                              3WS
                                                                     ORIGINAL
                                IN    THE


                   COURT   OF   CRIMINAL      APPEALS


                                OF   TEXAS




                       CODY   LAMONT       BLAYLOCK                  or-
                                              Petitioner/                  wmm appeal
                                     VS.
                                                                           JUN 10 2015
                           STATE     OF    TEXAS
                                              Respondent/




         APPELLANT'S   PETITION      FOR    DISCRETIONARY     REVIEW



                                                                            FILED IN
                                                               COURT OF CRIMINAL APP^
                   In Appeal No.12-13-00363-CR                             JUN 10 2G;5
                    From The Court Of Appeals
               For The Twelfth Judicial            District
                              Tyler/Texas                             Abel Acosta, Clerk



                                                        CODY    LAMONT       BLAYLOCK
                                                        TDCJ-CID#1898529
                                                        2661    FM    2054
                                                        TENN    COLONY,TX 75884




ORAL ARGUMENT REQUESTED
                            TABLE        OF   CONTENTS


                                                                                  Page

INDEX OF AUTHORITY                                                                 i

STATEMENT REGARDING ORAL ARGUMENT                                                  1

STATEMENT OF THE CASE                                                              1

STATEMENT OF PROCEDURAL HISTORY                                                    2

GROUNDS FOR REVIEW                                                                           2
           EXCESSIVE   SENTENCING.WHETHER THE            COURT OF       APPEALS
           TWELFTH   DISTRICT      OF    TEXAS   ERRED   IN   HOLDING
           SENTENCE WAS NOT EXCESSIVE?                                                       2

           INEFFECTIVE ASSISTANCE OF COUNSEL:                 PETITIONER'S
           PLEA OF GUILT     WAS    INVOLUNTARY GIVEN          BASED ON
           COUNSEL'S ILL ADVICE.                                                         2

           WHETHER   THE   COURT    OF    APPEALS   TWELFTH     DISTRICT    OF
           TEXAS   ERRED   IN FINDING THAT PETITIONER'S             PLEA WAS
           VOLUNTARILY GIVEN?                                                            2

ARGUMENT                                                                                     2

PRAYER FOR RELIEF                                                                            6

APPENDIX




                                          -1-
                        INDEX   OF   AUTHORITY

Cases                                                 Page

Apprendi v. New Jersey,530U.S. 466(2000)               3

Blakely v. Washington, 542U.S. 296(2004)               3
Hill v. Lockhart,474 U.S.   52(1985)                   4

Hernandez v. State,726 S.W.2d 53(Tex,Crim.App.1986)    2

Strickland v. Washington,466 U.J3. 668(1984)          2,5
Virgil v. Dretke,446 F.3d 598(5th Cir.2006)            5
Wiggins v. Smith,539 U.S. 510(2003)                   4,5


                        STATUTES       &   RULES


TEX.R.A.P.   RULE    68.4(a)                              i

TEX.R.A.P.   RULE    68.4(b)                          ii

TEX.R.A.P.   RULE[S] 68.4(c), (d)                     1

TEX.R.A.P.   RULE    68.4(e),   (f),(g)               2

TEX.PEN.CODE ANN. Art. § 30.05(a)(1)                  4




                                 -ll-
                                     IN   THE
                       COURT   OF   CRIMINAL       APPEALS
                                    OF    TEXAS




                          CODY   LAMONT         BLAYLOCK

                                         VS.

                               STATE      OF    TEXAS




            APPELLANT'S   PETITION       FOR DISCRETIONARY REVIEW




TO THE   COURT OF CRIMINAL     APPEALS     OF    TEXAS:

   Petitioner respectfully submits this Petition for Discretionary

Review    and   moves that this Honorable Court grant review of this

cause and offers the following in support thereof:

         STATEMENT REGARDING ORAL ARGUMENT                T.R.A.P.   68.4(e)

 Petitioner requests oral argument to better assist the Court

in reaching a decision.

                STATEMENT OF THE CASE            T.R.A.P.    68.4(d)

  Petitioner     was   convicted     on         November 7th,2013 of the felony

offense of engaging in organized crime. Petitioner was originally

placed on probation in cause No.114-1070-10 on. December 13,2010.
After committing a criminal trespass and failing to pay fees the
State moved for a "Final adjudication". This case was adjudicated

in the 114th judicial district Court of Smith County,Texas.




                                          •1-
                     STATEMENT OF PROCEDURAL HISTORY                T.R.A.P.   68.4(e)

This    case   originated      in     the     114th Judicial District Court of

Smith County/Texas. The Honorable Christi Kennedy presided. After

initially being placed on probation the State moved to Final

adjudication based on a violation on November 7th,                     2013. This was

cause No.114-1070-10. He was given an opportunity to appeal.

He timely appealed. Appellate counsel was appointed to represent

him in 12-13-00363-CR.        Counsel moved to withdraw,            and on April

30,2014 the Clerk ordered that the motion be passed for considera

-tion with the merits of the appeal. Petitioner filed his pro se

Brief in the Twelfth Court of Appeals on July 03,2014 according

to the file stamp date. This Court has granted an extension of

time to file a Petition for discretionary review until June 02,

2015.    This petition for discretionary review is timely filed.

                   GROUNDS FOR REVIEW             T.R.A.P.   68.4(f)
EXCESSIVE SENTENCING.        WHETHER THE COURT OF APPEALS TWELFTH DISTRICT
OF TEXAS   ERRED    IN   HOLDING    SENTENCE WAS       NOT   EXCESSIVE?


#2
INEFFECTIVE ASSISTANCE OF COUNSEL: PETITIONER'S PLEA OF GUILT
WAS INVOLUNTARY GIVEN BASED ON COUNSEL'S ILL ADVICE.

WHETHER THE COURT OF APPEALS TWELFTH DISTRICT.OF TEXAS ERRED                     IN
FINDING THAT PETITIONER'S           PLEA WAS       VOLUNTARILY GIVEN?


                          ARGUMENT     T.R.A.P.        68.4(g)

 Ineffective assistance of counsel is governed by the well-known

standard set forth in Strickland v. Washington,466 U.S.668,104

S.Ct. 2052, 80 L.Ed.2d 674(1984); Hernandez v. State,726 S.W.2d

53 Tex.Crim.App.1986) Petitioner must show that his counsel's

performance was deficient. Second, he must show that the deficient
performance prejudiced him at trial. That a reasonable probability

Jbpjt- .fpr/r-cpunsel' s    conduct     the        outcome of the case would have
                                            -2-
beenn different.          A reasonable probability is a probability sufficient

to undermine confidence in the outcome of the proceeding.                   Id.,

     In        the case at bar,petitioner has stated that he was sentenced

to        an     excessive   amount   of   time given his criminal background

and the relative minor infraction he purportedly committed.                   While,

the trial Judge has wide latitude in revocation case[s],an abuse

of discretion may result when the Judge sentences a defendant to

an excessive amount of time for a relatively minor crime.

Blakely v. Washington,542 U.S.             296(2004). In this case,       petitioner

was facing the full range of punishment for violating his probation

for engaging in organized crime.                 So in truth,    the full range of

punishment was available to the Court.                However,    it must be factored

that petitioner had no real criminal background per se,                   except what

he was initially placed on probation for.                He had a job and support

within the community. While he was slow paying his fees,                   this was

not,       and should not have been determinative in revoking his

probation. The purported criminal trespass should have been looked

into more thoroughly by counsel.               Even given the revocation on the

basis          of   a   criminal   trespass,     a twenty (20) year sentence was

not warranted in this case.            In essence,     petitioner was sentenced

to twenty(20) years for criminal trespassing which is excessive.

Apprendi v. New Jersey,530 U.S. 466(2000).(holding sentence imposed

in excess of maximum sentence based on the findings made by Judge)

While the Judge made the findings which led to the revocation of

petitioner's probation,she could have exercised more reasonableness

given such a minor infraction, which he may not even be guilty of.




                                           -3-
While    petitioner    had   a   very    active juvenile history, this is

inadmissible and usually sealed for purposes of sentencing.

The     Judge should have reinstated probation given that petitioner

faced a misdemeanor criminal trespass. This offense(criminal trespass)
was not admissible for enhancement in any other criminal proceeding.

It defies reason and sound judgment that it would cause petitioner

to be sentenced to twenty (20) years in prison, basically for a

misdemeanor. Again a violation (criminal trespass) of deferred

adjudicated probation subjects a defendant to the full range of
punishment for the first degree felony offense(engaging Org/crime)
probated (5 to 99 years,Life). Clearly, the Judge in this case has
sentenced petitioner excessively. The punishment does not fit the
crime. The Court should -reform the judgment and tailor the sentence

to fit the crime. While this seems unlikely, a remand is necessary

for resentencing.

WHETHER THE TWELFTH COURT OF APPEALS ERRED IN FINDING THAT
PETITIONER'S PLEA OF GUILT WAS VOLUNTARILY GIVEN?




  Petitioner      herein asserts that his guilty plea was involuntary

based on the ill advice of counsel. Hill v. Lockhart,474 U.S. 52(1985)

He asserts that had counsel properly investigated issues relative

to and surrounding criminal trespass counsel would have filed an
appeal to challenge this faulty conviction. Wiggins v. Smith,539
U.S. 510 (2003). Petitioner in his haste to be free again,coupled
with his       ignorance of the law represented himself when he should
not     have   and pled.guilty to trespass when ,in fact, no trespass
had occurred. Access to public road to where he dropped his relative
off in front of campus housing does not constitute the offense of
criminal trespass. See Tex.Pen.Code Ann.§ 30.05(a)(1). Had counsel
                                        -4-
took time to investigate the law and facts surrounding this case

he would have discovered this fact.              Absent    a    criminal trespass

conviction      the   State is hard pressed to violate probation given

that no violation ever occurred.              Counsel     advocating effectively

would have brought this to the Court's attention along with State's

counsel and reinstated probation. Counsel had a duty to discover

what petitioner was being violated for, and to determine if in fact

the law was broken.        Strickland   ,Id.    Counsel    instead advised his

client to plead guilty and stipulate to all facts surrounding the

probation violation. No reasonable counsel would fail to investigate

the facts of a case before determining that the law was broken.

Strickland,id. Counsel's only responsibility is reasonableness under

prevailing professional norms. Here, the erroneous advise of counsel

caused petitioner to receive a (20) twenty year sentence. Petitioner

has   alleged     facts     which, if true, would entitle him to relief.

 Pursuant to Wiggins v. Smith, 539 U.S. 510(2003) counsel had a duty

to    investigate and determine a reasonable course for his client.

Blindly   agreeing        to stipulate to all evidence and facts without

an investigation is simply not sound strategy and is so ill chosen

that it permeated this entire proceeding with obvious unfairness.

Virgil v. Dretke,446 F.3d 598(5th Cir.2006)                    Clearly,   counsel's

conduct    in    failing     to   investigate      that     no criminal trespass

occurred and making an informed decision with regard to advising

his client to plead, was deficient performance. Strickland,Id.

This deficiencyprejudiced petitioner costing him a twenty (20)
sentence. Probation should have been reinstated. Accordingly,                   this

court should grant PDR and appoint counsel for briefing.


                                        -5-
                          PRAYER   FOR    RELIEF


WHEREFORE,PREMISES CONSIDERED,         petitioner respectfully prays that

this Honorable Court would appoint counsel for briefing regarding

his ineffective assistance claim and grant this Petition for

discretionary review.

                                   Respectfully submitted,


                                   Cody ^Lamont^ Blaylock#1898529
                                   Coffield Unit
                                   2661 FM 2054
                                   Tennessee Colony,Texas 75884




                        CERTIFICATE     OF   SERVICE


I, Cody L. Blaylock hereby certify that a true and correct copy

of his Petition for discretionary review was sent to the Clerk

of the Texas Court of Criminal Appeals postage prepaid by placing

same in the U.S.   mail to:   Clerk,    P.O.   Box 12308 Capitol Station

Austin,Texas 787J.1. Executed on 31* day of            f\Aat//
                                                          -M_     2015.

      ^gnat/ure




                                   -6-
                                   NO. 12-13-00363-CR


                          IN THE COURT OF APPEALS


              TWELFTH COURT OF APPEALS DISTRICT


                                       TYLER, TEXAS


CODY LAMONT BLAYLOCK,                               §       APPEAL FROM THE 114TH
APPELLANT


V.                                                  §       JUDICIAL DISTRICT COURT

THE STA TE OF TEXAS,
APPELLEE                                            §       SMITH COUNTY, TEXAS

                                   MEMORANDUM OPINION
                                            PER CURIAM

       Cody Lamont Blaylock appeals his conviction for engaging in organized criminal
activity. Appellant's counsel filed a brief in compliance with Anders v. California, 386 U.S.
738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim.
App. 1969). We affirm.


                                            Background

       Appellant was indicted for the first degree felony offense of engaging in organized
criminal activity by committing aggravated assault with a deadly weapon as a member of a
criminal street gang.' Appellant and the State entered a negotiated plea agreement for an agreed
punishment of deferred adjudication community supervision for ten years in exchange for
Appellant's "guilty" plea and pleas of "true" to the allegations that he used a deadly weapon and
that he was a member of a criminal street gang at the time of the offense.
       In accordance with the agreement, the trial court placed Appellant on deferred
adjudication community supervision for a ten year period in December 2010. The trial court also


        See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011), § 71.02(a)(1), (b) (West Supp. 2014).
considered two additional charges in determining whether to place Appellant on deferred
adjudication community supervision.2
       The State filed an application to proceed to final adjudication in May 2012. Appellant
pleaded "true" to most of the allegations. After a hearing, the trial court denied the application.
       In October 2013, the State filed another application to proceed to final adjudication. The
State twice amended its application. In the application, the State alleged that Appellant failed to
abide by the terms of his community supervision in that he (1) committed the offense of criminal
trespass, (2) failed to pay for urinalysis testing on numerous occasions, (3) failed to pay
supervision fees and court costs, and (4) failed to obtain a GED as ordered by the court. At the
subsequent hearing, Appellant pleaded "true" to each paragraph in the application. The trial
court adjudicated Appellant's guilt, found him guilty of the offense, and found that the
allegations that he used a deadly weapon and was a member of street gang were true. After a
hearing on punishment, the trial court sentenced Appellant to twenty years of imprisonment.
This appeal followed.


                          Analysis Pursuant To Anders v. California

        Appellant's counsel filed a brief in compliance vs'it\\ Anders v. California and Gainous v.
State. Appellant's counsel states that he has diligently reviewed the appellate record and is of
the opinion that the record reflects no reversible error and that there is no error upon which an
appeal can be predicated. He further relates that he is well acquainted with the facts in this case.
In compliance with Anders, Gainous, and High v. State, 573 S.W.2d .807 (Tex. Crim. App.
[Panel Op.] 1978), Appellant's brief presents a chronological summation of the procedural
history of the case and further states that Appellant's counsel is unable to raise any arguable
issues for appeal.
        Appellant filed a pro se brief in which he raised issues that his sentence was excessive
and that he received ineffective assistance of counsel when he was advised to plead "guilty" and
"true" to the State's application to proceed to final adjudication, rendering the pleas involuntary.
We have reviewed the record for reversible error and have found none. See Bledsoe v. State, 178
S.W.3d 824, 826-27 (Tex. Crim. App. 2005).



         : See TEX. PENAL CODE ANN. § 12.45(a) (West 2011).
                                                  Conclusion

        As required by Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant's
counsel has moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex.
Crim. App. 2008) (orig. proceeding). We are in agreement with Appellant's counsel that the
appeal is wholly frivolous. Accordingly, his motion for leave to withdraw is hereby granted, and
the trial court's judgment is affirmed. See TEX. R. APP. P. 43.2.
        As a result of our disposition of this case, Appellant's counsel has a duty to, within five
days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise
him of his right to file a petition for discretionary review. See TEX. R. APP. P. 48.4; In re
Schulman, 252 S.W.3d at 411 n.35. Should Appellant wish to seek review of this case by the
Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for
discretionary review on his behalf or he must file a petition for discretionary review pro se. Any
petition for discretionary review must be filed within thirty days from the date of this court's
judgment or the date the last timely motion for rehearing was overruled by this court. See TEX.
R. App. P. 68.2. Any petition for discretionary review must be filed with the Texas Court of
Criminal Appeals. See Tex. R. App. P. 68.3(a). Any petition for discretionary review should
comply with the requirements of Texas Rule of Appellate Procedure 68.4. See In re Schulman,
252S.W.3dat408n.22.

Opinion delivered March 4, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                              (DO NOT PUBLISH)
                                  COURT OF APPEALS


     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS


                                          JUDGMENT


                                           MARCH 4, 2015



                                         NO. 12-13-00363-CR



                                 CODY LAMONT BLAYLOCK,
                                                Appellant
                                                     V.
                                     THE STATE OF TEXAS,
                                                 Appellee


                                Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No-. 114-1070-10)
                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.

                    ^y per curiam opinion.
                    Panel consisted of Worthen, C.J., Hoyle, J., andNeeley, J.
