                                                                                 ACCEPTED
                                                                             06-15-00041-CR
                                                                  SIXTH COURT OF APPEALS
                                                                        TEXARKANA, TEXAS
                                                                       6/16/2015 10:57:09 AM
                                                                            DEBBIE AUTREY
                                                                                      CLERK




                 ORAL ARGUMENT WAIVED
                                                            FILED IN
                                                     6th COURT OF APPEALS
                  CAUSE NO. 06-15-00041-CR             TEXARKANA, TEXAS
                                                     6/16/2015 10:57:09 AM
                                                          DEBBIE AUTREY
                             IN THE                           Clerk

                     COURT OF APPEALS

     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________

              JESSICA MARIE BRIGGLE, Appellant

                                V.

                 THE STATE OF TEXAS, Appellee
____________________________________________________________

      ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
       LAMAR COUNTY, TEXAS; TRIAL COURT NO. 23274;
              HONORABLE ERIC CLIFFORD, JUDGE
____________________________________________________________

      APPELLEE’S (STATE’S) BRIEF
____________________________________________________________


                         Gary D. Young
                Lamar County and District Attorney
                   Lamar County Courthouse
                         119 North Main
                       Paris, Texas 75460
                         (903) 737-2470
                      (903) 737-2455 (fax)


                       ATTORNEYS FOR THE STATE OF TEXAS
                IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and

counsel is not required to supplement or correct the appellant’s list.




                                       -i-
                                    TABLE OF CONTENTS

                                                                                             PAGE NO.:

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . .                                           i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                          ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . .                              iii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . .                               iv

STATEMENT REGARDING ORAL ARGUMENT . . . . . . .                                                     vi

ISSUE PRESENTED IN REPLY. . . . . . . . . . . . . . . . . . . . . . .                              viii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .                           2

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . .                                      4

ARGUMENT AND AUTHORITIES

         SOLE ISSUE PRESENTED IN REPLY: THE TRIAL
         COURT DID NOT ABUSE ITS DISCRETION IN
         REVOKING THE APPELLANT’S COMMUNITY
         SUPERVISION BECAUSE UNOBJECTED-TO HEARSAY
         CONSTITUTED SUFFICIENT EVIDENCE IN SUPPORT
         OF AN ORDER REVOKING COMMUNITY SUPERVISION,
         AND THE TRIAL COURT COULD HAVE REASONABLY
         FOUND FROM STATE’S EXHIBIT 1 THAT BRIGGLE
         VIOLATED A CONDITION OF HER COMMUNITY
         SUPERVISION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           9



                                                      -ii-
                                                                           PAGE NO.:

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . .                10

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . .          10




                                           -iii-
                                 INDEX OF AUTHORITIES

CASES:                                                                                   PAGE:

Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim.
     App. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          6

Ex parte Brown, 875 S.W.2d 756, 761 (Tex. App.--Fort
      Worth 1994, orig. proceeding) . . . . . . . . . . . . . . . . . . .                    6

Fernandez v. State, 805 S.W.2d 451, 455-56, 457 n. 1 (Tex.
     Crim. App.1991) (Baird, J., concurring) . . . . . . . . . . .                           7

Frazier v. State, 600 S.W.2d 271 (Tex. Crim. App. 1979). . .                                 7

Garcia v. State, 880 S.W.2d 497, 500 (Tex. App.--Corpus
      Christi 1994, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . .             7

In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.--Texarkana
        2003, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    5,6,8

Jones v. State, 112 S.W.3d 266, 269 (Tex. App.--Corpus
       Christi 2003, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . .            7

Lively v. State, 338 S.W.3d 140, 143 (Tex. App.--
       Texarkana 2011, no pet.) . . . . . . . . . . . . . . . . . . . . . . .             5,6,8

Marsh v. State, 343 S.W.3d 475, 479 (Tex. App.--Texarkana
     2011, pet. ref’d) (Justice Moseley) . . . . . . . . . . . . . . . .                     6

Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App.
     [Panel Op.] 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             6

Rickels v. State, 202 S.W.3d 759, 763, 764 (Tex. Crim.
      App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      5,6,8

Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim.
     App. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          6

                                                    -iv-
STATUTES:                                                                           PAGE:

TEX. R. APP. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     4,8

TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . .           i




                                                  -v-
                      STATEMENT OF THE CASE

      This is a revocation case.

      After the trial court placed Briggle on community supervision for four

counts of forgery of a financial instrument (CR, pgs. 30-31), the State moved

for an adjudication of guilt. See CR, pgs. 57-58. Upon the conclusion of a

revocation hearing, the trial court revoked Briggle’s community supervision

and found her guilty of forgery of a financial instrument, Counts 1, 2, 3 and

4. See RR, Vol. 3, pg. 66. The trial court then sentenced Briggle to 24

months confinement in the Texas Department of Criminal Justice but

suspended that sentence “to place her on probation.” See RR, Vol. 3, pg. 66.

The trial court required Briggle “to attend and successfully complete the

SAFP program and any aftercare that is required.” See RR, Vol. 3, pg. 66.

      From the trial court’s separate judgments adjudicating guilt as to each

count (CR, pgs. 74-75, 76-77, 78-79, 80-81), Briggle timely filed her notice

of appeal. See CR, pg. 73. By this appeal, Briggle brought a single issue.




                                     -vi-
           STATEMENT REGARDING ORAL ARGUMENT

      The State of Texas will waive oral argument. See Tex. R. App. P.

38.1(e), 38.2(a)(1).




                                 -vii-
           SOLE ISSUE PRESENTED IN REPLY

SOLE ISSUE PRESENTED IN REPLY: THE TRIAL COURT DID
NOT ABUSE ITS DISCRETION IN REVOKING THE APPELLANT’S
COMMUNITY SUPERVISION BECAUSE UNOBJECTED-TO
HEARSAY CONSTITUTED SUFFICIENT EVIDENCE IN SUPPORT
OF AN ORDER REVOKING COMMUNITY SUPERVISION, AND
THE TRIAL COURT COULD HAVE REASONABLY FOUND FROM
STATE’S EXHIBIT 1 THAT BRIGGLE VIOLATED A CONDITION
OF HER COMMUNITY SUPERVISION.




                        -viii-
                       CAUSE NO. 06-15-00041-CR

                                   IN THE

                             COURT OF APPEALS

     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________

                  JESSICA MARIE BRIGGLE, Appellant

                                      V.

                 THE STATE OF TEXAS, Appellee
____________________________________________________________

     ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
      LAMAR COUNTY, TEXAS; TRIAL COURT NO. 23274;
             HONORABLE ERIC CLIFFORD, JUDGE
____________________________________________________________

       APPELLEE’S (STATE’S) BRIEF
____________________________________________________________

TO HONORABLE SIXTH COURT OF APPEALS:

      COMES NOW, the State of Texas, by and through its Lamar County

and District Attorney’s Office, files this its Appellee’s Brief under Rule 38.2

of the Texas Rules of Appellate Procedure.

      Unless otherwise indicated, Jessica Marie Briggle will be referred to

as “Briggle” or “the appellant.” The State of Texas will be referred to as

“the State” or “appellee.”


                                      -1-
                           STATEMENT OF FACTS

      Indictment for Forgery of a Financial Instrument, and Plea.

      On July 20, 2009, a grand jury in Lamar County return an original

indictment that charged Biggle with a state-jail-felony offense of forgery of

a financial instrument. See CR, pgs. 5-8. The original indictment included

several counts for separate financial instruments (i.e. checks) on separate

dates. See CR, pgs. 5-8.

      Subsequently, Biggle agreed to a plea bargain agreement. See CR,

pgs. 18-28. As part of that agreement, Briggle entered a plea of “guilty”

(RR, Vol. 2, pg. 7), and the trial court placed Biggle on deferred community

supervision for three (3) years with standard terms and conditions of

community supervision. See CR, pgs. 30-31. On February 19, 2010, the

trial court signed its four orders of deferred adjudication for each of the

counts, as alleged in the indictment. See CR, pgs. 33-34, 35-36, 37-38, 39-

40.

      Motion to Proceed with Adjudication and Hearing.

      In due course, the State filed a motion to proceed with an adjudication

of guilt on December 19, 2014. See CR, pgs. 57-58. On February 17, 2015,

the trial court presided over a revocation hearing. See RR, Vol. 3, pg. 1.


                                     -2-
During the hearing, Briggle entered a plea of “not true” to all of the State’s

allegations. See RR, Vol. 3, pg. 7.

      As its first witness, the State called Kelly Thrasher, a community

supervision officer for Lamar County that was familiar with Briggle. See

RR, Vol. 3, pgs. 7-8. During her testimony, the State offered State’s Exhibit

1, which the trial court admitted over “No objection, Your Honor.” See RR,

Vol. 3, pg. 13.

      Upon the conclusion of the hearing, the trial court revoked the

appellant’s community supervision and found Briggle guilty of forgery of a

financial instrument, Counts 1, 2, 3 and 4. See RR, Vol. 3, pg. 66. The trial

court then sentenced Briggle to 24 months confinement in the Texas

Department of Criminal Justice, but the trial court suspended that sentence

“to place her on probation.” See RR, Vol. 3, pg. 66. The trial court required

Briggle “to attend and successfully complete the SAFP program and any

aftercare that is required.” See RR, Vol. 3, pg. 66. In open court, Briggle

was “going to present my notice of appeal.” See RR, Vol. 3, pg. 66.

     Trial Court’s Judgments Adjudicating Guilt and Notice of
Appeal.

      On February 17, 2015, the trial court signed its judgments

adjudicating guilt, as to each count. See CR, pgs. 74-75, 76-77, 78-79, 80-

                                      -3-
81. Briggle timely filed her notice of appeal. See CR, pg. 73.

      Proceedings in this Court.

      On or about February 20, 2015, the appellant filed her notice of appeal

in this Court. On or about April 15, 2015, the district clerk of Lamar County

filed the Clerk’s Record. The official court reporter filed the Reporter’s

Record on or about May 4, 2015.

      The appellant filed her brief on or about May 18, 2015. The State

filed, or will be filing, its brief on or before June 17, 2015.

                    SUMMARY OF THE ARGUMENT

      The appellant’s sole issue on appeal should be overruled. This Court

should affirm the trial court’s final judgments of conviction because

unobjected-to hearsay testimony from Kelly Thrasher, a community

supervision officer for Lamar County, constituted sufficient evidence in

support of the trial court’s judgments adjudicating guilt. See CR, pgs. 74-75,

76-77, 78-79, 80-81.

      Even if the trial court erred in considering unobjected-to hearsay

evidence, the trial court admitted State’s Exhibit 1 over “No objection, Your

Honor” (RR, Vol. 3, pg. 13); and thus, Briggle waived any objection to the

admission of State’s Exhibit 1. See Tex. R. App. P. 33.1(a). From State’s


                                        -4-
Exhibit 1, the trial court could have found, by a preponderance of the

evidence, that Briggle violated a condition of her community supervision

(i.e. condition 23). Therefore, the trial court’s error, if any, in considering

unobjected-to hearsay evidence was harmless.

                   ARGUMENT AND AUTHORITIES

SOLE ISSUE PRESENTED IN REPLY: THE TRIAL COURT DID
NOT ABUSE ITS DISCRETION IN REVOKING THE APPELLANT’S
COMMUNITY SUPERVISION BECAUSE UNOBJECTED-TO
HEARSAY CONSTITUTED SUFFICIENT EVIDENCE IN SUPPORT
OF AN ORDER REVOKING COMMUNITY SUPERVISION, AND
THE TRIAL COURT COULD HAVE REASONABLY FOUND FROM
STATE’S EXHIBIT 1 THAT BRIGGLE VIOLATED A CONDITION
OF HER COMMUNITY SUPERVISION.

      A.     Standard of Review: Abuse of Discretion.

      This Court will review the trial court’s decision to revoke community

supervision for an abuse of discretion. See Lively v. State, 338 S.W.3d 140,

143 (Tex. App.--Texarkana 2011, no pet.) (citing Rickels v. State, 202

S.W.3d 759, 763 (Tex. Crim. App. 2006); In re T.R.S., 115 S.W.3d 318, 320

(Tex. App.--Texarkana 2003, no pet.)). The trial court does not abuse its

discretion if the order revoking community supervision is supported by a

preponderance of the evidence; in other words, the greater weight of the

credible evidence would create a reasonable belief that the defendant has

violated a condition of his or her community supervision. See Lively, 338

                                      -5-
S.W.3d at 143 (citing Rickels, 202 S.W.3d at 763-64; T.R.S., 115 S.W.3d at

320).

        “The State is required to sustain the burden of proving the allegations

of the motion to revoke probation.” See Scamardo v. State, 517 S.W.2d 293,

298 (Tex. Crim. App. 1974). In conducting the review, this Court must view

the evidence in the light most favorable to the trial court’s ruling. See

Lively, 338 S.W.3d at 143 (citing Cardona v. State, 665 S.W.2d 492, 493

(Tex. Crim. App. 1984)).

        “[I]f the trial court’s ruling can be sustained on an independent ground

the appellant must challenge all of the grounds on appeal.” See Marsh v.

State, 343 S.W.3d 475, 479 (Tex. App.--Texarkana 2011, pet. ref’d) (Justice

Moseley) (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App.

[Panel Op.] 1980) (defendant must challenge each ground on which the trial

court relies on to rule against the defendant because one sufficient ground

supports trial court’s order)). “Proof of any single alleged violation of a

condition of probation is sufficient to support revocation.” See Ex parte

Brown, 875 S.W.2d 756, 761 (Tex. App.--Fort Worth 1994, orig.

proceeding).




                                       -6-
      B.    The Trial Court Did Not Abuse its Discretion in Revoking
Briggle’s Community Supervision.

     1.     Unobjected-to Hearsay Constituted Sufficient Evidence in
Support of an Order Revoking Probation.

      In her brief, Briggle essentially argued that unobjected-to hearsay

could not be the basis of a probation revocation. See Appellant’s Brief, pg. 7

(citing Frazier v. State, 600 S.W.2d 271 (Tex. Crim. App. 1979)). However,

the Texas Court of Criminal Appeals has recognized the probative value of

inadmissible hearsay in probation revocation proceedings. See Fernandez,

805 S.W.2d 451, 457 n. 1 (Tex. Crim. App. 1991) (Baird, J., concurring).

      Since Frazier, “[t]he trial court may consider unobjected-to hearsay

testimony no differently than other testimony that the fact finder may either

accept or reject.” See Jones v. State, 112 S.W.3d 266, 269 (Tex. App.--

Corpus Christi 2003, no pet.) (citing Fernandez v. State, 805 S.W.2d 451,

455-56 (Tex. Crim. App. 1991); Garcia v. State, 880 S.W.2d 497, 500 (Tex.

App.--Corpus Christi 1994, no pet.)).

      2.    The Trial Court Did Not Abuse its Discretion in Revoking
Briggle’s Community Supervision.

      Because the fact finder could either accept or reject unobjected-to

hearsay testimony from Kelly Thrasher, see id, the trial court could have

found, by the greater weight of the credible evidence, that Briggle had

                                        -7-
violated the conditions of her community supervision.         See Lively, 338

S.W.3d at 143 (citing Rickels, 202 S.W.3d at 763-64; T.R.S., 115 S.W.3d at

320). Therefore, the trial court did not abuse its discretion in revoking

Briggle’s community supervision. See Lively, 338 S.W.3d at 143.

      Even assuming the trial court could not rely on the hearsay testimony

of Kelly Thrasher, the trial court still did not abuse its discretion because it

could have found that Briggle had violated the conditions of her community

supervision from State’s Exhibit 1 solely. During the revocation hearing,

the State offered Exhibit 1 into evidence and Briggle stated, “No objection,

Your Honor.” See RR, Vol. 3, pg. 13. See Tex. R. App. P. 33.1(a). By

stating “no objection,” the trial court properly admitted State’s Exhibit 1

(ORDER FOR DRUG TEST), which Briggle signed. See State’s Exhibit 1.

By a check mark dated July 4, 2014, Briggle acknowledged that she had

“used illegal drugs in the last 3 weeks” and she listed “Meth 2 wks ago.”

See State’s Exhibit 1.

      From State’s Exhibit 1 only, which was admitted over no objection,

the trial court could could have found that Briggle had violated the

conditions of her community supervision. Even if the trial court erred in

relying on unobjected-to hearsay testimony from Kelly Thrasher, Briggle


                                      -8-
could not show any harm because the trial court had properly-admitted

evidence that would have sufficiently supported its revocation order.

Accordingly, the appellant’s sole issue on appeal should be overruled, and

the final judgment of the trial court should be affirmed.

                                  PRAYER

       WHEREFORE, PREMISES CONSIDERED, the State of Texas prays

that upon final submission of the above-styled and numbered causes without

oral argument, this Court affirm the trial court’s final judgment of conviction

in all respects; adjudge court costs against the appellant; and for such other

and further relief, both at law and in equity, to which it may be justly and

legally entitled.

                          Respectfully submitted,

                          Gary D. Young
                          Lamar County & District Attorney
                          Lamar County Courthouse
                          119 North Main
                          Paris, Texas 75460
                          (903) 737-2470
                          (903) 737-2455 (fax)

                          By:________________________________
                               Gary D. Young, County Attorney
                               SBN# 00785298
                               gyoung@co.lamar.tx.us

                          ATTORNEYS FOR THE STATE OF TEXAS

                                      -9-
                  CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

the “Appellee’s (State’s) Brief” was a computer-generated document and

contained 2475 words--not including the Appendix, if any. The undersigned

attorney certified that he relied on the word count of the computer program,

which was used to prepare this document.


                                      ______________________________
                                      GARY D. YOUNG
                                      gyoung@co.lamar.tx.us

                     CERTIFICATE OF SERVICE

      This is to certify that in accordance with Tex. R. App. P. 9.5, a true

copy of the Appellee’s (State’s) Brief has been served on the 16th day of

June, 2015 upon the following:

            Charles England Perry
            1101 Main Street
            P.O. Box 720
            Commerce, TX 75429


                                      ______________________________
                                      GARY D. YOUNG
                                      gyoung@co.lamar.tx.us




                                    -10-
