Demarkous Clay v. State
2012 Tex. App. LEXIS 1255
| Tex. App. | 2012Background
- Appellant Demarkous Clay challenged adjudication after a burglary of a habitation indictment.
- Clay pled guilty in 2008 and received ten years’ deferred adjudication community supervision with conditions.
- Conditions included monthly in-person reporting, $32,000 restitution at $275/month, drug/alcohol evaluation within 30 days, and theft-diversion class.
- In 2010, the State moved to proceed to adjudication alleging multiple condition violations; Wallace, a Denton County probation employee, testified about Louisiana records transferred for supervision.
- The State admitted Louisiana records as business and government records; the trial court admitted them over objection.
- The court revoked supervision, adjudicated guilt, and sentenced ten years; Clay appeals, challenging admissibility and other defenses; majority affirms; a dissent contests admissibility and outcome.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Louisiana records | Clay argued records were inadmissible hearsay. | Clay’s objections preserved only partial points; State contends records are admissible as business/public records. | No reversible error; preservation issues forfeited; evidence sufficient to support revocation. |
| Confrontation Clause concern | Clay claimed Sixth Amendment confrontation rights were violated by admitting Louisiana records. | Not preserved for appeal according to the court. | Not preserved; no reversal on Confrontation Grounds. |
| Restitution-ability defense | Clay contends inability to pay restitution negates revocation based on restitution nonpayment. | State can rely on nonpayment when other violations exist; inability to pay should be considered. | Moot as multiple violations supported revocation; the court did not reach the merits of this issue. |
Key Cases Cited
- Cherry v. State, 215 S.W.3d 917 (Tex.App.-Fort Worth 2007) (revoke-under-abuse-of-discretion standard; proof by a preponderance of violation sufficient)
- Cantu v. State, 339 S.W.3d 688 (Tex.App.-Fort Worth 2011) (preponderance standard; any one violation supports revocation)
- Martinez v. State, 98 S.W.3d 189 (Tex.Crim.App. 2003) (preservation of error; running objections not required for preservation in some contexts)
- Perry v. State, 957 S.W.2d 894 (Tex.App.-Texarkana 1997) (waiver when witness later testifies about admitted exhibit; objections must be continued to preserve error)