                                                                      ACCEPTED
                                                                 12-14-00303-CR
                                                     TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                            2/19/2015 8:17:14 PM
                                                                    CATHY LUSK
                                                                          CLERK

            ORAL ARGUMENT NOT REQUESTED

                   NO. 12-14-00303-CR            FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
               IN THE COURT OF APPEALS    2/19/2015 8:17:14 PM
                 12TH JUDICIAL DISTRICT        CATHY S. LUSK
                                                   Clerk
                       TYLER, TEXAS




                     CRAIG PRUITT,
                      APPELLANT

                             VS.

                  THE STATE OF TEXAS,
                       APPELLEE




       ON APPEAL IN CAUSE NUMBER 007-0996-14
            FROM THE 7th DISTRICT COURT
              OF SMITH COUNTY, TEXAS
     HONORABLE KERRY RUSSELL, JUDGE PRESIDING


                  APPELLANT’S BRIEF

JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437
ATTORNEY FOR APPELLANT
             IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
    Craig Pruitt

APPELLANT’S TRIAL COUNSEL:
    John Jarvis
    326 S. Fannin
    Tyler, Texas 75702
    903-592-6576

APPELLANT’S APPELLATE COUNSEL
    James Huggler
    100 E. Ferguson, Suite 805
    Tyler, Texas 75702
    903-593-2400

APPELLEE
    The State of Texas

APPELLEE’S TRIAL COUNSEL
    Jeff Wood
    Bryan Jiral
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720
    903-590-1719 (fax)

APPELLEE’S APPELLATE COUNSEL
    Michael West
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720
    903-590-1719 (fax)


                                 ii
                                   TABLE OF CONTENTS
                                                                                                PAGE

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

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

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

PROFESSIONAL EVALUATION OF THE RECORD. . . . . . . . . . . . . . . 4

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




                                                    iii
                               TABLE OF AUTHORITIES
STATUTES
TEX. CODE CRIM. PROC. ANN. Art. 4.05 (West 2013).. . . . . . . . . . . . . . . . 5
TEX. PENAL CODE ANN. §12.42(a) (West 2013). . . . . . . . . . . . . . . . . 2, 3, 6
TEX. PENAL CODE ANN. §46.04(a)(2) (West 2013). . . . . . . . . . . . . 2, 3, 5, 6
TEX. PENAL CODE ANN. §46.04(e) (West 2013). . . . . . . . . . . . . . . . . 2, 3, 5


CASES
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
    18 L. Ed. 2d 493 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4
Bray v. State, 179 S.W.3d 725 (Tex. App.– Fort Worth 2005, no pet.). . 6
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
    61 L. Ed. 2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Martin v. State, 200 S.W.3d 635, 640 (Tex. Crim. App. 2006).. . . . . . . . .
Mays v. State, 904 S.W.2d 920 (Tex. App. – Fort Worth 1995, no pet.). 4
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).. . . . . . . . . . . 8
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
    80 L. Ed. 2d 674 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).. . . . . . . . . . . 7


RULES
TEX. R. APP. PROC. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
TEX. R. APP. PROC. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4




                                                  iv
                          NO. 12-14-00303-CR


CRAIG PRUITT,                       §   IN THE COURT OF APPEALS
APPELLANT                           §
                                    §
VS.                                 §   12TH JUDICIAL DISTRICT
                                    §
THE STATE OF TEXAS,                 §
APPELLEE                            §   TYLER, TEXAS



                         APPELLANT’S BRIEF


TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:


      Comes now Craig Pruitt, (“Appellant”), by and through his attorney

of record, James Huggler, and pursuant to the provisions of TEX. R. APP.

PROC. 38, et seq., respectfully submits this brief on appeal.




                     STATEMENT OF THE CASE

      Appellant was charged by indictment with the felony offense of

Unlawful Possession of a Firearm by a Felon in Smith County occurring


                                    1
on June 18, 2014. CR 4;1 TEX. PENAL CODE ANN. §46.04(a)(2) (West 2013).

This third degree felony offense was enhanced to a second degree

punishment range with a previous felony conviction not alleged in the

jurisdictional paragraph. TEX. PENAL CODE ANN. §§ 46.04(e) and 12.42(a)

(West 2013).

       Mr. Pruitt entered a plea of guilty without an agreement. CR 36; I

RR 30.2 Following evidence and argument, the trial court sentenced Mr.

Pruitt to eight years confinement. CR 44-45; II RR 20. Timely notice of

appeal was filed. CR 49. This brief is timely filed on or before February

19, 2015.




                                ISSUES PRESENTED

                                            None




1

References to the Clerk’s Record are designated “CR” with an arabic numeral following “CR”
specifying the correct page in the record.
2
 References to the Reporter’s Record are designated “RR” with a roman numeral preceding
“RR” specifying the correct volume, and an arabic numeral following designating the correct
page.
                                               2
                    STATEMENT OF THE FACTS

     Appellant was charged by indictment with the third felony offense

of unlawful possession of a firearm by a felon. CR 4; TEX. PENAL CODE

ANN. §§46.04(a)(2) and (e) (West 2013). The punishment range was

enhanced to a second degree by the allegation that Mr. Pruitt had been

convicted of a different felony offense. CR 4; TEX. PENAL CODE ANN.

§12.42 (a)(West 2013).

     Mr. Pruitt entered a plea of guilty to the indictment, and a plea of

true to the enhancement paragraph without an agreement as to

punishment. CR 36-40; I RR 30. Following evidence and argument of

counsel, the court assessed an eight year sentence. CR 44-45; II RR 20.

Further discussion of the facts in the case is included below.




                     SUMMARY OF ARGUMENT

     Counsel has reviewed the record and has concluded that, in his

professional opinion, the record contains no reversible error or

jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.

                                    3
1396, 1400, 18 L. Ed. 2d 493 (1967). Thus, counsel must move for leave

to withdraw from the case.




                              ARGUMENT

     There is no argument to present to this Court; however, Counsel has

included this section to strictly comply with Texas Rule of Appellate

Procedure 38. Counsel has reviewed the record and has concluded that,

in his professional opinion, the record contains no reversible error or

jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.

1396, 1400, 18 L. Ed. 2d 493 (1967). Therefore, counsel is including the

following explanatory section.




         PROFESSIONAL EVALUATION OF THE RECORD

     When counsel contends that there are no arguable grounds for

reversal on appeal, counsel is required to present a professional

evaluation of the record supporting this assertion. See Mays v. State, 904

S.W.2d 920, 922-23 (Tex. App. – Fort Worth 1995, no pet.). Counsel has

                                    4
conducted a review of the record, and has concluded that it presents no

arguable error.

     Counsel first reviewed the record for jurisdictional defects, and has

found none. The offense is classified as a third degree felony. TEX. PENAL

CODE ANN. §46.04(a)(2) and (e) (West 2013). The State must allege and

prove that Mr. Pruitt had previously been convicted of a felony offense.

Id. The State alleged a previous conviction from Henderson County,

Texas. CR 4. As charged in the indictment, the base offense was a third

degree felony; thus, the trial court has jurisdiction over the case. See TEX.

CODE CRIM. PROC. ANN. art. 4.05 (West 2013) (stating that district courts

shall have original jurisdiction in all felony cases). The indictment filed

conferred jurisdiction on the trial court and provided Appellant with

sufficient notice of the charged offense.

     Counsel has examined the totality of evidence as well, and has

determined that there are no arguable grounds for review of the

sufficiency of the evidence. For legal sufficiency purposes, the question is

whether, "after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential
                                      5
elements of the crime beyond a reasonable doubt." Jackson v. Virginia,

443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979).

     A person commits an offense if he possesses a firearm after the fifth

anniversary of his release from parole at any location other than the

premises at which the person lives. TEX. PENAL CODE ANN. §46.04(a)

(West 2013). The punishment range was enhanced with the allegation

that Mr. Pruitt had also previously been convicted of a different felony

possession of a controlled substance in Van Zandt County, Texas. CR 4;

TEX. PENAL CODE ANN. §12.42(a) (West 2013).

     The sentence assessed by the court was within the punishment

range provided for by law, and is therefore not subject to challenge. See

TEX. PENAL CODE ANN. § 12.42(a) (West 2013) (punishment range for

third degree felony offense enhanced to a second degree). Moreover, the

judgment does not contain any improper assessment of fees. CR 44, 47;

See Bray v. State, 179 S.W.3d 725 (Tex. App.--Fort Worth 2005, no pet.).

Thus, there is no arguably reversible error during the punishment phase.

     Finally, the undersigned has reviewed the record and found no


                                    6
arguable ground for ineffective assistance of counsel. Counsel is strongly

presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment. Strickland

v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674

(1984).

     Counsel had received a seven year plea agreement offer from the

state, Mr. Ardry declined to accept that offer. II RR 5. Mr. Ardry entered

an open plea of guilty. I RR 30. The State sought a ten year sentence at

this punishment hearing. II RR 16, 20. Mr. Jarvis was familiar with the

facts, advised his client regarding testimony, and made an effective

argument resulting in the trial court sentencing Mr. Priutt two years

below the State’s requested sentence. Considering the totality of the

representation of Appellant's trial counsel, the record contains nothing

that would indicate that counsel's performance was deficient. See

Strickland 466 U.S. at 687, 104 S. Ct. at 2064; Thompson v. State, 9

S.W.3d 808, 812 (Tex. Crim. App. 1999).




                                    7
                              CONCLUSION

     Since counsel is 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).




                          PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Counsel respectfully

prays that this Court permit him to withdraw after this Court’s own

examination of the record in this cause and to afford Appellant his right

to file any pro se brief that he may wish to file.

Respectfully submitted,


/s/ James Huggler
James W. Huggler, Jr.
State Bar Number 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 fax


ATTORNEY FOR APPELLANT
                                      8
                      CERTIFICATE OF SERVICE

A true and correct copy of the foregoing Brief of the Appellant has been

forwarded to counsel for the State by regular mail or through the State of

Texas Electronic Filing System on this the 19th day of February 2015 and

to the Appellant at the address listed below by regular mail.

Attorney for the State:
Mr. Mike West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702



Craig Pruitt
TDCJ #01960665
Hamilton Unit
200 Lee Morrison Lane
Bryan, Texas 77807



                   CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 1,732 words as counted by
Corel WordPerfect version x5.
/s/ James Huggler
James W. Huggler, Jr.
                                     9
