                                                                                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




                                                          3
                              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

                                                5
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

                                              6
      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

                                             7
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.




                                                8
                                     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.



                                               9
      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

                                            11
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


                                                12
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




                                                13
                               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




                                                14
