                                                                                  ACCEPTED
                                                                              12-15-00125-CR
                                                                 TWELFTH COURT OF APPEALS
                                                                               TYLER, TEXAS
                                                                          7/8/2015 2:46:19 PM
                                                                                CATHY LUSK
                                                                                       CLERK

                     No. 12-15-00125-CR

                                                             FILED IN
                                                      12th COURT OF APPEALS
          IN THE TWELFTH COURT OF              APPEALS TYLER, TEXAS
                    TYLER, TEXAS                       7/8/2015 2:46:19 PM
                                                           CATHY S. LUSK
                                                               Clerk

                      DAKOTA YATES

                                Appellant,

                               v.

                   THE STATE OF TEXAS

                                    Appellee



On Appeal from the Seventh District Court of Smith County, Texas
                 Trial Cause No. 007-1110-14




          ORAL ARGUMENT NOT REQUESTED


                           Austin Reeve Jackson
                           Texas Bar No. 24046139
                           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:
John Jarvis
326 S. Fannin
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
ISSUE PRESENTED ...................................................................................................... 2
STATEMENT OF FACTS ............................................................................................. 2
PROFESSIONAL EVALUATION OF THE RECORD ................................................ 3
SUMMARY OF THE ARGUMENT ............................................................................. 3
ARGUMENT .................................................................................................................. 4

    I.      THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN
            REVOKING APELLANT'S COMMUNITY SUPERVISION .................. 4
     Standard of Review ................................................................................................... 4
     A. There was Legally Sufficient Evidence to Support the Revocation ................... 5
          1. The Plea ......................................................................................................... 6
          2. Sufficiency of the Evidence ........................................................................... 6
     B. Appellant's Setence was Within the Statutory Range of Punishment ................. 7
     C. Appellant Received Effective Assistance of Counsel ......................................... 9

CONCLUSION AND PRAYER .................................................................................. 10
CERTIFICATE OF SERVICE ..................................................................................... 11
CERTIFICATE OF COUNSEL ................................................................................... 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

Robinson v. California,
 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) ..................................... 7

Solem v. Helm,
 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) ................................. 8

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


TEXAS COURT OF CRIMINAL APPEALS:

Aguirre-Mata v. State,
 125 S.W.3d 473 (Tex.Crim.App. 2003) ........................................................ 6

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) ........................................................ 6

Cole v. State,
 578 S.W.2d 127 (Tex.Crim.App. 1979) ........................................................ 7

Ex parte Brown,
 158 S.W.3d 449 (Tex.Crim.App. 2005) ........................................................ 9

Ex parte Jones,
 440 S.W.3d 628 (Tex.Crim.App. 2014) ........................................................ 8

Garcia v. State,
 57 S.W.3d 436 (Tex.Crim.App. 2001) ......................................................... 10


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

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

Jackson v. State,
  877 S.W.2d 768 (Tex.Crim.App. 1994) ....................................................... 10

Jordan v. State,
  495 S.W.2d 949 (Tex.Crim.App. 1973) ....................................................... 8

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

Mendez v. State,
 138 S.W.3d 334 (Tex.Crim.App. 2004) ........................................................ 6

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

Moore v. State,
 605 S.W.2d 924 (Tex.Crim.App. 1980) ........................................................ 7

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

Moses v. State,
 590 S.W.2d 469 (Tex.Crim.App. 1979) ....................................................... 7 n.1

Rhoades 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

Thompson v. State,
 9 S.W.3d 808 (Tex.Crim.App. 1999) ........................................................... 10

                                                    v
TEXAS COURTS OF APPEAL:

Bolden v. State,
 73 S.W.3d 428 (Tex.App.—Houston [1st Dist.] 2002) ................................. 8

Brooks v. State,
 995 S.W.2d 762 (Tex.App.—San Antonio 1999).......................................... 7

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

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) ......................................... 4, 5, 7

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

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

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

Noland v. State,
 264 S.W.3d 144 (Tex.App.—Houston [1st Dist.] 2007) .............................. 8

Roman v. State,
 145 S.W.3d 316 (Tex.App.—Houston [14th Dist.] 2004) ............................. 9

Sims v. State,
  326 S.W.3d 707 (Tex.App.—Texarkana 2010) ............................................. 6

Trevino v. State,
 174 S.W.3d 925 (Tex.App.—Corpus Christi 2005) ...................................... 8

                                                 vi
STATUTES AND OTHER CONSTITUTIONAL PROVISIONS:

TEX. PEN. CODE § 12.33 .................................................................................... 8

TEX. PEN. CODE § 22.02 .................................................................................... 8

TEX. R. APP. P. 33.1 .......................................................................................... 6, 8

U.S. CONST. AMEND. VIII ................................................................................. 7

U.S. CONST. AMEND. XIV ................................................................................. 7




                                                            vii
                             No. 12-15-00125-CR


                    IN THE TWELFTH COURT OF APPEALS
                              TYLER, TEXAS


                              DAKOTA YATES

                                         Appellant,

                                       v.

                           THE STATE OF TEXAS

                                            Appellee



       On Appeal from the Seventh District Court of Smith County, Texas
                        Trial Cause No. 007-1110-14




TO THE HONORABLE JUSTICES OF THE COURT:

      COMES NOW, Austin Reeve Jackson, attorney for Dakota Yates and files

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

Court as follows:
                         STATEMENT OF THE CASE

      Dakota Yates seeks to appeal his conviction and sentence for the offense of

aggravated assault. (I CR 93). After pleading “guilty” to this offense, Mr. Yates

was placed on ten years’ deferred adjudication community supervision in the Sev-

enth District Court of Smith County. (I CR 50). In May of this year that probation

was revoked and sentence imposed at ten years’ confinement. (I CR 93). Sentence

was pronounced on 1 May and notice of appeal then timely filed. (I CR 93, 96).

                              ISSUE PRESENTED

      THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN
      REVOKING APPELLANT’S COMMUNITY SUPERVISION.

                           STATEMENT OF FACTS

      After being indicted for the instant offense of aggravated assault, Appellant,

Mr. Dakota Yates, entered a plea of “guilty” before the Seventh District Court of

Smith County. (I CR 3, 50). At that time, the trial court deferred making any find-

ing of guilt and placed Mr. Yates on ten years’ deferred adjudication community

supervision to commence on 25 November 2014. (I CR 50).

      Unfortunately, just three months later the State filed an application to pro-

ceed to final adjudication alleging that Mr. Yates had committed multiple viola-

tions of the terms and conditions of his probation. (I CR 60). To the majority of

the allegations made against him, Mr. Yates entered pleas of “true.” (I CR 83).

After finding that Mr. Yates had, in fact, violated the terms of his probation, the

                                         2
trial court adjudicated guilt, revoked the term of probation, and imposed punish-

ment at ten years’ confinement. (I CR 93). Sentence was pronounced on 1 May

and notice of appeal then timely filed. (I CR 93, 96).

            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 is required to present a profes-

sional evaluation 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 THE 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-

ed for the Court.




                                         3
                                  ARGUMENT

      Standard of Review

      Where a trial court revokes a previously imposed term of community super-

vision the decision to do so 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). This review considers the record in the light most favora-

ble to the trial court’s decision. Duke v. State, 2 S.W.3d 512, 515 (Tex.App.—San

Antonio 1999, no pet.).

      Proof of even a single violation is sufficient to support a revocation. Can-

seco v. State, 199 S.W.3d 437, 439 (Tex.App.—Houston [1st Dist.] 2006, pet.

ref’d). Therefore, in order to prevail an appellant must show that taking the evi-

dence in the light most favorable to the court’s decision there is insufficient evi-

dence to support each and every 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.). Additionally, a plea of true,

standing alone, is sufficient to support a trial court’s revocation of community su-

pervision. See Hays v. State, 933 S.W.2d 659, 661 (Tex.App.—San Antonio 1996,




                                         4
no pet.) (holding that a plea of “true” to any violation can by itself support a revo-

cation).

             THE TRIAL COURT ACTED WITHIN ITS DISCRE-
             TION IN REVOKING APPELLANT’S COMMUNITY
             SUPERVISION.

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

      By way of a written motion to proceed to final adjudication, Mr. Yates was

alleged to have violated the terms of his community supervision. (I CR 68). The

application included the following allegations:

Application Paragraph      Allegation
            I              Identity of Defendant
           II              Use of Alcohol
          III              Use of Marijuana
          IV               Failure to Pay for Urinalysis
           V               (Abandoned by State at Trial)
          VI               Failure to Perform Community Service
        VII-IX             Failure to Pay Various Fees and Costs
           X               Failure to Report
          XI               (Abandoned by State at Trial)
          XII              Failure to Complete Anger Management Class

(I CR 68-73; IV RR 15). To all the paragraphs that were not abandoned pleas of

“true” were entered. (I CR 83). Thus, if the pleas of “true” were entered freely,

knowingly, and voluntarily, the trial court had sufficient evidence to revoke Mr.

Yates’ community supervision. Hays, 933 S.W.2d at 661.




                                          5
      1. The Plea

      Before accepting his plea, the trial court advised Mr. Yates as to the conse-

quences of entering his plea, including the potential range of punishment, and also

advised him of his right to remain silent and his right to have a hearing on the alle-

gations at issue. (IV RR 6-14). After having been so advised, Mr. Yates persisted

in his desire to enter pleas of “true” and gave no indication that he was doing so

involuntarily. (Id.); see Sims v. State, 326 S.W.3d 707, 713 (Tex.App.—Texarkana

2010, pet. struck) (citing Mendez v. State, 138 S.W.3d 334, 350 (Tex.Crim.App.

2004)) (holding that challenges to the voluntariness of a plea must be raised before

the trial court in order to preserve the error for appeal); see also TEX. R. APP. PROC.

33.1(a)(1). Finally, could any error be advanced regarding the trial court’s admon-

ishments, such error would be non-constitutional error subject to a harm analysis

and, given the record before the Court, Mr. Yates could not meet that burden in

this case. See Aguirre-Mata v. State, 125 S.W.3d 473, 474-76 (Tex.Crim.App.

2003).

      2. Sufficiency of the Evidence

      The State must prove allegations in a revocation setting by a preponderance

of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). Evi-

dence, therefore, is sufficient if an analysis of its comparative weight tends to sup-

port the trial court’s conclusion that at least one condition of probation was violat-



                                          6
ed. See Rickels, 202 S.W.3d at 764 (holding that evidence is sufficient to support a

revocation where the greater weight of the credible evidence before the court sup-

ports a reasonable belief that a condition of probation has been violated). Moreo-

ver, a plea of true, standing alone, is sufficient to support a trial court’s revocation

of community supervision. See Hays v. State, 933 S.W.2d 659, 661 (Tex.App.—

San Antonio 1996, no pet.) (holding that a plea of “true” to any violation can by

itself support a revocation). Thus, where the Court finds that a voluntary plea of

true was entered, as was the case here, the evidence is legally sufficient to support

the revocation. (V RR 14); Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App.

1980); Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. 1979); Brooks v. State,

995 S.W.2d 762, 763 (Tex.App.—San Antonio 1999, no pet.).1

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

       The Eighth Amendment prohibits the imposition of “cruel and unusual pun-

ishment.” U.S. CONST. AMEND. VIII. The Eighth Amendment is applicable to the

states through the Fourteenth Amendment. U.S. CONST. AMEND. XIV; Robinson v.

California, 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).




1
  The record also contains a written stipulation of evidence, signed by Mr. Yates, offered and ac-
cepted by the court at trial, and admitting to the truth of the allegations made against him. (I CR
83; IV RR 16). Such a written stipulation is, likewise, sufficient to support the trial court’s deci-
sion. See Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979) (a plea of true and written
stipulation is sufficient to support revocation).

                                                 7
      Here, neither Mr. Yates nor his trial counsel raised the issue of cruel or ex-

cessive punishment at the time sentence was imposed and, therefore, this issue has

likely been waived on appeal. See TEX. R. APP. PROC. 33.1(a)(1)(A); Rhoades v.

State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Noland v. State, 264 S.W.3d

144, 151-52 (Tex.App.—Houston [1st Dist.] 2007, pet. ref’d); Castaneda v. State,

135 S.W.3d 719, 723 (Tex.App.—Dallas 2003, no pet.); but see Solem v. Helm,

463 U.S. 277, 288, 103 S.Ct. 3001, 3008-09, 77 L.Ed.2d 637 (1983) (noting excep-

tion to this general rule if sentence assessed is grossly disproportionate to the

crime). Additionally, the sentence imposed of ten years’ confinement was within

the statutory punishment range for the offense and is, consequently, virtually pre-

sumed not to be constitutionally cruel and unusual. Jordan v. State, 495 S.W.2d

949, 952 (Tex.Crim.App. 1973); Trevino v. State, 174 S.W.3d 925, 928

(Tex.App.—Corpus Christi 2005, pet. ref’d); see also TEX. PEN. CODE § 22.02 (de-

fining assault, as alleged, as a second degree felony); TEX. PEN CODE § 12.33 (pun-

ishment range for a second degree felony). Further, that Mr. Yates was sentenced

below the maximum possible twenty-year sentence is also a factor indicating that

the sentence was not excessive or cruel. Bolden v. State, 73 S.W.3d 428, 434

(Tex.App.—Houston [1st Dist.] 2002, pet. ref’d).




                                         8
      Finally, due process requires that the trial court consider the full range of

punishment for an offense and weigh both mitigating and incriminating evidence in

the assessment of sentence.           Ex parte Brown, 158 S.W.3d 449, 454

(Tex.Crim.App. 2005). In the absence of a clear showing to the contrary, on ap-

peal the Court will presume that the trial court did not act arbitrarily and consid-

ered all of the evidence before it.        Roman v. State, 145 S.W.3d 316, 319

(Tex.App.—Houston [14th Dist.] 2004, pet. ref’d). Given the record before the

Court, this presumption cannot be overcome on direct appeal.

      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-

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).



                                           9
      With this standard in mind, a comprehensive review of the record has been

made of the proceedings including pretrial matters, Mr. Yates’ original plea, the

revocation hearing, and the arguments of counsel. Here, that review fails to shows,

given the totality of the representation provided by trial counsel, any basis from

which to argue that ineffective assistance was rendered. See, e.g., Garcia v. State,

57 S.W.3d 436, 440 (Tex.Crim.App. 2001); Thompson v. State, 9 S.W.3d 808, 812

(Tex.Crim.App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.

1994).

                        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. Yates 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 on this the 8th day of July 2015.



                                              /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

consists of 2,279 words.

                                               /s/ Austin Reeve Jackson




                                          12
