Mary Louise Henry v. State ( 2015 )

ACCEPTED
12-14-00333-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
1/28/2015 3:25:55 PM
CATHY LUSK
CLERK
No. 12-14-00333-CR
FILED IN
12th COURT OF APPEALS
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
TYLER, TEXAS 1/28/2015 3:25:55 PM
CATHY S. LUSK
Clerk
MARY LOUISE HENRY
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the 7th District Court of Smith County, Texas
Trial Cause No. 007-1056-13
ORAL ARGUMENT NOT REQUESTED
Austin Reeve Jackson
Texas Bar No. 24046139
112 East Line, Suite 310
Tyler, TX 75702
Telephone: (903) 595-6070
Facsimile: (866) 387-0152
IDENTITY OF PARTIES AND COUNSEL
Attorney for Appellant
Appellate Counsel:
Austin Reeve Jackson
112 East Line, Suite 310
Tyler, TX 75702
Trial Counsel:
John Jarvis
326 S. Fannin
Tyler, TX 75702
Attorney for the State on Appeal
Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS............................................................................................... iii
INDEX OF AUTHORITIES ......................................................................................... iv
STATEMENT OF THE CASE....................................................................................... 2
ISSUE PRESENTED ...................................................................................................... 2
STATEMENT OF FACTS ............................................................................................. 2
PROFESSIONAL EVALUATION OF THE RECORD ................................................ 3
SUMMARY OF THE ARGUMENT ............................................................................. 3
ARGUMENT .................................................................................................................. 4
THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN
REVOKING APELLANT'S COMMUNITY SUPERVISION .................. 4
Standard of Review ................................................................................................... 4
A. There was Legally Sufficient Evidence to Support the Revocation ................... 5
1. The Plea ......................................................................................................... 5
2. Sufficiency of the Evidence ........................................................................... 6
B. Appellant's Setence was Within the Statutory Range of Punishment ................. 7
C. Appellant Received Effective Assistance of Counsel ......................................... 9
CONCLUSION AND PRAYER .................................................................................. 10
CERTIFICATE OF SERVICE ..................................................................................... 10
CERTIFICATE OF COUNSEL ................................................................................... 11
CERTIFICATE OF COMPLIANCE ............................................................................ 11
iii
INDEX OF AUTHORITIES
UNITED STATES SUPREME COURT:
Anders v. California,
386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) ................................... 3, 10, 11
Robinson v. California,
370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962) ..................................... 7
Solem v. Helm,
463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983) ................................. 7-8
Strickland v. Washington,
466 U.S. 668, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1984) ................................. 9
TEXAS COURT OF CRIMINAL APPEALS:
Aguirre-Mata v. State,
125 S.W.3d 473 (Tex.Crim.App. 2003) ........................................................ 6
Cardona v. State,
665 S.W.2d 492 (Tex.Crim.App. 1984) ........................................................ 4
Cobb v. State,
851 S.W.2d 871 (Tex.Crim.App. 1993) ........................................................ 6
Cole v. State,
578 S.W.2d 127 (Tex.Crim.App. 1979) ........................................................ 7
Ex parte Brown,
158 S.W.3d 449 (Tex.Crim.App. 2005) ........................................................ 8
Garcia v. State,
57 S.W.3d 436 (Tex.Crim.App. 2001) ......................................................... 9
Hernandez v. State,
988 S.W.2d 70 (Tex.Crim.App. 1999) ......................................................... 9
iv
TEXAS COURT OF CRIMINAL APPEALS (CON’T):
Jackson v. State,
877 S.W.2d 768 (Tex.Crim.App. 1994) ....................................................... 9
Jordan v. State,
495 S.W.2d 949 (Tex.Crim.App. 1973) ....................................................... 8
Lyles v. State,
850 S.W.2d 497 (Tex.Crim.App. 1993) ........................................................ 4
Mendez v. State,
138 S.W.3d 334 (Tex.Crim.App. 2004) ........................................................ 6
Miniel v. State,
831 S.W.2d 310 (Tex.Crim.App. 1992) ....................................................... 9
Moore v. State,
605 S.W.2d 924 (Tex.Crim.App. 1980) ........................................................ 7
Moore v. State,
694 S.W.2d 528 (Tex.Crim.App. 1985) ........................................................ 9
Moses v. State,
590 S.W.2d 469 (Tex.Crim.App. 1979) ....................................................... 7 n.1
Rhoades v. State,
934 S.W.2d 113 (Tex.Crim.App. 1996) ....................................................... 7
Rickles v. State,
202 S.W.3d 759 (Tex.Crim.App. 2006) ........................................................ 4, 6
Stafford v. State,
813 S.W.2d 503 (Tex.Crim.App. 1991) ....................................................... 10
Thompson v. State,
9 S.W.3d 808 (Tex.Crim.App. 1999) ........................................................... 9
TEXAS COURTS OF APPEAL:
v
Bolden v. State,
73 S.W.3d 428 (Tex.App.—Houston [1st Dist.] 2002) ................................. 8
Brooks v. State,
995 S.W.2d 762 (Tex.App.—San Antonio 1999).......................................... 7
Canseco v. State,
199 S.W.3d 437 (Tex.App.—Houston [1st Dist.] 2006) ............................... 4
Castaneda v. State,
135 S.W.3d 719 (Tex.App.—Dallas 2003) .................................................. 7
TEXAS COURTS OF APPEAL (CON’T):
Duke v. State,
2 S.W.3d 512 (Tex.App.—San Antonio 1999).............................................. 4
Hays v. State,
933 S.W.2d 659 (Tex.App.—San Antonio 1996) ......................................... 4, 5, 7
Joseph v. State,
3 S.W.3d 627 (Tex.App.—Houston [14th Dist.] 1999) ................................. 4
Lewis v. State,
195 S.W.3d 205 (Tex.App.—San Antonio 2006).......................................... 4
Mays v. State,
904 S.W.2d 290 (Tex.App.—Fort Wroth 1995) ............................................ 3
Noland v. State,
264 S.W.3d 144 (Tex.App.—Houston [1st Dist.] 2007) .............................. 7
Roman v. State,
145 S.W.3d 316 (Tex.App.—Houston [14th Dist.] 2004) ............................. 8
Sims v. State,
326 S.W.3d 707 (Tex.App.—Texarkana 2010) ............................................. 6
Trevino v. State,
174 S.W.3d 925 (Tex.App.—Corpus Christi 2005) ...................................... 8
vi
STATUTES AND OTHER CONSTITUTIONAL PROVISIONS:
TEX. HEALTH & SAFETY CODE § 481.134 ......................................................... 8
TEX. PEN. CODE § 12.34 .................................................................................... 8
TEX. R. APP. P. 33.1 .......................................................................................... 7
U.S. CONST. AMEND. VIII ................................................................................. 7
U.S. CONST. AMEND. XIV ................................................................................. 7
vii
No. 12-14-00333-CR
IN THE TWELFTH COURT OF APPEALS
TYLER, TEXAS
MARY LOUISE HENRY
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the 7th District Court of Smith County, Texas
Trial Cause No. 007-1056-13
TO THE HONORABLE JUSTICES OF THE COURT:
Comes Now, Austin Reeve Jackson, attorney for Mary Henry, and files this
brief pursuant to the TEXAS RULES OF APPELLATE PROCEDURE, and would show
the Court as follows:
STATEMENT OF THE CASE
Mary Henry seeks to appeal her conviction and sentence for the offense of
Possession of Marijuana in a Drug Free Zone. (I CR 64). Ms. Henry was indicted
for this offense in the Seventh District Court of Smith County and, after entering a
plea of “guilty” to the offense, was initially placed on community supervision. (I
CR 1, 36). In October of last year that community supervision was revoked and
Ms. Henry was sentenced to serve a term of five years’ confinement. (I CR 64).
Sentence was pronounced on 13 October 2014 and notice of appeal then timely
filed. (I CR 64, 69).
ISSUE PRESENTED
THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN
REVOKING APPELLANT’S COMMUNITY SUPERVISION.
STATEMENT OF FACTS
In August of 2013, Appellant, Ms. Mary Henry, was indicted for the felony
offense of Possession of Marijuana in a Drug Free Zone. (I CR 1). An agreement
was reached in response to that charge that in return for her plea of “guilty” Ms.
Henry would be placed on five years’ deferred adjudication community supervi-
sion. (I CR 36). That term of community supervision began in November of 2013.
(Id.).
Unfortunately, in September of 2014, Ms. Henry was charged with violating
the terms and conditions of her probation and faced revocation. (I CR 43). To the
2
allegations made against her Ms. Henry entered pleas of “true.” (I CR 54). After
accepting her plea, the trial court revoked the previously imposed term of commu-
nity supervision and sentenced Ms. Henry to serve a period of five years’ confine-
ment. (I CR 64). Sentence was pronounced on 13 October 2014 and notice of ap-
peal then timely filed. (I CR 64, 69).
PROFESSIONAL EVALUATION OF THE RECORD
In accordance with the requirements of Anders v. California, 386 U.S. 738,
744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967), counsel has reviewed the record
and determined that, in his professional opinion, the record contains no reversible
error or jurisdictional defects. Under circumstances where there appears to be no
arguable grounds for reversal on appeal, counsel is required to present a profes-
sional evaluation of the record supporting this assertion. See Mays v. State, 904
S.W.2d 290, 922-23 (Tex.App.—Fort Worth 1995, no pet.).
SUMMARY OF THE ARGUMENT
Pursuant to the responsibilities and requirements of the governing code of
professional conduct, a thorough review of the record has been made. Counsel’s
research has revealed no arguable, non-frivolous grounds that could be advanced in
support of a claim that there exists reversible error in the trial, judgment, or sen-
tence of Appellant. A review and analysis of any potential issues is herein present-
ed for the Court.
3
ARGUMENT
Standard of Review
Where a trial court revokes a previously imposed term of community super-
vision the decision to do so is reviewed under an abuse of discretion standard.
Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006); Cardona v. State,
665 S.W.2d 492 (Tex.Crim.App. 1984). A trial court abuses its discretion if it acts
without reference to guiding principles. Lyles v. State, 850 S.W.2d 497, 502
(Tex.Crim.App. 1993). This review considers the record in the light most favora-
ble to the trial court’s decision. Duke v. State, 2 S.W.3d 512, 515 (Tex.App.—San
Antonio 1999, no pet.).
Proof of even a single violation is sufficient to support a revocation. Can-
seco v. State, 199 S.W.3d 437, 439 (Tex.App.—Houston [1st Dist.] 2006, pet.
ref’d). Therefore, in order to prevail an appellant must show that taking the evi-
dence in the light most favorable to the court’s decision there is insufficient evi-
dence to support each and every finding of the court. Lewis v. State, 195 S.W.3d
205, 209 (Tex.App.—San Antonio 2006, no pet.); Joseph v. State, 3 S.W.3d 627,
640 (Tex.App.—Houston [14th Dist.] 1999, no pet.). Additionally, a plea of true,
standing alone, is sufficient to support a trial court’s revocation of community su-
pervision. See Hays v. State, 933 S.W.2d 659, 661 (Tex.App.—San Antonio 1996,
4
no pet.) (holding that a plea of “true” to any violation can by itself support a revo-
cation).
THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN
REVOKING APPELLANT’S COMMUNITY SUPERVISION.
A. There Was Legally Sufficient Evidence to Support the Revocation.
By way of a written motion to proceed to final adjudication, Ms. Henry was
alleged to have violated the terms of his community supervision. (I CR 44-46).
The application included the following allegations:
Application Paragraph Allegation
I Identity of Defendant
II DWI
III Failure to ID
IV Possession of Alcohol
V Consumption of Alcohol
VI Failure to Complete Drug Class
VII Driving Without a License
(Id.). To all paragraphs pleas of “true” were entered. (I CR 54). Thus, if the pleas
of “true” were entered freely, knowingly, and voluntarily, the trial court had suffi-
cient evidence to revoke Ms. Henry’s community supervision. Hays, 933 S.W.2d
at 661.
1. The Plea
Before accepting her plea, the trial court advised Ms. Henry as to the conse-
quences of entering her plea, including the potential range of punishment, and also
advised her of his right to remain silent and her right to have a hearing on the alle-
5
gations at issue. (V RR 7-13). After having been so advised, Ms. Henry persisted
in her desire to enter pleas of “true” and gave no indication that she was doing so
involuntarily. (Id.); see Sims v. State, 326 S.W.3d 707, 713 (Tex.App.—Texarkana
2010, pet. struck) (citing Mendez v. State, 138 S.W.3d 334, 350 (Tex.Crim.App.
2004)) (holding that challenges to the voluntariness of a plea must be raised before
the trial court in order to preserve the error for appeal); see also TEX. R. APP. PROC.
33.1(a)(1). Finally, could any error be advanced regarding the trial court’s admon-
ishments, such error would be non-constitutional error subject to a harm analysis
and, given the record before the Court, Ms. Henry could not meet that burden in
this case. See Aguirre-Mata v. State, 125 S.W.3d 473, 474-76 (Tex.Crim.App.
2003).
2. Sufficiency of the Evidence
The State must prove allegations in a revocation setting by a preponderance
of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). Evi-
dence, therefore, is sufficient if an analysis of its comparative weight tends to sup-
port the trial court’s conclusion that at least one condition of probation was violat-
ed. See Rickels, 202 S.W.3d at 764 (holding that evidence is sufficient to support a
revocation where the greater weight of the credible evidence before the court sup-
ports a reasonable belief that a condition of probation has been violated). Moreo-
ver, a plea of “true,” standing alone, is sufficient to support a trial court’s revoca-
6
tion of community supervision. See Hays v. State, 933 S.W.2d 659, 661
(Tex.App.—San Antonio 1996, no pet.) (holding that a plea of “true” to any viola-
tion can by itself support a revocation). Thus, where the Court finds that a volun-
tary plea of true was entered, as was the case here, the evidence is legally sufficient
to support the revocation. (V RR 14); Moore v. State, 605 S.W.2d 924, 926
(Tex.Crim.App. 1980); Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. 1979);
Brooks v. State, 995 S.W.2d 762, 763 (Tex.App.—San Antonio 1999, no pet.).1
B. Appellant’s Sentence Was Within the Statutory Range of Punishment.
The Eighth Amendment prohibits the imposition of “cruel and unusual pun-
ishment.” U.S. CONST. AMEND. VIII. The Eighth Amendment is applicable to the
states through the Fourteenth Amendment. U.S. CONST. AMEND. XIV; Robinson v.
California, 370 U.S. 660, 667, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962).
Here, neither Ms. Henry nor her trial counsel raised the issue of cruel or ex-
cessive punishment at the time sentence was imposed and, therefore, this issue has
likely been waived on appeal. See TEX. R. APP. PROC. 33.1(a)(1)(A); Rhoades v.
State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Noland v. State, 264 S.W.3d
144, 151-52 (Tex.App.—Houston [1st Dist.] 2007, pet. ref’d); Castaneda v. State,
135 S.W.3d 719, 723 (Tex.App.—Dallas 2003, no pet.); but see Solem v. Helm,
1
The record also contains a written stipulation of evidence, signed by Ms. Henry, offered and
accepted by the court at trial, and admitting to the truth of the allegations made against her. (I
CR 54). Such a written stipulation is, likewise, sufficient to support the trial court’s decision.
See Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979) (a plea of true and written stipu-
lation is sufficient to support revocation).
7
463 U.S. 277, 288, 103 S. Ct. 3001, 3008-09, 77 L. Ed. 2d 637 (1983) (noting excep-
tion to this general rule if sentence assessed is grossly disproportionate to the
crime). Additionally, the sentence imposed of five years’ confinement was within
the statutory punishment range for the offense and is, consequently, virtually pre-
sumed not to be constitutionally cruel and unusual. Jordan v. State, 495 S.W.2d
949, 952 (Tex.Crim.App. 1973); Trevino v. State, 174 S.W.3d 925, 928
(Tex.App.—Corpus Christi 2005, pet. ref’d); see also TEX. HEALTH & SAFETY
CODE ANN. § 481.134 (as alleged, offense was a third degree felony); TEX. PEN
CODE § 12.34 (punishment range for a third degree felony). Further, that Ms. Hen-
ry was sentenced below the maximum possible ten-year sentence is also a factor
indicating that the sentence was not excessive or cruel. Bolden v. State, 73 S.W.3d
428, 434 (Tex.App.—Houston [1st Dist.] 2002, pet. ref’d).
Finally, due process requires that the trial court consider the full range of
punishment for an offense and weigh both mitigating and incriminating evidence in
the assessment of sentence. Ex parte Brown, 158 S.W.3d 449, 454
(Tex.Crim.App. 2005). In the absence of a clear showing to the contrary, on ap-
peal the Court will presume that the trial court did not act arbitrarily and consid-
ered all of the evidence before it. Roman v. State, 145 S.W.3d 316, 319
(Tex.App.—Houston [14th Dist.] 2004, pet. ref’d). Given the record before the
Court, this presumption cannot be overcome on direct appeal.
8
C. Appellant Received Effective Assistance of Counsel.
Effective assistance of counsel is to be evaluated under the standard enunci-
ated in Strickland v. Washington, 466 U.S. 668, 105 S. Ct. 1965, 85 L. Ed. 2d 344
(1984); see also, Hernandez v. State, 988 S.W.2d 70 (Tex.Crim.App. 1999). To
prevail in a claim of ineffective assistance of counsel, a defendant must show (1)
that her trial counsel’s performance fell below an objective standard of reasonable-
ness, and (2) that a reasonable probability exists that, but for trial counsel’s alleged
errors, the result would have been different. Strickland, 466 U.S. at 687-88. On
appeal, the defendant carries the burden of proving ineffective assistance by a pre-
ponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App.
1985). Finally, trial counsel’s performance is not to be judged with the benefit of
hindsight. Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App. 1992).
With this standard in mind, a comprehensive review of the record has been
made of the proceedings including pretrial matters, Ms. Henry’s original plea, the
revocation hearing, and the arguments of counsel. Here, that review fails to shows,
given the totality of the representation provided by trial counsel, any basis from
which to argue that ineffective assistance was rendered. See, e.g., Garcia v. State,
57 S.W.3d 436, 440 (Tex.Crim.App. 2001); Thompson v. State, 9 S.W.3d 808, 812
(Tex.Crim.App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.
1994).
9
CONCLUSION AND PRAYER
As counsel was unable to raise any arguable issues for appeal, he is required
to move for leave to withdraw. See Stafford v. State, 813 S.W.2d 503
(Tex.Crim.App. 1991).
WHEREFORE, PREMISES CONSIDERED, counsel prays that the Court,
after affording Ms. Henry the opportunity to review the record and file a pro se
brief should she desire to do so, accept this brief and grant the attached Motion to
Withdraw pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct.
1396 (1967).
Respectfully submitted,
/s/ Austin Reeve Jackson
Texas Bar No. 24046139
112 East Line, Suite 310
Tyler, TX 75702
Telephone: (903) 595-6070
Facsimile: (866) 387-0152
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this brief was delivered to counsel for
the State by electronic service on this the 28th day of January 2014.
/s/ Austin Reeve Jackson
10
CERTIFICATE OF COUNSEL
The attorney’s role as an advocate requires that I support my client’s appeal
to the best of my ability. Anders v. California, 386 U.S. 738. I, Austin Reeve
Jackson, counsel of record in this appeal, do hereby state that I have diligently
searched the entire record in this cause. I have researched the law applicable to the
facts and issues contained therein, and it is my professional opinion that the record
reflects no reversible error. In conformity with the applicable law pertaining to an
appeal of this nature, I have set forth any potential grounds of error and have
briefed them to the extent possible. I have further caused a copy of this brief to be
served by certified mail on Appellant, accompanied by a letter informing Appellant
of the right to examine the record for the purpose of filing a pro se brief.
/s/ Austin Reeve Jackson
CERTIFICATE OF COMPLIANCE
I certify that this document complies with the requirements of Rule 9.4 and
consists of 2,328 words.
/s/ Austin Reeve Jackson
11