                                                                    ACCEPTED
                                                                05-15-01049-CR
                                                     FIFTH COURT OF APPEALS
                                                                DALLAS, TEXAS
                                                          12/15/2015 4:36:35 PM
                                                                     LISA MATZ
                                                                         CLERK



                     APPELLANT DOES NOT
                 REQUEST ORAL ARGUMENT
                                   FILED IN
                                       5th COURT OF APPEALS
                                            DALLAS, TEXAS
                                       12/15/2015 4:36:35 PM
           NO. 05-15-01049-CR                 LISA MATZ
       IN THE COURT OF APPEALS                  Clerk
       FIFTH DISTRICT OF TEXAS
            DALLAS, TEXAS

          **********************
           KEITH ALEXANDER,
                 Appellant
                    v.
          THE STATE OF TEXAS,
                 Appellee

          **********************
Appeal from the Criminal District Court No. 2
            Dallas County, Texas
         Trial Court No. F12-70541-I

          **********************

          APPELLANT’S BRIEF

       **********************

                ATTORNEY FOR APPELLANT:


                      GEORGE R. CONKEY
                      4347 West Northwest Hwy.
                      Suite 130, #132
                      Dallas, TX 75220
                      214/358-4494
                      FAX 214/902-9601
                      Email: conkey1945@aol.com
                      Bar No. 04661700
                  LIST OF PARTIES AND COUNSEL
APPELLANT:        Keith Alexander, TDCJ 02021336
                  Formby Unit
                  998 County Road AA
                  Plainview, Texas 79072-9641
Represented at original plea by:
Tim Jeffrey, Attorney at Law
State Bar No. 24054378
Dallas County Public Defender’s Office
Frank Crowley Courts Building
Dallas, Texas 75207

Represented at revocation hearing by:
Stanley Mays, Attorney at Law
State Bar No. 12802700
3917 W. Sublett Rd.
Arlington, Texas 76017

Represented on appeal by:
George R. Conkey, Attorney at Law
State Bar No. 04661700
4347 W. Northwest Hwy., Suite 130, #132
Dallas, Texas 75220
Email: conkey1945@aol.com

APPELLEE:         State of Texas
Represented at original plea by:
Herschel Victor Woods, State Bar No. 24048899, Assistant District Attorney

Represented at revocation hearing by:
Rontear Unique Farmer, State Bar No. 24058037, Assistant District Attorney

Represented on appeal by:
Susan Hawk or designated representative, Dallas County District Attorney
Crowley Courts Building, LB-19
133 No. Riverfront Blvd.
Dallas, Texas 75207-4313             i
                         TABLE OF CONTENTS

List of Parties and Counsel                    i

Table of Contents                              ii

Index of Authorities                           iii

Statement Regarding Oral Argument              iii

Style and Salutation                           1

Statement of the Case                          1

Issue Presented                                2

                                SOLE ISSUE

    WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
REVOKING APPELLANT’S COMMUNITY SUPERVISION BECAUSE
THE STATE FAILED TO MEET ITS BURDEN OF PROOF SHOWING
THAT HE VIOLATED A CONDITION OF HIS COMMUNITY
SUPERVISION ALLEGED IN STATE’S MOTION TO ADJUDICATE.

Statement of Facts                              2

Issue Restated                                  5
             Summary of the Argument            5
             Argument and Authorities           5

Prayer                                          8

Certificate of Service                          8

Certificate of Compliance                          9

                                        ii
                           INDEX OF AUTHORITIES



Case Law:

Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980)                 7

Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981)     6

Pickett v. State, 542 S.W.2d 868, 870 (Tex. Crim. App. 1976)                 7

Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana 2003, pet. ref'd) 6

Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006)              6




            STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Tex. R. App.Proc. 39.8, counsel waives oral argument herein

since the facts and legal arguments are adequately presented in the brief.




                                         iii
                             *********************

                             APPELLANT’S BRIEF

                            **********************


TO THE HONORABLE COURT OF APPEALS:

      Comes now Keith Alexander, Appellant in the above styled and numbered

cause, and respectfully submits this Brief in such cause.

NOTE: The record is referred to as:
“CR” clerk's record, one volume.
“RR1-RR4” reporter's record, four volumes.

                          STATEMENT OF THE CASE

      Appellant was charged by affidavit and information for assault with bodily

injury, family violence enhanced, and the date of the offense being December 17,

2012. CR:18. Appellant entered an agreed plea agreement, waived his right to a

jury trial (CR:21, 22), and entered a plea of guilty before the court. RR2:06.

Appellant signed and stipulated to a judicial confession. CR:15, RR2:06. The

court admonished the appellant as to the range of punishment, accepted his plea,

and found the evidence sufficient for a finding of guilt, but deferred a finding of

guilt, followed the plea agreement, and placed appellant on probation for three (3)

years and assessed a fine of $2,000. CR:23, RR2:07. The appellant was served

                                          1
with conditions of probation. CR:26-27. Subsequently, the State filed motion to

proceed to adjudication of guilt. CR:38. Appellant entered a plea of “not true” to

the allegations in the motion in an open plea to the court. RR3:07+. The trial court

heard evidence, granted the State’s motion, found appellant guilty of the offense

and set punishment at ten years confinement in the penitentiary. CR:42, RR4:58.

Sentence was imposed and the court entered judgment on August 21, 2015.

Appellant timely filed notice of appeal. CR:47, 51.



                              ISSUE PRESENTED

    WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
REVOKING APPELLANT’S COMMUNITY SUPERVISION BECAUSE
THE STATE FAILED TO MEET ITS BURDEN OF PROOF SHOWING
THAT HE VIOLATED A CONDITION OF HIS COMMUNITY
SUPERVISION ALLEGED IN STATE’S MOTION TO ADJUDICATE.


                           STATEMENT OF FACTS

      The trial court held a revocation hearing based on State’s motion to

proceed to an adjudication of guilt. RR vols. 3 & 4, CR-38.        Appellant

entered plea of “not true” to the motion. RR3-06. The order by which he

was placed on deferred adjudication community supervision provided the



                                      2
following conditions (CR26-27):

      (a) Commit no offense against the laws of this State or any other
      State or the United States …

      (h) Report … upon release … to arrange payment of Court Costs,
      Fine, and, if assessed Attorney Fees.

      (j) Pay a Supervision fee of $60.00 per month …

      (k) Participate in … Dallas Area Crime Stoppers Inc. by making a
      monetary contribution of $50.00 … within 90 days.

      (n) Submit a urine sample, paying the total cost of such urinalysis of
      $200.00 payable at $10.00 monthly.

Another condition imposed on Appellant yet not listed in the State’s motion was:

      (q) Do not have any form of contact, be it in person, by mail,
      telephone or any form of communication with AMANDA
      BIRKINSHA directly or indirectly for the duration of the Supervision
      Term.

      The State alleged that he violated Conditions (a), (h), (j), (k), and (n) in its

motion. At trial the State only offered evidence as to condition (a) which was

stated as:

      (a) Keith Alexander did violate condition (a) by violating the laws of
      the State of Texas in that on or about 1/18/2015 in Dallas County,
      Texas, he did commit the offense of Aggravated Assault/Deadly
      Weapon.

      Amanda Birkinsha, “Amanda”, testified she was in a relationship with

Appellant 2 years ago which produced a daughter. RR3:08. She and appellant

                                          3
were not now together but she wanted to form a healthy co-parenting relationship

with Appellant. RR3:09. As a result of a prior disturbance in December 2014,

Appellant was given temporary custody of their daughter. RR3:29. On January 18,

2015, Appellant came to Amanda’s apartment and they went shopping, cooked

dinner, and started talking about their plans. RR3:11-12. Appellant became upset

with Amanda’s dating and raising of their daughter. Amanda stated Appellant

started slapping her and choking her. RR3:15, 17. She said she lost consciousness.

RR3:18. She said he got a knife and put it up to my neck, eyes and lips. RR3:19.

She stated he continued to assault her most of the night. RR3:21. She recalled they

fell asleep first on the couch and then on her bed. RR3:21-22. When she woke up

the next day, she was in a lot of pain and felt she needed to go to an emergency

room. RR3:23-24. Appellant then drove her to a phone store, to some of his

relatives, and eventually to a hospital in Mesquite. RR3: 25-26. When she was

released, he drove her to her apartment. RR3:32. The next day, a friend of

Amanda’s, took her back to the hospital and to the police. RR3:32-34.

      Appellant testified admitting he went to Amanda’s apartment and went

shopping and cooked dinner. RR4:47. He denied he assaulted her or spent the

night at her apartment. Appellant stated he came back to her apartment the next

                                        4
day and took her to the hospital. RR4:48.



                               SOLE ISSUE, Restated

    WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
REVOKING APPELLANT’S COMMUNITY SUPERVISION BECAUSE
THE STATE FAILED TO MEET ITS BURDEN OF PROOF SHOWING
THAT HE VIOLATED A CONDITION OF HIS COMMUNITY
SUPERVISION ALLEGED IN STATE’S MOTION TO ADJUDICATE.


                         SUMMARY OF THE ARGUMENT
                                (Sole Issue)

         The trial court abused its discretion in revoking Appellant’s community

supervision even though there was evidence to show that Appellant committed the

offense of aggravated assault because the State presented evidence of Appellant

violating a condition of probation that was not alleged in the State’s motion to

proceed to adjudication, condition (q), which the trial court may have based its

ruling on without stating which condition(s) Appellant violated in its adjudication

order.

                        ARGUMENT AND AUTHORITIES
                               (Sole Issue)

         In an adjudication hearing, the State must prove by a preponderance of the


                                           5
evidence that a defendant violated the terms of his community supervision.


Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006).                    A

preponderance of the evidence means "that greater weight of the credible evidence

which would create a reasonable belief that the defendant has violated a condition

of his probation." Rickels, 202 S.W.3d at 763-64. It is recognized that the trial

court has broad discretion in the proceedings, the general standards for reviewing

the sufficiency of the evidence do not apply. Pierce v. State, 113 S.W.3d 431, 436

(Tex. App.—Texarkana 2003, pet. ref'd). The trial court is held to an abuse of

discretion standard examining the evidence in a light most favorable to its order.

Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). The

trial judge is the trier of fact and the arbiter of the credibility of the testimony

during a hearing on a motion to adjudicate. See Garrett, 619 S.W.2d at 174.


      At the revocation hearing, the State offered evidence in support of the

alleged violation of condition (a) that Appellant committed the offense of

aggravated assault. This evidence by the victim Amanda was contested by the

testimony of Appellant. The State then decided to provide evidence that Appellant

violated a different condition of probation, namely, condition (q) that Appellant


                                         6
have no contact with Amanda. Although Appellant admitted he had contact with


Amanda, this condition was not listed in State’s Motion to Proceed with an

Adjudication of Guilt. CR:38. After brief argument by State and Appellant, the

Court simply ruled:

      “The Court will go ahead and find the Defendant guilty of the offense
      of assault as charged in the indictment.” RR4:59.

The Court then imposed a sentence of 10 years confinement with no findings as to

what condition(s) of probation the Appellant may have violated. RR4:60.

      Probation may not be revoked upon a finding of any violation of any

probationary condition other than that alleged in the motion to revoke or

necessarily included within the allegations contained in the motion. Caddell v.

State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980); Pickett v. State, 542 S.W.2d

868, 870 (Tex. Crim. App. 1976). Here, the State presented evidence and argued,

in addition to the alleged assault, that Appellant violated his probation by having

contact on numerous occasions with Amanda. RR4:59. This condition of contact

with the witness was not alleged in the State’s motion and may well have been the

basis of the Court’s order of adjudication. The Court abused its discretion on

revoking Appellant’s probation on the basis of violating a condition not asserted by

                                         7
the State.

                                    PRAYER

      WHEREFORE, premises considered, Appellant prays the Court order a new

revocation hearing or remand to the trial court to make findings as to what

condition(s) of probation the Court found to be violated in revoking Appellant’s

probation.                                   RESPECTFULLY SUBMITTED:

                                             /s/ George R. Conkey
                                             George R. Conkey
                                             Attorney for Appellant
                                             4347 West Northwest Hwy.
                                             Suite 130, #132
                                             Dallas, TX 75220
                                             214/358-4494
                                             FAX 214/902-9601
                                             Bar No. 04661700

                            CERTIFICATE OF SERVICE

      I, the undersigned attorney, do hereby certify that a true and correct copy of
the above Brief was served on the State of Texas, by email to the District Attorney
of Dallas County, Appellate Section Chief at lori.ordiway@dallascounty.org on
December 15, 2015.

      I further certify that I have mailed a copy of the above Brief by first class
mail, postage paid, to Appellant, Keith Alexander, TDCJ 02021336, Formby Unit,
998 County Road AA, Plainview, Texas 79072-9641, on the same date.

                                             /s/ George R. Conkey
                                             George R. Conkey


                                         8
                        CERTIFICATE OF COMPLIANCE

      I further certify that the word count of this document is 2,006 based on the
word count of the computer program.
                                             /s/ George R. Conkey
                                             George R. Conkey




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