a business record. The two (2) issues/points of error should
be overruled, and the final judgment of conviction should be affirmed.
15 ARGUMENT AND AUTHORITIES
ISSUE PRESENTED IN REPLY NO. 1: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REVOKING THE APPELLANT’S COMMUNTIY SUPERVISION BECAUSE THE REVOCATION ORDER WAS SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE.
A. Introduction.
With his first issue, McGonigal questioned whether the evidence was
insufficient to support the trial court’s judgment revoking his deferred
adjudication community supervision and adjudicating him guilty of the
underlying offense. See Appellant’s Brief, pgs. 5, 12-18. However, a
conviction for an offense was not required as a proper basis for the trial
court’s revocation of probation. See Armstrong, 472 S.W.2d at 151. The
available evidence was sufficient; and therefore, the trial court did not abuse
its discretion in revoking McGonigal’s community supervision.
B. Standard of Review: Abuse of Discretion.
This Court should review for an abuse of discretion the trial court’s
decision to revoke community supervision. See Meyer v. State, 366 S.W.3d
728, 729 (Tex. App.--Texarkana 2012, no pet.). When the revocation order
is supported by a preponderance of the evidence, the trial court does not
abuse its discretion. See id. at 729-730. This Court should review the
evidence in the light most favorable to the trial court’s ruling. See Cardona
16 v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)). If a single ground
for revocation is supported by a preponderance of the evidence and is
otherwise valid, then an abuse of discretion is not shown. See Lively v.
State, 338 S.W.3d 140, 143 (Tex. App.--Texarkana 2011, no pet.).
This Court must respect the trial court’s role in evaluating witness
credibility, resolving conflicts in the evidence, and in drawing reasonable
inferences from the evidence. See Meyer, 366 S.W.3d at 730. This Court
must assume the trial court resolved evidentiary issues in a way that supports
the judgment. See id.
Where, as here, the State alleges a violation of the condition that a
probationer refrain from committing an offense against the law, the State
need not use the same precise terms as necessary in an indictment allegation.
See Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.--Texarkana 2003, pet.
ref’d) (citing Bradley v. State, 608 S.W.2d 652, 655 (Tex. Crim. App. 1980)).
At a hearing on an application to revoke probation, guilt or innocence is not
at issue, and the trial court need not determine the defendant’s original
criminal culpability, only whether the probationer broke the contract made
with the trial court to receive a probated sentence. See Pierce, 113 S.W.3d
at 436 (citing Moore v. State, 11 S.W.3d 495, 499 (Tex. App.--Houston [14th
Dist.] 2000, no pet.)). Revocation is proper if the evidence is sufficient to
17 support the trial court’s finding that the probationer committed an offense in
violation of the condition of probation that he or she commit no
offense against state or federal law. See Pierce, 113 S.W.3d at 436-37
(citing Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977)).
The Texas Court of Criminal Appeals has held that a conviction for an
offense is not required as a proper basis for revocation of probation under
the allegation that the appellant “commit no offense against the laws of this
or any other State, or the United States.” See Armstrong, 472 S.W.2d at
151. “[P]robation may be revoked upon a finding by the court that the
terms of probation have been violated and no necessity exists for there first
to be a trial and a valid conviction for the offense which is the basis of the
revocation.” See Martinez v. State, 493 S.W.2d 954, 955 (Tex. Crim. App.
1973).
C. Sufficient Evidence Supported the Trial Court’s Judgment.
In the present case, the appellant complained that the “plea document”
contained no evidence of McGonigal’s guilt. See Appellant’s Brief, pgs.
12-13. In his brief, McGonigal alleged that the document (i.e. State’s
Exhibit 1) failed to show that he committed the alleged offense for several
reasons. See Appellant’s Brief, pg. 13. The State will respond to each of
these reasons, as numbered below.
18 1. McGonigal’s “Type of Plea” Was Inconsequential.
As his first reason, McGonigal contended in his brief that the
“Defendant’s Acknowledgement of Rights and Entry of Plea” (State’s
Exhibit 1) did not “show what plea McGonigal entered in the case.” See
Appellant’s Brief, pg. 13. However, that “showing” was inconsequential.
Under Texas law, the legal effect of a plea of nolo contendere is “the
same as that of a plea of guilty.” See Ellerbe v. State, 80 S.W.3d 721, 723
(Tex. App.--Houston [1st Dist.] 2002, pet. ref’d) (citing Tex. Code Crim.
Proc. Ann. art. 27.02(5) (Vernon 1989)). Article 27.02(5) of the Texas Code
of Criminal Procedure provided that “[a] plea of nolo contendere, the legal
effect of which shall be the same as that of a plea of guilty, except that such
plea may not be used against the defendant as an admission in any civil suit
based upon or growing out of the act upon which the criminal prosecution is
based.” See Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 1989)).
In Ellerbe, the court of appeals explained that the only difference
between a plea of guilty and a plea of nolo contendere is that a plea of nolo
contendere may not be used against a defendant as an admission in any civil
suit based upon or growing out of the act upon which the underlying
criminal complaint was based. See Ellerbe, 80 S.W.3d at 723. In Ellerbe,
the court of appeals also explained that a plea of nolo contendere does not
19 relieve a defendant from having to admit to the commission of an offense.
See id.
As applied here, the “type of plea” was inconsequential because even
a plea of nolo contendere, as McGonigal suggested in his brief, did not
relieve him from having to admit to the commission of an offense. See id;
Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 1989). Further, it was
presumed that the law of Kansas was the same as in Texas absent proof to
the contrary. See Tucker v. State, 751 S.W.2d 919, 925 (Tex. App.--Fort
Worth 1988, no pet.). Here, there was no proof to the contrary. Because
the “type of plea” was inconsequential, State’s Exhibit 1--“Defendant’s
Acknowledgements of Rights and Entry of Plea”--was some evidence that
McGonigal “entered a plea” of some type, and that plea had the legal effect
of him admitting to the commission of the offense. See Ellerbe, 80 S.W.3d
at 723; Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 1989). From
State’s Exhibit 1, the trial court could have certainly drawn the reasonable
inference that McGonigal’s “entry of plea” was to admit to the commission
of “DUI; 1st.” See State’s Exhibit 1. See also Meyer, 366 S.W.3d at 730
(trial court’s role must be respected in evaluating witness credibility,
resolving conflicts in the evidence, and in drawing reasonable inferences
from the evidence).
20 Such an inference (i.e. McGonigal entered a plea to admit to the
commission of “DUI; 1st”) was further strengthened by State’s Exhibit 2, the
inmate booking sheet. See State’s Exhibit 2. State’s Exhibit 2 revealed
McGonigal’s arrest date of 05/09/2014 and a release date of 06/20/2014, a
period of forty-two (42) days. See State’s Exhibit 2. State’s Exhibit 2 also
revealed the “Agency” (KHP); the “Charge Date” (05/09/2014) and the
“Charge” (8-1567 Driving under Influence of alcohol or drugs;
Misdemeanor; STAT). See State’s Exhibit 2. See also Kan. Stat. Ann. §
8-1567(a), (b)(1) (2007 Supp.).
2. The Trial Court Could Have Inferred that McGonigal Entered a Plea to the Misdemeanor Offense of “DUI; 1st”.
As his second reason, McGonigal argued in his brief that this exhibit
(i.e. State’s Exhibit 1) “does not show to what crimes McGonigal intended to
plead no contest or guilty to.” See Appellant’s Brief, pg. 13. However, the
trial court could have considered State’s Exhibit 1 along with State’s Exhibit
2, which revealed the charge (“8-1567 Driving under Influence of alcohol
or drugs; Misdemeanor; STAT”), and drawn the reasonable inference that
McGonigal entered a plea to the misdemeanor offense of “DUI, 1st.”
Compare State’s Exhibit 1 with State’s Exhibit 2. See Meyer, 366 S.W.3d at
730 (trial court’s role must be respected in evaluating witness credibility,
resolving conflicts in the evidence, and in drawing reasonable inferences
21 from the evidence).
3. The Trial Court Could Have Inferred that McGonagall “Actually Plead” to the Misdemeanor Offense of “DUI; 1st”.
As his third reason, McGonigal argued in his brief that this exhibit
(i.e. State’s Exhibit 1) “does not show any proof that McGonigal actually
plead to Driving Under the Influence or that his plea was accepted.” See
Appellant’s Brief, pg. 14. Again, however, the trial court could have
considered State’s Exhibit 1 along with State’s Exhibit 2 and, by
comparison, drawn the reasonable inference that McGonigal entered a plea
to the misdemeanor offense of “DUI, 1st.” Compare State’s Exhibit 1 with
State’s Exhibit 2. From State’s Exhibit 2, the trial court could also have
drawn the reasonable inference that McGonigal would have “actually plead”
in exchange for a sentence of forty-two (42) days. See State’s Exhibit 2.
D. The “Appeal” by McGonigal Was Inconsequential.
Finally, McGonigal argued in his brief that the evidence was still
insufficient because he appealed his conviction (for an unspecified offense).
See Appellant’s Brief, pg. 17 (citing Prince v. State, 503 S.W.2d 777 (Tex.
Crim. App. 1974)). Unlike Prince, however, the State’s motion to proceed
with adjudication was based upon the commission of an offense, not a
conviction. See Barrientez v. State, 500 S.W.2d 474, 475 (Tex. Crim. App.
1973) (The State did not rely upon the previous conviction as the basis for
22 its application to revoke the probation). See also Davis v. State, 673 S.W.2d
956, 958 (Tex. App.--San Antonio 1984, no pet.); Martinez v. State, 635
S.W.2d 762, 767 (Tex. App.--Corpus Christi 1982, no pet.).
In the present case, the State’s motion to proceed with adjudication
was worded to the effect that appellant committed the offense. See
Barrientez, 500 S.W.2d at 475 (italics added in the opinion). Here, the
State’s motion specifically alleged the following:
Petitioner would show unto the Court that the Defendant, Christopher Neal McGonigal, has willfully violated the terms of said probation in that the said Christopher Neal McGonigal committed the offense of Driving under Influence of Alcohol or Drugs on or about May 9, 2014 in Montgomery County, KS. See CR, pg. 109.
Because the motion to proceed with adjudication was worded to the
effect that McGonigal committed the offense, the State sought to allege and
prove the commission, not the conviction, of the DUI offense. See
Barrientez, 500 S.W.2d at 475. Therefore, the appeal in Defendant’s
Exhibit # 1 was inconsequential.
E. Conclusion.
Taken together, State’s Exhibits 1 and 2 were sufficient to show a
violation of the terms and conditions of McGonigal’s community
supervision. See Wright v. State, 523 S.W.2d 704, 705 (Tex. Crim. App.
23 1975) (Because such documents are not as a matter of law insufficient to
show a violation of the terms of probation, but to the contrary may have
been sufficient). In addition to State’s Exhibits 1 and 2, the testimony from
Dean and Davidson provided sufficient evidence to support the trial court’s
finding that McGonigal committed an offense in violation of condition # 1
that “Defendant shall commit no offense against the laws of this or any State
or of the United States or any other Country.” See CR, pg. 67. In
conclusion, the trial court did not abuse its discretion because the revocation
order was supported by a preponderance of the evidence. See Davidson v.
State, 422 S.W.3d 750, 756 (Tex. App.--Texarkana 2013, pet. ref’d); Meyer,
366 S.W.3d at 729-30 (citing Lively, 338 S.W.3d at 143). Therefore, the
appellant’s first issue/point of error should be overruled.
24 SECOND ISSUE PRESENTED IN REPLY NO. 2: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING STATE’S EXHIBIT 2 BECAUSE THE JAIL RECORD QUALIFIED AS A BUSINESS RECORD.
With his second issue on appeal, McGonigal alleged that the trial
court erred when it admitted State’s Exhibit # 2 over defense objection
because it was inadmissible hearsay evidence. See Appellant’s Brief, pg.
19.
However, State’s Exhibit 2 was a jail record, and was admissible because it
qualified as a business record.
This Court reviews a trial court’s decision to admit or exclude
evidence for abuse of discretion. See, e.g., Lund v. State, 366 S.W.3d 848,
852 (Tex. App.--Texarkana 2012, pet. ref’d) (citing Osbourn v. State, 92
S.W.3d 531, 537 (Tex. Crim. App. 2002)). If the trial court’s decision to
admit evidence is within the zone of reasonable disagreement, the trial court
has not abused its discretion, and this Court must defer to that decision. See
id (citing Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)).
C. Jail Records.
The Court of Criminal Appeals has held that a defendant’s jail records
qualify as records made in the regular course of business. See Ford v. State,
25 179 S.W.3d 203, 209 (Tex. App.--Houston [14th Dist.] 2005, pet. ref’d), cert.
denied, 549 U.S. 922, 127 S. Ct. 281, 166 L. Ed. 2d 215 (2006) (citing
Jackson v. State, 822 S.W.2d 18, 30-31 (Tex. Crim. App. 1990) (en banc)).
In Ford, the court of appeals held that disciplinary records were sterile
recitations of appellant’s offenses and the punishments he received for those
offenses. See Ford, 179 S.W.3d at 209. The records did not contain
statements that could be considered testimonial in nature. See id. Because
the disciplinary records in Ford were not testimonial and fell within a
recognized exception to the hearsay rule, the court of appeals concluded that
the trial court did not abuse its discretion in admitting the evidence. See id.
Here, as in Ford, State’s Exhibit 2 was a jail record that contained a
sterile recitation of the appellant’s offense (“DUI; 1st”) along with
McGonigal’s photograph, his social security number, and his date of birth.
See State’s Exhibit 2. The jail record did not contain any statements that
could be considered testimonial in nature. See State’s Exhibit 2. Because
the jail record was not testimonial and fell within a recognized exception to
the hearsay rule, this Court should conclude that the trial court did not abuse
its discretion in admitting the evidence. See Ford, 179 S.W.3d at 209;
Jackson, 822 S.W.2d at 30-31. Therefore, the appellant’s second issue/point
of error should be overruled.
26 PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays
that upon final submission without oral argument, this Court should affirm
the trial court’s final judgment in all other respects, adjudge court costs
against the appellant and for such other and further relief, both at law and in
equity, to which the State may be justly and legally entitled.
Respectfully submitted,
Val J. Varley, County and District Attorney Red River County Courthouse 400 North Walnut Street Clarksville, Texas 75426-4012 (903) 427-2009 (903) 427-5316 (fax) valvarley@valornet.com
By:_/S/Val Varley___________ Val J. Varley, County-District Attorney SBN# 20496580
27 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
the “State’s Brief” was a computer-generated document and contained 4,772
words--not including the Appendix (not applicable here). The undersigned
attorney certified that he relied on the word count of the computer program,
which was used to prepare this document.
/s/Val Varley Val J. Varley valvarley@valornet.com
CERTIFICATE OF SERVICE
This is to certify that in accordance with Tex. R. App. P. 9.5, a true
copy of the “Appellee’s (State’s) Brief” has been served on the 9th day of
February, 2015 upon the following:
Don Biard McLaughlin, Hutchison & Biard 38 First Northwest Paris, TX 75460
/s/ Val Varley Val J. Varley valvarley@valornet.com