IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS. BRIAN ALLEN MORROW, Appellant. vs. THE STATE OF TEXAS, Appellee

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1 NOS CR, CR, CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS 5th Court of Appeals FILED: 11/14/11 14:00 Lisa Matz, Clerk BRIAN ALLEN MORROW, Appellant vs. THE STATE OF TEXAS, Appellee On appeal from Criminal District Court No. 7 of Dallas County, Texas In Cause Nos. F Y, F09-237!5-Y, F Y APPELLANT'S BRIEF Counsel oj'record Lynn Richardson Chief Public Defender Dallas County, Texas Katherine A. Drew Assistant Public Defender State Bar No Frank Crowley Courts Building 133 N. Riverfront Boulevard, LB-2 Dallas, Texas (214) (phone) (214) (fax) Attorneys for Appellant

2 NOS CR, CR, CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS BRIAN ALLEN MORROW, Appellant vs. THE STATE OF TEXAS, Appellee On appeal from Criminal District Court No. 7 of Dallas County, Texas In Cause Nos. F Y, F Y, F Y APPELLANT'S BRIEF Counsel of Record Lynn Richardson Chief Public Defender Dallas County, Texas Katherine A. Drew Assistant Public Defender State Bar No Frank Crowley Courts Building 133 N. Riverfront Boulevard, LB-2 Dallas, Texas (214) (phone) (214) (fax) Attorneys for Appellant

3 LIST OF PARTIES APPELLANT Brian Allen Morrow APPELLEE The State of Texas DEFENSE COUNSEL AT TRIAL Tom Grett (on the plea) P.O. Box Dallas, Texas DEFENSE COUNSEL AT TRIAL David Pickett (on the adjudication) 5837 Glendora Dallas, Texas STATE'S ATTORNEY AT TRIAL Patrick Jordan & Travis Wiles Dallas County District Attorney's Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas APPELLANT'S ATTORNEY ON APPEAL Katherine A. Drew Dallas County Public Defender's Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Dallas, Texas STATE'S ATTORNEY ON APPEAL Craig Watkins (or his designated representative) Dallas County District Attorney's Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas

4 TABLE OF CONTENTS LIST OF PARTIES... ii TABLE OF CONTENTS... iii INDEX OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 ISSUE PRESENTED... 2 The trial court abused its discretion by finding that Appellant had violated the terms and conditions of community supervision. STATEMENT OF FACTS... 2 SUMMARY OF ARGUMENT... 4 ARGUMENT... 4 PRAYER... 7 CERTIFICATE OF SERVICE ll

5 Cases INDEX OF AUTHORITIES Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984)... 5 Garrett v. State, 619 S.W.2d 172 (Tex. Crim. App. 1981)... 5 Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006)... 5 Statutes TEX. CODECRIM.PROC. art , 5(b)... 5 TEX. HEALTH & SAFETY CODE TEX. HEALTH & SAFETY CODE TEX. PENAL CODE IV

6 TO THE HONORABLE COURT OF APPEALS: COMES NOW Appellant, Brian Allen Morrow, and submits this brief on appeal from three convictions in Criminal District Court No. Seven of Dallas County, Texas, the Honorable Michael Snipes, judge presiding. STATEMENT OF THE CASE In Cause No. F Y, Appellant was charged with tampering with physical evidence in violation of TEX. PENAL CODE (CR1: 5). 1 Appellant entered a plea of guilty and was placed on deferred unadjudicated probation for three years. (CR1: 16; RR2: 4, 6). That order was entered on September 30, (CRl: 16). The State filed two motions to proceed to an adjudication of guilt. (CR1: 22-24, 26-27). On March 31, 2011, the trial court adjudicated Appellant's guilt and sentenced him to 10 years imprisonment. (CR1: 28; RR3: 40-41). In Cause No. F Y, Appellant was charged with unlawful possession of a controlled substance, to wit: cocaine, with intent to deliver in violation of TEX. HEALTH & SAFETY CODE (CR2: 5). Appellant entered a plea of guilty and was placed on deferred unadjudicated probation for five years and assessed a fine of $2000. (CR2: 17; RR2: 4, 6). That order was entered on September 30, (CR2: 17). The State filed two motions to proceed to an adjudication of guilt. (CR2: 22-24, 26-27). On March 31, 1 The clerk's record in Cause No. F Y will be referred to as CRl, the clerk's record in Cause No. F Y will be referred to as CR2, and the clerk's record in Cause No. F Y will be referred to as CR3.

7 2011, the trial court adjudicated Appellant's guilt and sentenced him to 10 years imprisonment. (CR2: 28; RR3: 40-41). In Cause No. F Y, Appellant was charged with unlawful possession of a controlled substance, to wit: cocaine, in violation of TEX. HEALTH & SAFETY CODE (CR3: 5). Appellant entered a plea of guilty and was placed on deferred unadjudicated probation for three years. (CR3: 16; RR2: 4, 6). That order was entered on September 30, (CR3:16). The State filed motions to proceed to an adjudication of guilt. (CR3: 24-25). On March 31, 2011, the trial court adjudicated Appellant's guilt and sentenced him to 2 years' confinement in a state jail facility. (CR3: 26; RR3: 40-41). ISSUE PRESENTED The trial court abused its discretion by finding that Appellant had violated the terms and conditions of community supervision. STATEMENT OF FACTS In the Motions to Proceed to an Adjudication of Guilt, the State alleged that Appellant committed assault family violence on or about December 1 or 2, ( CRl: 27; CR2: 27; CR3: 25). The State also alleged that Appellant was delinquent in fees, costs, and restitution and failed to complete community supervision. (CRl: 27; CR2: 27; CR3: 25). Appellant entered a plea of not true to these allegations. (RR3: 9). As evidence of these allegations, the State produced the testimony of Maunclaire Long who claimed that, on December 1, 2010, Appellant was engaged to her "sister," 2

8 Kimberly Ranson. 2 (RR3: 10, 13). Ransom was at Long's place when Appellant called asking for Ranson to return his stuff to him. (RR3: 12, 13, 15). According to Long, Appellant was outside of her residence in his truck, where he remained all night. (RR3: 15). When Long walked out to Appellant's truck, Ranson followed her. (RR3: 15-16). Ranson began cussing at Appellant, who argued back. (RR3: 16). At one point, Appellant got out of his truck, pushed Long out of the way, "flung" Ranson to the ground and hit her twice in the face with his fist. (RR3: 16, 17). When others broke up the altercation, Appellant said he was going to run over them. (RR3: 18). He then got in his truck and drove towards the women; another truck in his path stopped him from hitting them. (RR3: 18). Appellant then drove off. (RR3: 18). Long admitted that Ranson was a "big talker" who had provoked the altercation by calling Appellant "bitch," ''ho," and saying "that he wasn't about shit and she didn't want to marry him." (RR3: 20). Ranson had also told Appellant that she had sex with two other men. (RR3: 20-21). Appellant admitted that he had gotten into a verbal altercation with Ranson and had pushed her. (RR3: 29, 30, 36). The pair had been romantically involved, had broken up and he was trying to get some minor belongings back from Ranson. (RR3: 29). Long came out first; Ranson followed her "cussing me in the face.'' (RR3: 35). He denied that he had been parked outside Long's apartment all night. (RR3: 29, 34). He denied that he 2 Appellant testified that Ranson was not Long's sister. (RR3: 28). 3

9 hit Ranson with his fist. (RR3: 32, 36). He did not threaten to run over the women, nor did he try to hit the women with his truck, but rather left, "burning rubber" as he did so. (RR3: 32, 33, 37). Appellant admitted that he had "anger issues," but claimed he had never been violent with another person. (RR3: 33). Specifically, he had no intent to hurt Ranson. (RR3: 33). Katrina Hutchinson, the mother of Appellant's three daughters, also testified that Appellant was not a violent person. (RR3: 25, 26). Rather, he was a hard worker who was supporting his daughters and was back in a relationship with her. (RR3: 25, 26, 27). The State also presented the testimony of Kimberly Chalk, Appellant's probation officer. (RR3: 22-23). Chalk did not specifically testify to any of the alleged violations. To the contrary, Chalk admitted that Appellant reported regularly and did not have "any dirty UA's or anything like that." (RR3: 23). Chalk only alluded to Appellant being behind in "payments, community service and a couple of classes." (RR3: 24). No actual proof was offered of those allegations. SUMMARY OF ARGUMENT Under the facts of this case, the trial court abused its discretion by adjudicating Appellant guilty based on the level of proof of the allegations in the State's motions to proceed to adjudication of guilt. ARGUMENT A trial court's decision to proceed to an adjudication of a defendant's guilt is reviewed in the same manner as a revocation of community supervision, i.e., whether the trial court abused its discretion in determining that the defendant violated the terms of his 4

10 community supervision. TEX. CODE CRIM. PROC. art , 5(b); Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). A trial court abuses its discretion in revoking community supervision when the State fails to meet its burden of proof. Cardona v. State, 665 S.W.2d 492,493 (Tex. Crim. App. 1984). The State's burden of proof in communitysupervision revocation cases is by a preponderance of the evidence. Rickels, 202 S.W.3d at An appellate court views the evidence presented in a revocation proceeding in the light most favorable to the trial court's ruling. Garrett v. State, 619 S. W.2d 172, 174 (Tex. Crim. App ). As the trier of fact, the trial court is the judge of the credibility of the witnesses and the weight to be given their testimony. Garrett, 619 S.W.2d at 174. Here, the trial court could not have premised the decision to adjudicate guilt on any ofthe "technical" violations. While multiple "technical" violations of probation were alleged, no proof of those was offered. Kimberly Chalk, Appellant's probation officer, did not specifically testify to any violations. (RR3: 22-23). Rather, Chalk testified that Appellant reported regularly and did not have "any dirty UA's or anything like that." (RR3: 23). Chalk only alluded to Appellant being behind in "payments, community service and a couple of classes" in response to a question by defense counsel. (RR3: 24 ). No actual proof was offered of those allegations. As a result, the State failed in its burden of proof on those allegations. With respect to the proof on the State's allegation of assault family violence, the nature of that evidence was hotly contested. It is significant that the State attempted to prove its case not through the testimony of the alleged victim, Ranson, but through the testimony of Long. Appellant recognizes that the trial court could have found Long 5

11 credible and believed her testimony as opposed to Appellant's testimony. However, the totality of the testimony undercuts Long's credibility and calls into question whether the State actually offered sufficient proof of the allegation by a preponderance of the evidence: Ranson did not testify. No explanation was offered for the that lack of proof. The trial court said only, cryptically, "there is a lot of reasons for that." (RR3: 40). When asked about why Ranson was not in court, Long said Ranson had told her she did not care what happened to Appellant, but that she was not going to drop the charges. (RR3: 20). While the altercation between Appellant and Ranson was presumptively broken up by maintenance men in the apartment complex, no witness other than Long testified to the alleged assault. Appellant admitted pushing Ranson, but denied that he hit her or tried to run her over. He also denied forcing her to ground. (RR3: 36). It is hard to know whether this "push" is sufficient to establish "violence." There was undisputed evidence that Appellant was not a violent person. (RR3: 26) When all the evidence is considered, the trial court was left with dispositive proof only that Appellant pushed Ranson. The trial court should have exercised restraint and not proceeded to an adjudication of guilt on this level of proof. This is particularly true in view of the evidence that Appellant was doing well on probation. He was reporting and had not had any drug violations. (RR3: 38). He worked construction and was supporting his daughters with Hutchinson. (RR3: 25-27). It was within the trial court's discretion to deny the State's motions to proceed with an adjudication of guilt and to continue Appellant on probation, with perhaps some stronger 6

12 conditions or even a few days in jail, as defense counsel recommended. (RR3: 38-39). However, revocation of probation under the facts of this case is an abuse of discretion. PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court will reverse the adjudications of guilt and remand to the trial court for reconsideration of the State's motions. Lynn Richardson Chief Public Defender Dallas County, Texas Re~Jtfully submitted, ~ c c. I\ ~' Kat rine A. Drew Assistant Public Defender State Bar No Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Dallas, Texas (214) (phone) (214) (fax) CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing brief was served on the Dallas County Criminal District Attorney's Office (Appellate Section), 133 N. Riverfront Blvd., LB-19, loth Floor, Dallas, Texas, 75207, by hand deliv~rf November 14,, ~ \ ( (. ' "- LL - L ~ '--- --=-"' '-r-'-'""''-"w=.J'~t :\, ---'=..:...!::..''..:.c' ':...:..'-_ Ka erine A. Drew 7