07-18-00139-CR                                                                                  ACCEPTED
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
5/30/2018 8:36 AM
Vivian Long, Clerk




                               IN THE SEVENTH COURT OF APPEALS
                                      AT AMARILLO, TEXAS
                                                                                FILED IN
                                                                         7th COURT OF APPEALS
              JAMES DEWAYNE GRUMBLES, §                                    AMARILLO, TEXAS
                  Appellant           §                                  5/30/2018 8:36:56 AM
                                      §                                       VIVIAN LONG
              V.                      §                 CAUSE NO.                CLERK
                                                                     07-18-00139-CR
                                      §                 TRIAL COURT NO. CR-29576
              THE STATE OF TEXAS,     §
                  Appellee            §


                                        BRIEF OF APPELLANT


                  Appealed from the 91st Judicial District Court, Eastland County, Texas
                                    Hon. Steven R. Herod, presiding




                                                          COPELAND LAW FIRM
                                                          P.O. Box 399
                                                          Cedar Park, Texas 78613
                                                          Tel: 512.897.8196
                                                          E-mail: tcopeland14@yahoo.com

                                                          Tim Copeland
                                                          State Bar No. 04801500
                                                          Attorney for Appellant




              APPELLANT HEREBY WAIVES ORAL ARGUMENT
         TABLE OF CONTENTS and INDEX OF AUTHORITIES


                             Table of Contents

                                                                    Page

Table of Contents                                                   i-iii

Index of Authorities                                                iii-iv

1.   IDENTITY OF PARTIES AND COUNSEL                                1

2.   STATEMENT OF THE CASE                                          3

3.   STATEMENT CONCERNING ORAL ARGUMENT                             5

4.   ISSUE PRESENTED                                                6

          The trial court abused its discretion in revoking
     Grumbles’ community supervision because the State failed to
     meet its burden of proving a violation of the terms of his
     community supervision by a preponderance of the evidence.

5.   BACKGROUND FACTS                                               7

6.   SUMMARY OF THE ARGUMENT                                        9

7.   ISSUE RESTATED                                                 9

8.    STATEMENT OF PERTINENT EVIDENCE                               9

9.   ARGUMENT                                                       10

     A. Standard of Review
           An appellate court’s review of an order revoking
           community supervision is limited to a determination of
           whether the trial court abused its discretion.


                                     i
                  Table of Contents, continued
                                                                       Page

              1) The appellate court reviews the evidence in the
                 light most favorable to the trial court’s judgment.

              2) The State has the burden to create a reasonable
                 belief that a condition of community supervision
                 has been violated as alleged in the motion to
                 revoke by a preponderance of the evidence.

              3) The State satisfies that burden when the greater
                 weight of the credible evidence before the court
                 creates a reasonable belief that a condition of
                 community supervision has been violated as
                 alleged in the motion.

              4) Evidence does not meet this standard when “the
                 evidence offered to prove a vital fact is so weak
                 as to do no more than create a mere surmise or
                 suspicion of its existence” or when the finder of
                 fact must “guess whether a vital fact exists.”

B. Analysis

  1) Grumbles’ supposed violation of his probation rests upon
     a single point of evidence: the State believed Grumbles
     would not attend a SAFP facility when in reality the State
     never transported or admitted him to such a facility.

  2) The evidence was legally insufficient to meet the State’s
     allegations in its motion to revoke because it failed to show
     an actual breach of a condition, and, therefore, the trial
     court abused its discretion in revoking Grumbles’
     probation.

                                     i
                     Table of Contents, continued
                                                                  Page

10.   PRAYER                                                       12

11.   CERTIFICATE OF SERVICE AND OF                                13
      COMPLIANCE WITH RULE 9

                            Index of Authorities

                   Texas Court of Criminal Appeals cases

Battle v. State                                                    10
      571 S.W.2d 20 (Tex. Crim. App. 1978)

Cardona v. State                                                   11
     665 S.W.2d 492 (Tex. Crim. App. 1984)

Cobb v. State                                                      10
     851 S.W.2d 871 (Tex. Crim. App. 1993)

Ex Parte James Dewayne Grumbles, 2018WL1101263 (Tex. Crim. App.
Feb.28,2018 (per curium) (not designated for pub.).                4

Hacker v. State                                                    10
     389 S.W.3d 860 (Tex. Crim. App. 2013)

Jackson v. State                                                   9
     645 S.W.2d 303 (Tex. Crim. App. 1893)

Jones v. State                                                     10
      589 S.W.2d 419 (Tex. Crim. App. 1979)

Naquin v. State                                                    10
     607 S.W.2d 583 (Tex. Crim. App. 1980).

                                     iii
                    Index of Authorities, continued
                                                               Page


Rickles v. State                                                9
      202 S.W.3d 759 (Tex. Crim. App. 2006)


                        Texas Court of Appeals cases

Antwine v. State                                                11
     268 S.W.3d 634 (Tex. App. – Eastland 2008, pet. ref’d)

Hays v. State                                                   11
     933 S.W.2d 659 (Tex. App. – San Antonio 1996, no pet.)


Torres v. State                                                 10
      103 S.W.3d 623 (Tex. App. – San Antonio 2003, no pet.)


                                   Statutes

TEXAS HEALTH & SAFETY CODE                                      3,7
    §§ 481,102(6), .115(a)-(b) (West 2010)




                                          iv
                   IN THE SEVENTH COURT OF APPEALS
                          AT AMARILLO, TEXAS

JAMES DEWAYNE GRUMBLES, §
    Appellant           §
                        §
V.                      §                         CAUSE NO. 07-18-00139-CR
                        §                         TRIAL COURT NO. CR-29576
THE STATE OF TEXAS,     §
    Appellee            §


                             BRIEF OF APPELLANT


                   1. IDENTITY OF PARTIES AND COUNSEL

TO THE HONORABLE COURT OF APPEALS:

      COMES NOW, James Dewayne Grumbles, appellant, who would show the

court interested parties herein are as follows:

      JAMES DEWAYNE GRUMBLES, appellant, TDCJ No. 02149997,

Lindsey State Jail Unit, 1620 FM 3344, Jacksboro, Texas 76458.

      CHRISTOPHER CASTANON, trial attorney for appellant, 2000 E. Lamar

Blvd. Ste. 60, Arlington, Texas 76006.

      TIM COPELAND, appellate attorney for appellant, PO Box 399, Cedar

Park, Texas 78613.




Cause No. 97-18-00139-CR
James Dewayne Grumbles v. The State of Texas
Brief of Appellant                                                           1
      SARAH ADAMS, trial and appellate attorney for appellee, the State of Texas,

Assistant Eastland County District Attorney, 100 W. Main St., Ste. 204, Eastland,

Texas 76448.

      STEVEN R. HEROD, Judge presiding, 91st District Court of Eastland

County, Texas.




Cause No. 97-18-00139-CR
James Dewayne Grumbles v. The State of Texas
Brief of Appellant                                                            2
                   IN THE SEVENTH COURT OF APPEALS
                          AT AMARILLO, TEXAS

JAMES DEWAYNE GRUMBLES, §
    Appellant           §
                        §
V.                      §                      CAUSE NO. 07-18-00139-CR
                        §                      TRIAL COURT NO. CR-29576
THE STATE OF TEXAS,     §
    Appellee            §

                          2. STATEMENT OF THE CASE

TO THE COURT OF APPEALS:

      On March 27, 2017, James Dewayne Grumbles was convicted in the 91st

District Court of Eastland County, Texas, of the offense of possession of

methamphetamine, less than one gram, a State Jail offense. (R.R. 1, p. 6; TEXAS

HEALTH & SAFETY CODE §§ 481,102(6), .115(a)-(b) (West 2010). Grumbles

was sentenced, in accordance with a plea agreement, to 2 years in the State Jail

Division of the Texas Department of Criminal Justice, but the imposition of that

sentence was suspended and, instead, he was placed on 5 years’ community

supervision and assessed a $5000 fine. On July 26, 2017, the State filed a motion to

revoke his community supervision alleging that he had violated one term and

condition of his probation (number 25), to-wit: he had “refused” to attend a SAFPF

for drug treatment. (R.R. 2, pp. 13-14). On August 28, 2017, hearing was had on the

State’s motion, and Grumbles entered a plea of “not true”. (R.R. 2, p. 4). After


Cause No. 97-18-00139-CR
James Dewayne Grumbles v. The State of Texas
Brief of Appellant                                                                 3
hearing evidence and argument of counsel, the trial court found the allegation to be

true and revoked Grumbles’ community supervision. The trial court then sentenced

him to two years in the State Jail Division of the Texas Department of Criminal

Justice and assessed a $5000 fine. (R.R. 2, pp. 37-38). Grumbles sought to appeal

from the trial court’s findings, but counsel for Grumbles failed to timely file a notice

of appeal from the judgment and sentence. Grumbles subsequently filed an ll.07 writ,

and, ultimately, he was granted the right of appeal by the Texas Court of Criminal

Appeals in an opinion dated February 28, 2012, styled Ex Parte James Dewayne

Grumbles, No. 87,892-01, 2018WL1101263 (Tex. Crim. App. Feb. 28, 2018, (per

curium) (not designated for pub.). This appeal ensued.




Cause No. 97-18-00139-CR
James Dewayne Grumbles v. The State of Texas
Brief of Appellant                                                                   4
              3. STATEMENT REGARDING ORAL ARGUMENT

   Appellate counsel does not believe that oral argument would aid the court in

reaching its decision and therefore waives such argument.




Cause No. 97-18-00139-CR
James Dewayne Grumbles v. The State of Texas
Brief of Appellant                                                                5
                                4. ISSUE PRESENTED

   The trial court abused its discretion in revoking Grumbles’ community

supervision because the State failed to meet its burden of proving a violation of the

terms of his community supervision by a preponderance of the evidence.




Cause No. 97-18-00139-CR
James Dewayne Grumbles v. The State of Texas
Brief of Appellant                                                                6
                             5. BACKGROUND FACTS

Prior Proceedings

      Pursuant to plea agreement, Grumbles was convicted in this cause of

possession of a controlled substance, methamphetamine, under one gram, a State Jail

felony. See TEXAS HEALTH & SAFETY CODE §§ 481,102(6), .115(a)-(b)

(West 2010). He was sentenced, in accordance with his plea agreement, to 2 years

in the State Jail Division of the Texas Department of Criminal Justice, but the

imposition of that sentence was suspended and, instead, he was placed on 5 years’

community supervision and assessed a $5000 fine. The conditions of his community

supervision included a provision that he attend a SAFP for drug treatment. (C.R. 1,

pp. 20-24).

Hearing on Motion to Revoke

      On August 28, 2017, the trial court heard evidence on the State’s motion to

revoke Grumbles’ community supervision. Grumbles entered a plea of “not true” to

the allegation that he had violated the term or condition of his probation that he attend

a SAFPF. (R.R. 2, p. 4). Victoria Jacoby testified that she was Grumbles’ community

supervision supervisor (i.e., his probation officer). She testified that she supervises

the SAFPF caseload for Eastland County, and that she advised Grumbles, following

his original plea in this case on March 27, 2017, that she could not place him on a

list for SAFPF until another, unrelated misdemeanor charge in Eastland

Cause No. 97-18-00139-CR
James Dewayne Grumbles v. The State of Texas
Brief of Appellant                                                                    7
County was resolved. (R.R. 2, p. 11). Grumbles, as a result, waited in the Eastland

County jail until that misdemeanor case was eventually dismissed by the Eastland

County District Attorney’s Office in June of 2017. At that time, Grumbles had been

waiting in jail three months or more to go to a SAFPF. By June, Grumbles had

written several letters to the probation department, the first dated March 31, 2017, in

which he indicated his desire to have his probation revoked since he assumed he

could do his state jail time faster if he went on to state jail than if he waited for a

SAFPF bed to open with its attendant months long drug treatment program. The

probation department ignored his requests. Finally, sometime in July of 2017, Jacoby

again visited Grumbles in the Eastland County jail. (R.R. 2, p. 13). On that occasion,

she said, Grumbles maintained that in light of the passage of time (he had been

incarcerated in Eastland’s County jail approximately 6 months) he did not think

SAFPF was necessary. And, he told her that he no longer wanted to go to SAFPF. In

fact, according to Jacoby, he “refused” to go. (R.R. 2, pp. 14-15). Jacoby said in

Grumbles’ revocation hearing in reference to SAFPF, “He’s not going to be

receptive to it. He doesn’t want it.” (R.R. 2, p. 15). As a result, she concluded, he

was not likely to “participate or benefit from community supervision”. (R.R. 2, p.

16).




Cause No. 97-18-00139-CR
James Dewayne Grumbles v. The State of Texas
Brief of Appellant                                                                  8
                       6. SUMMARY OF THE ARGUMENT

   The State failed to meet its burden of proving a violation of Grumbles’

community supervision by a preponderance of the evidence because the evidence

only showed that Grumbles might refuse, at some time in the future, to violate a term

and condition of his community supervision. In fact, at the time of his probation

revocation hearing, Grumbles had only indicated that he did not want to participate

or attend a SAFPF. He had not been transferred to such a facility at the time of his

revocation hearing and had not, therefore, refused to participate in any program as

directed. It follows that the trial court, in relying on his assertion that he did not want

to go to SAFPF as a reason to find that he had, in fact, violated his probation, abused

its discretion in revoking that probation.

                                 7. ISSUE RESTATED

      The trial court abused its discretion in revoking Grumbles’ community

supervision because the State failed to meet its burden of proving a violation of the

terms of his community supervision by a preponderance of the evidence.

                  8. STATEMENT OF PERTINENT EVIDENCE

      In addition to the evidence presented in the background section above, other

evidence pertinent to the issue presented will be adduced in the argument following

as necessary.



Cause No. 97-18-00139-CR
James Dewayne Grumbles v. The State of Texas
Brief of Appellant                                                                      9
                                    9. ARGUMENT

Standard of Review

      An appellate court’s review of an order revoking community supervision is

limited to a determination of whether the trial court abused its discretion. Jackson

v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1893); Rickles v. State, 202 S.W.3d

759, 763 (Tex. Crim. App. 2006). The appellate court reviews the evidence in the

light most favorable to the trial court’s judgment. Jones v. State, 589 S.W.2d 419,

421 (Tex. Crim. App. 1979). The State has the burden to create a reasonable belief

that a condition of community supervision has been violated as alleged in the motion

to revoke by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 874

(Tex. Crim. App. 1993); Torres v. State, 103 S.W.3d 623, 625 (Tex. App. – San

Antonio 2003, no pet.); Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App.

2013). The State satisfies that burden when the greater weight of the credible

evidence before the court creates a reasonable belief that a condition of community

supervision has been violated as alleged in the motion. Battle v. State, 571 S.W.2d

20, 21-22 (Tex. Crim. App. 1978). In Hacker, supra, 389 S.W.3d at 865, the Texas

Court of Criminal Appeals described the burden of proof in these cases as follows:

            “In civil cases that are governed by the preponderance-of-the-
      evidence burden of proof, the legal-sufficiency standard has been
      described as a review for whether there is ‘more than a scintilla’ of
      evidence. Evidence does not meet this standard when ‘the evidence
      offered to prove a vital fact I so weak as to do no more than create a

Cause No. 97-18-00139-CR
James Dewayne Grumbles v. The State of Texas
Brief of Appellant                                                                 10
      mere surmise or suspicion of its existence.’ Or when the finder of fact
      must ‘guess whether a vital fact exists.’ Furthermore, the Texas
      Supreme Court has explained, ‘some suspicion linked to other
      suspicion produces only more suspicion, which is not the same as some
      evidence.” (Citation omitted).

      In such a proceeding, the trial court is the sole fact finder and judge of the

credibility of the witnesses and weight of the evidence. Naquin v. State, 607 S.W.2d

583, 586 (Tex. Crim. App. 1980); Hays v. State, 933 S.W.2d 659, 660 (Tex. App.–

San Antonio 1996, no pet.).

Applicable Law

      In a proceeding to adjudicate guilt or revoke community supervision, the

burden of proof is on the State to show by a preponderance of the evidence that the

defendant has violated a term and condition of community supervision as allegedin

the motion to adjudicate/revoke. See Cardona v. State, 665 S.W.2d 492, 493 (Tex.

Crim. App. 1984) (en banc). If the State fails to meet its burden of proof, the trial

court abuses its discretion by revoking community supervision or adjudicating guilt.

Id. at 493-94. Proof of a violation of a single term and condition of community

supervision is sufficient to support a trial court’s decision to revoke. Antwine v.

State, 268 S.W.3d 634, 636 (Tex. App. – Eastland 2008, pet. ref’d).

Analysis

      Here, the alleged violation of a condition of Grumble’s probation – that he

refused to participate in a SAFPF drug treatment program – rests upon a single point

Cause No. 97-18-00139-CR
James Dewayne Grumbles v. The State of Texas
Brief of Appellant                                                                11
of evidence: Grumbles felt he did not need the SAFPF’s treatment program, and, as

a result, he said that he would not participate in the facilities’ program. In fact, the

State had not transported him to a facility at the time he made those assertions, and

he had not yet been offered any treatment that he refused. In effect, Grumbles had

not had the opportunity to refuse to participate in a SAFPF program at the time the

State filed its motion. In other words, the State in this case, as well as the trial judge,

were anticipating his refusal and thus anticipating a violation of his probation. It

follows that the State failed to meet its burden of proving an actual violation of the

terms of his community supervision by a preponderance of the evidence at his

revocation hearing.

                                       10. PRAYER

      WHEREFORE, Mr. Grumbles prays that this Court of Appeals reverse the

order revoking Grumbles’ community supervision, ensure he is credited with all his

time credits for time served to date, order that the State’s motion to revoke probation

be dismissed and that it enter such other orders as it deems appropriate or to which

Mr. Grumbles might be justly entitled.

                                         COPELAND LAW FIRM
                                         P.O. Box 399
                                         Cedar Park, TX 78613
                                         Phone: 512.897.8196
                                         Fax: 512.215.8114
                                         Email: tcopeland14@yahoo.com


Cause No. 97-18-00139-CR
James Dewayne Grumbles v. The State of Texas
Brief of Appellant                                                                      12
                                         By: /s/ Tim Copeland
                                                 Tim Copeland
                                                 State Bar No. 04801500
                                                 Attorney for Appellant

                      11. CERTIFICATE OF SERVICE AND
                            COMPLIANCE WITH RULE 9

       This is to certify that on May 29, 2018, a true and correct copy of the above
and foregoing document was served on Sarah Adams, Assistant District Attorney of
Eastland County, 100 W. Main St., Ste. 4, Eastland, Texas 76448, in accordance
with Rule 9 of the Texas Rules of Appellate Procedure and that portion which must
be included under Rule 9.4(i)(l) contains 2020 words.

                                               /s/ Tim Copeland




Cause No. 97-18-00139-CR
James Dewayne Grumbles v. The State of Texas
Brief of Appellant                                                               13
