                                       CRIMIN AL APPEALS - CERTIFI CATE
                                          To Be Filed with Court of Appeals
                                           TRIAL COURT NO.: B14554


    STA TE OF TEXAS                                                                          FILED IN
                                                                           IN         DISTRICT
                                                                                       4th COURT COURT
                                                                                                 OF APPEALS
                                                                                       SAN ANTONIO, TEXAS
    Vs.                                                                    198th JUDICIAL
                                                                                   12/30/15 DISTRICT
                                                                                            9:23:27 AM
                                                                                        KEITH E. HOTTLE
    TAMARA MCCRACKEN                                                                   Clerk TEXAS
                                                                           OF KERR COUNTY,


    1. Date Notice of Appeal filed in Trial Court:       December 3rdth , 2015

*   2. Has a motion for new trial been filed:   L Yes      _ _ _No                            L    ':\" nd ~C \ 5
                                                                          Date Filed: ~e..Qe.-n~"- ~ I

       Will a motion for new trial be filed:                      _ _No
                                                  - - -Yes

    3. Date of Judgment signed:     Noy~mber    30th. 2015

    4. The Honorable: M. Rex Emerson presided at trial.

    5. The Defendant is represented by: M. Patrick ~1aguire Bar No. 24002515
    945 Bamett Street. Kerrville. Tx 780')8 830-895-2590

    6. The State is represented by: Scott Monroe. Bar No. 14')72700
    200 Earl Garrett. Ste '01 Kerrville. Tx 78028 830-896-4744

    7. Defendant's Counsel is _ _Retained            X    Appointed   _~_Pro     se

    8. Defendant was convicted in this court of the offense of: Possession of Controlled Substance-Heroin
    <IG. Drug Free Zone

    9. Name & Address of Court Reporter: Paula Beaver PO Box 233 Comfort Tx 78013

    10. The trial was before the Court: Without a Jury ~, A Jury on both Guilt & Punislunent-,
    A Jury on Punishment Only        A Jury on Guilt Only~_.

    11. Sentence was imposed/suspended on: November 30 th • ')015 (3) Years in theJl1stitutional Division-


    Witness my hand this the ?:Ii th day of December, 2015.
..                                                                      FILED  1 ;l. --.:J.,;;J.. 2QjJ   S
                                                                             @4.'~?;{).M
                                                                              ROBBIN BURLEW
                                                                        O'    ct CI
                                                                                 . , rr unty, TX.
                                       NO. B14·554 

                                                                        B~~~a,t.:!:!YI1ItLiOeputy
STATE OF TEXAS                                 §   IN THE DISTRICT        OURT
                                               §
vs.                                            §   198TH JUDICIAL DISTRICT
                                               §
TAMARA JOY MCCRACKEN                           §   KERR COUNTY, TEXAS

       MOTION FOR NEW TRIAL AND MOTION IN ARREST OF JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

      COMES NOW, Tamara Joy McCracken, the Defendant in the above styled and

numbered cause, and files this Motion for New Trial and Motion in Arrest of Judgment

pursuant to Rules 21 and 22 of the Texas Rules of Appellate Procedure. and in support

thereof would show this court the following:

      1.     The Defendant was sentenced on November 30,2015. This Motion. filed

within the thirty-day timetable, is therefore timely.     A hearing must be commenced

before the 75th day after the sentence, which is February 13, 2016, or this motion is

overruled by operation of law.

      2.     The verdict in this cause is contrary to the law and the evidence. See

Tex. R. App. P. 21.3.

      3.     The trial court has the discretion to grant a new trial in the interests of

justice, as the Court of Criminal Appeals has emphasized:

       For more than one hundred and twenty years. our trial judges have had the

      discretion to grant new trials in the interest of justice.   In Mullins v. State, 37 Tex.

      337, 339-340 (1872-73), the Supreme Court, which at that time had criminal

      jurisdiction, held:

             ... The discretion of the District Court. in granting new trials. is almost the
.,


                only protection to the citizen against the illegal or oppressive verdicts of

                prejudiced, careless, or ignorant juries, and we think the District Court

                should never hesitate to use that discretion whenever the ends of justice

                have not been attained by those verdicts.

State v. Gonzalez, 855 S.W.2d 692 (Tex. Crim. App. 1993).

          4.    For the foregoing reasons, and for such other reasons that may arise on

the hearing of this Motion, Defendant requests a new trial.

          WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court set

aside the judgment of conviction entered in this cause and order a new trial on the

merits.

                                           Respectfully submitted,

                                           M. PATRICK MAGUIRE, P.C.
                                           Attorney and Counselor
                                           945 Barnett Street
                                           Kerrville, Texas 78028
                                           Tel: (830) 895-2590
                                           Fax: (83 ) 895-2594



                                            BY:---=_ _~--lI._ _ _      ---1___--.:.~r---   __
                                               M. Patrick Maguire
                                               State Bar No. 24002515
                                               mpmlaw@ktc.com
                                               Attorney for Tamara Joy McCracken



                             CERTIFICATE OF PRESENTMENT

          By signature above, I hereby certify that a true and correct copy of the above and

foregoing has been hand-delivered to the Office for the 198th Judicial District Court of

Kerr County. on this day, December 22,2015.
                            CERTIFICAorE OF SERVICE

      This is to certify that on December 22, 2015, a true and correct copy of the above

and foregoing document was served on the District Attorney's Office, Kerr County, 402

Clearwater Paseo, Suite 500, Kerrville, Texas 78028, by hand delivery.
                                        NO. B14-554 


STATE OF TEXAS                                 §       IN THE DISTRICT COURT
                                               §
VS.                                            §       198th JUDICIAL DISTRICT
                                               §
TAMARA MCCRACKEN                               §       KERR COUNTY, TEXAS


                                   NOTICE OF APPEAL

TO THE HONORABLE JUDGE OF SAID COURT:

       Now comes Tamara McCracken, Defendant in the above styled and nwnbered cause, and

gives this written notice of appeal to the Court of Appeals of the State of Texas from the

judgment ofconviction and sentence herein rendered against Tamara McCracken.

                                           Respectfully submitted,

                                           BRETT FERGUSON
                                           327 Earl Garrett Ste 104
                                                                                    FILED        I.tL.M
                                                                                        rei. :.2. '.7
                                                                                                              20L,l

                                           Kerrville, Texas 78028                          ROBBIN BURLEW
                                                                                     District CIer1t. Kerr County, TX
                                           Tel: (830) 895-2544
                                           Fax: (830) 895-3353                      ~;X~                                

                                           By:---,.~~..,::::::;;...=--..::::.   _ _ _ _ _ _ _ __
                                                   e       rguson
                                                   te Bar No. 24040889
                                                bferg@ktc.com
                                                Attorney for Tamara McCracken


                               CERTIFICATE OF SERVICE

       This is to certify that on December 3, 2015, a true and correct copy of the above and

foregoing docwnent was served on the District Attorney's Office, Kerr County by hand delivery.
                                                CAUSE NO. B 14-554--MTP 


  THE STATE OF TEXAS                                    §      IN THE DISTRICT COURT
                                                        §
  VS.                                                   §      198th JUDICIAL DISTRICT
                                                        §
  TAMARA JOY MCCRACKEN                                  §      KERR COUNTY, TEXAS


                TRIAL COURT'S CERTIFICATION OF DEFENDANT'S RIGHT TO APPEAL

  I, judge of the trial court, certifY this criminal case:

   r-     is not a plea-bargain case, and the defendant has the right of appeaL [or]

          is a plea-bargain case, but matters were written by motion and ruled on before trial and
  not withdrawn or waived, and the defendant has the right of appeal. [or]

         is a plea-bargain case, but the trial court has given permission to appeal, and the
  defendant has the right of appeal. [or]

          is a plea-bargain case, and the defendant has NO right of appeaL [or]




  Judge                                                        Date Signed


  I have received a copy of the certification. I have also been informed of tbe rights concerning any appeal
  of this criminal case, including any right to file a pro se petition for discretionary review pursuant to Rule
  68 of tbe Texas Rules of Appellate Procedure. I have been admonished tbat my attorney must mail a copy
  of the court of appeal's judgment and opinion to my last known address and I bave only 30 days in which
  to file a pro se petition for discretionary review in the court of appeals. TEX. R. APP. P. 68.2 I
  acknowledge that, if I wish to appeal this case and if I am entitled to do so, it is my duty to inform my
  appellate attorney, by written communication, of any change in the address at which I am currently living
  or any change in my current prison unit. I understand that, because of appellate deadlines, if I fail to
  timely inform my appellate attorney of any cbanges in my address, I may lose the opportunity to file a pro
   e petition for discretionary review.



 efen t: T           JOY McCRACKEN
Mailing Address: 120 CRESSCENT DR
                                                        ~FERGUSON
                                                        State Bar Texas 10#:
                 KERRVILLE, TX 78028                    Mailing Address:
Telephone Number: (830) 370-2591                        Telephone Number: (830) 895-2544
Fax Number (if any):                                    Fax Number (if any): (830) 895-3353

                                                                     FILED
                                                                         @~
                                                                               I
                                                                              c3!-.
                                                                                   tlgg ;2.:20Ki.
                                                                                               M
                                                                              OBBIN BURLEW
                                                                        strict lerk. K   County TX
                                             Cause No. B14-554

 THE STATE OF TEXAS                                     §          IN THE 198TH JUDICIAL
 v.                                                     §          DISTRICT COURT OF
 TAMARA JOY McCRACKEN                                   §          KERR COUNTY, TEXAS
                                            ADJUDICATION OF GUILT;
                                SENTENCE To Institutional Division, JDeJ

                         DATE OF JUDGMENT:                  NOVEMBER 30, 2015
                           JUDGE PRESIDING:     M. REX EMERSON
                     ATIORNEY FOR THE STATE:    scon F. MONROE, DA/ STEPHEN HARPOLD, ADA
                ATIORNEY FOR THE DEFENDANT:     BRm FERGUSON
                                   OFFENSE:     POSSESSION OF A CONTROllED SUBSTANCE­
                                                HEROIN <lG, DRUG FREE lONE
                         STATUTE FOR OFFENSE: Article 481.115, SecHon , Health and Safety Code
                          DEGREE OF OFFENSE: Third Degree Felony
              APPLICABLE PUNISHMENT RANGE Third Degree 2-10 In prison/max $10,000 fine
             (Including enhancements if any):

                                                                                               ~~
                             DATE OF OFFENSE: SEPTEMBER 5, 2014
   DATE OF COMMUNITY SUPERVISION ORDER: FEBRUARY 6, 2015           FILED                    20/:j
                       CHARGING INSTRUMENT: Indictment                 @                       Of!o_,OlLM
                   TERMS OF PLEA AGREEMENT NONE
                                                                           OBBIN BURLEW
                                   (IN DETAIL):
                                                                           Clerk, Ke County, TX
            PLEA TO MOTION TO ADJUDICATE: True
  FINDING AS TO ALLEGATIONS IN MOTION TO True
                                 ADJUDICATE:
   CONDITlONS OF COMMUNITY SUPERVISION As set out In State's Exhibit A
                                     VIOLATED
      (as set out in the moHon to adJudicate):
  AFFIRMATIVE FINDING ON DEADLY WEAPON Not Applicable
      OTHER AFFIRMATIVE SPECIAL FINDINGS; Drugs/alcohol affected this crime
                      DATE SENTENCE IMPOSED: N~EMBER 3~2015
  PUNISHMENT AND PLACE OF CONFINEMENT: "1flrpe l 5)              YEARS In the InsHtutlonal Dlvlslon-TDCJ!
                 TIME CREDITED TO SENTENCE: 71 DAYS                                                      I
                                COURT COSTS: $ 70                               $             AnY FEES
              TOTAL AMOUNT OF RESTITUTION: $-0­
       NAME AND ADDRESS FOR RESTITUTION: N/A

        DOB: 02/0411980                               SS#: XXX-XX-XXXX            SID#: TX06578409

        This sentence shall run eonseeutive to BI4-SSS. The sentence this case shall begin after the sentence in
B 15·555 is completed.

         On the date stated above, the Defendant entered a plea of Guil ty to the offense stated above and was
granted a deferred adjudication in the above numbered and styled cause. The Defendant was placed on community
supervision as stated above, subject to the conditions of supervision set out in the order in this cause. Thereafter,
and during the period of supervision, the State filed a motion to adjudicate in this cause, alleging that the Defendant
had violated conditions of supervision set out in said order.

         On the date stated above, the above numbered and entitled cause was regularly reached and caned for a
hearing on the motion to adjudicate, and the State appeared by the attorney stated above. and the Defendant and the
Defendant's attorney, as stated above, were also present. Thereupon both sides announced ready for the hearing,
and the Defendant, Defendant's attorney, and the Defendant waived the reading of the motion to adjudicate, and,
upon being asked by the Court as to how the defendant pleaded, entered a plea of True to the allegations in the
motion to revoke.


                                                            Adjudication of Guilt; Direct Sentence; Page I of2 Pages
         Thereupon, the Defendant was admonished by the Court of the consequences of the plea; it appeared to the
Court that the Defendant was competent and that the defendant was not influenced in making said plea by any
consideration of fear or by an persuasion prompting said plea; and the Court received the free and voluntary plea,
which is now entered of record in the minutes of the court. The Court, after hearing all of the evidence for the State
and the Defendant and arguments of counsel, was of the opinion and found that the Defendant violated the
conditions of community supervision as stated above.

         The Court then adjudicated the Defendant guilty of the offense stated above and found the offense was
committed on the date stated above. A pre-sentence investigation report was not required or done. After hearing
additional evidence on the issue of punishment, if any, the Court then assessed punishment as stated above.

        And thereupon the Court asked the Defendant whether the Defendant had anything to say why said
sentence should not be pronounced upon said Defendant, and the Defendant answered nothing in bar thereof.
Whereupon the Court proceeded to pronounce sentence upon said Defendant as stated above.

         It is therefore ORDERED, ADJUDGED and DECREED by the Court that the defendant is guilty of the
offense stated above, the punishment is fixed as stated above, and the State of Texas do have and recover of said
defendant all court costs in this prosecution expended, for which execution will issue.

         It is ORDERED by the Court that the Defendant be taken by the authorized agent of the State of Texas or
by the Sheriff of this county and be safely conveyed and delivered to the Director, Institutional Division-TDCJ.
there to be confined in the manner and for the period aforesaid, and the said defendant is hereby remanded to the
custody of the Sheriff of this county until such time as the Sheriff can obey the directions of this sentence. The
defendant is given credit as stated above on this sentence for the time spent in county jail. The Defendant also is
ordered to pay restitution to the person(s) named above in the amount specified above.

         Signed on the 30 TH day of NOVEMBER, 2015.




                                                      JUDG

                 Defendant's




                                                            Adjudication of Guilt; Direct Sentence; Page 2 of 2 Pages
Cause No. B14554

THE STATE OF TEXAS                                                                       Exhibit
VS.
Tamara McCracken
                                                                                          "A"
The defendant has violated the terms and conditions of her probation as follows:

(b) 	AVOID INJURIOUS OR VICIOUS HABITS:
    • 	 Defendant failed to avoid injurious or vicious habits and abstain from the use or possession or narcotic
        drugs or controlled substances, namely amphetamine, on or about the 1st day of May, 2015 as evidenced
        by defendant's admission of use.

    • 	 Defendant failed to avoid injurious or vicious habits and abstain from the use or possession or narcotic
        drugs or controlled substances, namely methamphetamine, on or about the 7th day of June, 2015 as
        evidenced by defendant's admission of use.

    • 	 Defendant failed to avoid injurious or vicious habits and abstain from the use or possession or narcotic
        drugs or controlled substances, namely methamphetamine, on or about the 15 th day of June, 2015 as
        evidenced by urinalysis drug test.

    • 	 Defendant failed to avoid injurious or vicious habits and abstain from the use or possession or narcotic
        drugs or controlled substances, namely amphetamine, on or about the 15th day of June, 2015 as
        evidenced by urinalysis drug test.

    • 	 Defendant failed to avoid injurious or vicious habits and abstain from the use or possession or narcotic
        drugs or controlled substances, namely benzodiazepine, on or about the 15th day of June, 2015 as
        evidenced by urinalysis drug test.

    • 	 Defendant failed to avoid injurious or vicious habits and abstain from the use or possession or narcotic
                                                                                     rd
        drugs or controlled substances, namely methamphetamine, on or about the 3 day of November, 2015 as
        evidenced by defendant's admission of use.

    • 	 Defendant failed to avoid injurious or vicious habits and abstain from the use or possession or narcotic
        drugs or controlled substances, namely heroin, on or about the 4th day of November, 2015 as evidenced
        by defendant's admission of use.

(d) REPORT:
                                                                                                     th
    • 	 Defendant failed to report for an administrative hearing at the Kerr County CSCD on the 26 day of
        June, 2015.

(m)(l) COURT COSTS:
    • 	 Defendant failed to pay Court Costs in the amount of $413.00 instanter (or as directed by further order of
        the Court) and currently has a remaining balance of$413.00.

(m)(2) FINE:
   • 	 Defendant failed to pay Fine in the amount of$1500.00 instanter (or as directed by further order of the
       Court) and currently has a remaining balance of$1500.00.
~.~.

,             .    .
    • 	 a€ use No, BI4554

        THE STATE OF TEXAS
        VS,
        Tamara McCracken 

        (m)(3) PROBATION FEES: 

           • 	 Defendant failed to pay probation fees in the amount of $60.00 per month for the months of March,
               April, May, June, July, August, September, October, and November 2015, for a delinquency of $540.00.

        (m)(4) ATTORNEY FEES:
           • 	 Defendant failed to pay restitution to county for Court appointed attorney fees in the amount of $667.50
               payable instanter (or as directed by further order of the Court) and currently has a remaining balance of
               $667.50.

        (0) 	FINANCIAL STATEMENT:
                  • 	 After default in monthly Court ordered payments defendant failed to file a sworn statement with the
                      Probation Office listing individually all monthly income and expenses.

        (q) 2. RANDOM URINALYSIS:
            • 	 Defendant failed to pay for urinalysis testing and currently owes $36.00.

        (s)      COMMUNITY SERVICE:
              • 	 Defendant failed to perfonn 150 hours of community service at a minimum of 16 hours of service per
                  month and currently has 140 hours remaining.

       (u) 4. ABSTAIN FROM ALL USE OF ALCOHOL AND NARCOTIC DRUGS-CONTROLLED
              SUBSTANCES:
           • 	 Defendant failed to abstain from all use of alcohol and narcotic drugs-controlled substances, namely
               amphetamine, on or about the 15t day of May, 2015 as evidenced by defendant's admission of use.

              • 	 Defendant failed to abstain from all use of alcohol and narcotic drugs-controlled substances, namely
                  methamphetamine, on or about the 7th day of June, 2015 as evidenced by defendant's admission of use.

              • 	 Defendant failed to abstain from all use of alcohol and narcotic drugs-controlled substances, namely
                  methamphetamine, on or about the 15 th day of June, 2015 as evidenced by urinalysis drug test.

              • 	 Defendant failed to abstain from all use of alcohol and narcotic drugs-controlled substances, namely
                  amphetamine, on or about the 15 th day of June, 2015 as evidenced by urinalysis drug test.

              • 	 Defendant failed to abstain from all use of alcohol and narcotic drugs-controlled substances, namely
                  benzodiazepine, on or about the 15 th day of June, 2015 as evidenced by urinalysis drug test.

              • 	 Defendant failed to abstain from all use of alcohol and narcotic drugs-controlled substances, namely
                  methamphetamine, on or about the 3rd day of November, 2015 as evidenced by defendant's admission of
                  use.

              • 	 Defendant failed to abstain from all use of alcohol and narcotic drugs-controlled substances, namely
                  heroin, on or about the 4th day of November, 2015 as evidenced by defendant's admission of use.


       LAST KNOWN ADDRESS: 114 Candlelite Dr, Ingram, TX 78025
