                                                                                   ACCEPTED
                                                                               12-17-00294-CR
                                                                   TWELFTH COURT OF APPEALS
                                                                                TYLER, TEXAS
                                                                            11/29/2017 3:43 PM
                                                                                     Pam Estes
                                                                                        CLERK

                            NO. 12-17-00294-CR

                               In The                           FILED IN
                                                         12th COURT OF APPEALS
                                                              TYLER, TEXAS
                         COURT OF APPEALS                11/29/2017 3:43:19 PM
                                                                PAM ESTES
                     TWELFTH APPELLATE DISTRICT                   Clerk


                           STATE OF TEXAS

                            Tyler, Texas
             ________________________________________

            EMMETT ASBURY
                                             Appellant
                                VS.

            THE STATE OF TEXAS
                                            Appellee
             ________________________________________

                      BRIEF FOR APPELLANT
             ________________________________________


Appellate counsel:                      Melissa L. Hannah
                                        SBOT # 24035530
                                        200 E. Lufkin Ave.
                                        Lufkin, Texas 75901
                                        Telephone: (936)632-6350
                                        Facsimile:(936)632-6355
                                        melissa@melissahannahlaw.com
                                        Attorney for Emmett Asbury
               NAMES OF THE PARTIES


APPELLANT -        EMMETT ASBURY
                   TDC# 02153782
                   SID# 04875503
                   Holliday Unit
                   295 IH-45 North
                   Huntsville, Texas 77320-8443

                   Trial counsel:     John Wells
                                      SBOT # 24070826
                                      P.O. Box 535
                                      Livingston, Texas 77351

                   Appellate counsel: Melissa L. Hannah
                                      SBOT # 24035530
                                      200 E. Lufkin Ave.
                                      Lufkin, Texas 75901


APPELLEE   -       THE STATE OF TEXAS

                   Trial counsel:     Bennie Schiro
                                      SBOT#24041873
                                      Trinity County District Attorney
                                      P.O. Box 400
                                      Groveton, Texas 75845

                   Appellate counsel: Bennie Schiro
                                      SBOT#24041873
                                      Trinity County District Attorney
                                      P.O. Box 400
                                      Groveton, Texas 75845

                               i
                                       SUBJECT INDEX


NAMES OF THE PARTIES ............................................................................i

INDEX OF AUTHORITIES ......................................................................... iii

STATEMENT OF THE CASE ....................................................................... 2

PRELIMINARY STATEMENT ..................................................................... 3

GENERAL FACT STATEMENT .................................................................. 4

SUFFICIENCY OF THE EVIDENCE ........................................................... 6

SENTENCE .....................................................................................................8

EFFECTIVE ASSISTANCE OF COUNSEL ...............................................10

CONCLUSION..............................................................................................12

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

CERTIFICATE OF COMPLIANCE ............................................................15

LETTER TO APPELLANT .............................................................. Exhibit A




                                                      ii
                              INDEX OF AUTHORITIES

CASES

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ..... 3, 12


Bender v. State, 758 S.W.2d 278 (Tex. Crim. App. 1988).............................. 7


Bratchett, Ex parte, 513 S.W.2d 851 (Tex. Crim. App. 1974) .....................10


Buster v. State, 144 S.W.3d 71 (Tex. App. - Tyler 2004, no pet.) .................. 9


Culton v. State, 95 S.W.3d 401 (Tex. App - Houston [1st]
      2002, pet. ref’d) .....................................................................................9


Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974) ..................................... 3


Dinnery v. State,592 S.W.2d 343 (Tex. Crim. App. 1980) ............................. 7


Ellis v. State, 727 S.W.2d 50 (Tex. App. -- Beaumont 1987, pet. ref’d) ...... 11


Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969)..........................12


Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001) .................................. 11




                                                     iii
Garza v. State, 213 S.W.3d 338 (Tex. Crim. App. 2007) ....................................11


Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005) ............................ 11


Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680,
     115 L.Ed.2d 836 (1991) ........................................................................ 9


Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986)........................11


High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).................................. 3, 12

Ingham v. State, 679 S.W.2d 503 (Tex. Crim. App. 1984) ...........................10


Knight v. State, 481 S.W.2d 143 (Tex. Crim. App. 1972) .............................. 7


Martin, Ex parte, 747 S.W.2d 789 (Tex. Crim. App. 1988) ........................... 7


Menefee v. State, 287 S.W.3d 9 (Tex. Crim. App. 2009).............................6,7


Potts v. State, 571 S.W.2d 180 (Tex. Crim. App. 1978) ................................. 7


Roberts v. State, 220 S.W.3d 521 (Tex. Crim. App. 2007) .................................11


Sexton v. State, 476 S.W.2d 320 (Tex. Crim. App. 1972)............................... 7


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


Soto v. State, 456 S.W.2d 389 (Tex. Crim. App. 1970) .................................. 7


Sprinkle v. State, 456 S.W.2d 387 (Tex. Crim. App. 1970) ............................ 6


Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
       80 L.Ed.2d 674 (1984) ........................................................................10


Waage v. State, 456 S.W.2d 388 (Tex. Crim. App. 1970) .............................. 7


Williams, Ex parte, 703 S.W.2d 674 (Tex. Crim. App. 1986) ........................ 6


Wyatt v. State, 889 S.W.2d 691 (Tex. App. -- Beaumont 1994, no pet.) ...... 10


Yeager v. State, 658 S.W.2d 639 (Tex. App. -- Beaumont
     1983, pet. ref’d) ...................................................................................10



UNITED STATES CONSTITUTION

Eighth Amendment ..........................................................................................9




                                                     v
TEXAS CONSTITUTION

Article I, Section 13 .........................................................................................9



PENAL CODE

Section 12.34 ...................................................................................................8


Section 38.04(a) ............................................................................................. 7

Section 38.04(b)……………………………………………………………...8

CODE OF CRIMINAL PROCEDURE

Article 1.15 ..................................................................................................7, 8


Article 26.13 ....................................................................................................4


Article 27.13 ....................................................................................................4




RULES OF APPELLATE PROCEDURE

Rule 6.3 ..........................................................................................................14


Rule 9.4(i)(3) .................................................................................................15
                            NO. 12-17-00294-CR

                                   In The

                           COURT OF APPEALS

                    TWELFTH APPELLATE DISTRICT

                             STATE OF TEXAS

                             Tyler, Texas
              ________________________________________

             EMMETT ASBURY
                                                     Appellant

                                     VS.

             THE STATE OF TEXAS
                                              Appellee
              ________________________________________

                       BRIEF FOR APPELLANT
              ________________________________________

TO THE HONORABLE COURT OF APPEALS:

      Appellant, EMMETT ASBURY, Defendant in Cause No. 10,595 in the

411TH Judicial District Court of Trinity County, Texas, Kaycee L. Jones,

Judge Presiding, and Appellant before this Honorable Court, respectfully

submits this brief for the purpose of appealing his conviction and punishment

for evading arrest or detention.

      The parties will be referred to herein as Appellant and the State.



                                      1
                  STATEMENT OF THE CASE



The Charge              Evading Arrest

                        Section 38.04, TEXAS PENAL CODE (CR 003)

The Plea                Guilty (CR 013-014)

                        Plea Bargain.

The Original Sentence   Adjudication of Guilt Deferred; Community

                        Supervision for a period of Eight (8) Years. (CR

                        013-014)

Motion to Adjudicate    First Amended Motion to Adjudicate Guilt Filed

                        (CR 034-035)

Hearing and Sentence    Judgement Adjudicating Guilt; Sentenced to Texas

                        Department of Criminal Justice Institutional

                        Division for a period of Five (5) Years. (CR 038-

                        039)




                                   2
                   PRELIMINARY STATEMENT

      After a thorough and diligent review of the record, and the law

applicable thereto, I have concluded that the appeal is wholly without merit.

      In an attempt to comply with the requirements of Anders v. California,

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); High v. State, 573

S.W.2d 807 (Tex. Crim. App. 1978); and Currie v. State, 516 S.W.2d 684

(Tex. Crim. App. 1974), the following discussion of the evidence, procedure

and authorities is provided.




                                      3
                  GENERAL FACT STATEMENT

       Appellant was indicted for evading arrest. Specifically, the indictment

alleged that on August 29, 2016, Appellant while using a vehicle, intentionally

fed from Jeremy Alexander and/or Bereal Furguson a person the defendant

knew was a peace officer who was attempting to lawfully to arrest or detain

the defendant. (CR 003)

       Appellant pled guilty to the indictment. (CR 013-014) Appellant further

stipulated to the evidence. (CR 024) The trial court, deferred a finding of guilt

and placed the Appellant on probation for a period of eight (8) years. (CR 013-

014)

       On July 25, 2017 the State filed a Motion to Adjudicate Guilt. (CR 030-

031) That was followed by the filling of a First Amended Motion to

Adjudicate Guilt filed on August 10, 2017. (CR 034-035) On August 22, 2017

a hearing was conducted on the Stated First Amended Motion Adjudicate

Guilt. (RR 1-29) The State read the motion aloud and Appellant plead not true

to allegations in paragraph 1, true to allegations in paragraph 2, true in part

and not true in part to allegations in paragraph 4, true to allegations in

paragraph 9, true to allegations in paragraph 11 and not true to allegations in

paragraph 13. (RR 4-9) The trial court admonished Appellant that his pleas of
                                       4
true were enough evidence to find it that it was true that he did violate the

conditions of his probation. (RR 9) The trial court further inquired as to the

Appellants voluntary plea and the Appellant acknowledged that his plea was

free and voluntary. (RR 9-10) Both the State and Appellant waived opening

statements. (RR 10) after making appropriate inquiries of Appellant and his

trial counsel, found that Appellant was competent to stand trial. (SRR 4-6)

The trial court further found that Appellant’s plea was freely and voluntarily

made. (SRR 2-6)

      The State called Sharon Dennis with the probation department to

testify. (RR 11-12) Trial counsel for Appellant did not cross examine M.s

Dennis. (RR 12) The State then called Jeremy Alexander to testify. (RR 13-

17)   Trial counsel for Appellant only asked two questions of Jeremy

Alexander both of which did not relate to the offenses alleged in the Motion

to Adjudicate. (RR 17) The State abandoned the criminal mischief allegation

and terroristic threat allegations contained in paragraph 1 of the Motion to

Adjudicate Guilt. (RR 18) The State rested.

      Trial counsel for Appellant called the Appellant to testify. (RR 18-21)

The State as well as the trial judge cross examined the Appellant. (RR 18-26)

After closing arguments by the parties, the trial court adjudicated Appellant

                                      5
guilty and sentenced Appellant to five years confinement in the Institutional

Division of the Texas Department of Criminal Justice. (RR 28)

                SUFFICIENCY OF THE EVIDENCE

      The United States Constitution does not require that the State present

evidence in support of a guilty plea in Texas courts. Ex parte Williams, 703

S.W.2d 674, 682 (Tex. Crim. App. 1986) The State of Texas, however,

imposes additional procedural requirements and safeguards not required by

federal constitutional law. Article 1.15, CODE       OF   CRIMINAL PROCEDURE,

provides that no trial court is authorized to render a conviction in a felony case

based upon a plea of guilty without sufficient evidence to support the guilt of

the defendant. The statute expressly provides that the defendant may consent

to the introduction of evidence in testimonial or documentary form, or to an

oral or written stipulation of what the evidence against him would be.

      Alternatively, courts have recognized that the defendant may testify

under oath in open court, specifically admitting his culpability or at least

acknowledging generally that the allegations against him are in fact true and

correct. Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009) So long

as such a judicial confession covers all of the elements of the charged offense,

it will suffice to support the guilty plea. Id., Sprinkle v. State, 456 S.W.2d 387
                                        6
(Tex. Crim. App. 1970); Waage v. State, 456 S.W.2d 388 (Tex. Crim. App.

1970); Soto v. State, 456 S.W.2d 389 (Tex. Crim. App. 1970); Sexton v. State,

476 S.W.2d 320 (Tex. Crim. App. 1972); Knight v. State, 481 S.W.2d 143

(Tex. Crim. App. 1972); Potts v. State, 571 S.W.2d 180 (Tex. Crim. App.

1978).

      A stipulation of evidence or judicial confession that fails to establish

every element of the offense charged will not authorize the trial court to

convict. Dinnery v. State, 592 S.W.2d 343, 351 (Tex. Crim. App. 1980) A

conviction rendered without sufficient evidence to support a guilty plea

constitutes trial error. Menefee v. State, 287 S.W.3d 9, 14 (Tex. Crim. App.

2009); Bender v. State, 758 S.W.2d 278, 280 (Tex. Crim. App. 1988); Ex


parte Martin, 747 S.W.2d 789, 793 (Tex. Crim. App. 1988).

      A person commits the offense of evading arrest or detention if he

intentionally flees from a person he knows is a peace officer or federal special

investigator attempting lawfully to arrest or detain him. Section 38.04(a),

TEXAS PENAL CODE

      Appellant executed a stipulation of evidence which tracked the

language of the indictment. (CR 024) This stipulation was admitted into

evidence during the hearing on Appellant’s guilty plea.           Additionally,
                                       7
Appellant pled true to allegations contained in the First Amended Motion to

Adjudicate Guilt. (RR 4-9) Entering a plea of true to those allegations is in

and of itself sufficient to support an adjudication of guilt in this case.

      No argument can be made that the evidence is insufficient to support a

finding of guilty.

                                 SENTENCE

      In this case, the Appellant was charged with evading arrest. Ordinarily

evading arrest is a Class A Misdemeanor. Section 38.04(b), TEXAS PENAL

CODE. If, however, the actor uses a vehicle while the actor is in flight the

offense is a third degree felony. Section 38.04(b)(2)(A), TEXAS PENAL CODE.

Such pleading and proof is present in this case, which increases the level of

the offense committed by Appellant to a third degree felony.                 The

punishment for a violation of a third degree felony is confinement in the Texas

Department of Criminal Justice for any term not more than 10 years or less

than 2 years and a possible fine of not more than $10,000. Section 12.34,

TEXAS PENAL CODE.

      Appellant’s punishment was assessed by the trial court at 5 years

confinement and no fine or restitution. (CR 13-14)(RR 26-27) This sentence

is within the range of punishment for this offense as determined by the
                                        8
legislature and not in violation of Article I, Section 13 of the Texas

Constitution.

      Although no objection was lodged in the trial court to the length of

sentence, given the length of sentence assessed, a discussion of whether such

a sentence constitutes a cruel and unusual punishment is appropriate.

      The Eighth Amendment of the United States Constitution prohibits

cruel and unusual punishment. Although a sentence may be within the range

permitted by statute, it may nonetheless run afoul of the Eighth Amendment.

Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009, 77 L.Ed.2d 637

(1983). An assessed punishment will be grossly disproportionate to a crime

only when an objective comparison of the gravity of the offense against the

severity of the sentence reveals the sentence to be extreme. Harmelin v.

Michigan, 501 U.S. 957, 1105, 111 S.Ct. 2680, 2707, 115 L.Ed.2d 836 (1991).

Further, the reviewing court considers not only the present offense, but also

the appellant’s criminal history. Buster v. State, 144 S.W.3d 71, 81 (Tex. App.

- Tyler 2004, no pet.); Culton v. State, 95 S.W.3d 401, 402 (Tex. App -

Houston [1st] 2002, pet. ref’d).




                                      9
         An argument that the sentence assessed Appellant was grossly

disproportionate to the offense committed or an abuse of discretion cannot be

professionally advanced.

             EFFECTIVE ASSISTANCE OF COUNSEL

         When considering whether a defendant has received ineffective

assistance of counsel, the standard for review is the two-prong analysis stated

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

(1984). First, the defendant's counsel's performance must be so deficient that

he did not render reasonably effective assistance of counsel.           Ex parte

Bratchett, 513 S.W.2d 851 (Tex. Crim. App. 1974).

         Additionally, under Strickland, regardless of the mistakes or short

comings of counsel's performance, it is necessary that there be a reasonable

probability that, but for counsel's unprofessional errors, the result of the trial

would have been different. Ingham v. State, 679 S.W.2d 503 (Tex. Crim.

App. 1984); Wyatt v. State, 889 S.W.2d 691 (Tex. App. -- Beaumont 1994, no

pet.).    A defendant is not entitled to a perfect trial, only reasonable

representation. Yeager v. State, 658 S.W.2d 639 (Tex. App. -- Beaumont

1983, pet. ref’d)



                                       10
      In considering the issue of ineffective assistance of counsel, the

reviewing court must look at the totality of the representation, not isolated

incidents. Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986); Ellis

v. State, 727 S.W.2d 50 (Tex. App. -- Beaumont 1987, pet. ref’d).

      Reviewing courts, however, are reluctant to consider claims of

ineffective assistance of counsel through direct appeal. “Before granting

relief on a claim that defense counsel failed to do something, we ordinarily

require that counsel be afforded the opportunity to outline the reasons for the

omission.” Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007).

“If counsel's reasons for his conduct do not appear in the record and there is

at least the possibility that the conduct could have been grounded in legitimate

trial strategy, we will defer to counsel's decisions and deny relief on an

ineffective assistance claim on direct appeal.” Garza v. State, 213 S.W.3d 338,

348 (Tex. Crim. App. 2007). Only when the challenged conduct is “so

outrageous that no competent attorney would have engaged in it” is counsel's

performance declared to be deficient without first providing him an

opportunity to explain his actions. Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.

Crim. App. 2001)).

                                      11
       Evidence offered at the sentencing hearing consisted of testimony of

the Appellant and his mother and father. This is a tactical decision which

should not be questioned without comment from trial counsel. The record

contains no instance of an omission or commission by trial counsel which, in

the professional opinion of the undersigned, possibly adversely effected the

result of Appellant's trial. In the opinion of the undersigned, nothing of the

trial counsel’s actions, collectively or individually, constitute ineffective

assistance of counsel. No argument can be professionally advanced that

Appellant was prejudiced, in any way, by his counsel's performance before or

during the trial.

                             CONCLUSION

       For the reasons stated, it is respectfully requested that this Honorable

Court accept this brief, review the record of this cause and make such rulings

as it deems appropriate in accordance with Anders v. California, 386 U.S.

738, 87 S.Ct. 1396, 18 L.Ed2d 493 (1967) and High v. State, 573 S.W.2d 807

(Tex. Crim. App. 1978).

       In compliance with Anders, supra, and Gainous v. State, 436 S.W.2d

137 (Tex. Crim. App. 1969), I further request that the Court grant the Motion



                                      12
to Withdraw, filed herewith, and allow Appellant to file a pro se brief raising

any points that he deems proper.

                                              Respectfully submitted,




                                              _________________________
                                              Melissa L. Hannah
                                              Attorney at Law
                                              State Bar No. 24035530
                                              204 E. Lufkin Ave.
                                              Lufkin, Texas 75901
                                              Telephone: (936)632-6350
                                              Facsimile: (936)632-6355




                                      13
                     CERTIFICATE OF SERVICE

        In accordance with the requirements of Rule 6.3, RULES OF APPELLATE

PROCEDURE, I do hereby certify that a true and correct copy of the foregoing

Brief for Appellant was delivered by electronic filing, to Bennie Schiro,

District Attorney for Trinity County, Texas, on this the 29th day of November,

2017.

        Further, I do hereby certify that a true and correct copy of this brief, a

copy of the entire record, and a letter of instructions have been delivered by

certified mail, return receipt requested, to Appellant on this the 29th day of

November, 2017. A copy of the letter of instructions is attached hereto as

Exhibit A.




                                                _________________________
                                                Melissa L. Hannah




                                        14
              CERTIFICATE OF COMPLIANCE

     In accordance with the requirements of Rule 9.4(i)(3), RULES   OF

APPELLATE PROCEDURE, I do hereby certify that the foregoing Brief for

Appellant was computer-generated and contains 2844 words, excluding the

items designated in Rule 9.4(i)(1) RULES OF APPELLATE PROCEDURE.




                                         _________________________
                                         Melissa L. Hannah




                                  15
                             Melissa L. Hannah
                                       Attorney at Law
                                          November 29, 2017
Emmett Asbury – Inmate #02153782
Holliday Unit
295 IH-45 North
Huntsville, Texas 77320-8443


      RE:     Cause No. 12-17-00294-CR; Emmett Asbury vs. The State of Texas

Dear Mr. Asbury:
      Enclosed please find a copy of the brief I filed in with the Court of Appeals in
your case. The brief states that after reviewing the entire record, I could not find
anything which would constitute reversible error. I am not perfect and may have missed
something. For this reason, I have asked the Court of Appeals to put the appeal on
hold so that you can have the opportunity to review the record and file a brief if you
want to.
       I am also enclosing copies of the Clerk’s Record and the Reporter’s Record
(typed record of the court reporter’s notes) adjudication hearing and a copy of a Motion
to Withdraw.
      The Court of Appeals will let you know by letter when the deadline is for filing
another brief. If you do file a paper brief, six copies need to be mailed to:
                        Pam Estes, Clerk
                        Twelfth Court of Appeals
                        1517 West Front Street, Suite 354
                        Tyler, Texas 75702


      One additional copy of the brief should be mailed to Bennie Schiro, District
Attorney, P.O. Box 400, Groveton, Texas 75845.




         204 East Lufkin Avenue ●Lufkin, Texas 75901●Telephone: (936) 632-6350●Facsimile: (936)632-6355
                                      Email: melissahannah@consolidated.net



                                         EXHIBIT A
      In the event the Court of Appeals affirms your conviction, the next step of the
process, if you wish to pursue it, is called discretionary review by the Court of Criminal
Appeals in Austin.

       Although the Court of Criminal Appeals is not required to review your case, they
may if you so request. If you decide to continue beyond the Court of Appeals level, you
should file, within 30 days of the date of the opinion of the Court of Appeals, a petition
for discretionary review the Court of Criminal Appeals. The specific procedure is
contained in Rule 68 of the Rule of Appellate Procedure.


                                                   Sincerely,




                                                   Melissa L. Hannah




         204 East Lufkin Avenue ●Lufkin, Texas 75901●Telephone: (936) 632-6350●Facsimile: (936)632-6355
                                      Email: melissahannah@consolidated.net



                                         EXHIBIT A
