            ORAL ARGUMENT NOT REQUESTED

                   NO. 12-15-00111-CR            FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
               IN THE COURT OF APPEALS    8/24/2015 6:11:12 PM
                 12TH JUDICIAL DISTRICT        CATHY S. LUSK
                                                   Clerk
                       TYLER, TEXAS




                    CHARLIE MOTES,
                      APPELLANT

                             VS.

                  THE STATE OF TEXAS,
                       APPELLEE




        ON APPEAL IN CAUSE NUMBER 114-1777-13
       FROM THE 114TH JUDICIAL DISTRICT COURT
              OF SMITH COUNTY, TEXAS
    HONORABLE CHRISTI KENNEDY, JUDGE PRESIDING


                  APPELLANT’S BRIEF

JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437
ATTORNEY FOR APPELLANT
             IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
    Charlie Motes

APPELLANT’S TRIAL COUNSEL:
    LaJuanda Lacy
    2419 Cecil
    Tyler, Texas 75702
    903-592-8335

APPELLANT’S APPELLATE COUNSEL
    James Huggler
    100 E. Ferguson, Suite 805
    Tyler, Texas 75702
    903-593-2400
    903-593-3830 (fax)

APPELLEE
    The State of Texas

APPELLEE’S TRIAL COUNSEL
    Chris Gatewood
    Jacob Putman
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720 903-590-1719 (fax)

APPELLEE’S APPELLATE COUNSEL
    Michael West
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720 903-590-1719 (fax)



                                 ii
                                  TABLE OF CONTENTS
                                                                                              PAGE

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PROFESSIONAL EVALUATION OF THE RECORD. . . . . . . . . . . . . . . 6

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 11




                                                  iii
                              TABLE OF AUTHORITIES
CONST.
TEX. CONST. art. V, § 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6


STATUTES
TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2013). . . . . . . . . . . . . . . . 6
TEX. CODE CRIM. PROC. ANN. art. 26.14(a)(4) (West 2013).. . . . . . . . . . . 7
TEX. CODE CRIM. PROC. ANN. art. 39.14 (West 2013). . . . . . . . . . . . . . . . 6
TEX. PENAL CODE ANN. § 12.35(c)(1) (West 2013). . . . . . . . . . . . . . 2, 3, 7
TEX. PENAL CODE ANN. § 38.04(a) (West 2013). . . . . . . . . . . . . . . . . . 1, 3
TEX. PENAL CODE ANN. § 38.04(b)(1)(B) (West 2013). . . . . . . . . . . . . . 2, 3


CASES
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
   18 L. Ed. 2d 493 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Bray v. State, 179 S.W.3d 725 (Tex. App.– Fort Worth 2005, no pet.). . 8
Ex parte Dunn, 976 S.W.2d 208 (Tex. Crim. App. 1998). . . . . . . . . . . . . 8
Duron v. State, 956 S.W.2d 547 (Tex. Crim. App. 1997). . . . . . . . . . . . . 6
Mallett v. State, 65 S.W.2d 59, 64 (Tex. Crim. App. 2001). . . . . . . . . . . 6
Mays v. State, 904 S.W.2d 920 (Tex. App. – Fort Worth 1995, no pet.). 6
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).. . . . . . . . . . . 9
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
   80 L. Ed. 2d 674 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Ex parte Thiles, 333 S.W.3d 148 (Tex. Crim. App. 2011). . . . . . . . . . . . 8
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).. . . . . . . . . . . 9




                                                 iv
RULES
Tex. R. App. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5




                                                   v
                          NO. 12-15-00111-CR


CHARLIE MOTES,                      ,§   IN THE COURT OF APPEALS
APPELLANT                           §
                                    §
VS.                                 §    12TH JUDICIAL DISTRICT
                                    §
THE STATE OF TEXAS,                 §
APPELLEE                            §    TYLER, TEXAS



                         APPELLANT’S BRIEF


TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:


      Comes now Charlie Motes (“Appellant”), by and through his attorney

of record, James Huggler, and pursuant to the provisions of TEX. R. APP.

PROC. 38, et seq., respectfully submits this brief on appeal.




                     STATEMENT OF THE CASE

      Appellant was indicted in Smith County cause number 114-1777-13

and charged with the felony offense of evading arrest. TEX. PENAL CODE


                                    1
ANN. §38.04(a) and (b)(1)(B) (West 2013). I CR 41. The punishment range

was enhanced to a third degree range with the inclusion of a deadly

weapon allegation. TEX. PENAL CODE. ANN. §12.35(c)(1) (West 2013).

Appellant elected to plead guilty to the indictment with an agreement for

ten years deferred adjudication. I CR 47; I RR 16.2 Following evidence

and argument, the court followed the agreement. I CR 90-91; IV RR 7. At

a later time, Mr. Motes entered pleas of true to several allegations, the

court found them true, found him guilty and sentenced him to eight years

confinement. I CR 142, V RR 11-14, Timely notice of appeal was filed on

April 30, 2015. I CR 126. This brief is timely filed on or before August 24,

2015.




                               ISSUES PRESENTED

                                           None




1
 References to the Clerk’s Record are made using “CR” with a roman numeral preceding “CR”
designating the correct volume and an arabic numeral following specifying the correct page.
2
 References to the Reporter’s Record are made using “RR” with a roman numeral preceding
designating the volume and an arabic numeral following designating the correct page.
                                               2
                     STATEMENT OF THE FACTS

      Appellant was indicted in Smith County cause number 114-1777-13

and charged with the felony offense of evading arrest. TEX. PENAL CODE

ANN. §38.04(a) and (b)(1)(B) (West 2013); I CR 1. The punishment range

for the offense was enhanced to a third degree felony range by the

inclusion of use of a deadly weapon allegation. TEX. PENAL CODE ANN.

§12.35(c)(1); I CR 1. Appellant entered a plea of guilty to the charge in the

indictment with an agreed recommendation as to punishment. I RR 16;

I CR 47. Appellant waived his right to a jury trial, his right to confront

and cross-examine witnesses, the notification that if Appellant was not a

citizen, a plea of guilty may result in deportation, the effect of the plea on

his rights, the consequences of the plea and the range of punishment for

a state jail felony enhanced to a second degree felony. I CR 48-54. Mr.

Motes entered a plea of guilty to the offense and plea of true to the deadly

weapon allegation. I RR 16-17. A stipulation of evidence was also

admitted at this hearing that detailed the Appellant's conduct. I CR 52-

53.

      A sentencing hearing was held on May 29, 2014. Following the
                                      3
evidence and argument of counsel the court withheld a finding of guilt and

placed Mr. Motes on ten years deferred adjudication supervision. IV RR

7-9; I CR 90-91, 92-95.

     The State filed an application to proceed to final adjudication. I CR

127-133. Three paragraphs were abandoned propr to the hearing. I CR

130-131; V RR 4. Mr. Motes entered pleas of true to each of the remaining

paragraphs including: identity (¶ 1; V RR 10-11); that he possessed a

controlled substance (¶2 V RR 11); that he failed to report to his probation

officer from and including August 2014 to March 2015 (¶3; V RR 11-12);

that he possessed a controlled substance (¶ 6; V RR 12); that he failed to

support his dependents (¶ 8; V RR 12-13); that he failed to report a contact

by law enforcement (¶9; V RR 13); that he failed to pay supervision fees

(¶10; V RR 14); that he failed to pay court costs including appointed

counsel fees (¶ 11; V RR 14) and that he failed to pay for the preparation

of the presentence investigation report (¶ 12; V RR 14).

     Mr. Motes testified during this proceeding. Following the evidence

and argument of counsel, the trial court found Mr. Motes guilty of the

offense, V RR 49. The court moved to a punishment phase, no additional
                                     4
evidence was offered. Following argument, the court assessed an eight

year sentence without a fine. V RR 51; I CR 136-138. This appeal follows.




                     SUMMARY OF ARGUMENT

     Counsel has reviewed the record and has concluded that, in his

professional opinion, the record contains no reversible error or

jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.

1396, 1400, 18 L. Ed. 2d 493 (1967). Thus, counsel must move for leave

to withdraw from the case.




                              ARGUMENT

     There is no argument to present to this Court; however, Counsel has

included this section to strictly comply with Texas Rule of Appellate

Procedure 38. Counsel has reviewed the record and has concluded that,

in his professional opinion, the record contains no reversible error or

jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.

1396, 1400, 18 L. Ed. 2d 493 (1967). Therefore, counsel is including the

following explanatory section.
                                    5
            PROFESSIONAL EVALUATION OF THE RECORD

       When counsel contends that there are no arguable grounds for

reversal on appeal, counsel is required to present a professional

evaluation of the record supporting this assertion. See Mays v. State, 904

S.W.2d 920, 922-23 (Tex. App. – Fort Worth 1995, no pet.)

       The indictment conferred jurisdiction on the trial court and provided

Appellant with sufficient notice of the charged offense. See TEX. CONST.

art. V, § 12; Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App.

1997). The trial court has jurisdiction over the case.                       See TEX. CODE

CRIM. PROC. ANN. Art. 4.05 (West 2013) (stating that district courts shall

have original jurisdiction in felony criminal cases).                       Mr. Cotes was

admonished as to his rights and the range of punishment. I RR 8, 9-10.

       The conviction was supported by Appellant’s signed confession, and

the written plea admonishments indicate that Appellant's plea was made

freely and voluntarily3. I CR 47-54. The court found that the plea was

made freely, intelligently, knowingly and intelligently. I RR 17. The

Morton Act was complied with in this case. I RR 12-13; I CR 57. TEX.

3
  When the record indicates that a defendant was properly admonished after pleading guilty, it is
sufficient evidence to establish a prima facie case that the plea was both knowing and voluntary.
Mallett v. State, 65 S.W.3d 59, 64 (Tex. Crim. App. 2001).
                                                  6
CODE CRIM. PROC. ANN. art. 39.14 (West 2013).

     During the change of plea hearing, the trial court confirmed that

Appellant had reviewed the written plea admonishments with his

attorney and that Appellant was making the plea of his own free will. I

RR 15, 17. Mr. Cotes was able to assist his attorney with the facts of the

case, possible defenses and assist for preparation for trial. I RR 8, 14.

The court questioned Mr. Cotes as to consumption of alcohol, drugs or

other intoxicating substance. I RR 7. He was properly admonished as to

possible immigration consequences. I RR 8-9; Tex. CODE CRIM. PROC.

ANN. art. 26.14(a)(4) (West 2013). Appellant's attorney confirmed that she

was satisfied that Appellant was competent and the State offered no

evidence regarding competency. I RR 15.

     Counsel has found no error occurring in the final hearing and

assessment of punishment. Mr. Cotes entered a plea of true to each

remaining allegation in the application to proceed. I CR 142. At the

sentencing hearing, the trial court sentenced Appellant to eight years

confinement. V RR 51. The sentence assessed by the trial court is within

the punishment range provided for by law. See TEX. PENAL CODE ANN. §

12.35(c)(1) (West 2013)(state jail enhanced to a third degree range).
                                    7
     Moreover, the judgment does not contain any improper assessment

of fees. See Bray v. State, 179 S.W.3d 725 (Tex. App.--Fort Worth 2005, no

pet.). Counsel is concerned that the application to proceed prepared by

the probation department and submitted by the District Attorney’s Office

includes an allegation that Mr. Cotes was responsible for paying court

costs, including court appointed attorney’s fees.     I CR 132 at ¶11.

However, there were no attorney’s fees assessed in either of the

judgments. I CR 90-91, 136-138 and 151.

     Counsel is also concerned that Mr. Cotes was mistakenly released

from custody following the sentence being imposed.        II CR 1 at ¶2.

Despite his being released from custody by the Henderson County

Sheriff’s Office, the judgment in this case appears correct at the time it

was issued, and any determination as to proper time credited would

properly be the subject of a post-conviction writ. Ex parte Thiles, 333

S.W.3d 148 (Tex. Crim. App. 2011); Ex parte Dunn, 976 S.W.2d 208 (Tex.

Crim. App. 1998). Thus, there is no reversible error during the

punishment phase.

     Finally, the undersigned has reviewed the record and found no

arguable ground for ineffective assistance of counsel. Counsel is strongly
                                    8
presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment. Strickland

v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674

(1984).

     In the present case, trial counsel offered pertinent evidence at the

revocation hearing, and argued effectively. Considering the totality of the

representation of Appellant's trial counsel, the record contains nothing

that would indicate that counsel's performance was deficient. See id. at

687, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.

App. 1999).




                             CONCLUSION

     Since counsel is 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).




                         PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Counsel respectfully
                                     9
prays that this Court permit him to withdraw after this Court’s own

examination of the record in this cause and to afford Appellant his right

to file any pro se brief that he may wish to file.




Respectfully submitted,


/s/ James Huggler
James W. Huggler, Jr.
State Bar Number 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 fax
ATTORNEY FOR APPELLANT




                                     10
                      CERTIFICATE OF SERVICE

A true and correct copy of the foregoing Brief of the Appellant has been

forwarded to counsel for the State by electronic filing on this the 20th day

of July, 2015.

Attorney for the State:
Mr. Mike West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702




                   CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 2,233 words as counted by
Corel WordPerfect version x6.


/s/ James Huggler
James W. Huggler, Jr.




                                     11
