Dokey, Britney Nicole

PD-1285-15
PD-1285-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/28/2015 2:21:49 PM
Accepted 9/30/2015 1:54:04 PM
ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS OF TEXAS CLERK
AUSTIN, TEXAS

BRITNEY NICOLE DOKEY,
APPELLANT

NO. __
(COURT OF APPEALS NO. 11-14-00307-
CR; TRIAL COURT NO. 10918-D)
STATE OF TEXAS,
APPELLEE
**************************************
PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
ELEVENTH JUDICIAL DISTRICT
EASTLAND, TEXAS
**************************************
CHIEF JUSTICE JIM R. WRIGHT, PRESIDING
*********************************************************
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
*********************************************************
STAN BROWN
P.O. BOX 3122
ABILENE, TEXAS 79604
325-677 -1851
FAX 325-677-3107
STATE BAR NO. 03145000
EMAIL: mstrb@aol.com

ATTORNEY FOR APPELLANT

September 30, 2015
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS

BRITNEY NICOLE DOKEY,
APPELLANT

NO. __
(COURT OF APPEALS NO. 11-14-00307-
CR; TRIAL COURT NO. 10918-0)
STATE OF TEXAS,
APPELLEE

IDENTITY OF JUDGE, PARTIES, AND COUNSEL

Hon. Thomas M. Wheeler Stan Brown
350h District Court Appellant's Attorney/ Appeal
Taylor County Courthouse P.O. Box 3122
Abilene, TX 79602 Abilene, TX 79604

lames Eidson Andrea Jackson
District Attorney Appellant's AttorneylTrial
Taylor County Courthouse P.O. Box 3412
Abilene, TX 79602 Abilene, TX 79604

Mr. Britt Lindsey Britney Nicole Dokey
Appellate Section 1025 Sayles Blvd
Taylor County Courthouse Abilene, TX 79605
Abilene, TX 79602

11
TABLE OF CONTENTS

SUBJECT PAGE

IDENTITY OF JUDGE, PARTIES, AND COUNSEL .ii

STATEMENT REGARDING ORAL ARGUMENT v

STATEMENT OF THE CASE 1

STATEMENT OF PROCEDURAL HISTORY 2

QUESTION PRESENTED FOR REVIEW

Has the time come to formally and straightforwardly abandon the
unjust concept Due Process of Law does not mandate proof beyond a
reasonable doubt rather than preponderance of the evidence regarding any
alleged violation of a condition of community supervision? (I R.R. at 23-
106)(C.R. at 68) 3

ARGUMENT 3

PRAYER FOR RELIEF 10

CERTIFICATE OF SERVICE 10

CERTIFICATE OF COMPLIANCE 11

III
INDEX OF AUTHORITIES

CASES PAGE

Campbell v. State, 456 S.W.2d 918 (Tex. Crim. App. 1970) 3,6

Collier V. Poe, 732 S.W.2d 332 (Tex. Crim. App. 1987) 3,4

Dansby V. State, 398 S.W.3d 233 (Tex. Crim. App. 2012) 6-7

Ex Parte Carmona, 185 S.W.3d 492 (Tex. Crim. App. 2006) 7-8

Ex Parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012) 5, 7

Gagnon V. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656
(1973) 3,4

Grady V. North Carolina, 575 U.S. _, 133 S.Ct. 1368, 83USLW 3758 At
Slip Op. 4 (March 30,2015) 3,9

In Re Gault, 387 U.S. 1,87 S.Ct. 1428,18 L.Ed.2d 527 (1967) 3, 4

In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, 375
(1970) 3,4,5

Jackson V. Virginia, 443 U.S. 307,99 S.Ct. 2781,61 L.Ed.2d 560 (1979) ... 5

Kelly v. State, 483 S.W.2d 467 (Tex. Crim. App. 1972) 5-6, 8-9

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484
(1972) 3,4

CONSTITUTIONAL PROVISIONS & RULES PAGE

U.S. CONST. amend. XIV passim

Tex. R. App. P. 9.4 11

Tex. R. App. P. 66.3(c) 3

IV
STATEMENT REGARDING ORAL ARGUMENT

Appellant believes the QUESTION PRESENTED; whether Due Process of

Law applies to probation revocation proceedings concerning standard of proof is

an issue that merits further clarification for the bench and bar. Therefore, the

usual give and take of oral argument would be useful for the Court in determining

whether allegations should be proved beyond a reasonable doubt in probation

revocation proceedings. Oral argument is essential in order to aid this Court's

decisional processes by providing a more in-depth exploration of this issue.

v
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS
BRITNEY NICOLE DOKEY,
APPELLANT

On February 24, 2014, Appellant was sentenced to twenty months in a

State Jail probated for four years for the offense of tampering with a

government record (C.R. at 15). On September 24, 2014, the State filed it's

Motion to Revoke Community Supervision. (C.R. at 25). On November 7,

2014, pursuant to Appellant's plea of True, the trial court revoked the

community supervision and sentenced Appellant to seventeen months in a

State Jail. (C.R. at 31)(111R.R. at 4-5). Notice of Appeal was timely filed.

(C.R. at 50). The Amended Trial Court's Certification of Defendant's Right

of Appeal was filed March 4, 2015. (Suppl. C.R. at 6). Appellant seeks

review of the decision of the Court of Appeals that affirmed the conviction.
STATEMENT OF PROCEDURAL HISTORY

Appellant presented one issue in her brief, and the Eastland Court of

Appeals affirmed, Dokey v. State, 2015 WL 5192489 (Tex. App.-Eastland

September 3, 2015)(Unpublished memorandum opinion)(Appendix). This

petition is due to be filed by October 5, 2015; it is therefore timely filed.

2
QUESTION PRESENTED FOR REVIEW

ARGUMENT

Due Process of Law demands the recognition by this Court, as the

State must prove what it alleges beyond a reasonable doubt in order to

lawfully obtain a conviction in a criminal prosecution, it must also so prove

what it alleges in a probation revocation proceeding. That is the essence of

the fundamental case law governing our basic constitutional protections. See

generally, In Re Gault, 387 U.S. 1,87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In

Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, 375 (1970);

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972);

Gagnon v. Scarpelli, 411 U.S. 778,93 S.Ct. 1756,36 L.Ed.2d 656 (1973);

and Grady v. North Carolina, 575 U.S. __ , 133 S.Ct. 1368, 83USLW

3758 At Slip Op. 4 (March 30, 2015)(Unanimous per curiam opinion). See

also, Collier v. Poe, 732 S.W.2d 332 (Tex. Crim. App. 1987) and Campbell

v. State, 456 S.W.2d 918 (Tex. Crim. App. 1970).

At page two of the Slip Opinion below, the Court of Appeals wrote,

"The Court of Criminal Appeals has considered whether a defendant is

'entitled to have the question of his revocation decided beyond a reasonable

doubt' and has determined that 'the standard of proof necessary to revoke

probation should [not] be as stringent as the one necessary to support the

3
initial conviction.''' (Citation omitted). By that statement, the court below

decided an important question of state and federal law that conflicts with the

foregoing applicable decisions of this Court and the Supreme Court of the

United States. Tex. R. App. P. 66.3(c).

The Opinion below of September 3, 2015, we respectfully submit,

utterly failed to consider those fundamental and relevant decisions of the

Supreme Court of the United States and this Court: In Re Gault, 387 U.S. 1,

87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In Re Winship, 397 U.S. 358, 90

S.Ct. 1068,25 L.Ed.2d 368, 375 (1970); Morrissey v. Brewer, 408 U.S. 471,

92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); and Gagnon v. Scarpelli, 411 U.S.

778,93 S.Ct. 1756,36 L.Ed.2d 656 (1973).

Collier v. Poe, supra, 732 S.W.2d at 343-344, moreover, held Due

Process rights belong to the individual, not the State. It is evident the

requirement there can be no criminal conviction but by sufficient evidence

necessary to convince a trier of fact beyond a reasonable doubt of every

element of the offense, and the trier of fact must rationally apply that

standard to the evidence presented, is mandated by Due Process of Law.

Campbell v. State, supra, 456 S.W.2d at 921-922 held Due Process and Due

Course of Law apply to probation revocation proceedings. "[T]he Due

Process Clause protects the accused against conviction except upon proof

beyond a reasonable doubt of every fact necessary to constitute the crime

with which he is charged." In Re Winship, 397 U.S. 58, 90 S.Ct. 1068, 25

LEd2d 368, 375 (1970). (Emphasis supplied).

4
Jackson v. Virginia, 443 U.S. 307,99 S.Ct. 2781, 61 L.Ed.2d 560

(1979) teaches that Winship:

requires more than simply a trial ritual...[S]o fundamental a
substantive constitutional standard must also require that the
factfinder will rationally apply that standard to the facts in
evidence ...After Winship the critical inquiry on review of the
sufficiency of the evidence to support a criminal conviction
must be not simply to determine whether the jury was properly
instructed, but to determine whether the record evidence could
reasonably support a finding of guilt beyond a reasonable
doubt. Id. at 572-573 (footnotes and citations omitted). [T]he
relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. Id. 61 L.Ed.2d at 574.

Due Process of Law demands a re-examination of the Texas fiction

that a revocation of community supervision is a civil or administrative

proceeding, and thus not entitled to the protections of Due Process. See, Ex

Parte Doan, 369 S.W.3d 205, 212 (Tex. Crim. App. 2012):

A Texas community-supervision revocation proceeding
involves the application of law to past facts that remain static. It
is conducted according to judicial rules before a trial judge, not
an administrative agency. Applying administrative law-the
law that governs the decision-making processes of
administrative agencies-to revocation hearings has no basis in
the Code of Criminal Procedure. Community-supervision
revocation proceedings are not administrative hearings; they are
judicial proceedings, to be governed by the rules established to
govern judicial proceedings.

Against that backdrop, this Court's opinion in Kelly v. State, 483

S.W.2d 467,469-470 (Tex. Crim. App. 1972) which held the preponderance

of the evidence standard of proof was not constitutionally prohibited in

probation revocation proceedings, should be revisited. Presiding Judge

5
Onion's dissent in Kelly, relying in large part on Campbell v. State, supra,

merits an in-depth examination:

The necessity of the application of due process and equal
protection to revocation proceedings was recognized by this
court in Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970),
where it was also stated:

'It would indeed now be difficult to conclude that
probation revocation hearings are not criminal
proceedings 'where substantial rights of an accused
may be affected.' Mempa v. Rhay, 389 U.S. 128,
88 S.Ct. 254, 19 L.Ed.2d 336. The revocation
proceedings cannot be isolated from the context of
the criminal process. See Crawford v. State,
Tex.Cr.App., 435 S.W.2d 148.' 456 S.W.2d at
921-922.

See also McConnell v. Rhay, 393 U.S. 2, 89 S.Ct.
32,21 L.Ed.2d 2 (1968).

And only recently in Fariss v. Tipps, 463 S.W.2d 176
(Tex.l971), which involved an application for writ of
mandamus, the Texas Supreme Court held that a proceeding to
revoke probation is a 'criminal prosecution' within the state
constitution and a probationer was entitled to a speedy trial and
further that the speedy trial provision of the Sixth Amendment
of the United States Constitution was a due process requirement
applicable to state revocation proceedings through the
Fourteenth Amendment. See Article 24, Vernon's Ann.P.C.

Certainly it has been recognized that a revocation
proceeding is a critical stage of the criminal process where
counsel must be appointed if the probationer is indigent,
without counsel and has not been warned of the same. Kelly v.
State, supra, 483 S.W.2d at 474.

See, Dansby v. State, 398 S.W.3d 233,240 (Tex. Crim. App. 2012):

6
It bears emphasis "that a State may validly insist on answers to
even incriminating questions and hence sensibly administer its
probation system, as long as it recognizes that the required
answers may not be used in a criminal proceeding and thus
eliminate the threat of incrimination." But the appellant in this
case was offered no such use immunity. The State cannot
reasonably have believed that it could penalize him for
invoking his Fifth Amendment privilege by revoking his
conditional liberty solely on the basis of his refusal to answer
questions that would tend to incriminate him during the course
of the sexual history polygraph process-or, for that matter,
during required sex offender group therapy sessions.
(Footnotes and citations omitted).

Presiding Judge Onion was ahead of his time in recogmzmg a

probation revocation proceeding is not administrative. That legal fiction

was put to rest by Ex Parte Doan, 369 S.W.3d 305, 308 (Tex. Crim. App.

2012), "our characterization of a judicial proceeding as an administrative

proceeding is, on its face inaccurate ... we have used the 'administrative' label

to imply that we would not strictly enforce procedural rules at revocation

hearings, which was an injudicious and inaccurate implication." See also, Ex

Parte Carmona, 185 S.W.3d 492, 495 (Tex. Crim. App. 2006):

To meet the requirements of due process, the final
revocation of probation must be preceded by a hearing, where
the probationer is entitled to written notice of the claimed
violations of his probation, disclosure of the evidence against
him, an opportunity to be heard in person and to present
witnesses and documentary evidence, a neutral hearing body,
and a written statement by the fact finder as to the evidence
relied on and the reasons for revoking probation. As we said in
Ex parte Hale, "the Constitution of our country has been
interpreted to protect persons who are released [on community
supervision], from reincarceration without due process of
law."FN'o

7
FN10. 117 S.W.3d 866, 871 (Tex.Crim.App.2003)
(citing Morrissey v. Brewer. 408 U.S. 471. 92
S.Ct. 2593, 33 L.Ed.2d 484 (1972) (parole
revocation) and Gagnon v. Scarpelli. 411 U.S. 778,
93 S.Ct. 1756,36 L.Ed.2d 656 (1973) ( probation
revocation».

Accordingly, due process requires that reincarceration occur
only after the disclosure of evidence against the defendant.
Within this right to disclosure of evidence afforded by due
process, we can infer the requirement that revocation may not
occur when it is based solely on perjured testimony. Because
habeas review is appropriate for denials of fundamental or
constitutional rights, the applicant's claim that his community
supervision was revoked solely on perjured evidence, and
therefore without due process of law, is cognizable under the
habeas jurisdiction of this court. (Some footnotes omitted).

Presiding Judge Onion concluded his Kelly dissent as follows:

The appellant urges that the holding in Winship compels the
application of the reasonable-doubt standard to revocation of
probation cases. It, at least, logically follows. To hold that adult
probations are to be denied due process under the correctional
rhetoric of In-loco parentis or for other reasons while juveniles
are receiving due process would be, in my opinion, an arbitrary
distinction and would raise serious equal protection issues as
well as due process considerations.[FN7]

FN7. In Winship, the Supreme Court said: 'The
same considerations that demand extreme caution
in factfinding to protect the innocent adult apply as
well to the innocent child.' 397 U.S. at 365, 90
S.Ct.at 1073 ...

When all the legal niceties are laid aside, a proceeding to
revoke probation involves the right of an individual to continue
at liberty or to be imprisoned. It involves the possibility of a
deprivation of liberty just as much as original criminal action or
juvenile delinquency proceeding. The factfinding process is just

8
as adverse as in other proceedings where the accused is
afforded due process rights including the reasonable-doubt
standard ...

I would hold that the constitutional safeguard of proof
beyond a reasonable doubt as a matter of due process and
fundamental fairness is required in Texas revocation of
probation proceedings along with the right to counsel, speedy
trial, etc. (Some footnotes omitted). [d. at 476-477.

See also, Grady v. North Carolina, 575 U.S. __ , 133 S.Ct. 1368,

83USLW 3758 At Slip Op. 4 (March 30, 2015)(Citations omitted).' That

Opinion vividly illustrates the overriding importance of our basic

constitutional protections, whatever the label applied to the proceeding in

question. This Court should therefore, we respectfully suggest, grant review

in order to give this fundamental issue of standard of proof in community

supervision revocation cases the exhaustive review it deserves.

I "In its brief in opposition to certiorari, the State faults Grady for failing to introduce
'evidence about the State's implementation of the SBM program or what information, if
any, it currently obtains through the monitoring process.' Brief in Opposition II. Without
evidence that it is acting to obtain information, the State argues, 'there is no basis upon
which this Court can determine whether North Carolina conducts a 'search' of an
offender enrolled in its SBM program.' Ibid. (citing Jones, 565 U.S., at --, n. 5, 132
S.Ct., at 951, n. 5 (noting that a government intrusion is not a search unless 'done to
obtain information')). In other words, the State argues that we cannot be sure its program
for satellite-based monitoring of sex offenders collects any information. If the very name
of the program does not suffice to rebut this contention, the text of the statute surely does:
'The satellite-based monitoring program shall use a system that provides all of the
following:
'(1) Time-correlated and continuous tracking of the geographic location of the
subject ....
'(2) Reporting of subject's violations of prescriptive and proscriptive schedule or
location requirements." N.C. Gen.Stat. Ann. § 14-208.40(c).'
The State's program is plainly designed to obtain information. And since it does so by
physically intruding on a subject's body, it effects a Fourth Amendment search."

9
PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that this Court grant discretionary review and oral argument and, after

full briefing on the merits, Issue an opinion reversing this

convictionlrevocation of community supervision, and remand this cause to

the trial court for a new hearing under constitutionally appropriate standards

as this Court shall determine are mandated by Due Process of Law.

Respectfully submitted,
lsi Stan Brown
STAN BROWN
P.O. BOX 3122
ABILENE, TEXAS 79604
325-677-1851
FAX 325-677-3107
STATE BAR NO. 03145000
EMAIL: mstrb@aol.com

ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

I hereby certify that on this 28th day of September, 2015, a true
and correct copy of the above and foregoing Petition for Discretionary
Review was emailed to Britt Lindsey, Appellate Section, Taylor County
District Attorney's Office, Taylor County Courthouse, Abilene, Texas
lindseyb@taylorcountytexas.org; James Eidson, District Attorney, Taylor
County Courthouse, Abilene, Texas eidsonj@taylorcountyteas.org; and to
Ms. Lisa McMinn, State Prosecuting Attorney, at
information@spa.texas.gov.

lSI Stan Brown
STAN BROWN

10
CERTIFICATE OF COMPLIANCE

I hereby certify that according to my computer program used to
prepare the foregoing document, the word count, in accordance with Tex. R.
App. P. 9.4, is 2143 words; and further certify that the brief is in Times
14-point type, except for footnotes which are Times 12-point type.
lSI Stan Brown
STAN BROWN

11
APPENDIX
Opinion filed September 3,2015

In The

~Itbtntb QCourtof ~ptals
No. 11-14-00307-CR

BRITNEY NICOLE DOKEY, Appellant
v.
THE STATE OF TEXAS, Appellee

On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 10918-D

MEMORANDUM OPINION
Appellant, Britney Nicole Dokey, appeals from the trial court's judgment
revoking her community supervision for a conviction of tampering with a
government record. In one issue on appeal, Appellant argues that due process oflaw
requires that proof of a violation of any condition of community supervision should
be beyond a reasonable doubt rather than by a preponderance of the evidence. We
affirm.
Background Facts
The grand jury indicted Appellant on one count of tampering with a
government record. Appellant pleaded guilty and, under the terms of the plea
agreement, the trial court convicted Appellant, assessed punishment, suspended
Appellant's sentence of twenty months, and placed Appellant on community
supervision for a term of four years. Subsequently, the State filed a motion to revoke
Appellant's community supervision and alleged that Appellant had violated multiple
tenns of the conditions of her community supervision. Appellant pleaded true to all
seventeen violations. The trial court revoked Appellant's community supervision
and assessed Appellant's punishment at confinement for a term of seventeen months
and a fine of$100.
Appellant argues on appeal, "That a person can be sentenced to seventeen
months in the penitentiary for such matters, proved only by a preponderance of the
evidence, should shock the conscience." The State contends that Appellant has
waived this argument when she failed to present it to the trial court.
Analysis
The Court of Criminal Appeals has considered whether a defendant is
"entitled to have the question of [her] revocation decided beyond a reasonable
doubt" and has determined that "the standard of proof necessary to revoke probation
should [not] be as stringent as the one necessary to support the initial conviction."
Kelly v. State, 483 S.W.2d 467, 469-70 (Tex. Crim. App. 1972); Jones v. State,
No. 11-13-00075-CR, 2015 WL 1471963, at *1 (Tex. App.-Eastland Mar. 26,
2015, pet. ref'd). The State must prove a violation by a preponderance of the
evidence, and proof of anyone of the alleged violations is sufficient to uphold the
trial court's decision to revoke. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim.
App. 1984); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [PaneIOp.]
1980); Jones, 2015 WL 1471963, at *1. Because the Court of Criminal Appeals has

2
held otherwise, we decline to hold that a violation of community supervision must
be proven beyond a reasonable doubt. We overrule Appellant's sole issue.
This Court's Ruling
We affirm the judgment of the trial court.

JOHN M. BAILEY
JUSTICE

September 3,2015
Do not publish. See TEX. R. Aer. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, 1.

3
11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT

Britney Nicole Dokey, * From the 350th District
Court of Taylor County,
Trial Court No. 10918-0.

Vs. No. 11-14-00307-CR * September 3, 2015

The State of Texas, * Memorandum Opinion by Bailey, J.
(Panel consists of: Wright, C.J.,
Willson, 1., and Bailey, J.)

This court has inspected the record in this cause and concludes that
there is no error in the judgment below. Therefore, in accordance with this
court's opinion, the judgment of the trial court is in all things affirmed.

Dokey, Britney Nicole

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