ACCEPTED
12-14-00342-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
3/6/2015 4:07:22 PM
CATHY LUSK
CLERK
oAUSE NO. 12'14'00342 'cR
RECEIVED IN
IN THE 12th COURT OF APPEALS
TYLER, TEXAS
TWELFTH COURT OF APPEALS
TYLER, TEXAS 3/6/2015 4:07:22 PM
CATHY S. LUSK
Clerk
VERA LOUISE CLERKLEY, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
On APPeal from the
3rd Judicial District Court of
Anderson CountY, Texas
(Trial Court No. 31399)
Hon. Bascom W. Bentley, III, Judge Presiding
APPELLANT'S BRIEF
WM. M. HOUSE, JR.
TBC#40045000
800 Nontn CHURcH
Per,ustIus, TUxAS 75801
903.723.2077
903.723.6323 rax
COUNSEL FOR APPELLANT
IDENTITIES OF PARTIES AND COUNSEL
YERA. LOUISE CLERKLEY, APPellant
HON. Bascom W. BENTLEY, III
Judge Presiding:
And.erson CountY Courthouse
Palestine, Texas 75801
For the State at Trial: Scott HOLDEN
TF,ffi24036795
Assistant District AttorneY
Anderson CountY Courthouse
500 North Church, Room 38
Palestine, Texas 75801
For the Defendant at Trial: Wm. M. HOUSE, JR.
Attorney at Law
TCB#10045000
800 North Church
P. O. Box 1486
Palestine, Texas 75801
For the Defendant on APPeaI: Wm. M. HOUSE, JR.
Attorney at Law
TCB#10045000
800 North Church
P. O. Box 1486
Palestine, Texas 75801
2
TABLE OF CONTENTS
Identity of Parties and' Counsel... """"""'2
Table of Contents...... """""'3
Ind.ex of Authorities... """""'4
Statement of Case... """""""5
Issues Presented """ ""6
Statement of Facts """'6
Summary of the Argument "'"'6
Argument...... """""""7
Prayer... """"""7
Certifrcate of Service...... """' 8
Certificate of Compliance... """""""8
INDEX OF AUTHORITIES
CASES
Rogers v. State,640 S.W.2 d,248 (Tex'Crim'App' 1981) """7
McFarland v. State,644 S.W.2d 17 (Tex.App.-Dallas 1982)' """"'7
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CAUSE NO. 31399
IN THE
TWELFTH COURT OF APPEALS
TYLER, TEXAS
VERA LOUISE CLERKLEY, APPELI,AI\i1T
vs.
THE STATE OF TEXAS, APPELLEE
On ApPeaI from the
3rd Judicial District Court of
Anderson CountY, Texas
APPELLANTS BRIEF
of Theft of
on December 2,z}L},Appellant pled Guilty to the offense
and $20,000'00. she was sentenced to 24 months
in
Property between $1500.00
was suspended
TDCJ State Jail Division, however that sentence of confinement
a period of five years'
and.Appellant was placed on community Supervision for
pay $5610.37 in restitution'
one of the terms of probation was a requirement to
Appellant',s community
on May 30,2l14,the state filed a Motion to Revoke
Appellant's probation'
supervision. on october 20,}Ol4,the court revoked'
Notice of Appeal
sentenced her to one year State Jail Division TDCJ' Timely
was given.
5
ISSUES PRESENTED
The Trial Court erred in continuing the Revocation Hearing for prolonged
period and then revoking probation without a determination of new violation,
violating the minimum requirements of due process'
STATEMENT OF FACTS
On September 29th, the court convened a hearing on the State's Motion to
Revoke Probation. At that hearing Appellant pled True (Rn Vot. 2 p5 L 6 and p5
LLO'2D. The court without rendering a decision or revoking Appellant's
probation recessed the hearing and ordered a Pre'sentence Report. (RR Vot. Z
pI6 L2'7)
Then on October 20, the court reconvened the hearing. At that hearing,
Appellant objected to the court proceeding, (RR VoI. 3 p1 L9-15) further objection
was made (nn Vot. B pB L8'2f). The counsel for Appellant further argued that
the court did not have the authority to revoke her on that date, the case had
been heard, there was evidence that could have been used to revoke her, the
court did not revoke her at that time, the court continued it to the current date,
the court then proceeded to grant the State's Motion to Revoke. (nn Vol. 3 p7
L22-25)
SUMMARY OF THE ARGUMENT
Appellant's due process rights were violated. The court's taking
defendant's plea of True, in the first revocation hearing and not revoking her
constituted a thinly disguised decision to continue the probation. The court
erred in subsequently revoking her probation without evidence of any new
violation.
ARGUMENT
Judge Roberts, on State's Motion for Rehearing in Rogers v' State,
640
for a
S.W.2d 248 (Tex.Crim.App. 1981), "it would be the epitome of arbitrariness
court first to conduct a hearing on arleged viorations and exercise
its discretion to
hearing'
return the probationer to probation (whether by a "continuance of the
late to
or by (continuance of the probation", and then deciding several months
probation without
exercise its d.iscretion in the opposite fashion by revoking the
any determination of a new violation'"
A similar situation occurred in McFarland v. state, 644 s'w'zd l7
(Tex.App.-Dallas 1982), in that case the trial court considered the State's Motion
to Revoke on March 27, Defendant entered a plea of True to the charge'
lg8l.
did
Although the court found that the Defendant had failed to report, the court
not revoke his probation, but passed. the cause generally. on April 23,
19881,
another hearing was held" before the trial court at which time the court
revoked
Defendant's probation. At the April 23'd hearing, Defendant was not charged
with any add.itional violations of conditions of probation. "Such an action is not a
true continuance, but is a thinly'disguised decision to continue the probation"'
AIso in McFarland v. State, 644 S.W.2d 17 (Tex.App.-DaIIas 1982),
"once
period' the
the trial court has continued the revocation hearing for a prolonged
court may not revoke probation without a d'etermination of a new violation"'
PRAYER
prays
WHEREFORE, PREMISES CONSIDERED, Undersigned counsel
that upon due consid.eration of Appellant's Brief, the court reverse the
trial
court and set aside the order revoking her probation.
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RESPECTFULLY SUBMITTED,
WM. M. HOUSE, JR.
800 Nontn Cnuncn
Per,psrtxo, TbxAS 75801
903.723.2077
9O3.723.6323 rex
I hereby certifir that a true and correct copy of the foregoing document has
forwarded to the Office of Criminal District Attorney, Anderson County
nt
Legal ;to
Wm. M. House, Jr.
Attorney at Law
At the request of the Court, I certify that this submitted computer e'filing
of 976'
complies with the Tex.R.App.P. 9.4(il(3) and has a word count
Carolyn Newgd
Legal Agsistant !d
Wm. NI. House-, Jr.
Attorney at Law
8