ACCEPTED
06-14-00175-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
2/6/2015 3:20:14 PM
DEBBIE AUTREY
CLERK
NO. 06 – 14– 00175 – CR
FILED IN
6th COURT OF APPEALS
IN THE SIXTH DISTRICT COURT OF APPEALS
TEXARKANA, TEXAS
TEXARKANA, TEXAS 2/6/2015 3:20:14 PM
DEBBIE AUTREY
Clerk
CASEY HAMMACK,
Appellant,
v.
THE STATE OF TEXAS,
Appellee
On appeal from the 188th District Court of Gregg County, Texas
Trial Court Case No. 41,514-A
STATE’S BRIEF
— ORAL ARGUMENT NOT REQUESTED —
CARL DORROUGH
Criminal District Attorney
Gregg County, Texas
Zan Colson Brown
Asst. Criminal Dist. Attorney
State Bar No. 03205900
101 E. Methvin St., Suite 333
Longview, TX 75601
Telephone: (903) 236-8440
Facsimile: (903) 236-8490
Email: zan.brown@co.gregg.tx.us
TABLE OF CONTENTS
TABLE OF CONTENTS ......................................................................................... 2
STATEMENT OF FACTS ....................................................................................... 4
SUMMARY OF THE ARGUMENT ....................................................................... 8
ARGUMENT ........................................................................................................... 9
1. The judge had sufficient evidence on which to base his findings of a
rule violation..........................................................................................9
a. Standard of review is abuse of discretion. ...........................................9
b. The State’s burden of proof is “preponderance of the evidence.”....9
c. Hammack’s counselor from DEAR testified that Hammack had
committed several acts, all of which were rules violations, and after
reviewing them cumulatively, the counselors determined that
Hammack should be discharged for a violation of cardinal
Rule # 2. ..............................................................................................10
CONCLUSION AND PRAYER ............................................................................ 12
CERTIFICATE OF SERVICE ............................................................................... 14
CERTIFICATE OF COMPLIANCE ..................................................................... 14
2
INDEX OF AUTHORITIES
State Cases
Davila v. State, 547 S.W.2d 606, 609 (Tex. Crim. App. 1977)...............................10
Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981) .............................10
Jackson v. State, 645 S.W.2d 303, 304 (Tex. Crim. App. 1983)...............................9
Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.--Texarkana 2003, pet. ref’d) .....10
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) ................................9
Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974) ...........................9
State Rules
Tex. R. App. Proc, Rule 9 (2014) ............................................................................14
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STATEMENT OF FACTS
Because Appellant Casey Hammack is not challenging anything from the original
guilty plea hearing, this appeal is limited to the issue of the trial court’s alleged abuse of
discretion at the August 25, 2014, hearing on the State’s motion to adjudicate
Hammack’s guilt.1
In Case Number 41,514-A, after Casey Hammack pleaded guilty to the underlying
drug offense, the court deferred his adjudication on August 6, 2012. CR 18-20. He signed
his conditions of community supervision on August 6, 2012. CR 8-9. After a first motion
to adjudicate, alleging continued drug use, his conditions of his community supervision
were amended April 7, 2014, to add conditions 15-21, all referring to his required
treatment at the DEAR Unit, a treatment center for drug offenders. CR 26. Those
conditions included number 16, “While in the DEAR Unit, the defendant shall participate
in all programs, obey all rules and regulations, follow and successfully complete all
recommended treatment programs and remain in the facility until discharged by the Court
upon recommendation of the DEAR Unit staff and his supervision officer.” CR 26.
The State applied for adjudication again on July 28, 2014, alleging that he
violated condition 16 by being discharged from the DEAR Unit on or about the
25th day of June, 2014, for violating Cardinal Rule # 2: no romantic/sexual
relationships with peers or staff. CR 31-32.
1
The pertinent parts of this record can be found in a transcript of that
hearing, Volume 3 of the Reporter’s Record.
4
The following is a summary of the testimony, at the August 25 adjudication
hearing, of the State’s only witness, Mike Whitwell, Casey Hammack’s counselor
at the DEAR Unit:
When asked what rule Mr. Hammack broke that caused his discharge,
Whitwell answered, “He engaged in a massage, if you will, with a peer in the
peer's room. . . . It is a rule at the facility that clients don't put their hands on other
clients. They do not enter other clients' rooms.” 3 RR 14. Hammack admitted the
massage and his presence in the client’s rooms several times. 3 RR 15.
Also, he acknowledged he once had entered the room of another client and
had been spanked by his peers in that room. 3 RR 15. Furthermore, he twice
admitted sitting on the peer’s bed, which is also a violation of rules. 3 RR 16.
The rule Hammack violated is labeled a “cardinal” rule. 3 RR 16. After due
deliberation, a team of staff counselors determined that discharge was appropriate.
3 RR 17.
Whitwell, on cross-examination, said he did not personally observe any
overt act which led him to believe a romantic/sexual relationship existed. 3 RR 19.
He disagreed with defense counsel that there must be an exchange of bodily fluids
from the lower part of a person’s anatomy for a sexual relationship to be
established. Id. He further disagreed that “what we have here is many vague
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interpretations of what is a romantic/sexual relationship.” Id. He agreed that an
exchange of bodily fluids from the lower part of a person’s anatomy would
constitute a sex act, but Whitwell denied knowing whether there was a sex act
involved in this case. 3 RR 19-20.
Hammack told Whitwell that Hammack was in a peer’s room and the peer
was lying on the floor, and Hammack massaged his peer on the floor, but was not
specific as to which parts of the peer’s anatomy he touched. 3 RR 20. Whitwell
further acknowledged that he had not seen the spanking incident, either. 3 RR 20.
When asked about whether Hammack had consented to the spanking, Whitwell
said that Hammack had smiled while talking about it and had indicated that the
spanking was ok. 3 RR 21.
Hammack had denied to Whitwell that he was involved in any sexual
relationship with anybody. 3 RR 21.
On redirect examination, Whitwell explained the purpose of the rule against
romantic/sexual relationships as follows:
It implies a relationship that is counterproductive to the purpose of the
facility. It is termed -- it's termed a negative contract. If I observed
someone doing something improper and I don't report it, I establish a
relationship with that individual. So should I offend at some later date,
I can bring that into account and tell them, "Hey, I did not front you
out, you don't front me out."
It compromises the ability of the facility to be effective. It is based on,
if you will, cliques, a group of individuals who are not willing to
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comply with the rules and not willing to hold others accountable for
their failure to comply with rules.
Romantic relationships in that setting -- we are a correctional facility.
Romantic relationships can be roughly construed as simply an
affectionate remark. It's not appropriate, and it compromises the
integrity of the [23] facility.
3 RR 22-23.
Whitwell testified that all the offenders were discharged from DEAR, but he
did not know what legal consequences they faced after their discharge. 3 RR 23.
The trial court next heard Hammack’s lawyer argue for an instructed verdict,
because participating in a massage and a spanking do not constitute becoming
involved in a romantic/sexual relationship. 3 RR 25.
The State responded by distinguishing between the sexual relationship as
described by defense counsel, and Cardinal Rule number 2, which is “no romantic
or sexual relationships with peers or staff.” Mr. Whitwell described actions that
were going to interfere with Hammack’s ability to be productive at DEAR and
explained that Hammack’s actions fell under that cardinal rule. 3 RR 25-26.
The Defense put on one character witness, one of Hammack’s former
employers, Cindy Holland, who testified that he was a dependable worker and was
well-liked. CR 29.
After hearing arguments from each attorney, the trial court found by a
preponderance of the evidence based on Hammack’s own admission, that
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Hammack had violated the rules of the DEAR unit by massaging another
individual. 3 RR 35.
The judge offered to send him to SAFP, but Hammack rejected that offer.
CR 36. The judge sent him to State Jail for six months, with credit for time served.
This appeal ensued.
SUMMARY OF THE ARGUMENT
The Trial Court did not abuse its discretion in revoking the Appellant’s deferred-
adjudication community supervision. Whitwell’s testimony supports the court’s findings
that Hammack’s admitted conduct established a romantic/sexual relationship with a peer,
violating the rules of the DEAR unit, and thereby violating his deferred-adjudication
community supervision condition # 16, which included obeying all the rules and
regulations of DEAR. The State did not have to prove that Hammack engaged in any act
of sexual contact involving the exchange of bodily fluids.
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ARGUMENT
1. The judge had sufficient evidence on which to base his findings of a rule
violation.
a. Standard of review is abuse of discretion.
In Texas, the standard of review for a sufficiency claim on appeal based upon an order
revoking community supervision imposed under an order of deferred adjudication is
limited to an abuse of the trial court’s discretion. See Rickels v. State, 202 S.W.3d 759,
763 (Tex. Crim. App. 2006). The trial court’s decision is to be “viewed in a light most
favorable to the judgment.” Jackson v. State, 645 S.W.2d 303, 304 (Tex. Crim. App.
1983).
b. The State’s burden of proof is “preponderance of the evidence.”
At the lower court level, the order granting the State’s motion to revoke
deferred adjudication must be supported by a preponderance of the evidence. See
Rickels, 202 S.W.3d 763-764. The burden of proof at the hearing to revoke
community supervision falls upon the State. Scamardo v. State, 517 S.W.2d 293,
298 (Tex. Crim. App. 1974). The State satisfies this burden when “the greater
weight of the credible evidence… create[s] a reasonable belief that the defendant
has violated a condition of his [community supervision].” Id.
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It is the trial judge who determines whether the greater weight of credible
evidence has created a reasonable belief that the defendant has violated their
community supervision as “the trial judge is the sole judge of the credibility of
witnesses and the weight to be given their testimony at the hearing to revoke
community supervision.” Davila v. State, 547 S.W.2d 606, 609 (Tex. Crim. App.
1977). The trial judge “may accept or reject any or all of the testimony.” Id. “It is
the trial court’s duty to judge the credibility of the witnesses and to determine
whether the allegations in the motion to revoke are true or not.” Garrett v. State,
619 S.W.2d 172, 174 (Tex. Crim. App. 1981). A trial judge is awarded broad
discretion at a revocation hearing. Pierce v. State, 113 S.W.3d 431, 436 (Tex.
App.--Texarkana 2003, pet. ref’d).
c. Hammack’s counselor from DEAR testified that Hammack had
committed several acts, all of which were rules violations, and after
reviewing them cumulatively, the counselors determined that
Hammack should be discharged for a violation of cardinal Rule # 2.
Per the testimony of Whitwell, Hammack admitted to giving a massage to a
peer in the peer’s room, where he was not supposed to be. 3 RR 20. He further
admitted entering a different peer’s room where he apparently willingly submitted
to a spanking. 3 RR 14, 15, 21. Touching another peer is a violation. He further
admitted to entering a peer’s room and twice sitting on the bed. “It is a rule at the
facility that clients don't put their hands on other clients. They do not enter other
10
clients' rooms.” 3 RR 14. “Casey indicated to me that he did indeed give the client
a massage and that he had been in the client's room on several occasions. . . [H]e
acknowledged on one occasion being invited into the room. He entered the room
and was later spanked by his peers in that room.” 3 RR 15. Hammack smiled as
he talked about the incident and indicated that he was ok with it. 3 RR 21.
Whitwell did not act alone in dismissing Hammack; it was a group decision.
Any behavior by clients that are deemed inappropriate there are rules
violations. The treatment team is convened. That includes the entire
treatment team, the program manager, the counselor concerned, and
other counselors, all have input. The treatment team made a decision
that Casey had compromised his ability to actively engage and focus
in services, and he was determined that a discharge was appropriate.
3 RR 16-17.
The defense theory was that neither a massage nor a spanking was a sexual
act in which bodily fluids were exchanged, and the State had therefore failed to
prove its case. Defense counsel’s objections to evidence of any act that didn’t
involve the exchange of bodily fluids indicated that he was attempting to make this
case about a sexual act, not a romantic/sexual relationship.
The State’s position was that even if there were no evidence of any exchange
of bodily fluids, Hammack’s several violations cumulatively indicated a
romantic/sexual relationship had been established among peers, compromising
Hammack’s “ability to actively engage and focus in services.” 3 RR 17. This met
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the State’s burden, which was to prove by a preponderance of the evidence that
Hammack violated the prohibition against romantic/sexual relationships, thus
failing to obey all the rules and regulations of DEAR, and thereby failing to
comply with condition number 16 of his community supervision.
The trial judge, specifically finding that Hammack had admitted giving a
massage to a peer, and finding that conduct to have violated the rules of the DEAR
Unit, was well within his discretion to revoke Hammack’s community supervision.
CONCLUSION AND PRAYER
The State had the burden to prove a violation of deferred-adjudication
probation conditions by a preponderance of the evidence, and met it. The appellant
had the burden to prove an abuse of discretion, and failed. Viewing the evidence in
the light most favorable to the judge’s ruling, any reasonable fact finder would
have found the State met its burden by a preponderance of the evidence. The
greater weight of the credible evidence created a reasonable belief that the
defendant had violated a condition of his community supervision and should then
have been adjudicated.
The judge’s ruling was well within the zone of reasonable disagreement.
Accordingly, this Court should find that the Appellant is not entitled to relief because the
appellant did not prove that the trial court abused its discretion.The State submits that
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there is no reversible error in this case, and the Appellant’s issue is meritless. The State
prays that the revocation and adjudication be affirmed.
Respectfully Submitted,
CARL DORROUGH
Criminal District Attorney
Gregg County, Texas
/s/Zan Colson Brown
Zan Colson Brown
Texas Bar No. 03205900
Assistant Criminal District Attorney
101 E. Methvin St., Suite 333
Longview, TX 75601
Telephone: (903) 236-8440
Facsimile: (903) 236-8490
Email: zan.brown@co.gregg.tx.us
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CERTIFICATE OF SERVICE
I certify that a copy of the foregoing State’s Brief was served by electronic
transfer, to the honorable Tim Cone, P.O. Box 413, Gilmer, Texas, 75644, at email
address: timcone6@aol.com on this the 7th day of February, 2015.
/S/ Zan Colson Brown
Zan Colson Brown
Assistant Criminal District Attorney
CERTIFICATE OF COMPLIANCE
I certify that the foregoing document complies with Texas Rules of
Appellate Procedure, Rule 9 (2014) regarding length of documents, in that
exclusive of caption, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement
of issues presented, statement of jurisdiction, statement of procedural history,
signature, proof of service, certification, certificate of compliance, and appendix, it
consists of 2,062 words.
/s/Zan Colson Brown
Zan Colson Brown
Assistant Criminal District Attorney
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