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Click here for the full text of this decision FACTS:A trial court convicted Shane Wilkins of aggravated kidnapping, aggravated assault and three counts of aggravated assault with a deadly weapon. The trial court sentenced Wilkins to 10 years of imprisonment on the aggravated kidnapping case, 10 years of imprisonment on the one count of aggravated assault and two years of imprisonment in each of the three cases of aggravated assault with a deadly weapon. In each case, the trial court placed Wilkins on community supervision. While Wilkins was on community supervision, Wilkins’ wife and her ex-husband engaged in a custody dispute that resulted in several court hearings and, at times, intervention by Child Protective Services. In June 2005, District Judge Sam Medina scheduled an emergency hearing in the 237th District Court involving the parents of the children and CPS. Although Wilkins was a nonparty to the suit, Wilkins desired to attend the hearing and attempted to enter the courtroom. However, Medina maintained a dress code policy prohibiting shorts in the courtroom, and the bailiff denied Wilkins admittance until he was able to properly dress for court. As Wilkins left the courthouse to change into more appropriate clothing, he made a telephone call. While Wilkins was on the phone, two attorneys heard Wilkins make multiple statements to the effect that he wished that Medina would die. The attorneys, after returning to their respective offices to handle other business matters, decided to report the overheard remarks to Medina, who in turn reported the incident to the district attorney’s office. The state filed an application to revoke Wilkins’ community supervision, contending that Wilkins violated his community supervision by committing the offense of retaliation by making the remarks overheard by the attorneys. Later on that day, Wilkins returned to the courtroom and attended the proceedings without incident until he was arrested on the motion to revoke warrant. After a hearing on Sept. 7, 2005, the trial court found that Wilkins had violated his community supervision, revoked the order placing him on community supervision and ordered that Wilkins serve the sentence of 10 years imprisonment. Wilkins appealed the judgment revoking his community supervision. HOLDING:Reversed and remanded. A community-supervision-revocation proceeding, the court stated, is neither a criminal nor a civil trial but is rather an administrative proceeding. The state must prove by a preponderance of the evidence that a defendant violated the terms of his community supervision. The court stated that its review a revocation order is limited to determining whether the trial court abused its discretion. An abuse of discretion, the court stated, occurs when the trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Under Texas Penal Code �36.06(a)(1)(A), the court stated, the offense of retaliation can be committed by a person if he “intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service or status of another as a public servant.” The court found no evidence supporting a conclusion that Wilkins meant to affect Medina’s actions or emotional well-being. Nothing in the record, the court stated, can be construed as evidence that Wilkins intended or knew with reasonable certainty that his statement would cause a reaction such as the heightened sense of security put into place after the district attorney’s office became involved. Finally, the court stated, the record shows that Wilkins complied with Medina’s no-shorts policy, went home to change clothing and returned to the courtroom without any demonstration of ill-feelings or inappropriate conduct in the courtroom. As a result, the court concluded that no reasonable person could believe by a preponderance of the evidence that Wilkins made a threatening remark with the requisite retaliatory intent of placing Medina in fear of retribution as a result of his duty as district judge. In addition, the court concluded that the trial court abused its discretion in finding by a preponderance of the evidence that Wilkins committed the offense of retaliation. Thus, the trial court erred in revoking Wilkins’ community supervision. OPINION:Hancock, J.; Quinn, C.J., and Campbell and Hancock, J.J.

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