Cynthia Jane Jones v. State

IN THE TENTH COURT OF APPEALS No. 10-07-00374-CR Cynthia Jane Jones, Appellant v. The State of Texas, Appellee From the 413th District Court Johnson County, Texas Trial Court No. F39367 MEMORANDUM Opinion Jones was convicted of assault causing bodily injury on a public servant. See Tex. Penal Code Ann. § 22.01(a)(1), (b)(1) (Vernon 2003). The trial court suspended imposition of Jones’s sentence during Jones’s good behavior on community supervision, it being a condition of Jones’s community supervision that she commit no offense against the State of Texas. See Tex. Code Crim. Proc. Ann. art. 42.12, § 2(2), § 3, § 11(a)(1) (Vernon Supp. 2007). The State filed a motion to revoke Jones’s community supervision, the motion alleging that Jones had violated the terms of her supervision by committing the offense of assault intentionally, knowingly, or recklessly causing bodily injury on Kim Stieber, a public servant. See id. § 21(a)-(b) (Vernon Supp. 2007). The trial court granted the State’s motion and revoked Jones’s community supervision, and sentenced Jones to imprisonment. See id. § 23(a) (Vernon Supp. 2007). Jones appeals. See id. (b) (Vernon Supp. 2007). We affirm. In one issue, Jones contends that the trial court erred in granting the State’s motion and sentencing Jones to imprisonment. “Appellate review of an order revoking [community supervision] is limited to” review for “abuse of the trial court’s discretion.” Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) (quoting Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)) (alteration added). “In determining questions regarding sufficiency of the evidence in [community-supervision] revocation cases, the burden of proof is by preponderance of the evidence.” Id. (citing Cardona at 493). “[A]n order revoking [community supervision] must be supported by a preponderance of the evidence; in other words, that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his [community supervision].” Rickels at 763-64 (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)) (alterations added). We “must view the evidence in a light most favorable to the verdict.” Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); see Browder v. State, 109 S.W.3d 484, 485 (Tex. Crim. App. 2003); Cardona at 493. Jones’s argument regarding the application of the law to the facts of her case is as follows: The Appellant was mentally disturbed and not responsible for her actions which were the sole basis of the motion to revoke probation so that the trial court reversibly erred and abused its discretion in revoking her community supervision and imposing her sentence of confinement herein. There can be no doubt that the Appellant was suicidal, and mentally unstable to the point that she was not responsible for her actions. The fact that the Appellant had severely injured herself and in thrashing about only kicked out once at Stieber supports that conclusion as well. Obviously one who is not mentally stable cannot be held responsible for the allegations used herein to revoke her probation. Instead of being sent to prison the Appellant, although competent to stand trial, should have been given mental health services in order to comply with due process of law. Thus reversible error and an abuse of discretion are shown herein. (Br. at 12.) We assume without deciding that Jones adequately briefs her issue. Cf. Tex. R. App. P. 33.1(a), 38.1(h); Gallo v. State, 239 S.W.3d 757, 768 (Tex. Crim. App. 2007); Hankins v. State, 132 S.W.3d 380, 385 (Tex. Crim. App. 2004); McCarthy v. State, 65 S.W.3d 47, 49 n.2 (Tex. Crim. App. 2001); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000). As to the trial court’s revocation of Jones’s community supervision, the State points primarily to evidence that Jones kicked Stieber, a Cleburne police officer, when Stieber attempted to restrain Jones. Jones also kicked at emergency medical personnel who attempted to treat her. As to the trial court’s assessment of Jones’s punishment, the State points to Jones’s repeated convictions for assault on a public servant, and her several misdemeanor convictions. The trial court also heard evidence that Jones had been in the treatment of the Department of Mental Health and Mental Retardation without improvement. Viewing the evidence in the light most favorable to the trial court’s order, we hold that Jones does not show that the trial court abused its discretion in granting the State’s motion to revoke and sentencing Jones to imprisonment. We overrule Jones’s issue. Having overruled Jones’s sole issue, we affirm. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed April 9, 2008 Do not publish [CR25]