IN THE COURT OF APPEALS

ELEVENTH JUDICIAL DISTRICT EASTLAND, TEXAS

ROBERT ALLAN JORGENSEN

, APPELLANT

V.

NO. 11

- 1 7

- 00 090

- CR (TRIAL COURT NO. 1237 ) STATE OF TEXAS,

A PPELLEE

******************************************

APPEALED FROM THE 3 9 TH 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 ACCEPTED 11-17-00090-CR ELEVENTH COURT OF APPEALS

EASTLAND, TEXAS 6/14/2017 10:16:55 AM SHERRY WILLIAMSON

CLERKii 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 3 9 TH DISTRICT COURT

OF

THROCKMORTON COUNTY, TEXAS

**IDENTITY OF PARTIES AND COUNSEL**

The following is a complete list of the names and address es of all parties to the trial court's final judgment, as well as their counsel, if any:

Hon. Shane Hadaway Stan Brown 3 9 th District Court Appellant’s Attorney/ Appeal Haskell County Courthouse P.O. Box 3122 Haskell , Texas 7 9521 Abilene, T exas 79604

Michael Fouts Earnest W. Scott District Attorney Appellant’s Attorney/Trial Haskell County Courthouse 342 Chestnut Haskell , Texas 7 9521 Abilene , Texas 7 9602

Robert Allan Jorgensen 1014 S.W. 7 th Ave. Mineral Wells, TX. 76067iii **TABLE OF CONTENTS**

**SUBJECT PAGE** 

Statement of Case............................................................................................1

Statement Reg arding 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 re voking 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 su pervision 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..........................................................16iv **INDEX OF AUT HORITIES**  **CASES PAGE** 

Anderson v. State , 707 S.W.2d 267 (Tex. App.

- Houston [1 st 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 Ga ult , 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)

... ... ... ... ... . 9

In Re Winship , 397 U.S. 3 58, 90 S.Ct. 1068, 25 L

. Ed

. 2d 368 (1970)

... ... 9

- 10

Kelly v. State , 483 S.W.2d 467 (T ex. 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

... ............ ........................................................ ............ 16ROBERT ALLAN JORGENSEN, APPELLANT V. NO. 11

- 17

- 00090

- CR (TRIAL COURT NO. 1237) STATE OF T EXAS, 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

pl aced on community supervision June 13, 20 14

. (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

,

201 7. ( 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.2 **STATEMENT REGARDING ORAL ARG UMENT** 

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 reas onable 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 t he 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 .).3 **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 in terpreted 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 dis patcher 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 v ideo 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).4 **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 b een 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 a gainst 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 de linquency 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 revocat ion proceedings.5 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 impris on 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.6 **ISS UE 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 t he das h 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 wi thout 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:”7 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

con trol....” 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 pinn ed 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

- cooper ation, 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.) demonstrat es si mply

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 offens es, 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 find8 that in attempting to do so, the Sta te 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 [1 st Dist.] 1986, no pet.) (“ The State and appellant agree that the act

of shaking off an arresting officer’s detaining grip is not resisting arres t ”)

. The prosecution's case fails because based on this evidence, no

rational finder of fact could have found by a preponderanc e 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

.9 **ISSUE NO. 2**  **(restated)**

2

. Due Process of Law mandates that proof of violation of any condition of community supervision m ust 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 h earing in which

allegations that can send one to prison must only be proved by a

preponderance of the evidence. I n 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 Ga ult , 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. 3 58, 90 S.Ct. 1068, 25 L

. Ed

. 2d 368, 375 (1970) firmly

established the same Due Process of Law mandat es 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

dou bt is as much r e quired during the adjudicatory stage of a delinquency

proceeding as are those constitutional safeguards applied in Gault

-- notice

of charges, right to cou n se l, the rights of confrontation and examination, and

the privilege against self

- inc rimination. 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 to10 confinement for as long as six years, then, as a matter o f due process . . . the

case against him must be pr oved 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 revocat ions,

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 (T ex. 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 o f 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 crim i nal 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)

.11 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 probatio n is a ‘criminal prosecution’ within the state constitution and a prob a tioner was entitled to a speedy trial and
fu r ther that the speedy trial provision of the Sixth Amendment of the United States Constitution was a due process r e quirement applicable to st ate 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 procee ding 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 pro ceeding 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 injudici ous and inaccurate implication.” T he 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 claimed12 violations of his probation, disclosure of the evidence against him, an opportunity to be heard in person and to present
wi t nesses and documenta ry 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 a re released [on community

s u pervision], from reincarceration without due process of law.”

FN10

FN10. 117 S.W.3d 866, 871 (Tex.Crim.App.2003) ( citing Morr issey 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

revoc ation)).

Accordingly, due process requires that r e incarceration occur only after the disclosure of ev i dence against the defendant. Within this right to disclosure of evidence afforded by due process, we can infer the requirement that revocation may not

oc cur when it is based solely on perjured testimony. Because habeas review is appropriate for denials of fundamental or constitutional rights, the appl i cant's claim that his community supervision was r e voked 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 holdi ng in Winship compels th e 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 juv e niles are receiving due process would be, in my opi n ion, an arbitrary distinction and would raise serious equal protection issues as well as due process consi d erations. [FN7]13 FN7. In Winship, the Supreme Court said: ‘The
same considerations that demand e x treme 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 pr o ceeding to revoke probation involves the ri ght 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 pro ceedings where the a c cused 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

pr o cedure where liberty is threatened, the
Constitution ha s 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 chan ce 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
constit u tional sense.14 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 juv e nile proceedi ngs. 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 cri m inal due process safeguards in juvenile courts where the possible loss of liberty is involved.

Certainly the use of the reasonable

- doubt stan d ard in Texas revocation of probation proceedings need not necessarily
disturb the earlier Texas dec i sions nor have any real effect on the flexibility or speed of the revocation h earing 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 crim inal trial judges are accustomed to applying. See Article 38.03

, supra.

I would hold that the constitutional safeguard of proof beyond a reas onable 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.

Again st 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.15 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 Su pervision 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 Sta te 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.16 **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 14 th day of June , 201 7

, a true and correct copy of the a bove and foregoing Appellant's Brief was emailed to Mr. Michael Fouts

, 39th District Attorney

, Haskell County Courthouse, Haskell , TX 7 9521 at da@co.haskell.tx.us

.

/s/ Stan Brown STAN BROWN

**CERTIFICATE OF COMPLIANCE** 

I hereby certify tha t 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