                                                                                  ACCEPTED
                                                                              12-15-00221-CR
                                                                 TWELFTH COURT OF APPEALS
                                                                               TYLER, TEXAS
                                                                         11/4/2015 3:49:17 PM
                                                                                    Pam Estes
                                                                                       CLERK

                     No. 12-15-00221-CR

                                                            FILED IN
                                                     12th COURT OF APPEALS
          IN THE TWELFTH COURT OF              APPEALS TYLER, TEXAS
                    TYLER, TEXAS                     11/4/2015 3:49:17 PM
                                                            PAM ESTES
                                                              Clerk

               ROGER WILDERN JACKSON

                                Appellant,

                               v.

                   THE STATE OF TEXAS

                                    Appellee



On Appeal from the Seventh District Court of Smith County, Texas
                 Trial Cause No. 007-0964-14




           ORAL ARGUMENT NOT REQUESTED


                           Austin Reeve Jackson
                           Texas Bar No. 24046139
                           JLawAppeals@gmail.com
                           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:
Clifton Roberson
1104 First Place
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
ISSUES PRESENTED ....................................................................................................2
STATEMENT OF FACTS ..............................................................................................2
PROFESSIONAL EVALUATION OF THE RECORD .................................................3
SUMMARY OF THE ARGUMENT ..............................................................................4
ARGUMENT ..................................................................................................................5
    I.      THE TRIAL COURT ACTED WITHIN ITS DISCRETION
            WHEN IT REVOKED APPELLANT'S COMMUNITY
            SUPERVISION................................................................................................5
    A. There Was Legally Sufficient Evidence to Support the Revocation ....................5
    B. Appellant's Sentence Was Within the Statutory Range of Punishment ................8
    C. Appellant Received Effective Assistance of Counsel...........................................9
CONCLUSION AND PRAYER ...................................................................................10
CERTIFICATE OF COUNSEL ....................................................................................11
CERTIFICATE OF SERVICE ......................................................................................12
CERTIFICATE OF COMPLIANCE ............................................................................12




                                                           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, 12

Boykin v. Alabama,
 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ................................... 6

Strickland v. Washington,
  466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1984) ................................. 9


TEXAS COURT OF CRIMINAL APPEALS:

Bowden v. State,
 628 S.W.2d 782 (Tex.Crim.App. 1982) ........................................................ 7

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) ........................................................ 7, 9

Flournoy v. State,
  589 S.W.2d 705 (Tex.Crim.App. 1979) ........................................................ 8

Gutierrez v. State,
 65 S.W.3d 362 (Tex.Crim.App. 2003) .......................................................... 7 n.3

Hernandez v. State,
 988 S.W.2d 70 (Tex.Crim.App. 1999) .......................................................... 9

Jackson v. State,
  973 S.W.2d 954 (Tex.Crim.App. 1998) ........................................................ 9

Jones v. State,
  589 S.W.2d 419 (Tex.Crim.App. 1979) ........................................................ 7


                                                   iv
TEXAS COURT OF CRIMINAL APPEALS (CON’T):

Kniatt v. State,
 206 S.W.3d 657 (Tex.Crim.App. 2006) ........................................................ 6

Lyles v. State,
 850 S.W.2d 497 (Tex.Crim.App. 1993) ........................................................ 4

Miniel v. State,
 831 S.W.2d 310 (Tex.Crim.App. 1992) ........................................................ 9

Moore v. State,
 694 S.W.2d 528 (Tex.Crim.App. 1985) ........................................................ 9

Rhodes v. State,
 934 S.W.2d 113 (Tex.Crim.App. 1996) ........................................................ 8

Rickles v. State,
  202 S.W.3d 759 (Tex.Crim.App. 2006) ........................................................ 4, 7

Stafford v. State,
  813 S.W.2d 503 (Tex.Crim.App. 1991) ........................................................ 10


TEXAS COURTS OF APPEAL:

Canseco v. State,
 199 S.W.3d 437 (Tex.App.—Houston [1st Dist.] 2006) ............................... 4, 6

Castaneda v. State,
 135 S.W.3d 719 (Tex.App.—Dallas 2003) ................................................... 8

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) ......................................... 6, 7

Jones v. State,
  112 S.W.3d 266 (Tex.App.—Corpus Christi 2003) ...................................... 8

                                                    v
TEXAS COURTS OF APPEAL (CON’T):

Joseph v. State,
  3 S.W.3d 627 (Tex.App.—Houston [14th Dist.] 1999) ................................ 4

Kirk v. State,
 949 S.W.2d 769 (Tex.App.—Dallas 1997) ................................................... 9

Lewis v. State,
 195 S.W.3d 205 (Tex.App.—San Antonio 2006) ......................................... 4, 6 n.2

Mauney v. State,
 107 S.W.3d 693 (Tex.App.—Austin 2003) ................................................... 7

Mayes v. State,
 904 S.W.2d 290 (Tex.App.—Fort Worth 1995) ........................................... 3


STATUTES:

TEX. CODE CRIM. PROC. art. 26.13 .................................................................... 6

TEX. CODE CRIM. PROC. art. 42.12 .................................................................... 8, 9

TEX. CODE CRIM. PROC. art. 62.102 .................................................................. 8

TEX. PEN. CODE § 12.34 .................................................................................... 8, 9

TEX. R. APP. P. 33.1 .......................................................................................... 8




                                                            vi
                             No. 12-15-00221-CR


                    IN THE TWELFTH COURT OF APPEALS
                              TYLER, TEXAS


                       ROGER WILDERN JACKSON

                                         Appellant,

                                       v.

                           THE STATE OF TEXAS

                                            Appellee



       On Appeal from the Seventh District Court of Smith County, Texas
                        Trial Cause No. 007-0964-14




TO THE HONORABLE JUSTICES OF THE COURT:

      COMES NOW, Austin Reeve Jackson, attorney for Roger Jackson and files

this brief pursuant to the Texas Rules of Appellate Procedure, and would show the

Court as follows:
                          STATEMENT OF THE CASE

        Roger Jackson seeks to appeal his conviction and sentence for the felony of-

fense of failing to register as a sex offender. (I CR 107). Mr. Jackson was indicted

for this offense last year in the Seventh District Court of Smith County. (I CR 1).

Initially, he was placed on five years’ probation following the entry of a plea of

“guilty.” (I CR 72). However, in August of this year that probation was revoked

and Mr. Jackson was sentenced to serve a term of five years’ confinement. (I CR

107). Sentence was pronounced on 4 August and notice of appeal then timely

filed. (I CR 107, 118).

                               ISSUE PRESENTED

   I.      THE TRIAL COURT ACTED WITHIN ITS DISCRETION
           IN REVOKING APPELLANT’S COMMUNITY SUPERVI-
           SION.

                            STATEMENT OF FACTS

        In 2014, Appellant, Mr. Roger Jackson, was indicted in Smith County for

the felony offense of failing to register as a sex offender. (I CR 1). To this charge

he entered a plea of “guilty” in exchange for a recommended sentence of five

years’ community supervision. (I CR 53).

        In August of this year Mr. Jackson found himself facing multiple alleged vi-

olations of his probation. (I CR 91). To theses allegations he entered a plea of




                                          2	  
“not true” and a hearing was held after which the trial court found that the State

had proved the majority of the claimed violations. (I CR 108).

      Based on that finding the trial court revoked Mr. Jackson’s community su-

pervision and imposed punishment at five years’ confinement. (I CR 107). Sen-

tence was pronounced on 4 August and notice of appeal then timely filed. (I CR

107, 118).

             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 must present a professional eval-

uation 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 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-



                                         3	  
ed for the Court excluding any potential issues that, if successfully raised, would

produce a result adverse to Appellant’s interests.

                                   ARGUMENT

       Standard of Review

       A trial court’s decision to revoke community supervision 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). Appellate review con-

siders the record in the light most favorable to the trial court’s decision. Duke v.

State, 2 S.W.3d 512, 515 (Tex.App.—San Antonio 1999, no pet.).

       Proof of a single violation is sufficient to support a revocation. Canseco v.

State, 199 S.W.3d 437, 439 (Tex.App.—Houston [1st Dist.] 2006, pet. ref’d). To

prevail then, an appellant must show, looking in the light most favorable to the

court’s decision, that the record is insufficient evidence to support each 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.).




                                          4	  
   I.      THE TRIAL COURT ACTED WITHIN ITS DISCRETION
           WHEN IT REVOKED APPELLANT’S COMMUNITY SU-
           PERVISION.

        A. There Was Legally Sufficient Evidence to Support the Revocation.

        By way of the application filed against him, the State argued that Mr. Jack-

son had committed multiple violations of the terms and conditions of his communi-

ty supervision. (I CR 91). Those violations included:

 Application Para-        Allegation
 graph
            II            Failure to report as directed
            III           Moving to a new home without notifying probation
            IV            Failure to perform community service hours
            V             Failure to demonstrate a sixth grade reading level
            VI            Failure to timely report contact with law enforcement
            VII           Failure to report in person to his probation officer
          VIII-X          Failure to pay various fees and costs
            XI            Failure to attend sex offender counseling sessions
            XII           Failure to register as a sex offender

(I CR 91-98).

        To each allegation Mr. Jackson entered a plea of “not true.” (I CR 101).

        Proof of the Allegations

        If the allegations made against Mr. Jackson were not supported by legally

sufficient evidence, Mr. Jackson would have a valid claim that the Court abused its


                                          5	  
discretion in revoking his community supervision. However, the record supports at

least some of the findings of “true” made by the Court and a finding of true to any

single violation is sufficient to support the revocation. Canseco, 199 S.W.3d at

439.

       In his defense Mr. Jackson offered extensive medical evidence that he was

hospitalized on several of the dates it was alleged that he had failed to report. (De-

fense Exhibit 9). Moreover, there was some evidence that the only reason Mr.

Jackson had left Smith County, on at least a couple of instances, was that he had

been transported to Dallas by EMS for the purposes of emergency treatment at the

VA hospital there. (VI RR 32).

       Nonetheless, Mr. Jackson was forced to concede that he did not have any de-

fense to his failure to report on some of the dates alleged, he had made no attempt

to do community service, and had not done all that he could have to stay in contact

with his probation officer. (VI RR 52-54).

       Similarly, Mr. Jackson established that he was on an extremely limited and

fixed income that left him little money after paying for necessary expenses such as

food and shelter, but it was also established that some months he had been able to

pay his required fees and other months he admitted to making no payment at all.

(VI RR 91).




                                          6	  
      The trail court’s findings reflected the evidence before it as the Court, rec-

ognizing that there existed a legitimate defense to some of the allegations, made

only partial findings of “true” as to multiple violations. (VI RR 89-95).

      Because a revocation hearing is an administrative, and not a formal, criminal

proceeding, the State need only prove its allegations by a preponderance of the ev-

idence and not beyond a reasonable doubt. Cobb v. State, 851 S.W.2d at 873. This

burden is met if the greater weight of the credible evidence creates a reasonable be-

lief that the defendant violated a condition of community supervision. Rickels, 220

S.W.3d at 764. Further, when reviewing the record, an appellate court will indulge

all reasonable inferences in the light most favorable to the trial court’s ruling and

will not reweight the trial court’s resolution of mitigating and inculpating evidence.

Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App. 1982); Jones v. Sate, 589

S.W.2d 419, 421 (Tex.Crim.App. 1979) (panel op); Mauney v. State, 107 S.W.3d

693, 695 (Tex.App.—Austin 2003, no pet).

      Applying these rules to the instant record it does not appear that a non-

frivolous argument can be made that the trial court erred in finding that the State

failed to prove all of the allegations the trial court found to be true. While there

was certainly evidence on which the trial court absolutely could have found an al-

legation to not be true, and did in several cases, the trial court, as finder of fact,

was free to resolve the issues before it in favor of believing the testimony of the



                                          7	  
State’s witnesses and disbelieving that of Mr. Jackson. See Jones v. State, 112

S.W.3d 266, 28 (Tex.App.—Corpus Christi 2003, no pet.) (holding that the trial

court is the sole trier of fact in a revocation proceeding and the lone judge of the

credibility of witnesses and the weight to be given testimony). Thus, reviewing the

record in the applicable light of that most favorable to the trial court’s decision, it

does not appear that the trial court abused its discretion by finding at least some of

the allegations against Mr. Jackson to be true and in subsequently revoking his

community supervision.          See Flournoy v. State, 589 S.W.2d 705, 708

(Tex.Crim.App. [Panel Op.] 1979) (noting that the trial court’s authority to revoke

is “substantially absolute”).

      B. Appellant’s Sentence Was Within the Statutory Range of Punishment.

      Mr. Jackson was charged with the offenses of failing to register as a sex of-

fender, a third degree felony as indicted (I CR 1). TEX. CODE CRIM. PROC. art.

62.102(b)(2). A third degree felony carries a maximum punishment of ten years’

confinement and a fine of up to $10,000. TEX. PEN. CODE § 12.34(a)(b). In this

case Mr. Jackson was sentenced to serve five years’ imprisonment. (I CR 107).

      The failure to raise an objection at the time punishment was imposed likely

resulted in the waiver of this issue on direct appeal. See TEX. R. APP. PROC.

33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Cas-

taneda v. State, 135 S.W.3d 719, 723 (Tex.App.—Dallas 2003, no pet.). However,



                                          8	  
even assuming an objection had been made there does not appear to be any error

that could be advanced and sustained on appeal.

      The sentence imposed was within the proper punishment range for the of-

fenses as alleged. TEX. PEN. CODE ANN. § 12.34(a)(b) (punishment for a third de-

gree felony). Consequently, as the punishment imposed was within the statutory

range for the offenses, it is virtually presumed that they are not constitutionally

cruel and unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.—Dallas 1997,

pet. ref’d); see also TEX. CODE CRIM. PROC. ANN. art. 42.12 § 23(a) (at revocation

the court may impose sentence anywhere within the range of punishment). As

such, counsel has been unable to raise a non-frivolous error on the issue of pun-

ishment.

      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-



                                           9	  
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 including potential pretrial matters, issues at the revocation hearing, and the

arguments of counsel and found no basis from which to argue that counsel was in-

effective. See Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998) (not-

ing that on direct appeal the record is usually insufficient to support a claim of in-

effective assistance).

                         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 Mr. Jackson the opportunity to review the record and file a pro se

brief should he 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).




                                         10	  
                                                      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 facsimile concurrently with its filing in the Court.

                                                      /s/ Austin Reeve Jackson




                                             11	  
                         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 con-

sists of 2,275 words.

                                                   /s/ Austin Reeve Jackson




                                          12	  
