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 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 North Church, Room 38 Palestine, Texas 75801

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

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

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

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.

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, 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.

RESPECTFULLY SUBMITTED,

WM. M. HOUSE, JR. 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