                                                                                    ACCEPTED
                                                                                06-15-00077-CR
                                                                     SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                           8/17/2015 8:52:11 PM
                                                                               DEBBIE AUTREY
                                                                                         CLERK


                 CAUSE NO. 06-15-00077-CR
                                 IN THE                        FILED IN
                                                        6th COURT OF APPEALS
                                                          TEXARKANA, TEXAS
                          COURT OF APPEALS              8/18/2015 9:36:00 AM
           SIXTH APPELLATE DISTRICT OF TEXAS AT    TEXARKANADEBBIE AUTREY
                                                                Clerk

___________________________________________________________________
                   ANTHONY SCOTT ROPER, Appellant
                                  VS.
                     THE STATE OF TEXAS, Appellee
___________________________________________________________________
                 On appeal from the 276th District Court
                          Titus County, Texas
                       Trial Court No. CR 16,480
___________________________________________________________________
                          APPELLANT’S BRIEF
___________________________________________________________________
                                        MAC COBB
                                        Texas bar No. 004434300
                                        P.O. Box 1134
                                        Mt. Pleasant, Texas 75456-1134
                                        Telephone: 903.717.8606
                                        Fax:        903.717.8613
                                        maccobblaw@yahoo.com

                                        /S/ MAC COBB
                                        __________________________
                                        Mac Cobb, Attorney for
                                        Appellant, Anthony Scott Roper
ORAL ARGUMENT NOT REQUESTED
                        TABLE OF CONTENTS




Table of Contents………………………………………………………………………………1
Identity of Parties and Counsel…………………………………………………………..2
Index of Authorities……………………………………………………………………………4
Statement that Oral Argument IS NOT REQUESTED……………………………4
Statement of the Case………………………………………………………………………..6
Issues Presented…………………………………………………………………………………7
Statement of Facts………………………………………………………………………………7
Summary of the Argument………………………………………………………………….8
Argument…………………………………………………………………………………………10
Prayer………………………………………………………………………………………………14
Certificate of Service…………………………………………………………………………15
Certificate to Length………………………………………………………………………….16




                              1
                      CAUSE NO. 06-15-00077-CR
                                       IN THE
                                COURT OF APPEALS
              SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
___________________________________________________________________
                        ANTHONY SCOTT ROPER, Appellant
                                           VS.
                          THE STATE OF TEXAS, Appellee
___________________________________________________________________
                       IDENTITY OF PARTIES AND COUNSEL

Anthony Scott Roper, Appellant
ID No. 2002681
Joe F. Gurney Unit
1385 FM 3328
Palestine, Texas 75803

Mac Cobb
Attorney for Appellant, Anthony Scott Roper
Texas Bar No. 04434300
P.O. Box 1134
Mt. Pleasant, Texas 75456-1134
Telephone: 903.717.8606
Fax:         903.717.8613
maccobblaw@yahoo.com

Charles C. Bailey, District Attorney
P.O. Box 249
Mt. Pleasant, Texas 75456
Telephone: 903.577.6726
Fax:         903.577.6729
dacbailey@hotmail.com                  2
                            INDEX OF AUTHORITIES


                                   CASE LAW


Wheat vs. State, 165 S.W.3d 802, 806 (Tex. App.-Texarkana, 2005, pet. ref’d)..10



                                   STATUTES
Texas Penal Code, Annotated, Sec. 2.04 (d)…………………………………………………….10
Texas Code of Criminal Procedure, Annotated, Art. 42.12, Sec. 10(a)……………….8
Texas Code of Criminal Procedure, Annotated, Art. 42.12, Sec. 21(c)………………11
Texas Code of Criminal Procedure, Annotated, Art. 42.12, Sec. 24……………………9




                     ORAL ARGUMENT IS NOT REQUESTED




                                       3
                  CAUSE NO. 06-15-00077-CR
                                     IN THE
                               COURT OF APPEALS
             SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
___________________________________________________________________
                      ANTHONY SCOTT ROPER, Appellant
                                       VS.
                         THE STATE OF TEXAS, Appellee
___________________________________________________________________
                     On appeal from the 276th District Court
                               Titus County, Texas
                              Trial Court No. 16,480
___________________________________________________________________


        ___________________________________________________________________

                             APPELLANT’S BRIEF
        ___________________________________________________________________



TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      Comes now Anthony Scott Roper, Appellant, and files this brief in support of

his Prayer that the Court of Appeals reverse the Judgment of Conviction and

                                             4
Sentence entered by the Trial Court below.

                            STATEMENT OF THE CASE

      This is an appeal of a Judgment Adjudicating Guilt for alleged violations of

conditions of community supervision. The Appellant pled Not True and objected

to the jurisdiction of the court, presented evidence that the State of Texas was not

diligent in seeking revocation of the Appellant’s community supervision, and that

the State of Texas did not meet its burden of proof as to the allegations. The Court

granted the State’s motion and entered a Judgement of Conviction and Sentence.

                                   ISSUES PRESENTED

      Issue No. 1        Was the Trial Court required to transfer the case to the

Court which originally placed the Appellant on probation?

      Issue No. 2        Did the State of Texas fail to use due diligence under

Texas Code of Criminal Procedure, Article 42.12, Section 24?

      Issue No. 3        Did the State of Texas prove by a preponderance of the

evidence that the Appellant was able to pay the ordered probation fees?

                                 STATEMENT OF FACTS

      On September 7, 2010, the Appellant was placed on Community Supervision,

by Order of Deferred Adjudication, by presiding Judge Jimmy L. White, 76th Judicial

                                             5
       District of Titus County, Texas, for the offense of Failure to Register as a Sex

Offender in this case. CR p. 18-20. On January 15, 2015, the State of Texas filed a

Motion to Adjudicate Unadjudicated Offense. CR p. 31-33. On April 23, 2015, the

Appellant filed a Motion for Transfer of the case from the 276th Judicial District

Court to the 76th Judicial District Court, the Court of Original Jurisdiction. CR p. 45-

46. The 276th Judicial District Court set a hearing on April 24th, 2015, to which the

Appellant objected. RR Vol. 1, p. 4. The Appellant pled Not True to the State’s

Motion and a hearing was held by the Judge of the 276th District Court, Hon. Robert

Rolston.

      The Court took testimony on April 24, 2015, and rendered a judgment finding

that the Appellant violated the conditions of his probation, revoking his probation,

adjudicating the Appellant Guilty, and sentencing him to 3 years confinement in the

Institutional Division of the Texas Department of Corrections. RR Vol. 1, p. 40; CR

p. 53-55. The Appellant gave Notice of Appeal. CR p. 47.




                                               6
                              SUMMARY OF THE ARGUMENT

      Issue No. 1         The Trial Court erred in refusing to transfer the

proceedings to the Court of original jurisdiction. The Appellant was placed on

deferred community supervision by the 76th Judicial District Court. The hearing was

held in the 276th Judicial District Court over the motion and objection of the

Appellant to transfer the case to the 76th Judicial District Court.

      Issue No. 2         The Trial Court erred in failing to find that the Appellant

had met his burden of proof that the State of Texas was not diligent in regard to

supervision of the Appellant’s duty to report. The Trial Court erred in finding that

the State of Texas had met its burden of proof that the Appellant did not report as

ordered in the conditions of probation. The evidence presented that the defendant

reported faithfully except when he believed he was permitted to report by

telephone.

      Issue No. 3         The Trial Court erred in finding that the State of Texas had

met its burden of proof that the Appellant had willfully failed to pay the Court

ordered probation fees. The evidence showed by a preponderance that the

Appellant was unable to pay because of health limitations and because he could

                                               7
not obtain employment. The State of Texas must prove by a preponderance of the

evidence that a probationer has the means to pay Court ordered fees to support a

finding of failure to pay for revocation.

                                        ARGUMENT

      Issue No. 1         Only the Court which places a person on probation may

revoke the person’s probation unless the Judge has transferred the case to another

Court. Texas Code of Criminal Procedure, Annotated, Art. 42.12, Sec. 10 (a). The

Appellant was placed on deferred community supervision by Hon. Jimmy L. White,

now deceased, Judge of the 76th Judicial District Court. CR p. 18-20. The jurisdiction

of the 76th Judicial District Court continued with Hon. Danny Woodson being

appointed, qualified, and sworn to fill the vacancy. Although the Appellant filed a

Motion to Transfer the case to the proper Court, the Motion was denied by Hon.

Robert Rolston, Judge of the 276th Judicial District Court, who proceeded over the

objection of the Appellant, to hear the State’s Motion to Adjudicated

Unadjudicated Offense.

      The Appellant’s Motion to Transfer the case to the 76th Judicial District Court

set out the grounds for the improper jurisdiction to hear the said Motion. CR p. 45-

46. The Appellant objected to the failure to transfer and the Court denied the

                                              8
Motion to Transfer and continued with the hearing. RR Vol 1, p. 5, line 8.

       Because, without a proper transfer, the Judge of the 76th Judicial District

Court, Hon. Danny Woodson, would be the proper and only Judge to hear this

matter. The obvious importance of this provision is to prevent the possibility of

one Court “stepping on the toes” of another Court and the possibility of the State

of Texas “forum shopping” in order to anticipate a favorable ruling. In many large

counties where there are many more than two Courts with equal rank and

territorial jurisdiction, it is clear that the purpose of this provision is in the interest

of justice. The Court of Appeals should reverse the judgement in this case and

remand the case for a new hearing in the proper Court in order to preserve the

jurisdictional integrity of the Court system and to give effect to the law in support

thereof.

       Issue No. 2          The State of Texas failed to exercise due diligence in

regard to the allegation that the Appellant did not report as directed. It is an

affirmative defense to revocation for failure to report, when the Appellant shows

that the State of Texas did not exercise due diligence in contacting the probationer.

Texas Code of Criminal Procedure, Annotated, Art. 42.12, Sec. 24. As to an

affirmative defense, the burden of proof required of the accused is by

                                                 9
preponderance of the evidence. Texas Penal Code, Annotated, Sec. 2.04 (d). This

burden of proof has been recognized and applied in revocation proceedings in

denying the State’s allegation of failure to report. Wheat vs. State, 165 S.W.3d 802,

806 (Tex. App.-Texarkana, 2005, pet. ref’d).

      The State’s witness at the hearing was Probation Officer Rance Hockaday,

who testified that the Appellant had, over the entire course of the probation, failed

to report three times, March, April, and September of 2013. RR Vol. 1, p. 9. Mr.

Hockaday acknowledged that he did not attempt to contact the Appellant in March

or April about the failure to report. RR Vol. 1, p. 12. He also acknowledged that he

didn’t contact the Appellant in September about the failure to report. RR Vol. 1, p.

12. The appellant testified that he understood that he had been permitted to call

in because of his work schedule, and that he did so. RR Vol. 1, p. 22. RR Vol. 1, p.

30. Mr. Hockaday stated that it was his practice to contact the probationers if they

failed to report, but that he did not have it documented in the file. RR Vol. 1, p. 13.

      Because the probation office could not document that he made contact with

the Appellant or testify other than as to custom or vague recall, the Appellant met

his burden of proof that the probation department was not diligent in contacting

                                               10
the Appellant about failing to report, and the Court erred in finding the violation to

be true.

       The State of Texas, as shown above, failed to prove by a preponderance of

the evidence that the Appellant willfully failed to report as ordered or that the State

was diligent in contacting the Appellant about the alleged failures.

       Therefore the Court of Appeals should reverse the finding of the trial court

as to the allegation of failure to report.

       Issue No. 3

       The State of Texas must prove by a preponderance of the evidence that a

probationer was able to pay and did not pay the Court ordered fees. Texas Code

of Criminal Procedure, Annotated, Art. 42.12, Sec 21 (c). Although the Appellant

acknowledged that he had not paid as ordered by the Court, his testimony was that

he was unable to pay because he could not find a job. RR Vol. 1, p. 24. The problem

of obtaining work was primarily caused by the fact that the Appellant was a

convicted sex offender. Vol. 1, p. 25. The problem was compounded by medical

and physical problems that limited his ability to do certain types of work. RR Vol.

1, p. 28.

                                        11
      Instead of offering evidence contrary to the Appellant’s testimony on

inability to pay, the probation officer confirmed the Appellant’s testimony. Mr.

Hockaday acknowledged that the Appellant had been unemployed for a little over

two years. RR Vol. 1, p. 10. Mr. Hockaday also acknowledged that the Appellant

to him that no one would hire him because of his criminal history and that he had

medical problems, all undisputed.          RR Vol. 1, p.15.       Mr. Hockaday also

acknowledged that he believed the Appellant to have no income or resources at all

and lived off of the charity or someone else. RR Vol. 1, p. 16.

      The only testimony before the Court was that the Appellant was not able to

pay his fees because he had no resources and could not find work. The State of

Texas did not controvert any of that evidence so the preponderance of the

evidence goes to the Appellant. The Trial Court erred in finding that the Appellant

willfully failed to pay his fees. The Court of Appeals should reverse the Trial Court

as to the finding of failure to pay violation.




                                                 12
                                           PRAYER

      The Appellant prays the Court of Appeals to reverse the judgment and

sentence of the Trial Court and render a Judgment of Not True, denying the State’s

Motion to Adjudicate Unadjudicated Offense, or in the alternative remand the case

to the 76th Judicial District Court for hearing in the Court of original jurisdiction.

                                                RESPECTFULLY SUBMITTED

                                                MAC COBB
                                                Texas bar No. 004434300
                                                P.O. Box 1134
                                                Mt. Pleasant, Texas 75456-1134
                                                Telephone: 903.717.8606
                                                Fax:        903.717.8613
                                                maccobblaw@yahoo.com

                                                /S/ MAC COBB
                                                __________________________
                                                Mac Cobb,
                                                Attorney for Anthony Scott Roper,
                                                Appellant




                                           13
                              CERTIFICATE OF SERVICE

I certify that the Attorney for the State of Texas, District Attorney Charles C.

Bailey, was served with a copy of this brief by e-mail or by e-filing on this 17th day

of August, 2015.                                            /S/ Mac Cobb




                              CERTIFICATE OF LENGTH

I certify that my word processing program indicates the length of the brief to be

2160 words.               /S/ Mac Cobb




                                              14
