ACCEPTED 06-15-00041-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 6/16/2015 10:57:09 AM DEBBIE AUTREY CLERK
ORAL ARGUMENT WAIVED FILED IN 6th COURT OF APPEALS CAUSE NO. 06-15-00041-CR TEXARKANA, TEXAS 6/16/2015 10:57:09 AM DEBBIE AUTREY IN THE Clerk
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ____________________________________________________________
JESSICA MARIE BRIGGLE, Appellant
V.
THE STATE OF TEXAS, Appellee ____________________________________________________________
ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT LAMAR COUNTY, TEXAS; TRIAL COURT NO. 23274; HONORABLE ERIC CLIFFORD, JUDGE ____________________________________________________________
APPELLEE’S (STATE’S) BRIEF ____________________________________________________________
Gary D. Young Lamar County and District Attorney Lamar County Courthouse 119 North Main Paris, Texas 75460 (903) 737-2470 (903) 737-2455 (fax)
ATTORNEYS FOR THE STATE OF TEXAS 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.
-i- TABLE OF CONTENTS
PAGE NO.:
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . vi
ISSUE PRESENTED IN REPLY. . . . . . . . . . . . . . . . . . . . . . . viii
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT AND AUTHORITIES
SOLE ISSUE PRESENTED IN REPLY: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REVOKING THE APPELLANT’S COMMUNITY SUPERVISION BECAUSE UNOBJECTED-TO HEARSAY CONSTITUTED SUFFICIENT EVIDENCE IN SUPPORT OF AN ORDER REVOKING COMMUNITY SUPERVISION, AND THE TRIAL COURT COULD HAVE REASONABLY FOUND FROM STATE’S EXHIBIT 1 THAT BRIGGLE VIOLATED A CONDITION OF HER COMMUNITY SUPERVISION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
-ii- PAGE NO.:
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . 10
-iii- INDEX OF AUTHORITIES
CASES: PAGE:
Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Ex parte Brown, 875 S.W.2d 756, 761 (Tex. App.--Fort Worth 1994, orig. proceeding) . . . . . . . . . . . . . . . . . . . 6
Fernandez v. State, 805 S.W.2d 451, 455-56, 457 n. 1 (Tex. Crim. App.1991) (Baird, J., concurring) . . . . . . . . . . . 7
Frazier v. State, 600 S.W.2d 271 (Tex. Crim. App. 1979). . . 7
Garcia v. State, 880 S.W.2d 497, 500 (Tex. App.--Corpus Christi 1994, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . 7
In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.--Texarkana 2003, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6,8
Jones v. State, 112 S.W.3d 266, 269 (Tex. App.--Corpus Christi 2003, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Lively v. State, 338 S.W.3d 140, 143 (Tex. App.-- Texarkana 2011, no pet.) . . . . . . . . . . . . . . . . . . . . . . . 5,6,8
Marsh v. State, 343 S.W.3d 475, 479 (Tex. App.--Texarkana 2011, pet. ref’d) (Justice Moseley) . . . . . . . . . . . . . . . . 6
Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Rickels v. State, 202 S.W.3d 759, 763, 764 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6,8
Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
-iv- STATUTES: PAGE:
TEX. R. APP. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,8
TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . i
-v- STATEMENT OF THE CASE
This is a revocation case.
After the trial court placed Briggle on community supervision for four
counts of forgery of a financial instrument (CR, pgs. 30-31), the State moved
for an adjudication of guilt. See CR, pgs. 57-58. Upon the conclusion of a
revocation hearing, the trial court revoked Briggle’s community supervision
and found her guilty of forgery of a financial instrument, Counts 1, 2, 3 and
4. See RR, Vol. 3, pg. 66. The trial court then sentenced Briggle to 24
months confinement in the Texas Department of Criminal Justice but
suspended that sentence “to place her on probation.” See RR, Vol. 3, pg. 66.
The trial court required Briggle “to attend and successfully complete the
SAFP program and any aftercare that is required.” See RR, Vol. 3, pg. 66.
From the trial court’s separate judgments adjudicating guilt as to each
count (CR, pgs. 74-75, 76-77, 78-79, 80-81), Briggle timely filed her notice
of appeal. See CR, pg. 73. By this appeal, Briggle brought a single issue.
-vi- STATEMENT REGARDING ORAL ARGUMENT
The State of Texas will waive oral argument. See Tex. R. App. P.
38.1(e), 38.2(a)(1).
-vii- SOLE ISSUE PRESENTED IN REPLY
SOLE ISSUE PRESENTED IN REPLY: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REVOKING THE APPELLANT’S COMMUNITY SUPERVISION BECAUSE UNOBJECTED-TO HEARSAY CONSTITUTED SUFFICIENT EVIDENCE IN SUPPORT OF AN ORDER REVOKING COMMUNITY SUPERVISION, AND THE TRIAL COURT COULD HAVE REASONABLY FOUND FROM STATE’S EXHIBIT 1 THAT BRIGGLE VIOLATED A CONDITION OF HER COMMUNITY SUPERVISION.
-viii- CAUSE NO. 06-15-00041-CR
IN THE
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ____________________________________________________________
THE STATE OF TEXAS, Appellee ____________________________________________________________
ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT LAMAR COUNTY, TEXAS; TRIAL COURT NO. 23274; HONORABLE ERIC CLIFFORD, JUDGE ____________________________________________________________
APPELLEE’S (STATE’S) BRIEF ____________________________________________________________
TO HONORABLE SIXTH COURT OF APPEALS:
COMES NOW, the State of Texas, by and through its Lamar County
and District Attorney’s Office, files this its Appellee’s Brief under Rule 38.2
of the Texas Rules of Appellate Procedure.
Unless otherwise indicated, Jessica Marie Briggle will be referred to
as “Briggle” or “the appellant.” The State of Texas will be referred to as
“the State” or “appellee.”
-1- STATEMENT OF FACTS
Indictment for Forgery of a Financial Instrument, and Plea.
On July 20, 2009, a grand jury in Lamar County return an original
indictment that charged Biggle with a state-jail-felony offense of forgery of
a financial instrument. See CR, pgs. 5-8. The original indictment included
several counts for separate financial instruments (i.e. checks) on separate
dates. See CR, pgs. 5-8.
Subsequently, Biggle agreed to a plea bargain agreement. See CR,
pgs. 18-28. As part of that agreement, Briggle entered a plea of “guilty”
(RR, Vol. 2, pg. 7), and the trial court placed Biggle on deferred community
supervision for three (3) years with standard terms and conditions of
community supervision. See CR, pgs. 30-31. On February 19, 2010, the
trial court signed its four orders of deferred adjudication for each of the
counts, as alleged in the indictment. See CR, pgs. 33-34, 35-36, 37-38, 39-
40.
Motion to Proceed with Adjudication and Hearing.
In due course, the State filed a motion to proceed with an adjudication
of guilt on December 19, 2014. See CR, pgs. 57-58. On February 17, 2015,
the trial court presided over a revocation hearing. See RR, Vol. 3, pg. 1.
-2- During the hearing, Briggle entered a plea of “not true” to all of the State’s
allegations. See RR, Vol. 3, pg. 7.
As its first witness, the State called Kelly Thrasher, a community
supervision officer for Lamar County that was familiar with Briggle. See
RR, Vol. 3, pgs. 7-8. During her testimony, the State offered State’s Exhibit
1, which the trial court admitted over “No objection, Your Honor.” See RR,
Vol. 3, pg. 13.
Upon the conclusion of the hearing, the trial court revoked the
appellant’s community supervision and found Briggle guilty of forgery of a
financial instrument, Counts 1, 2, 3 and 4. See RR, Vol. 3, pg. 66. The trial
court then sentenced Briggle to 24 months confinement in the Texas
Department of Criminal Justice, but the trial court suspended that sentence
“to place her on probation.” See RR, Vol. 3, pg. 66. The trial court required
Briggle “to attend and successfully complete the SAFP program and any
aftercare that is required.” See RR, Vol. 3, pg. 66. In open court, Briggle
was “going to present my notice of appeal.” See RR, Vol. 3, pg. 66.
Trial Court’s Judgments Adjudicating Guilt and Notice of Appeal.
On February 17, 2015, the trial court signed its judgments
adjudicating guilt, as to each count. See CR, pgs. 74-75, 76-77, 78-79, 80-
-3- 81. Briggle timely filed her notice of appeal. See CR, pg. 73.
Proceedings in this Court.
On or about February 20, 2015, the appellant filed her notice of appeal
in this Court. On or about April 15, 2015, the district clerk of Lamar County
filed the Clerk’s Record. The official court reporter filed the Reporter’s
Record on or about May 4, 2015.
The appellant filed her brief on or about May 18, 2015. The State
filed, or will be filing, its brief on or before June 17, 2015.
SUMMARY OF THE ARGUMENT
The appellant’s sole issue on appeal should be overruled. This Court
should affirm the trial court’s final judgments of conviction because
unobjected-to hearsay testimony from Kelly Thrasher, a community
supervision officer for Lamar County, constituted sufficient evidence in
support of the trial court’s judgments adjudicating guilt. See CR, pgs. 74-75,
76-77, 78-79, 80-81.
Even if the trial court erred in considering unobjected-to hearsay
evidence, the trial court admitted State’s Exhibit 1 over “No objection, Your
Honor” (RR, Vol. 3, pg. 13); and thus, Briggle waived any objection to the
admission of State’s Exhibit 1. See Tex. R. App. P. 33.1(a). From State’s
-4- Exhibit 1, the trial court could have found, by a preponderance of the
evidence, that Briggle violated a condition of her community supervision
(i.e. condition 23). Therefore, the trial court’s error, if any, in considering
unobjected-to hearsay evidence was harmless.
SOLE ISSUE PRESENTED IN REPLY: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REVOKING THE APPELLANT’S COMMUNITY SUPERVISION BECAUSE UNOBJECTED-TO HEARSAY CONSTITUTED SUFFICIENT EVIDENCE IN SUPPORT OF AN ORDER REVOKING COMMUNITY SUPERVISION, AND THE TRIAL COURT COULD HAVE REASONABLY FOUND FROM STATE’S EXHIBIT 1 THAT BRIGGLE VIOLATED A CONDITION OF HER COMMUNITY SUPERVISION.
A. Standard of Review: Abuse of Discretion.
This Court will review the trial court’s decision to revoke community
supervision for an abuse of discretion. See Lively v. State, 338 S.W.3d 140,
143 (Tex. App.--Texarkana 2011, no pet.) (citing Rickels v. State, 202
S.W.3d 759, 763 (Tex. Crim. App. 2006); In re T.R.S., 115 S.W.3d 318, 320
(Tex. App.--Texarkana 2003, no pet.)). The trial court does not abuse its
discretion if the order revoking community supervision is supported by a
preponderance of the evidence; in other words, the greater weight of the
credible evidence would create a reasonable belief that the defendant has
violated a condition of his or her community supervision. See Lively, 338
-5- S.W.3d at 143 (citing Rickels, 202 S.W.3d at 763-64; T.R.S., 115 S.W.3d at
320).
“The State is required to sustain the burden of proving the allegations
of the motion to revoke probation.” See Scamardo v. State, 517 S.W.2d 293,
298 (Tex. Crim. App. 1974). In conducting the review, this Court must view
the evidence in the light most favorable to the trial court’s ruling. See
Lively, 338 S.W.3d at 143 (citing Cardona v. State, 665 S.W.2d 492, 493
(Tex. Crim. App. 1984)).
“[I]f the trial court’s ruling can be sustained on an independent ground
the appellant must challenge all of the grounds on appeal.” See Marsh v.
State, 343 S.W.3d 475, 479 (Tex. App.--Texarkana 2011, pet. ref’d) (Justice
Moseley) (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App.
[Panel Op.] 1980) (defendant must challenge each ground on which the trial
court relies on to rule against the defendant because one sufficient ground
supports trial court’s order)). “Proof of any single alleged violation of a
condition of probation is sufficient to support revocation.” See Ex parte
Brown, 875 S.W.2d 756, 761 (Tex. App.--Fort Worth 1994, orig.
proceeding).
-6- B. The Trial Court Did Not Abuse its Discretion in Revoking Briggle’s Community Supervision.
1. Unobjected-to Hearsay Constituted Sufficient Evidence in Support of an Order Revoking Probation.
In her brief, Briggle essentially argued that unobjected-to hearsay
could not be the basis of a probation revocation. See Appellant’s Brief, pg. 7
(citing Frazier v. State, 600 S.W.2d 271 (Tex. Crim. App. 1979)). However,
the Texas Court of Criminal Appeals has recognized the probative value of
inadmissible hearsay in probation revocation proceedings. See Fernandez,
805 S.W.2d 451, 457 n. 1 (Tex. Crim. App. 1991) (Baird, J., concurring).
Since Frazier, “[t]he trial court may consider unobjected-to hearsay
testimony no differently than other testimony that the fact finder may either
accept or reject.” See Jones v. State, 112 S.W.3d 266, 269 (Tex. App.--
Corpus Christi 2003, no pet.) (citing Fernandez v. State, 805 S.W.2d 451,
455-56 (Tex. Crim. App. 1991); Garcia v. State, 880 S.W.2d 497, 500 (Tex.
App.--Corpus Christi 1994, no pet.)).
2. The Trial Court Did Not Abuse its Discretion in Revoking Briggle’s Community Supervision.
Because the fact finder could either accept or reject unobjected-to
hearsay testimony from Kelly Thrasher, see id, the trial court could have
found, by the greater weight of the credible evidence, that Briggle had
-7- violated the conditions of her community supervision. See Lively, 338
S.W.3d at 143 (citing Rickels, 202 S.W.3d at 763-64; T.R.S., 115 S.W.3d at
320). Therefore, the trial court did not abuse its discretion in revoking
Briggle’s community supervision. See Lively, 338 S.W.3d at 143.
Even assuming the trial court could not rely on the hearsay testimony
of Kelly Thrasher, the trial court still did not abuse its discretion because it
could have found that Briggle had violated the conditions of her community
supervision from State’s Exhibit 1 solely. During the revocation hearing,
the State offered Exhibit 1 into evidence and Briggle stated, “No objection,
Your Honor.” See RR, Vol. 3, pg. 13. See Tex. R. App. P. 33.1(a). By
stating “no objection,” the trial court properly admitted State’s Exhibit 1
(ORDER FOR DRUG TEST), which Briggle signed. See State’s Exhibit 1.
By a check mark dated July 4, 2014, Briggle acknowledged that she had
“used illegal drugs in the last 3 weeks” and she listed “Meth 2 wks ago.”
See State’s Exhibit 1.
From State’s Exhibit 1 only, which was admitted over no objection,
the trial court could could have found that Briggle had violated the
conditions of her community supervision. Even if the trial court erred in
relying on unobjected-to hearsay testimony from Kelly Thrasher, Briggle
-8- could not show any harm because the trial court had properly-admitted
evidence that would have sufficiently supported its revocation order.
Accordingly, the appellant’s sole issue on appeal should be overruled, and
the final judgment of the trial court should be affirmed.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays
that upon final submission of the above-styled and numbered causes without
oral argument, this Court affirm the trial court’s final judgment of conviction
in all respects; adjudge court costs against the appellant; and for such other
and further relief, both at law and in equity, to which it may be justly and
legally entitled.
Respectfully submitted,
Gary D. Young Lamar County & District Attorney Lamar County Courthouse 119 North Main Paris, Texas 75460 (903) 737-2470 (903) 737-2455 (fax)
By:________________________________ Gary D. Young, County Attorney SBN# 00785298 gyoung@co.lamar.tx.us
ATTORNEYS FOR THE STATE OF TEXAS
-9- CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
the “Appellee’s (State’s) Brief” was a computer-generated document and
contained 2475 words--not including the Appendix, if any. The undersigned
attorney certified that he relied on the word count of the computer program,
which was used to prepare this document.
______________________________ GARY D. YOUNG gyoung@co.lamar.tx.us
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 16th day of
June, 2015 upon the following:
Charles England Perry 1101 Main Street P.O. Box 720 Commerce, TX 75429
______________________________ GARY D. YOUNG gyoung@co.lamar.tx.us
-10-