Jessica Briggle v. State

• Court: Court of Appeals of Texas
• Decided: May 18, 2015
• Docket: 06-15-00041-CR
• Status: Published

Opinion

ACCEPTED 06-15-00041-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 5/18/2015 12:00:00 AM DEBBIE AUTREY CLERK

No.06 -15-00041-CR

COURT OF APPEALS FILED IN 6th COURT OF APPEALS SIXTH DISTRICT OF TEXAS TEXARKANA, TEXAS TEXARKANA 5/18/2015 9:16:00 AM DEBBIE AUTREY Clerk

JESSICA MARIE BRIGGLE vs. THE STATE OF TEXAS

FROM THE 6TH DISTRICT COURT OF LAMAR COUNTY, TEXAS ERIC CLIFFORD, PRESIDING

APPELLANT’S BRIEF

Charles England Perry State Bar No. 15799700 1101 Main Street P.O. Box 720 Commerce, Texas 75429 Tel. 903-886-0774 Fax. 903-886-2043 Cell. 940-613-8439 IDENTITY OF PARTIES AND COUNSEL

JESSICA MARIE BRIGGLE PARIS,TEXAS

ATTORNEY FOR APPELLANT

On Appeal:

Charles England Perry State Bar of Texas No. 15799700 1101 Main Street Commerce, Texas 75429

ATTORNEY FOR THE STATE OF TEXAS

Gary Young Assistant District Attorney Lamar County Courthouse 119 North Main Street Paris, Texas 75460 Phone No. 903-737-2413

ii Table of Contents

Identity of Parties and Counsel…………………………………………..….ii

Table of Contentents……………………………………………………..….iii

Index of Authorities……………………………………………………….....iv

I.Statement of the Case……………………………………………………..…1

II.Statement Regarding Oral Argument…………………………………….…1

III. Issue Presented………………………………………………………….…1

IV. Statement of Facts…………………………………………………………2-4

V. Summary of Arguments…………………………………………………….4

VI. Arguments and Authorities……………………………………………..…4-7

VII. Conclusion and Prayer……………………………………………..............8

Certificate of Service………………………………………………………...,…8

iii Index to Authorities

Cases:

Cardova v. State,665 S.W.2d 492, 493(1984)…………………………………4

Frazier v.State,600 S.W. 2d 271(Tex. Crim App.1979)……………………….7

Garrett v.State,619 S.W. 2d 172, 174(1981)……………………………..…….5

Maden v. State, 542 S.W.2d 189(Tex. Crim. App. 1976)……………….……..7

Mendoza v. State, 522 S.W. 2d 898 (Tex. Crim.App.1975)……………………7

Statues:

Texas Rules of Evidence:

Section 803(6)…………………………………………………….……5-7

Section 805……………………………………………………………….6

iv I. STATEMENT OF THE CASE.

The case at bar involves Jessica Marie Briggle who was indicted by

the Lamar County Grand Jury on four counts of forgery of a financial

instrument (CR 5-8) and later plead guilty on all four counts and placed

three years deferred adjudication with restitution made at the time of the plea

along with three years of Community Supervision(CR 33-40). Later the

State filed a motion to proceed with adjudication of guilt (CR 57-58). A

hearing was held on the State’s motion to proceed with adjudication of guilt

on February 17, 2015 and the court found the allegations in the States

motion to be true. The court thus found the defendant guilty on all four

counts and sentenced the defendant to 24 months in the State Jail Division of

the Texas Department of Criminal Justice with four counts to run

concurrently and further suspended the sentence and placed the defendant on

three years of Community Supervision.(CR 74-81) after finding special

conditions of Community Supervision (CR 57-68).At the hearing, the

defense raised and completed the requirement for a necessary defense. The

Trial Judge denied this request. This appeal follows:

II. STATEMENT REGARDING ORAL ARGUMENT

Appellant does not request oral argument upon the important issue

presented in this brief.

1 III. THE ISSUES PRESENTED

The Issue presented for review is:

The Court erred in admitting the unobjected hearsay evidence in

State’s Exhibit #1 and the unobjected hearsay evidence of Community

Supervision Officer Kelly Thrasher with respect to her testimony with

regard to the Community Supervision violations of the defendant Jessica

Marie Briggle. This evidence is thus insufficient and lacks sufficient

probative value for the Court to find the allegations in the State’s Motion to

Proceed to Adjudication of Guilt to be true.

IV. STATEMENT OF THE FACTS

The defendant was indicted originally on four counts of forgery(CR6-

8)and plead guilty (RR p.7 lines 5-8 and 9-22) and sentenced to three years

of Community Supervision (CR 33-40). On a Motion to Adjudicate Guilt

(CR 57-58) the following evidence was taken by the Court.

The State’s only document admitted into evidence with respect to the

alleged violations was from a failed drug test. The rest of the evidence came

from Mrs. Thrasher the Community Supervision supervisor over the

defendant. She testified that the defendant failed to report in October of 2104

(RR 15, 12-16) and was not current of fees and supervision fees (RR 15, 17-

2 25; 16-1-22; 17,5-10 and 18-22). She also testified that the defendant needed

to be revoked since getting out of treatment and relapsing (RR 19, 1-11).

Then she testified that there was a mistake in the allegation and she did not

miss reporting but it was actually November 2014.(RR 20, 7-18) then gave

an explanation on why she should be revoked(RR 22, 8-17). On cross

examination she testified that the defendant admitted with respect to

condition 23 the use of meth in July of 2014(RR 24, 2-15 and 15, 24-25).

Then she admitted that the violation of condition 23 came from the records

of Pearson and Agnew that were caring for the defendant (RR 25,1-25;26,1-

25; 27.1-20). State then admitted this was hearsay (RR 27,20-24). Then she

testified that there was an allegation that the defendant failed to pay fees in

September, October and November 2014. She next testified to a long and

confusing scenario of what was paid and what was delinquent (RR 28, 11-

25;29, 1-25; 30,1-25; 31, 1-14 and 10-20 and 23-25; 34, 1-15) Testifying

further Mrs. Thatcher admitted that defendant paid $3600.00 in fees and

supervision fees after reviewing a document from her office which was

hearsay.(RR 35,1-13). She then went on to testify that when the Motion to

Adjudicate Guilt was filed the defendant was current on her Community

Supervision Fees.(RR 37, 4-18) and was current on her Community

Supervision fees in July of 2014.(38, 18-24) She went on to testify that

3 $425.50 was the wrong amount owed (41, 19-22) and that the amount owed

was only $325.00 (42, 8-17).

V. SUMMARY OF THE ARGUMENT

The State proceeded in the hearing by attempting to prove several violations

of the defendant Jessica Marie Briggles’ Community Supervision Order(CR

30-31) by calling KellyThatcher as a witness. They introduced one

document into evidence that the witness said was a record that was kept in

their office. (State’s Exhibit # 1) that said that the defendant had filed a drug

test. This exhibit was not properly authenticated under Rule 803(6) of the

Texas Rules of Evidence, which is a record of regularly kept activity. The

rest of the witness’s testimony with respect to what the defendant did or did

not due was not declared or proven from the record in these proceedings.

The evidence produced by the state in the hearing on the Motion to

Adjudicate Guilt was hearsay even though not objected to on this ground,

1. ARGUMENT AND AUTHORITIES

STANDARD OF REVIEW

A trial courts order revoking probation or community supervision is

reviewed for an abuse of discretion under Cardona v. State, 665 S.W.

2d 492,493( Tex.Crim.App.1984). In determining whether the

evidence is sufficient to support revocation, the evidence is reviewed 4 in the light most favorable to the court’s ruling. Garrett v. State, 619

S.W. 2d 172,174( Tex.Crim.App.1981).

The evidence used to adjudicate the guilt of the defendant on

four counts of forgery of a financial instrument (CR 74-81) was State’

Exhibit # 1 which the witness Kelly Thrasher testified was kept in the

normal course of business yet the chain of custody was not initials by

the defendant.(RR 13, 14-16). This unobjected to evidence was not

properly authenticated under rule 803(6) of the Texas Rules of

Evidence and was thus hearsay.

The remainder of the State’s evidence used to adjudicate the

guilt of the defendant (CR 74-81) was in all due respect of a collection

of oral evidence from the witness Kelly Thrasher and was not

identified and shown to be from a source that could be classified as

relaiable and thus probative of the issues before the court. This can be

seen by the allegations in the State’s Motion to Adjudicate Guilt (CR

57-58) and how the testimony was at a fundamental variance with the

allegations. All this evidence was unobjected to hearsay.

The first variance was that the State plead the Defendant failed to

report in October of 3014 (CR 57-58) and so was the testimony (RR

15, 12-16) yet on cross examination Kelly Thrasher admitted she did

5 report in October of 2014.(RR 23, 25 and 24, 1) and there was a

mistake in the allegation and it was actually November 2014( RR 20,

7-18).

Another variance Kelly Thrasher testified that the defendant admitted

a violation of condition 23 in the Motion to Adjudicate Guilt (CR 57-

58) yet then admitted that this alleged violation came from records of

Pearson and Agnew that was caring for the defendant(RR, 25, 1-25;

26, 1-25; 27, 1-20). This was hearsay within hearsay and violates rule

805 of the Texas Rules of Evidence since the hearsay within the

hearsay was not otherwise proved as an exception to the hearsay rule.

The State even admitted this was hearsay (RR 27, 20-24)

The next variance scenario came from Kelly Thrasher’s

testimony with regard to alleged fees not paid and fees paid and a

change in the various amounts.(RR, 28, 11-25; 29, 1-25; 30,1-25;31,1-

14 and 10-20 and 23-25; 34, 1-15.) Later Kelly Thrasher testified the

defendant had paid $3600.00 in fees and supervision fees (RR 35, 1-

13). She continued to testify that when the Motion to Adjudicate was

filed (Cr 57-58) the defendant was current on Community Supervision

Fees (RR 37, 4-18) and was current on her Community Supervision

fees in July of 2014( 38, 18-24). She further testified that what was

6 said was owed was wrong and it should be $325.00 (RR428-17) and

not $425.50(RR 41, 19-22).

The source of all of Kelly Thrasher’s testimony can not fully be

determined but it can be determined that it was hearsay in a

Community Supervision Revocation Hearing or Motion to Adjudicate

Guilt after pleading guilty and being placed on deferred

adjudication(CR 33-40) and not objected to as such.

All of Kelly Thrasher’s testimony was not admitted under an

exception to the hearsay rule as well as State’s exhibit #1 not being

properly proved as a record of regularly kept activity [803(6) Texas

Rules of Evidence exception to the hearsay rule under section and the

court of criminal appeals set out a well established rule that such

evidence is without probative value and will not be considered in

determining sufficiency of the evidence. Mendoza v.State, 522 S.W.

2d 898(Tex. Crim.App.1975) and in Maden v. State (542 S.W. 2d

189(Tex Crim.App.1976) the court held that such evidence cannot be

applied in probation revocation hearings.

All this came together in Frazier v. State, 600 S.W. 2d 271(Tex.Crim.

App. 1979) where the court said that unobjected to hearsay cannot be

the basis of a probation revocation.

7 VI. CONCLUSION AND PRAYER

For the reasons stated in the Appellants Brief the Appellant requests this

Court to REVERSE the sentence of the defendant Jessica Marie Briggle and remand the

case to the 6th Judicial District Court of Lamar County, Texas.

Respectfully submitted,

By:_/s/ Charles E. Perry_ Charles E. Perry 1101 Main Street Commerce, Texas 75428 State Bar No: 15799700 Tel: 903-886-077 Fax: 903-886-2043 Cell: 940-613-8439

CERTIFICATE OF COMPLIANCE WITH T.R.A.P. 9.4(i)(3)

Relying on Microsoft Word’s word count feature used to create the Appellant’s Brief. I certify that the number of words contained in this brief is 1,871 and the typeface used is 14 font.

/s/ Charles E. Perry Attorney for Appellant

Certificate of Service I certify that on the 17th day of May 2015, a true and correct copy of the foregoing was delivered by email and efiling to Gary Young counsel for the State of Texas, Lamar County District Attorney’s Office at the Lamar County Courthouse located at 119 North Main Street in Paris, Texas 75460 by Charles E. Perry, counsel for the Defendant, Jessica Marie Briggle.

__/s/_Charles E. Perry_____

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