                                                                                           ACCEPTED
                                                                                      12-14-00245-CR
                                                                          TWELFTH COURT OF APPEALS
                                                                                       TYLER, TEXAS
                                                                                 1/12/2015 1:43:29 PM
                                                                                         CATHY LUSK
                                                                                               CLERK


                             NO. 12-14-00245-CR

                                                                    FILED IN
                         IN THE COURT OF APPEALS             12th COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                             1/12/2015 1:43:29 PM
                  TWELFTH COURT OF APPEALS            DISTRICT CATHY S. LUSK
                                                                      Clerk

                                 TYLER, TEXAS
  ______________________________________________________________________________

                              JUSTIN CHRISTIAN
                                  Appellant

                                        V.

                               STATE OF TEXAS
                                      State
 _______________________________________________________________________________

                             BRIEF OF APPELLANT,
                              JUSTIN CHRISTIAN
_______________________________________________________________________________

                                             LAW OFFICE OF ALLEN W. ROSS
                                             P.O. BOX 528
                                             JACKSONVILLE, TEXAS 75766
                                             TELEPHONE: (903) 589.7852
                                             TELEFAX: (903) 357.4375

ORAL ARGUMENT NOT REQUESTED:

                                             ____________________________________
                                             ALLEN W. ROSS
                                             State Bar No. 00788324
                                             ATTORNEY FOR APPELLANT
                                              TABLE OF CONTENTS



NAMES OF ALL PARTIES ......................................................................................................... i
INDEX OF AUTHORITIES ........................................................................................................ ii
INDEX OF ABBREVIATIONS .................................................................................................. ii
PRELIMINARY STATEMENT OF THE NATURE OF THE CASE .................................... 3
STATEMENT OF POINTS OF ERROR .................................................................................. 5
STATEMENT OF FACTS ........................................................................................................... 5
BRIEF OF THE ARGUMENT .................................................................................................... 6
ARGUMENT AND AUTHORITY ........................................................................................... 6
PRAYER FOR RELIEF .............................................................................................................. 15
CERTIFICATE OF SERVICE ................................................................................................... 16
CERTIFICATE OF WORD COUNT...................................................................................... 17
                         NAMES OF ALL PARTIES


The parties to this action are:

Appellant
JUSTIN CHRISTIAN
TDCJ-ID #01951215
Bradshaw State Jail
PO Box 9000
Henderson, TX 75693

Appellant’s Counsel
ALLEN W. ROSS
Attorney at Law
PO Box 528
Jacksonville, TX 75766

State of Texas
RACHEL PATTON
Cherokee County District Attorney
West 6th Street
Rusk, Texas 75785

The parties' counsel before the Trial Court:

Appellant                               State of Texas
STEN LANGSJOEN                          RACHEL PATTON
Attorney at Law                         Cherokee County District Attorney
PO Box 539                              West 6th Street
Tyler, TX 75710-0539                    Rusk, Texas 75785




Page i
                                               INDEX OF AUTHORITIES


Cases
Andres v. California, 386 U.S. 738 (1967) ......................................................................... 5
Bennett v. State, 282 (Tex.Crim.App.1972) .................................................................. 12
Cardona v. State, 493-94 (Tex.Crim.App.1984) ......................................................... 12
Cobb v. State, 874 (Tex.Crim.App.1993) ....................................................................... 13
Ex Parte Bratchett, 513 S.W. 2d 851, 853 (Tex. Crim. App. 1974) ......................... 12
Gainous v. State of Texas, 436 S.W.2d 137 (Tex. Crim. App. 1969) ......................... 5
Garrett v. State, 174 (Tex.Crim.App. [Panel Op.] 1981) .......................................... 13
Jenkins v. State, 437 (Tex.Crim.App.1983) ................................................................... 12
Langford v. State, 739 (Tex.Crim.App.1979) ............................................................... 13
Ross v. State, 403 (Tex.Crim.App.1975) ........................................................................ 13
Saxton v. State, 912 n. 3 (Tex.Crim.App.1991) ........................................................... 13
Taylor v. State, 179 (Tex.Crim.App. [Panel Op.] 1980)............................................ 13
Wilson v. State, , 934 (Tex.App.--Dallas 1983, no pet.) .......................................... 12
Statutes
Tex. Code Crim. Proc., Art 1.141 ........................................................................................ 6
Tex. Code Crim. Proc., Art 21.21 ........................................................................................ 6
Tex. Code Crim. Proc., Art 21.22 ........................................................................................ 6
Tex. Code Crim. Proc., Art. 42.01........................................................................................ 8
Tex. Penal Code, §12.34 ........................................................................................................ 7
Tex. Penal Code, §22.01(b)2)(B) ......................................................................................... 6




                                            INDEX OF ABBREVIATIONS

Clerk’s Record .............................................................................................................................CR

Reporter’s Record ..................................................................................................................... RR




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                            NO. 12-14-00245-CR

                         IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                 TYLER, TEXAS

  ______________________________________________________________________________

                             JUSTIN CHRISTIAN
                                 Appellant

                                       V.

                               STATE OF TEXAS
                                   State

 _______________________________________________________________________________

                            BRIEF OF APPELLANT,
                             JUSTIN CHRISTIAN


TO THE HONORABLE JUSTICES OF SAID COURT:

         NOW COMES JUSTIN CHRISTIAN, Appellant in the above-styled and

numbered cause and Appellant in the Trial Court, and, by and through

appointed Counsel, files this his Brief of Appellant and respectfully reports to

the Twelfth Court of Appeals that no errors were found to have been




Page 1
committed by the Trial Court relating to pretrial and evidentiary rulings during

trial in Cause Number 19062 in the 369th Judicial District Court of Cherokee

County, Texas, before the Honorable Judge Bascom Bentley, Judge Presiding.

         Following a review of the pre-trial proceedings, trial and judgment, no

error, that was more than harmless error, was found that could be presented

for review to the appellate court, and therefore, appointed counsel seeks to

withdraw here-from and has invited response hereto from the Appellant.




Page 2
          PRELIMINARY STATEMENT OF THE NATURE OF THE CASE

         The following dates are applicable to the case history in this matter:

         On February 14, 2014, the State of Texas filed an information alleging

the offense of Assault Family Violence – Impeding Breath a 3rd degree felony.

Said offense was assigned the trial cause number 19062 (CR: pg. 5-6).

         On February 18, 2014 Appellant, represented by counsel, waived

indictment, to the felony offense of Assault Family Violence – Impeding

Breath (CR: pg. 4).

         Further, On February 18, 2014, Appellant and his trial counsel entered

into a plea recommendation where by the Appellant was sentenced to ten

(10) years in the Texas Department of Criminal Justice with said sentence

being suspended and probated for a period of seven (7) years (CR: pg. 7-8).

         On February 18, 2014, the trial court certified that the Appellant did not

have a right to an appeal because Appellant did waive his right to appeal

concerning all issues which occurred at his plea hearing (CR: pg. 9-10).




Page 3
         At the conclusion of the plea hearing, the trial court entered judgment

in conformity with the plea agreement (CR: pg. 11-12), and did further enter

an Order Imposing Conditions of Community Supervision (CR: pg. 13-17).

         On May 29, 2014, the State of Texas (Appellee herein), filed a Motion to

Revoke Community Supervision alleging that the Appellant had violated his

community supervision on thirty-one (31) occasions, and the trial court

issued a capias for the arrest of the Appellant (CR: 24-38).

         On June 24, 2014, Appellant was arrested on the capias of the trial court

(CR: pg. 39).

         On June 26, 2014, the Honorable Sten Langsjoen, Attorney at Law, was

appointed as trial counsel for the Appellant (CR: pg. 40).

         On August 8, 2014 a hearing was held in the 369th Judicial District Court

with the Honorable Bascom Bentley, III., presiding (CR: pg. 45-46; RR. Vol. II).

At the conclusion of the hearing, the probation of the Appellant was revoked

by the trial court and the Appellant was sentenced to ten (10) years in the

Texas Department of Criminal Justice, Institutional Division (CR: pg. 45-46;

RR. Vol II, pg. 126).




Page 4
         On August 26, 2014, Appellant filed his notice of appeal. (CR: pg. 49).



                       STATEMENT OF POINTS OF ERROR

         No points of error were identified following review of the record, and this

Brief is submitted in compliance with the tenants of Andres v. California, 386

U.S. 738 (1967) and Gainous v. State of Texas, 436 S.W.2d 137 (Tex. Crim. App.

1969).



                              STATEMENT OF FACTS

         On August 8, 2014, a hearing was conducted to determine whether or

not the Appellant had violated the terms and conditions of this community

supervision. At the conclusion of the hearing, the trial court did find that some

but not all of the terms of community supervision had, in fact, been violated.

The trial court revoked the community supervision of the Appellant and

sentenced him to ten (10) years imprisonment (CR: pg. 45-46; RR. Vol II, pg.

126).




Page 5
                           BRIEF OF THE ARGUMENT

         Following a review of the entire record, no error, that was more than

harmless error, was found that could be presented for review to the appellate

court, and therefore, appointed counsel seeks to withdraw here-from and has

invited response hereto from the Appellant.



                         ARGUMENT AND AUTHORITY

Waiver of Grand Jury & Indictment:

         Appellant waived indictment on February 18, 2014 (CR: pg 4). Tex. Code

Crim. Proc., Art 1.141. The waiver appears to be valid on its face and purports

to bear the signature of the Appellant and his counsel at trial.

         The information appears to be based upon a valid complaint and

carries the signature of the affiant, Lois Garner and is sworn to before a

Notary Public of the Texas of Texas whose notary commission appears to be

valid (CR: pg. 5). Tex. Code Crim. Proc., Art 21.22. Further, the information

appears to be valid upon its face. Tex. Code Crim. Proc., Art 21.21. The

language of the information is consistent with the offense alleged in the

Texas Penal Code. Tex. Penal Code, §22.01(b)2)(B).


Page 6
         No challenged was made to the form or the substance of the

information leaving no matter to appeal.

Original Sentence of the Trial Court

         The original sentence of ten (10) years is within the range of

punishment for a third degree felony. Texas Penal Code, §12.34.

         The suspension of sentence for this offense was within the discretion

of the trial court and not otherwise prohibited by law.

         The trial court followed the plea recommendation made by the

Appellant and the Appellee.

Revocation Pre-Trial Motions

         No pretrial motions were filed on behalf of Appellant. The record

contains no rulings on any motions and the reporter’s record does not reflect

that any motions were presented to or ruled on by the Trial Court. Nothing,

therefore, is preserved for review.

Hearing on Motion to Revoke Probation:

         On August 8, 2014, a hearing was held concerning the Appellee’s

Motion to Revoke Community Supervision. At this hearing, Appellant was




Page 7
represented by counsel who called witnesses in defense of the motion.

However, at the conclusion, the trial court found that allegations 5-22 of the

State’s Motion to Revoke Probation were proven and that the Appellant had

violated his community supervision. The trial court revoked the probation of

the Appellant.

Judgment:

         The review of the judgments in this cause (CR. Pg. 11-12; 45-46), reveals

that both judgments appear to be facially valid. Tex. Code Crim. Proc., Art.

42.01.

Motion to Revoke Hearing:

         Because the trial court found allegations 5 through 22 to have been

proven by the State, this brief will only review the factual issues as presented

by the State in the hearing on the motion to revoke relevant to those

allegations.




Page 8
         The State of Texas relied upon the following witnesses:

(1)      Simone Silvers who testified to the following:

 Topic of Testimony                                   RR Vol II, Page    Line
 She is the probation officer assigned to the
                                                                   4    14-17
 Appellant (JC)
 JC was placed on probation on Feb 18, 2014                        4    23-25
                                                                   5        1
 She read the terms and condition of
                                                                   5      7-8
 probation to JC on Feb 18, 2014
 She met with him one time on March 18,
                                                                   4    18-20
 2014 for a regular office visit
 On March 18, 2014 JC was drug tested and
                                                                    6    1-18
 acknowledged by written instrument that he
                                                                    7    1-17
 had used various illegal drugs since being
                                                                   18    8-15
 placed on probation (State’s exhibit 1)
 JC admitted to using illegal drugs on March
                                                                   7    20-24
 12, 2014
 JC did not report on April 14, 2014                               8     6-11
 That although she had telephone contact
                                                                    9    6-18
 with JC, he did report again (for April and
                                                                   21   11-13
 May)
 During a telephone call in May 2014, JC
 admitted that he was selling drugs out of a                       11   22-25
 hotel room.
 JC did not complete an Anger Management
                                                                   15     1-9
 Class




Page 9
      The Appellant called himself to testify at the hearing and he testified

to the following:

Topic of Testimony                                    RR Vol II, Page        Line
The information contained in State’s exhibit 1
                                                                   96         1-3
concerning his admitted drug use was true.
The allegations concerning his sale of drugs                       96       8-25
From Feb 2014 through May 14 were true                             97        1-6
While on probation he was using and selling                       105      22-25
drugs.                                                            106        1-5




      Following presentation of evidence and argument of counsel, the court

found the Appellant had violated allegations 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16,

17, 18, 19, 20 (RR: Vol. 2, pg. 123, Ln. 10-15). A review of the evidence reflects

that the State presented sufficient evidence on the allegations found to be true

to support the Trial Court’s findings. No error was found for review.

Punishment Phase:

      The court offered both the Appellant and Appellee the opportunity to

put on more evidence concerning punishment, but each declined (RR. Vol. 2,

pg. 124, Ln. 14-19).




Page 10
        The sentence imposed was within the range available to the Trial Court

and was supported by the evidence. There is no error available to the Court

for review.

Assistance of Counsel:

        Appellant was appointed counsel on May 16, 2013. CR, at p. 8.

        At all times during the proceedings, Appellant had the benefit of counsel.

        The Motion to Revoke appears valid on its face. No objections were

lodged as to its contents. No error is preserved for review.

        Appellant’s counsel participated in all aspects of the hearing from

opening and closing statements to bench conferences. The Reporter’s Record

is replete with instances of appellant’s counsel conducting direct and cross

examination of witnesses, objections (RR: Vol. 2). Appellant’s counsel argued

evidentiary motions and moved to direct the verdict with regard to certain

allegations not proved when the state rested its case (RR., Vol. 2, pg. 38-41).

Appellant’s trial counsel participated in closing argument. (RR: Vol. 2, pg. 115-

118).




Page 11
      Reviewing the record in its entirety, counsel provided “reasonably

effective assistance” to Appellant (Ex Parte Bratchett, 513 S.W. 2d 851, 853 (Tex.

Crim. App. 1974)), and there does not appear to be grounds for review for

ineffective assistance of counsel.

Standard of Review:

      Probation may be revoked upon a finding that an appellant has

violated the terms of his or her probation. Wilson v. State, 934 (Tex.App.--

Dallas 1983, no pet.).

      Appellate review of a probation revocation proceeding is limited to a

determination of whether the trial court abused its discretion. Bennett v.

State, 282 (Tex.Crim.App.1972); Wilson, 645 S.W.2d at 934. To determine

whether the trial court has abused its discretion, the court must look to

whether the State has met its burden of proof. See Cardona v. State, 493-94

(Tex.Crim.App.1984).

      The State meets its burden when the greater weight of the evidence

before the court creates a reasonable belief that the probationer violated a

condition of probation. Jenkins v. State, 437 (Tex.Crim.App.1983),




Page 12
disapproved       on    other      grounds   by     Saxton   v.   State,   912   n.   3

(Tex.Crim.App.1991). In other words, the State's burden of proof in

a probation revocation hearing is by a preponderance of the evidence. Cobb

v. State, 874 (Tex.Crim.App.1993).

    In revocation proceedings, the trial judge is the sole trier of the facts, the

credibility of the witnesses, and the weight to be given the testimony. Taylor

v. State, 179 (Tex.Crim.App. [Panel Op.] 1980) Ross v. State, 403

(Tex.Crim.App.1975). It is the trial court's duty to judge the credibility of the

witnesses and to determine whether the allegations in the motion to revoke

are true or not. Langford v. State, 739 (Tex.Crim.App.1979). The Appellate

Court      must        therefore      view    the      evidence      presented        at

the revocation proceeding in a light most favorable to the trial court's ruling.

Garrett v. State, 174 (Tex.Crim.App. [Panel Op.] 1981).

Summary:

        Following review and consideration of pre-trial and trial activities

before the Trial Court, there are no points of reversible error found.




Page 13
Notice to Appellant:

      Counsel hereby notifies Appellant that this Brief requests that the

appeal be found to be frivolous and be dismissed. Along with the Brief, a

Motion to Withdraw has been filed requesting permission of the appellate

court for Counsel to withdraw from this case that if granted, would leave

Appellant representing himself as a pro se litigant.

      Counsel further advises Appellant that Appellant has a right to prepare

and file a pro se Brief, meaning that Appellant can prepare and file with the

appellate court his own pro se Brief, under his own signature, pointing out to

the appellate court any errors or problems he sees in the record or any reason

why Appellant feels the appeal is not frivolous.

      Counsel also advises Appellant of Appellant’s right to review the record

before filing a pro se Brief.

      If Appellant desires to file a pro se Brief with the appellate court, then

Appellant should immediately file a Motion for Pro Se Access to the Appellate

Record with the appellate court. In the cover letter used to send Appellant a

copy of this Brief, a form Motion for Pro Se Access to the Appellate Record is




Page 14
enclosed for this purpose. The form motion lacks only Appellant’s signature

and the date, and informs Appellant that, in order to preserve and pursue his

right to review the appellate record, if Appellant chooses to invoke it,

Appellant must sign and date the form motion and send it on to the court of

appeals within ten days of the date of the letter used to send this information

to Appellant.

      Appellant is advised that if he presents a pro Se Brief or Motion for Pro

Se Access to the Appellate Record to the appellate court [Twelfth Court of

Appeals, 1517 West Front Street, Suite 354, Tyler, Texas 75702, Attention:

Cathy Lusk, Clerk], then he must also 1) provide a copy of his Brief to Counsel

[Sten Langsjoen, P.O. Box 539, Tyler, Texas 75710]; 2) provide a copy of his

Brief to the State [Rachel Patton, P.O. Box 450, Rusk, Texas 75785]; and 3)

include in his Brief a written statement (“Certificate of Service”) that he sent

copies of his Brief and/or Motion to Counsel and to the State.



                             PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Counsel for Appellant, JUSTIN

CHRISTIAN, respectfully requests and prays that this matter be considered by


Page 15
the Court and that appointed counsel be allowed to withdraw here-from and

that this appeal be dismissed following the Appellant’s opportunity to respond

hereto; and further, Counsel respectfully requests and prays for any and all

other relief, at law or in equity, to which he may show himself justly entitled.


                                            Respectfully submitted,


                                            ______________________________________
                                            ALLEN W. ROSS
                                            Attorney for Appellant
                                            P.O. Box 528
                                            Jacksonville, Texas 75766
                                            Telephone: (903) 683.2454
                                            Telefax: (866) 576.5317
                                            Email: allen@arossatty.com
                                            TBA # 00788324


                          CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing was delivered by

hand-delivery to the District Attorney, Cherokee County, Texas, and to the

Appellant, on January 12, 2015.

                                            ______________________________________
                                            ALLEN W. ROSS




Page 16
                      CERTIFICATE OF WORD COUNT

I, ALLEN W. ROSS, do hereby certify that the foregoing Appellant’s Brief for
Justin Christian does comply with the requirements for a brief preparation, to-
wit:

FONT & Size:      SEGOE UI, 14 pt
COUNT:            2873 words
                                          ______________________________________
                                          ALLEN W. ROSS




Page 17
