                                                                          ACCEPTED
                                                                      03-16-00213-CR
                                                                            12719327
                                                           THIRD COURT OF APPEALS
                                                                      AUSTIN, TEXAS
                                                                9/15/2016 11:52:53 AM
                                                                    JEFFREY D. KYLE
                                                                               CLERK

                         No. 03-16-00213-CR
                IN THE COURT OF APPEALS
  FOR THE THIRD JUDICIAL DISTRICT OF TEXAS

                     FREDDIE LEE SCOTT,
                              APPELLANT


                                  vs.
                    THE STATE OF TEXAS,
                               APPELLEE


                         APPELLANT'S BRIEF


                   On Appeal from Cause Number 3016
                        in the 35nd District Court
                          Mills County, Texas
                  The Honorable Stephen Ellis, Presiding

Emily Miller, Lawyer
Woodley and Dudley, Lawyers
707 Center Avenue
Brownwood, Texas 76801
emily@woodleydudley.net

Attorney for Appellant
                 IDENTITIES OF PARTIES AND COUNSEL

       Pursuant to the provisions ofRule 38.1(a), Texas Rules of Appellate

Procedure, a complete list of the names of all parties to this action and counsel are

as follows:

Parties:                                       Mr. Freddie Lee Scott, Appellant

                                               State of Texas, Appellee

Attorneys for the Appellant:                   Ms. Emily Miller
                                               Woodley and Dudley, Lawyers
                                               707 Center Avenue
                                               Brownwood, Texas 76801
                                               (On Appeal)

                                               Mr. John Lee Blagg
                                               Attorney at Law
                                               504 Pecan Street
                                               Brownwood, Texas 76801
                                               (Trial Attorney)

Attorneys for Appellant:                       The Honorable Micheal Murray
                                               35th Judicial District Attorney
                                               Brown and Mills Counties
                                               200 South Broadway Street
                                               Brownwood, Texas 76801

                                               Mr. Christopher Brown
                                               Assistant District Attorney
                                               35th Judicial District
                                               200 South Broadway Street
                                               Brownwood, Texas 76801
                                               (Trial Attorney)




                                           1
                           TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL                                           1


INDEX OF AUTHORITIES                                                        111


STATEMENT OF THE CASE                                                       1

ISSUES PRESENTED                                                            3

STATEMENTOFFACTS                                                            4

SUMMARY OF THE ARGUMENT                                                     6

ARGUMENT AND AUTHORITIES                                                    7

      ISSUE ONE:         Whether Due Process ofLaw requires proofofa

violation ofa condition ofcommunity supervision to be beyond a reasonable doubt

rather than by a preponderance of the evidence.

ARGUMENT AND AUTHORITIES                                                    10

      ISSUE TWO:         Whether the trial court abused its discretion by revoking

Mr. Scott's probation.

PRAYER                                                                      12

CERTIFICATE OF SERVICE                                                      13

CERTIFICATE OF COMPLIANCE                                                   13




                                        11
                         INDEX OF AUTHORITIES

CASE LAW
Campbell v. State, 456 S.W.2d 918 (Tex.Crim.App. 1970)   11, 15

Cardona v. State 665 S.W.2d 492 (Tex.Crim.App. 1984)     10

Crawford v. State, 435 S.W.2d 148 (Tex.Crim.App. 1970)   7

Crawford v. Washington, 541 U.S. 36 (2004)               8

Ex Parte Doan, 369 S.W. 205 (Tex.Crim.App.2012)          8

Fariss v. Tipps, 463 S.W.2d 176 (1971)                   3

Fernandez v. State, 805 S.W.2d 451 (Tex.Crim.App.1991)   8

Gagnon v. Scarpelli, 411 U.S. 778 (1973)                 7

Johnson v. State, 498 S.W.2d 198 (Tex.Crim.App. 1973)    8

Moore v. State, 605 S.W.2d 924 (Tex.Crim.App. 1980)      11



CONSTITUTIONAL PROVISIONS
U.S. CONST., AMEND. VI                                   13




                                         111
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      COMES NOW, Freddie Lee Scott, Appellant in this cause, by and through

his attorney of record, Emily Miller, and, pursuant to the provisions of

TEx.R.APP.PRo. 38, et seq., files this brief on appeal.

                           STATEMENT OF THE CASE

      On November 12, 2014, Mr. Scott was placed on deferred adjudication

community supervision for Possession of Controlled Substance of less than a gram.

(RR at 8; II CR at 9). On November 4, 2015, the State filed a Motion to

Adjudicate. (RR at 8). On February 3, 2016, Mr. Scott entered his plea ofNot

True to allegation One, that he committed the offense of possession of controlled

substance on September 1, 2015 in Taylor County, Texas. (II CR at 15). He pled

Not True to allegations Two through Eight, which were the monetary obligations.

(II CR at 15). Mr. Scott pled True to allegations Nine and Ten, that he failed to

complete community service, and failed to complete a drug offender education

program. (II CR 16). At the conclusion of the hearing on the merits, the trial court

found that allegations One, Nine, and Ten had been proved by a preponderance of

the evidence. (II CR 97). The trial court sentenced Mr. Scott to eighteen months

state jail. (III CR 28-30; 2 RR 97; III RR 29). The trial court's Certification of

Defendant's Right of Appeal was filed February 17, 2016, noting this is not a plea

bargained case, and the defendant has the right of appeal. (III CR 32). The


                                          1
judgment of Adjudication of Guilt was filed March 9, 2016. (RR 28). Notice of

Appeal was filed March 16, 2016. (RR 33). Mr. Scott seeks a reversal of the

findings of true and the punishment assessed.




                                         2
                              ISSUES PRESENTED

                                   ISSUE ONE

             Whether Due Process of Law requires proof of a violation of a

condition of community supervision to be beyond a reasonable doubt rather than

by a preponderance of the evidence.

                                   ISSUE TWO

      Whether the trial court abused its discretion by revoking Mr. Scott's

probation.




                                         3
                            STATEMENT OF FACTS

      Mr. Scott was placed on deferred adjudication probation for a period of four

years for the offense of Possession of a Controlled Substance under Section

481.115, Health and Safety Code. (RR at 8). The State filed a motion to adjudicate

after Mr. Scott was alleged to have possessed a controlled substance in Merkel,

Taylor County, Texas on September 1, 2015. (II CR at 28-29; RR at 24-32). The

State's Motion to Adjudicate alleged that Appellant, Freddie Lee Scott, violated

various conditions of community supervision as follows: 1. "on or about the 1st

day of September, 2015 in the County ofTaylor and State of Texas, did then and

there commit the offense of Possession of Controlled Substance." 9. "failed to

complete Community Service Restitution as ordered." 10. "failed to attend,

participate and complete the Drug Offender Education Program." Conditions two

through eight were various monetary obligations. (RR at 9).

      At trial, Mr. Scott pled Not True to allegation One, the alleged new drug

offense. (II RR at 15). Sergeant Christopher Ortiz of the Merkel Police

Department testified about this allegation, stating that he was conducting

surveillance on another household when he observed Mr. Scott get in a gold

Tundra vehicle. (II RR at 26-27). Sergeant Ortiz ran Mr. Scott's driver's license

number and determined he was not eligible to be driving, (II RR at 28). Sergeant

Ortiz stopped Mr. Scott in his vehicle and noticed he was extremely nervous,


                                         4
which Sergeant Ortiz equated with being under the influence of methamphetamine.

Sergeant Ortiz asked for permission to search Mr. Scott's vehicle which he initially

denied, and a canine unit was called. (II RR at 30-31 ). The canine officer, Deputy

Cooley, did not testify at the hearing, rather Sergeant Ortiz testified about what

Deputy Cooley told him about a positive canine alert on Mr. Scott's vehicle. (II RR

at 32). There was no objection at trial to Sergeant Ortiz' hearsay testimony.

Sergeant Ortiz did not see the dog alert on Mr. Scott's vehicle (II RR at 41).

Sergeant Ortiz watched Deputy Cooley recover a clear baggie with white crystal-

like substance from under the driver's side floor mat (II RR at 34). Charges from

this incident were pending and unindicted at the time of the adjudication hearing

(II RR at 20, 44, 92).

      Mr. Scott pled Not True to state's allegations Two through Eight, the

financial obligations. (II RR at 15). He pled True to allegations Nine and Ten,

failure to complete community service and failure to complete a drug offender

education class. (II RR at 16). The trial court found, by a preponderance of the

evidence, that the State had proved allegations One, Nine, and Ten against Mr.

Scott. (II RR at 97-98).




                                          5
                          SUMMARY OF THE ARGUMENT

      In probation revocation proceedings, Due Process of Law has been held to

require the appointment of an attorney, notice of allegations against a person, a

neutral magistrate, the opportunity to be heard, the right of confrontation, and the

right against self-incrimination. The law no longer treats adjudication proceedings

as administrative matters, but now rightly as criminal proceedings. Therefore, the

laws and rules established to govern judicial proceedings apply equally to

revocation hearings. Due Process of law should then require proof beyond a

reasonable doubt in a community service revocation proceeding.

      Case law broadly supports the notion that proof of one allegation will

support a revocation, and allegations that Mr. Scott failed to complete community

service and a drug offender education class were indeed proven through Mr.

Scott's admissions. However, this case law should be distinguished. It is

impossible to determine, had the trial court considered only these allegations,

whether Mr. Scott would have still been revoked and sentenced to eighteen months

state jail. Due Process and Due Course of Law require this case be reversed and

remanded to the trial court for a new determination based on the findings of true to

only these allegations.




                                          6
                       ARGUMENT AND AUTHORITIES

                            ISSUE ONE (RESTATED)


      Whether Due Process ofLaw requires proof of a violation of a condition of

community supervision to be beyond a reasonable doubt rather than by a

preponderance of the evidence.

      The level of proof constitutionally required to revoke community

supervision should be re-examined. No longer is a revocation hearing deemed an

"administrative hearing" -it is appropriately considered a judicial proceeding to be

administered by the rules established to govern judicial proceedings. The higher

standards of judicial proceedings require a greater burden of proof than a

preponderance of the evidence in a revocation hearing.

      Gagnon v. Scarpelli, 411 U.S. 778 (1973) applied the measure ofDue

Process of Law to probation revocations. Fariss v. Tipps, 463 S.W.2d 176 (1971)

held that a probation revocation proceeding was a "criminal prosecution" under

Texas' constitution. In Texas, the necessity of the application of Due Process to

probation revocation proceedings was recognized in Campbell v. State, 456

S.W.2d 918 (Tex.Crim.App. 1970), holding the substantial rights ofthe accused

may be affected.

      Crawford v. State, 435 S.W.2d 148 (Tex.Crim.App. 1970) held that

revocation proceedings "cannot be isolated from the context of the criminal

                                          7
process". More recently, Ex Parte Doan, 369 S.W. 205 (Tex.Crim.App.2012)

found the characterization of a probation revocation hearing as an administrative

proceeding as inaccurate, and this classification was "officially abandoned." !d. at

305. Community supervision revocation hearings are to be governed by the laws

for judicial proceedings. !d.

      The Confrontation Clause of the Sixth Amendment of the United States

Constitution provides "in all criminal prosecutions, the accused shall enjoy the

right ... to be confronted with witnesses against him." U.S. CONST. AMEND. VI.

The admission into evidence of out-of-court statements that are "testimonial" in

nature violates the Confrontation Clause. Crawford v. Washington, 541 U.S. 36,

51-52 (2004). Furthermore, Texas law has long established hearsay evidence is

not admissible in a community service revocation hearing. Johnson v. State, 498

S.W.2d 198,200 (Tex.Crim.App. 1973). In Johnson, the Court found unobjected-

to hearsay inadmissible, and presumed that the trial court had disregarded the

inadmissible evidence and ruled on other grounds. Fernandez v. State, 805 S.W.2d

451, 456 (Tex.Crim.App.1991) found that unobjected-to hearsay has probative

value, and must be considered along with the rest of the evidence admitted at trial.

      In the case at hand, it was alleged that on or about the 1st day of September,

2015, Mr. Scott "did then and there commit the offense ofPossession of Controlled

Substance." However, the officer testifying did not have first-hand knowledge of


                                          8
the canine search of Mr. Scott's vehicle. The canine officer, Deputy Cooley, did

not testify at the hearing, rather Sergeant Ortiz testified about what Deputy Cooley

told him about a positive canine alert on Mr. Scott's vehicle. (2 RR 32). At trial,

there was no hearsay or confrontation objection to this testimony. Due Process

requires the right of confrontation in revocation hearings. With the failure of

Deputy Cooley to appear and testify, Mr. Scott was unable to confront him about

the canine search. Sergeant Ortiz' testimony, as unobjected-to hearsay, is therefore

to be either disregarded, or accorded probative value to be considered along with

any remaining evidence of the canine search. However, there is no other evidence

of a positive canine alert on Mr. Scott's vehicle. Even acknowledging this hearsay

testimony may have probative value, it must be considered along with the rest of

the evidence admitted at trial. Critically, here, there is no additional evidence of

the canine search, either through exhibit or testimonial evidence. Without proof of

the results of the canine search from any source other than hearsay, a finding of

True to allegation One cannot be proven by any standard, particularly beyond a

reasonable doubt, and is a violation of Due Process of Law.

      Due Process of Law requires more proof than a preponderance of the

evidence for a person to be incarcerated. Due Process requires constitutional

safeguards, including the right of confrontation, and that the State's allegations are

proven beyond a reasonable doubt. Without other evidence, hearsay testimony,


                                           9
either disregarded or accorded some probative value, does not provide proof

beyond a reasonable doubt. We would respectfully request the court to reverse and

remand this case for a new hearing where the State is required to prove its case

against Freddie Lee Scott in accordance with Due Process of Law and beyond a

reasonable doubt.



                       ARGUMENT AND AUTHORITIES

                                   ISSUE TWO

      Whether the trial court abused its discretion by revoking Mr. Scott's

probation.

      Should the Court disagree with our argument in Issue One that Due Process

of Law requires allegations of violations of community supervision be proven

beyond a reasonable doubt, alternatively this matter should be remanded to the trial

court for a rehearing on punishment, as the evidence presented at trial was

insufficient even under a preponderance standard. Cardona v. State 665 S.W.2d

492 (Tex.Crim.App. 1984) established the standard as abuse of discretion. As the

trial court's finding that Mr. Scott possessed a controlled substance was not

supported by a preponderance of the evidence, the revocation of his probation for

failing to complete community service and drug offender education was an abuse

of discretion. We acknowledge that generally "proof as to any one" of the alleged


                                         10
violations is sufficient to support a trial court's decision to revoke community

supervision. Moore v. State, 605 S.W.2d 924 (Tex.Crim.App. 1980). However, we

will establish why this premise should not be followed in this case, and why the

revocation of Mr. Scott's probation was an abuse of discretion.

      In 1970, Campbell v. State, 456 S.W.2d 918 (Tex.Crim.App. 1970)

established that Due Process and Due Course of Law is fully applicable to

probation revocation proceedings. As shown under Issue One and adopted fully

herein for all purposes, the evidence was insufficient to support the trial court's

finding that the allegation that Mr. Scott possessed a controlled substance was true.

Therefore, only the allegation that he failed to complete community service and a

drug offender education program remain. It cannot be determined that had the trial

court only found these two allegations true, Mr. Scott would still have been

sentenced to eighteen of a possible twenty four month sentence. The trial court

could have chosen an alternative to imprisonment had only the allegations about

the community service and a drug offender education program been true. We ask

the Court to find the evidence insufficient to support the finding that allegation one

was true, and remand the case to the trial court for a new disposition hearing based

on the allegations that failure to complete community service and a drug offender

education program are true. The allegation of possession of controlled substance

was not proven by a preponderance of the evidence. For this reason, the trial court


                                          11
abused its discretion in finding this allegation true and revoking Mr. Scott's

probation. Therefore, Due Process and Due Course of Law require this case be

reversed and remanded to the trial court for its reconsideration and an appropriate

determination based on findings of true that Mr. Scott failed to complete

community service and a drug offender education program.



                                      PRAYER

       WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

that the Court reverse and remand for a new hearing in which the State must prove

its allegations beyond a reasonable doubt, or, alternatively, remand to the trial

court for a new disposition hearing based on a finding that only allegations nine

and ten are true.

                                        Respectfully submitted,

                                        Is/ Emily Miller
                                        Emily Miller
                                        Woodley and Dudley, Lawyers
                                        707 Center A venue
                                        Brownwood, Texas 76801
                                        Telephone: (325) 646-7685
                                        Facsimile: (325) 646-7688
                                        Email:      emily@woodleydudley.net

                                        ATTORNEY FOR APPELLANT
                                        FREDDIE LEE SCOTT



                                          12
                         CERTIFICATE OF SERVICE

      I hereby certify a true and correct copy of the foregoing APPELLANT'S

BRIEF, was delivered via electronic and personal service to:

                                              The Honorable Micheal Murray
                                              35th Judicial District Attorney,
                                              Brown and Mills Counties
                                              200 South Broadway Street
                                              Brownwood, Texas 76801

      On this day, Thursday, September 15, 2016


                                              Is/ Emily Miller


                      CERTIFICATE OF COMPLIANCE


      This document complies with the typeface requirements of Tex. R. App. P.

9.4€ because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of Tex. R. App. P. 9.4(i) because it contains 2, 755 words,

excluding any parts exempted by Tex. R. App. P. (i)(l)


                                              Is/ Emily Miller




                                         13
