Pamela Jane Woodruff v. State

Opinion

ACCEPTED 07-15-00099-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 12/18/2015 8:59:31 PM Vivian Long, Clerk

07-15-00099-CR FILED IN PAMELA JANE WOODRUFF § IN THE COURT OF APPEALS 7th COURT OF APPEALS § AMARILLO, TEXAS 12/18/2015 8:59:31 PM vs. § FOR THE VIVIAN LONG § CLERK THE STATE OF TEXAS § SEVENTH DISTRICT OF TEXAS

MOTION FOR REHEARING To the Honorable Justices of the Court of Appeals:

COMES NOW Pamela Jane Woodruff and files this Motion

for Rehearing, respectfully showing the Court the following:

I.

The Sufficiency of the Evidence is Measured by the Allegations in the State’s Motion to Revoke

The Court has very recently noted that, in community

supervision revocation, “the State must prove by a preponderance

of the evidence that the probationer violated a condition of

community supervision as alleged in the motion to revoke.”

Cabello v. State, 2015 WL 7165585, at *2 (Tex.App. – Amarillo,

November 10, 2015, no pet.) (not designated for publication). The

“State is bound by the allegations in the charging instrument.”

Crenshaw v. State, 378 S.W.3d 460, 465 (Tex.Crim.App. 2012). Here, though, the State’s motion accuses explicitly that

“[t]he Defendant is delinquent in the payment of her fine in the

amount of $132.00,” and that “[t]he Defendant is delinquent in

the payment of her attorney's fees in the amount of $90.00.”

(Opinion, p. 2) (CR, p. 12, 19) (Exhibit B to the Appellant’s

opening Brief). Yet the bill of costs contradicts this by reflecting

that no payments were made at all.

The State should be bound to its pleadings, Crenshaw, 378

S.W.3d at 465, which control in revocation proceedings, Cabello,

2015 WL 7165585, at *2.

But the Opinion quotes Johnson v. State, 423 S.W.3d 385

(Tex.Crim.App. 2014), in saying that “although a bill of costs is

not required to sustain statutorily authorized and assessed court

costs, it is the most expedient, and therefore, preferable method.”

Id., at 395-6. From this evident dicta the Opinion makes the

State’s pleadings subject to the bill of costs. The sufficiency of

the evidence should be measured by the State’s motion and the

evidence of whether the allegations are true, not records prepared

by a district clerk who was likely absent at the time.

2 WHEREFORE, the appellant prays the Court grant rehearing

to address this matter.

Respectfully submitted,

/s/ JOHN BENNETT John Bennett Post Office Box 19144 Amarillo, Texas 79114 (806) 282-4455 Fax: (806) 398-1988 State Bar Number 00785691 AppealsAttorney@gmail.com Attorney for the appellant

CERTIFICATE OF COMPLIANCE

I hereby certify that this entire Motion contains 447 words.

/s/ JOHN BENNETT John Bennett 3 CERTIFICATE OF SERVICE

This is to certify that a copy of the above Motion for

Rehearing was served on Franklin McDonough, Esq., Gray

County District Attorney, by United States Mail, first class

delivery prepaid, to him at P.O. Box 1592, Pampa, Texas 79066-

1592, on December 18, 2015.

/s/ JOHN BENNETT John Bennett