James Dewayne Grumbles v. State

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