                                                                                                        ACCEPTED
                                                                                                   12-14-00295-CR
                                                                                       TWELFTH COURT OF APPEALS
                                                                                                    TYLER, TEXAS
                                                                                             2/27/2015 11:49:01 AM
                                                                                                      CATHY LUSK
                                                                                                            CLERK



                                 JOHN D. REEVES
                                    ATTORNEY AT LAW                            FILED IN
                                                                        12th COURT OF APPEALS
                                                                             TYLER, TEXAS
                             1007 Grant Ave•Lufkin, Texas 75901         2/27/2015 11:49:01 AM
                      (936) 632-1609 telephone • (936) 632-1640 facsimile    CATHY S. LUSK
                          Email: tessabellus@yahoo.com                           Clerk



February 27, 2015

12th Court of Appeals
Attn: Cathy S. Lusk, Clerk
1517 West Front Street, Suite 354
Tyler, Texas 75702


Re: Case Number                       12-14-00295-CR
    Trial Court Case Number            2013-0615

Style: Shadondra Jenkins
           v.
       The State of Texas

RE: Brief

Dear Madam, following please find for filing Motion to Withdraw and Anders Brief for
Appellant, Shadondra Jenksins.


Thank you for your courtesies.


Sincerely,

/S/ John D. Reeves
John D. Reeves




E file cc. April Ayers-Perez, Asst. DA, Angelina County, P.O. Box 908, Lufkin, Texas 75901
                          12-14-00265-CR
 _______________________________________________________________

                   IN THE COURT OF APPEALS
             FOR THE TWELFTH JUDICIAL DISTRICT
                          TYLER, TEXAS
 ________________________________________________________________


                     SHADONDRA JENKINS
                              V.
                       The State of Texas


      APPEAL FROM THE 159TH JUDICIAL DISTRICT COURT
               OF ANGELINA COUNTY, TEXAS


                  ANDERS BRIEF OF APPELLANT
                      SHADONDRA JENKINS
__________________________________________________________________



                                   Respectfully considered,

                                   /s/John D. Reeves
                                   _______________________
                                   JOHN D. REEVES
                                   Attorney at law
                                   1007 Grant St.
                                   Lufkin, Texas 75901
                                   Phone: (936) 632-1609
                                   Fax: (936) 632-1640
                                   SBOT # 16723000
                                   Email: tessabellus@yahoo.com
                                   ATTORNEY FOR APPELLANT
ORAL ARGUMENT NOT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL



Parties:
Appellant in Trial Court:

      Shadondra Jenkins
      TDCJ# 01962913
      Marlin Unit
      2893 State Hwy 6
      Marlin, Texas 76661


Appellee in Trial Court:

The State of Texas

Trial and Appellate Counsel:

Appellant:

JOHN D. REEVES                       Trial Jerry Whiteker
Attorney at Law                            Attorney at Law
1007 Grant Ave.                             P.O. Box 1443
Lufkin, Texas 75901                        Lufkin, Texas 75902
Phone: (936) 632-1609                      Phone: 936/632-5551
Fax: (936) 632-1263                        SBOT: 21361500
SBOT # 16723000


Appellee:
April Ayers-Perez                        Trial Katrina Carswell
Angelina Asst. District Atty.            Angelina Asst. Dist. Atty.
P.O. Box 908                             P.O. Box 908
Lufkin, Texas 75901                      Lufkin, Texas 75901
Phone: 936-632-5090                      Phone: 936/ 632-5090
SBOT# 01921800                           SBOT # 10482700
                                ii
                 TABLE OF CONTENTS



Page:

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

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

INDEX OF AUTHORITIES…………………………………………………... iv,v

STATEMENT OF THE CASE……………………………………………………1

STATEMENT OF JURISDICTION…………………………………………........2

ANDERS ISSUE’S CONSIDERED.…………………………………………....2-3

STATEMENT OF FACTS …………………………………………………….3-12

SUMMARY OF THE ARGUMENT ..…………………………………….....12-13

ARGUMENT………………………………………………………………….13-24

CONCLUSION AND PRAYER………………………………………………....24

CERTIFICATE OF COMPLIANCE……………………………………………..25

CERTIFICATE OF SERVICE…………………………………………………...25




                        iii.
                                 INDEX OF AUTHORITIES



                                                                                                Page:

U.S. Supreme Court Cases

Anders v. California, 386 U.S. 738, (1967) ..........................................................1

Strickland v. Washington, 466 U.S. 668, (1984) .............................................22,23

Fifth Circuit

Nero v. Blackburn, 597 F.2d 991, (5th Cir. 1979) ...............................................24


Texas Cases


Blanco v. State, 18 S.W. 3d 218, (Tex. Crim. App. 2000) .................................14

Dinkins v. State, 894 S.W.2d 330, (Tex. Crim. App. 1995)................................19

Euler v. State, 158 S.W. 3d 88, (Tex. Crim. App. 2007) .....................................22

Ex parte Delaney, 207 S.W. 3d 794, (Tex. Crim. App. 2006) .............................14

Harris v. State, 656 S.W. 2d 481, (Tex. Crim. App. 1983).....................................21

Jackson v. State, 877 S.W. 2d 768, (Tex. Crim. App. 1994)..................................23

Jordan v. State, 495 S.W. 2d 949, (Tex. Crim. App. 1973)....................................21

Kniatt v. State, 206 S.W.3d 657, (Tex. Crim. App. 2006.......................................16

Ladd v. State, 3 S.W.3d 547, (Tex. Crim. App. 1999)...........................................21

McFarland v. State, 928 S.W. 2d 482, (Tex. Crim. App. 1996) ............................22

                                                  iv.
Montgomery v. State, 810 S.W.2d 372, (Tex. Crim. App.1990)...........................20

Rhoades v. State, 934 S.W.2d 113, (Tex. Crim. App. 1996).................................21

Rodriguez v. State, 203 S.W.3d 837, (Tex. Crim. App.2006)...............................20

Young v. State 8 S.W 3d 656, (Tex. Crim. App. 2000) ……................................14

RULES AND OTHER AUTHORITIES

U.S. Const. Amend. VIII .......................................................................................20

U.S. Const. Amend. XIV..................................................................................21,22

Texas Rules of Appellate Procedure, Rule 33.1..................................................1,21

Texas Code of Criminal Procedure Article 26.13 ..................................................15




                                                       v.
    ___________________________________________________________

                                 12-14-00295-CR
  _______________________________________________________________

                   IN THE COURT OF APPEALS
             FOR THE TWELFTH JUDICIAL DISTRICT
                          TYLER, TEXAS
 ________________________________________________________________


                               Shadondra Jenkins
                                       v.
                               The State of Texas


           APPEAL FROM THE 159th JUDICIAL DISTRICT COURT
                   OF ANGELINA COUNTY, TEXAS


                       ANDERS BRIEF OF APPELLANT
                          SHADONDRA JENKINS

TO THE HONORABLE COURT OF APPEALS;

       COMES NOW, Shadondra Jenkins., Appellant, pursuant to Texas Rules of

Appellate Procedure, Rule 33.1 by and through her attorney of record, John D.

Reeves, who respectfully submits this Anders brief for Appellant and would show

as follows: (Anders v. California, 386 U.S. 738, (1967)

                        STATEMENT OF THE CASE

      Appellant was charged by indictment in the October/December 2013 term of

the Angelina County Grand Jury with two counts of Injury to a Child allegedly,
committed on the 6th and 20th day of August 2013. (Cause # 2013-0615, CR.18 -

19) Appellant pled guilty, without a plea bargain and waived a trial by jury on May

20th, 2014. (RR Vol. 2; CR. 55-59)            (RR Vol. 2 p.6-10) A pre-sentence

investigation report was ordered by the court. (RR Vol. 2, p. 7, 14) On October

2nd, 2014 the trial court conducted a sentencing hearing and the Appellant was

sentenced to one hundred fourteen months (114 months) in the Texas Department

of Criminal Justice, Institutional Division. (RR Vol. 4, p.7-125) John Reeves was

appointed to do the appellant’s appeal on October 14th, 2014. (CR p.75) Notice of

appeal was filed by trial counsel on October 7th, 2014. (CR p.72) On October 24th,

an order was signed for the clerk’s record and reporter’s record. (CR p. 82) On

October 3, 2014 a Trial Court’s Certification of Appeal was signed by the trial

court not limiting appellant’s right of appeal as to punishment only. (CR p. 71)

                    STATEMENT OF JURISDICTION

The Trial Court certified Appellant’s right to appeal without restriction as to

punishment only on October 2, 2014. (CR p. 71)

                       ANDERS’ ISSUES CONSIDERED

  1. Did the appellant waive her right of appeal on guilt/innocence?

   2.   Is the appellant’s plea of guilty free and voluntary and were proper

   admonishments given by the trial court?

                                         2.
  3. Is there error regarding the admission into evidence of States’ Exhibit

       one through thirteen including any error regarding trial objections?

  4.    Is the sentence of the trial court disproportionate in violation of the Eighth

  Amendment and Fourteenth Amendments to the United States Constitution?

  5. Did trial counsel provide ineffective assistance concerning appellants

  sentencing hearing?

                            STATEMENT OF FACTS

           The case was called for trial and appellant pled guilty to a two count

indictment of Injury to a Child. (RR Vol. 2 p. 6-7) Appellant was admonished by

   the trial court of the range of punishment. (RR Vol. 2 p. 4-5) The trial court

 inquired as to the appellant’s competency to stand trial and found the appellant

 competent. (RR Vol. 2 p. 5-6) After request for a pre sentence investigation trial

 court ordered the same. (RR Vol. 2 p. 7-8, 10) Admitted without objection were

State’s Exhibit one being Written Plea Admonishments-Waivers-Stipulations. (CR

   p. 56-59; RR Vol. 2 p. 10) The stipulation reflects there is no plea bargain

   agreement between the State and the appellant. (CR p.58) ;( RR Vol. 2 p.9)

   The trial court began the appellant’s sentencing hearing on October 2, 2014.

  (RR Vol. 4) The State called three witnesses. The court confirmed that four

   videos were shared with each counsel regarding DVD statements of the two

                                         3.
children. In addition, the State added some notes gathered by the State from a CPS

file. (RR Vol. 4 p. 5-7) Without objection a report from Gene Stanley providing a

forensic mental health evaluation was admitted by the trial court. (RR Vol. 4 p. 8)

Defense counsel was allowed to call John Weismuller out of order for purposes of

 convenience. (RR Vol. 4 p. 10-19) Mr. Weismuller testifies he is counsel for the

appellant in CPS Court and a conservatorship agreement was made with the State

  on September 24th, 2014. (RR Vol. 4 p. 12-19) He explains there are two cases

involving various children of the appellant with the State as managing conservator

    and the appellant possessory conservator and the CPS Court is awaiting the

             outcome of appellant’s sentencing. (RR Vol. 4 p. 13-19)

Samantha Skinner states she works as the foster care supervisor for child protective

  services of Angelina County. (RR Vol. 4 p. 22) She explains the appellant was

arrested for physical abuse of her children while the children were living with their

   grandmother, Ms. Lamb. (RR Vol. 4 p. 23) The names and ages of the three

      children are provided and the process of how the children came to the

 grandmother’s house is explained. (RR Vol. 4 p. 24-26) The witness explains the

  plan of service the appellant entered into and what was expected of her to seek

    reunification with her children. (RR Vol. 4 p. 26-29) The concerns of the

  department were whether she had stable housing between November 2013 and

                                         4.
March 2014. (RR Vol. 4 p. 19) There were issues with the appellant of keeping a

stable job. (RR Vol. 4 p. 29-30) The witness believed the appellant was lacking in

her desire to complete the plan of service. (RR Vol.4 p. 31) After the removal of

the appellant’s fourth child who was a newborn’, she was offered another similar

 service plan. (RR Vol. 4 p. 32) She describes some negativism by the appellant

toward a plan of her mother keeping the children in her possession. (RR Vol. 4 p.

                                     32-34)

   The State offered exhibits 2-13 which were photos of injuries to two of the

children as named in the indictment. (RR Vol. 4 p. 36) The photos were admitted

                      without objection. (RR Vol. 4 p. 37)

 On cross-examination, the witness admitted that the appellant did not want her

mother to raise her children. (RR Vol. 4 p. 38) The witness explained the reasons

the appellant had issues with her mother, including a previous rape of herself by

   one of her mother’s boyfriends, her mother forcing her to have an abortion,

  animosity towards her mother’s lifestyle and some of her mother’s friends at

church. (RR Vol. 4 p. 39-40) Lastly, there were issues with the discipline applied

by the mother to the appellant. (RR Vol. 4 p. 40-41) The witness was questioned

about reasons why the appellant would have trust issues with the department. (RR

                Vol. 4 p. 42-44) The witness did not believe the

                                        5.
appellant was truly remorseful for her actions toward the two children. (RR Vol. 4

 p. 43, 45-46) On re-direct examination, the witness reflected background checks

on the grandmother revealed no abuse of the appellant by her mother. She shares

     that the appellant sometimes gives less than the full truth concerning her

  employment and housing. (RR Vol. 4 p. 46-47) The parties discussed recent

      changes in visitation offered by the department. (RR Vol. 4 p. 47-49)

  Christopher Harris testifies he was assigned the Appellant to be her probation

officer for a misdemeanor theft by check case. (RR Vol. 4 p. 51-52) While being

  supervised under bond conditions for the instant matter he states she admitted

 using K-2 on July 16th while with her boyfriend. (RR Vol. 4 p. 52-53) He states

  they have discussed catching up on her probation fees and community service

hours. (RR Vol. 4 p. 53, 55) On cross-examination the officer admits the appellant

             does not have a car, license or job. (RR Vol. 4 p. 55-56)

 Janice Lamb testifies that the appellant is her eldest child and she has custody of

three of the appellant’s children. (RR Vol. 4 p. 57-58) The children are 14, 9, and

 3 and have resided with her for a year. (RR Vol. 4 p. 58) She explains she found

      out about the appellant hurting the children through a relative and then

 by CPS. (RR Vol. 4 p. 58-59) She explains when she first saw the children after

 the alleged abuses she believed the children were terrified, confused and did not

                                         6.
understand why there were not normal kids. (RR Vol. 4 p. 59) One of the children

was very ‘zoned out” and clingy. (RR Vol. 4 p. 60) Another child she described as

   terrified. (RR Vol. 4 p. 61) She explains the children are better, but still are

having issues. Prior to the allegations in August of 2013, the witness explains she

 was basically raising the children at one time and there were times the appellant

was around, but that the children have mostly lived with her. (RR Vol. 4 p. 62-64)

The witness explains that there were times over the course of years that she and her

   daughter disagreed about how to rear the children. (RR Vol. 4 p. 64-65) The

 witness explains she is involved in the two CPS cases and has all four children in

     her possession, which includes the new born. (RR Vol. 4 p. 65-66) The

 grandmother is surprised that the appellant is now saying she was abused by her.

      (RR Vol. 4 p. 66-67) She describes various activities that the appellant

participated in. (RR Vol. 4 p. 67-69) She states that eventually when the appellant

 became 18 she was not able to give her much direction that was accepted by the

appellant. (RR Vol. 4 p. 69) She explains the two children who are the subject of

   the indictment are in counseling two times a month. (RR Vol. 4 p. 70) The

children are experiencing positive changes as a result of the counseling. (RR Vol.

    4 p. 70-71) She testifies both children have fluctuated up and down in their

schoolwork. (RR Vol. 4 p. 72) Over objection, the witness was allowed to testify

                                          7.
 to the observations she has of the children regarding not seeing their mom. (RR

Vol. 4 p. 73-74) She responds the children seem content where they are. (RR Vol.

  4 p. 74) One child is “extremely defiant, angry and has bouts of crying and is

 frustrated. (RR Vol. 4 p. 74) Another child is nervous and not real responsive to

yelling, but expressing confusion and fear regarding discipline. (RR Vol. 4 p. 75)

 She explains she and the appellant have not had many conversations throughout

                      the CPS process. (RR Vol. 4 p. 75-76)

On cross-examination the witness admits there is not a good relationship with the

    appellant. (RR Vol. 4 p. 77) After a discussion concerning the appellant’s

allegations regarding the witness’s boyfriends the witness was further questioned.

(RR Vol. 4 p. 78-80) The witness reveals five marriages and nine different men in

  her home during the appellant’s childhood. (RR Vol. 4 p. 81) She admits the

 appellant did not like some of the men. (RR Vol. 4 p. 81) She denies forcing the

appellant into an abortion. She denies knowledge of one of the men impregnating

   her daughter. (RR Vol. 4 p. 82) She admits disciplining the appellant with

switches, and belts but denies harshly disciplining the appellant. (RR Vol. 4 p. 82)

           She testifies she does not want the children reunited with the

appellant. (RR Vol. 4 p. 84) She did not answer as to what punishment she thought

 was right for the appellant other than justice for her grandchildren. (RR Vol. 4 p.

                                         8.
  84) She states she did the best she could in rearing the appellant and was not

 aware of any changes she would had made other than giving the appellant more

  attention. (RR Vol. 4 p. 85-86) The court inquired as to the circumstance in

   August 2013 when the allegations of Injury to Child were filed. The witness

explained she was not feeling well as a result of a migraine headache and had the

  children transported to the appellant. (RR Vol. 4 p. 89-90) The children were

   dropped off but not returned. The witness explains the children were in the

  appellant’s care for about two years until they were returned as a result of the

                   August 2013 incident. (RR Vol. 4 p. 90-92)

      The defense called the appellant to testify. She testifies concerning her

 employment and residence (RR Vol. 4 p. 93-94) She explains her job history at

 Dollar General, Ruben’s, Motel Six and Cybershield. (RR Vol. 4 p. 94-95) She

 agreed that she was behind on her probation fees and had transportation issues.

 (RR Vol. 4 p. 95) The appellant admits she plead guilty on May 20, 2014 to the

two counts in the indictment. (RR Vol. 4 p. 95) She stated that counseling has had

a great impact in her life since her release from jail in November 2013. (RR Vol. 4

  p. 96) She stated she changed her life cycle and worked on parenting classes,

  anger management, communication skills, discipline and the admission of the

 offense. (RR Vol. 4 p. 96-97) The appellant admits she has great sorrow for her


                                         9.
actions towards her children. (RR Vol. 4 p. 97-98) Although disagreeing with her

    mother, the appellant explains her version of the abuse and abortion in her

 childhood. (RR Vol. 4 p. 98-99) She gave detail to the types of discipline of her

mother involving hitting her with a switch and extension cord. (RR Vol. 4 p. 100)

The appellant explained the abuse she committed on her children was what she was

taught and did not realize it was not right then or in the instant matter. (RR Vol. 4

p. 100) The appellant describes the medication prescribed too her to help with her

 sleep, thoughts, moods and control her anxiety received from the Burke Center.

   (RR Vol. 4 p. 100-101) She explains her youngest child is involved in some

 allegations by her boyfriend but she no longer lives with him which is the subject

matter of the second CPS case. (RR Vol. 4 p. 101-102) The appellant explains the

    process of visitation with her children and her attempts to get photos of her

children online. (RR Vol. 4 p. 102-103) The appellant is asking for probation as a

 result only having the misdemeanor check case and no prior felony convictions.

(RR Vol. 4 p. 104) She explains her financial circumstances and attempt to get an

online education. (RR Vol. 4 p. 105) In regard to the allegations that her boyfriend

abused her children she explains she is not aware of what the truth is. (RR Vol. 4 p.

 105-106) She does admit her boyfriend has hurt her but she stayed with him for

     survival and then became pregnant with the last child. (RR Vol. 4 p. 106)


                                        10.
               Appellant states she has learned from the experience.


          “What I’ve learned from all of this is if I’m not good I can’t be
          any good to my children. I learned that just because something
            happened with me doesn’t make it right for me to raise my
                  children that way. I’ve learned that I have to take
           responsibility for my actions. And then I’ve learned that this
          cycle has to be broken.’ I didn’t realize it then. I didn’t know.
           I really didn’t know the severity of this until I started talking
           and releasing things and I’ve learned that I’m going to break
             that cycle because I do not want my children to have to go
            through anything like this again and I want to be better so I
          can be a better parent for them whenever I can see them again.
              I want to be a better person and be a better mother so I’ll
          never, ever this life this mistake ever again. (RR Vol. 4 p. 107)
On cross examination the State tries to clarify dates of parenting classes and anger

 management attended to by the appellant. (RR Vol. 4 p. 109-110) The appellant

 explains her delay from May until September in getting evaluated by the Burke

Center. (RR Vol. 4 p. 110) The witness explains the process of being evaluated by

   ADAC. (RR Vol. 4 p. 110-111) She does explain that in her past the ADAC

evaluation was the result of the use of drugs. (RR Vol. 4 p. 11-112) The appellant

 denies recently asking her sister for money and explains her sister volunteered $

70.00 and she took it but did not use it to pay for probation, her children or to get a

    license. (RR Vol. 4 p. 113-114) The State reviewed the appellants initial

 statement to the police and admitted until she saw the photos of the children she

          was not aware of the severity of the injuries. (RR Vol. 4 p. 115-


                                         11.
 116) She stated she admitted the marks on the children came from the use of a

cord. (RR Vol. 4 p. 116) She admits it was a year after the incident until she went

to parenting classes. (RR Vol. 4 p. 117) The appellant explains she tries to convey

concern and love to her children through the CPS worker. (RR Vol. 4 p. 117-119)

 After explanation by the trial court the appellant was sentenced to 114 months in

                      the TDCJ- ID. (RR Vol. 4 p. 123-125)

                      SUMMARY OF THE ARGUMENT

    Five issues are presented as a basis for appeal which is stated in Anders Issues

considered. The first issue is whether the appellant’s right to appeal was waived in

 regard to her plea of guilty. Appeal attorney believes her right to appeal her plea

 was waived in reviewing the plea waiver and trial court certification signed after

sentencing. Appellant addresses this point in order to address the voluntariness of

  appellant’s plea The second issue is whether the appellant’s plea of guilty was

entered freely and voluntarily and whether the trial court properly admonished the

     appellant? Appeal counsel finds there is a properly executed waver and

stipulations concerning her plea of guilty to the entire allegations contained in the

     State’s Indictment. Also, appellate counsel finds the trial court properly

admonished the appellant and that appellant’s plea of guilty was free and voluntary

and that appellant was not under the influence of any substance nor was there any

                                          12.
      issue of appellant’s competence. Thirdly, appeal counsel considers the

     admissibility of the State’s thirteen exhibits and any error regarding trial

objections. Counsel finds all exhibits were admitted without objection, further the

    pre sentence investigation report was admitted without objection. The one

objection not ruled upon in favor of the defense was not pursued by the defense as

the State changed its manner of questioning. Fourthly, counsel considers whether

  the sentence rendered by the trial court was disproportionate in violation of the

U.S. Constitution. There was no objection made in the trial court as to the sentence

rendered. The trial court gave a reasoned explanation regarding the sentencing and

     allowed the appellant to respond. The sentence in this case is within the

   parameters of the Texas Penal Code regarding punishment for a third degree

felony. Lastly, appeal counsel considers whether trial counsel was ineffective. The

  record reveals trial counsel presented evidence through the appellant and cross

 examined the witnesses and there is no basis on the record to support ineffective

                               assistance of counsel.

                                   ARGUMENT

                                               1.

           Did the appellant waive her right of appeal on guilt/innocence?

 In order to consider the second possible issue of the voluntariness of appellant’s

                                         13.
entry of her plea, appeal counsel first considers this issue of waiver of appeal. The

      appellant signed a waiver of appeal at the time of her plea in regard to

                     guilt/innocence, (CR 60; RR Vol. 2 p. 9)

                              The appellant was asked:

         The Court: You do you further understand you’re giving up your
          right to appeal a conviction in this cause if I determine that’s
                               what should happen”
                             The Defendant: Yes; sir.


  Additionally, the trial court’s certification of appeal signed on October 2, 2017

 limited the appellant’s right to appeal as to solely punishment. CR p. 71) In this

instance the appellant waived her right to appeal as to guilt/innocence at the time

 of her plea and again signed a trial court certification to the same effect after her

sentencing. Ex Parte Delaney, 207 S.W. 3d 794, 797 (Tex. App. 2006); Blanco v.

 State, 18 S.W. 3d 10.218, 219-20 (Tex. Crim. App. 2000). In regard to the trial

court’s certification signed on October 2, 2014 the trial court did limit appellant’s

  appeal to sentencing only. (CR p. 71) Is the appeal limited to punishment only

where there is an open plea of guilty to the trial court? (RR Vol. 2 p. 6, 7) As this

 Honorable Court is aware, in Young v. State, 8 S.W 3d 656,666-67 (Tex. Crim.

      App. 2000) the Court held “whether entered with or without an agreed

    recommendation of punishment by the State, a valid plea of guilty or nolo

                                         14.
 contendre “waives” or forfeits the right to appeal a claim of error only when the

judgment of guilt was rendered independent of, and is not supported by, the error.

Thus, although as here there is a guilty plea it does not necessarily waive a right to

any appeal. In the instant matter where was no enhancement paragraph and there

was no exchange agreement. (CR p. 18-19) Appellant counsel believes as a result

     of the appellant’s waiver signed at the time of the plea and the trial court

certification signed after sentencing as shown above evidences a voluntary waiver

                            of appeal of guilt/innocence.

                                               2.

  Is appellant’s plea of guilty free and voluntary and accepted with proper

                         admonishment to the appellant?

    Appellant entered a plea of guilty to the allegation contained in the State’s

 indictment of two counts of Injury to a Child. The record does not reflect there

  was any plea agreement. (RR Vol. 2 p. 6-7, 10-11; CR p. 58)) The trial court

  ordered a pre- sentence investigation. The trial court inquired of whether the

appellant’s plea of guilty was freely and voluntarily made and accepted her plea of

 guilty. (RR Vol. 2 p. 4-7) Admonishments are required by Article 26.13 Texas

   Code of Criminal Procedure. As such, to be “voluntary,” a plea must be the

 expression of the defendant's own free will and must not be induced by threats,

                                         15.
 misrepresentations, or improper promises. See Kniatt v. State, 206 S.W.3d 657,

664 (Tex. Crim. App. 2006) The record shows that appellant acknowledged both

 orally and in writing that she was aware of the consequences of entering a plea of

 guilty. (State’s Exhibit one, RR Vol. 2 p. 5-8) Appellant acknowledged that she

 understood the consequences of her plea of guilty. (RR Vol. 2 p. 4) During the

  plea hearing the appellant was asked if the plea if she was guilty and was it the

truth and she answered yes. (RR Vol. 2 p. 6) In addition, appellant stated her plea

 was free and voluntary and that she was mentally competent to enter her plea and

was not claiming the defense of insanity or involuntariness. (RR Vol. 2 p. 5, 6) The

trial court additionally explained to the appellant after questioning the appellant by

         admonishing her of the process of sentencing. (RR Vol. 2 p. 7-9)

Having reviewed the entire record, appellate counsel does not find appellant’s plea

of guilty was involuntary. . The record shows the trial court advised appellant what

could occur if the trial court accepted her plea of guilty to the two counts contained

                         in the indictment. (RR Vol. 2 p.4)


            The Court: Ms. Jenkins, in this case, as you are well aware,
             you’ve been indicted by the Grand Jury with two felony
           accounts of injury to a child. These are third degree offenses
            which if found guilty the punishment range will be no less
          than two years and no greater than ten years in the penitentiary
            and a find not to exceed $ 10,000. Do you understand that?

                                         16.
                             The Defendant: Yes, sir.

Appellant signed State’s exhibit one stipulating to her guilt and the waiver of her

 rights. (CR p. 56-59; RR Vol. 2 p. 8-10) Appellate counsel believes the record

establishes that appellant entered a free and voluntary plea of guilty after proper

admonishment by the trial court. In addition, appellant testified in punishment on

                         that she committed the offenses.


            Q; And May 20th, 2014 you entered a plea of guilty to the
                             charges in this case:

                          A: Yes, sir. (RR Vol. 5 p. 96)

                      Q: You admitted guilt in this, correct?
                                A: Yes, sir.

                       Q: You know you made a mistake?
                  A: I made a huge mistake. (RR Vol. 5 p. 97)

            Q: And with counseling you understand what remorse is?
                           A: Yes, sir, I understand.
                   Q: And you’re sorry that it’s happened?
            A: I’m sorry every day I wake up. (RR Vol. 2 p. 97-98)


             A: I felt that’s the way I was supposed to discipline my
           children because that’s how I was disciplined but now I do
         realize that it wasn’t right then and it wasn’t right when I did it
            and I want… I’m not going to do it anymore. I’m going to
         make that change. I’m not going to keep that cycle. (RR Vol. 2
                                        p. 100)

                   Q. What have you learned from all of this?

                                        17.
          A. What I’ve learned from all of this is if I’m not good I can’t
               be any good to my children. I learned that just because
           something happened with me doesn’t make it right for me to
             raise my children that way. I’ve learned that I have to take
           responsibility for my actions. And then I’ve learned that this
          cycle has to be broken. I didn’t realize it then. I didn’t know. I
            really didn’t know the severity of this until I started talking
           and releasing things and I’ve learned that I’m going to break
             that cycle because I do not want my children to have to go
            through anything like this again and I want to be better so I
          can be a better parent for them whenever I can see than again.
              I want to be a better person and be a better mother so I’ll
            never, ever this life mistake ever again. (RR Vol. 2 p. 107)

 The appellant admitted when first questioned she did not realize the extent of the

  injury to each child by the use of a belt and cord. (RR Vol. 2 p. 115-116) The

    appellant lastly expressed her sorrow for her actions and her desire that her

  children know her sorrow for the acts she committed. (RR Vol. 2 p. 126-128)


                                             3.


        Is there error in the admission of State’s exhibit one through thirteen
                 four including any error regarding trial objections?

    Only thirteen exhibits were offered at the plea and sentencing hearing. No

objections were made to any of the exhibits offered by the State. (RR Vol. 2 p. 10)

State’s exhibits 2-13 were admitted without objection at the sentencing. (RR Vol. 4

 p. 37) Defense counsel objected to the State asking Ms. Lamb the mother of the


                                            18.
  appellant, if one of the children “responded in a positive or negative way to not

having contact with their mother. (RR Vol. 4 p. 73) After discussion and further

 questioning the objection was not continued by defense counsel to obtain a ruling

   from the court. (RR Vol. 4 p. 73-74) A State objection to questioning by the

  defense counsel on the number of men Ms. Lamb had lived with was overruled

 after discussion. (RR vol. 4 p. 78-80) A second objection by the State as to Ms.

Lamb regarding a question calling for speculation was not pursued. (RR Vol. 4 p.

87) Defense counsel objected to Nicole Yarbrough testifying on behalf of the State

   as the rule had been invoked and the witness had been in the courtroom. The

   objection was sustained by the trial court. (RR Vol. 4 p. 120-122) Appellant

 counsel found no other instances of objection in the record. Generally it is held

that a timely objection must be made in order to preserve an error in the admission

of evidence. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995) After

review of the above objections appellant counsel only finds one objection that was

not ruled upon by the trial court that defense counsel made as the objection was not

  pursued by defense counsel as the State altered the questioning. There being no

  basis for arguing an erroneous admission of either State’s exhibit one through

 thirteen nor to the pre- sentence investigation report- appellate counsel does not

reach an issue of whether the substantial rights of the appellant was disregarded. In


                                        19.
viewing the trial court’s decision to admit or exclude evidence and whether there

was an abuse of discretion it is generally been determined that the trial court is in

 the best position to decide questions of admissibility, and will be upheld if a trial

  court's decision to admit or exclude evidence is "within the zone of reasonable

disagreement when reviewed under an abuse of discretion standard. See Rodriguez

v. State, 203 S.W.3d 837, 841 (Tex. Crim. App.2006); Montgomery v. State, 810

S.W.2d 372, 390-91 (Tex. Crim. App.1990). Appeal counsel believes there was no

preserved error regarding any of the exhibits or the objections by defense counsel.

   As such appeal counsel finds no harm in relation to the record to subvert the

 substantial right of the appellant to require a reversal of the trial courts sentence.

                                          4.

   Was the trial court’s sentencing of one hundred and fourteen months a
    disproportionate sentence in violation of the Eighth Amendment and
   Fourteenth Amendments to the United States Constitution? (U.S. Const.
                    Amend. VIII; U.S. Const. Amend. XIV.)

        The sentence of one hundred fourteen months in the ID-TDCJ was within

   the penalty range of two to ten years, for a third degree felony in the State of

   Texas. In this matter there was no objection to the trial court concerning the

    sentence. There was no allegation or complaint that the sentence is grossly

disproportionate, constituting cruel and unusual punishment, and as such the error


                                          20.
  if any was not preserved for review. See, Tex .R. App. P. 33.1(a); Rhoades v.

 State, 934 S.W.2d 113, 119-20 (Tex. Crim. App. 1996). (RR Vol. 4 p. 123-125)

The trial court explained his rationale for the sentenced assessed. Here, after the

 trial court announced its sentence at the punishment hearing, appellant made no

  objection to the trial court about the punishment assessed and did not assert her

 claim under the Eighth Amendment and the Texas Constitution in the trial court.

    (RR Vol. 4 p. 125) The appellant was allowed to address the trial court and

   expressed her sorrow and accepted responsibility for her actions. She further

 explained her goal to overcome her experience with her mother and her children.

 (RR Vol. 4 p. 126-128) The trial court explained that it gave due consideration to


the facts of the case in regard to punishment. (RR Vol. 4 p. 129-130) As such, the

punishment of one hundred fourteen months falls within the range set forth by the

Texas Legislature. Therefore, the punishment is not prohibited as cruel, unusual, or

 excessive per se. Harris v. State, 656 S.W. 2d 481, 486 (Tex. Crim. App. 1983);

  Jordan v. State, 495 S.W. 2d 949, 952 (Tex. Crim. App. 1973) Appeal counsel

 believes appellant has waived her cruel and unusual punishment complaint. See

Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999) There is no evidence that

   the appellant‘s sentencing process did not provide fundamental fairness. U.S.


                                            21.
 Const., Amend XIV. Euler v. State, 158 S.W. 3d 88, 91 (Tex. Crim. App. 2007)

  Fundamental fairness requires that an accused receive a fair trial. In the instant

    matter, the appellant’s testified to what she believed to explain the cycle of

violence that resulted in injury to her children and the history of the appellant was

reviewed regarding the CPS case by the witness Johnny Weismuller. (RR Vol. 4 p.

  10-19) Further the court reviewed records of CPS provided in regard to the PSI

  report. (RR Vol. 4 p. 122-123) In addition the appellant testified to her social,

             criminal and rehabilitative history as reflected previously.


                                          5.

                    Was trial counsel’s representation ineffective?

      The standard promulgated in Strickland v. Washington, 466 U.S. 668, 104 S.

   Ct. 2052, 80 L. Ed. 674 (1984) requires a two step analysis. First it requires a

demonstration that trial counsel’s representation fell below an objective standard of

 reasonableness under prevailing professional norms. To satisfy this requirement

 appellant must identify the acts or omissions of counsel alleged to be ineffective

  assistance and affirmatively prove that they fell below the professional norm of

reasonableness. McFarland v. State, 928 S.W. 2d 482, 500 (Tex. Crim. App. 1996)

   This Honorable court then will judge a claim of ineffectiveness based on the

 totality of the representation. Strickland, supra, 466 U.S. at 695-96, 104 S. Ct. at

                                               22.
 2069. The presumption is that trial counsel was effective. See, Jackson v. State,

 877 S.W.2d 768,771 (Tex. Crim. App. 1994). Trial counsel did present evidence

 through the appellant’s testimony. Trial counsel cross-examined each witness in

detail concerning the appellant’s cycle she stated she was attempting to overcome.

 (RR Vol. 4 p. 37-46, 49-51, 55-57, 77-87) The appellant was able to present her

 reasoning for her behavior and her request for probation regarding her plans and

  goals. (RR Vol. 4 p. 93-119) Appeal counsel finds no basis to determine trial

counsel’s strategy or to ascertain of what value it might have been to call or not to

 call other witnesses. The appellant’s testimony as set out previously supports the

                facts of the indictment the appellant pled guilty to.

      Appeal counsel does not find support from the record to argue “but for” trial

  counsels decisions in the sentencing hearing there would have been a different

 result. Especially, considering the appellant’s testimony regarding offense. (RR

Vol.2 p. 4, 8-10; RR Vol. 4 p. 96-98,100,107,115-116,126-128) In reviewing the

totality of trial counsel’s representation and presentation of evidence as considered

  above- the record does not present evidence of trial counsel falling below the

 objective standard of reasonableness and professional norms. Strickland, supra.

 Further, appellant counsel does not find a single egregious error or omission that

                                        23.
 will constitute ineffective assistance. Nero v. Blackburn, 597 F.2d 991, 994 (5th

                                     Cir. 1979)

                As such appellate counsel offers this Anders Brief.


                         CONCLUSION AND PRAYER


WHEREFORE, PREMISES CONSIDERED, Appellant’s counsel respectfully

requests, as relief, that he be allowed to withdraw as this appeal is frivolous and so

advise Appellant so that she may pursue a pro se brief if she so desires, or

alternatively to appoint other counsel for Appellant in the prosecution of this

appeal.



                                               Respectfully considered,

                                               /s/John D. Reeves
                                               _______________________
                                               JOHN D. REEVES
                                               Attorney at law
                                               1007 Grant St.
                                               Lufkin, Texas 75901
                                               Phone: (936) 632-1609
                                               Fax: (936) 632-1640
                                               SBOT # 16723000
                                               Email: tessabellus@yahoo.com
                                               ATTORNEY FOR APPELLANT



                                         24.
                     CERTIFICATE OF COMPLIANCE

I John D. Reeves Counsel for appellant hereby certify that this brief exclusive of

the rule provisions that do not provide counting contains 5,226 words.

                                            /s/John D. Reeves
                                            _______________________
                                            John D. Reeves

                         CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing Appellant’s

Brief on 27nd day of February , 2015 been forwarded to the State’s Counsel, Art

Bauereiss, District Attorney of Angelina County, by e-filing.

                                            /s/John D. Reeves
                                            _______________________
                                            John D. Reeves
                                            Attorney for Appellant,
                                            Shadondra Jenkins




                                      25.
