Robert Allan Jorgensen v. State

ACCEPTED
11-17-00090-CR
ELEVENTH COURT OF APPEALS
EASTLAND, TEXAS
6/14/2017 10:16:55 AM
SHERRY WILLIAMSON
CLERK
IN THE COURT OF APPEALS
ELEVENTH JUDICIAL DISTRICT
EASTLAND, TEXAS FILED IN
11th COURT OF APPEALS
EASTLAND, TEXAS
06/14/17 10:16:55 AM
ROBERT ALLAN JORGENSEN,
SHERRY WILLIAMSON
APPELLANT Clerk
V.
NO. 11-17-00090-CR
(TRIAL COURT NO. 1237)
STATE OF TEXAS,
APPELLEE
**************************************
APPEALED FROM THE 39TH DISTRICT COURT
OF
THROCKMORTON COUNTY, TEXAS
**************************************
JUDGE JERRY SHANE HADAWAY, PRESIDING
**************************************
APPELLANT'S BRIEF
**************************************
STAN BROWN
P.O. BOX 3122
ABILENE, TEXAS 79604
325-677-1851
FAX 325-677-3107
STATE BAR NO. 03145000
EMAIL: mstrb@aol.com
ATTORNEY FOR APPELLANT
APPELLANT REQUESTS ORAL ARGUMENT
ROBERT ALLAN JORGENSEN,
APPELLANT
V.
NO. 11-17-00090-CR
(TRIAL COURT NO. 1237)
STATE OF TEXAS,
APPELLEE
IN THE COURT OF APPEALS
ELEVENTH JUDICIAL DISTRICT
EASTLAND, TEXAS
APPEALED FROM THE 39TH DISTRICT COURT
OF
THROCKMORTON COUNTY, TEXAS
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of the names and addresses of all
parties to the trial court's final judgment, as well as their counsel, if any:
Hon. Shane Hadaway Stan Brown
39th District Court Appellant’s Attorney/ Appeal
Haskell County Courthouse P.O. Box 3122
Haskell, Texas 79521 Abilene, Texas 79604
Michael Fouts Earnest W. Scott
District Attorney Appellant’s Attorney/Trial
Haskell County Courthouse 342 Chestnut
Haskell, Texas 79521 Abilene, Texas 79602
Robert Allan Jorgensen
1014 S.W. 7th Ave.
Mineral Wells, TX. 76067
ii
TABLE OF CONTENTS
SUBJECT PAGE
Statement of Case............................................................................................1
Statement Regarding Oral Argument………………………………………..2
Issues Presented...............................................................................................2
Statement of Facts...........................................................................................3
Summary of the Argument..............................................................................4
ISSUE NO. 1 (restated)
1. The trial court abused its discretion by determining Appellant had
committed the offense of resisting arrest and revoking his probation. (C.R.
20-21)(II R.R.)(III R.R.).
ARGUMENT AND AUTHORITIES.............................................................6
ISSUE NO. 2 (restated)
2. Due Process of Law mandates that proof of violation of any condition
of community supervision must be beyond a reasonable doubt rather than a
preponderance of the evidence. (C.R. 20-21)(II R.R.)(III R.R.).
ARGUMENT AND AUTHORITIES.............................................................9
Prayer............................................................................................................16
Certificate of Service.....................................................................................16
Certificate of Compliance………………………………………………….16
iii
INDEX OF AUTHORITIES
CASES PAGE
Anderson v. State, 707 S.W.2d 267 (Tex. App.-Houston [1st Dist.] 1986, no
pet.)…………………………………………………………………………..8
Bradley v. State, 608 S.W.2d 652 (Tex. Crim. App. 1980)………………...11
Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014)…………………...6
Ex Parte Carmona, 185 S.W.3d 492 (Tex. Crim. App. 2006)…………11-12
Ex Parte Doan, 369 S.W.3d 305 (Tex. Crim. App. 2012)…………………11
Finley v. State, 484 S.W.3d 926 (Tex. Crim. App. 2016)…………………6-7
In Re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967)…………….9
In Re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)…...9-10
Kelly v. State, 483 S.W.2d 467 (Tex. Crim. App. 1972)………..10-11, 12-14
Leos v. State, 880 S.W.2d 180 (Tex. App.-Corpus Christi 1994, no pet.)…..8
Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484
(1972)………………………………………………………………………10
Sheehan v. State, 201 S.W.3d 820 (Tex. App.-Waco 2006, no pet.)………..7
Young v. State, 622 S.W.2d 99 (Tex. Crim. App. 1981)…………………..7-8
CONSTITUTIONAL PROVISIONS, STATUTES & RULES PAGE
U.S. CONST. AMENDS. V & XIV …………………………………..passim
TEX. PEN. CODE ANN §38.03…………………………………………….6
Tex. R. App. P. 9.4 ………….......................................................................16
iv
ROBERT ALLAN JORGENSEN,
APPELLANT
V.
NO. 11-17-00090-CR
(TRIAL COURT NO. 1237)
STATE OF TEXAS,
APPELLEE
IN THE COURT OF APPEALS
ELEVENTH JUDICIAL DISTRICT
EASTLAND, TEXAS
APPELLANT'S BRIEF
STATEMENT OF THE CASE
Appellant was originally indicted for third degree felony DWI, and
placed on community supervision June 13, 2014. (C.R. at 4, 6). On
February 17, 2017, the State filed its Motion to Revoke Community
Supervision. (C.R. at 20). Following a hearing of March 29, 2017, the trial
court revoked Appellant’s probation and assessed a sentence of five years
TDCJ-ID (II R.R. at 65)(C.R. at 25). Notice of Appeal was filed April 4,
2017. (C.R. at 29). The Trial Court’s Certification of Defendant’s Right of
Appeal was filed March 29, 2017. (C.R. at 24). Appellant seeks a reversal.
STATEMENT REGARDING ORAL ARGUMENT
Appellant believes oral argument would be beneficial to the Court.
The interrelated issues of whether the evidence was sufficient, even under
the preponderance standard, as well as our position Due Process of Law
should require proof beyond a reasonable doubt in probation revocation
proceedings, strongly suggest Appellant could very well have received a
lesser punishment had the trial court recognized the evidence presented
regarding the allegation Appellant resisted arrest was insufficient. That
being the most serious finding against Appellant in the revocation hearing, it
cannot be determined with any degree of certainty the trial court would have
assessed the same sentence without that finding. Consequently, we suggest
oral argument would aid the Court's decisional process by providing a more
in depth exploration of those issues.
ISSUES PRESENTED
ISSUE ONE
Did the trial court abuse its discretion by determining Appellant had
committed the offense of resisting arrest and revoking his probation? (C.R.
20-21)(II R.R.)(III R.R.).
ISSUE TWO
Does Due Process of Law mandate that proof of violation of any
condition of community supervision must be beyond a reasonable doubt
rather than a preponderance of the evidence? (C.R. 20-21) (II R.R.)(III
R.R.).
2
STATEMENT OF FACTS
At approximately thirteen minutes and fifteen seconds into the arrest
video, the officer for the first time tells Appellant, “You’re about to catch
another charge…resisting.” State’s Exhibit No. 1, admitted and played in
the trial court at (II R.R. at 27-28)(III R.R.). It can further be seen from the
arrest video that within the next minute from that point, Appellant is secured
in the back seat of a patrol car, with there having been no further actions on
his part that might be interpreted as resisting. As to matters leading up to
that, the officer had testified as follows:
A When I had ran the check through TCIC/NCIC, I observed
the driver's license not eligible and he had an active warrant out
of Wilson County. I advised my dispatcher to confirm that
warrant. I exited my patrol unit and I walked behind Mr.
Jorgensen. I advised him to place his hands behind his back. I
reached up and grabbed his left wrist, and he turned and he
goes, "What's going on? What for?" and attempted to pull away
from me.
Q Okay. And so describe, you know, what – what happened
next?
A I advised him he was under arrest and I attempted to place
him in -- in handcuffs. And, again, he began to push and pull
away from myself and another officer. At that time, we escorted
him to the front of my patrol car and placed him over the hood
of my patrol vehicle, advised him to calm down and stop
resisting.
Q Ultimately, were you able to effect an arrest on the
defendant?
A Yes, sir, I was.
Q Do you have a dash cam video and a body cam video of this
incident?
A Yes, sir, I do. Q Do you have a dash cam video and a body cam
video of this incident?
A Yes, sir, I do. (II R.R. at 25).
The trial court found the State had sufficiently proved allegations one,
three, and five. (II R.R. at 63-64).
3
SUMMARY OF THE ARGUMENT
We urge the evidence was insufficient to support the trial court’s
determination Appellant violated his probation by committing the offense of
resisting arrest. The arrest video simply does not support that. Nowhere in
the video is there seen any force used by Appellant against the officer.
Furthermore, that being the most serious finding against Appellant in the
revocation hearing, it cannot be determined with any degree of certainty the
trial court would have assessed the same sentence without that finding.
Additionally, it is possible the trial court would have determined to not
revoke absent that finding.
In both probation revocation and juvenile delinquency proceedings
Due Process of Law has been held to require appointment of an attorney,
notice of allegations against a person, a neutral magistrate, an opportunity to
be heard, the right of confrontation, and the right against self-incrimination.
For almost fifty years, Due Process of Law has also mandated proof beyond
a reasonable doubt rather than by a preponderance of the evidence in
juvenile delinquency adjudication proceedings. As Due Process of Law
applies to probation revocation proceedings every bit as much as it applies to
juvenile delinquency proceedings; and as the fiction that a revocation
proceeding is an administrative matter, not criminal, has finally been laid to
rest; the time has come to recognize Due Process of Law mandates proof
beyond a reasonable doubt in probation revocation proceedings.
4
Although case law generally stands for the proposition proof of one
allegation will support a revocation, and allegations of Appellant having
committed the offense of Driving with Invalid License in Wilson County
and having failed to make written reports to Community Supervision were
proven, that case law should be distinguished. It cannot be determined to
any degree of certainty had the trial court only considered those allegations,
the decision would still have been to revoke and imprison for five years.
Due Process and Due Course of Law therefore demand this cause should be
reversed and remanded to the trial court for a new determination of the
proper disposition based on findings of true only as to those allegations.
5
ISSUE NO. 1 (restated)
1. The trial court abused its discretion by determining Appellant had
committed the offense of resisting arrest and revoking his probation. (C.R.
20-21)(II R.R.)(III R.R.).
ARGUMENT AND AUTHORITIES
Both the officer’s testimony and the dash cam video show there was
no evidence Appellant used the requisite degree of force against the officer
to amount to resisting arrest. An attempted “pulling away” from the officer
who then successfully placed Appellant under arrest was insufficient to rise
to the level of proof of resisting arrest, even by the preponderance standard.
Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014) held the
resisting arrest statute, TEX. PEN. CODE ANN §38.03, requires proof of
force directed at or in opposition to the officer:
It is true that appellant’s conduct in displaying the gun in the
presence of officers and refusing to put the gun down when
ordered to do so could rationally be found to constitute a use of
“force” within the meaning of the statute, but without an
additional showing that the force was directed at or in
opposition to the officers, he cannot reasonably be said to have
used force “against” a peace officer. Furthermore, although
appellant’s refusal to put down the gun when ordered to do so
had the likely effect of delaying his arrest, that refusal cannot
reasonably be understood as constituting a use of force against
the officer by virtue of its being opposed to the officer’s goal of
making an arrest. Likewise, appellant’s efforts to manipulate
the situation and intimidate officers for the purpose of delaying
his arrest by threatening to shoot himself cannot reasonably be
found to constitute a use of force against officers. Id. at 173.
At first glance, Finley v. State, 484 S.W.3d 926 (Tex. Crim. App.
2016) might appear to limit the Dobbs holding by upholding a resisting
arrest conviction based on “pulling away from the officers:”
6
Unlike in Dobbs, Finley used force against the officers by
pulling against the officers’ force. In this case, pulling away
from the officers satisfies the “in opposition or hostility to” the
police officers requirement. In light of Dobbs ‘s broad
definition of force, we conclude the evidence presented in this
case was sufficient to convict Finley.
…Here, while trying to take Finley into custody, Finley used
the requisite force under § 38.03. Officer Connor specifically
testified that Finley “clench[ed] up, pull[ed], and tr[ied] to pull
his arm away from me. And I—I could not get him fully under
control....” Officer Connor further testified that, while he pulled
Finley’s right arm back, Finley kept pulling his arm forward
towards his body—the opposite direction from the officers’
efforts. Officer Connor explained that he and Officer Rollins
then pinned Finley against a door because Finley actively
pulled away and attempted to pull his arms in front of himself.
Based on the record, viewed in light of Dobbs ‘s established
definition of force, there is sufficient evidence from which a
rational trier of fact could conclude beyond a reasonable doubt
that Finley used force or violence against the officers. Id. at
928-929 (Footnote omitted).
“In this case, there was no evidence of danger of injury to the officers
from Sheehan’s passive non-cooperation, and thus there was no evidence
that Sheehan used force against the officers. In its brief, the State concedes
that the evidence is insufficient to show a use of force.” Sheehan v. State,
201 S.W.3d 820, 823 (Tex. App.-Waco 2006, no pet.) demonstrates simply
failing to fully cooperate with an arresting officer does not rise to the level
of resisting arrest. See also, Young v. State, 622 S.W.2d 99, 100 (Tex. Crim.
App. 1981)(“The State could have chosen to charge appellant with either of
these offenses, or some other offense provable on the facts of record in this
case, but instead decided to charge him for and attempt to prove the offense
of resisting arrest in his act of “pulling away” from officer Smith. We find
7
that in attempting to do so, the State presented evidence which, taken as a
whole, is insufficient to support the conviction.”) Leos v. State, 880 S.W.2d
180, 184 (Tex. App.-Corpus Christi 1994, no pet.)(“The idea of violence
directed specifically toward Officer Landrum conflicts with this image of
appellant crawling on his shoulders and knees with his hands clasped to his
stomach. By attempting to crawl away, appellant invited prosecution for
evading arrest.”); and Anderson v. State, 707 S.W.2d 267, 269 (Tex. App.-
Houston [1st Dist.] 1986, no pet.)(“The State and appellant agree that the act
of shaking off an arresting officer’s detaining grip is not resisting arrest”).
The prosecution's case fails because based on this evidence, no
rational finder of fact could have found by a preponderance of the evidence,
much less beyond a reasonable doubt, that Appellant Robert Allan Jorgensen
in any way directed force at the officer in an attempt to prevent his arrest.
To the contrary, any attempted pulling away from the officer is simply
insufficient. For these reasons, the revocation of Appellant’s Community
Supervision must be reversed and remanded to the trial court.
8
ISSUE NO. 2 (restated)
2. Due Process of Law mandates that proof of violation of any condition
of community supervision must be beyond a reasonable doubt rather than a
preponderance of the evidence. (C.R. 20-21)(II R.R.)(III R.R.).
ARGUMENT AND AUTHORITIES
The time has come to re-visit the outdated notion a revocation of
community supervision is merely an administrative hearing in which
allegations that can send one to prison must only be proved by a
preponderance of the evidence. In view of the relatively harsh sentence
imposed, this case cries out for a re-examination of the quantum of proof
constitutionally required to revoke community supervision and imprison.
In Re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967) firmly
established that Due Process of Law applies to juvenile proceedings. In Re
Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368, 375 (1970) firmly
established the same Due Process of Law mandates that a juvenile cannot be
adjudicated a delinquent except upon proof beyond a reasonable doubt rather
than by the preponderance of the evidence standard that was in use at the
time. “In sum, the constitutional safeguard of proof beyond a reasonable
doubt is as much required during the adjudicatory stage of a delinquency
proceeding as are those constitutional safeguards applied in Gault -- notice
of charges, right to counsel, the rights of confrontation and examination, and
the privilege against self-incrimination. We therefore hold, in agreement
with Chief Judge Fuld in dissent in the Court of Appeals, ‘that, where a 12-
year-old child is charged with an act of stealing which renders him liable to
9
confinement for as long as six years, then, as a matter of due process . . . the
case against him must be proved beyond a reasonable doubt.’ ” Id. at 25
L.Ed.2d at 377-378.
Soon thereafter, Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33
L. Ed. 2d 484 (1972) held Due Process of Law applies to parole revocations,
and Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656
(1973) applied Due Process of Law to probation revocations, as well. In the
midst of that constitutionally enlightened period, along came Kelly v. State,
483 S.W.2d 467, 469-470 (Tex. Crim. App. 1972) which held the
preponderance of the evidence standard of proof was not constitutionally
prohibited in probation revocation proceedings. Presiding Judge Onion's
dissent merits an in-depth examination:
The necessity of the application of due process and equal
protection to revocation proceedings was recognized by this
court in Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970),
where it was also stated:
‘It would indeed now be difficult to conclude that
probation revocation hearings are not criminal
proceedings ‘where substantial rights of an accused
may be affected.’ Mempa v. Rhay, 389 U.S. 128,
88 S. Ct. 254, 19 L. Ed. 2d 336. The revocation
proceedings cannot be isolated from the context of
the criminal process. See Crawford v. State,
Tex.Cr.App., 435 S.W.2d 148.' 456 S.W.2d at
921—922.
See also McConnell v. Rhay, 393 U.S. 2, 89 S. Ct.
32, 21 L. Ed. 2d 2 (1968).
10
And only recently in Fariss v. Tipps, 463 S.W.2d 176
(Tex.1971), which involved an application for writ of
mandamus, the Texas Supreme Court held that a proceeding to
revoke probation is a ‘criminal prosecution’ within the state
constitution and a probationer was entitled to a speedy trial and
further that the speedy trial provision of the Sixth Amendment
of the United States Constitution was a due process requirement
applicable to state revocation proceedings through the
Fourteenth Amendment. See Article 24, Vernon's Ann.P.C.
Certainly it has been recognized that a revocation
proceeding is a critical stage of the criminal process where
counsel must be appointed if the probationer is indigent,
without counsel and has not been warned of the same. Id. at
474. Cf., Dansby v. State, S.W.3d , NO. PD-0613-12
(Tex. Crim. App. May 8, 2012)
Presiding Judge Onion was certainly ahead of his time in recognizing
a probation revocation proceeding is not a mere administrative proceeding.
And that legal fiction was finally put to rest for good some five years ago in
Ex Parte Doan, 369 S.W.3d 305, 308 (Tex. Crim. App. 2012), “our
characterization of a judicial proceeding as an administrative proceeding is,
on its face inaccurate…we have used the ‘administrative’ label to imply that
we would not strictly enforce procedural rules at revocation hearings, which
was an injudicious and inaccurate implication.” The fiction of Bradley v.
State, 608 S.W.2d 652, 656 (Tex. Crim. App. 1980) that a probation
revocation is not a criminal prosecution is now officially abandoned. See
also, Ex Parte Carmona, 185 S.W.3d 492, 495 (Tex. Crim. App. 2006):
To meet the requirements of due process, the final
revocation of probation must be preceded by a hearing, where
the probationer is entitled to written notice of the claimed
11
violations of his probation, disclosure of the evidence against
him, an opportunity to be heard in person and to present
witnesses and documentary evidence, a neutral hearing body,
and a written statement by the fact finder as to the evidence
relied on and the reasons for revoking probation. As we said in
Ex parte Hale, “the Constitution of our country has been
interpreted to protect persons who are released [on community
supervision], from reincarceration without due process of law.”
FN10
FN10. 117 S.W.3d 866, 871 (Tex.Crim.App.2003)
(citing Morrissey v. Brewer, 408 U.S. 471, 92
S. Ct. 2593, 33 L. Ed. 2d 484 (1972) (parole
revocation) and Gagnon v. Scarpelli, 411 U.S. 778,
93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973) ( probation
revocation)).
Accordingly, due process requires that reincarceration occur
only after the disclosure of evidence against the defendant.
Within this right to disclosure of evidence afforded by due
process, we can infer the requirement that revocation may not
occur when it is based solely on perjured testimony. Because
habeas review is appropriate for denials of fundamental or
constitutional rights, the applicant's claim that his community
supervision was revoked solely on perjured evidence, and
therefore without due process of law, is cognizable under the
habeas jurisdiction of this court. (Some footnotes omitted).
Presiding Judge Onion concluded his insightful Dissenting Opinion in
Kelly as follows:
The appellant urges that the holding in Winship compels the
application of the reasonable-doubt standard to revocation of
probation cases. It, at least, logically follows. To hold that adult
probations are to be denied due process under the correctional
rhetoric of In-loco parentis or for other reasons while juveniles
are receiving due process would be, in my opinion, an arbitrary
distinction and would raise serious equal protection issues as
well as due process considerations.[FN7]
12
FN7. In Winship, the Supreme Court said: ‘The
same considerations that demand extreme caution
in factfinding to protect the innocent adult apply as
well to the innocent child.’ 397 U.S. at 365, 90
S.Ct. at 1073. Cf. Note, 1971 Wis.L.Rev. 648,
654—55.
When all the legal niceties are laid aside, a proceeding to
revoke probation involves the right of an individual to continue
at liberty or to be imprisoned. It involves the possibility of a
deprivation of liberty just as much as original criminal action or
juvenile delinquency proceeding. The factfinding process is just
as adverse as in other proceedings where the accused is
afforded due process rights including the reasonable-doubt
standard.
In Note, 1971 Wis.L.Rev. 648, 657, it is written:
'. . . At numerous other steps in the criminal
procedure where liberty is threatened, the
Constitution has been construed to guarantee due
process. This is always the case at the original
trial. Revocation of probation is not merely a
reconsideration of the old charges with a new
sentence. It is the imposing of an old sentence due
to new allegations. The chance that these new
allegations may be wrong is just as great as the
chance that the original charges were wrong. The
chance for error or arbitrary justice is no less great
the second time and ‘liberty’ no less valuable.'
It has been held in this state that the result of a hearing to
revoke probation is not a ‘conviction’ but a finding upon which
the trial court might exercise its discretion by revoking or
continuing probation. And as noted earlier, this court has
frequently said that revocation hearings are not trials in the
constitutional sense.
13
This same type of reasoning was advanced in Winship in
support of the claim that there had been no deprivation of due
process and that the reasonable-doubt standard of proof was not
required in juvenile proceedings. It found favor with the New
York Court of Appeals but was expressly rejected by the United
States Supreme Court who noted that labels and good intentions
do not obviate the need for criminal due process safeguards in
juvenile courts where the possible loss of liberty is involved.
Certainly the use of the reasonable-doubt standard in Texas
revocation of probation proceedings need not necessarily
disturb the earlier Texas decisions nor have any real effect on
the flexibility or speed of the revocation hearing at which the
fact-finding takes place. I venture to say that most trial judges
in Texas use the reasonable-doubt standard in revocation
proceedings anyway, whether stated in their orders of
revocation or not. It is the burden of proof that most criminal
trial judges are accustomed to applying. See Article 38.03,
supra.
I would hold that the constitutional safeguard of proof
beyond a reasonable doubt as a matter of due process and
fundamental fairness is required in Texas revocation of
probation proceedings along with the right to counsel, speedy
trial, etc. (Some footnotes omitted). Kelly v. State, supra, 483
S.W.2d at 476-477.
Against that constitutional backdrop, we shall examine the allegations
of the motion to revoke the trial court found “true.” The trial court found the
State had sufficiently proved allegations one, three, and five. (II R.R. at 63-
64). Allegation One was that Appellant had been convicted in Wilson
County of driving with invalid license. Allegation Three was the resisting
arrest in Mineral Wells we believe to have been insufficiently proved.
14
Allegation Five involved failures to make written reports in certain months
to Throckmorton County Community Supervision. (C.R. at 20-21).
That a person can be sentenced to five years in the penitentiary for
driving with an invalid license in Wilson County and having failed to make
several written reports to Community Supervision over a three year period,
proved only by a preponderance of the evidence, should shock the
conscience. Due Process of Law absolutely requires more. This Court, we
respectfully submit, should reverse and remand for a new hearing in which
the State shall be required to prove its allegations against Appellant Robert
Allan Jorgensen beyond a reasonable doubt in compliance with the mandate
of Due Process of Law.
15
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that the
Court reverse and remand this cause to the trial court for a new hearing, or,
alternatively, reverse and remand for a new hearing on punishment.
Respectfully submitted,
/s/ Stan Brown
STAN BROWN
P.O. Box 3122
Abilene, Texas 79604
325-677-1851
Fax 325-677-3107
State Bar No. 03145000
Email: mstrb@aol.com
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of June, 2017, a true and
correct copy of the above and foregoing Appellant's Brief was emailed to
Mr. Michael Fouts, 39th District Attorney, Haskell County Courthouse,
Haskell, TX 79521 at da@co.haskell.tx.us.
/s/ Stan Brown
STAN BROWN
CERTIFICATE OF COMPLIANCE
I hereby certify that according to my computer program used to
prepare the foregoing document, the word count, in accordance with Tex. R.
App. P. 9.4, is 3356 words; and further certify that the brief is in 14-
point Times type.
/S/ Stan Brown
STAN BROWN
16