Kimeele Carolyn Black-Thomas v. State ( 2015 )

NO. 07-14-00434-CR
FILED IN
IN THE COURT OF APPEALS 7th COURT OF APPEALS
AMARILLO, TEXAS
FOR THE SEVENTH DISTRICT OF TEXAS5/8/2015 2:06:29 PM
AT AMARILLO VIVIAN LONG
CLERK
_______________________________________
KIMEELE CAROLYN BLACK-THOMAS
V.
THE STATE OF TEXAS
________________________________________
ON APPEAL FROM THE 100th DISTRICT COURT
OF CARSON COUNTY;
HONORABLE STUART MESSER
PRESIDING JUDGE
CAUSE NO. 4,889
__________________________________________________
APPELLANT KIMEELE CAROLYN BLACK-THOMAS'
BRIEF
HARLEY CAUDLE
State Bar No. 24065026
1017 W. 10TH
AMARILLO, Texas 79101
harley@hcaudlelaw.com
(806) 331-7785
(806) 331-7786 - fax
ATTORNEY FOR APPELLANT
KIMEELE CAROLYN
BLACK-THOMAS
NO. 07-14-00434-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
__________________________________________________
KIMEELE CAROLYN BLACK-THOMAS
V.
THE STATE OF TEXAS
__________________________________________________
ON APPEAL FROM THE 100th DISTRICT COURT
OF CARSON COUNTY;
HONORABLE STUART MESSER
CAUSE NO. 4,889
_______________________________________
APPELLANT KIMEELE CAROLYN BLACK-THOMAS’
BRIEF
__________________________________________________
TO THE HONORABLE JUSTICES OF THE AMARILLO COURT OF APPEALS:
Appellant's Counsel, Harley Caudle, respectfully submits
this brief in response to the trial court's judgment which
finally adjudicated Appellant KIMEELE CAROLYN BLACK-THOMAS
guilty on the offense of Possession of Marijuana, a state jail
felony, and assessed a sentence of twenty months in the Texas
Department of Criminal Justice State Jail Division.
For convenience, Appellant, KIMEELE CAROLYN BLACK-THOMAS
will be referred to as Appellant; and the State of Texas as
Appellee. The transcript of the Final Hearing will be
referenced by page number.
STATEMENT OF THE CASE
The Appellant was charged by Indictment by the District
Attorney's Office for the one hundredth Judicial District for
the state jail felony offense of "Possession of Marijuana".
Appellant filed an Application for Community Supervision
and based upon a Plea Bargain Recommendation from the District
Attorney's office, Appellant pled guilty to the offense and was
given deferred adjudication and placed on community supervision
for a term of three years. Appellant waived any rights to appeal
of the plea in each case.
The State filed a Motion to Adjudicate alleging that
Appellant had violated numerous conditions of probation.
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On December 5, 2014 a hearing was held to determine if
Appellant had violated the conditions of community supervision
and then to determine the punishment for Appellant. The
hearing was heard by the Honorable Judge Stuart Messer of the 100th
Judicial District of Texas.
The Court heard evidence as presented by the State of Texas
represented by the 100th Judicial District Attorney Luke Inman
and from Appellant as represented by counsel, Erin Mulanax.
(RR/1-75) At the conclusion of the hearing, after Appellant
pled true to alleged violations contained in the Motion to
Adjudicate, the Court found that Appellant had in fact violated
those provisions of appellant's probation order as alleged in
the Motion to Revoke Probation.(RR/10, 77).
After considering evidence and argument, the Court ordered
that, having been found to have violated her community
supervision, Appellant be finally adjudicated guilty of the
state jail felony offense of Possession of Marijuana and that
Appellant be sentenced to twenty months in the Texas Department
of Criminal Justice State Jail Division.(RR/77).
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ISSUES PRESENTED
Issue 1: Actual Innocence of the offense for which Appellant was
found guilty.
Issue 2: Ineffective Assistance of Counsel at any stage of
proceedings.
Issue 3: Severity of the Punishment
STATEMENT OF FACTS
Appellant appeals the 100th Judicial Court's sentencing of
Appellant. The Court determined based upon the evidence that
Appellant had in fact violated conditions 7, 8 and 10 of appellant's
probation order as alleged in the Motion to Revoke. (RR/10, 77-78).
Appellant admitted to a violation of conditions 7, 8 and
10(RR/10).
Mark WHite of the 100th District Community Supervision and
Corrections Department was the only witness called by the State
(RR/11). He testified that he conducted the probation intake on June
4, 2012 when the Appellant pled guilty to the felony offense of
Possession of Marijuana, was placed on deferred adjudication and was
placed on community supervision for a period of three years.
(RR/13-15). He then testified that Appellant had been noncompliant
with her conditions of probation (RR/17-21). He testified that
Appellant had failed to report in writing, failed to make required
payments and failed to complete required community service.
(RR/17-21).
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SUMMARY OF THE ARGUMENT
After an exhaustive review of the trial court's transcript and
the record in this cause, Appellant could raise several points for
appeal including, (1) that there was insufficient evidence to
convict her or to revoke her community supervision, (2) that her
attorney at the original plea, or her attorney at the adjudication
hearing was ineffective; and (3) that the twenty month sentence was
inappropriate.
A thorough examination of the transcript, exhibits, and
case law regarding the issues reveals that the Court's
decisions on the adjudication portion of the case are backed by
reasonable evidence and are not appealable and cannot be reviewed
by this Appellate Court. Further, the law, and
evidence will show that Appellant's counsel was not
ineffective. Finally, the trial court was within his
discretion in sentencing the appellant within the range of
punishment.
ARGUMENT
ANDERS BRIEF IN SUPPORT OF MOTION TO WITHDRAW
Now comes Harley D. Caudle, Court appointed counsel
for KIMEELE CAROLYN BLACK-THOMAS, Appellant in this appeal, and
files this brief in support of his Motion to Withdraw. In
support of counsel's diligent effort to find a meritorious
ground for appeal counsel would show the following:
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ISSUE 1.
ANY ISSUES CONCERNING THE ORIGINAL PLEA OR THE
ADJUDICATION ARE UNABLE TO BE APPEALED
To the extent that appellant now questions the evidence
underlying the evidence of her guilt for the original
charge, established law bars appellate courts from
considering the matter. Pena, Jr. V. State (No. 07-03-0511-
CR 7th Court of Appeals August 2005); Manuel V. State, 994
S.W.2d 658, 661-662 (Tex. Crim. App. 1999). Appellant waived
her right to appeal any issues which occurred at the time of his
plea of guilty on June 4, 2012. (CR).
On reviewing the testimony and the findings made by the Court,
it is clear that Appellant had failed to report in writing, failed
to make required payments and failed to perform required community
service, all being violations of Appellant's community supervision.
Thus, the Court did not err in finding that Appellant
had violated provision 2 (RR/10, 77). If any conditions of probation
have been violated by Appellant, then the court has the right to
proceed to final adjudication and sentencing.
ISSUE 2.
INEFFECTIVE COUNSEL AT ANY LEVEL OF PROCEEDINGS BEFORE THE COURT.
Appellant may wish to urge ineffective assistance of
counsel for her trial counsel at both the original plea
hearing, and at the motion to adjudicate hearing. Said
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complaint must come from actions of appellant's counsel at
the respective hearings. This court must evaluate any
claim of ineffectiveness of counsel under the standard
enunciated in Strickland v. Washington, 466 U.S. 668 (1984);
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999); Calloway
v. State, (No. 05-03-00927 5th Court of Appeals September 2005). To
prevail on his claim, appellant must show (1) counsel's performance
fell below an objective standard of reasonableness, and (2) a
reasonable probability exists that, but for counsel's errors, the
result would have been different. Strickland, 466 U.S. at 687-88,
694. The review of counsel's performance should be highly
deferential, and it is presumed that counsel provided reasonable
assistance. Bone v. State, 11 S.W.3d 828, 833 (Tex. Crim. App.
2002) Ordinarily, counsel should not be condemned as unprofessional
or incompetent without an opportunity to explain the challenged
actions. Id. At 836. When the record is silent regarding counsel's
reasons for his conduct, the court should defer to counsel's
decisions if there is at least the possibility that the conduct could
have been legitimate trial strategy. Calloway, at 2.
In the case at hand, the record reflects that Appellant did not
raise an objection of his trial counsel's assistance at the time of
the original plea, and that she waived any appealable issues at the
time of the plea hearing. Further, she at no time raised an objection
to any of her counsel's actions at the time of her hearing on the
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State's motion to adjudicate. From the face of the proceedings,
Appellant's counsel on the Motion to adjudicate hearing brought forth
all of Appellant's objections, and attempted to show the facts as
Appellant wanted them presented.
At no time was an objection made as to the effectiveness of
Appellant's counsel. It does not appear that given the deference
required that Appellant's counsel failed to meet any other
requirements of effectiveness. Therefore, based upon the above
stated law, the court should find that there is no ineffectiveness
of counsel.
ISSUE 3.
SEVERITY OF THE PUNISHMENT.
In this Court's review of the trial judge's determination of the
appropriate punishment a great deal of discretion is allowed the
sentencing judge. Jackson v. State, 680 S.W. 809 (Tex. Crim. App.
1984) Furthermore, the sentencing judge's decision will not be
disturbed on appeal absent a showing of abuse of discretion and
harm. Jackson v. State, 680 S.W. 809 (Tex. Crim. App. 1984); Hogan v.
State, 529 S.W. 515 (Tex. Cr. App. 1975) It is also the general rule
that as long as a sentence is within the proper range of punishment
it will not be disturbed on appeal. Jackson v. State, 680 S.W. 809
(Tex. Crim. App. 1984); Nunez v. State, 565 S.W.2d 536 (Tex. Cr. App.
1978)
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In the instant case, Appellant was sentenced to twenty
months imprisonment.
The Appellant's sentence was clearly within the range of
punishment as Appellant was sentenced to twenty months which
is less than the maximum punishment of for a state jail felony,
same being twenty four months. Furthermore, the court could
consider all of the evidence presented at the adjudication
hearing. In this case the court clearly had evidence to support
his ruling.
CONCLUSION
After reviewing the relevant case law and reviewing the
trial hearing transcript, Counsel cannot find a non-frivolous
ground for appeal that would affect the outcome of the trial
court's adjudication and sentence.
PRAYER
Counsel for Appellant requests that the Court allow
counsel to withdraw and provide Appellant additional time to
file any additional pro se brief in support of her appeal.
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Respectfully Submitted,
Harley D. Caudle
1017 W. 10th
Amarillo, TX 79101
harley@hcaudlelaw.com
PH: (806) 331-7785
FAX: (806) 331-7786
___________________
By: /s/ Harley D. Caudle
Harley D. Caudle
State Bar No. 24065026
Attorney for Appellant
NATHAN ONEAL DAVIS
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above
and foregoing document has been served on the following counsel
of record and parties by certified mail, addressed as follows on
this 8th day of May 2015:
/s/ Harley D. Caudle
Harley D. Caudle
Attorney for Appellant
KIMEELE CAROLYN BLACK-THOMAS
KIMEELE CAROLYN BLACK-THOMAS
TDCJ #01967595
Lucile Plane State Jail
Texas Department of Criminal Justice
904 FM 686
Dayton, Texas 77535
Luke M. Inman
100th Judicial District Attorney
State Bar No. 24050806
800 West Avenue, Box 1
Wellington, Texas 79095
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Erin Mulanax
Stockard, Johnston & Brown
1800 S. Washington, Ste. 115
Amarillo, Texas 79102
CERTIFICATE OF COMPLIANCE
I, Harley D. Caudle, hereby certify that the above and
foregoing Appellant's Brief is 1,896 words in its
completion, signed on this 8th day of May 2015, in accordance
with the rules governing same.
/s/ Harley D. Caudle
Harley D. Caudle
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APPENDIX
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INDEX TO APPENDIX
1. Order of Deferred Adjudication
2. Judgment Adjudicating Guilt
3. Trial Court's Certification of Defendant's Right to Appeal
4. Letter to Appellant
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