                                                                                                         ACCEPTED
                                                                                                     06-17-00191-CR
                                                                                           SIXTH COURT OF APPEALS
                                                                                                 TEXARKANA, TEXAS
                                                                                                    1/9/2018 3:03 PM
                                                                                                    DEBBIE AUTREY
                                                                                                              CLERK
                                    Cause No. 06-17-00191-CR

                                            ***************
                                                                                     FILED IN
                                                                              6th COURT OF APPEALS
                                                                                TEXARKANA, TEXAS
                                                                              1/9/2018 3:03:55 PM
                                  IN THE COURT OF APPEALS                         DEBBIE AUTREY
                                                                                      Clerk



                           SIXTH APPELLATE DISTRICT OF TEXAS



                                    AT TEXARKANA, TEXAS



                                            ***************

                                    TYLER COLEMAN-CONE

                                                 VS.

                                      THE STATE OF TEXAS

                                            **************



         AMENDED APPELLATE BRIEF PURSUANT TO ANDERS V. CALIFORNIA

                          Appealed from the 71st Judicial District Court of

                                       Harrison County, Texas

                                     Trial Court No. 15-0419X

Appellant does not request oral argument.




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                                         Cause No. 06-17-00191-CR

TYLER COLEMAN-CONE                                      §                            IN THE COURT OF

VS.                                                     §                      APPEALS, SIXTH DISTRICT

THE STATE OF TEXAS                                      §                            STATE OF TEXAS

                           NAMES OF ALL PARTIES AND ATTORNEYS

        Pursuant to Texas Rule of Appellate Procedure 38.1(a), Appellant certifies that the

following is a true and correct list of all parties to the trial court’s final judgment, and their

counsel:

        TYLER COLEMAN-CONE, Appellant
        1113 Larry Drive
        Marshall, Texas 75670

        The Honorable Brad Morin, Trial Judge
        200 W. Houston
        Marshall, Texas 75670

        Shawn Connally, Harrison County Assistant District Attorney at trial
        200 W. Houston
        Marshall, Texas 75670

        Rick Hurlburt, Attorney for Appellant on Plea
        222 N. Fredonia St.
        Longview, Texas 75601

        Laura Carpenter Harrison County Assistant District Attorney on Appeal
        200 W. Houston
        Marshall, Texas 75670

        Rick Berry , Attorney for TYLER COLEMAN-CONE, at plea of true
        111 W. Austin St.
        Marshall, Texas 75670

        Scott Rectenwald, Appellate attorney for TYLER COLEMAN-CONE
        110 W. Fannin St.
        Marshall, Texas 75670


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                                                     TABLE OF CONTENTS



NAMES OF ALL PARTIES ................................................................................................... 2

TABLE OF CONTENTS ....................................................................................................... 3

INDEX OF AUTHORITIES .................................................................................................. 4

PRELIMINARY STATEMENT ............................................................................................. 5

ARGUABLE POINTS PRESENTED ................................................................................... 5

STATEMENT OF FACTS .................................................................................................... 5

ARGUABLE POINT NUMBER ONE ................................................................................... 8

           SUMMARY OF ARGUMENT ...............................................................................                          8

           ARGUMENT AND AUTHORITIES ....................................................................                                8



ARGUABLE POINT NUMBER TWO ................................................................................                              10

           SUMMARY OF ARGUMENT ...............................................................................                          10

           ARGUMENT AND AUTHORITIES ....................................................................                                11

PRAYER ..............................................................................................................................   13

CERTIFICATE OF SERVICE ............................................................................................                     14




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                                                INDEX OF AUTHORITIES

CASE AUTHORITIES:

Allbright v. State, 13 S.W.3d 817 (Tex.App.-Fort Worth 2000, pet. refused) ................ 10

Davis v. State, 905 S.W.2d 655, 664-65 (Tex. App. -- Texarkana 1995, pet. ref'd)........... 9

Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex.Crim.App.2006) ................................... 9

Gordon v. State, 575 S.W.2d 529, 531 (Tex. Crim. App. [Panel Op.] 1978)..................... 12

Jackson v. State, 989 S.W.2d 842 (Tex.App.–Texarkana 1999, no pet.)........................                                  8, 9,10

Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973)......................................... 8

Labelle v. State, 720 S.W.2d 101, 108-09 (Tex. Crim. App. 1986)................................... 12

Latham v. State, 20 S.W.3d 63 (Tex.App.–Texarkana 2000, pet. ref'd)............................ 8, 10

Longoria v. State, 624 S.W.2d 582, 584 (Tex. Crim. App. 1981)..................................... 12

Martinez v. State, 493 S.W.2d 954, 955 (Tex. Crim. App. 1973) .................................... 12

Rodriguez v. State, 951 S.W.2d 199, 204 (Tex. App.-Corpus Christi 1997, no pet.)....... 12

Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 77 L. Ed. 2d 637, 650 (1983)..........                                      9




STATUTES AND CODES:
Texas Penal Code §49.07 ................................................................................................ 6
T.R.A.P. 33.1(a)(1)(A)....................................................................................................    9

U.S. CONST ., amend. VIII ................................................................................................. 8




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                           PRELIMINARY STATEMENT OF THE CASE

          Appellant TYLER COLEMAN-CONE appeals his conviction on a count of intoxication

assault. On March 20, 2017, Appellant plead guilty, and pursuant to a plea agreement received a

ten year sentence probated for a period of ten years. (CR Vol. I, Page 32) On July 17, 2017, the

State filed an Application for Revocation of Probation, ( CR Vol. I, Pages 41), and later a First

Amended Application for Revocation of Probation on July 25, 2017. (CR Vol. I, Page 54.         On

September 13, 2017, the Court held a hearing on the State’s Motion, and the Appellant entered a

plea of true to a single allegation. (RR Vol. I, Pages 8-9) Following testimony from the

Appellant’s probation officer and Appellant, the Court revoked the Appellant’s probation, and

sentenced the Appellant to seven years imprisonment. (RR Vol. II, Page 22) This is a direct

appeal.



                                 ARGUABLE ISSUES EVALUATED

                                        ISSUE NUMBER ONE

          Was the Appellant’s sentence disproportionate punishment for the Appellant’s offense so

as to amount to cruel and unusual punishment under the Eighth Amendment to the United States

Constitution?



                                        ISSUE NUMBER TWO

          Did the Court err in revoking the Appellant’s probation when the language describing the

condition violated in the State’s Motion to Revoke Supervision failed to track the language of the

Court’s Judgment and Sentence, and when the allegation of the act relied upon as a violation


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failed to allege an actual violation of the Court’s conditions of probation?



                                       STATEMENT OF FACTS

        Appellant was indicted on a single count of Intoxication Assault, Tex. Pen. Code 49.07.

(CR Vol. I, Page 52) On March 20, 2017, Appellant plead guilty pursuant to a plea agreement,

and the Court found the Appellant guilty, sentencing him to ten years confinement in the Texas

Department of Corrections and also suspending the imposition of that sentence and placing the

Appellant on probation for a period of ten years under various terms and conditions. (CR Vol. I,

Pages 32-36) The Court’s conditions of probation included, among other things, that the

Defendant “Avoid injurious or vicious habits, as well as persons or places of disreputable or

harmful character...” and that the Defendant should not, “consume or possess....unlawful

controlled substances, narcotic, dangerous drugs, marijuana...” (CR Vol. I, Page 34, conditions

2 and 10).     On July 17, 2017, the State filed a motion to revoke supervision, alleging that

Appellant had violated Condition (2) of his probation, that being to “Avoid injurious or vicious

habits, including the use of alcohol, controlled substances or habit forming drugs....” and alleging

his violation to be : “... the Defendant, Tyler Dne’aundre Coleman-Cone, admits to using

marijuana on 6/15/17.” ( CR Vol. I, Pages 41-43) On July 25, 2017, the State filed an amended

motion to revoke supervision, adding two additional allegations. (CR Vol. I, Pag. 54-56) The

Court held a hearing on the State’s motion to revoke probation (RR Vol. II, Page 4). The State

abandoned all allegations other than that relating to condition (2) and the Appellant entered a

plea of true to the allegation that he had violated Condition (2) of his probation. (RR Vol. II,

Pages 8)


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        The State called Community Supervision Officer Halle Biery as its sole witness.(RR Vol.

II, Page 9). Biery testified that Appellant had been non-compliant with probation from the

beginning.   (RR Vol. II, Page 9) Biery stated that Appellant had continued to use marijuana

during his probation, and at one point she made him agree to a modification of probation for

three days in jail in an effort to make him realize that he could not continue to use marijuana.

(RR Vol. II, Page 10). Appellant reported to jail, but also admitted to using marijuana before

reporting to jail, at which time Biery filed a violation report. (RR Vol. II, Page 11) Biery testified

that to her knowledge the Appellant had not received any kind of counseling for his marijuana

use. (RR Vol. II, Page 12)

        The Appellant testified that marijuana had been a problem for him for quite a while, his

use having started his freshman year in high school. (RR Vol. II, Page 13) Appellant continued

to use marijuana even after he had been put on probation, and admitted to Officer Biery that he

had used marijuana in June. (RR Vol. II, Page 14) Appellant used marijuana to cope with his

emotions and calm himself down. (RR Vol. II, Page 14-15) Appellant used marijuana just

before his jail sanction because of a combination of things - a friend had tried to commit suicide,

Appellant had just lost his job, and he was preparing to go to jail. (RR Vol. II, Page 16)

Appellant asked to Court to consider modification of his probation to require drug treatment in

SAF-P. (RR Vol. II, Page 16-17)



        At the conclusion of the evidence, the Court found that the Appellant had violated the

conditions of his probation and sentenced him to seven years in the Texas Department of

Criminal Justice Institutional Division. (RR Vol. II, Page 22)


                                                   Page -7-
                                        ISSUE NUMBER ONE

        Was the Appellant’s sentence disproportionate punishment for the Appellant’s offense so

as to amount to cruel and unusual punishment under the Eighth Amendment to the United States

Constitution?



                                    SUMMARY OF ARGUMENT

        This issue of whether the sentence was disproportionate in this case was not preserved.

Even if the issue had been preserved, the Appellant’s sentence was within the range of

punishment.     The record in Appellant’s case did not contain information on the sentences

imposed on other criminals in the same jurisdiction and sentences imposed for commission of

the same crime in other jurisdictions for this Court to make a determination about

disproportionality.



                                              ARGUMENT

        Texas courts have traditionally held that as long as the punishment is within the range

prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual.

See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973. However, in Jackson v.

State, 989 S.W.2d 842, 845 (Tex. App. --Texarkana 1999, no pet.), this Honorable Court

recognized that a prohibition against grossly disproportionate punishment survives under the

Eighth Amendment apart from any consideration of whether the punishment assessed is within

the range established by the Legislature. See also Latham v. State, 20 S.W.3d 63, 68-9 (Tex.

App. -- Texarkana 2000, pet. ref'd).


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        This Court's proportionality analysis under the Eighth Amendment is guided by (1) the

gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other

criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same

crime in other jurisdictions. Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 77 L. Ed. 2d

637, 650 (1983). Only if the sentence is grossly disproportionate to the offense should the Court

consider the remaining factors of the Solem test and compare the sentence received to sentences

for similar crimes in the same jurisdiction and to sentences for the same crime in other

jurisdictions. Davis v. State, 905 S.W.2d 655, 664-65 (Tex. App. -- Texarkana 1995, pet. ref'd).



        In this case, no objection was made to the sentence at the time that it was pronounced.

(RR Vol. II, Page 22), and therefore nothing was preserved for review. T.R.A.P. 33.1(a)(1)(A).

See also Jackson v. State, 989 S.W.2d 842, 845 (Tex.App.–Texarkana 1999, no pet.).



        Had the issue been preserved, it would still not prevail.    The Appellant received a

sentence of seven years on an intoxication assault, which reduced and modified his original

sentence of ten years (RR Vol. II, Page 22).     It is the general rule that as long as a sentence is

within the proper range of punishment, it will not be disturbed on appeal. Jackson v. State, 680

S.W.2d 809, 814 (Tex.Crim.App.1984). See generally Ex parte Chavez, 213 S.W.3d 320, 323–24

(Tex.Crim.App.2006) (describing essentially “unfettered” sentencing discretion of court).



        The Appellant presented evidence of his continued struggle with marijuana over a period

of five or more years (RR Vol. II, Pages 13-18)      However, the Court is the sole trier of fact and


                                                  Page -9-
determines the credibility of the witnesses and the weight given their testimony. Allbright v.

State, 13 S.W.3d 817, 818–19 (Tex.App.-Fort Worth 2000, pet. refused), and in this case, the

Court was not persuaded that Appellant should be given another chance to resolve his substance

problem while on probation (RR Vol. II, Page 47-8).

        Even if the Court were to determine that sentence was exceptionally harsh considering the

gravity of the offense, the record contains no information on the sentences imposed on other

criminals in the same jurisdiction or the sentences imposed for commission of the same crime in

other jurisdictions. There does not appear to be enough information for the Court to conduct a

proportionality analysis. See Jackson v. State, 989 S.W.2d 842 (Tex.App.–Texarkana 1999, no

pet.) and Latham v. State, 20 S.W.3d 63 (Tex.App.–Texarkana 2000, pet. ref'd).




                                        ISSUE NUMBER TWO

        Did the Court err in revoking the Appellant’s probation when the language describing the

condition violated in the State’s Motion to Revoke Supervision failed to track the language of the

Court’s Judgment and Sentence, and when the allegation of the act relied upon as a violation

failed to allege an actual violation of the Court’s conditions of probation?



                                    SUMMARY OF ARGUMENT

        A challenge to errors in the Motion to Revoke Supervision must be raised in a motion to

quash, otherwise errors from evan a defective motion are not preserved. No complaint was


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raised by the Appellant before a hearing on the motion to revoke supervision, and the State and

the Appellant tried the issue of whether Appellant had used marijuana, an act that did violate the

terms and conditions of the Court’s order. Any error, therefore, was waived.



                                              ARGUMENT

        The Court’s judgment in this case had two conditions relevant to the circumstances of

this case: Condition 2 admonished the Defendant to “Avoid injurious or vicious habits, as well

as persons or places of disreputable or harmful character...” Condition 10 mandated that the

Defendant should not, “consume or possess....unlawful controlled substances, narcotic,

dangerous drugs, marijuana...” (CR Vol. I, Page 34, conditions 2 and 10).          The State’s

Motion to Revoke Supervision alleging that Appellant had violated Condition (2) of his

probation, that being to “Avoid injurious or vicious habits, including the use of alcohol,

controlled substances or habit forming drugs....” although no such language was specifically

contained in the judgment. ( CR Vol. I, Pages 41-43)

         The alleged violation of the Appellant’s probation was that “... the Defendant, Tyler

Dne’aundre Coleman-Cone, admits to using marijuana on 6/15/17.” ( CR Vol. I, Pages 41-43)

Admitting to using marijuana and actually using marijuana are two entirely different matters, and

arguably the State’s motion was defective for failing to state a violation of the Court’s conditions

of probation. The Conditions of probation that were part of the Court’s judgment did not

prohibit making admissions of any kind, and therefore it might have been urged that the State’s

motion completely failed to allege conduct that would have been a violation.




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        However, errors in a motion to revoke probation must be pointed out to the trial court in a

timely motion to quash. See Rodriguez v. State, 951 S.W.2d 199, 204 (Tex. App.-Corpus Christi

1997, no pet.) (citing Longoria v. State, 624 S.W.2d 582, 584 (Tex. Crim. App. 1981). In the

absence of such motion, error, if any, is waived. See Gordon v. State, 575 S.W.2d 529, 531 (Tex.

Crim. App. [Panel Op.] 1978). The question of the sufficiency of a motion to revoke probation

cannot be raised for the first time on appeal, even though the motion is in fact defective. See

Martinez v. State, 493 S.W.2d 954, 955 (Tex. Crim. App. 1973). Moreover, a motion to revoke

probation is required only to give the defendant adequate notice of the violation asserted in order

to meet minimum due process requirements; the defendant must be given fair notice upon which

he or she may prepare a defense. See Labelle v. State, 720 S.W.2d 101, 108-09 (Tex. Crim. App.

1986). The determination of whether reversible error has occurred is a three part test: (1) a court

must decide whether the motion to revoke is lacking in some requisite item of notice, and if so,

(2) the Court then decides whether in the context of the case this had an impact on the

defendant's ability to prepare a defense, and finally, (3) the extent of any such impact. See id. In

making these determinations, the entire record may be reviewed for prejudice to the defendant's

substantial rights. See id.

        No objection or motion to quash was made concerning the State’s recitation of the

condition of probation allegedly violated - the State’s description of Condition 2 in its Motion

actually appears to be an amalgam of conditions 2 and 10 from the Court’s judgment. Appellant

made no objection or motion to quash as to the conduct allegedly causing the violation of

probation - admitting to using marijuana as opposed to using marijuana. The Appellant plead

true to the allegation #2 contained in the State’s motion (RR Vol. II, Pages 8), and the parties


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proceeded to adduce evidence concerning the Appellant’s use of marijuana while on probation

(RR Vol. II, Pages 9-18). Nothing was preserved for review, and even if it had been, there did

not appear to have been any prejudicial surprise that negatively affected the Appellant’s ability to

prepare, as the parties all clearly understood the issue before the Court judging from the evidence

that they presented.




                                                PRAYER

        WHEREFORE, PREMISES CONSIDERED, the undersigned respectfully requests that
the Court review the foregoing analysis, and grant the motion to withdraw.



                                                             RESPECTFULLY SUBMITTED,

                                                             SCOTT RECTENWALD
                                                             110 W. Fannin
                                                             Marshall, Texas 75670
                                                             (903) 938-3300
                                                             (903) 938-3310- FAX


                                                             /s/ Scott Rectenwald
                                                             Scott Rectenwald
                                                             SBOT # 00794510




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                                         Certificate of Service

       The undersigned hereby certifies that a true and correct copy of the foregoing Brief was

delivered to the office of the Harrison County District Attorney, 200 W. Houston, Marshall,

Texas 75670 on January 9, 2018.



                                                                  /s/ Scott Rectenwald




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