ACCEPTED
07-15-00099-CR
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
12/18/2015 8:59:31 PM
Vivian Long, Clerk
07-15-00099-CR
FILED IN
PAMELA JANE WOODRUFF § IN THE COURT OF APPEALS
7th COURT OF APPEALS
§ AMARILLO, TEXAS
12/18/2015 8:59:31 PM
vs. § FOR THE
VIVIAN LONG
§ CLERK
THE STATE OF TEXAS § SEVENTH DISTRICT OF TEXAS
MOTION FOR REHEARING
To the Honorable Justices of the Court of Appeals:
COMES NOW Pamela Jane Woodruff and files this Motion
for Rehearing, respectfully showing the Court the following:
I.
The Sufficiency of the Evidence is Measured by the
Allegations in the State’s Motion to Revoke
The Court has very recently noted that, in community
supervision revocation, “the State must prove by a preponderance
of the evidence that the probationer violated a condition of
community supervision as alleged in the motion to revoke.”
Cabello v. State, 2015 WL 7165585, at *2 (Tex.App. – Amarillo,
November 10, 2015, no pet.) (not designated for publication). The
“State is bound by the allegations in the charging instrument.”
Crenshaw v. State, 378 S.W.3d 460, 465 (Tex.Crim.App. 2012).
Here, though, the State’s motion accuses explicitly that
“[t]he Defendant is delinquent in the payment of her fine in the
amount of $132.00,” and that “[t]he Defendant is delinquent in
the payment of her attorney's fees in the amount of $90.00.”
(Opinion, p. 2) (CR, p. 12, 19) (Exhibit B to the Appellant’s
opening Brief). Yet the bill of costs contradicts this by reflecting
that no payments were made at all.
The State should be bound to its pleadings, Crenshaw, 378
S.W.3d at 465, which control in revocation proceedings, Cabello,
2015 WL 7165585, at *2.
But the Opinion quotes Johnson v. State, 423 S.W.3d 385
(Tex.Crim.App. 2014), in saying that “although a bill of costs is
not required to sustain statutorily authorized and assessed court
costs, it is the most expedient, and therefore, preferable method.”
Id., at 395-6. From this evident dicta the Opinion makes the
State’s pleadings subject to the bill of costs. The sufficiency of
the evidence should be measured by the State’s motion and the
evidence of whether the allegations are true, not records prepared
by a district clerk who was likely absent at the time.
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WHEREFORE, the appellant prays the Court grant rehearing
to address this matter.
Respectfully submitted,
/s/ JOHN BENNETT
John Bennett
Post Office Box 19144
Amarillo, Texas 79114
(806) 282-4455
Fax: (806) 398-1988
State Bar Number 00785691
AppealsAttorney@gmail.com
Attorney for the appellant
CERTIFICATE OF COMPLIANCE
I hereby certify that this entire Motion contains 447 words.
/s/ JOHN BENNETT
John Bennett
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CERTIFICATE OF SERVICE
This is to certify that a copy of the above Motion for
Rehearing was served on Franklin McDonough, Esq., Gray
County District Attorney, by United States Mail, first class
delivery prepaid, to him at P.O. Box 1592, Pampa, Texas 79066-
1592, on December 18, 2015.
/s/ JOHN BENNETT
John Bennett
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