PD-1016-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/7/2015 8:31:25 PM Accepted 10/8/2015 4:06:22 PM ABEL ACOSTA COURT OF CRIMINAL APPEALS CLERK
PD-1016-15
Ex Parte Julie Ann VonTungeln On Discretionary Review from No. 10-14-00329-CR Tenth Court of Appeals, Waco
On Appeal from No. F43117-A 18th Judicial District Court, Johnson County
Petition for Discretionary Review Kristin R. Brown 18208 Preston Road Dallas, TX 75252 Phone: 214-446-3909 Fax: 214-481-4868 kbrown@idefenddfw.com Texas Bar No. 24081458
Michael Mowla P.O. Box 868 Cedar Hill, TX 75106 October 8, 2015 Phone: 972-795-2401 Fax: 972-692-6636 michael@mowlalaw.com Texas Bar No. 24048680
Attorneys for Appellant
If the Petition is granted, oral argument is requested
I. Identities of Parties, Counsel, and Judges Julie Ann VonTungeln, Appellant
Kristin R. Brown, Attorney for Appellant during habeas proceeding, on appeal, and on discretionary review
Michael Mowla, Attorney for Appellant on appeal and on discretionary review
Ben Hill Turner, Attorney for Appellant at trial
Dale Hanna, Attorney for State of Texas
David Vernon, Attorney for State of Texas
Kriste Burnett, Attorney for State of Texas
John Neill, Presiding Judge of the 18th Judicial District Court
2 II. Table of Contents I. Identities of Parties, Counsel, and Judges ........................................................2 II. Table of Contents..............................................................................................3 III. Index of Authorities ..........................................................................................5 IV. Appendix Index ................................................................................................7 V. Statement Regarding Oral Argument ...............................................................8 VI. Statement of the Case and Procedural History .................................................9 VII. Grounds for Review .......................................................................................14 VIII. Argument ........................................................................................................15 1. Ground for Review: When the constitutionality of a statute is questioned, to overcome the presumption that the legislature did not act unreasonably or arbitrarily, the party challenging the statute must show by a preponderance of the evidence that the statute is unconstitutional. The party must show only that the application of the statute harmed an important governmental interest. Once the party makes this showing, the burden shifts to the Government to show that the challenged application is narrowly tailored to meet a compelling governmental interest and that no less restrictive means are available. Appellant met this burden because she proffered evidence that showed by a preponderance of the evidence that: (1) she married her husband; (2) marriage is an important governmental interest; and (3) the government prohibited the free exercise of Appellant’s right to privacy in her marital relationship, her right to equal protection under the law, her right to due process under the law, and her right to freely associate with her spouse. And, the State failed to meet its burden of proving that the application of “Condition 3” upon Appellant’s marital relationship could survive strict scrutiny analysis. As a result, the Court of Appeals erred when it: (1) overruled Appellant’s constitutional issues and concluded that Appellant failed to meet her burden; (2) failed to recognize that the State did not meet its burden under the strict scrutiny standard; (3) failed to analyze Appellant’s constitutional arguments under the strict scrutiny standard; (4) accepted the State’s misfeasance in 3 its briefing; (5) accepted “mere allegations” offered by the State as proven fact; and (6) failed to find that the trial court abused its discretion in denying Appellant’s application. ..............................................15 i. Appellant proved by a preponderance of the evidence that the application of “Condition 3” to Appellant’s marital relationship was unconstitutional. ...........................................................15 ii. The State did not meet its burden under the strict scrutiny standard to show that the condition, as applied, was narrowly tailored to meet a compelling governmental interest and that no less restrictive means was available. ..................................................18 iii. Under the strict scrutiny analysis, the application of “Condition 3” to Appellant’s marital relationship is unconstitutional. ......................................................................................18 iv. In failing to acknowledge the misfeasance of the State in its briefing, the Court of Appeals has impliedly approved of such behavior. ..........................................................................................21 v. Conclusion ...............................................................................................24 IX. Conclusion and Prayer ....................................................................................26 X. Certificate of Service ......................................................................................27 XI. Certificate of Compliance with Tex. Rule App. Proc. 9.4 .............................28
4 III. Index of Authorities Cases Aghili v. Banks, 63 S.W.3d 812 (Tex. App. Houston [14th Dist.] 2001, pet. denied) (op. on reh’g) .............................................................................22 Bailey v. City of Austin, 972 S.W.2d 180 (Tex. App. Austin 1998, pet. den.) ...............................................................................................................17 Carey v. Population Servs. Int’l, 431 U.S. 678 (1977) ............................................16 Dennis v. United States, 341 U.S. at 494 (1951) .............................................. 16, 17 Ex Parte Julie Ann VonTungeln, 10-14-00329-CR, 2015 Tex. App. LEXIS 8247 (Tex. App. Waco, August 6, 2015) (Gray, C.J. dissenting) (mem. op., not designated for publication) ........................ 7, 9, 24 Griswold v. Connecticut, 381 U.S. 479 (U.S. 1965) ........................................ 15, 16 Hilliard v. Ferguson, 30 F.3d 649 (5th Cir. 1994) ..................................................20 Macias v. State, 649 S.W.2d 150 (Tex. App. El Paso 1983, no pet.) ......................18 Mauze v. Curry, 861 S.W.2d 869 (Tex. 1993).........................................................22 Planned Parenthood v. Casey, 505 U.S. 833 (1992) ...............................................16 Southtex 66 Pipeline Co. v. Spoor, 238 S.W.3d 538 (Tex. App. Houston 14th Dist. 2007, pet. denied)..........................................................................23 Tamez v. State, 534 S.W.2d 686 (Tex. Crim. App. 1976) .......................................19 United States v. Arce, 997 F.2d 1123 (5th Cir. 1993) .............................................21 United States v. Foxworth, 599 F.2d 1 (1st Cir. 1979) ............................................21 United States v. O’Brien, 391 U.S. 367 (1968) .......................................................17 Wells v. Hardy, 51 S.W. 503 (Tex. Civ. App. Austin 1899) ...................................17 Zablocki v. Redhail, 434 U.S. 374 (1978) ........................................................ 16, 19
Rules Tex. Rule App. Proc. 66.3 (2015) ............................................................................26 Tex. Rule App. Proc. 68.4 (2015) ....................................................................... 8, 14 Tex. Rule App. Proc. 9.4 (2014) ..............................................................................28 Tex. Rule App. Proc. 9.5 (2014) ..............................................................................27
5 Tex. Rule Civ. Proc. 166a (2015) ............................................................................23 Tex. Rule Evid. 602 (2015)......................................................................................23
6 IV. Appendix Index Appendix 1: Ex Parte Julie Ann VonTungeln, 10-14-00329-CR, 2015 Tex. App. LEXIS 8247 (Tex. App. Waco, August 6, 2015) (Gray, C.J. dissenting) (mem. op., not designated for publication).
7 V. Statement Regarding Oral Argument Should the Court grant this petition, Appellant requests oral argument. See
Tex. Rule App. Proc. 68.4(c) (2015). The issue presented in this case involves one
of first impression dealing with a probationer’s right to marry, communicate with,
and cohabitate with the person she chooses, and the state’s unreasonable interference
with that right. Therefore, should this Court determine that its decisional process will
be significantly aided by oral argument, Appellant will be honored to present oral
argument.
8 To the Honorable Judges of the Court of Criminal Appeals:
Appellant Julie Ann VonTungeln respectfully submits this petition for
discretionary review:
VI. Statement of the Case and Procedural History This petition for discretionary review requests that this Court review the
judgment and opinion of the Tenth Court of Appeals in Ex Parte Julie Ann
VonTungeln, 10-14-00329-CR, 2015 Tex. App. LEXIS 8247 (Tex. App. Waco,
August 6, 2015) (Gray, C.J. dissenting) (mem. op., not designated for publication).
(See Appendix 1). This issues presented in this petition appear to be issues of first
impression. Appellant is not aware of any other cases where the state has imposed
a prohibition on spousal contact as a part of a standard, but vague, condition of
probation where: (1) the spouse has no relation to the offense for which the appellant
was on probation; (2) the prohibited conduct is not in itself criminal; and (3) the
prohibition is not reasonably related to the future criminality of the offender or
otherwise serve the statutory ends of probation. Appellant filed an application for
writ of habeas corpus asking the trial court to modify “Condition 3” recognizing her
marital relationship, and allowing Appellant and her husband to live together and
associate as husband and wife, but Appellant’s application was summarily denied as
“frivolous.” The Court of Appeals upheld the imposition of the condition because
9 Appellant allegedly failed to carry her burden of proof of unconstitutionality, as
applied, to a preponderance of the evidence.
The marriage relationship is included within the zone of privacy created by
several fundamental constitutional rights. The right to privacy and the right to due
process and equal protection under the law are fundamental rights. The right to
freely associate is also a fundamental right. Where a fundamental right is impinged,
the State has the burden to show that the requirements of strict scrutiny are met.
When the constitutionality of a statute is questioned, a court must presume the
legislature has not acted unreasonably or arbitrarily, and—as a result—the party
challenging the statute must show by a preponderance of the evidence that the statute
is unconstitutional. Appellant met this burden because she proffered evidence that
showed by a preponderance of the evidence that: (1) she married her husband; (2)
marriage is an important governmental interest; and (3) the government prohibited
the free exercise of Appellant’s right to privacy in her marital relationship, her right
to equal protection under the law, her right to due process under the law, and her
right to freely associate with her spouse. And, the State failed to meet its burden of
proving that the application of “Condition 3” upon Appellant’s marital relationship
could survive strict scrutiny analysis. On the other hand, the State failed to prove
that the requirements of strict scrutiny were met in the imposition of “Condition 3”
upon Appellant’s marital relationship.
10 Yet, in a 2-1 decision—with Chief Justice Gray dissenting without opinion—
the Court of Appeals ruled against Appellant—looking not to the issues regarding
the constitutionality of “Condition 3” as applied, but instead accepting mere
allegations as proven fact, and accepting the misfeasance of the State in not only its
probationary practices, but in its briefing to the court.
The procedural history leading up to this petition is that on October 15, 2014,
the presiding judge of the 18th District Court, Johnson County, Texas, entered an
order denying Applicant’s 11.072 Application for Writ of Habeas Corpus as
Frivolous. (“Order”). (CR-Supp-2, 5).1 On September 26, 2014, Appellant filed an
Application for Writ of Habeas Corpus Pursuant to Tex. Code Crim. Proc. art.
11.072. (CR, 123–203). In the Application and on appeal, Appellant asserted that
“Condition 3” of her community supervision is unconstitutional as applied to
Appellant because under this condition, the Johnson County District Attorney,
through the Johnson County Probation Office, prohibits Appellant from living, or
having any contact, with her husband, Steven Alsobrook. (See id.).
Appellant is on deferred adjudication community supervision under Cause
No. F43117. (See CR, 38–40). Her term of community supervision is scheduled to
The Clerk’s Record consists of one regular and two supplemental volumes. The main volume is 1
cited as “CR” followed by the page number. The two supplemental volumes are cited as “CR- Supp-1” and “CR-Supp-2” followed by the page number. There is no reporter’s record. 11 end on February 26, 2019. Id. As required under Texas Code of Criminal Procedure
Article 11.072 §3(b), prior to filing the application, Appellant filed a Motion to
Modify the Terms and Conditions of Community Supervision requesting relief from
the application of “Condition 3” upon her marital relationship. (CR, 72–72; CR, 81–
83; CR, 85–104; CR, 108-119). In fact, Appellant filed this motion on four separate
occasions. These motions were all summarily denied. (CR, 84; CR, 107).
Appellant’s final motion was filed on August 14, 2014. (CR, 108–119). This
motion was denied on August 27, 2014. (CR, 122). Appellant then filed her
Application for Writ of Habeas Corpus. (CR, 123–203). The trial court denied the
Application as frivolous and did not issue findings of fact or conclusions of law.
(CR-Supp-2, 5); see also Tex. Code Crim. Proc. art 11.072 §7(a) (2015). Appellant
appealed, raising two issues:
1. The trial court abused its discretion and Appellant’s constitutional rights under the Fourteenth Amendment were violated when the trial court denied (as frivolous) Appellant’s Application for Writ of Habeas Corpus, which showed that “Condition 3” of Appellant’s community supervision is unconstitutional.
2. The trial court abused its discretion and violated Appellant’s constitutional rights under the First Amendment when it denied (as frivolous) Appellant’s Application for Writ of Habeas Corpus, which showed that “Condition 3” of Appellant’s community supervision is unconstitutional.
On August 6, 2015, the Court of Appeals overruled both of Appellant’s issues
finding that: (1) Appellant did not meet her burden of showing by a preponderance
12 of the evidence that the statute was unconstitutional; (2) based on the record, it could
not be said that the trial court erred or abused its discretion in denying Appellant’s
Application. This petition for discretionary review follows.
13 VII. Grounds for Review Ground One: When the constitutionality of a statute is questioned, to overcome the presumption that the legislature did not act unreasonably or arbitrarily, the party challenging the statute must show by a preponderance of the evidence that the statute is unconstitutional. The party must show only that the application of the statute harmed an important governmental interest. Once the party makes this showing, the burden shifts to the Government to show that the challenged application is narrowly tailored to meet a compelling governmental interest and that no less restrictive means are available.
Appellant met this burden because she proffered evidence that showed by a preponderance of the evidence that: (1) she married her husband; (2) marriage is an important governmental interest; and (3) the government prohibited the free exercise of Appellant’s right to privacy in her marital relationship, her right to equal protection under the law, her right to due process under the law, and her right to freely associate with her spouse. And, the State failed to meet its burden of proving that the application of “Condition 3” upon Appellant’s marital relationship could survive strict scrutiny analysis.
As a result, the Court of Appeals erred when it: (1) overruled Appellant’s constitutional issues and concluded that Appellant failed to meet her burden; (2) failed to recognize that the State did not meet its burden under the strict scrutiny standard; (3) failed to analyze Appellant’s constitutional arguments under the strict scrutiny standard; (4) accepted the State’s misfeasance in its briefing; (5) accepted “mere allegations” offered by the State as proven fact; and (6) failed to find that the trial court abused its discretion in denying Appellant’s application.
Appellee directs this Court’s attention to the following parts of the record on
appeal:
Clerk’s record, pages 33-40, 76-78, 115-119, 123-203.
Supplemental clerk’s record, pages 27, 30,
See Tex. Rule App. Proc. 68.4(f) (2015).
14 VIII. Argument 1. Ground for Review: When the constitutionality of a statute is questioned, to overcome the presumption that the legislature did not act unreasonably or arbitrarily, the party challenging the statute must show by a preponderance of the evidence that the statute is unconstitutional. The party must show only that the application of the statute harmed an important governmental interest. Once the party makes this showing, the burden shifts to the Government to show that the challenged application is narrowly tailored to meet a compelling governmental interest and that no less restrictive means are available. Appellant met this burden because she proffered evidence that showed by a preponderance of the evidence that: (1) she married her husband; (2) marriage is an important governmental interest; and (3) the government prohibited the free exercise of Appellant’s right to privacy in her marital relationship, her right to equal protection under the law, her right to due process under the law, and her right to freely associate with her spouse. And, the State failed to meet its burden of proving that the application of “Condition 3” upon Appellant’s marital relationship could survive strict scrutiny analysis. As a result, the Court of Appeals erred when it: (1) overruled Appellant’s constitutional issues and concluded that Appellant failed to meet her burden; (2) failed to recognize that the State did not meet its burden under the strict scrutiny standard; (3) failed to analyze Appellant’s constitutional arguments under the strict scrutiny standard; (4) accepted the State’s misfeasance in its briefing; (5) accepted “mere allegations” offered by the State as proven fact; and (6) failed to find that the trial court abused its discretion in denying Appellant’s application. i. Appellant proved by a preponderance of the evidence that the application of “Condition 3” to Appellant’s marital relationship was unconstitutional. The marriage relationship “lies within the zone of privacy created by several
fundamental constitutional rights.” Griswold v. Connecticut, 381 U.S. 479, 484
(U.S. 1965). To establish a constitutional claim, one must show by a preponderance
of the evidence that the condition itself or the application of the condition has harmed
an important governmental interest. See Dennis v. United States, 341 U.S. 494, 495- 15 511 (1951). Where a fundamental right is impinged by the Government, the
Government has the burden to show a compelling government interest and must
show that the condition imposed is narrowly tailored to meet that interest, such that
no less restrictive means are available. Zablocki v. Redhail, 434 U.S. 374, 388
(1978) (emphasis supplied). This is the strict scrutiny standard. Id.
“It is clear that among the decisions that an individual may make without
unjustified government interference are personal decisions relating to marriage,
procreation, contraception, family relationships, and child rearing and education.’”
Planned Parenthood v. Casey, 505 U.S. 833, 859 (1992) citing Carey v. Population
Servs. Int’l, 431 U.S. 678, 684-685 (1977). “These matters, involving the most
intimate and personal choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty protected by the Fourteenth
Amendment.” Casey, 505 U.S. at 851. In Griswold, the Supreme Court stated:
“We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
Griswold, 381 U.S. at 486 (emphasis supplied).
In this case, Appellant proved by a preponderance of the evidence that the
application of “Condition 3” upon her marital relationship harmed an important
16 governmental interest and is, therefore, unconstitutional. With her Application,
Appellant attached as an exhibit a certified copy of the Recognition of Informal
Marriage. (CR, 115).
Marriage is an important governmental interest, especially in Texas, where
the courts have long held that the right to marry is fundamental. See Wells v. Hardy,
51 S.W. 503, 505 (Tex. Civ. App. Austin 1899); Bailey v. City of Austin, 972 S.W.2d
180, 189 (Tex. App. Austin 1998, pet. den.) (the state has a legitimate interest in
recognizing the marriage relationship because an individual’s right to marriage is of
fundamental importance).
As stated above, strict scrutiny consists of a determination of whether a
substantial government interest justifies the harm to fundamental rights or liberty
interests as follows: first, the court inquires whether on the particular facts of
the case the behavior of the challenger actually harmed an important government
interest and whether preventing that harm justified the injury. See Dennis v. United
States, 341 U.S. at 495-511. That is, can the challenger overcome the presumption
that the government acted in a constitutional manner? If so, the court inquires
whether the challenged government action furthers a compelling interest unrelated
to the suppression of a fundamental right and whether there is no less restrictive
alternative to the action. Id., See United States v. O’Brien, 391 U.S. 367, 377 (1968).
17 ii. The State did not meet its burden under the strict scrutiny standard to show that the condition, as applied, was narrowly tailored to meet a compelling governmental interest and that no less restrictive means was available. Once Appellant met her burden (which she did upon the filing of her
Application for Writ of Habeas Corpus), the burden switched to the State to show
that the requirements of strict scrutiny were met. However, the State, in its brief
(and in its response to Appellant’s application), failed to even attempt to meet these
requirements, wholly ignoring the Constitutional issues. See State’s Brief. Instead,
the State submitted an affidavit by one of its prosecutors that contain unsubstantiated
allegations (see below). And the trial court simply signed the order presented to it
by the State.
iii. Under the strict scrutiny analysis, the application of “Condition 3” to Appellant’s marital relationship is unconstitutional. Appellant recognizes that those on community supervision are subject to
limitations from which ordinary citizens are free. See Macias v. State, 649 S.W.2d
150, 152 (Tex. App. El Paso 1983, no pet.). Still, a restriction upon a probationer’s
otherwise inviolable constitutional rights is justified only to the extent actually
necessitated by the legitimate demands of the probation process. Macias, 649
S.W.2d at 152. Proper probationary conditions are those that contribute significantly
both to the rehabilitation of the convicted person and to the protection of society, so
a condition is invalid if it: (1) has no relationship to the crime of which the offender
18 was convicted, (2) relates to conduct that is not in itself criminal, and (3) requires or
forbids conduct which is not reasonably related to the future criminality of the
offender or does not serve the statutory ends of probation. Tamez v. State, 534
S.W.2d 686, 691-692 (Tex. Crim. App. 1976) (Conditions of probation that the
appellant cannot change his marital status without permission and that he maintain
his hair in a “neat manner” were not supportable and exceeded the limitation of the
trial court’s discretion to impose reasonable conditions of probation).
In the case before this Court, merely because Appellant and her husband
belong to a particular class of residents (probationers), Appellant is being denied her
right to live with her husband as husband and wife, which is a right clearly
encompassed within the fundamental right to marry. Requiring a probationer to meet
the statute’s requirement of not marrying another probationer because all
probationers are purportedly of “disreputable or harmful character” falls squarely
within the Zablocki court’s meaning of a “serious intrusion” into the probationer’s
“freedom of choice in an area which we have held such freedom to be fundamental.”
And—as applied to Appellant’s marital relationship—”Condition 3”: (1) has no
relationship to the crime of which Appellant was convicted, (2) relates to conduct
that is not in itself criminal, and (3) requires or forbids conduct that is not reasonably
related to the future criminality of Appellant, and does not serve the statutory ends
of probation. Tamez, 534 S.W.2d at 691-692.
19 Appellant also notes that marriage represents a compelling state test because
it promotes stability, promotes the reasonable expectations of the parties, and also
promotes the physical and emotional health of the parties. These factors are
important to an person’s quality of life regardless of whether the person is under
community supervision. Thus, under the strict scrutiny analysis, marriage and its
incidental rights such as the right to cohabitate with one’s spouse should be allowed
for all who seek it because it contributes to a person’s well-being as well as the
stability of society.
Appellant further notes that she seeks a strict scrutiny analysis not as a “felon”
but as a citizen who happens to be on community supervision. Unlike the plaintiff
in Hilliard v. Ferguson, 30 F.3d 649 (5th Cir. 1994), who sued under 42 U.S.C. §
1983 and argued that a school board and its superintendent allegedly violated his
rights under the Fourteenth Amendment because he was denied employment because
he was a convicted felon, Appellant does not argue that as a “felon,” she is entitled
to the right to marry. First, there is no “right” to obtain certain employment. Second,
it is settled that felons are not a suspect constitutional class, and the rational basis
standard to discrimination may be applied against felons. Id. at 654. Further, the
policy of the school board in Hilliard of not hiring felons bore a rational relationship
to a legitimate end, which was providing a high degree of educational services and
a safe environment.
20 Nor is this a situation such as jury duty. Many courts have recognized the
government’s legitimate interest in protecting the “probity of juries” as a rational
basis in the Equal-Protection context for excluding felons from juries. United States
v. Arce, 997 F.2d 1123, 1127 (5th Cir. 1993) (Rational basis review of Equal
Protection Clause claim of discrimination against felons used where the district
court struck a venireperson who had a prior conviction for heroin possession). See
also United States v. Foxworth, 599 F.2d 1, 4 (1st Cir. 1979) (The process of
excluding felons from jury duty “is intended to assure the ‘probity’ of the jury,” and
such review must be rationally based).
Appellant seeks neither a job nor the opportunity at this time to serve on a
jury. She simply wants to live with and communicate her husband. There is no
rational reason for the State to deny Appellant these rights.
iv. In failing to acknowledge the misfeasance of the State in its briefing, the Court of Appeals has impliedly approved of such behavior. As part of its Respondent’s Original Answer to Appellant’s Application for
Writ of Habeas Corpus, the State tendered an affidavit sworn to and signed by Brett
Huffman, an assistant district attorney for Johnson County. (CR-Supp-1, 24-28).
Through the creation and swearing to of this document, Huffman implies that he has
personal knowledge of the facts sworn to. Huffman made himself a witness in this
matter. Huffman, however, remained an advocate for the government, and, in fact,
21 was the author of the State’s Brief before the court of appeals. This dual role violates
Texas Disciplinary Rules of Professional Conduct Rule 3.08.
Huffman used the affidavit he created for the purpose of manufacturing an
appellate record to establish 24 of the 29 footnoted “facts” alleged in the State’s four-
page statement of facts. See Appellee’s Brief at p. 2–5. Only FN 11, 13, 14, 22, and
23 referred to actual evidence presented to the trial court. Footnotes 6–12, 15–21,
and 24–29 are all citations to Huffman’s affidavit.
If the “lawyer’s testimony concerns a controversial or contested matter,
combining the roles of advocate and witness can unfairly prejudice the opposing
party.” Tex. Disciplinary Rules Prof. Conduct R. 3.08, at cmt. 4 (2014). The
appearance of a testifying advocate tends to cast doubt on the ethics and propriety
of the judicial system. Aghili v. Banks, 63 S.W.3d 812, 818 (Tex. App. Houston
[14th Dist.] 2001, pet. denied) (op. on reh’g). When an attorney who represents a
party is an affiant in support of a brief, he is a witness. See Mauze v. Curry, 861
S.W.2d 869, 870 (Tex. 1993). Appellant never had an opportunity to rebut or cross-
examine Huffman so that the court of appeals and this Court would know that these
attested-to facts were never proven in court.
As the State has not shown that any of the five exceptions found within Rule
3.08 apply, Huffman is an inappropriate person to present any facts in this matter.
See Southtex 66 Pipeline Co. v. Spoor, 238 S.W.3d 538 (Tex. App. Houston 14th
22 Dist. 2007, pet. denied). Additionally, even if this Court were to find that one of the
exceptions of Rule 3.08 applied, Appellant argues that the affidavit fails because it
contains inadmissible hearsay and conclusory remarks, and it wholly fails to
establish that. Huffman did not establish that he has any personal knowledge of the
facts alleged. Texas Rule of Evidence 602 and Texas Rule of Civil Procedure
166a(f) require that affidavits “shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein”. See Tex. Rule Evid. 602
(2015) & Tex. Rule Civ. Proc. 166a(f) (2015).
Finally, the State’s tactics in distracting the Court of Appeals from the
fundamental constitutional issue at hand by engaging in an unsubstantiated smear
campaign based on facts never presented to the trial court against Appellant and her
husband through the offering of incompetent and false “testimony” serve only as
further evidence of the intrusion by the State into Appellant’s fundamental right to
marry and live with her spouse. Huffman claimed as fact unsubstantiated allegations
that were made against Mr. Alsobrook that Huffman knew or should have known
were found unfounded. Further, similar claims against Appellant are also made in
Huffman’s affidavit. These claims are unsubstantiated and were never presented to
a court of law, never found to be true, and therefore are not fact that the Court of
Appeals should have accepted.
23 However, without comment, the Court of Appeals accepted this misfeasance.
Huffman’s affidavit was not competent evidence, and Appellant argues that the
affidavit should have not been considered. Yet, the Court of Appeals accepted the
mere allegations of the State as fact when they stated in their opinion that “[T]he
record shows that Appellant twice began relationships with men with criminal
records.” Ex Parte Tungeln, id. at *6.
Even with this “affidavit” submitted by Huffman, the State failed to meet its
constitutional burden. In its brief to the Court of Appeals, the State presented no
legal foundation for their actions. Nor did the State present any argument to make
as to how this Condition 3 is constitutional given the law on the subject matter.
There is no evidence that allowing Appellant and her husband to live together as
husband and wife presents a danger to: (1) the community, the complaining witness
in Appellant’s case, (3) to Appellant, or (4) to Appellant’s husband. Such an
unconstitutional restriction does not serve the statutory ends of community
supervision.
v. Conclusion When the constitutionality of a statute is questioned, to overcome the
presumption that the legislature did not act unreasonably or arbitrarily, the party
challenging the statute must show by a preponderance of the evidence that the statute
is unconstitutional. The party must show only that the application of the statute
24 harmed an important governmental interest. Once the party makes this showing, the
burden shifts to the Government to show that the challenged application is narrowly
tailored to meet a compelling governmental interest and that no less restrictive means
are available. Appellant met this burden because she proffered evidence that showed
by a preponderance of the evidence that: (1) she married her husband; (2) marriage
is an important governmental interest; and (3) the government prohibited the free
exercise of Appellant’s right to privacy in her marital relationship, her right to equal
protection under the law, her right to due process under the law, and her right to
freely associate with her spouse. And, the State failed to meet its burden of proving
that the application of “Condition 3” upon Appellant’s marital relationship could
survive strict scrutiny analysis. As a result, the Court of Appeals erred when it: (1)
overruled Appellant’s constitutional issues and concluded that Appellant failed to
meet her burden; (2) failed to recognize that the State did not meet its burden under
the strict scrutiny standard; (3) failed to analyze Appellant’s constitutional
arguments under the strict scrutiny standard; (4) accepted the State’s misfeasance in
its briefing; (5) accepted “mere allegations” offered by the State as proven fact; and
(6) failed to find that the trial court abused its discretion in denying Appellant’s
application.
As a result, the Court of Appeals has decided an important question of state
or federal law that has not been, but should be, settled by the Court of Criminal
25 Appeals; the Court of Appeals has decided an important question of state or federal
law in a way that conflicts with the applicable decisions of the Court of Criminal
Appeals and the Supreme Court of the United States; the Court of Appeals
misconstrued a rule; and the justices of the Court of Appeals have disagreed on a
material question of law necessary to the court’s decision. See Tex. Rule App. Proc.
66.3 (2015). Appellant asks this Court to grant discretionary review.
IX. Conclusion and Prayer For the reasons stated in this petition, Appellant respectfully prays that this
Court: grant discretionary review; reverse the judgment and opinion of the Tenth
Court of Appeals; find that as applied to Appellant’s marital relationship, “Condition
3” violates Appellant’s rights under the federal and state constitutions; reform the
conditions of probation by removing Appellant’s husband from the limitations of
“Condition 3;” and allow Appellant and her husband to freely live together as
husband and wife.
Respectfully submitted,
THE LAW OFFICE OF KRISTIN R. BROWN, PLLC
18208 Preston Road Dallas, TX 75252 Phone: 214-446-3909 Fax: 214-481-4868 kbrown@idefenddfw.com Texas Bar No. 24081458
26 /s/ Kristin R. Brown By: Kristin R. Brown
Michael Mowla P.O. Box 868 Cedar Hill, TX 75106 Phone: 972-795-2401 Fax: 972-692-6636 michael@mowlalaw.com Texas Bar No. 24048680
/s/ Michael Mowla By: Michael Mowla
X. Certificate of Service This certifies that on the date of filing, a copy of this document was served on Brent Huffman of the Johnson County District Attorney’s Office, 204 S. Buffalo Ave., Cleburne, Texas 76033, by email to brenth@johnsoncountytx.org; on David Vernon of the Johnson County District Attorney’s Office Appellate Division by email to davidv@johnsoncounty.tx.org; on Lisa McMinn, the State Prosecuting Attorney by email to Lisa.McMinn@spa.texas.gov; and on John Messinger, Assistant State Prosecuting Attorney by email to john.messinger@spa.state.tx.us. See Tex. Rule App. Proc. 9.5 (2015) and Tex. Rule App. Proc. 68.11 (2015).
/s/ Kristin R. Brown By: Kristin R. Brown
27 XI. Certificate of Compliance with Tex. Rule App. Proc. 9.4
This certifies that this document complies with the type-volume limitations because it is computer-generated and does not exceed 4,500 words. Using the word- count feature of Microsoft Word, the undersigned certifies that this document contains 3,327 words in the entire document except in the following sections: caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented (grounds for review section), statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix. This document also complies with the typeface requirements because it has been prepared in a proportionally-spaced typeface using Microsoft Word in 14- point font. See Tex. Rule App. Proc. 9.4 (2015).
28 APPENDIX 1 No Shepard’s Signal™ As of: August 6, 2015 9:43 PM EDT
Ex parte Tungeln Court of Appeals of Texas, Tenth District August 6, 2015, Opinion Filed No. 10-14-00329-CR
Reporter 2015 Tex. App. LEXIS 8247
EX PARTE JULIE ANN VON TUNGELN
Notice: Decision text below is the first available text from the court; it has not been editorially reviewed by LexisNexis. Publisher’s editorial review, including Headnotes, Case Summary, Shepard’s analysis or any amendments will be added in accordance with LexisNexis editorial guidelines.
Core Terms
community supervision, probation, pet, trial court, parte, Probationers, terms and conditions, conditions, rights
Opinion
[*1] From the 18th District Court Johnson County, Texas Trial Court No. F43117-A
MEMORANDUM OPINION
In 2009, Appellant Julie Ann Von Tungeln pleaded guilty to two counts of sexual assault of a child under a plea bargain that included the following terms: ten years’ deferred adjudication community supervision, 180 days in county jail with work release, a $2,000 fine, sex-offender terms and conditions, and standard community supervision terms and conditions. One of the standard terms and conditions of community supervision that Appellant agreed to be subject to is Condition 3: ″Avoid association with persons who have criminal records and those of disreputable or harmful character.″
Appellant initialed and signed the felony community supervision order, along with signing the ″Order of Deferred Adjudication: Community Supervision″ and the plea
agreement.
In May of 2013, Appellant (without the trial court’s approval) and Steven Alsobrook filed a Formal Declaration and Registration of Informal Marriage, seeTEX. FAM. CODEANN. §§ 2.401, 2.402 (West 2006), but they had it immediately annulled when they learned that Alsobrook’s divorce was not final. Alsobrook, like Appellant, was also on felony community supervision.1On June 19, 2013, [*2] the State filed its First Amended Motion to Proceed with an Adjudication of Guilt; it alleged in part that Appellant violated 2015 Tex. App. LEXIS 8247, *3
Condition 3, ″to-wit: on or about May 24, 2013 the defendant married Steven Alsobrook, who has an extensive criminal history and is currently on felony probation for Family
Violence in Dallas County, Texas.″2After Appellant agreed to two weeks in jail as a condition of probation for the alleged violations, the State withdrew its motion to adjudicate.
On August 27, 2013, and again without the trial court’s approval,3Appellant and Alsobrook filed a second Formal Declaration and Registration of Informal Marriage. After filing several unsuccessful motions to modify her community supervision terms and conditions so that she could associate with Alsobrook, Appellant filed the instant habeas application and raised constitutional complaints about Condition 3’s application to her spouse. SeeTEX. CODECRIM. PROC. ANN. art. 11.072, § 3(c) (West 2015). The trial
1 Upon learning that Alsobrook had a criminal record, Appellant would have been in violation of Condition
3 by associating with him. See Gill v. State,593 S.W.2d 697, 698 (Tex. Crim. App. [Panel Op.] 1980).
2The State also alleged that Appellant had associated with another man with a criminal background over a two-year period. Other [*3] alleged violations were: drinking alcohol on two occasions; travelling more than
100 miles without permission; and twice having unsupervised contact with children.
3 Appellant filed a motion to modify after the filing of the second Declaration.
Ex parte Von Tungeln Page 2
court entered an order finding that Appellant was manifestly not entitled to relief and denied the habeas application as frivolous. This appeal followed.
Appellant asserts two issues: (1) the trial court abused its discretion and violated
Appellant’s constitutional rights because Condition 3 is unconstitutional as applied to Appellant because it violates Appellant’s rights to privacy, due process, and equal protection; and (2) the trial court violated Appellant’s constitutional rights because Condition 3 is unconstitutional as applied to Appellant because it violates Appellant’s
First Amendment right of association. Because the habeas court determined that
Appellant’s application was frivolous and that Appellant was manifestly not entitled to relief, we review de novo the habeas court’s order. Ex parte Skelton,434 S.W.3d 709, 717 (Tex. App.-San Antonio 2014, pet. ref’d).
An award of community supervision is not a right, but a contractual privilege, and its conditions are terms of the contract entered into between [*4] the trial court and the defendant. Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). A trial court has broad discretion in determining the conditions to be imposed. Id. at 533; see also Butler v. State, 189 S.W.3d 299, 303 (Tex. Crim. App. 2006).″The judge may impose any reasonablecondition that is designed to protect or restore the community, protect
Page 2 of 5 2015 Tex. App. LEXIS 8247, *4
or restore the victim, or punish, rehabilitate, or reform the defendant.″ TEX. CODECRIM. PROC. ANN. art. 42.12, § 11(a) (West Supp. 2014). One of the statutory conditions that a trial court may include is that the defendant shall: ″Avoid persons or places of disreputable or harmful character.″ Id.art. 42.12, § 11(a)(3). This condition is presumptively reasonable. SeeMitchell v. State, 420 S.W.3d 448, 450 (Tex. App.-Houston [14th Dist.] 2014, no pet.).
Ex parte Von Tungeln Page 3
A condition of probation is invalid if it has all three of the following characteristics:
(1) it has no relationship to the crime;
(2) it relates to conduct that is not in itself criminal; and
(3) it forbids or requires conduct that is not reasonably related to the future criminality of the defendant or does not serve the statutory ends of probation.
Lacy v. State, 875 S.W.2d 3, 5 (Tex. App.-Tyler 1994, pet. ref’d) (citationsomitted); accord Marcum v. State, 983 S.W.2d 762, 768 (Tex. App.-Houston [14th Dist.] 1998, pet. ref’d). A community supervision ″condition is not necessarily invalid simply because it affects [the defendant’s] ability to exercise constitutionally protected rights.″ Lee v. State, 952 S.W.2d 894, 900 (Tex. App.-Dallas 1997, no pet.) (en banc). A condition that is ″reasonably related to the purposes of probation″ is permissible. [*5] Id. ″Reasonably related″ hinges on three factors: ″(1) the purposes sought to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of law enforcement.″ Macias v. State,649 S.W.2d 150, 152 (Tex. App.-El Paso 1983, no pet.) (quoting United States v. Tonry, 605 F.2d 144, 150 (5th Cir. 1979), abrogation on other grounds recognized by United States v.Tex. Tech Univ., 171 F.3d 279, 287 (5th Cir. 1999));accord Lee, 952 S.W.2d at900.
Briseño v. State, 293 S.W.3d 644, 647-48 (Tex. App.-San Antonio 2009, no pet.);see also Ex
parte Alakayi, 102 S.W.3d 426, 432 (Tex. App.-Houston [14th Dist.] 2003, pet. ref’d).
A probationer has diminished constitutional rights, including a diminished right
to privacy. In re D.L.C., 124 S.W.3d 354, 365 (Tex. App.-Fort Worth 2003, no pet.) (citing
Griffin v. Wisconsin, 483 U.S. 868, 875, 107 S.Ct. 3164, 3169, 97 L.Ed.2d 709 (1987)).
[R]ehabilitation is [not] the sole goal of probation. A second primary goal of probation is protecting society. Knights, 534 U.S. at 119, 122 S.Ct. 587; see TEX. CODECRIM. PROC. ANN. art. 42.12 sec. 11(a) (Vernon Supp. 2008) (stating judge may impose any reasonable condition of probation designed to protect the community). Probationers are ″more likely than the ordinary citizen to violate the law.″ Knights,534 U.S. at 120, 122 S.Ct. 587; Griffin,483
Ex parte Von Tungeln Page 4
U.S. at 880, 107 S.Ct. 3164. … Probationers therefore ″do not enjoy ’the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observation of special
Page 3 of 5 2015 Tex. App. LEXIS 8247, *5
[probation] restrictions.’ ″ Griffin,483 U.S. at 874, 107 S.Ct. 3164 (quoting Morrissey v.Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).″Theserestrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large.″ [*6] Griffin, 483 U.S. at 875, 107 S.Ct. 3164.
Townes v. State, 293 S.W.3d 227, 231 (Tex. App.-San Antonio 2009, no pet.).
We agree with the State that the purpose of Condition 3 is to assist Appellant’s
rehabilitation and reformation by preventing her from associating with persons with
criminal records and disreputable or harmful character. As quoted above, probationers
are more likely than the ordinary citizen to violate the law, and the State’s goal of
protecting society is furthered by preventing felons on community supervision from
associating with each other. See id.
Appellant had the burden of proving facts entitling her to the requested relief.
Alakayi, 102 S.W.3d at 432. The record shows that Appellant twice began relationships
with men with criminal records, that Appellant twice ″married″ Alsobrook without court
approval (including once while a motion to adjudicate was pending and after having
been arrested and released on bond), and that Appellant allegedly violated other terms
and conditions. Based on the record, we cannot say that Appellant met her burden, and
we cannot say that the trial court erred or abused its discretion in denying Appellant’s
habeas application. See id.at 432-33 (upholding community-supervision conditions that
restricted defendant’s access to his son and also prevented defendant from living with
his wife as long as [*7] she was living with their son, against defendant’s constitutional
Ex parte Von Tungeln Page 5
complaint pertaining to his right to association with his family); see also In re Pate, No. 12-
11-00406-CV, 2012 WL 1142477 (Tex. App.-Tyler Mar. 30, 2012, orig. proceeding) (mem.
op.) (imprisoned husband did not establish constitutional infirmity of wife’s community-
supervision condition that prevents her from communicating with him).
We overrule Appellant’s two issues and affirm the trial court’s order.
REX D. DAVIS Page 4 of 5 2015 Tex. App. LEXIS 8247, *7
Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins
(Chief Justice Gray dissents with a note)* Affirmed
Opinion delivered and filed August 6, 2015 Do not publish
[CR25]
*(Chief Justice Gray dissents from the opinion and judgment of the Court. A separate opinion will not be issued.)
Ex parte Von Tungeln Page 6
Page 5 of 5