                                                                      ACCEPTED
                                                                  12-14-00248-cr
                                                     TWELFTH COURT OF APPEALS
                                                                   TYLER, TEXAS
                                                            4/10/2015 4:52:58 PM
                                                                    CATHY LUSK
                                                                          CLERK

            ORAL ARGUMENT NOT REQUESTED

                   NO. 12-14-00248-CR            FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
               IN THE COURT OF APPEALS    4/10/2015 4:52:58 PM
                 12TH JUDICIAL DISTRICT        CATHY S. LUSK
                                                   Clerk
                       TYLER, TEXAS




               ROBERTA WINNIE BAGWELL,
                     APPELLANT

                             VS.

                  THE STATE OF TEXAS,
                       APPELLEE




        ON APPEAL IN CAUSE NUMBER 114-1742-10
       FROM THE 114TH JUDICIAL DISTRICT COURT
              OF SMITH COUNTY, TEXAS
    HONORABLE CHRISTI KENNEDY, 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:
    Jolly Dee Neely

APPELLANT’S TRIAL COUNSEL:
    Brent Ratekin
    422 South Spring Avenue
    Tyler, Texas 75702
    903-595-1516

APPELLANT’S APPELLATE COUNSEL
    James Huggler
    100 E. Ferguson, Suite 805
    Tyler, Texas 75702
    903-593-2400
    903-593-3830 (fax)

APPELLEE
    The State of Texas

APPELLEE’S TRIAL COUNSEL
    Jacob Putman
    Christopher Gatewood
    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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

PROFESSIONAL EVALUATION OF THE RECORD. . . . . . . . . . . . . . . 6

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13




                                                   iii
                              TABLE OF AUTHORITIES


CONST.
TEX. CONST. art. V, § 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8


STATUTES
TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2014). . . . . . . . . . . . . . . . . 8
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West 2014). . . . . . . . . . 3
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West 2014). . . . . . . . . . 9
TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(A) (West 2014). . . . . . . . . . 1, 2
TEX. PENAL CODE ANN. § 12.35 (West 2014).. . . . . . . . . . . . . . . . . . . . . 10


CASES
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
   18 L. Ed. 2d 493 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Bray v. State, 179 S.W.3d 725 (Tex. App.– Fort Worth 2005, no pet.). 10
Duron v. State, 956 S.W.2d 547 (Tex. Crim. App. 1997). . . . . . . . . . . . . 8
Jordan v. State, 54 S.W.3d 783 (Tex. Crim. App. 2001). . . . . . . . . . . . . 8
Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001). . . . . . . . . . . . . . 8
Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999). . . . . . . . . . . . 7
Mays v. State, 904 S.W.2d 920 (Tex. App. – Fort Worth 1995, no pet.). 6
Moses v. State, 590 S.W.2d 469 (Tex. Crim. App. 1979). . . . . . . . . . . . . 9
Nix v. State, 65 S.W.3d 664 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . 7
Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006). . . . . . . . . . . . 9
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).. . . . . . . . . . 11
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
   80 L. Ed. 2d 674 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
                                                 iv
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).. . . . . . . . . . 11


RULES
Tex. R. App. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6




                                                   v
                          NO. 12-14-00248-CR


ROBERTA WINNIE BAGWELL,             ,§   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 Roberta Winnie Bagwell (“Appellant”), by and through

her 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 indicted in Cause No. 114-01742-10 for the state jail

felony offense of theft. TEX. PENAL CODE ANN. §31.03(a), (e)(4)(A) (West


                                    1
2008). CR 11.       Appellant elected to plead guilty to the charge. CR 43.

Based upon Appellant's judicial confession, the trial court deferred a

finding of guilt and placed Appellant on probation for a term of five years.

III RR 23-242. The State subsequently filed an application to proceed to

final adjudication. CR 83-86. Following the entry of pleas of true to five

of the eight paragraphs, the court found Appellant guilty, then sentenced

her to two years confinement. CR 91; RR 33-35. Timely notice of appeal

was filed on August 15, 2014. CR 99.




                               ISSUES PRESENTED

                                          None




                          STATEMENT OF THE FACTS

       Appellant was indicted in Cause No. 114-01742-10 for the state jail

felony offense of theft. TEX. PENAL CODE ANN. §31.03(a), (e)(4)(A) (West
1
 References to the Clerk’s Record are made using “CR” and an arabic numeral following
specifying the correct page.
2
 References to the Reporter’s Record are made using “RR” with a roman numeral preceding
designating the volume and an arabic numeral following designating the correct page.
                                               2
2008). CR 1. Pursuant to a plea bargain agreement, Appellant entered

a plea of guilty to the charge in the indictment on December 2, 2013. III

RR 19; CR 43. Appellant waived her right to a jury trial, her right to

confront and cross-examine witnesses, the notification that if Appellant

was not a citizen, a plea of guilty may result in deportation, the effect of

the plea on his rights, the consequences of the plea and the range of

punishment for a second degree felony. CR 52-54. A stipulation of

evidence was also admitted at this hearing that detailed the Appellant's

conduct. CR 56-59. Appellant was then placed on deferred adjudication

probation for a term of five years, with a variety of conditions under the

authority of the Texas Code of Criminal Procedure Art. 42.12 §5(a) (West

2014). CR 43-48. A Waiver of Motion for New Trial and Motion in Arrest

of Judgment and Waiver of Right to Appeal was also filed on December 2,

2013. CR 60. The trial court entered a certification of defendant's right

to appeal on December 2, 2013, which stated that Appellant waived her

right to an appeal. CR 50.

     During the course of Appellant’s deferred adjudication probation, the

conditions of her probation were modified and status reports were
                                     3
conducted. CR 63-67. However, on August 6, 2014, the State filed an

Application to Proceed to Final Adjudication in this case, alleging six

separate violations. CR 83. On August 8, 2014, the State filed its First

Amended Application to Proceed to Final Adjudication, which added one

additional violation. CR 76-79.

     A revocation hearing was held on October 12, 2014. V RR 1. The

appellant entered pleas of true to Paragraphs 1,2,3,4 and 8 of the state's

application. CR 97; V RR 4-5, 11-15. Appellant was admonished by the

court regarding her rights, including the right to call witnesses, confront

the state's witnesses. V RR 8. Appellant was questioned regarding her

ability to read, write and understand English, her consumption of alcohol

or any drugs, her mental health history, and whether she had adequate

time to consult with his attorney. V RR 4-6. She was advised that if

Appellant was not a citizen, a plea of guilty may result in deportation. V

RR 8.     She also was admonished regarding the proper range of

punishment. V RR 11. A Written Plea Admonishments and Stipulation,

signed by Appellant, was introduced as State’s Exhibit 1. V RR 16; CR 97.

     The State then presented two witnesses at the hearing to prove the
                                     4
allegations in Paragraphs 5 (possession of cocaine), 6 (consumption of

cocaine) and 7 (failure to submit to a urinalysis). Appellant’s probation

officer testified that on August 4, 2014, Appellant submitted to a

urinalysis, and the presumptive test showed that she tested positive for

cocaine use, in violation of the conditions of her probation3. V RR 19. The

director of the lab that tested Appellant’s sample confirmed that the

sample contained cocaine. V RR 28.                   Following the conclusion of the

evidence, the court found paragraphs 1, 2, 3, 4, 5, 6, and 8 to be true. V

RR 32. The court revoked Appellant’s probation, proceeded to a final

adjudication of guilt, and found Appellant guilty of the offense of theft.

Timely notice of appeal was filed on August 15, 2014. CR 99. This brief

is timely filed.




                            SUMMARY OF ARGUMENT

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

professional opinion, the record contains no reversible error or

3
  The State had alleged in Paragraph 7 that Appellant failed to submit to the urinalysis, in
violation of her probation. However, the probation officer confirmed that Appellant submitted to
the test, and that the allegation in Paragraph 7 was a mistake. V RR 19.
                                                  5
jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.

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.)
                                    6
         In the present case, Appellant entered a plea of guilty to the

charged offense, was placed on deferred adjudication and waived her right

to an appeal.         The State subsequently filed a motion to revoke, and

Appellant entered pleas of true to allegations that she violated the terms

and conditions of her community supervision. The court adjudicated her

guilt, assessed her sentence, and certified her right to appeal.

       Appellant is precluded from appealing issues arising from the

original plea proceedings since she waived her right to appeal those

issues, and since the applicable time period for appeal has passed.

Generally, a defendant who is placed on deferred adjudication probation

may raise issues relating to the original plea proceeding only in an appeal

taken when deferred adjudication probation is first imposed. Manuel v.

State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). Such issues may

not be raised in an appeal from an order revoking probation and

adjudicating guilt. Id.

       An exception to the general rule in Manuel exists when the

judgment is “void.” 4 See Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App.
4
   Another exception mention in Nix is the “habeas corpus” exception, which involves the
litigation of a writ of habeas corpus at the probation revocation proceedings. Id. at 669. To
invoke the habeas corpus exception on appeal, the defendant must show: (a) that the claim is
cognizable on a writ of habeas corpus and (b) that the defendant attempted to litigate the claim at
                                                  7
2001); Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim. App. 2001).                             A

judgment of conviction for a crime is void when (1) the document

purporting to be a charging instrument does not satisfy the constitutional

requisites of a charging instrument, (2) the trial court lacks subject matter

jurisdiction over the offense charged, (3) the record reflects that there is

no evidence to support the conviction, or (4) an indigent defendant is

required to face criminal trial proceedings without appointed counsel.

Nix, at 668. However, none of these exceptional circumstances exist in the

present case. The indictment conferred jurisdiction on the trial court and

provided Appellant with sufficient notice of the charged offense. See TEX.

CONST. art. V, § 12; Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim.

App. 1997). The trial court has jurisdiction over the case. See TEX. CODE

CRIM. PROC. ANN. Art. 4.05 (West 2014) (stating that district courts shall

have original jurisdiction in felony criminal cases). The conviction was

supported by Appellant’s signed confession, and the written plea

admonishments indicate that Appellant's plea was made freely and

voluntarily5.         CR 52-59.         The record also indicates that she was

the revocation proceeding. Neither of these criteria are supported by the record.

5
  When the record indicates that a defendant was properly admonished after pleading guilty, it is
sufficient evidence to establish a prima facie case that the plea was both knowing and voluntary.
                                                  8
represented at trial by appointed counsel. Therefore, review for potential

error is limited to the revocation hearing.

       Counsel has examined the revocation hearing, and has found no

reversible error. An adjudication of guilt on the original charge of an

appellant under deferred adjudication is reviewed in the same way as a

revocation of community supervision. TEX. CODE CRIM. PROC. ANN. art.

42.12, § 5(b) (West 2014). In a probation revocation proceeding, the State

has the burden of proving a violation of the terms of probation by a

preponderance of the evidence. See Rickels v. State, 202 S.W.3d 759, 763-

764 (Tex. Crim. App. 2006). A plea of true to any one alleged violation is

sufficient to support revocation of community supervision. Moses v. State,

590 S.W.2d 469, 470 (Tex. Crim. App. 1979).

       Appellant in the present case pled "true" to five of the paragraphs

set forth in the State’s motion to revoke. The record reflects that these

pleas of true were made freely and voluntarily, as supported by the

written plea admonishments and the court's findings. CR 97; RR V11.

During the revocation hearing, the trial court confirmed that Appellant

had reviewed the written plea admonishments with her attorney and that

Mallett v. State, 65 S.W.3d 59, 64 (Tex. Crim. App. 2001).
                                                9
Appellant was making the plea of her own free will.            V RR 4;11 .

Appellant's attorney confirmed that he was satisfied that Appellant was

competent. V RR 9-10. Therefore, the record supports the trial court’s

finding that the Appellant had violated the terms of her probation based

upon her pleas of true; thus, the trial court did not abuse its discretion by

revoking Appellant's community supervision.

     Finally, counsel has found no error occurring is the assessment of

punishment.     At the punishment hearing, the trial court sentenced

Appellant to two years' confinement. CR 93; V RR 32-33 . The sentence

assessed by the trial court is within the punishment range provided for by

law. See TEX. PENAL CODE ANN. § 12.35 (West 2005)(state jail felony).

Moreover, the judgment does not contain any improper assessment of fees.

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

Thus, the undersigned has found no reversible error during the

punishment phase.

     Finally, the undersigned has reviewed the record and found no

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
                                     10
v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674

(1984). In the present case, trial counsel lodged pertinent objections at

the hearing, and argued for a lesser 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 id. at

687, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.

App. 1999).




                             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).




                                     11
                          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 her right

to file any pro se brief that she 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


                                     12
                      CERTIFICATE OF SERVICE

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

forwarded to counsel for the State by electronic filing on this the 10th day

of April, 2015.

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




                   CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 2,608 words as counted by
Corel WordPerfect version x6.


/s/ James Huggler
James W. Huggler, Jr.




                                     13
