                                                                                  ACCEPTED
                                                                              12-15-00095-CR
                                                                 TWELFTH COURT OF APPEALS
                                                                               TYLER, TEXAS
                                                                         8/31/2015 4:54:59 PM
                                                                                CATHY LUSK
                                                                                       CLERK

                      12-15-00095-CR

                                                            FILED IN
                                                     12th COURT OF APPEALS
         IN THE TWELFTH COURT OF              APPEALS TYLER, TEXAS
                   TYLER, TEXAS                      8/31/2015 4:54:59 PM
                                                          CATHY S. LUSK
                                                              Clerk

              GLYNDA DENISE MORROW

                               Appellant,

                              v.

                  THE STATE OF TEXAS

                                   Appellee



On Appeal from the 114th District Court of Smith County, Texas
                Trial Cause No. 114-1551-14




         ORAL ARGUMENT NOT REQUESTED


                          Austin Reeve Jackson
                          JLawAppeals@gmail.com
                          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:
Melvin Thompson
2108 S. Wall Ave.
Tyler, TX 75701

Attorney for the State on Appeal

Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702




                                            ii
                                           TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS............................................................................................... iii
INDEX OF AUTHORITIES ......................................................................................... iv
STATEMENT OF THE CASE....................................................................................... 2
ISSUES PRESENTED ................................................................................................... 2
STATEMENT OF FACTS ............................................................................................. 2
SUMMARY OF THE ARGUMENT ............................................................................. 4
ARGUMENT .................................................................................................................. 4

    I.      JURISDICTION ............................................................................................. 4

    II.     THERE WERE NO ERRORS IN VOIR DIRE ........................................... 5

    III. THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT
         THE VERDICT .............................................................................................. 6

                  Intoxication ................................................................................................. 7

                  The DPS Blood Test ................................................................................... 7

                  Causation .................................................................................................... 9

    IV. PUNISHMENT ............................................................................................. 12

    V.      EFFECTIVE ASSITANCE OF COUNSEL............................................... 13

CONCLUSION AND PRAYER .................................................................................. 14
CERTIFICATE OF COUNSEL ................................................................................... 15
CERTIFICATE OF SERVICE ..................................................................................... 15
CERTIFICATE OF COMPLIANCE ............................................................................ 16




                                                              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) .................................... 4, 14, 15

Jackson v. Virginia,
  443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) .................................... 6, 11

Missouri v. McNeely,
 ___U.S. ___, 133 S.Ct. 152 (2013) ................................................................ 8

Strickland v. Washington,
  466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1984) .................................. 13


TEXAS COURT OF CRIMINAL APPEALS:

Brooks v. State,
 990 S.W.2d 278 (Tex.Crim.App. 1999) ........................................................ 8

Brooks v. State,
 323 S.W.3d 893 (Tex.Crim.App. 2010) ........................................................ 6

Cain v. State,
 958 S.W.2d 404 (Tex.Crim.App. 1997) ........................................................ 11

Cannon v. State,
 668 S.W.2d 401 (Tex.Crim.App. 1984) ........................................................ 14

Curry v. State,
 30 S.W.3d 394 (Tex.Crim.App. 2000) .......................................................... 9

Dewberry v. State,
 4 S.W.3d 735 (Tex.Crim.App. 1999) ............................................................ 9


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

Gamboa v. State,
 296 S.W.3d 574 (Tex.Crim.App. 2009) ........................................................ 5

Gonzales v. State,
 353 S.W.3d 826 (Tex.Crim.App. 2011) ........................................................ 5

Harris v. State,
 656 S.W.2d 481 (Tex.Crim.App. 1983) ........................................................ 12

Hernandez v. State,
 988 S.W.2d 70 (Tex.Crim.App. 1999) .......................................................... 13

Johnson v. State,
  614 S.W.2d 148 (Tex.Crim.App. 1981) ........................................................ 12

Johnson v. State,
  871 S.W.2d 183 (Tex.Crim.App. 1993) ........................................................ 6

Jones v. State,
  982 S.W.2d 386 (Tex.Crim.App. 1998) ........................................................ 5

Jordan v. State,
  495 S.W.2d 949 (Tex.Crim.App. 1973) ........................................................ 12

King v. State,
 29 S.W.3d 556 (Tex.Crim.App. 2002) .......................................................... 9

Kuciemba v. State,
 310 S.W.3d 460 (Tex.Crim.App. 2010) ........................................................ 11

Miniel v. State,
 831 S.W.2d 310 (Tex.Crim.App. 1992) ........................................................ 13

Moore v. State,
 694 S.W.2d 528 (Tex.Crim.App. 1985) ........................................................ 13

Murray v. State,
 302 S.W.2d 874 (Tex.Crim.App. 2009) ........................................................ 4

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

Rhodes v. State,
 934 S.W.2d 113 (Tex.Crim.App. 1996) ........................................................ 12

Robbins v. State,
 717 S.W.2d 348 (Tex.Crim.App. 1986) ........................................................ 10, 11

Rodriguez v. State,
 899 S.W.2d 658 (Tex.Crim.App. 1995) ........................................................ 14

Stafford v. State,
  813 S.W.2d 503 (Tex.Crim.App. 1991) ........................................................ 14


TEXAS COURTS OF APPEAL:

Aviles v. State,
 443 S.W.3d 291 (Tex.App.—San Antonio 2014).......................................... 8

Beltran v. State,
 99 S.W.3d 807 (Tex.App.—Houston [14th Dist.] 2003) ............................... 5

Castaneda v. State,
 135 S.W.3d 719 (Tex.App.—Dallas 2003) ................................................... 12

Garcia v. State,
 112 S.W.3d 839 (Tex.App.—Houston [14th Dist.] 2003) ............................. 10

Garcia v. State,
 04-14-00002-CR, 2015 WL 5042143 (Tex.App.—San Antonio 2015) ........ 9 n.3

Gentry v. State,
 12-13-00168-CR, 2014 WL 4215544 (Tex.App.—Tyler 2014) ................... 8

Graves v. State,
 176 S.W.3d 422 (Tex.App.—Houston [1st Dist.] 2004) ............................... 12

In re Jarvis,
  431 S.W.3d 129 (Tex.App.—Houston [14th Dist.] 2013) ............................. 8 n.2

                                                   vi
TEXAS COURTS OF APPEAL (CON’T):

Kirk v. State,
 949 S.W.2d 769 (Tex.App.—Dallas 1997) ................................................... 12

Kirsch v. State,
 276 S.W.3d 579 (Tex.App.—Houston [1st dist.] 2008) ................................ 8 n.2

Martinez v. State,
 66 S.W.3d 467 (Tex.App.—Houston [1st Dist.] 2001) ................................. 10, 11

Mays v. State,
 904 S.W.2d 290 (Tex.App.—Fort Worth 1995) ............................................ 4

Railsback v. State,
 95 S.W.3d 473 (Tex.App.—Houston [1st Dist.] 2002) ................................. 9

Wooten v. State,
 267 S.W.3d 289 (Tex.App.—Houston [14th Dist.] 2008) ............................. 9, 10


STATUTES:

TEX. CODE CRIM. PROC. art. 4.05 ...................................................................... 4

TEX. PEN. CODE § 12.33 .................................................................................... 12

TEX. PEN. CODE § 49.08 .................................................................................... passim

TEX. R. APP. P. 33.1 .......................................................................................... 5, 12

TEX. R. APP. P. 44.2 .......................................................................................... 8

TEX. TRANSP. CODE § 724.012.......................................................................... 7




                                                            vii
                                12-15-00095-CR


                  IN THE TWELFTH COURT OF APPEALS
                            TYLER, TEXAS


                        GLYNDA DENISE MORROW

                                       Appellant,

                                      v.

                             THE STATE OF TEXAS

                                           Appellee



        On Appeal from the 114th District Court of Smith County, Texas
                        Trial Cause No. 114-1551-14




TO THE HONORABLE JUSTICES OF THE COURT:

      COMES NOW, Austin Reeve Jackson, attorney for Glynda Morrow, and

files this brief pursuant to the Texas Rules Of Appellate Procedure, and would

show the Court as follows:
                         STATEMENT OF THE CASE

      Glynda Morrow seeks to appeal her conviction and sentence for the offense

of intoxication manslaughter. (I CR 177). Ms. Morrow was indicted for this of-

fense in December of 2014 and in March of this year entered a plea of “not guilty”

and proceed to trial by jury in the 114th District Court of Smith County. (I CR

177). Ultimately, Ms. Morrow was convicted and sentenced to serve a term of ten

years’ confinement. (Id.). Sentence was pronounced on 2 April 2015 and notice of

appeal then timely filed. (I CR 177, 202).

                              ISSUES PRESENTED

      Counsel has reviewed the appellate record in this cause and reluctantly con-

cludes that as a matter of professional judgment the record contains no reversible

error and no jurisdictional defects are present. Where counsel concludes that there

are no arguable grounds for reversal, he is required to present a professional evalu-

ation of the record demonstrating why there are no arguable grounds to be ad-

vanced. Ganious v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969).

                           STATEMENT OF FACTS

      In July of last year, Mr. Michael Byers was sitting in his front yard with a

family member when they heard tires screeching followed by a loud crash. (IV RR

53). The men went to the area from which the sound had come and they discov-

ered a vehicle had run off the road and collided with a tree in such a way that it



                                         2	  
was “pretty much, like, on the tree – like, wrapped around the tree.” (IV RR 54).

They found the driver, Appellant, Ms. Glynda Morrow, pinned into the driver’s

seat in a state of semi-consciousness. (IV RR 56). They then noticed a young girl

in the back of the vehicle, L.S., who appeared to be “already a little bluish-

looking” and had no pulse. (IV RR 60). After she arrived at the hospital it was de-

termined that L.S. had suffered multiple severe injuries, any one of which was life

threatening on its own and the combination of which did cause her death that even-

ing. (IV RR 224-25).

      Ms. Morrow, who was also taken to the hospital, had blood draws done for

both purposes of medical treatment and for investigative purposes. (IV RR 47; V

RR 35). Both tests showed her blood alcohol level was in the range of twice the

legal limit, and the hospital testing also revealed recent marijuana use. (Id.; V RR

136-41). For this reason, Ms. Morrow was charged with the offense of intoxica-

tion manslaughter. (I CR 7).

      To this charge Ms. Morrow elected to enter a plea of “not guilty” and pro-

ceed to trial by jury. (I CR 177). After hearing the evidence before it, the jury

convicted Ms. Morrow and sentenced her to serve a term of ten years’ confinement

and to pay a fine of $5,000. (Id.). Sentence was pronounced on 2 April 2015 and

notice of appeal then timely filed. (I CR 177, 202).




                                         3	  
                          SUMMARY OF ARGUMENT

      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.).

                                   ARGUMENT

      I. JURISDICTION

      Under Texas law intoxication manslaughter is a felony offense. (I CR 7);

TEX. PEN. CODE § 49.08 (Vernon 2013). Therefore, jurisdiction properly rested

with the 114th District Court of Smith County, Texas. See TEX. CODE CRIM. PROC.

ANN. Art. 4.05 (Vernon 2007) (stating that district courts shall have original juris-

diction in felony criminal cases); Murray v. State, 302 S.W.2d 874, 877

(Tex.Crim.App. 2009). Additionally, because it alleged all of the essential ele-

ments of the charged offense, the indictment returned in this case provided Ms.

Morrow with sufficient notice of the offense with which she was charged. (I CR

7); see also TEX. PEN. CODE § 49.08 (elements of the offense). Consequently, no

error regarding the trial court’s jurisdiction can be advanced.



                                          4	  
      II. THERE WERE NO ERRORS IN VOIR DIRE.

      Counsel has reviewed that portion of the record pertaining to voir dire for er-

rors and has found none. (III RR gen.). Even if there was an error regarding jury

selection that had been preserved, a trial court’s decision to grant a challenge for

cause is subject to great deference by an appellate court and will be reversed “only

if a clear abuse of discretion is evident.” Gonzales v. State, 353 S.W.3d 826, 831

(Tex.Crim.App. 2011). On this record there does not appear a basis on which to

argue that a clear abuse of discretion could be shown based on potential jurors re-

sponses to questions from counsel, but, just as importantly, Ms. Morrow cannot

show that if there was an erroneous excusal of any of the potential jurors, that error

resulted in a jury being impaneled that was not lawfully constituted. Gamboa v.

State, 296 S.W.3d 574, 580 (Tex.Crim.App. 2009); Jones v. State, 982 S.W.2d

386, 394 (Tex.Crim.App. 1998). Consequently, the Court would have to overrule

any argument made as to this issue on appeal. Jones, 982 S.W.2d at 393. Finally,

the record does not present any objections to statements or actions by the State that

would warrant a reversal of Appellant’s conviction on appeal. See TEX. R. APP.

PROC. 33.1; Beltran v. State, 99 S.W.3d 807, 811-12 (Tex.App.—Houston [14th

Dist.] 2003, pet. ref’d).




                                          5	  
                       III. THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT
                            THE VERDICT.

                       The standard enunciated in Jackson v. Virginia1 is the one by which suffi-

ciency of the evidence challenges are measured. Brooks v. State, 323 S.W.3d 893,

895 (Tex.Crim.App. 2010). That is, in order to be legally sufficient the evidence at

trial must support a rational conclusion that each element of the charged offense

was proved beyond a reasonable doubt. Johnson v. State, 871 S.W.2d 183, 186

(Tex.Crim.App. 1993). Under this standard the record is reviewed in the light

most favorable to the verdict. Id.

                              To prove the offense alleged the State was required to prove that on or be-

fore the date in the indictment:

                       1. In Smith County, Texas;

                       2. Glynda Morrow;

                       3. While intoxicated as a result of consuming drugs, alcohol, or a
                          combination of the two;

                       4. Caused the death of L.S.;

                       5. By losing control of the motor vehicle in which they were both oc-
                          cupants.

(I CR 7); TEX. PEN. CODE § 49.08.

                       There was no dispute that the actions giving rise to the instant allegation oc-

curred, if at all, within the time period alleged and within Smith County. Nor was
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
           443 U.S. 307, 315-16, 99 S.Ct. 2781, 2786-87, 61 L.Ed.2d 560 (1979).

                                                                                                                                                     6	  
there any argument made as to the identity of the defendant. Instead, Ms. Morrow

focused her argument primarily on whether she had been intoxicated at the time

she was driving and then whether the State had proved that L.S. died as the result

of an accident caused by her intoxication.

      Intoxication

      To prove that Ms. Morrow was intoxicated the State offered evidence from

several sources. First, there was testimony that those who first responded to the

scene of the accident observed the odor of alcohol on Ms. Morrow’s person. (IV

RR 314-15, 376, 377; V RR 41, 55, 70-71, 163). There was also testimony from

Ms. Morrow’s own witnesses that she had consumed alcohol that day, albeit in a

limited quantity. (V RR 149).

      The DPS Blood Test

      Another piece of evidence on which the State relied to prove intoxication

was a blood alcohol test done at the behest of the investigating DPS officer. (II RR

37). The blood draw was done pursuant to Texas’ implied consent law. (Id.); TEX.

TRANSP. CODE § 724.012(b). At trial, Ms. Morrow raised an objection to the intro-

duction of this evidence as part of a suppression hearing held prior to jury selec-

tion. (II RR gen.). The trial court overruled the objection and denied the motion to

suppress. (III RR 9).




                                         7	  
                 It appears that there may be a legitimate issue to be raised on appeal relating

to the trial court’s ruling on this issue. See, e.g., Missouri v. McNeely, ___ U.S.

___, 133 S.Ct. 1552, 1559 (2013) (calling into question the legality of implied con-

sent statues); Aviles v. State, 443 S.W.3d 291, 294 (Tex.App.—San Antonio 2014,

pet. filed); Gentry v. State, 12-13-00168-CR, 2014 WL 4215544 at *4 (Tex.App.—

Tyler Aug. 27, 2014, pet. filed) (not designated for publication) (both holding that

Texas’ mandatory blood draw scheme does not survive McNeely). However, the

same evidence was also properly placed before the jury as a result of blood testing

done by the hospital as part of its treatment of Ms. Morrow.2 (IV RR 47). Thus,

even assuming that the trial court erred in allowing the admission of the blood test

drawn on the order of DPS, because the same evidence was properly admitted

elsewhere no reversible error could be shown. Brooks v. State, 990 S.W.2d 278,

287 (Tex.Crim.App. 1999); see also TEX. R. AP. PROC. 44.2(b) (evidence errone-

ously admitted is subject to a harm analysis and will only be reversible error where




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
2
           To the admission of the hospital records Ms. Morrow objected only on the basis that they vio-
lated her rights under HIPAA. (IV RR 46-47). This though is not a valid objection as “[Federal]
HIPAA provisions do not create a privilege against production or admission of evidence; they
merely create a procedure for obtaining protected medical records in litigation.” In re Jarvis,
431 S.W.3d 129 (Tex.App.—Houston [14th Dist.] 2013, orig. proceeding); see also Kirsch v.
State, 276 S.W.3d 579, 586-87 (Tex.App.—Houston [1st Dist.] 2008) (same).

                                                                                                              8	  
it affects the defendant’s substantial rights). Thus this error by the trial court, if

any, is not advanced in the instant appeal.3

                 Consequently, at a minimum, as a result of the properly admitted blood tests

from the hospital the jury had before facts indicating both that Ms. Morrow’s blood

alcohol content was substantially above the legal limit and that it also contained

marijuana. (IV RR 192; V RR 136-41). Such evidence is sufficient to establish

intoxication. See Railsback v. State, 95 S.W.3d 473, 479 (Tex.App.—Houston [1st

Dist.] 2002, pet. ref’d) (a .08 blood alcohol level at the time of driving constitutes

intoxication); see also King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2002)

(on appeal court will not reweigh evidence); Dewberry v. State, 4 S.W.3d 735, 740

(Tex.Crim.App. 1999) (same); Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.

2000) (any inconsistencies that may be present are resolved in favor of the verdict).

                 Causation

                 To prove intoxication manslaughter the State must prove, by reason of the

defendant’s intoxication, that the defendant caused the death of another. TEX. PEN.

CODE § 49.08(a); Wooten v. State, 267 S.W.3d 289, 294-95 (Tex.App.—Houston

[14th Dist.] 2008, pet. ref’d). That is, the State must prove not merely that the op-

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
3
            In an unpublished opinion the Fourth Court of Appeals just five days ago addressed this exact
scenario and held: 1. The trial court erred in permitting the introduction of the DPS-related
blood draw but, 2. That error was harmless as the same evidence was properly admitted through
medical records showing blood draws done by the hospital as part of their treatment of the de-
fendant. Garcia v. State, No. 04-14-00002-CR, 2015 WL 5042143, *3-5 (Tex.App.—San Anto-
nio Aug. 26, 2015, no pet.).

                                                                                                              9	  
eration of the vehicle caused the death but that the defendant’s intoxication had a

causal connection to the victim’s death. Wooten, 267 S.W.3d at 295. This connec-

tion may be proved by circumstantial evidence and need not be the exclusive cause

of death. Robbins v. State, 717 S.W.2d 348, 351 (Tex.Crim.App. 1986); Garcia v.

State, 112 S.W.3d 839, 852 (Tex.App.—Houston [14th Dist.] 2003, no pet.).

      In her defense, Ms. Morrow argued that the accident was not caused by her

intoxication but by environmental factors outside her control:

      I believe the evidence is going to show that [Ms. Morrow] was going
      approximately 58 in a 50 on a highway that she was thoroughly famil-
      iar with around curves that she had negotiated hundreds of times in
      the past.

      But there was one intervening factor that had not previously existed:
      A wet highway.

(IV RR 30).

      That the road conditions were wet and not the best was an allegation sup-

ported by multiple witnesses although they varied in their descriptions of just how

wet the road was. (IV RR 55, 73, 93, 104, 137). Also, there was evidence that if

Ms. Morrow was speeding it was not by much. (IV RR 155; V RR 19).

      A wet, dangerous road can be a contributing factor to an accident. See Mar-

tinez v. State, 66 S.W.3d 467, 469-70 (Tex.App.—Houston [1st Dist.] 2001, pet.

ref’d). Again, though, the State was not required to prove that Ms. Morrow’s in-

toxication was the sole cause of the accident that resulted in death. Robbins, 717



                                         10	  
S.W.2d at 351. Rather, the State and the jury were permitted to consider all the ev-

idence admitted at trial. Id. In this case, considering the totality of that evidence,

the jury could conclude, as the Court of Criminal Appeals has done in similar cir-

cumstances, that the evidence was sufficient to establish causation. See, e.g., Kuc-

iemba v. State, 310 S.W.3d 460, 462 (Tex.Crim.App. 2010) (“Being intoxicated at

the scene of a traffic accident in which the actor was a driver is some circumstan-

tial evidence that the actor’s intoxication caused the accident, and the inference of

causation is even stronger when the accident is a one-car collision with an inani-

mate object.”); see also Martinez, 66 S.W.3d at 468-69 (holding evidence showing

defendant was speeding, intoxicated, and had lost control of his vehicle was suffi-

cient to support his conviction); Cain v. State, 958 S.W.2d 404, 407

(Tex.Crim.App. 1997) (an appellate court cannot reweigh evidence and set aside a

verdict merely because it believes a different result is ore desirable or reasonable).

      Thus, taking the record before the Court as a whole and viewing the evi-

dence in the light most favorable to the jury’s verdict, it cannot be said on appeal

that the evidence was legally insufficient to support the judgment rendered at trial.

See Jackson, 443 U.S. at 319 (standard of review).




                                          11	  
      IV. PUNISHMENT.

      As alleged, the offense of intoxication manslaughter is a second degree felo-

ny. TEX. PEN. CODE § 49.08(b). Thus, the range of punishment was two to twenty

years’ confinement and a fine of up to $10,000. TEX. PEN. CODE § 12.33. Conse-

quently, although the issue of cruel or excessive punishment was not raised at the

time sentence was imposed and, therefore, has been waived on appeal, see TEX. R.

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

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

cause the ten year and $5,000 dollar sentence imposed was within the statutory

punishment range for the offense it is presumptively not constitutionally cruel and

unusual under these circumstances.         Kirk v. State, 949 S.W.2d 769, 772

(Tex.App.—Dallas 1997, pet. ref’d); see also 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). Moreover, that the sentence imposed was half of what had been the poten-

tial maximum punishment, any argument that the punishment was cruel or exces-

sive would be difficult to make. See, e.g., Graves v. State, 176 S.W.3d 422, 435

(Tex.App.—Houston [1st Dist.] 2004, pet. struck) (holding that a sentence on the

lower end of the punishment range tended to indicate a lack of egregious harm

where error in punishment charge was present). Consequently, counsel has been




                                        12	  
unable to raise a non-frivolous error on the issue of punishment on the record cur-

rently before the Court.

      V. 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 on a claim of ineffective assistance of counsel, a defendant must show (1)

that his 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). Trial counsel’s performance is not to be judged with the benefit of hind-

sight. Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App. 1992).

      With the Strickland standard in mind, counsel has reviewed the record be-

fore the court and found no conduct that would rise to the level of rendering trial

counsel’s assistance ineffective. See, e.g., Johnson v. State, 614 S.W.2d 148, 152

(Tex.Crim.App. [Panel Op.] 1981) (holding that, on appeal, courts will not second-

guess reasonable trial decisions). In fact, trial counsel made timely and proper ob-

jections to potentially harmful blood test results (II RR gen.) and was successful,



                                          13	  
despite damaging evidence at punishment, at obtaining a sentence significantly less

than that which one often sees in similar Smith County cases. See Cannon v. State,

668 S.W.2d 401, 403 (Tex.Crim.App. 1984) (burden is on defendant to establish

ineffective assistance); Rodriguez v. State, 899 S.W.2d 658, 665 (Tex.Crim.App.

1995) (a review of counsel’s actions looks to the record as a whole and not merely

at isolated incidents). As such, no error relating to the assistance rendered by trial

counsel can be advanced on direct appeal.

                         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 Ms. Morrow the opportunity to review the record and file a pro se

brief should she 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).

                                                  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

                                         14	  
                          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 the Appellant, accompanied by a letter informing the

Appellant of the right to examine the record for the purpose of filing a pro se brief.

                                                    /s/ Austin Reeve Jackson




                          CERTIFICATE OF SERVICE

      I certify that a true and correct copy of this Brief was delivered to counsel

for the State by efile concurrently with its filing and a copy of the same delivered

to Appellant by certified, first-class mail.

                                                    /s/ Austin Reeve Jackson




                                           15	  
                     CERTIFICATE OF COMPLIANCE

      I certify that this document complies with the requirements of Rule 9.4 and

consists of 3,333 words.

                                                /s/ Austin Reeve Jackson




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