                                                                                  ACCEPTED
                                                                              12-15-00144-CR
                                                                 TWELFTH COURT OF APPEALS
                                                                               TYLER, TEXAS
                                                                        8/13/2015 11:53:30 AM
                                                                                CATHY LUSK
                                                                                       CLERK

                    No. 12-15-00144-CR

                                                            FILED IN
                                                     12th COURT OF APPEALS
         IN THE TWELFTH COURT OF              APPEALS TYLER, TEXAS
                   TYLER, TEXAS                      8/13/2015 11:53:30 AM
                                                          CATHY S. LUSK
                                                              Clerk

            GREGORY CARL ROLLING, JR.

                               Appellant,

                              v.

                  THE STATE OF TEXAS

                                   Appellee



On Appeal from the 114th District Court of Smith County, Texas
                Trial Cause No. 114-1172-14




         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:
Norman Ladd
235 S. Broadway Ave.
Suite 200
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) ........................................................ 8-9

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

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


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

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:

Aguilar v. State,
 279 S.W.3d 350 (Tex.App.—Austin 2007) ................................................... 9 n.2

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

                                                 vi
TEXAS COURTS OF APPEAL (CON’T):

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

Uresti v. State,
 98 S.W.3d 321 (Tex.App.—Houston [1st Dist.] 2003) ................................. 9 n.2


STATUTES AND OTHER CONSTITUTIONAL PROVISIONS:

TEX. HEALTH & SAFETY CODE § 481.134 ......................................................... 8

TEX. PEN. CODE § 12.34 .................................................................................... 8

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

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

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




                                                            vii
                              No. 12-15-00144-CR


                  IN THE TWELFTH COURT OF APPEALS
                            TYLER, TEXAS


                      GREGORY CARL ROLLING, JR.

                                       Appellant,

                                      v.

                             THE STATE OF TEXAS

                                           Appellee



        On Appeal from the 114th District Court of Smith County, Texas
                        Trial Cause No. 114-1172-14




TO THE HONORABLE JUSTICES OF THE COURT:

      COMES NOW, Austin Reeve Jackson, attorney for Gregory Rolling and

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

show the Court as follows:
                         STATEMENT OF THE CASE

      Gregory Rolling seeks to appeal his conviction and sentence for the offense

of possession of a controlled substance rendered against him in the 114th District

Court of Smith County. (I CR 86). After being indicted for this offense in Sep-

tember of last year, Mr. Rolling was, by agreement, placed on a term of six years

deferred adjudication community supervision. (I CR 4, 52). However, in May of

this year that probation was revoked and Mr. Rolling was sentenced to serve six

years’ confinement. (I CR 86). Sentence was pronounced on 26 May and notice

of appeal then timely filed. (I CR 86, 91).

                              ISSUE PRESENTED

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

                            STATEMENT OF FACTS

      In September of 2014, Appellant, Mr. Gregory Rolling, was indicted for the

felony offense of possession of a controlled substance in a drug free zone. (I CR

4). To this charge, he entered a plea of “guilty” and, pursuant to a plea agreement,

was placed on a term of six years’ deferred adjudication community supervision.

(I CR 52).

      Unfortunately, in May of this year Mr. Rolling was facing an application to

proceed to final adjudication in which the State alleged he had committed multiple

violations of his probation. (I CR 71). To the majority of these allegations Mr.

                                          2
Rolling entered pleas of “true” and the trial court, finding the violations to be true,

adjudicated guilt and imposed punishment at six years’ confinement. (I CR 86).

Sentence was pronounced on 26 May and notice of appeal then timely filed. (I CR

86, 91).

             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. Rolling was

alleged to have violated the terms of his community supervision. (I CR 71). The

application included the following allegations:

Application Paragraph      Allegation
            I              Identity of Defendant
           II              Failure to Submit to Urinalysis (Abandoned at trial)
          III              Failure to Pay for a Urinalysis
        IV-VI              Failure to Pay Various Fees and Costs
          VII              Failure to Report
         VIII              Failure to Complete Outpatient Treatment
          IX               Failure to Attend AA Meetings

(I CR 71-75). To all paragraphs but paragraphs VII and IX, pleas of “true” were

entered. (I CR 86). Thus, if the pleas of “true” were entered freely, knowingly,

and voluntarily, the trial court had sufficient evidence to revoke Mr. Rolling’s

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




                                          5
      1. The Plea

      Before accepting his plea, the trial court advised Mr. Rolling as to the con-

sequences 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

allegations at issue. (IV RR 4-22). After having been so advised, Mr. Rolling per-

sisted 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 admonishments, such error would be non-constitutional error subject

to a harm analysis and, given the record before the Court, Mr. Rolling 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, 933 S.W.2d at 661 (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).

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

cessive punishment at the time sentence was imposed and, therefore, this issue has
1
 The record also contains a written stipulation of evidence, signed by Mr. Rolling, offered and
accepted by the court at trial, and admitting to the truth of the allegations made against him. (I
CR 84; IV RR 22). Such a written stipulation is, likewise, sufficient to support the trial court’s
decision. 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
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 six 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. HEALTH & SAFETY

CODE § 481.134(b) (defining possession of a controlled substance, as alleged, as a

third-degree felony); TEX. PEN CODE § 12.34 (punishment range for a third degree

felony). Further, that Mr. Rolling was sentenced below the maximum possible ten-

year sentence is also a factor indicating that the sentence was not excessive or cru-

el. Bolden v. State, 73 S.W.3d 428, 434 (Tex.App.—Houston [1st Dist.] 2002, pet.

ref’d).

          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



                                            8
(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.2

       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).



2
 The trial court ordered payment of $173.00 to DPS. (I CR 86). This was pursuant to the origi-
nal plea agreement agreed to by Mr. Rolling. (I CR 52, 60); cf. Aguilar v. State, 279 S.W.3d
350, 353-54 (Tex.App.—Austin 2007) (mem. op.); Uresti v. State, 98 S.W.3d 321, 338
(Tex.App.—Houston [1st Dist.] 2003, no pet.) (both noting such fees are generally impressible
when ordered as part of a sentence of confinement).

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

made of the proceedings including pretrial matters, Mr. Rolling’s 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. Rolling 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 efile on this the 13th day of August 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 2,332 words.

                                               /s/ Austin Reeve Jackson




                                          12
