ACCEPTED
03-16-00213-CR
12719327
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/15/2016 11:52:53 AM
JEFFREY D. KYLE
CLERK
No. 03-16-00213-CR
IN THE COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF TEXAS
FREDDIE LEE SCOTT,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
APPELLANT'S BRIEF
On Appeal from Cause Number 3016
in the 35nd District Court
Mills County, Texas
The Honorable Stephen Ellis, Presiding
Emily Miller, Lawyer
Woodley and Dudley, Lawyers
707 Center Avenue
Brownwood, Texas 76801
emily@woodleydudley.net
Attorney for Appellant
IDENTITIES OF PARTIES AND COUNSEL
Pursuant to the provisions ofRule 38.1(a), Texas Rules of Appellate
Procedure, a complete list of the names of all parties to this action and counsel are
as follows:
Parties: Mr. Freddie Lee Scott, Appellant
State of Texas, Appellee
Attorneys for the Appellant: Ms. Emily Miller
Woodley and Dudley, Lawyers
707 Center Avenue
Brownwood, Texas 76801
(On Appeal)
Mr. John Lee Blagg
Attorney at Law
504 Pecan Street
Brownwood, Texas 76801
(Trial Attorney)
Attorneys for Appellant: The Honorable Micheal Murray
35th Judicial District Attorney
Brown and Mills Counties
200 South Broadway Street
Brownwood, Texas 76801
Mr. Christopher Brown
Assistant District Attorney
35th Judicial District
200 South Broadway Street
Brownwood, Texas 76801
(Trial Attorney)
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TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL 1
INDEX OF AUTHORITIES 111
STATEMENT OF THE CASE 1
ISSUES PRESENTED 3
STATEMENTOFFACTS 4
SUMMARY OF THE ARGUMENT 6
ARGUMENT AND AUTHORITIES 7
ISSUE ONE: Whether Due Process ofLaw requires proofofa
violation ofa condition ofcommunity supervision to be beyond a reasonable doubt
rather than by a preponderance of the evidence.
ARGUMENT AND AUTHORITIES 10
ISSUE TWO: Whether the trial court abused its discretion by revoking
Mr. Scott's probation.
PRAYER 12
CERTIFICATE OF SERVICE 13
CERTIFICATE OF COMPLIANCE 13
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INDEX OF AUTHORITIES
CASE LAW
Campbell v. State, 456 S.W.2d 918 (Tex.Crim.App. 1970) 11, 15
Cardona v. State 665 S.W.2d 492 (Tex.Crim.App. 1984) 10
Crawford v. State, 435 S.W.2d 148 (Tex.Crim.App. 1970) 7
Crawford v. Washington, 541 U.S. 36 (2004) 8
Ex Parte Doan, 369 S.W. 205 (Tex.Crim.App.2012) 8
Fariss v. Tipps, 463 S.W.2d 176 (1971) 3
Fernandez v. State, 805 S.W.2d 451 (Tex.Crim.App.1991) 8
Gagnon v. Scarpelli, 411 U.S. 778 (1973) 7
Johnson v. State, 498 S.W.2d 198 (Tex.Crim.App. 1973) 8
Moore v. State, 605 S.W.2d 924 (Tex.Crim.App. 1980) 11
CONSTITUTIONAL PROVISIONS
U.S. CONST., AMEND. VI 13
111
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
COMES NOW, Freddie Lee Scott, Appellant in this cause, by and through
his attorney of record, Emily Miller, and, pursuant to the provisions of
TEx.R.APP.PRo. 38, et seq., files this brief on appeal.
STATEMENT OF THE CASE
On November 12, 2014, Mr. Scott was placed on deferred adjudication
community supervision for Possession of Controlled Substance of less than a gram.
(RR at 8; II CR at 9). On November 4, 2015, the State filed a Motion to
Adjudicate. (RR at 8). On February 3, 2016, Mr. Scott entered his plea ofNot
True to allegation One, that he committed the offense of possession of controlled
substance on September 1, 2015 in Taylor County, Texas. (II CR at 15). He pled
Not True to allegations Two through Eight, which were the monetary obligations.
(II CR at 15). Mr. Scott pled True to allegations Nine and Ten, that he failed to
complete community service, and failed to complete a drug offender education
program. (II CR 16). At the conclusion of the hearing on the merits, the trial court
found that allegations One, Nine, and Ten had been proved by a preponderance of
the evidence. (II CR 97). The trial court sentenced Mr. Scott to eighteen months
state jail. (III CR 28-30; 2 RR 97; III RR 29). The trial court's Certification of
Defendant's Right of Appeal was filed February 17, 2016, noting this is not a plea
bargained case, and the defendant has the right of appeal. (III CR 32). The
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judgment of Adjudication of Guilt was filed March 9, 2016. (RR 28). Notice of
Appeal was filed March 16, 2016. (RR 33). Mr. Scott seeks a reversal of the
findings of true and the punishment assessed.
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ISSUES PRESENTED
ISSUE ONE
Whether Due Process of Law requires proof of a violation of a
condition of community supervision to be beyond a reasonable doubt rather than
by a preponderance of the evidence.
ISSUE TWO
Whether the trial court abused its discretion by revoking Mr. Scott's
probation.
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STATEMENT OF FACTS
Mr. Scott was placed on deferred adjudication probation for a period of four
years for the offense of Possession of a Controlled Substance under Section
481.115, Health and Safety Code. (RR at 8). The State filed a motion to adjudicate
after Mr. Scott was alleged to have possessed a controlled substance in Merkel,
Taylor County, Texas on September 1, 2015. (II CR at 28-29; RR at 24-32). The
State's Motion to Adjudicate alleged that Appellant, Freddie Lee Scott, violated
various conditions of community supervision as follows: 1. "on or about the 1st
day of September, 2015 in the County ofTaylor and State of Texas, did then and
there commit the offense of Possession of Controlled Substance." 9. "failed to
complete Community Service Restitution as ordered." 10. "failed to attend,
participate and complete the Drug Offender Education Program." Conditions two
through eight were various monetary obligations. (RR at 9).
At trial, Mr. Scott pled Not True to allegation One, the alleged new drug
offense. (II RR at 15). Sergeant Christopher Ortiz of the Merkel Police
Department testified about this allegation, stating that he was conducting
surveillance on another household when he observed Mr. Scott get in a gold
Tundra vehicle. (II RR at 26-27). Sergeant Ortiz ran Mr. Scott's driver's license
number and determined he was not eligible to be driving, (II RR at 28). Sergeant
Ortiz stopped Mr. Scott in his vehicle and noticed he was extremely nervous,
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which Sergeant Ortiz equated with being under the influence of methamphetamine.
Sergeant Ortiz asked for permission to search Mr. Scott's vehicle which he initially
denied, and a canine unit was called. (II RR at 30-31 ). The canine officer, Deputy
Cooley, did not testify at the hearing, rather Sergeant Ortiz testified about what
Deputy Cooley told him about a positive canine alert on Mr. Scott's vehicle. (II RR
at 32). There was no objection at trial to Sergeant Ortiz' hearsay testimony.
Sergeant Ortiz did not see the dog alert on Mr. Scott's vehicle (II RR at 41).
Sergeant Ortiz watched Deputy Cooley recover a clear baggie with white crystal-
like substance from under the driver's side floor mat (II RR at 34). Charges from
this incident were pending and unindicted at the time of the adjudication hearing
(II RR at 20, 44, 92).
Mr. Scott pled Not True to state's allegations Two through Eight, the
financial obligations. (II RR at 15). He pled True to allegations Nine and Ten,
failure to complete community service and failure to complete a drug offender
education class. (II RR at 16). The trial court found, by a preponderance of the
evidence, that the State had proved allegations One, Nine, and Ten against Mr.
Scott. (II RR at 97-98).
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SUMMARY OF THE ARGUMENT
In probation revocation proceedings, Due Process of Law has been held to
require the appointment of an attorney, notice of allegations against a person, a
neutral magistrate, the opportunity to be heard, the right of confrontation, and the
right against self-incrimination. The law no longer treats adjudication proceedings
as administrative matters, but now rightly as criminal proceedings. Therefore, the
laws and rules established to govern judicial proceedings apply equally to
revocation hearings. Due Process of law should then require proof beyond a
reasonable doubt in a community service revocation proceeding.
Case law broadly supports the notion that proof of one allegation will
support a revocation, and allegations that Mr. Scott failed to complete community
service and a drug offender education class were indeed proven through Mr.
Scott's admissions. However, this case law should be distinguished. It is
impossible to determine, had the trial court considered only these allegations,
whether Mr. Scott would have still been revoked and sentenced to eighteen months
state jail. Due Process and Due Course of Law require this case be reversed and
remanded to the trial court for a new determination based on the findings of true to
only these allegations.
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ARGUMENT AND AUTHORITIES
ISSUE ONE (RESTATED)
Whether Due Process ofLaw requires proof of a violation of a condition of
community supervision to be beyond a reasonable doubt rather than by a
preponderance of the evidence.
The level of proof constitutionally required to revoke community
supervision should be re-examined. No longer is a revocation hearing deemed an
"administrative hearing" -it is appropriately considered a judicial proceeding to be
administered by the rules established to govern judicial proceedings. The higher
standards of judicial proceedings require a greater burden of proof than a
preponderance of the evidence in a revocation hearing.
Gagnon v. Scarpelli, 411 U.S. 778 (1973) applied the measure ofDue
Process of Law to probation revocations. Fariss v. Tipps, 463 S.W.2d 176 (1971)
held that a probation revocation proceeding was a "criminal prosecution" under
Texas' constitution. In Texas, the necessity of the application of Due Process to
probation revocation proceedings was recognized in Campbell v. State, 456
S.W.2d 918 (Tex.Crim.App. 1970), holding the substantial rights ofthe accused
may be affected.
Crawford v. State, 435 S.W.2d 148 (Tex.Crim.App. 1970) held that
revocation proceedings "cannot be isolated from the context of the criminal
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process". More recently, Ex Parte Doan, 369 S.W. 205 (Tex.Crim.App.2012)
found the characterization of a probation revocation hearing as an administrative
proceeding as inaccurate, and this classification was "officially abandoned." !d. at
305. Community supervision revocation hearings are to be governed by the laws
for judicial proceedings. !d.
The Confrontation Clause of the Sixth Amendment of the United States
Constitution provides "in all criminal prosecutions, the accused shall enjoy the
right ... to be confronted with witnesses against him." U.S. CONST. AMEND. VI.
The admission into evidence of out-of-court statements that are "testimonial" in
nature violates the Confrontation Clause. Crawford v. Washington, 541 U.S. 36,
51-52 (2004). Furthermore, Texas law has long established hearsay evidence is
not admissible in a community service revocation hearing. Johnson v. State, 498
S.W.2d 198,200 (Tex.Crim.App. 1973). In Johnson, the Court found unobjected-
to hearsay inadmissible, and presumed that the trial court had disregarded the
inadmissible evidence and ruled on other grounds. Fernandez v. State, 805 S.W.2d
451, 456 (Tex.Crim.App.1991) found that unobjected-to hearsay has probative
value, and must be considered along with the rest of the evidence admitted at trial.
In the case at hand, it was alleged that on or about the 1st day of September,
2015, Mr. Scott "did then and there commit the offense ofPossession of Controlled
Substance." However, the officer testifying did not have first-hand knowledge of
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the canine search of Mr. Scott's vehicle. The canine officer, Deputy Cooley, did
not testify at the hearing, rather Sergeant Ortiz testified about what Deputy Cooley
told him about a positive canine alert on Mr. Scott's vehicle. (2 RR 32). At trial,
there was no hearsay or confrontation objection to this testimony. Due Process
requires the right of confrontation in revocation hearings. With the failure of
Deputy Cooley to appear and testify, Mr. Scott was unable to confront him about
the canine search. Sergeant Ortiz' testimony, as unobjected-to hearsay, is therefore
to be either disregarded, or accorded probative value to be considered along with
any remaining evidence of the canine search. However, there is no other evidence
of a positive canine alert on Mr. Scott's vehicle. Even acknowledging this hearsay
testimony may have probative value, it must be considered along with the rest of
the evidence admitted at trial. Critically, here, there is no additional evidence of
the canine search, either through exhibit or testimonial evidence. Without proof of
the results of the canine search from any source other than hearsay, a finding of
True to allegation One cannot be proven by any standard, particularly beyond a
reasonable doubt, and is a violation of Due Process of Law.
Due Process of Law requires more proof than a preponderance of the
evidence for a person to be incarcerated. Due Process requires constitutional
safeguards, including the right of confrontation, and that the State's allegations are
proven beyond a reasonable doubt. Without other evidence, hearsay testimony,
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either disregarded or accorded some probative value, does not provide proof
beyond a reasonable doubt. We would respectfully request the court to reverse and
remand this case for a new hearing where the State is required to prove its case
against Freddie Lee Scott in accordance with Due Process of Law and beyond a
reasonable doubt.
ARGUMENT AND AUTHORITIES
ISSUE TWO
Whether the trial court abused its discretion by revoking Mr. Scott's
probation.
Should the Court disagree with our argument in Issue One that Due Process
of Law requires allegations of violations of community supervision be proven
beyond a reasonable doubt, alternatively this matter should be remanded to the trial
court for a rehearing on punishment, as the evidence presented at trial was
insufficient even under a preponderance standard. Cardona v. State 665 S.W.2d
492 (Tex.Crim.App. 1984) established the standard as abuse of discretion. As the
trial court's finding that Mr. Scott possessed a controlled substance was not
supported by a preponderance of the evidence, the revocation of his probation for
failing to complete community service and drug offender education was an abuse
of discretion. We acknowledge that generally "proof as to any one" of the alleged
10
violations is sufficient to support a trial court's decision to revoke community
supervision. Moore v. State, 605 S.W.2d 924 (Tex.Crim.App. 1980). However, we
will establish why this premise should not be followed in this case, and why the
revocation of Mr. Scott's probation was an abuse of discretion.
In 1970, Campbell v. State, 456 S.W.2d 918 (Tex.Crim.App. 1970)
established that Due Process and Due Course of Law is fully applicable to
probation revocation proceedings. As shown under Issue One and adopted fully
herein for all purposes, the evidence was insufficient to support the trial court's
finding that the allegation that Mr. Scott possessed a controlled substance was true.
Therefore, only the allegation that he failed to complete community service and a
drug offender education program remain. It cannot be determined that had the trial
court only found these two allegations true, Mr. Scott would still have been
sentenced to eighteen of a possible twenty four month sentence. The trial court
could have chosen an alternative to imprisonment had only the allegations about
the community service and a drug offender education program been true. We ask
the Court to find the evidence insufficient to support the finding that allegation one
was true, and remand the case to the trial court for a new disposition hearing based
on the allegations that failure to complete community service and a drug offender
education program are true. The allegation of possession of controlled substance
was not proven by a preponderance of the evidence. For this reason, the trial court
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abused its discretion in finding this allegation true and revoking Mr. Scott's
probation. Therefore, Due Process and Due Course of Law require this case be
reversed and remanded to the trial court for its reconsideration and an appropriate
determination based on findings of true that Mr. Scott failed to complete
community service and a drug offender education program.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays
that the Court reverse and remand for a new hearing in which the State must prove
its allegations beyond a reasonable doubt, or, alternatively, remand to the trial
court for a new disposition hearing based on a finding that only allegations nine
and ten are true.
Respectfully submitted,
Is/ Emily Miller
Emily Miller
Woodley and Dudley, Lawyers
707 Center A venue
Brownwood, Texas 76801
Telephone: (325) 646-7685
Facsimile: (325) 646-7688
Email: emily@woodleydudley.net
ATTORNEY FOR APPELLANT
FREDDIE LEE SCOTT
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CERTIFICATE OF SERVICE
I hereby certify a true and correct copy of the foregoing APPELLANT'S
BRIEF, was delivered via electronic and personal service to:
The Honorable Micheal Murray
35th Judicial District Attorney,
Brown and Mills Counties
200 South Broadway Street
Brownwood, Texas 76801
On this day, Thursday, September 15, 2016
Is/ Emily Miller
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R. App. P.
9.4€ because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i) because it contains 2, 755 words,
excluding any parts exempted by Tex. R. App. P. (i)(l)
Is/ Emily Miller
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