Jessica Briggle v. State ( 2015 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-15-00041-CR
JESSICA BRIGGLE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court
Lamar County, Texas
Trial Court No. 23274
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
Following her plea of guilty to four counts of forgery of a financial instrument, the trial
court placed Jessica Briggle on deferred adjudication community supervision (community
supervision) for a period of three years.1 After the trial court had modified the conditions of
Briggle’s community supervision on several occasions, the State filed a motion to proceed with
adjudication of guilt. Briggle appeals the trial court’s subsequent revocation of her community
supervision and adjudication of guilt. Briggle contends that the evidence is insufficient to prove
the allegations in the State’s application to proceed to adjudication and that the trial court erred
when it revoked her community supervision.
We find that the evidence was sufficient to support the trial court’s conclusion that Briggle
violated a condition of her deferred adjudication community supervision. Consequently, we affirm
the trial court’s judgment.
I. Factual Background and Briggle’s Community Supervision History
On February 19, 2010, the trial court deferred adjudication of Briggle’s criminal charges
and placed her on community supervision. In addition to numerous standard conditions of
community supervision, the trial court’s order required Briggle to pay restitution in full at the time
she entered her plea, report in person to the Lamar County Community Supervision and
Corrections Department, and abstain from drugs and alcohol. In addition, the trial court ordered
Briggle to submit to “any type of drug test” to determine if she had been using “any illegal
1
The trial court entered a separate order of deferred adjudication for each of the four counts in cause number 23274.
Because Briggle asserts the same argument as to each count, we will refer to counts one through four collectively.
2
substance and/or alcohol.” The original order of deferred adjudication was subsequently modified.
On April 15, 2010, the trial court entered an order modifying Briggle’s conditions of community
supervision to add a condition requiring her to pay $542.50 in attorney fees, to be paid at a rate of
$20.00 per month. On November 15, 2012, the trial court entered a second order modifying
Briggle’s community supervision adding a condition requiring her to complete an alcohol and drug
abuse assessment and a condition requiring her to complete alcohol and drug counseling.
On December 4, 2012, the State filed a motion to proceed to adjudication alleging that
Briggle violated the terms and conditions of her community supervision when she failed to avoid
the use of drugs and alcohol. Specifically, the State alleged that
[Briggle] admitted use [of] and tested positive for marijuana on October 9, 2012[.]
[Briggle] tested positive for cocaine on October 9, 2012[,] and signed [an]
admission on November 9, 2012[,] to cocaine use. [Briggle] tested positive on
November 9, 2012[,] to alcohol use and admitted to using marijuana on October 31,
2012. [Briggle] tested positive on November 26, 2012[,] for alcohol and
benzodiazepines.”
In addition, the State alleged that Briggle violated the modified terms and conditions when she
failed to complete alcohol and drug counseling.
Without making a finding of guilt, the trial court entered a third order modifying Briggle’s
conditions of community supervision on January 9, 2013. The trial court extended Briggle’s
community supervision for a period of two years, resulting in an expiration date of February 17,
2015. In addition, the trial court ordered that “as an alternative to imprisonment,” Briggle’s
community supervision be modified to include a term not to exceed twenty-four months in the
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Bowie County Women’s Recovery Center (the Women’s Center).2 While there, Briggle was
required to comply with the facility’s rules and any treatment recommendations that the staff
deemed appropriate. On June 6, 2014, the trial court entered a fourth order modifying Briggle’s
conditions of community supervision by ordering her to pay attorney fees in the amount of
$807.50, to be paid at a rate of $25.00 per month.
On December 9, 2014, the State filed its second motion to proceed to adjudication of guilt
alleging, among other things, that Briggle had again violated her supervision conditions when she
admitted to using methamphetamine. On February 17, 2015, the trial court held a hearing on the
State’s motion. Briggle pled “not true” to each of the State’s allegations against her. Following
the hearing, the trial court found the State’s allegations to be true and adjudicated Briggle guilty
of four counts of forgery of a financial instrument. The trial court then sentenced her to twenty-
four months’ incarceration on each count, with all four sentences to run concurrently. Once again,
the trial court suspended Briggle’s sentence and placed her on community supervision for a period
of three years. The trial court also entered a “special condition of community supervision”
requiring Briggle to attend and successfully complete a substance abuse treatment program at a
Substance Abuse Felony Punishment Facility (SAFPF) for not less than three months or more than
one year. This appeal followed.
2
Briggle was a resident of the Women’s Center from February 2013 until April 2014.
4
II. Standard of Review
We review a trial court’s decision to adjudicate guilt in the same manner as we review a
decision to revoke community supervision—for an abuse of discretion. TEX. CODE CRIM. PROC.
ANN. art. 42.12, § 5(b) (West Supp. 2014); Little v. State, 376 S.W.3d 217, 219 (Tex. App.—Fort
Worth 2012, pet. ref’d) (citing Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006)); see
In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.—Texarkana 2003, no pet.). In a revocation hearing,
the trial court is the sole trier of the facts and determines the credibility of the witnesses and the
weight given to their testimony. T.R.S., 115 S.W.3d at 321. A trial court’s decision to revoke
community supervision and to proceed to adjudication is examined in the light most favorable to
the trial court’s judgment. Id.
The State must prove by a preponderance of the evidence that the defendant violated the
terms and conditions of community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim.
App. 1993). If the State fails to meet its burden of proof, the trial court abuses its discretion in
revoking community supervision. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).
Proof by a preponderance of the evidence as to any one of the alleged violations is sufficient to
support a trial court’s decision to revoke community supervision. Moore v. State, 605 S.W.2d 924,
926 (Tex. Crim. App. [Panel Op.] 1980).
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III. The Trial Court Did Not Abuse its Discretion When it Revoked Briggle’s
Community Supervision and Adjudicated her Guilt
A. Briggle’s Argument
In her sole issue, Briggle maintains that the trial court erred when it based its decision to
revoke her community supervision on unobjected-to hearsay. Specifically, Briggle points to the
testimony of Kelly Thrasher, the community supervision officer who testified about Briggle’s
alleged violations. Briggle contends that much of Thrasher’s testimony was unreliable hearsay
and that it varied from the allegations in the State’s motion. Briggle also points to State’s Exhibit
1, which is a memorialization of Briggle’s admission that she used methamphetamine. Briggle
maintains State’s Exhibit 1 was not properly authenticated as required by Rule 803(6) of the Texas
Rules of Evidence and that it is, therefore, inadmissible hearsay.3 See TEX. R. EVID. 803(6). In
addition, Briggle contends that the admission of State’s Exhibit 1 also violated Rule 805 of the
Texas Rules of Evidence. See TEX. R. EVID. 805. Despite the fact that State’s Exhibit 1 was
admitted without objection, Briggle argues that the trial court erred when it based its decision to
revoke her community supervision on Thrasher’s testimony and State’s Exhibit 1.
B. The Evidence
The State alleged that Briggle (1) failed to report to her community supervision officer for
the month of October 2014, (2) failed to avoid the use of alcohol, marihuana, or any dangerous
drug, (3) failed to pay her community supervision fees for the months of September through
3
The Texas Rules of Evidence were amended by orders of the Texas Supreme Court and Court of Criminal Appeals,
effective April 1, 2015. Those Rules quoted in this opinion are the Rules in effect at the time of the trial of this case.
To facilitate access to the text of the Rules in effect at the time of trial, we note that those Rules first appeared in
volume sixty of the Texas Bar Journal, beginning on page 1129. See 60 TEX. B.J. 1129 (1997).
6
November 2014, (4) failed to make her monthly attorney fee payments for the months of January
through June 2014 and August through November 2014, and (5) failed to make her monthly court
cost payments for the months of August through November 2014.
In support of the allegations in its motion, the State relied on Thrasher’s testimony and
State’s Exhibit 1.
1. Failure to Report in October 2014
Thrasher was assigned to supervise Briggle in January 2013. Thrasher initially testified
that Briggle failed to report to her in October 2014. When questioned further, Thrasher realized
that she had made a mistake and that Briggle failed to report in November 2014, not October 2014.
Briggle objected to the trial court considering her failure to report in November 2014 because the
State did not allege the correct month in its motion. In response to Briggle’s objection, the trial
court stated, “Well, if this [community supervision] were to be revoked, I want to hear this
testimony.” Shortly after making that statement, the trial court informed Briggle that it would not
consider her failure to report in November 2014 as a basis for revoking her community supervision.
2. Failure to Abstain from the use of Drugs and Alcohol
Following Briggle’s return from the Women’s Center, she received “after-care” from the
Pierce & Agnew Treatment Center (the Treatment Center). During her time at the Treatment
Center, Briggle attended Alcoholics Anonymous and Narcotics Anonymous meetings. On one
occasion, Thrasher visited the Treatment Center to obtain a urine sample from Briggle for a random
drug test. Prior to giving the sample, Briggle admitted that she had relapsed on July 4, 2014, when
7
she used methamphetamine. Briggle signed a document verifying that she had used the drug. The
State introduced the document as State’s Exhibit 1, and the trial court admitted it without objection.
3. Failure to Pay Community Supervision Fees
Thrasher testified that Briggle had failed to pay her community supervision fees for the
months of September, October, and November 2014, in the total amount of $55.00. She later
testified, however, that Briggle’s monthly supervision fee was $25.00, resulting in a total arrearage
of $75.00, not $55.00.
4. Failure to Pay Attorney Fees
Thrasher testified that Briggle was behind on her attorney fee payments in the amount of
$364.50. Thrasher later testified that the trial court had ordered Briggle to pay attorney fees in the
amount of $807.50 and that she had failed to pay the required $25.00 per month for nine months.
Thrasher then agreed that Briggle was delinquent in paying her attorney fees in the amount of
$225.00, not $364.50.
5. Failure to Pay Court Costs
Thrasher testified that Briggle failed to pay her court costs in the amount of $40.00.
Following some confusion regarding the total amount of fees Briggle had paid while on
community supervision, Thrasher eventually testified that Briggle had paid $1,740.00 in
supervision fees alone; however, when she included Briggle’s payments for attorney fees and
courts costs, she determined that Briggle had paid approximately $3,600.00 in fees and costs.
Despite the variance in her testimony regarding the amount of money Briggle owed in fees and
8
costs, Thrasher emphasized that the months alleged in the State’s motion were correct and that
those were the dates on which Briggle failed to pay her fees and costs.
Thrasher believed that Briggle’s community supervision should be revoked (and not
modified again) because she had been to a treatment rehabilitation program financed by the State
and then continued to use drugs. Thrasher testified,
[The State has] [g]iven [Briggle] the opportunity to receive probably about $80,000
worth of treatment, that the State pays for, and then she comes out and continues to
use the methamphetamine that got her in trouble the first time, I cannot understand
why she would -- I just would never recommend that she be granted probation.
Moreover, Thrasher declined to recommend to the trial court that it modify Briggle’s
community supervision and send her to a more structured rehabilitation program. When asked if
she thought a more structured rehabilitation program would benefit Briggle, Thrasher responded,
“At this point I do not because we’ve already spent a lot of money on her rehabilitation and it
doesn’t seem to have helped.” During cross-examination of Thrasher, Briggle questioned her
regarding the fact that she had informed her after-care counselor of her drug use prior to submitting
to the drug screen that came back positive for methamphetamine. Briggle maintained that her
voluntary confession to her counselor demonstrated that she was “doing the best she could in
rehab.”
In addition, Thrasher testified that Briggle was capable of working, capable of paying her
community supervision fees, capable of reporting to her community supervision officer, and
capable of “not using meth.” When considering all of the allegations against Briggle, Thrasher
believed that Briggle’s main issue was her continued drug use.
9
Briggle presented her mother—Jamie Barton—and one other witness—Tamara Bean, an
occupational health manager at Salas Minor Emergency Center—to testify on her behalf. Barton,
testified that when Briggle completed her rehabilitation, she moved into Barton’s residence for
approximately one to two months. Barton stated that she took Briggle “job hunting every day.”
Briggle sought employment at “Golden Chic,” “Wal-Mart, Brookshire’s, Kroger’s, Taco Bell,”
and “the unemployment office.” According to Barton, she assisted Briggle with her employment
efforts “for a week solid and then it was every other day.” Barton did not have documentation
evidencing Briggle’s attempts to find employment. To Barton’s knowledge, Briggle’s efforts were
unsuccessful. Barton believed that Briggle was capable of working and that she had no physical
or mental problems that would prevent her from working. Barton was aware of Briggle’s
methamphetamine “problem.” Barton stated that Briggle did not have a rent payment or a car
payment and that as far as Barton knew, Briggle did not own a cell phone. Barton was unaware
that Briggle had used methamphetamine after she was released from the Women’s Center.
Likewise, Barton was unaware of what Briggle did every day other than when she took her to look
for a job.
On January 11, 2015, one of Bean’s employees administered a basic drug screen on
Briggle.4 The drug screen tested for ten different types of drugs, including methamphetamine.
The drug screen revealed that Briggle had not been using any of the ten included drugs.
After hearing the evidence, the trial court found that Briggle had violated the condition of
her community supervision that required her to avoid the use of dangerous drugs. The trial court
4
The drug screen was administered approximately six weeks prior to the hearing.
10
based its decision solely on Briggle’s written admission that she had used methamphetamine on
July 4, 2014 (State’s Exhibit 1).
C. Analysis
Here, Briggle contends that the evidence is insufficient to show that she violated the terms
of her community supervision because the trial court considered hearsay evidence when it made
its decision. Briggle makes her argument as it relates to all of the allegations in the State’s motion
to proceed to adjudication. Because the trial court revoked Briggle’s deferred adjudication
community supervision based on the sole finding that she admitted to using methamphetamine,
this Court finds that it is unnecessary to address the sufficiency of proof as to the remaining
allegations in the State’s motion.
As to the allegation that Briggle failed to avoid dangerous drugs, Briggle contends that the
signed admission of drug use (State’s Exhibit 1) “came from the records of [Pierce] and Agnew”
while she was attending the after-care program. Briggle argues that Exhibit 1 was not properly
authenticated pursuant to Rule 803(6) of the Texas Rules of Evidence.5 Although Thrasher
testified that the document was kept in the normal course of business, a verification of the chain
5
Rule 803 lists exceptions to the hearsay rule when the availability of the declarant is immaterial. Rule 803(6),
“Records of Regularly Conducted Activity,” states:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions,
opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person
with knowledge, if kept in the course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit
that complies with Rule 902(10), unless the source of information or the method or circumstances
of preparation indicate lack of trustworthiness. “Business” as used in this paragraph includes any
and every kind of regular organized activity whether conducted for profit or not.
TEX. R. EVID. 803(6).
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of custody notation (presumably relating to Briggle’s urine sample) was not initialed by Briggle.
Thus, Briggle maintains that notwithstanding Thrasher’s generalized testimony, the facts do not
establish that the record was properly authenticated as a business record, and therefore the
document was hearsay.6 Briggle also contends that State’s Exhibit 1 was hearsay because it
violated Rule 805 of the Texas Rules of Evidence.7 Briggle does not deny, however, that at the
time the State offered the document into evidence, she made no objection.
First, even assuming State’s Exhibit 1 contained hearsay and that the trial court relied upon
the exhibit when it made its decision to revoke Briggle’s community supervision, State’s Exhibit 1
was admitted without objection. To preserve error for review on appeal, a defendant must object
timely and specifically and pursue the objection to a ruling by the trial court. TEX. R. APP.
P. 33.1(a); Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Further, the objecting
party must object each time the objectionable evidence is offered. Fuentes v. State, 991 S.W.2d
267, 273 (Tex. Crim. App. 1999). Because Briggle failed to object to the introduction of State’s
Exhibit 1, we find that she waived any complaint on appeal regarding its introduction.
6
Briggle argues that later during the hearing, the State agreed that State’s Exhibit 1 contained hearsay. Our reading of
the hearing transcript reflects something entirely different. The State commented, “Judge, I mean if [Briggle] wants
to admit hearsay on [her] side[,] we’re going to turn around and offer it on our side.” “I have no problem if [Briggle]
told her counselor that she did [use methamphetamine] and then she admitted it to her probation officer later. That’s
fine.” At the time the State made its comment, it was referring to an e-mail that Thrasher received from Briggle’s
counselor on July 9, 2014, prior to Thrasher visiting Briggle at the Treatment Center. Further, it was Briggle, not the
State, who offered the counselor’s e-mail into evidence in an attempt to “show [she had] been doing the best she could
in rehab.” Contrary to Briggle’s assertion, the State did not agree that State’s Exhibit 1 was hearsay, only that the e-
mail sent to Thrasher from the counselor at the Treatment Center was hearsay. The trial court did not base its
determination to revoke Briggle’s community supervision on the counselor’s e-mail. Consequently, it carries little, if
any, weight on the issue before this Court.
7
Rule 805 states, “Hearsay included in hearsay is not excluded under the hearsay rule if each part of the combined
statements conforms with an exception to the hearsay rule provided in these rules.” TEX. R. EVID. 805.
12
Briggle contends that even if she failed to object to State’s Exhibit 1, the trial court erred
when it considered the exhibit for purposes of revoking her community supervision and finding
her guilty of forgery of a financial instrument. In support of her contention, Briggle cites Frazier
v. State for the proposition that unobjected-to hearsay cannot be the basis for a community
supervision revocation. See Frazier v. State, 600 S.W.2d 271 (Tex. Crim. App. 1979). In Frazier,
the trial court placed appellant on community supervision for the offense of aggravated assault on
a police officer. Id. at 272. The State eventually filed a motion to revoke Frazier’s community
supervision alleging that he had violated his community supervision by failing to report to his
community supervision officer, failing to pay a fine, and failing to pay his community supervision
fee. Id.
At the hearing on the motion to revoke, Craig Valashek, assistant community supervision
officer for the county, was the sole witness. Valashek testified that Frazier’s community
supervision officer was unavailable that day and that the district attorney had asked him to
familiarize himself with Frazier’s file in order to present evidence at the hearing. Id. Valashek
testified that from his review of the file, Frazier had failed to adhere to the conditions of his
community supervision. Id. Appellant did not object to Valashek’s testimony as being hearsay.
In addition, although the documents in the file may have been admissible as business records, the
State did not offer them into evidence. Id. Because Valashek’s testimony was the only evidence
the State introduced to show Frazier violated the conditions of his community supervision, the
Court of Criminal Appeals held that the trial court abused its discretion when it revoked Frazier’s
community supervision. Id. The State filed a motion for rehearing, however, and the Court of
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Criminal Appeals reversed its original decision holding “that testimony admitted without objection
at a [community supervision] revocation hearing has probative value and may constitute sufficient
evidence in support of an order revoking [community supervision].” Id. at 275.
The State argues, and we agree, that the trial court may consider unobjected-to hearsay just
as it would consider any other evidence. Hearsay evidence is not admissible in a community
supervision revocation proceeding. Johnson v. State, 498 S.W.2d 198, 200 (Tex. Crim. App.
1973). But, when hearsay evidence is admitted without proper objection during a community
supervision revocation hearing, it has probative value. Fernandez v. State, 805 S.W.2d 451, 457
n.1 (Tex. Crim. App. 1991) (Baird, J., concurring). “Hearsay evidence is not admissible except as
provided by our evidentiary rules or by statute.” Dunn v. State, 125 S.W.3d 610, 613–14 (Tex.
App.—Texarkana 2003, no pet.). Rule 802 of the Texas Rules of Evidence states, “Inadmissible
hearsay admitted without objection may not be denied probative value merely because it is
hearsay.” TEX. R. EVID. 802. The trial court may consider the unobjected-to hearsay testimony
no differently than other testimony to support its decision. Fernandez, 805 S.W.2d at 455–56.
Because Briggle did not object to the introduction of State’s Exhibit 1, it is not necessary for this
Court to delve into an analysis as to whether or not State’s Exhibit 1 was impermissible hearsay
evidence. The trial court was well within its discretion to consider State’s Exhibit 1, whether
impermissible hearsay evidence or not, when making its decision to revoke Briggle’s deferred
adjudication community supervision.
Moreover, a defendant’s voluntary confession to violating the terms of his or her
community supervision is, by itself, sufficient evidence to support a trial court’s decision to revoke
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community supervision. See Wade v. State, 83 S.W.3d 835, 839–40 (Tex. App.—Texarkana 2002,
no pet.) (defendant’s confession to failing to pay fines and fees, without explanation of inability
to pay, was sufficient to support trial court’s decision to revoke community supervision). Proof of
a single violation is sufficient to support a trial court’s decision to revoke community supervision.
Myers v. State, 780 S.W.2d 441, 445 (Tex. App.—Texarkana 1989, pet. ref’d). Here, Briggle
admitted, by way of a signed written document, that she used methamphetamine on July 4, 2014,
in violation of one of the conditions of her community supervision.
Viewing the evidence in the light most favorable to the trial court’s ruling and recognizing
that the State need only prove Briggle violated one of the conditions of her community supervision,
we find the trial court did not abuse its discretion when it revoked Briggle’s community
supervision and found her guilty of four counts of forgery of a financial instrument. We overrule
Briggle’s sole point of error.
IV. Conclusion
We affirm the trial court’s judgment.
Ralph K. Burgess
Justice
Date Submitted: July 7, 2015
Date Decided: September 25, 2015
Do Not Publish
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