                                                                                     ACCEPTED
                                                                                06-14-00177-CR
                                                                      SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                          3/25/2015 10:52:07 AM
                                                                                DEBBIE AUTREY
                                                                                         CLERK

                         NO. 06-14-00177-CR

                  IN THE COURT OF APPEALS FOR THE              FILED IN
                                                        6th COURT OF APPEALS
                                                          TEXARKANA, TEXAS
                   SIXTH JUDICIAL DISTRICT OF TEXAS     3/25/2015 10:52:07 AM
                                                             DEBBIE AUTREY
                                                                 Clerk
                           AT TEXARKANA
___________________________________________________________________

                  MARTIN LUTHER BURNS, Appellant

                                 VS.

                     THE STATE OF TEXAS, Appellee
___________________________________________________________________

                     Trial Court Cause No. F12698

                 IN THE 115TH JUDICIAL DISTRICT COURT

                       MARION COUNTY, TEXAS

___________________________________________________________________

                       STATE’S APPELLATE BRIEF
___________________________________________________________________



                                            Angela Smoak
                                            Marion County Attorney
                                            102 West Austin, Room 201
                                            Jefferson, Texas 75657
                                            (903) 665-2611
                                            (903) 665-3348 (fax)
                                            State Bar No. 00797466


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                         TABLE OF CONTENTS


TABLE OF CONTENTS …………………………………………………………………………               i

INDEX OF AUTHORITIES …………………………………………………………………….             ii

STATEMENT OF THE CASE …………………………………………………………………              1

REPLY TO APPELLANT’S POINT OF ERROR NO. 1 ……………………………….      2

     THE TRIAL COURT’S SENTENCE OF FIFTY YEARS CONFINEMENT
     WAS NOT EXCESSIVE NOR DISPROPORTIONATE.

REPLY TO APPELLANT’S POINT OF ERROR NO. 2 ………………………………       3

     APPELLANT’S GRANT OF DEFERRED PROBATION FOR THE
     OFFENSE OF AGGRAVATED KIDNAPPING DOES NOT
     CONSTITUTE AN UNAUTHORIZED GRANT OF PROBATION.

PRAYER …………………………………………………………………………………………….                  4

CERTIFICATE OF SERVICE ………………………………………………………………….            5

CERTIFICATE OF COMPLIANCE ………………………………………………………….            5




                                 i
                            INDEX OF AUTHORITIES

Cases:

Cole v. State, 578 SW2d 127 (Tex. Crim. App. 1979) ……………………………   2

Hargrave v. State, 2004 WL 1277946 *1
      (not designated for publication) ………………………………………………..      3

Mullins v. State, 208 SW3d 469, 470
      (Tex. App. – Texarkana 2006, no pet.) ……………………………………       3




Statutes:

Texas Code of Criminal Procedure, Article 42.12




                                        ii
                             STATEMENT OF THE CASE

      On September 30, 2003, the Appellant was placed on a five year deferred

adjudication community supervision (probation) for the offense of Aggravated

Kidnapping. [CR 4, 28] The judgment, at one point on the first page indicated the

probation was for three years but the body of the judgment showed the probation

was for five years, as does the docket sheet. [CR 4, 28] The probation was

specifically shown by the record to be a non-reporting probation. [CR 4, 22] The

requirement of community work service and probation fees were also waived. [CR

22] The State filed a Motion to Adjudicate the probation on August 10, 2004. [CR

31] The probation was amended on November 22, 2004, to extend the probation

for five more years from the original term and DID include a reporting obligation.

[CR 33] On August 29, 2011, the State filed a Motion to Adjudicate setting out

violations of the probation alleging the Appellant committed a new offense (Injury

to a Child), and used cocaine. [CR 34] The hearing on this motion was not held

until September 22, 2014 due to Appellant’s incarceration. After a hearing was

held regarding a motion filed by Appellant’s trial counsel seeking a dismissal of the

State’s motion, which was denied, the Appellant pled true to the State’s allegations

and the trial court adjudicated the Appellant guilty of the underlying charge and




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sentenced him to fifty (50) years confinement in prison. [2RR 23, 2RR 4, 5 and CR

36]



             REPLY TO APPELLANT’S POINT OF ERROR NUMBER ONE
                      (from Appellant’s attorney’s brief)

                             APPELLANT’S ASSERTION

      “The trial court’s sentence of fifty years confinement was excessive
      and disproportionate.”

                                  STATE’S REPLY

      THE TRIAL COURT’S SENTENCE OF FIFTY YEARS CONFINEMENT WAS
      NOT EXCESSIVE NOR DISPROPORTIONATE.

                             SUMMARY OF THE ARGUMENT

      Appellant knowingly and voluntarily pled true to the allegations in the State’s

Motion to Adjudicate. Subsequently, the Court found those allegations to be true

and sentenced Appellant to fifty years.

      A plea of true made to allegations that conditions of probation were violated

is sufficient on its own to support revocation of said probation. Cole v. State, 578

SW2d 127 (Tex. Crim. App. 1979) The trial court is then authorized to assess

punishment within the range allowed by law.




                                          2
      Appellant now objects that the sentence was excessive and

disproportionate. However no objection was made at trial nor in a motion

for new trial. Therefore, Appellant has failed to preserve any error. Hargrave

v. State, 2004 WL 1277946 *1 (not designated for publication) Further,

Appellant fails to present any reason why his sentence is grossly

disproportionate to the crime. The punishment itself falls in the middle of

the range of punishment for a first degree felony. Finally, even if Appellant

had met this threshold requirement, he has failed to provide any instance of

sentences for similar crimes in this jurisdiction as well as others. Mullins v.

State, 208 SW3d 469, 470 (Tex. App. – Texarkana 2006, no pet.)



             REPLY TO APPELLANT’S POINT OF ERROR NUMBER TWO
                        (from Appellant’s pro se brief)

                             APPELLANT’S ASSERTION

      “The charge of Aggravated Kidnapping is unauthorized to
      receive a probation sentence of non-reporting, non-supervised,
      no community service or any recommended classes or drug
      testing for an accused 1 degree felony.”

                                   STATE’S REPLY

      APPELLANT’S GRANT OF DEFERRED PROBATION FOR THE
      OFFENSE OF AGGRAVATED KIDNAPPING DOES NOT
      CONSTITUTE AN UNAUTHORIZED GRANT OF PROBATION.

                                          3
                        SUMMARY OF THE ARGUMENT

      Article 42.12, Sec. 5 of the Texas Code of Criminal Procedure

specifically authorizes the Court to grant deferred adjudication for felonies

not entitled to a grant of probation under Article 42.12, sec. 3(g). As such,

Appellant’s deferred adjudication does not constitute unauthorized grant of

probation as argued by Appellant.

                                     PRAYER

      Wherefore, upon the issues presented, the State prays that the judgment

of the trial court be in all things affirmed.

                                                Respectfully submitted,


                                                s/Angela Smoak
                                                Angela Smoak
                                                Marion County Attorney
                                                102 W. Austin, Room 201
                                                Jefferson, Texas 75657
                                                (903) 665-2611
                                                (903) 665-3348 (fax)
                                                State Bar # 00797466
                                                angela.smoak@co.marion.tx.us




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                              CERTIFICATE OF SERVICE

      I hereby certify that a copy of State’s Appellate Brief was mailed to Appellant
and to Tim Cone, Attorney, pursuant to the Rules on this the 25th day of March,
2015.

                                              /s/ Angela Smoak
                                              Angela Smoak



                           CERTIFICATE OF COMPLIANCE

     I certify that this Brief filed electronically on this the 25th day of March, 2015
complies with T.R.A.P. Sec. 9.4(i)(2)(B) and contains 934 words.

                                              /s/ Angela Smoak
                                              Angela Smoak




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