                                                                      ACCEPTED
                                                                 12-14-00342-CR
                                                     TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                             3/6/2015 4:07:22 PM
                                                                    CATHY LUSK
                                                                          CLERK



      oAUSE NO. 12'14'00342 'cR
                                                RECEIVED IN
                IN THE                    12th COURT OF APPEALS
                                               TYLER, TEXAS
    TWELFTH COURT OF APPEALS
          TYLER, TEXAS                     3/6/2015 4:07:22 PM
                                               CATHY S. LUSK
                                                   Clerk


VERA LOUISE CLERKLEY, APPELLANT

                   VS.

   THE STATE OF TEXAS, APPELLEE



           On APPeal from the

       3rd Judicial District Court of
         Anderson CountY, Texas

          (Trial Court No. 31399)

Hon. Bascom W. Bentley,   III, Judge Presiding


          APPELLANT'S BRIEF



           WM. M. HOUSE, JR.
              TBC#40045000
           800 Nontn CHURcH
         Per,ustIus, TUxAS 75801
               903.723.2077
             903.723.6323 rax


       COUNSEL FOR APPELLANT
                   IDENTITIES OF PARTIES AND COUNSEL



YERA. LOUISE CLERKLEY, APPellant


                                        HON. Bascom W. BENTLEY,       III
Judge Presiding:
                                        And.erson CountY Courthouse
                                        Palestine, Texas 75801


For the State at Trial:                 Scott HOLDEN
                                        TF,ffi24036795
                                        Assistant District AttorneY
                                        Anderson CountY Courthouse
                                        500 North Church, Room 38
                                        Palestine, Texas 75801


For the Defendant at Trial:             Wm. M. HOUSE, JR.
                                        Attorney at Law
                                        TCB#10045000
                                        800 North Church
                                        P. O. Box 1486
                                        Palestine, Texas 75801


For the Defendant on APPeaI:            Wm. M. HOUSE, JR.
                                        Attorney at Law
                                        TCB#10045000
                                        800 North Church
                                        P. O. Box 1486
                                        Palestine, Texas 75801




                                    2
                             TABLE OF CONTENTS




Identity of Parties and' Counsel...              """"""'2
Table of    Contents......                        """""'3
Ind.ex of   Authorities...                        """""'4
Statement of   Case...                           """""""5
Issues   Presented                                 """ ""6
Statement of   Facts                                 """'6
Summary of the    Argument                            "'"'6
Argument......                                   """""""7
Prayer...                                          """"""7
Certifrcate of Service......                         """'   8


Certificate of Compliance...                     """""""8
                         INDEX OF AUTHORITIES



CASES

Rogers v. State,640 S.W.2 d,248 (Tex'Crim'App'   1981)        """7

McFarland v. State,644 S.W.2d 17 (Tex.App.-Dallas   1982)'   """"'7




                                        4
                              CAUSE NO. 31399

                                   IN THE
                      TWELFTH COURT OF APPEALS
                            TYLER, TEXAS



                 VERA LOUISE CLERKLEY, APPELI,AI\i1T

                                      vs.

                     THE STATE OF TEXAS, APPELLEE



                              On ApPeaI from the

                         3rd Judicial District Court of
                           Anderson CountY, Texas


                            APPELLANTS BRIEF




                                                               of Theft of
       on December 2,z}L},Appellant pled Guilty to the offense
                         and $20,000'00. she was sentenced to 24 months
                                                                           in
Property between $1500.00
                                                                was suspended
TDCJ State Jail Division, however that sentence of confinement
                                                         a period of five years'
and.Appellant was placed on community Supervision for
                                                   pay $5610.37 in restitution'
one of the terms of probation was a requirement to
                                                     Appellant',s community
on May 30,2l14,the state filed a Motion to Revoke
                                                     Appellant's probation'
supervision. on october 20,}Ol4,the court revoked'
                                                             Notice of Appeal
sentenced  her to one year State Jail Division TDCJ' Timely
was given.


                                        5
                                 ISSUES PRESENTED


      The Trial Court erred in continuing the Revocation Hearing for prolonged
period and then revoking probation without a determination of new violation,
violating the minimum requirements of due process'


                               STATEMENT OF FACTS


      On September 29th, the court convened a hearing on the State's Motion to
Revoke Probation. At that hearing Appellant pled True (Rn Vot. 2 p5 L 6 and p5
LLO'2D. The court without rendering a decision or revoking Appellant's
probation recessed the hearing and ordered a Pre'sentence Report. (RR Vot.        Z

pI6 L2'7)
      Then on October 20, the court reconvened the hearing. At that hearing,
Appellant objected to the court proceeding, (RR VoI. 3 p1 L9-15) further objection
was made (nn Vot.   B   pB   L8'2f).   The counsel for Appellant further argued that
the court did not have the authority to revoke her on that date, the case had
been heard, there was evidence that could have been used to revoke her, the
court did not revoke her at that time, the court continued it to the current date,
the court then proceeded to grant the State's Motion to Revoke. (nn Vol. 3 p7
L22-25)


                         SUMMARY OF THE ARGUMENT


      Appellant's due process rights were violated. The court's taking
defendant's plea of True, in the first revocation hearing and not revoking her
constituted a thinly disguised decision to continue the probation. The court
erred in subsequently revoking her probation without evidence of any new
violation.
                                   ARGUMENT


       Judge Roberts, on State's Motion for Rehearing in Rogers v' State,
                                                                                 640
                                                                                for a
S.W.2d 248 (Tex.Crim.App. 1981), "it would be the epitome of arbitrariness
court first to conduct a hearing on arleged viorations and exercise
                                                                    its discretion to
                                                                            hearing'
return the probationer to probation (whether by a "continuance of the
                                                                              late to
or by (continuance of the probation", and then deciding several months
                                                                 probation without
exercise its d.iscretion in the opposite fashion by revoking the
any determination of a new violation'"
      A similar  situation occurred in McFarland v. state, 644 s'w'zd l7
(Tex.App.-Dallas 1982), in that case the trial court considered the State's Motion
to Revoke on March 27,         Defendant entered a plea of True to the charge'
                           lg8l.
                                                                              did
Although the court found that the Defendant had failed to report, the court
not revoke his probation, but passed. the cause generally. on April 23,
                                                                           19881,

another hearing was held" before the trial court at which time the court
                                                                         revoked

Defendant's probation.    At the April   23'd hearing, Defendant was not charged

with any add.itional violations of conditions of probation. "Such an action is not   a

true continuance, but is a thinly'disguised decision to continue the probation"'
      AIso in McFarland v. State, 644 S.W.2d 17 (Tex.App.-DaIIas 1982),
                                                                              "once
                                                                      period' the
the trial court has continued the revocation hearing for a prolonged
court may not revoke probation without a d'etermination of a new violation"'

                                      PRAYER


                                                                           prays
      WHEREFORE, PREMISES CONSIDERED, Undersigned counsel
that upon due consid.eration of Appellant's Brief, the court reverse the
                                                                         trial
court and set aside the order revoking her probation.



                                           7
                                       RESPECTFULLY SUBMITTED,



                                                  WM. M. HOUSE, JR.

                                                800 Nontn Cnuncn
                                                Per,psrtxo, TbxAS 75801
                                                903.723.2077
                                                9O3.723.6323 rex




I hereby certifir that a true and correct copy of the foregoing document has
forwarded to the Office of Criminal District Attorney, Anderson County




                                                      nt
                                        Legal         ;to
                                        Wm. M. House, Jr.
                                        Attorney at Law




At the request of the Court, I certify that this submitted computer e'filing
                                                              of 976'
complies with the Tex.R.App.P. 9.4(il(3) and has a word count




Carolyn Newgd
Legal Agsistant !d
Wm. NI. House-, Jr.
Attorney at Law
                                         8
