                                                                                PD-1016-15
                                                              COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                              Transmitted 10/7/2015 8:31:25 PM
                                                                Accepted 10/8/2015 4:06:22 PM
                                                                                ABEL ACOSTA
            COURT OF CRIMINAL APPEALS                                                   CLERK



                            PD-1016-15	

                Ex Parte Julie Ann VonTungeln
            On Discretionary Review from No. 10-14-00329-CR
                      Tenth Court of Appeals, Waco

                      On Appeal from No. F43117-A
               18th Judicial District Court, Johnson County



              Petition for Discretionary Review
Kristin R. Brown
18208 Preston Road
Dallas, TX 75252
Phone: 214-446-3909
Fax: 214-481-4868
kbrown@idefenddfw.com
Texas Bar No. 24081458

Michael Mowla
P.O. Box 868
Cedar Hill, TX 75106                             October 8, 2015
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com
Texas Bar No. 24048680

Attorneys for Appellant


 If the Petition is granted, oral argument is requested



                                      	
I.    Identities of Parties, Counsel, and Judges
Julie Ann VonTungeln, Appellant

Kristin R. Brown, Attorney for Appellant during habeas proceeding, on appeal, and
on discretionary review

Michael Mowla, Attorney for Appellant on appeal and on discretionary review

Ben Hill Turner, Attorney for Appellant at trial

Dale Hanna, Attorney for State of Texas

David Vernon, Attorney for State of Texas

Kriste Burnett, Attorney for State of Texas

John Neill, Presiding Judge of the 18th Judicial District Court




                                          2
II.      Table of Contents
I.	      Identities of Parties, Counsel, and Judges ........................................................2	
II.	     Table of Contents..............................................................................................3	
III.	 Index of Authorities ..........................................................................................5	
IV.	 Appendix Index ................................................................................................7	
V.	      Statement Regarding Oral Argument ...............................................................8	
VI.	 Statement of the Case and Procedural History .................................................9	
VII.	 Grounds for Review .......................................................................................14	
VIII.	 Argument ........................................................................................................15	
      1. Ground for Review: When the constitutionality of a statute is
         questioned, to overcome the presumption that the legislature did
         not act unreasonably or arbitrarily, the party challenging the
         statute must show by a preponderance of the evidence that the
         statute is unconstitutional. The party must show only that the
         application of the statute harmed an important governmental
         interest. Once the party makes this showing, the burden shifts to
         the Government to show that the challenged application is
         narrowly tailored to meet a compelling governmental interest
         and that no less restrictive means are available.
         Appellant met this burden because she proffered evidence that
         showed by a preponderance of the evidence that: (1) she married
         her husband; (2) marriage is an important governmental interest;
         and (3) the government prohibited the free exercise of
         Appellant’s right to privacy in her marital relationship, her right
         to equal protection under the law, her right to due process under
         the law, and her right to freely associate with her spouse. And,
         the State failed to meet its burden of proving that the application
         of “Condition 3” upon Appellant’s marital relationship could
         survive strict scrutiny analysis.
         As a result, the Court of Appeals erred when it: (1) overruled
         Appellant’s constitutional issues and concluded that Appellant
         failed to meet her burden; (2) failed to recognize that the State
         did not meet its burden under the strict scrutiny standard; (3)
         failed to analyze Appellant’s constitutional arguments under the
         strict scrutiny standard; (4) accepted the State’s misfeasance in
                                                            3
        its briefing; (5) accepted “mere allegations” offered by the State
        as proven fact; and (6) failed to find that the trial court abused its
        discretion in denying Appellant’s application. ..............................................15	
      i.	     Appellant proved by a preponderance of the evidence that the
              application of “Condition 3” to Appellant’s marital
              relationship was unconstitutional. ...........................................................15	
      ii.	    The State did not meet its burden under the strict scrutiny
              standard to show that the condition, as applied, was narrowly
              tailored to meet a compelling governmental interest and that
              no less restrictive means was available. ..................................................18	
      iii.	 Under the strict scrutiny analysis, the application of
            “Condition 3” to Appellant’s marital relationship is
            unconstitutional. ......................................................................................18	
      iv.	 In failing to acknowledge the misfeasance of the State in its
           briefing, the Court of Appeals has impliedly approved of
           such behavior. ..........................................................................................21	
      v.	     Conclusion ...............................................................................................24	
IX.	 Conclusion and Prayer ....................................................................................26	
X.	     Certificate of Service ......................................................................................27	
XI.	 Certificate of Compliance with Tex. Rule App. Proc. 9.4 .............................28	




                                                           4
III.     Index of Authorities
Cases	
Aghili v. Banks, 63 S.W.3d 812 (Tex. App. Houston [14th Dist.] 2001,
      pet. denied) (op. on reh’g) .............................................................................22
Bailey v. City of Austin, 972 S.W.2d 180 (Tex. App. Austin 1998, pet.
      den.) ...............................................................................................................17
Carey v. Population Servs. Int’l, 431 U.S. 678 (1977) ............................................16
Dennis v. United States, 341 U.S. at 494 (1951) .............................................. 16, 17
Ex Parte Julie Ann VonTungeln, 10-14-00329-CR, 2015 Tex. App.
     LEXIS 8247 (Tex. App. Waco, August 6, 2015) (Gray, C.J.
     dissenting) (mem. op., not designated for publication) ........................ 7, 9, 24
Griswold v. Connecticut, 381 U.S. 479 (U.S. 1965) ........................................ 15, 16
Hilliard v. Ferguson, 30 F.3d 649 (5th Cir. 1994) ..................................................20
Macias v. State, 649 S.W.2d 150 (Tex. App. El Paso 1983, no pet.) ......................18
Mauze v. Curry, 861 S.W.2d 869 (Tex. 1993).........................................................22
Planned Parenthood v. Casey, 505 U.S. 833 (1992) ...............................................16
Southtex 66 Pipeline Co. v. Spoor, 238 S.W.3d 538 (Tex. App. Houston
      14th Dist. 2007, pet. denied)..........................................................................23
Tamez v. State, 534 S.W.2d 686 (Tex. Crim. App. 1976) .......................................19
United States v. Arce, 997 F.2d 1123 (5th Cir. 1993) .............................................21
United States v. Foxworth, 599 F.2d 1 (1st Cir. 1979) ............................................21
United States v. O’Brien, 391 U.S. 367 (1968) .......................................................17
Wells v. Hardy, 51 S.W. 503 (Tex. Civ. App. Austin 1899) ...................................17
Zablocki v. Redhail, 434 U.S. 374 (1978) ........................................................ 16, 19


Rules	
Tex. Rule App. Proc. 66.3 (2015) ............................................................................26
Tex. Rule App. Proc. 68.4 (2015) ....................................................................... 8, 14
Tex. Rule App. Proc. 9.4 (2014) ..............................................................................28
Tex. Rule App. Proc. 9.5 (2014) ..............................................................................27

                                                             5
Tex. Rule Civ. Proc. 166a (2015) ............................................................................23
Tex. Rule Evid. 602 (2015)......................................................................................23




                                                        6
IV.   Appendix Index
Appendix 1: Ex Parte Julie Ann VonTungeln, 10-14-00329-CR, 2015 Tex. App.
LEXIS 8247 (Tex. App. Waco, August 6, 2015) (Gray, C.J. dissenting) (mem. op.,
not designated for publication).




                                      7
V.    Statement Regarding Oral Argument
      Should the Court grant this petition, Appellant requests oral argument. See

Tex. Rule App. Proc. 68.4(c) (2015). The issue presented in this case involves one

of first impression dealing with a probationer’s right to marry, communicate with,

and cohabitate with the person she chooses, and the state’s unreasonable interference

with that right. Therefore, should this Court determine that its decisional process will

be significantly aided by oral argument, Appellant will be honored to present oral

argument.




                                           8
To the Honorable Judges of the Court of Criminal Appeals:

      Appellant Julie Ann VonTungeln respectfully submits this petition for

discretionary review:

VI.   Statement of the Case and Procedural History
      This petition for discretionary review requests that this Court review the

judgment and opinion of the Tenth Court of Appeals in Ex Parte Julie Ann

VonTungeln, 10-14-00329-CR, 2015 Tex. App. LEXIS 8247 (Tex. App. Waco,

August 6, 2015) (Gray, C.J. dissenting) (mem. op., not designated for publication).

(See Appendix 1). This issues presented in this petition appear to be issues of first

impression. Appellant is not aware of any other cases where the state has imposed

a prohibition on spousal contact as a part of a standard, but vague, condition of

probation where: (1) the spouse has no relation to the offense for which the appellant

was on probation; (2) the prohibited conduct is not in itself criminal; and (3) the

prohibition is not reasonably related to the future criminality of the offender or

otherwise serve the statutory ends of probation. Appellant filed an application for

writ of habeas corpus asking the trial court to modify “Condition 3” recognizing her

marital relationship, and allowing Appellant and her husband to live together and

associate as husband and wife, but Appellant’s application was summarily denied as

“frivolous.” The Court of Appeals upheld the imposition of the condition because



                                          9
Appellant allegedly failed to carry her burden of proof of unconstitutionality, as

applied, to a preponderance of the evidence.

      The marriage relationship is included within the zone of privacy created by

several fundamental constitutional rights. The right to privacy and the right to due

process and equal protection under the law are fundamental rights. The right to

freely associate is also a fundamental right. Where a fundamental right is impinged,

the State has the burden to show that the requirements of strict scrutiny are met.

      When the constitutionality of a statute is questioned, a court must presume the

legislature has not acted unreasonably or arbitrarily, and—as a result—the party

challenging the statute must show by a preponderance of the evidence that the statute

is unconstitutional. Appellant met this burden because she proffered evidence that

showed by a preponderance of the evidence that: (1) she married her husband; (2)

marriage is an important governmental interest; and (3) the government prohibited

the free exercise of Appellant’s right to privacy in her marital relationship, her right

to equal protection under the law, her right to due process under the law, and her

right to freely associate with her spouse. And, the State failed to meet its burden of

proving that the application of “Condition 3” upon Appellant’s marital relationship

could survive strict scrutiny analysis. On the other hand, the State failed to prove

that the requirements of strict scrutiny were met in the imposition of “Condition 3”

upon Appellant’s marital relationship.

                                          10
       Yet, in a 2-1 decision—with Chief Justice Gray dissenting without opinion—

the Court of Appeals ruled against Appellant—looking not to the issues regarding

the constitutionality of “Condition 3” as applied, but instead accepting mere

allegations as proven fact, and accepting the misfeasance of the State in not only its

probationary practices, but in its briefing to the court.

       The procedural history leading up to this petition is that on October 15, 2014,

the presiding judge of the 18th District Court, Johnson County, Texas, entered an

order denying Applicant’s 11.072 Application for Writ of Habeas Corpus as

Frivolous. (“Order”). (CR-Supp-2, 5).1 On September 26, 2014, Appellant filed an

Application for Writ of Habeas Corpus Pursuant to Tex. Code Crim. Proc. art.

11.072. (CR, 123–203). In the Application and on appeal, Appellant asserted that

“Condition 3” of her community supervision is unconstitutional as applied to

Appellant because under this condition, the Johnson County District Attorney,

through the Johnson County Probation Office, prohibits Appellant from living, or

having any contact, with her husband, Steven Alsobrook. (See id.).

       Appellant is on deferred adjudication community supervision under Cause

No. F43117. (See CR, 38–40). Her term of community supervision is scheduled to


       																																																	

 The Clerk’s Record consists of one regular and two supplemental volumes. The main volume is
1	

cited as “CR” followed by the page number. The two supplemental volumes are cited as “CR-
Supp-1” and “CR-Supp-2” followed by the page number. There is no reporter’s record.
                                              11
end on February 26, 2019. Id. As required under Texas Code of Criminal Procedure

Article 11.072 §3(b), prior to filing the application, Appellant filed a Motion to

Modify the Terms and Conditions of Community Supervision requesting relief from

the application of “Condition 3” upon her marital relationship. (CR, 72–72; CR, 81–

83; CR, 85–104; CR, 108-119). In fact, Appellant filed this motion on four separate

occasions. These motions were all summarily denied. (CR, 84; CR, 107).

      Appellant’s final motion was filed on August 14, 2014. (CR, 108–119). This

motion was denied on August 27, 2014. (CR, 122). Appellant then filed her

Application for Writ of Habeas Corpus. (CR, 123–203). The trial court denied the

Application as frivolous and did not issue findings of fact or conclusions of law.

(CR-Supp-2, 5); see also Tex. Code Crim. Proc. art 11.072 §7(a) (2015). Appellant

appealed, raising two issues:

      1. The trial court abused its discretion and Appellant’s constitutional
      rights under the Fourteenth Amendment were violated when the trial
      court denied (as frivolous) Appellant’s Application for Writ of Habeas
      Corpus, which showed that “Condition 3” of Appellant’s community
      supervision is unconstitutional.

      2. The trial court abused its discretion and violated Appellant’s
      constitutional rights under the First Amendment when it denied (as
      frivolous) Appellant’s Application for Writ of Habeas Corpus, which
      showed that “Condition 3” of Appellant’s community supervision is
      unconstitutional.

      On August 6, 2015, the Court of Appeals overruled both of Appellant’s issues

finding that: (1) Appellant did not meet her burden of showing by a preponderance

                                        12
of the evidence that the statute was unconstitutional; (2) based on the record, it could

not be said that the trial court erred or abused its discretion in denying Appellant’s

Application. This petition for discretionary review follows.




                                          13
VII. Grounds for Review
Ground One: When the constitutionality of a statute is questioned, to overcome the
presumption that the legislature did not act unreasonably or arbitrarily, the party
challenging the statute must show by a preponderance of the evidence that the statute
is unconstitutional. The party must show only that the application of the statute
harmed an important governmental interest. Once the party makes this showing, the
burden shifts to the Government to show that the challenged application is narrowly
tailored to meet a compelling governmental interest and that no less restrictive means
are available.

Appellant met this burden because she proffered evidence that showed by a
preponderance of the evidence that: (1) she married her husband; (2) marriage is an
important governmental interest; and (3) the government prohibited the free exercise
of Appellant’s right to privacy in her marital relationship, her right to equal
protection under the law, her right to due process under the law, and her right to
freely associate with her spouse. And, the State failed to meet its burden of proving
that the application of “Condition 3” upon Appellant’s marital relationship could
survive strict scrutiny analysis.

As a result, the Court of Appeals erred when it: (1) overruled Appellant’s
constitutional issues and concluded that Appellant failed to meet her burden; (2)
failed to recognize that the State did not meet its burden under the strict scrutiny
standard; (3) failed to analyze Appellant’s constitutional arguments under the strict
scrutiny standard; (4) accepted the State’s misfeasance in its briefing; (5) accepted
“mere allegations” offered by the State as proven fact; and (6) failed to find that the
trial court abused its discretion in denying Appellant’s application.

      Appellee directs this Court’s attention to the following parts of the record on

appeal:

      Clerk’s record, pages 33-40, 76-78, 115-119, 123-203.

      Supplemental clerk’s record, pages 27, 30,

See Tex. Rule App. Proc. 68.4(f) (2015).




                                          14
VIII. Argument
  1. Ground for Review: When the constitutionality of a statute is questioned,
     to overcome the presumption that the legislature did not act
     unreasonably or arbitrarily, the party challenging the statute must show
     by a preponderance of the evidence that the statute is unconstitutional.
     The party must show only that the application of the statute harmed an
     important governmental interest. Once the party makes this showing, the
     burden shifts to the Government to show that the challenged application
     is narrowly tailored to meet a compelling governmental interest and that
     no less restrictive means are available. Appellant met this burden because
     she proffered evidence that showed by a preponderance of the evidence
     that: (1) she married her husband; (2) marriage is an important
     governmental interest; and (3) the government prohibited the free
     exercise of Appellant’s right to privacy in her marital relationship, her
     right to equal protection under the law, her right to due process under
     the law, and her right to freely associate with her spouse. And, the State
     failed to meet its burden of proving that the application of “Condition 3”
     upon Appellant’s marital relationship could survive strict scrutiny
     analysis. As a result, the Court of Appeals erred when it: (1) overruled
     Appellant’s constitutional issues and concluded that Appellant failed to
     meet her burden; (2) failed to recognize that the State did not meet its
     burden under the strict scrutiny standard; (3) failed to analyze
     Appellant’s constitutional arguments under the strict scrutiny standard;
     (4) accepted the State’s misfeasance in its briefing; (5) accepted “mere
     allegations” offered by the State as proven fact; and (6) failed to find that
     the trial court abused its discretion in denying Appellant’s application.
      i.     Appellant proved by a preponderance of the evidence that the
             application of “Condition 3” to Appellant’s marital relationship
             was unconstitutional.
      The marriage relationship “lies within the zone of privacy created by several

fundamental constitutional rights.” Griswold v. Connecticut, 381 U.S. 479, 484

(U.S. 1965). To establish a constitutional claim, one must show by a preponderance

of the evidence that the condition itself or the application of the condition has harmed

an important governmental interest. See Dennis v. United States, 341 U.S. 494, 495-
                                          15
511 (1951). Where a fundamental right is impinged by the Government, the

Government has the burden to show a compelling government interest and must

show that the condition imposed is narrowly tailored to meet that interest, such that

no less restrictive means are available. Zablocki v. Redhail, 434 U.S. 374, 388

(1978) (emphasis supplied). This is the strict scrutiny standard. Id.

      “It is clear that among the decisions that an individual may make without

unjustified government interference are personal decisions relating to marriage,

procreation, contraception, family relationships, and child rearing and education.’”

Planned Parenthood v. Casey, 505 U.S. 833, 859 (1992) citing Carey v. Population

Servs. Int’l, 431 U.S. 678, 684-685 (1977). “These matters, involving the most

intimate and personal choices a person may make in a lifetime, choices central to

personal dignity and autonomy, are central to the liberty protected by the Fourteenth

Amendment.” Casey, 505 U.S. at 851. In Griswold, the Supreme Court stated:

      “We deal with a right of privacy older than the Bill of Rights—older
      than our political parties, older than our school system. Marriage is a
      coming together for better or worse, hopefully enduring, and intimate
      to the degree of being sacred. It is an association that promotes a way
      of life, not causes; a harmony in living, not political faiths; a bilateral
      loyalty, not commercial or social projects. Yet it is an association for
      as noble a purpose as any involved in our prior decisions.”

Griswold, 381 U.S. at 486 (emphasis supplied).

      In this case, Appellant proved by a preponderance of the evidence that the

application of “Condition 3” upon her marital relationship harmed an important

                                          16
governmental interest and is, therefore, unconstitutional. With her Application,

Appellant attached as an exhibit a certified copy of the Recognition of Informal

Marriage. (CR, 115).

      Marriage is an important governmental interest, especially in Texas, where

the courts have long held that the right to marry is fundamental. See Wells v. Hardy,

51 S.W. 503, 505 (Tex. Civ. App. Austin 1899); Bailey v. City of Austin, 972 S.W.2d

180, 189 (Tex. App. Austin 1998, pet. den.) (the state has a legitimate interest in

recognizing the marriage relationship because an individual’s right to marriage is of

fundamental importance).

      As stated above, strict scrutiny consists of a determination of whether a

substantial government interest justifies the harm to fundamental rights or liberty

interests as follows: first, the court inquires whether on the particular facts of

the case the behavior of the challenger actually harmed an important government

interest and whether preventing that harm justified the injury. See Dennis v. United

States, 341 U.S. at 495-511. That is, can the challenger overcome the presumption

that the government acted in a constitutional manner? If so, the court inquires

whether the challenged government action furthers a compelling interest unrelated

to the suppression of a fundamental right and whether there is no less restrictive

alternative to the action. Id., See United States v. O’Brien, 391 U.S. 367, 377 (1968).



                                          17
      ii.       The State did not meet its burden under the strict scrutiny standard
                to show that the condition, as applied, was narrowly tailored to
                meet a compelling governmental interest and that no less restrictive
                means was available.
      Once Appellant met her burden (which she did upon the filing of her

Application for Writ of Habeas Corpus), the burden switched to the State to show

that the requirements of strict scrutiny were met. However, the State, in its brief

(and in its response to Appellant’s application), failed to even attempt to meet these

requirements, wholly ignoring the Constitutional issues. See State’s Brief. Instead,

the State submitted an affidavit by one of its prosecutors that contain unsubstantiated

allegations (see below). And the trial court simply signed the order presented to it

by the State.

      iii.      Under the strict scrutiny analysis, the application of “Condition 3”
                to Appellant’s marital relationship is unconstitutional.
      Appellant recognizes that those on community supervision are subject to

limitations from which ordinary citizens are free. See Macias v. State, 649 S.W.2d

150, 152 (Tex. App. El Paso 1983, no pet.). Still, a restriction upon a probationer’s

otherwise inviolable constitutional rights is justified only to the extent actually

necessitated by the legitimate demands of the probation process. Macias, 649

S.W.2d at 152. Proper probationary conditions are those that contribute significantly

both to the rehabilitation of the convicted person and to the protection of society, so

a condition is invalid if it: (1) has no relationship to the crime of which the offender


                                          18
was convicted, (2) relates to conduct that is not in itself criminal, and (3) requires or

forbids conduct which is not reasonably related to the future criminality of the

offender or does not serve the statutory ends of probation. Tamez v. State, 534

S.W.2d 686, 691-692 (Tex. Crim. App. 1976) (Conditions of probation that the

appellant cannot change his marital status without permission and that he maintain

his hair in a “neat manner” were not supportable and exceeded the limitation of the

trial court’s discretion to impose reasonable conditions of probation).

      In the case before this Court, merely because Appellant and her husband

belong to a particular class of residents (probationers), Appellant is being denied her

right to live with her husband as husband and wife, which is a right clearly

encompassed within the fundamental right to marry. Requiring a probationer to meet

the statute’s requirement of not marrying another probationer because all

probationers are purportedly of “disreputable or harmful character” falls squarely

within the Zablocki court’s meaning of a “serious intrusion” into the probationer’s

“freedom of choice in an area which we have held such freedom to be fundamental.”

And—as applied to Appellant’s marital relationship—”Condition 3”: (1) has no

relationship to the crime of which Appellant was convicted, (2) relates to conduct

that is not in itself criminal, and (3) requires or forbids conduct that is not reasonably

related to the future criminality of Appellant, and does not serve the statutory ends

of probation. Tamez, 534 S.W.2d at 691-692.

                                           19
       Appellant also notes that marriage represents a compelling state test because

it promotes stability, promotes the reasonable expectations of the parties, and also

promotes the physical and emotional health of the parties. These factors are

important to an person’s quality of life regardless of whether the person is under

community supervision. Thus, under the strict scrutiny analysis, marriage and its

incidental rights such as the right to cohabitate with one’s spouse should be allowed

for all who seek it because it contributes to a person’s well-being as well as the

stability of society.

       Appellant further notes that she seeks a strict scrutiny analysis not as a “felon”

but as a citizen who happens to be on community supervision. Unlike the plaintiff

in Hilliard v. Ferguson, 30 F.3d 649 (5th Cir. 1994), who sued under 42 U.S.C. §

1983 and argued that a school board and its superintendent allegedly violated his

rights under the Fourteenth Amendment because he was denied employment because

he was a convicted felon, Appellant does not argue that as a “felon,” she is entitled

to the right to marry. First, there is no “right” to obtain certain employment. Second,

it is settled that felons are not a suspect constitutional class, and the rational basis

standard to discrimination may be applied against felons. Id. at 654. Further, the

policy of the school board in Hilliard of not hiring felons bore a rational relationship

to a legitimate end, which was providing a high degree of educational services and

a safe environment.

                                           20
      Nor is this a situation such as jury duty. Many courts have recognized the

government’s legitimate interest in protecting the “probity of juries” as a rational

basis in the Equal-Protection context for excluding felons from juries. United States

v. Arce, 997 F.2d 1123, 1127 (5th Cir. 1993) (Rational basis review of Equal

Protection Clause claim of discrimination against felons used where the district

court struck a venireperson who had a prior conviction for heroin possession). See

also United States v. Foxworth, 599 F.2d 1, 4 (1st Cir. 1979) (The process of

excluding felons from jury duty “is intended to assure the ‘probity’ of the jury,” and

such review must be rationally based).

      Appellant seeks neither a job nor the opportunity at this time to serve on a

jury. She simply wants to live with and communicate her husband. There is no

rational reason for the State to deny Appellant these rights.

      iv.    In failing to acknowledge the misfeasance of the State in its
             briefing, the Court of Appeals has impliedly approved of such
             behavior.
      As part of its Respondent’s Original Answer to Appellant’s Application for

Writ of Habeas Corpus, the State tendered an affidavit sworn to and signed by Brett

Huffman, an assistant district attorney for Johnson County. (CR-Supp-1, 24-28).

Through the creation and swearing to of this document, Huffman implies that he has

personal knowledge of the facts sworn to. Huffman made himself a witness in this

matter. Huffman, however, remained an advocate for the government, and, in fact,

                                          21
was the author of the State’s Brief before the court of appeals. This dual role violates

Texas Disciplinary Rules of Professional Conduct Rule 3.08.

      Huffman used the affidavit he created for the purpose of manufacturing an

appellate record to establish 24 of the 29 footnoted “facts” alleged in the State’s four-

page statement of facts. See Appellee’s Brief at p. 2–5. Only FN 11, 13, 14, 22, and

23 referred to actual evidence presented to the trial court. Footnotes 6–12, 15–21,

and 24–29 are all citations to Huffman’s affidavit.

      If the “lawyer’s testimony concerns a controversial or contested matter,

combining the roles of advocate and witness can unfairly prejudice the opposing

party.” Tex. Disciplinary Rules Prof. Conduct R. 3.08, at cmt. 4 (2014). The

appearance of a testifying advocate tends to cast doubt on the ethics and propriety

of the judicial system. Aghili v. Banks, 63 S.W.3d 812, 818 (Tex. App. Houston

[14th Dist.] 2001, pet. denied) (op. on reh’g). When an attorney who represents a

party is an affiant in support of a brief, he is a witness. See Mauze v. Curry, 861

S.W.2d 869, 870 (Tex. 1993). Appellant never had an opportunity to rebut or cross-

examine Huffman so that the court of appeals and this Court would know that these

attested-to facts were never proven in court.

      As the State has not shown that any of the five exceptions found within Rule

3.08 apply, Huffman is an inappropriate person to present any facts in this matter.

See Southtex 66 Pipeline Co. v. Spoor, 238 S.W.3d 538 (Tex. App. Houston 14th

                                           22
Dist. 2007, pet. denied). Additionally, even if this Court were to find that one of the

exceptions of Rule 3.08 applied, Appellant argues that the affidavit fails because it

contains inadmissible hearsay and conclusory remarks, and it wholly fails to

establish that. Huffman did not establish that he has any personal knowledge of the

facts alleged. Texas Rule of Evidence 602 and Texas Rule of Civil Procedure

166a(f) require that affidavits “shall be made on personal knowledge, shall set forth

such facts as would be admissible in evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated therein”. See Tex. Rule Evid. 602

(2015) & Tex. Rule Civ. Proc. 166a(f) (2015).

      Finally, the State’s tactics in distracting the Court of Appeals from the

fundamental constitutional issue at hand by engaging in an unsubstantiated smear

campaign based on facts never presented to the trial court against Appellant and her

husband through the offering of incompetent and false “testimony” serve only as

further evidence of the intrusion by the State into Appellant’s fundamental right to

marry and live with her spouse. Huffman claimed as fact unsubstantiated allegations

that were made against Mr. Alsobrook that Huffman knew or should have known

were found unfounded. Further, similar claims against Appellant are also made in

Huffman’s affidavit. These claims are unsubstantiated and were never presented to

a court of law, never found to be true, and therefore are not fact that the Court of

Appeals should have accepted.

                                          23
      However, without comment, the Court of Appeals accepted this misfeasance.

Huffman’s affidavit was not competent evidence, and Appellant argues that the

affidavit should have not been considered. Yet, the Court of Appeals accepted the

mere allegations of the State as fact when they stated in their opinion that “[T]he

record shows that Appellant twice began relationships with men with criminal

records.” Ex Parte Tungeln, id. at *6.

      Even with this “affidavit” submitted by Huffman, the State failed to meet its

constitutional burden. In its brief to the Court of Appeals, the State presented no

legal foundation for their actions. Nor did the State present any argument to make

as to how this Condition 3 is constitutional given the law on the subject matter.

There is no evidence that allowing Appellant and her husband to live together as

husband and wife presents a danger to: (1) the community, the complaining witness

in Appellant’s case, (3) to Appellant, or (4) to Appellant’s husband. Such an

unconstitutional restriction does not serve the statutory ends of community

supervision.

      v.       Conclusion
      When the constitutionality of a statute is questioned, to overcome the

presumption that the legislature did not act unreasonably or arbitrarily, the party

challenging the statute must show by a preponderance of the evidence that the statute

is unconstitutional. The party must show only that the application of the statute

                                         24
harmed an important governmental interest. Once the party makes this showing, the

burden shifts to the Government to show that the challenged application is narrowly

tailored to meet a compelling governmental interest and that no less restrictive means

are available. Appellant met this burden because she proffered evidence that showed

by a preponderance of the evidence that: (1) she married her husband; (2) marriage

is an important governmental interest; and (3) the government prohibited the free

exercise of Appellant’s right to privacy in her marital relationship, her right to equal

protection under the law, her right to due process under the law, and her right to

freely associate with her spouse. And, the State failed to meet its burden of proving

that the application of “Condition 3” upon Appellant’s marital relationship could

survive strict scrutiny analysis. As a result, the Court of Appeals erred when it: (1)

overruled Appellant’s constitutional issues and concluded that Appellant failed to

meet her burden; (2) failed to recognize that the State did not meet its burden under

the strict scrutiny standard; (3) failed to analyze Appellant’s constitutional

arguments under the strict scrutiny standard; (4) accepted the State’s misfeasance in

its briefing; (5) accepted “mere allegations” offered by the State as proven fact; and

(6) failed to find that the trial court abused its discretion in denying Appellant’s

application.

      As a result, the Court of Appeals has decided an important question of state

or federal law that has not been, but should be, settled by the Court of Criminal

                                          25
Appeals; the Court of Appeals has decided an important question of state or federal

law in a way that conflicts with the applicable decisions of the Court of Criminal

Appeals and the Supreme Court of the United States; the Court of Appeals

misconstrued a rule; and the justices of the Court of Appeals have disagreed on a

material question of law necessary to the court’s decision. See Tex. Rule App. Proc.

66.3 (2015). Appellant asks this Court to grant discretionary review.

IX.   Conclusion and Prayer
      For the reasons stated in this petition, Appellant respectfully prays that this

Court: grant discretionary review; reverse the judgment and opinion of the Tenth

Court of Appeals; find that as applied to Appellant’s marital relationship, “Condition

3” violates Appellant’s rights under the federal and state constitutions; reform the

conditions of probation by removing Appellant’s husband from the limitations of

“Condition 3;” and allow Appellant and her husband to freely live together as

husband and wife.

                                 Respectfully submitted,

                                 THE LAW OFFICE OF KRISTIN R. BROWN, PLLC

                                 18208 Preston Road
                                 Dallas, TX 75252
                                 Phone: 214-446-3909
                                 Fax: 214-481-4868
                                 kbrown@idefenddfw.com
                                 Texas Bar No. 24081458


                                         26
                                 /s/ Kristin R. Brown
                                 By: Kristin R. Brown

                                 Michael Mowla
                                 P.O. Box 868
                                 Cedar Hill, TX 75106
                                 Phone: 972-795-2401
                                 Fax: 972-692-6636
                                 michael@mowlalaw.com
                                 Texas Bar No. 24048680

                                 /s/ Michael Mowla
                                 By: Michael Mowla

X.    Certificate of Service
      This certifies that on the date of filing, a copy of this document was served on
Brent Huffman of the Johnson County District Attorney’s Office, 204 S. Buffalo
Ave., Cleburne, Texas 76033, by email to brenth@johnsoncountytx.org; on David
Vernon of the Johnson County District Attorney’s Office Appellate Division by
email to davidv@johnsoncounty.tx.org; on Lisa McMinn, the State Prosecuting
Attorney by email to Lisa.McMinn@spa.texas.gov; and on John Messinger,
Assistant State Prosecuting Attorney by email to john.messinger@spa.state.tx.us.
See Tex. Rule App. Proc. 9.5 (2015) and Tex. Rule App. Proc. 68.11 (2015).

                                 /s/ Kristin R. Brown
                                 By: Kristin R. Brown




                                         27
XI.   Certificate of Compliance with Tex. Rule App. Proc. 9.4

       This certifies that this document complies with the type-volume limitations
because it is computer-generated and does not exceed 4,500 words. Using the word-
count feature of Microsoft Word, the undersigned certifies that this document
contains 3,327 words in the entire document except in the following sections:
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented
(grounds for review section), statement of jurisdiction, statement of procedural
history, signature, proof of service, certification, certificate of compliance, and
appendix. This document also complies with the typeface requirements because it
has been prepared in a proportionally-spaced typeface using Microsoft Word in 14-
point font. See Tex. Rule App. Proc. 9.4 (2015).

                                /s/ Kristin R. Brown
                                By: Kristin R. Brown




                                         28
APPENDIX 1
No Shepard’s Signal™
As of: August 6, 2015 9:43 PM EDT

                                        Ex parte Tungeln
                             Court of Appeals of Texas, Tenth District
                                   August 6, 2015, Opinion Filed
                                        No. 10-14-00329-CR

Reporter
2015 Tex. App. LEXIS 8247

EX PARTE JULIE ANN VON TUNGELN

Notice: Decision text below is the first available text from the court; it has not been editorially
reviewed by LexisNexis. Publisher’s editorial review, including Headnotes, Case Summary, Shepard’s
analysis or any amendments will be added in accordance with LexisNexis editorial guidelines.

Core Terms

community supervision, probation, pet, trial court, parte, Probationers, terms and conditions,
conditions, rights

Opinion

[*1] From the 18th District Court Johnson County, Texas Trial Court No. F43117-A

MEMORANDUM OPINION

In 2009, Appellant Julie Ann Von Tungeln pleaded guilty to two counts of sexual assault of a child
under a plea bargain that included the following terms: ten years’ deferred adjudication community
supervision, 180 days in county jail with work release, a $2,000 fine, sex-offender terms and
conditions, and standard community supervision terms and conditions. One of the standard terms and
conditions of community supervision that Appellant agreed to be subject to is Condition 3: ″Avoid
association with persons who have criminal records and those of disreputable or harmful character.″

Appellant initialed and signed the felony community supervision order, along with signing the ″Order
of Deferred Adjudication: Community Supervision″ and the plea

agreement.

In May of 2013, Appellant (without the trial court’s approval) and Steven Alsobrook filed a Formal
Declaration and Registration of Informal Marriage, seeTEX. FAM. CODEANN. §§ 2.401, 2.402 (West
2006), but they had it immediately annulled when they learned that Alsobrook’s divorce was not final.
Alsobrook, like Appellant, was also on felony community supervision.1On June 19, 2013, [*2] the
State filed its First Amended Motion to Proceed with an Adjudication of Guilt; it alleged in part that
Appellant violated
                                      2015 Tex. App. LEXIS 8247, *3



Condition 3, ″to-wit: on or about May 24, 2013 the defendant married Steven Alsobrook, who has an
extensive criminal history and is currently on felony probation for Family

Violence in Dallas County, Texas.″2After Appellant agreed to two weeks in jail as a condition of
probation for the alleged violations, the State withdrew its motion to adjudicate.

On August 27, 2013, and again without the trial court’s approval,3Appellant and Alsobrook filed a
second Formal Declaration and Registration of Informal Marriage. After filing several unsuccessful
motions to modify her community supervision terms and conditions so that she could associate with
Alsobrook, Appellant filed the instant habeas application and raised constitutional complaints about
Condition 3’s application to her spouse. SeeTEX. CODECRIM. PROC. ANN. art. 11.072, § 3(c) (West
2015). The trial

1 Upon learning that Alsobrook had a criminal record, Appellant would have been in violation of
Condition

3 by associating with him. See Gill v. State,593 S.W.2d 697, 698 (Tex. Crim. App. [Panel Op.] 1980).

2The State also alleged that Appellant had associated with another man with a criminal background
over a two-year period. Other [*3] alleged violations were: drinking alcohol on two occasions;
travelling more than

100 miles without permission; and twice having unsupervised contact with children.

3 Appellant filed a motion to modify after the filing of the second Declaration.

Ex parte Von Tungeln Page 2

court entered an order finding that Appellant was manifestly not entitled to relief and denied the habeas
application as frivolous. This appeal followed.

Appellant asserts two issues: (1) the trial court abused its discretion and violated

Appellant’s constitutional rights because Condition 3 is unconstitutional as applied to Appellant
because it violates Appellant’s rights to privacy, due process, and equal protection; and (2) the trial
court violated Appellant’s constitutional rights because Condition 3 is unconstitutional as applied to
Appellant because it violates Appellant’s

First Amendment right of association. Because the habeas court determined that

Appellant’s application was frivolous and that Appellant was manifestly not entitled to relief, we
review de novo the habeas court’s order. Ex parte Skelton,434 S.W.3d 709, 717 (Tex. App.-San Antonio
2014, pet. ref’d).

An award of community supervision is not a right, but a contractual privilege, and its conditions are
terms of the contract entered into between [*4] the trial court and the defendant. Speth v. State, 6
S.W.3d 530, 534 (Tex. Crim. App. 1999). A trial court has broad discretion in determining the conditions
to be imposed. Id. at 533; see also Butler v. State, 189 S.W.3d 299, 303 (Tex. Crim. App. 2006).″The
judge may impose any reasonablecondition that is designed to protect or restore the community, protect

                                                 Page 2 of 5
                                       2015 Tex. App. LEXIS 8247, *4



or restore the victim, or punish, rehabilitate, or reform the defendant.″ TEX. CODECRIM. PROC.
ANN. art. 42.12, § 11(a) (West Supp. 2014). One of the statutory conditions that a trial court may
include is that the defendant shall: ″Avoid persons or places of disreputable or harmful character.″
Id.art. 42.12, § 11(a)(3). This condition is presumptively reasonable. SeeMitchell v. State, 420 S.W.3d
448, 450 (Tex. App.-Houston [14th Dist.] 2014, no pet.).

Ex parte Von Tungeln Page 3

A condition of probation is invalid if it has all three of the following characteristics:

(1) it has no relationship to the crime;

(2) it relates to conduct that is not in itself criminal; and

(3) it forbids or requires conduct that is not reasonably related to the future criminality of the defendant
or does not serve the statutory ends of probation.

Lacy v. State, 875 S.W.2d 3, 5 (Tex. App.-Tyler 1994, pet. ref’d) (citationsomitted); accord Marcum v.
State, 983 S.W.2d 762, 768 (Tex. App.-Houston [14th Dist.] 1998, pet. ref’d). A community supervision
″condition is not necessarily invalid simply because it affects [the defendant’s] ability to exercise
constitutionally protected rights.″ Lee v. State, 952 S.W.2d 894, 900 (Tex. App.-Dallas 1997, no pet.)
(en banc). A condition that is ″reasonably related to the purposes of probation″ is permissible. [*5] Id.
″Reasonably related″ hinges on three factors: ″(1) the purposes sought to be served by probation; (2)
the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to
probationers; and (3) the legitimate needs of law enforcement.″ Macias v. State,649 S.W.2d 150, 152
(Tex. App.-El Paso 1983, no pet.) (quoting United States v. Tonry, 605 F.2d 144, 150 (5th Cir. 1979),
abrogation on other grounds recognized by United States v.Tex. Tech Univ., 171 F.3d 279, 287 (5th Cir.
1999));accord Lee, 952 S.W.2d at900.

Briseño v. State, 293 S.W.3d 644, 647-48 (Tex. App.-San Antonio 2009, no pet.);see also Ex

parte Alakayi, 102 S.W.3d 426, 432 (Tex. App.-Houston [14th Dist.] 2003, pet. ref’d).

A probationer has diminished constitutional rights, including a diminished right

to privacy. In re D.L.C., 124 S.W.3d 354, 365 (Tex. App.-Fort Worth 2003, no pet.) (citing

Griffin v. Wisconsin, 483 U.S. 868, 875, 107 S.Ct. 3164, 3169, 97 L.Ed.2d 709 (1987)).

[R]ehabilitation is [not] the sole goal of probation. A second primary goal of probation is protecting
society. Knights, 534 U.S. at 119, 122 S.Ct. 587; see TEX. CODECRIM. PROC. ANN. art. 42.12 sec.
11(a) (Vernon Supp. 2008) (stating judge may impose any reasonable condition of probation designed
to protect the community). Probationers are ″more likely than the ordinary citizen to violate the law.″
Knights,534 U.S. at 120, 122 S.Ct. 587; Griffin,483

Ex parte Von Tungeln Page 4

U.S. at 880, 107 S.Ct. 3164. … Probationers therefore ″do not enjoy ’the absolute liberty to which
every citizen is entitled, but only ... conditional liberty properly dependent on observation of special

                                                  Page 3 of 5
                                       2015 Tex. App. LEXIS 8247, *5



[probation] restrictions.’ ″ Griffin,483 U.S. at 874, 107 S.Ct. 3164 (quoting Morrissey v.Brewer, 408
U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).″Theserestrictions are meant to assure that the
probation serves as a period of genuine rehabilitation and that the community is not harmed by the
probationer’s being at large.″ [*6] Griffin, 483 U.S. at 875, 107 S.Ct. 3164.

Townes v. State, 293 S.W.3d 227, 231 (Tex. App.-San Antonio 2009, no pet.).

We agree with the State that the purpose of Condition 3 is to assist Appellant’s

rehabilitation and reformation by preventing her from associating with persons with

criminal records and disreputable or harmful character. As quoted above, probationers

are more likely than the ordinary citizen to violate the law, and the State’s goal of

protecting society is furthered by preventing felons on community supervision from

associating with each other. See id.

Appellant had the burden of proving facts entitling her to the requested relief.

Alakayi, 102 S.W.3d at 432. The record shows that Appellant twice began relationships

with men with criminal records, that Appellant twice ″married″ Alsobrook without court

approval (including once while a motion to adjudicate was pending and after having

been arrested and released on bond), and that Appellant allegedly violated other terms

and conditions. Based on the record, we cannot say that Appellant met her burden, and

we cannot say that the trial court erred or abused its discretion in denying Appellant’s

habeas application. See id.at 432-33 (upholding community-supervision conditions that

restricted defendant’s access to his son and also prevented defendant from living with

his wife as long as [*7] she was living with their son, against defendant’s constitutional

Ex parte Von Tungeln Page 5

complaint pertaining to his right to association with his family); see also In re Pate, No. 12-

11-00406-CV, 2012 WL 1142477 (Tex. App.-Tyler Mar. 30, 2012, orig. proceeding) (mem.

op.) (imprisoned husband did not establish constitutional infirmity of wife’s community-

supervision condition that prevents her from communicating with him).

We overrule Appellant’s two issues and affirm the trial court’s order.

REX D. DAVIS
                                                 Page 4 of 5
                                     2015 Tex. App. LEXIS 8247, *7



Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins

(Chief Justice Gray dissents with a note)* Affirmed

Opinion delivered and filed August 6, 2015 Do not publish

[CR25]

*(Chief Justice Gray dissents from the opinion and judgment of the Court. A separate opinion will not
be issued.)

Ex parte Von Tungeln Page 6




                                               Page 5 of 5
