Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 5/18/2015 9:16:00 AM DEBBIE AUTREY Clerk *1 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 SIXTH DISTRICT OF TEXAS TEXARKANA
JESSICA MARIE BRIGGLE vs.
THE STATE OF TEXAS FROM THE 6 TH 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 *3 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 *4 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 *5
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.
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-
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
$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 *9 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 *10 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 *11 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.
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 6 th 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_____