IN THE COURT OF APPEALS

ELEVENTH JUDICIAL DISTRICT

EASTLAND, TEXAS

ROBERT ALLAN JORGENSEN,

 APPELLANT

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

ACCEPTED

11-17-00090-CR

ELEVENTH COURT OF APPEALS

EASTLAND, TEXAS

6/14/2017 10:16:55 AM

SHERRY WILLIAMSON

CLERK

 FILED IN 11th COURT OF APPEALS EASTLAND, TEXAS 06/14/17 10:16:55 AM SHERRY WILLIAMSON Clerk
ii

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
iii

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
iv

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
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.
2

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.).
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 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). 
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 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.
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 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.
6

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:”
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 

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 
8

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.
9

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 
10

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).
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 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 
12

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]
13

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.

 
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 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. 
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 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. 
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 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