                                                                                     ACCEPTED
                                                                                06-14-00164-CR
                                                                      SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                           2/9/2015 10:47:26 AM
                                                                                DEBBIE AUTREY
                                                                                         CLERK

                                     ORAL ARGUMENT WAIVED

                  CAUSE NOS. 06-14-00164-CR                 FILED IN
                                                     6th COURT OF APPEALS
                                                       TEXARKANA, TEXAS
                            IN THE                   2/10/2015 10:47:26 AM
                                                          DEBBIE AUTREY
                     COURT OF APPEALS                         Clerk


     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
___________________________________________________________

          CHRISTOPHER NEAL McGONIGAL, Appellant

                               V.

                 THE STATE OF TEXAS, Appellee
___________________________________________________________

      ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
   RED RIVER COUNTY, TEXAS; HONORABLE ERIC CLIFFORD;
                  TRIAL COURT NO. CR01907
___________________________________________________________

          APPELLEE’S (STATE’S) BRIEF
____________________________________________________________

                    Val J. Varley, County and District Attorney
                    Red River County and District Attorney’s Office
                    Red River County Courthouse
                    400 North Walnut Street
                    Clarksville, Texas 75426-4012
                    (903) 427-2009
                    (903) 427-5316 (Fax)

                    ATTORNEYS FOR THE STATE OF TEXAS




                                1
                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.




                                       2
                  TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL       2

TABLE OF CONTENTS                     3

INDEX OF AUTHORITIES                  4

STATEMENT OF THE CASE                 7

STATEMENT REGARDING ORAL ARGUMENT     8

INTRODUCTION                          9

STATEMENT OF FACTS                    10

SUMMARY OF THE ARGUMENT               15

ARGUMENT AND AUTHORITIES              16

PRAYER                                27

CERTIFICATE OF COMPLIANCE             28

CERTIFICATE OF SERVICE                28




                            3
                       INDEX OF AUTHORITIES

TEXAS CASES:                                                       PAGE(S):

Armstrong v. State,
472 S.W.2d 150 (Tex. Crim. App. 1971).                             15-16, 18

Barrientez v. State,
500 S.W.2d 474 (Tex. Crim. App. 1973).                                   23

Bradley v. State,
608 S.W.2d 652 (Tex. Crim. App. 1980).                                   17

Cardona v. State,
665 S.W.2d 492 (Tex. Crim. App. 1984).                                   16-17

Chacon v. State,
558 S.W.2d 874 (Tex. Crim. App. 1977).                                   18

Davis v. State,
673 S.W.2d 956 (Tex. App.--San Antonio 1984, no pet.).                   23

Davidson v. State,
422 S.W.3d 750 (Tex. App.--Texarkana 2013, pet. ref’d).                  24

Ellerbe v. State,
80 S.W.3d 721 (Tex. App.--Houston [1st Dist.] 2002, pet. ref’d).         19-20

Ford v. State,
179 S.W.3d 203 (Tex. App.--Houston [14th Dist.] 2005, pet. ref’d),
cert. denied, 549 U.S. 922, 127 S. Ct. 281, 166 L. Ed. 2d 215 (2006). 25-26

Jackson v. State,
822 S.W.2d 18 (Tex. Crim. App. 1990) (en banc).                          26

Lively v. State,
338 S.W.3d 140 (Tex. App.--Texarkana 2011, no pet.).                     17, 24




                                      4
Lund v. State,
366 S.W.3d 848 (Tex. App.--Texarkana 2012, pet. ref’d).               25

Martinez v. State,
493 S.W.2d 954 (Tex. Crim. App. 1973).                                18

Martinez v. State,
635 S.W.2d 762 (Tex. App.--Corpus Christi 1982, no pet.).             23

Meyer v. State,
366 S.W.3d 728 (Tex. App.--Texarkana 2012, no pet.).      16-17, 20-22, 24

Moore v. State,
11 S.W.3d 495 (Tex. App.--Houston [14th Dist.] 2000, no pet.).        17

Osbourn v. State,
92 S.W.3d 531 (Tex. Crim. App. 2002).                                 25

Pierce v. State,
113 S.W.3d 431 (Tex. App.--Texarkana 2003, pet. ref’d).               17-18

Powell v. State,
63 S.W.3d 435 (Tex. Crim. App. 2001).                                 25

Prince v. State,
503 S.W.2d 777 (Tex. Crim. App. 1974).                                22

Royale, Donald Oreste v. The State of Texas,
No. 06-02-00170-CR, 2003 Tex. App. LEXIS 4787
(Tex. App.--Texarkana, June 6, 2003, pet. ref’d).                     11

Tucker v. State,
751 S.W.2d 919 (Tex. App.--Fort Worth 1988, no pet.).                 20

Wright v. State,
523 S.W.2d 704 (Tex. Crim. App. 1975).                                24



TEXAS CODE(S):                                                   PAGE(S):

                                     5
Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 1989).       19-20

Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(C).         11

Tex. Penal Code Ann. § 21.11 (West 2011).                     10


OTHER CODE(S):                                            PAGE(S):

Kan. Stat. Ann. § 8-1567(a), (b)(1) (2007 Supp.).             21


TEXAS RULES OF APPELLATE PROCEDURE:                       PAGE(S):

Tex. R. App. P. 9.4(i)(3).                                    28

Tex. R. App. P. 9.5.                                          28

Tex. R. App. P. 38.2.                                         8, 9

Tex. R. App. P. 38.2(a)(1)(A).                                2




                                      6
                      STATEMENT OF THE CASE

      This is an appeal from the trial court’s judgment adjudicating guilt and

revoking McGonigal’s community supervision. See CR, pgs. 118-119.

      A grand jury in Red River County returned an original indictment that

charged McGonigal with the felony offense of indecency with a child. See

CR, pgs. 9-10. Subsequently, the trial court signed an order of deferred

adjudication.   See CR, pgs. 65-66.       Later, the State filed a motion to

proceed with adjudication, which was resolved by a contested hearing, and

the trial court signed an order continuing probation and modifying the terms

of probation. See CR, pgs. 102-103.

      On May 9, 2014, McGonigal allegedly committed an offense of

driving under the influence of drugs or alcohol in Montgomery County,

Kansas; and the State filed another motion to proceed with adjudication.

See CR, pgs. 109-112. After a hearing, the trial court revoked McGonigal’s

community supervision and sentenced him to 20 years in the Texas

Department of Criminal Justice, Institutional Division. See RR, pg. 18.

      From the trial court’s final judgment adjudicating guilt (CR, pgs.

118-119), McGonigal filed his notice of appeal. See CR, pg. 123. By this

appeal, McGonigal brought two (2) issues/points of error.




                                      7
           STATEMENT REGARDING ORAL ARGUMENT

      The State will waive oral argument in the above-styled and numbered

appellate cause. See Tex. R. App. P. 38.2(a).




                                     8
                        CAUSE NO. 06-14-00164-CR

                                    IN THE

                            COURT OF APPEALS

     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
___________________________________________________________

             CHRISTOPHER NEAL McGONIGAL, Appellant

                                       V.

                 THE STATE OF TEXAS, Appellee
___________________________________________________________

      ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
   RED RIVER COUNTY, TEXAS; HONORABLE ERIC CLIFFORD;
                  TRIAL COURT NO. CR01907
___________________________________________________________

             APPELLEE’S (STATE’S) BRIEF
 ____________________________________________________________

      COMES NOW, the State of Texas, by and through the elected County

and District Attorney of Red River County, Val J. Varley, and the County and

District Attorney’s Office of Red River County, files this Appellee’s Brief in

accordance with Rule 38.2 of the Rules of Appellate Procedure.

      Unless otherwise indicated, Christopher Neal McGonigal will be

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

referred to as “the State” or “the appellee.”




                                        9
                        STATEMENT OF FACTS

     The Trial Court Placed McGonigal on Deferred Community
Supervision, But the State Filed a Motion to Proceed with Adjudication.

      On September 27, 2012, a grand jury in Red River County returned an

original indictment that charged McGonigal with the second-degree felony

offense of indecency with a child. See CR, pgs. 9-10. See Tex. Penal Code

Ann. § 21.11(a)(1), (d) (West 2011) (an offense under Subsection (a)(1) is a

felony of the second degree)).      In due course, McGonigal voluntarily

entered a plea of guilty on February 19, 2013 to the offense of indecency

with a child by contact. See RR, pgs. 6-7.

      On February 19, 2013, the trial court signed its order of deferred

adjudication.     See CR, pgs. 65-66.     McGonigal received a deferred

probation for 10 years. See RR, pg. 7. On the same day, the trial court also

signed its order imposing conditions of community supervision. See CR,

pgs. 67-70. As pertinent to this appeal, the trial court ordered McGonigal to

comply with the following condition[] of community supervision:

      1.    Defendant shall commit no offense against the laws of
            this or any State or of the United States or any other
            Country.     Defendant shall notify the Community
            Supervision Officer in charge of the case within forty
            eight (48) hours of being arrested and/or charged with a
            criminal offense.

See CR, pg. 67.


                                     10
       On January 14, 2014, the State filed a motion to proceed with

adjudication. See CR, pgs. 72-80. After a contested hearing, the trial court

signed its judgment adjudicating guilt on February 13, 2014.                    By this

judgment of conviction (CR, pgs. 92-93), the trial court sentenced him to

nine (9) years in the Texas Department of Criminal Justice--Institutional

Division but suspended that sentence and continued him on probation for

nine (9) years with a jail sanction of 31 days and other terms and conditions

of community supervision. See CR, pgs. 92-93; 94-97.

       On February 13, 2014, the State realized that the trial court could not

order “Adjudication Probation”1 and filed a motion for new trial. See CR,

pgs. 99-100. See also Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(C)

(limitation on judge ordered community supervision to a defendant adjudged

guilty under section 21.11(a)(1), Penal Code). On the same day, the trial

court signed an order approving new trial. See CR, pg. 101.

       On February 19, 2014, the trial court signed an order continuing

probation and modifying the terms of probation. See CR, pgs. 102-103.



       The State Filed Another Motion to Proceed with Adjudication.

1
  See Donald Oreste Royale v. The State of Texas, No. 06-02-00170-CR, 2003 Tex. App.
LEXIS 4787, at * 8 (Tex. App.--Texarkana, June 6, 2003, pet. ref’d) (Morriss, C.J.) (It is
only once those defendants are formally found guilty of committing such an offense that
they become ineligible for judge-granted community supervision.).

                                           11
      On June 2, 2014, the State filed another motion to proceed with

adjudication. See CR, pgs. 109-112. By this motion, the State alleged the

following:

                                     I.

            Petitioner would show unto the Court that the Defendant,
      Christopher Neal McGonigal, has willfully violated the terms of
      said probation in that the said Christopher Neal McGonigal
      committed the offense of Driving under Influence of Alcohol or
      Drugs on or about May 9, 2014 in Montgomery County, KS.

See CR, pg. 109.

      Revocation Hearing.

      On August 28, 2014, the trial court called cause number CR01907,

and the State read the allegation in the motion (RR, pgs. 5, 7), and

McGonigal entered a plea of “not true.” See RR, pg. 5.

      As its first witness, the State called Miranda Dean (Dean), a probation

officer in Red River County, who was familiar with McGonigal and

identified him in open court.    See RR, pg. 6.     Subsequently, the State

showed Dean what’s been marked as State’s Exhibit 1, and she was “not

familiar with that document.”       See RR, pg. 7.       Dean later stated,

“Defendant Acknowledgement of Rights and Entry of Plea.” See RR, pg. 8.

      The State then offered State’s Exhibit 1 into evidence. See RR, pg. 8.

Through defense counsel, McGonigal objected to the entire document as


                                     12
hearsay and “no proper predicate.” See RR, pg. 8. The State responded.

See RR, pgs. 8-9. The trial court admitted State’s Exhibit 1. See RR, pg. 9.

      As its second witness, the State called Alex Davidson (Davidson), an

investigator with the County and District Attorney’s office of Red River

County.    See RR, pg. 13.       Davidson testified that he contacted the

Montgomery County Sheriff’s Office and requested a book-in photograph of

McGonigal. See RR, pg. 13. Once proffered by the State, the trial court

admitted State’s Exhibit 2. See RR, pgs 14-15.

      Following the testimony from Davidson, the State rested. See RR,

pg. 17.    Through his counsel, McGonigal rested.           See RR, pg. 17.

Afterwards, the trial court did find “by a preponderance of the evidence that

the Defendant has violated the terms and conditions of his community

supervision.” See RR, pg. 17. The trial court revoked his community

supervision and did find McGonigal guilty of the felony offense of

indecency with a child. See RR, pg. 17.

      The trial court then inquired, “Do you have any evidence you want to

put on on (sic?) sentencing Mr. Meehan or Mr. Varley, either one?” The

State referenced the prior time “he was here” that the trial court remarked, “I

remember that very well.”        See RR, pg. 18.        Defense counsel for

McGonigal stated, “Your Honor, the Defense has no evidence.” See RR,


                                      13
pg. 18. The trial court then sentenced McGonigal to 20 years in the Texas

Department of Criminal Justice, Institutional Division. See RR, pg. 18.

      On August 28, 2014, the trial court signed its Judgment Adjudicating

Guilt. See CR, pgs. 118-119. On September 2, 2014, McGonigal filed his

notice of appeal. See CR, pg. 123. On September 11, 2014, the trial court

signed its certification of the defendant’s right of appeal. See CR, pg. 125.

      Proceedings in this Court of Appeals.

      On or about September 10, 2014, McGonigal filed his notice of appeal

in this Court. On October 27, 2014, the official court reporter filed the

Reporter’s Record. On October 28, 2014, the District Clerk of Red River

County filed the Clerk’s Record.

      After this Court granted the first motion for extension of time,

McGonigal filed his brief on or about January 8, 2015. The State will be

filing its brief on February 9, 2015.




                                        14
                   SUMMARY OF THE ARGUMENT

      In the present case, the State’s motion to proceed with adjudication

was worded to the effect that appellant committed an offense. See CR, pg.

109. As worded, a conviction for an offense was not required as a proper

basis for the trial court’s revocation of probation. See Armstrong v. State,

472 S.W.2d 150, 151 (Tex. Crim. App. 1971).

      To prove McGonigal committed an offense, the State proffered, and

the trial court, admitted State’s Exhibits 1 and 2.       Taken together, the

exhibits, along with the testimony from Dean and Davidson, provided

sufficient evidence to support the trial court’s finding that McGonigal

committed an offense in violation of condition # 1 that “Defendant shall

commit no offense against the laws of this or any State or of the United

States or any other Country.” See CR, pg. 67. In conclusion, the trial court

did not abuse its discretion because the revocation order was supported by a

preponderance of the evidence.         The appellant’s, McGonigal’s, first

issue/point of error should be overruled.

      As for McGonigal’s second issue/point of error, the trial court did not

abuse its discretion in admitting State’s Exhibit 2 because the jail record was

admissible as a business record. The two (2) issues/points of error should

be overruled, and the final judgment of conviction should be affirmed.


                                      15
                   ARGUMENT AND AUTHORITIES

ISSUE PRESENTED IN REPLY NO. 1: THE TRIAL COURT DID
NOT ABUSE ITS DISCRETION IN REVOKING THE APPELLANT’S
COMMUNTIY SUPERVISION BECAUSE THE REVOCATION
ORDER WAS SUPPORTED BY A PREPONDERANCE OF THE
EVIDENCE.

      A.     Introduction.

      With his first issue, McGonigal questioned whether the evidence was

insufficient to support the trial court’s judgment revoking his deferred

adjudication community supervision and adjudicating him guilty of the

underlying offense.    See Appellant’s Brief, pgs. 5, 12-18.      However, a

conviction for an offense was not required as a proper basis for the trial

court’s revocation of probation. See Armstrong, 472 S.W.2d at 151. The

available evidence was sufficient; and therefore, the trial court did not abuse

its discretion in revoking McGonigal’s community supervision.

      B.     Standard of Review: Abuse of Discretion.

      This Court should review for an abuse of discretion the trial court’s

decision to revoke community supervision. See Meyer v. State, 366 S.W.3d

728, 729 (Tex. App.--Texarkana 2012, no pet.). When the revocation order

is supported by a preponderance of the evidence, the trial court does not

abuse its discretion. See id. at 729-730. This Court should review the

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


                                      16
v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)). If a single ground

for revocation is supported by a preponderance of the evidence and is

otherwise valid, then an abuse of discretion is not shown. See Lively v.

State, 338 S.W.3d 140, 143 (Tex. App.--Texarkana 2011, no pet.).

      This Court must respect the trial court’s role in evaluating witness

credibility, resolving conflicts in the evidence, and in drawing reasonable

inferences from the evidence. See Meyer, 366 S.W.3d at 730. This Court

must assume the trial court resolved evidentiary issues in a way that supports

the judgment. See id.

      Where, as here, the State alleges a violation of the condition that a

probationer refrain from committing an offense against the law, the State

need not use the same precise terms as necessary in an indictment allegation.

See Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.--Texarkana 2003, pet.

ref’d) (citing Bradley v. State, 608 S.W.2d 652, 655 (Tex. Crim. App. 1980)).

At a hearing on an application to revoke probation, guilt or innocence is not

at issue, and the trial court need not determine the defendant’s original

criminal culpability, only whether the probationer broke the contract made

with the trial court to receive a probated sentence. See Pierce, 113 S.W.3d

at 436 (citing Moore v. State, 11 S.W.3d 495, 499 (Tex. App.--Houston [14th

Dist.] 2000, no pet.)). Revocation is proper if the evidence is sufficient to


                                      17
support the trial court’s finding that the probationer committed an offense in

violation of the condition of probation that he or she commit no

offense against state or federal law.        See Pierce, 113 S.W.3d at 436-37

(citing Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977)).

      The Texas Court of Criminal Appeals has held that a conviction for an

offense is not required as a proper basis for revocation of probation under

the allegation that the appellant “commit no offense against the laws of this

or any other State, or the United States.” See Armstrong, 472 S.W.2d at

151. “[P]robation may be revoked upon a finding by the court that the

terms of probation have been violated and no necessity exists for there first

to be a trial and a valid conviction for the offense which is the basis of the

revocation.” See Martinez v. State, 493 S.W.2d 954, 955 (Tex. Crim. App.

1973).

      C.      Sufficient Evidence Supported the Trial Court’s Judgment.

      In the present case, the appellant complained that the “plea document”

contained no evidence of McGonigal’s guilt. See Appellant’s Brief, pgs.

12-13.     In his brief, McGonigal alleged that the document (i.e. State’s

Exhibit 1) failed to show that he committed the alleged offense for several

reasons. See Appellant’s Brief, pg. 13. The State will respond to each of

these reasons, as numbered below.


                                        18
      1.     McGonigal’s “Type of Plea” Was Inconsequential.

      As his first reason, McGonigal contended in his brief that the

“Defendant’s Acknowledgement of Rights and Entry of Plea” (State’s

Exhibit 1) did not “show what plea McGonigal entered in the case.” See

Appellant’s Brief, pg. 13. However, that “showing” was inconsequential.

      Under Texas law, the legal effect of a plea of nolo contendere is “the

same as that of a plea of guilty.” See Ellerbe v. State, 80 S.W.3d 721, 723

(Tex. App.--Houston [1st Dist.] 2002, pet. ref’d) (citing Tex. Code Crim.

Proc. Ann. art. 27.02(5) (Vernon 1989)). Article 27.02(5) of the Texas Code

of Criminal Procedure provided that “[a] plea of nolo contendere, the legal

effect of which shall be the same as that of a plea of guilty, except that such

plea may not be used against the defendant as an admission in any civil suit

based upon or growing out of the act upon which the criminal prosecution is

based.” See Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 1989)).

      In Ellerbe, the court of appeals explained that the only difference

between a plea of guilty and a plea of nolo contendere is that a plea of nolo

contendere may not be used against a defendant as an admission in any civil

suit based upon or growing out of the act upon which the underlying

criminal complaint was based. See Ellerbe, 80 S.W.3d at 723. In Ellerbe,

the court of appeals also explained that a plea of nolo contendere does not


                                      19
relieve a defendant from having to admit to the commission of an offense.

See id.

      As applied here, the “type of plea” was inconsequential because even

a plea of nolo contendere, as McGonigal suggested in his brief, did not

relieve him from having to admit to the commission of an offense. See id;

Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 1989). Further, it was

presumed that the law of Kansas was the same as in Texas absent proof to

the contrary. See Tucker v. State, 751 S.W.2d 919, 925 (Tex. App.--Fort

Worth 1988, no pet.). Here, there was no proof to the contrary. Because

the “type of plea” was inconsequential, State’s Exhibit 1--“Defendant’s

Acknowledgements of Rights and Entry of Plea”--was some evidence that

McGonigal “entered a plea” of some type, and that plea had the legal effect

of him admitting to the commission of the offense. See Ellerbe, 80 S.W.3d

at 723; Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 1989). From

State’s Exhibit 1, the trial court could have certainly drawn the reasonable

inference that McGonigal’s “entry of plea” was to admit to the commission

of “DUI; 1st.” See State’s Exhibit 1. See also Meyer, 366 S.W.3d at 730

(trial court’s role must be respected in evaluating witness credibility,

resolving conflicts in the evidence, and in drawing reasonable inferences

from the evidence).


                                     20
      Such an inference (i.e. McGonigal entered a plea to admit to the

commission of “DUI; 1st”) was further strengthened by State’s Exhibit 2, the

inmate booking sheet. See State’s Exhibit 2. State’s Exhibit 2 revealed

McGonigal’s arrest date of 05/09/2014 and a release date of 06/20/2014, a

period of forty-two (42) days. See State’s Exhibit 2. State’s Exhibit 2 also

revealed the “Agency” (KHP); the “Charge Date” (05/09/2014) and the

“Charge” (8-1567       Driving under Influence of alcohol or drugs;

Misdemeanor; STAT). See State’s Exhibit 2. See also Kan. Stat. Ann. §

8-1567(a), (b)(1) (2007 Supp.).

     2.    The Trial Court Could Have Inferred that McGonigal
Entered a Plea to the Misdemeanor Offense of “DUI; 1st”.

      As his second reason, McGonigal argued in his brief that this exhibit

(i.e. State’s Exhibit 1) “does not show to what crimes McGonigal intended to

plead no contest or guilty to.” See Appellant’s Brief, pg. 13. However, the

trial court could have considered State’s Exhibit 1 along with State’s Exhibit

2, which revealed the charge (“8-1567 Driving under Influence of alcohol

or drugs; Misdemeanor; STAT”), and drawn the reasonable inference that

McGonigal entered a plea to the misdemeanor offense of “DUI, 1st.”

Compare State’s Exhibit 1 with State’s Exhibit 2. See Meyer, 366 S.W.3d at

730 (trial court’s role must be respected in evaluating witness credibility,

resolving conflicts in the evidence, and in drawing reasonable inferences

                                      21
from the evidence).

     3.     The Trial Court Could Have Inferred that McGonagall
“Actually Plead” to the Misdemeanor Offense of “DUI; 1st”.

      As his third reason, McGonigal argued in his brief that this exhibit

(i.e. State’s Exhibit 1) “does not show any proof that McGonigal actually

plead to Driving Under the Influence or that his plea was accepted.” See

Appellant’s Brief, pg. 14.    Again, however, the trial court could have

considered State’s Exhibit 1 along with State’s Exhibit 2 and, by

comparison, drawn the reasonable inference that McGonigal entered a plea

to the misdemeanor offense of “DUI, 1st.” Compare State’s Exhibit 1 with

State’s Exhibit 2. From State’s Exhibit 2, the trial court could also have

drawn the reasonable inference that McGonigal would have “actually plead”

in exchange for a sentence of forty-two (42) days. See State’s Exhibit 2.

      D.    The “Appeal” by McGonigal Was Inconsequential.

      Finally, McGonigal argued in his brief that the evidence was still

insufficient because he appealed his conviction (for an unspecified offense).

See Appellant’s Brief, pg. 17 (citing Prince v. State, 503 S.W.2d 777 (Tex.

Crim. App. 1974)). Unlike Prince, however, the State’s motion to proceed

with adjudication was based upon the commission of an offense, not a

conviction. See Barrientez v. State, 500 S.W.2d 474, 475 (Tex. Crim. App.

1973) (The State did not rely upon the previous conviction as the basis for

                                     22
its application to revoke the probation). See also Davis v. State, 673 S.W.2d

956, 958 (Tex. App.--San Antonio 1984, no pet.); Martinez v. State, 635

S.W.2d 762, 767 (Tex. App.--Corpus Christi 1982, no pet.).

      In the present case, the State’s motion to proceed with adjudication

was worded to the effect that appellant committed the offense.           See

Barrientez, 500 S.W.2d at 475 (italics added in the opinion). Here, the

State’s motion specifically alleged the following:

                                      I.

            Petitioner would show unto the Court that the Defendant,
     Christopher Neal McGonigal, has willfully violated the terms of
     said probation in that the said Christopher Neal McGonigal
     committed the offense of Driving under Influence of Alcohol or
     Drugs on or about May 9, 2014 in Montgomery County, KS.
See CR, pg. 109.

      Because the motion to proceed with adjudication was worded to the

effect that McGonigal committed the offense, the State sought to allege and

prove the commission, not the conviction, of the DUI offense.            See

Barrientez, 500 S.W.2d at 475.       Therefore, the appeal in Defendant’s

Exhibit # 1 was inconsequential.

      E.     Conclusion.

      Taken together, State’s Exhibits 1 and 2 were sufficient to show a

violation of the terms and conditions of McGonigal’s community

supervision. See Wright v. State, 523 S.W.2d 704, 705 (Tex. Crim. App.

                                      23
1975) (Because such documents are not as a matter of law insufficient to

show a violation of the terms of probation, but to the contrary may have

been sufficient). In addition to State’s Exhibits 1 and 2, the testimony from

Dean and Davidson provided sufficient evidence to support the trial court’s

finding that McGonigal committed an offense in violation of condition # 1

that “Defendant shall commit no offense against the laws of this or any State

or of the United States or any other Country.”           See CR, pg. 67.    In

conclusion, the trial court did not abuse its discretion because the revocation

order was supported by a preponderance of the evidence. See Davidson v.

State, 422 S.W.3d 750, 756 (Tex. App.--Texarkana 2013, pet. ref’d); Meyer,

366 S.W.3d at 729-30 (citing Lively, 338 S.W.3d at 143). Therefore, the

appellant’s first issue/point of error should be overruled.




                                       24
SECOND ISSUE PRESENTED IN REPLY NO. 2:    THE TRIAL
COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING
STATE’S EXHIBIT 2 BECAUSE THE JAIL RECORD QUALIFIED
AS A BUSINESS RECORD.

      A.     Introduction.

      With his second issue on appeal, McGonigal alleged that the trial

court erred when it admitted State’s Exhibit # 2 over defense objection

because it was inadmissible hearsay evidence. See Appellant’s Brief, pg.

19.

However, State’s Exhibit 2 was a jail record, and was admissible because it

qualified as a business record.

      B.     Standard of Review: Abuse of Discretion.

      This Court reviews a trial court’s decision to admit or exclude

evidence for abuse of discretion. See, e.g., Lund v. State, 366 S.W.3d 848,

852 (Tex. App.--Texarkana 2012, pet. ref’d) (citing Osbourn v. State, 92

S.W.3d 531, 537 (Tex. Crim. App. 2002)). If the trial court’s decision to

admit evidence is within the zone of reasonable disagreement, the trial court

has not abused its discretion, and this Court must defer to that decision. See

id (citing Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)).

      C.     Jail Records.

      The Court of Criminal Appeals has held that a defendant’s jail records

qualify as records made in the regular course of business. See Ford v. State,

                                      25
179 S.W.3d 203, 209 (Tex. App.--Houston [14th Dist.] 2005, pet. ref’d), cert.

denied, 549 U.S. 922, 127 S. Ct. 281, 166 L. Ed. 2d 215 (2006) (citing

Jackson v. State, 822 S.W.2d 18, 30-31 (Tex. Crim. App. 1990) (en banc)).

In Ford, the court of appeals held that disciplinary records were sterile

recitations of appellant’s offenses and the punishments he received for those

offenses.   See Ford, 179 S.W.3d at 209.        The records did not contain

statements that could be considered testimonial in nature. See id. Because

the disciplinary records in Ford were not testimonial and fell within a

recognized exception to the hearsay rule, the court of appeals concluded that

the trial court did not abuse its discretion in admitting the evidence. See id.

      Here, as in Ford, State’s Exhibit 2 was a jail record that contained a

sterile recitation of the appellant’s offense (“DUI; 1st”) along with

McGonigal’s photograph, his social security number, and his date of birth.

See State’s Exhibit 2. The jail record did not contain any statements that

could be considered testimonial in nature. See State’s Exhibit 2. Because

the jail record was not testimonial and fell within a recognized exception to

the hearsay rule, this Court should conclude that the trial court did not abuse

its discretion in admitting the evidence. See Ford, 179 S.W.3d at 209;

Jackson, 822 S.W.2d at 30-31. Therefore, the appellant’s second issue/point

of error should be overruled.


                                       26
                                  PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State of Texas prays

that upon final submission without oral argument, this Court should affirm

the trial court’s final judgment in all other respects, adjudge court costs

against the appellant and for such other and further relief, both at law and in

equity, to which the State may be justly and legally entitled.

                          Respectfully submitted,

                          Val J. Varley, County and District Attorney
                          Red River County Courthouse
                          400 North Walnut Street
                          Clarksville, Texas 75426-4012
                          (903) 427-2009
                          (903) 427-5316 (fax)
                          valvarley@valornet.com


                          By:_/S/Val Varley___________
                              Val J. Varley, County-District Attorney
                              SBN# 20496580

                          ATTORNEYS FOR THE STATE OF TEXAS




                                       27
                  CERTIFICATE OF COMPLIANCE

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

the “State’s Brief” was a computer-generated document and contained 4,772

words--not including the Appendix (not applicable here). The undersigned

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

which was used to prepare this document.


                               /s/Val Varley
                               Val J. Varley
                               valvarley@valornet.com

                     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 9th day of

February, 2015 upon the following:

Don Biard
McLaughlin, Hutchison & Biard
38 First Northwest
Paris, TX 75460

                               /s/ Val Varley
                               Val J. Varley
                               valvarley@valornet.com




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