ACCEPTED
06-15-00077-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
8/17/2015 8:52:11 PM
DEBBIE AUTREY
CLERK
CAUSE NO. 06-15-00077-CR
IN THE FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
COURT OF APPEALS 8/18/2015 9:36:00 AM
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANADEBBIE AUTREY
Clerk
___________________________________________________________________
ANTHONY SCOTT ROPER, Appellant
VS.
THE STATE OF TEXAS, Appellee
___________________________________________________________________
On appeal from the 276th District Court
Titus County, Texas
Trial Court No. CR 16,480
___________________________________________________________________
APPELLANT’S BRIEF
___________________________________________________________________
MAC COBB
Texas bar No. 004434300
P.O. Box 1134
Mt. Pleasant, Texas 75456-1134
Telephone: 903.717.8606
Fax: 903.717.8613
maccobblaw@yahoo.com
/S/ MAC COBB
__________________________
Mac Cobb, Attorney for
Appellant, Anthony Scott Roper
ORAL ARGUMENT NOT REQUESTED
TABLE OF CONTENTS
Table of Contents………………………………………………………………………………1
Identity of Parties and Counsel…………………………………………………………..2
Index of Authorities……………………………………………………………………………4
Statement that Oral Argument IS NOT REQUESTED……………………………4
Statement of the Case………………………………………………………………………..6
Issues Presented…………………………………………………………………………………7
Statement of Facts………………………………………………………………………………7
Summary of the Argument………………………………………………………………….8
Argument…………………………………………………………………………………………10
Prayer………………………………………………………………………………………………14
Certificate of Service…………………………………………………………………………15
Certificate to Length………………………………………………………………………….16
1
CAUSE NO. 06-15-00077-CR
IN THE
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
___________________________________________________________________
ANTHONY SCOTT ROPER, Appellant
VS.
THE STATE OF TEXAS, Appellee
___________________________________________________________________
IDENTITY OF PARTIES AND COUNSEL
Anthony Scott Roper, Appellant
ID No. 2002681
Joe F. Gurney Unit
1385 FM 3328
Palestine, Texas 75803
Mac Cobb
Attorney for Appellant, Anthony Scott Roper
Texas Bar No. 04434300
P.O. Box 1134
Mt. Pleasant, Texas 75456-1134
Telephone: 903.717.8606
Fax: 903.717.8613
maccobblaw@yahoo.com
Charles C. Bailey, District Attorney
P.O. Box 249
Mt. Pleasant, Texas 75456
Telephone: 903.577.6726
Fax: 903.577.6729
dacbailey@hotmail.com 2
INDEX OF AUTHORITIES
CASE LAW
Wheat vs. State, 165 S.W.3d 802, 806 (Tex. App.-Texarkana, 2005, pet. ref’d)..10
STATUTES
Texas Penal Code, Annotated, Sec. 2.04 (d)…………………………………………………….10
Texas Code of Criminal Procedure, Annotated, Art. 42.12, Sec. 10(a)……………….8
Texas Code of Criminal Procedure, Annotated, Art. 42.12, Sec. 21(c)………………11
Texas Code of Criminal Procedure, Annotated, Art. 42.12, Sec. 24……………………9
ORAL ARGUMENT IS NOT REQUESTED
3
CAUSE NO. 06-15-00077-CR
IN THE
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
___________________________________________________________________
ANTHONY SCOTT ROPER, Appellant
VS.
THE STATE OF TEXAS, Appellee
___________________________________________________________________
On appeal from the 276th District Court
Titus County, Texas
Trial Court No. 16,480
___________________________________________________________________
___________________________________________________________________
APPELLANT’S BRIEF
___________________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Comes now Anthony Scott Roper, Appellant, and files this brief in support of
his Prayer that the Court of Appeals reverse the Judgment of Conviction and
4
Sentence entered by the Trial Court below.
STATEMENT OF THE CASE
This is an appeal of a Judgment Adjudicating Guilt for alleged violations of
conditions of community supervision. The Appellant pled Not True and objected
to the jurisdiction of the court, presented evidence that the State of Texas was not
diligent in seeking revocation of the Appellant’s community supervision, and that
the State of Texas did not meet its burden of proof as to the allegations. The Court
granted the State’s motion and entered a Judgement of Conviction and Sentence.
ISSUES PRESENTED
Issue No. 1 Was the Trial Court required to transfer the case to the
Court which originally placed the Appellant on probation?
Issue No. 2 Did the State of Texas fail to use due diligence under
Texas Code of Criminal Procedure, Article 42.12, Section 24?
Issue No. 3 Did the State of Texas prove by a preponderance of the
evidence that the Appellant was able to pay the ordered probation fees?
STATEMENT OF FACTS
On September 7, 2010, the Appellant was placed on Community Supervision,
by Order of Deferred Adjudication, by presiding Judge Jimmy L. White, 76th Judicial
5
District of Titus County, Texas, for the offense of Failure to Register as a Sex
Offender in this case. CR p. 18-20. On January 15, 2015, the State of Texas filed a
Motion to Adjudicate Unadjudicated Offense. CR p. 31-33. On April 23, 2015, the
Appellant filed a Motion for Transfer of the case from the 276th Judicial District
Court to the 76th Judicial District Court, the Court of Original Jurisdiction. CR p. 45-
46. The 276th Judicial District Court set a hearing on April 24th, 2015, to which the
Appellant objected. RR Vol. 1, p. 4. The Appellant pled Not True to the State’s
Motion and a hearing was held by the Judge of the 276th District Court, Hon. Robert
Rolston.
The Court took testimony on April 24, 2015, and rendered a judgment finding
that the Appellant violated the conditions of his probation, revoking his probation,
adjudicating the Appellant Guilty, and sentencing him to 3 years confinement in the
Institutional Division of the Texas Department of Corrections. RR Vol. 1, p. 40; CR
p. 53-55. The Appellant gave Notice of Appeal. CR p. 47.
6
SUMMARY OF THE ARGUMENT
Issue No. 1 The Trial Court erred in refusing to transfer the
proceedings to the Court of original jurisdiction. The Appellant was placed on
deferred community supervision by the 76th Judicial District Court. The hearing was
held in the 276th Judicial District Court over the motion and objection of the
Appellant to transfer the case to the 76th Judicial District Court.
Issue No. 2 The Trial Court erred in failing to find that the Appellant
had met his burden of proof that the State of Texas was not diligent in regard to
supervision of the Appellant’s duty to report. The Trial Court erred in finding that
the State of Texas had met its burden of proof that the Appellant did not report as
ordered in the conditions of probation. The evidence presented that the defendant
reported faithfully except when he believed he was permitted to report by
telephone.
Issue No. 3 The Trial Court erred in finding that the State of Texas had
met its burden of proof that the Appellant had willfully failed to pay the Court
ordered probation fees. The evidence showed by a preponderance that the
Appellant was unable to pay because of health limitations and because he could
7
not obtain employment. The State of Texas must prove by a preponderance of the
evidence that a probationer has the means to pay Court ordered fees to support a
finding of failure to pay for revocation.
ARGUMENT
Issue No. 1 Only the Court which places a person on probation may
revoke the person’s probation unless the Judge has transferred the case to another
Court. Texas Code of Criminal Procedure, Annotated, Art. 42.12, Sec. 10 (a). The
Appellant was placed on deferred community supervision by Hon. Jimmy L. White,
now deceased, Judge of the 76th Judicial District Court. CR p. 18-20. The jurisdiction
of the 76th Judicial District Court continued with Hon. Danny Woodson being
appointed, qualified, and sworn to fill the vacancy. Although the Appellant filed a
Motion to Transfer the case to the proper Court, the Motion was denied by Hon.
Robert Rolston, Judge of the 276th Judicial District Court, who proceeded over the
objection of the Appellant, to hear the State’s Motion to Adjudicated
Unadjudicated Offense.
The Appellant’s Motion to Transfer the case to the 76th Judicial District Court
set out the grounds for the improper jurisdiction to hear the said Motion. CR p. 45-
46. The Appellant objected to the failure to transfer and the Court denied the
8
Motion to Transfer and continued with the hearing. RR Vol 1, p. 5, line 8.
Because, without a proper transfer, the Judge of the 76th Judicial District
Court, Hon. Danny Woodson, would be the proper and only Judge to hear this
matter. The obvious importance of this provision is to prevent the possibility of
one Court “stepping on the toes” of another Court and the possibility of the State
of Texas “forum shopping” in order to anticipate a favorable ruling. In many large
counties where there are many more than two Courts with equal rank and
territorial jurisdiction, it is clear that the purpose of this provision is in the interest
of justice. The Court of Appeals should reverse the judgement in this case and
remand the case for a new hearing in the proper Court in order to preserve the
jurisdictional integrity of the Court system and to give effect to the law in support
thereof.
Issue No. 2 The State of Texas failed to exercise due diligence in
regard to the allegation that the Appellant did not report as directed. It is an
affirmative defense to revocation for failure to report, when the Appellant shows
that the State of Texas did not exercise due diligence in contacting the probationer.
Texas Code of Criminal Procedure, Annotated, Art. 42.12, Sec. 24. As to an
affirmative defense, the burden of proof required of the accused is by
9
preponderance of the evidence. Texas Penal Code, Annotated, Sec. 2.04 (d). This
burden of proof has been recognized and applied in revocation proceedings in
denying the State’s allegation of failure to report. Wheat vs. State, 165 S.W.3d 802,
806 (Tex. App.-Texarkana, 2005, pet. ref’d).
The State’s witness at the hearing was Probation Officer Rance Hockaday,
who testified that the Appellant had, over the entire course of the probation, failed
to report three times, March, April, and September of 2013. RR Vol. 1, p. 9. Mr.
Hockaday acknowledged that he did not attempt to contact the Appellant in March
or April about the failure to report. RR Vol. 1, p. 12. He also acknowledged that he
didn’t contact the Appellant in September about the failure to report. RR Vol. 1, p.
12. The appellant testified that he understood that he had been permitted to call
in because of his work schedule, and that he did so. RR Vol. 1, p. 22. RR Vol. 1, p.
30. Mr. Hockaday stated that it was his practice to contact the probationers if they
failed to report, but that he did not have it documented in the file. RR Vol. 1, p. 13.
Because the probation office could not document that he made contact with
the Appellant or testify other than as to custom or vague recall, the Appellant met
his burden of proof that the probation department was not diligent in contacting
10
the Appellant about failing to report, and the Court erred in finding the violation to
be true.
The State of Texas, as shown above, failed to prove by a preponderance of
the evidence that the Appellant willfully failed to report as ordered or that the State
was diligent in contacting the Appellant about the alleged failures.
Therefore the Court of Appeals should reverse the finding of the trial court
as to the allegation of failure to report.
Issue No. 3
The State of Texas must prove by a preponderance of the evidence that a
probationer was able to pay and did not pay the Court ordered fees. Texas Code
of Criminal Procedure, Annotated, Art. 42.12, Sec 21 (c). Although the Appellant
acknowledged that he had not paid as ordered by the Court, his testimony was that
he was unable to pay because he could not find a job. RR Vol. 1, p. 24. The problem
of obtaining work was primarily caused by the fact that the Appellant was a
convicted sex offender. Vol. 1, p. 25. The problem was compounded by medical
and physical problems that limited his ability to do certain types of work. RR Vol.
1, p. 28.
11
Instead of offering evidence contrary to the Appellant’s testimony on
inability to pay, the probation officer confirmed the Appellant’s testimony. Mr.
Hockaday acknowledged that the Appellant had been unemployed for a little over
two years. RR Vol. 1, p. 10. Mr. Hockaday also acknowledged that the Appellant
to him that no one would hire him because of his criminal history and that he had
medical problems, all undisputed. RR Vol. 1, p.15. Mr. Hockaday also
acknowledged that he believed the Appellant to have no income or resources at all
and lived off of the charity or someone else. RR Vol. 1, p. 16.
The only testimony before the Court was that the Appellant was not able to
pay his fees because he had no resources and could not find work. The State of
Texas did not controvert any of that evidence so the preponderance of the
evidence goes to the Appellant. The Trial Court erred in finding that the Appellant
willfully failed to pay his fees. The Court of Appeals should reverse the Trial Court
as to the finding of failure to pay violation.
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PRAYER
The Appellant prays the Court of Appeals to reverse the judgment and
sentence of the Trial Court and render a Judgment of Not True, denying the State’s
Motion to Adjudicate Unadjudicated Offense, or in the alternative remand the case
to the 76th Judicial District Court for hearing in the Court of original jurisdiction.
RESPECTFULLY SUBMITTED
MAC COBB
Texas bar No. 004434300
P.O. Box 1134
Mt. Pleasant, Texas 75456-1134
Telephone: 903.717.8606
Fax: 903.717.8613
maccobblaw@yahoo.com
/S/ MAC COBB
__________________________
Mac Cobb,
Attorney for Anthony Scott Roper,
Appellant
13
CERTIFICATE OF SERVICE
I certify that the Attorney for the State of Texas, District Attorney Charles C.
Bailey, was served with a copy of this brief by e-mail or by e-filing on this 17th day
of August, 2015. /S/ Mac Cobb
CERTIFICATE OF LENGTH
I certify that my word processing program indicates the length of the brief to be
2160 words. /S/ Mac Cobb
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Anthony Scott Roper v. State
Combined Opinion