                                                                        ACCEPTED
                                                                    11-17-00090-CR
                                                      ELEVENTH COURT OF APPEALS
                                                                 EASTLAND, TEXAS
                                                              6/14/2017 10:16:55 AM
                                                             SHERRY WILLIAMSON
                                                                             CLERK

               IN THE COURT OF APPEALS
              ELEVENTH JUDICIAL DISTRICT
                   EASTLAND, TEXAS                 FILED IN
                                            11th COURT OF APPEALS
                                               EASTLAND, TEXAS
                                            06/14/17 10:16:55 AM
ROBERT ALLAN JORGENSEN,
                                              SHERRY WILLIAMSON
             APPELLANT                               Clerk
V.
                      NO. 11-17-00090-CR
                     (TRIAL COURT NO. 1237)
STATE OF TEXAS,
      APPELLEE

          **************************************
        APPEALED FROM THE 39TH DISTRICT COURT
                            OF
            THROCKMORTON COUNTY, TEXAS
          **************************************
        JUDGE JERRY SHANE HADAWAY, PRESIDING
          **************************************
                   APPELLANT'S BRIEF
          **************************************

                           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


             APPELLANT REQUESTS ORAL ARGUMENT
ROBERT ALLAN JORGENSEN,
             APPELLANT
V.
                      NO. 11-17-00090-CR
                     (TRIAL COURT NO. 1237)
STATE OF TEXAS,
      APPELLEE

                     IN THE COURT OF APPEALS
                    ELEVENTH JUDICIAL DISTRICT
                         EASTLAND, TEXAS

            APPEALED FROM THE 39TH DISTRICT COURT
                            OF
               THROCKMORTON COUNTY, TEXAS

               IDENTITY OF PARTIES AND COUNSEL

       The following is a complete list of the names and addresses of all
parties to the trial court's final judgment, as well as their counsel, if any:

Hon. Shane Hadaway              Stan Brown
39th District Court             Appellant’s Attorney/ Appeal
Haskell County Courthouse       P.O. Box 3122
Haskell, Texas 79521            Abilene, Texas 79604

Michael Fouts                   Earnest W. Scott
District Attorney               Appellant’s Attorney/Trial
Haskell County Courthouse       342 Chestnut
Haskell, Texas 79521            Abilene, Texas 79602

Robert Allan Jorgensen
1014 S.W. 7th Ave.
Mineral Wells, TX. 76067




                                      ii
                                      TABLE OF CONTENTS

SUBJECT                                                                                                   PAGE

Statement of Case............................................................................................1

Statement Regarding Oral Argument………………………………………..2

Issues Presented...............................................................................................2

Statement of Facts...........................................................................................3

Summary of the Argument..............................................................................4

ISSUE NO. 1 (restated)

1.    The trial court abused its discretion by determining Appellant had
committed the offense of resisting arrest and revoking his probation. (C.R.
20-21)(II R.R.)(III R.R.).

ARGUMENT AND AUTHORITIES.............................................................6

ISSUE NO. 2 (restated)

2.    Due Process of Law mandates that proof of violation of any condition
of community supervision must be beyond a reasonable doubt rather than a
preponderance of the evidence. (C.R. 20-21)(II R.R.)(III R.R.).

ARGUMENT AND AUTHORITIES.............................................................9

Prayer............................................................................................................16

Certificate of Service.....................................................................................16

Certificate of Compliance………………………………………………….16




                                                         iii
                             INDEX OF AUTHORITIES
CASES                                                                                   PAGE

Anderson v. State, 707 S.W.2d 267 (Tex. App.-Houston [1st Dist.] 1986, no
pet.)…………………………………………………………………………..8

Bradley v. State, 608 S.W.2d 652 (Tex. Crim. App. 1980)………………...11

Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014)…………………...6

Ex Parte Carmona, 185 S.W.3d 492 (Tex. Crim. App. 2006)…………11-12

Ex Parte Doan, 369 S.W.3d 305 (Tex. Crim. App. 2012)…………………11

Finley v. State, 484 S.W.3d 926 (Tex. Crim. App. 2016)…………………6-7

In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)…………….9

In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)…...9-10

Kelly v. State, 483 S.W.2d 467 (Tex. Crim. App. 1972)………..10-11, 12-14
Leos v. State, 880 S.W.2d 180 (Tex. App.-Corpus Christi 1994, no pet.)…..8

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484
(1972)………………………………………………………………………10

Sheehan v. State, 201 S.W.3d 820 (Tex. App.-Waco 2006, no pet.)………..7

Young v. State, 622 S.W.2d 99 (Tex. Crim. App. 1981)…………………..7-8
CONSTITUTIONAL PROVISIONS, STATUTES & RULES                                             PAGE

U.S. CONST. AMENDS. V & XIV …………………………………..passim

TEX. PEN. CODE ANN §38.03…………………………………………….6
Tex. R. App. P. 9.4 ………….......................................................................16




                                               iv
ROBERT ALLAN JORGENSEN,
             APPELLANT
V.
                      NO. 11-17-00090-CR
                     (TRIAL COURT NO. 1237)
STATE OF TEXAS,
      APPELLEE

                    IN THE COURT OF APPEALS
                   ELEVENTH JUDICIAL DISTRICT
                        EASTLAND, TEXAS

                         APPELLANT'S BRIEF

                     STATEMENT OF THE CASE

      Appellant was originally indicted for third degree felony DWI, and

placed on community supervision June 13, 2014.        (C.R. at 4, 6).   On

February 17, 2017, the State filed its Motion to Revoke Community

Supervision. (C.R. at 20). Following a hearing of March 29, 2017, the trial

court revoked Appellant’s probation and assessed a sentence of five years

TDCJ-ID (II R.R. at 65)(C.R. at 25). Notice of Appeal was filed April 4,

2017. (C.R. at 29). The Trial Court’s Certification of Defendant’s Right of

Appeal was filed March 29, 2017. (C.R. at 24). Appellant seeks a reversal.
             STATEMENT REGARDING ORAL ARGUMENT

         Appellant believes oral argument would be beneficial to the Court.

The interrelated issues of whether the evidence was sufficient, even under

the preponderance standard, as well as our position Due Process of Law

should require proof beyond a reasonable doubt in probation revocation

proceedings, strongly suggest Appellant could very well have received a

lesser punishment had the trial court recognized the evidence presented

regarding the allegation Appellant resisted arrest was insufficient. That

being the most serious finding against Appellant in the revocation hearing, it

cannot be determined with any degree of certainty the trial court would have

assessed the same sentence without that finding. Consequently, we suggest

oral argument would aid the Court's decisional process by providing a more

in depth exploration of those issues.

                             ISSUES PRESENTED

                                  ISSUE ONE

         Did the trial court abuse its discretion by determining Appellant had

committed the offense of resisting arrest and revoking his probation? (C.R.

20-21)(II R.R.)(III R.R.).

                                 ISSUE TWO

         Does Due Process of Law mandate that proof of violation of any

condition of community supervision must be beyond a reasonable doubt

rather than a preponderance of the evidence?        (C.R. 20-21) (II R.R.)(III

R.R.).


                                        2
                          STATEMENT OF FACTS

      At approximately thirteen minutes and fifteen seconds into the arrest

video, the officer for the first time tells Appellant, “You’re about to catch

another charge…resisting.” State’s Exhibit No. 1, admitted and played in

the trial court at (II R.R. at 27-28)(III R.R.). It can further be seen from the

arrest video that within the next minute from that point, Appellant is secured

in the back seat of a patrol car, with there having been no further actions on

his part that might be interpreted as resisting. As to matters leading up to

that, the officer had testified as follows:

      A When I had ran the check through TCIC/NCIC, I observed
      the driver's license not eligible and he had an active warrant out
      of Wilson County. I advised my dispatcher to confirm that
      warrant. I exited my patrol unit and I walked behind Mr.
      Jorgensen. I advised him to place his hands behind his back. I
      reached up and grabbed his left wrist, and he turned and he
      goes, "What's going on? What for?" and attempted to pull away
      from me.
      Q Okay. And so describe, you know, what – what happened
      next?
      A I advised him he was under arrest and I attempted to place
      him in -- in handcuffs. And, again, he began to push and pull
      away from myself and another officer. At that time, we escorted
      him to the front of my patrol car and placed him over the hood
      of my patrol vehicle, advised him to calm down and stop
      resisting.
      Q Ultimately, were you able to effect an arrest on the
      defendant?
      A Yes, sir, I was.
      Q Do you have a dash cam video and a body cam video of this
      incident?
      A Yes, sir, I do. Q Do you have a dash cam video and a body cam
      video of this incident?
      A Yes, sir, I do. (II R.R. at 25).

      The trial court found the State had sufficiently proved allegations one,

three, and five. (II R.R. at 63-64).

                                         3
                   SUMMARY OF THE ARGUMENT

      We urge the evidence was insufficient to support the trial court’s

determination Appellant violated his probation by committing the offense of

resisting arrest. The arrest video simply does not support that. Nowhere in

the video is there seen any force used by Appellant against the officer.

Furthermore, that being the most serious finding against Appellant in the

revocation hearing, it cannot be determined with any degree of certainty the

trial court would have assessed the same sentence without that finding.

Additionally, it is possible the trial court would have determined to not

revoke absent that finding.

      In both probation revocation and juvenile delinquency proceedings

Due Process of Law has been held to require appointment of an attorney,

notice of allegations against a person, a neutral magistrate, an opportunity to

be heard, the right of confrontation, and the right against self-incrimination.

For almost fifty years, Due Process of Law has also mandated proof beyond

a reasonable doubt rather than by a preponderance of the evidence in

juvenile delinquency adjudication proceedings. As Due Process of Law

applies to probation revocation proceedings every bit as much as it applies to

juvenile delinquency proceedings; and as the fiction that a revocation

proceeding is an administrative matter, not criminal, has finally been laid to

rest; the time has come to recognize Due Process of Law mandates proof

beyond a reasonable doubt in probation revocation proceedings.




                                      4
      Although case law generally stands for the proposition proof of one

allegation will support a revocation, and allegations of Appellant having

committed the offense of Driving with Invalid License in Wilson County

and having failed to make written reports to Community Supervision were

proven, that case law should be distinguished. It cannot be determined to

any degree of certainty had the trial court only considered those allegations,

the decision would still have been to revoke and imprison for five years.

Due Process and Due Course of Law therefore demand this cause should be

reversed and remanded to the trial court for a new determination of the

proper disposition based on findings of true only as to those allegations.




                                       5
                           ISSUE NO. 1 (restated)

1.    The trial court abused its discretion by determining Appellant had
committed the offense of resisting arrest and revoking his probation. (C.R.
20-21)(II R.R.)(III R.R.).

                     ARGUMENT AND AUTHORITIES

      Both the officer’s testimony and the dash cam video show there was

no evidence Appellant used the requisite degree of force against the officer

to amount to resisting arrest. An attempted “pulling away” from the officer

who then successfully placed Appellant under arrest was insufficient to rise

to the level of proof of resisting arrest, even by the preponderance standard.

      Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014) held the

resisting arrest statute, TEX. PEN. CODE ANN §38.03, requires proof of

force directed at or in opposition to the officer:

      It is true that appellant’s conduct in displaying the gun in the
      presence of officers and refusing to put the gun down when
      ordered to do so could rationally be found to constitute a use of
      “force” within the meaning of the statute, but without an
      additional showing that the force was directed at or in
      opposition to the officers, he cannot reasonably be said to have
      used force “against” a peace officer. Furthermore, although
      appellant’s refusal to put down the gun when ordered to do so
      had the likely effect of delaying his arrest, that refusal cannot
      reasonably be understood as constituting a use of force against
      the officer by virtue of its being opposed to the officer’s goal of
      making an arrest. Likewise, appellant’s efforts to manipulate
      the situation and intimidate officers for the purpose of delaying
      his arrest by threatening to shoot himself cannot reasonably be
      found to constitute a use of force against officers. Id. at 173.

       At first glance, Finley v. State, 484 S.W.3d 926 (Tex. Crim. App.

2016) might appear to limit the Dobbs holding by upholding a resisting

arrest conviction based on “pulling away from the officers:”


                                        6
      Unlike in Dobbs, Finley used force against the officers by
      pulling against the officers’ force. In this case, pulling away
      from the officers satisfies the “in opposition or hostility to” the
      police officers requirement. In light of Dobbs ‘s broad
      definition of force, we conclude the evidence presented in this
      case was sufficient to convict Finley.

      …Here, while trying to take Finley into custody, Finley used
      the requisite force under § 38.03. Officer Connor specifically
      testified that Finley “clench[ed] up, pull[ed], and tr[ied] to pull
      his arm away from me. And I—I could not get him fully under
      control....” Officer Connor further testified that, while he pulled
      Finley’s right arm back, Finley kept pulling his arm forward
      towards his body—the opposite direction from the officers’
      efforts. Officer Connor explained that he and Officer Rollins
      then pinned Finley against a door because Finley actively
      pulled away and attempted to pull his arms in front of himself.
      Based on the record, viewed in light of Dobbs ‘s established
      definition of force, there is sufficient evidence from which a
      rational trier of fact could conclude beyond a reasonable doubt
      that Finley used force or violence against the officers. Id. at
      928-929 (Footnote omitted).

      “In this case, there was no evidence of danger of injury to the officers

from Sheehan’s passive non-cooperation, and thus there was no evidence

that Sheehan used force against the officers. In its brief, the State concedes

that the evidence is insufficient to show a use of force.” Sheehan v. State,

201 S.W.3d 820, 823 (Tex. App.-Waco 2006, no pet.) demonstrates simply

failing to fully cooperate with an arresting officer does not rise to the level

of resisting arrest. See also, Young v. State, 622 S.W.2d 99, 100 (Tex. Crim.

App. 1981)(“The State could have chosen to charge appellant with either of

these offenses, or some other offense provable on the facts of record in this

case, but instead decided to charge him for and attempt to prove the offense
of resisting arrest in his act of “pulling away” from officer Smith. We find



                                      7
that in attempting to do so, the State presented evidence which, taken as a

whole, is insufficient to support the conviction.”) Leos v. State, 880 S.W.2d

180, 184 (Tex. App.-Corpus Christi 1994, no pet.)(“The idea of violence

directed specifically toward Officer Landrum conflicts with this image of

appellant crawling on his shoulders and knees with his hands clasped to his

stomach. By attempting to crawl away, appellant invited prosecution for

evading arrest.”); and Anderson v. State, 707 S.W.2d 267, 269 (Tex. App.-

Houston [1st Dist.] 1986, no pet.)(“The State and appellant agree that the act

of shaking off an arresting officer’s detaining grip is not resisting arrest”).

      The prosecution's case fails because based on this evidence, no

rational finder of fact could have found by a preponderance of the evidence,

much less beyond a reasonable doubt, that Appellant Robert Allan Jorgensen

in any way directed force at the officer in an attempt to prevent his arrest.

To the contrary, any attempted pulling away from the officer is simply

insufficient. For these reasons, the revocation of Appellant’s Community

Supervision must be reversed and remanded to the trial court.




                                        8
                          ISSUE NO. 2 (restated)

2.    Due Process of Law mandates that proof of violation of any condition
of community supervision must be beyond a reasonable doubt rather than a
preponderance of the evidence. (C.R. 20-21)(II R.R.)(III R.R.).

                    ARGUMENT AND AUTHORITIES

      The time has come to re-visit the outdated notion a revocation of

community supervision is merely an administrative hearing in which

allegations that can send one to prison must only be proved by a

preponderance of the evidence. In view of the relatively harsh sentence

imposed, this case cries out for a re-examination of the quantum of proof

constitutionally required to revoke community supervision and imprison.

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

established that Due Process of Law applies to juvenile proceedings. In Re

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

established the same Due Process of Law mandates that a juvenile cannot be
adjudicated a delinquent except upon proof beyond a reasonable doubt rather

than by the preponderance of the evidence standard that was in use at the

time. “In sum, the constitutional safeguard of proof beyond a reasonable

doubt is as much required during the adjudicatory stage of a delinquency

proceeding as are those constitutional safeguards applied in Gault -- notice

of charges, right to counsel, the rights of confrontation and examination, and

the privilege against self-incrimination. We therefore hold, in agreement

with Chief Judge Fuld in dissent in the Court of Appeals, ‘that, where a 12-

year-old child is charged with an act of stealing which renders him liable to


                                      9
confinement for as long as six years, then, as a matter of due process . . . the

case against him must be proved beyond a reasonable doubt.’ ” Id. at 25

L.Ed.2d at 377-378.

      Soon thereafter, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33

L.Ed.2d 484 (1972) held Due Process of Law applies to parole revocations,

and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656

(1973) applied Due Process of Law to probation revocations, as well. In the

midst of that constitutionally enlightened period, along came 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. Presiding Judge Onion's

dissent 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).



                                      10
             And only recently in Fariss v. Tipps, 463 S.W.2d 176
      (Tex.1971), 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. Id. at
      474. Cf., Dansby v. State,     S.W.3d      , NO. PD-0613-12
      (Tex. Crim. App. May 8, 2012)

      Presiding Judge Onion was certainly ahead of his time in recognizing

a probation revocation proceeding is not a mere administrative proceeding.
And that legal fiction was finally put to rest for good some five years ago in

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.” The fiction of Bradley v.

State, 608 S.W.2d 652, 656 (Tex. Crim. App. 1980) that a probation

revocation is not a criminal prosecution is now officially abandoned. 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


                                     11
      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.”
      FN10



             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 insightful Dissenting Opinion in

Kelly 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]



                                      12
     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. Cf. Note, 1971 Wis.L.Rev. 648,
     654—55.

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

In Note, 1971 Wis.L.Rev. 648, 657, it is written:

      '. . . At numerous other steps in the criminal
      procedure where liberty is threatened, the
      Constitution has been construed to guarantee due
      process. This is always the case at the original
      trial. Revocation of probation is not merely a
      reconsideration of the old charges with a new
      sentence. It is the imposing of an old sentence due
      to new allegations. The chance that these new
      allegations may be wrong is just as great as the
      chance that the original charges were wrong. The
      chance for error or arbitrary justice is no less great
      the second time and ‘liberty’ no less valuable.'

    It has been held in this state that the result of a hearing to
revoke probation is not a ‘conviction’ but a finding upon which
the trial court might exercise its discretion by revoking or
continuing probation. And as noted earlier, this court has
frequently said that revocation hearings are not trials in the
constitutional sense.



                               13
           This same type of reasoning was advanced in Winship in
       support of the claim that there had been no deprivation of due
       process and that the reasonable-doubt standard of proof was not
       required in juvenile proceedings. It found favor with the New
       York Court of Appeals but was expressly rejected by the United
       States Supreme Court who noted that labels and good intentions
       do not obviate the need for criminal due process safeguards in
       juvenile courts where the possible loss of liberty is involved.

            Certainly the use of the reasonable-doubt standard in Texas
       revocation of probation proceedings need not necessarily
       disturb the earlier Texas decisions nor have any real effect on
       the flexibility or speed of the revocation hearing at which the
       fact-finding takes place. I venture to say that most trial judges
       in Texas use the reasonable-doubt standard in revocation
       proceedings anyway, whether stated in their orders of
       revocation or not. It is the burden of proof that most criminal
       trial judges are accustomed to applying. See Article 38.03,
       supra.

            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). Kelly v. State, supra, 483
       S.W.2d at 476-477.

       Against that constitutional backdrop, we shall examine the allegations

of the motion to revoke the trial court found “true.” The trial court found the

State had sufficiently proved allegations one, three, and five. (II R.R. at 63-
64).   Allegation One was that Appellant had been convicted in Wilson

County of driving with invalid license. Allegation Three was the resisting

arrest in Mineral Wells we believe to have been insufficiently proved.




                                      14
Allegation Five involved failures to make written reports in certain months

to Throckmorton County Community Supervision. (C.R. at 20-21).

      That a person can be sentenced to five years in the penitentiary for

driving with an invalid license in Wilson County and having failed to make

several written reports to Community Supervision over a three year period,

proved only by a preponderance of the evidence, should shock the

conscience. Due Process of Law absolutely requires more. This Court, we

respectfully submit, should reverse and remand for a new hearing in which

the State shall be required to prove its allegations against Appellant Robert

Allan Jorgensen beyond a reasonable doubt in compliance with the mandate

of Due Process of Law.




                                     15
                                 PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that the

Court reverse and remand this cause to the trial court for a new hearing, or,

alternatively, reverse and remand for a new hearing on punishment.

                                      Respectfully submitted,

                                      /s/ 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 14th day of June, 2017, a true and
correct copy of the above and foregoing Appellant's Brief was emailed to
Mr. Michael Fouts, 39th District Attorney, Haskell County Courthouse,
Haskell, TX 79521 at da@co.haskell.tx.us.

                                      /s/ Stan Brown
                                      STAN BROWN

                  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    3356 words; and further certify that the brief is in 14-
point Times type.

                                      /S/ Stan Brown
                                      STAN BROWN




                                     16
