                                                                                     ACCEPTED
                                                                                 13-15-00195-CR
                                                                 THIRTEENTH COURT OF APPEALS
                                                                        CORPUS CHRISTI, TEXAS
                                                                            5/28/2015 4:38:31 PM
                                                                               DORIAN RAMIREZ
                                                                                          CLERK

                    CAUSE NO. 13-15-00195-CR

               IN THE COURT OF APPEALS RECEIVED IN
                                      13th COURT OF APPEALS
    FOR THE THIRTEENTH JUDICIAL DISTRICT     OF TEXAS TEXAS
                                   CORPUS CHRISTI/EDINBURG,
               AT CORPUS CHRISTI, TEXAS5/28/2015 4:38:31 PM
                                                   DORIAN E. RAMIREZ
                                                        Clerk

                                                                    FILED
                        CARMINA PADROZ,                   IN THE 13TH COURT OF APPEALS
                                                            CORPUS CHRISTI - EDINBURG

                                          Appellant,             5/28/2015
                                                         CECILE FOY GSANGER, CLERK
                                  V.                     BY scarranza


                      THE STATE OF TEXAS,

                                          Appellee,


    Appeal from the 36th District Court of Live Oak County, Texas
                 Cause Number L-00-0078-2-CR-B


             BRIEF OF DEFENDANT - APPELLANT
         Pursuant to Anders v. California, 386 U.S. 738 (1967)


                                       TRAVIS BERRY
                                       State Bar No. 24059194
                                       P.O. Box 6333
                                       Corpus Christi, Texas 78466
                                       Telephone: (361) 673-5611
                                       Facsimile: (361) 442-2562
                                       travisberrylaw@gmaail

                                       ATTORNEY FOR APPELLANT

ORAL ARGUMENT NOT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL

      The following list is a complete list of all parties, as well as names and

addresses of all counsel:

PARTIES:                                       COUNSEL:

Appellant:                                     For Appellant (Trial):

Carmina Padroz                                 Jessica Canter
TDC: 01773183                                  Texas Bar No. 24086671
Ferguson Unit                                  331A N. Washington Street
12120 Savage Drive                             Beeville, Texas 78102
Midway, Texas 75852                            Telephone: (361) 358-1925

                                               For Appellant:

                                               Travis Berry
                                               Texas Bar No. 24059194
                                               P.O. Box 6333
                                               Corpus Christi, Texas 78466
                                               Telephone: (361) 673-5611
                                               Facsimile: (361) 442-2562

Appellee:                                      For Appellee:

The State of Texas                             Jose Aliseda
                                               Texas Bar No. 01012900
                                               Live Oak County District Attorney
                                               111 S. St. Mary's Street - Ste. 203
                                               Beeville, Texas 78102
                                               361-621-1550

                                               James Sales (assistant prosecutor)
                                               Texas Bar No. 17531960


                                          ii
                                          TABLE OF CONTENTS

CONTENT:

PAGE:

The Parties and Their Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Arguable Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii

Anders Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

         Arguable Issue I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

         Arguable Issue II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

         Arguable Issue III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Conclusion and Request for Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14




                                                            iii
                                  INDEX OF AUTHORITIES

CASES:                                                                                    PAGE:

Allbright v. State, 13 S.W.3d 817 (Tex. App.–Fort Worth 2000, pet. ref’d) . . . . . 3

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967) . . . . . . . . . . . . . . passim.

Cantu v. State, 842 S.W.2d 667 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . 2, 4, 6

Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984) . . . . . . . . . . . . . . . . . . 2

Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . 3

Davis v. State, 905 S.W.2d 655 (Tex.App.-Texarkana 1995, pet. ref'd) . . . . . . . . 6

Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) . . . . . . 4

Graham v. Florida, 560 U.S. 48 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Harmelin v. Michigan, 501 U.S. 957 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) . . . . . . . . . . . . . 10

High v. State, 573 S.W.2d 807 (Tex.Crim.App. [Panel Op.] 1978) . . . . . . . . . . . . 2

Jackson v. State, 645 S.W.2d 303 (Tex. Crim. App. 1983) . . . . . . . . . . . . . . . . . . 2

Johnson v. State, 885 S.W.2d 641 (Tex. App. – Waco 1994) . . . . . . . . . . . . . . 1, 2

Jordan v. State, 495 S.W.2d 949 (Tex.Crim.App. 1973) . . . . . . . . . . . . . . . . . . . . 6

Joseph v. State, 3 S.W.3d 627 (Tex. App.-Houston [14 Dist.] 1999, no pet.) . . . . 3

Lockyer v. Andrade, 538 U.S. 63 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Martin v. State, 571 S.W.2d 20 (Tex. Crim. App.1978) . . . . . . . . . . . . . . . . . . . . . 4

                                                    iv
Mattias v. State, 731 S.W.2d 936 (Tex. Crim. App. 1987) . . . . . . . . . . . . . . . . . . . 4

Miller v. Alabama, 132 S.Ct. 2455 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Moore v. State, 11 S.W.3d 495 (Tex. App. Houston [14th Dist.] 2000, no pet.) . . 3

Solem v. Helm, 463 U.S. 277 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Staten v. State, 328 S.W.3d 901 (Tex. App.–Beaumont 2010, no pet.) . . . . . . . . . 4

Strickland v. Washington, 466 U.S. 668, 104S.Ct.2052, 80L.Ed.2d 674(1984) . 9, 10

Thompson v. State, 9 S.W.3d 808 (Tex.Crim.App.1999) . . . . . . . . . . . . . . . . . . . 10

United States v. Johnson, 527 F.2d 1328 (5th Cir. 1976) . . . . . . . . . . . . . . . xii, 1, 2

Weems v. United States, 217 U.S. 349 (1910) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Williamson v. State, 175 S.W.3d 522 (Tex.App.-Texarkana 2005, no pet.) . . . . . 6

STATUTES & RULES                                                                             PAGE:

EIGHTH AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

TEX. CONST. Art. 1 Sec. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7




                                                      v
                          STATEMENT OF THE CASE

      On October 31, 2000, Appellant was indicted for possessing marijuana in

excess of fifty (50) pounds but less than two thousand (2,000) pounds. (CR6)

Appellant was represented by counsel (CR15), pled guilty via a plea agreement

(CR 29, 72) and was granted a deferred probation for a period of ten (10) years.

(CR41, 72)

      On July 24, 2002, The State filed a motion to revoke probation. (CR 84)

A hearing on the State’s motion was conveined on May 1, 2015 wherein Appellant

pled true to all alleged violations of probation. The trial court found that Appellant

had violated conditions of her community supervision, adjudicated her guilt,

revoked Appellant’s community supervision, and sentenced Appellant to six (6)

years incarceration in the Institutional Division of the Texas Department of

Criminal Justice. (CR161)




                                          vi
              STATEMENT REGARDING ORAL ARGUMENT

      Oral argument is not requested. Counsel has moved to withdraw and has

filed this brief pursuant to Anders v. California, 386 U.S. 738 (1967). After careful

study of the record and the applicable law, it is the good faith belief and

professional opinion of counsel that this case presents no non-frivolous basis for

appeal.




                                          vii
               ARGUABLE ISSUES PRESENTED:

ARGUABLE ISSUE NO. 1:

    THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN

REVOKING APPELLANT’S COMMUNITY SUPERVISION.

ARGUABLE ISSUE NO. 2:

    NO MERITORIOUS LEGAL CLAIM EXISTS RELATED TO THE

IMPOSITION OF PUNISHMENT IN THIS CASE.

ARGUABLE ISSUE NO. 3:

    INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IS NOT A VIABLE

CLAIM BASED UPON THE RECORD BEFORE THIS COURT.




                             viii
                             STATEMENT OF FACTS

      On October 31, 2000, Appellant was indicted for possession of marijuana, a

second degree felony. (CR 6) On November 29, 2000, Appellant reached a plea

agreement was placed on deferred adjudication for ten (10) years. (CR 41, 72)

      On January 22, 2010, Appellant waived her right to a jury trial and to the

confrontation of witnesses (CR 24-26), and pleaded guilty to the charge, judicially

confessed to committing the offense (CR 33), and stipulated to evidence

supporting her plea.(CR 43). Appellant signed the trial courts written

admonishments on her statements given and her plea of guilty (CR 29-35)

      The trial court accepted Appellant’s plea deferred adjudication of

Appellant’s guilt, and placed her on community supervision for ten years, with

conditions of such supervision to include placement at a Substance Abuse Felony

Punishment Facility. (CR 72) The trial court’s order to that effect was signed on

February 9, 2001. (CR 77).

      Appellant was given a chance to have her probation transferred to her home

state of California. On January 17, 2002, the Court granted Appellant travel to

California from January 16, 2002, until March 16, 2002, for the purpose of

securing a place to live before a transfer could occur. (CR 83) Appellant was to

stay in contact and report to probation until the Interstate Compact channels had

                                         ix
completed Appellant’s probation transfer to California.

      On May 1, 2002, the probation department made contact with Appellant in

California on her failure to return to Texas via U.S. Certified Mail; Appellant

signed the return receipt card for Certified Mail No. 70012510000898290495. In

this certified letter, the probation department notified Appellant of her failure to

return to Texas as ordered and directed her to appear at the probation office on

May 31, 2002, at 1:00 p.m.. Appellant never returned to Texas. On July 24, 2002,

the probation department filed a report alleging that Appellant had absconded

from Texas probation and the Court’s order.

      On July 24, 2002, the State filed a motion to adjudicate Appellant’s guilt

and revoke her community supervision, alleging that she had violated several

conditions of such supervision. (CR 102). On April 15, 2015, the trial court heard

that motion, accepted Appellant’s pleas of true to all of the allegations in such

motion (RR2 - 7, 8), received evidence, and found that Appellant had violated the

conditions of his community supervision for which she had entered pleas of true.

(RR2 3 - 12)

      Defense counsel argued that Appellant’s ten (10) year probationary period

had ended, that Appellant had not committed any violent offenses since the

inception of this case, and that the trial court should terminate Appellant’s

                                           x
probation. (RR2 - 10) The State argued that the possession of 183 pounds of

marijuana, followed by Appellant’s thirteen (13) year disappearance after SAF-PF

did not warrant a termination of probation, rather it warranted a “sentence”. (RR2 -

11)

      The trial court revoked Appellant’s community supervision, adjudicated her

guilty of possession of marijuana in the second degree, and sentenced her to six

(6) years in the Institutional Division of the Texas Department of Criminal Justice.

(CR 161, RR2 - 12)




                                         xi
                              SUMMARY OF ARGUMENT

      Under Anders, a court-appointed attorney may not raise an issue in an

appeal if he makes a conscientious examination of the case and finds the appeal is

wholly frivolous.1. To comply with Anders, counsel must isolate possibly

important issues and furnish the court with references to the record and legal

authorities to aid it in its appellate function.2. After the appellant is given an

opportunity to respond, the court makes a full examination of the record to detect

whether the case is frivolous.3

      Appellant’s court-appointed counsel has reviewed the Clerk’s Record and

Reporter’s Record from the Trial Court, the sentence received by Appellant and

the factual basis for the sentence. As set forth in the Brief, there are no non-

frivolous issues.




      1
          Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396 (1967)
      2
          United States v. Johnson, 527 F.2d 1328, 1329 (5th Cir. 1976)
      3
          Anders at 744

                                                xii
                              CAUSE NO. 13-15-00195-CR

                      IN THE COURT OF APPEALS
           FOR THE THIRTEENTH JUDICIAL DISTRICT OF TEXAS
                      AT CORPUS CHRISTI, TEXAS


                                   CARMINA PADROZ,
                                               Appellant,
                                         V.

                                THE STATE OF TEXAS,
                                               Appellee,


           Appeal from the 36th District Court of Live Oak County, Texas
                        Cause Number L-00-0078-2-CR-B


                    BRIEF OF DEFENDANT - APPELLANT
                Pursuant to Anders v. California, 386 U.S. 738 (1967)


       Appellant in the above referenced cause number files this Anders Brief and

would show the Court the following:

       After a detailed search of the record, Appellant’s court-appointed counsel

has been unable to find any non-frivolous error.4


       4

A frivolous appeal has been defined as an appeal in which the result is obvious or the arguments
of error are wholly without merit. Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir. 1988). This
Court defined a .frivolous appeal. as one where .the only theories that the attorney can discover
after this conscientious review of the record and the law are ‘arguments that cannot conceivably
persuade the court…’. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App. – Waco 1994). Any

                                                1
                                        The Anders Brief

       The purpose of an Anders brief is to support counsel‘s Motion to Withdraw

by showing he has performed a conscientious examination of the record and the

appeal is so frivolous that an appellant should be denied his constitutional right to

appointed counsel on appeal. The ultimate test of an Anders brief is whether it

contains a professional evaluation of the record demonstrating why, in effect, there

are no arguable grounds to be advanced.

                                      Standard of Review

       Appellate review of an order revoking community supervision is limited to

determining whether the trial court abused its discretion. Cardona v. State, 665

S.W.2d 492, 493 (Tex. Crim. App. 1984).

       An abuse of discretion occurs where the trial judge’s decision was so wrong

that it falls outside the zone within which reasonable persons might disagree.

Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). Courts of Appeal

examine the evidence in the light most favorable to the trial court’s order revoking

community supervision. Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App.



point which is .arguable on [the] merits. is, by definition, not frivolous. Johnson at 645. Yet
another definition is an appeal is .frivolous. when .the trial court‘s ruling[s were] correct. or .the
appellant was not harmed by the ruling[s].. High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App.
[Panel Op.] 1978).

                                                   2
1983)

                 Burden of Proof on Motions to Revoke Probation

        The State’s burden of proof on a motion to revoke community supervision is

by a preponderance of the evidence that the terms of community supervision were

violated. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The State

satisfies its burden of proof when the greater weight of credible evidence before

the court creates a reasonable belief that it is more probable than not that a

condition of probation has been violated as alleged in the motion to revoke.

Joseph v. State, 3 S.W.3d 627 (Tex. App.—Houston [14 Dist.] 1999, no pet.).

        A plea of true to any one of the alleged violations contained in a motion to

revoke is sufficient to support the trial court's order revoking community

supervision. Moore v. State, 11 S.W.3d 495, 498 n.1 (Tex. App. Houston [14th

Dist.] 2000, no pet.). Once a plea of true has been entered, a defendant may not

challenge the sufficiency of the evidence to support the subsequent revocation. Id.5

        In a community supervision revocation hearing, the trial judge is the sole

trier of fact and determines the credibility of the witnesses and the weight to be

given to their testimony. Allbright v. State, 13 S.W.3d 817, 819 (Tex. App.–Fort


        5
          (citing Rincon v. State, 615 S.W.2d 746, 747 (Tex. Crim. App. [Panel Op.] 1981); Cole
v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979); Hays v. State, 933 S.W.2d
659, 661 (Tex. App. San Antonio 1996, no pet.)).

                                               3
Worth 2000, pet. ref’d); Martin v. State, 571 S.W.2d 20, 22 (Tex. Crim. App.

1978). The trial judge may accept or reject any or all of the witness’ testimony.

Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987).

                                Abuse of Discretion

      While the defendant at a revocation of community supervision proceeding

need not be afforded the full range of constitutional and statutory protections that

are available at a criminal trial, a person on community supervision is entitled to

certain due process protections. Staten v. State, 328 S.W.3d 901, 905 (Tex.

App.–Beaumont 2010, no pet.); see Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93

S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973).

      An abuse of discretion occurs where the trial judge’s decision was so wrong

that it falls outside the zone within which reasonable persons might disagree.

Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).

                          The “Arguable Issues of Law”

ARGUABLE ISSUE NO. 1:            THE TRIAL COURT DID NOT ABUSE ITS

DISCRETION WHEN REVOKING APPELLANT’S COMMUNITY

SUPERVISION.

      The trial court took Appellant’s pleas of true and found that all allegations

of violations were true. Of those violations, the most obvious for the trial court to

                                          4
consider was Appellant’s knowledge of her status as being in violation of the

probation order from the 36th District Court to return to Texas and never returning

to Texas until being extradited from Arizona. (CR 109)

      At the hearing, the trial court engaged Appellant and determined that:

      •      Appellant’s had received her conditions of probation (RR2 - 4)

      •      Appellant understood the conditions of her probation (RR2 - 4)

      •      Appellant had received her condition of probation (RR2 - 4)

      •      Appellant understood she was being sentenced that day (RR2 - 5)

      •      Appellant understood she could be sent to prison (RR2 - 6)

      •      Appellant was not mentally ill and was sober (RR2 - 6)

      •      Appellant was satisfied with her legal representation (RR2 - 6)


      Of Appellant’s probation violations, the most glaring for the trial court to

consider was Appellant’s knowledge of her status as being in violation of the

probation order from the 36th District Court to return to Texas and never returning

to Texas until being extradited from Arizona. (CR 109)

      Viewing the evidence in the light most favorable to the trial court’s ruling,

and giving deference to that court as the sole trier of facts, the credibility of the

witnesses, and the weight to be given to the evidence presented, it cannot be said



                                           5
that the trial court abused its discretion in finding that the weight of the credible

evidence before it created a reasonable belief that Appellant violated a condition

of her community supervision, particularly when Appellant did not challenge any

of the violations to which she pleaded true.

      The trial judge’s decision to revoke Appellant’s community supervision

rather than simply terminate the probation, in light of the violations, does not fall

outside the zone within which reasonable persons might disagree. Cantu v. State,

842 S.W.2d 667, 682 (Tex. Crim. App. 1992).



ARGUABLE ISSUE NO. 2: NO MERITORIOUS LEGAL CLAIM EXISTS

RELATED TO THE IMPOSITION OF PUNISHMENT IN THIS CASE.

                     Applicable Law and Standard of Review

      The Legislature is vested with the power to define crimes and prescribe

penalties. See Davis v. State, 905 S.W.2d 655, 664 (Tex.App.-Texarkana 1995,

pet. ref'd). “Texas courts have traditionally held that, as long as the punishment

assessed is within the range prescribed by the Legislature in a valid statute, the

punishment is not excessive, cruel, or unusual." Williamson v. State, 175 S.W.3d

522, 524 (Tex.App.-Texarkana 2005, no pet.) (citing Jordan v. State, 495 S.W.2d

949, 952 (Tex.Crim.App. 1973)).

                                           6
      The Eighth Amendment to the United States Constitution provides that

“[e]xcessive bail shall not be required, nor excessive fines, nor cruel and unusual

punishment inflicted.” U.S. CONST. amend. VIII. “The concept of proportionality

is central to the Eighth Amendment.” Miller v. Alabama, 132 S.Ct. 2455, 2463

(2012) (citing Graham v. Florida, 560 U.S. 48, 59 (2010)). “Embodied in the

Constitution’s ban on cruel and unusual punishments is the ‘precept of justice that

punishment for crime should be graduated and proportioned to [the] offense.’”

Graham, 560 U.S at 59 (quoting Weems v. United States, 217 U.S. 349, 367

(1910)). TEX. CONST. Art. 1 Sec. 13. “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel or unusual punishment inflicted.”

      United States Supreme Court cases that have addressed contests to the

proportionality of sentences fall within two general classifications: (1) challenges

to the length of term-of-years sentences given all the circumstances in a particular

case; and (2) cases in which a proportionality standard is implemented by certain

categorical restrictions on the death penalty. Id.

      In a “term-of-years” proportionality challenge, we consider all of the

circumstances of the case to determine whether the sentence is unconstitutionally

excessive. Graham, 560 U.S. at 59. We begin our analysis with a threshold

comparison of the gravity of the offense and the severity of the sentence. Id.

                                           7
(citing Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J.

concurring)). In the “rare case” in which the threshold comparison “leads to an

inference of gross disproportionality,” we then compare the defendant’s sentence

with the sentences received by other offenders in the same jurisdiction and with

the sentences imposed for the same crime in other jurisdictions. Id. If the analysis

“validates an initial judgment that the sentence is grossly disproportionate, the

sentence is cruel and unusual.” Id.

                                      Analysis

      The crime for which Appellant pled guilty has a two (2) to twenty (20) year

range of punishment. Appellant’s plea agreement “capped” her punishment at a ten

(10) year maximum. After hearing overwhelming evidence that Appellant violated

her probation, the trial court revoked her probation. At this juncture, the trial court

was authorized to impose a term of imprisonment up to ten (10) years.

      In Solem v. Helm, 463 U.S. 277 (1983), standards were set to guide a

reviewing court to determine if the sentence violated the Eighth Amendment,

including comparing gravity of offense against severity of sentence. If such seems

extreme, the Court should compare sentences for similar crimes in the jurisdiction

and sentences for the same crime in other jurisdictions. Harmelin v. Michigan, 501

U.S. 957, 1006 (1991). See also Lockyer v. Andrade, 538 U.S. 63 (2003).

                                           8
      Under the totality of the circumstances - the gravity of possessing 183

pounds of marijuana, the complete lack of response to the State’s orders through

the 36th Judicial District Court to report to probation, the complete lack of

response after signing for a Certified Mail letter directing her return to Texas - it

was very likely that this Appellant could have received the full ten (10) year

punishment term. The trial court applied its discretion and decided on a six (6)

year term, four (4) years less than could have been imposed. In Texas, receiving a

six (6) year term of imprisonment for possessing such a large quantity of

marijuana is not an unusual punishment for such a crime.

      Under Harmelin v. Michigan, 501 U.S. 957 (1991) and the 8th Amendment,

Appellant’s six (6) year sentence was not an extreme sentence that was grossly

disproportionate to the crime itself and was not cruel or unusual.



ARGUABLE ISSUE NO. 3: INEFFECTIVE ASSISTANCE OF TRIAL

COUNSEL IS NOT A VIABLE CLAIM BASED UPON THE RECORD

BEFORE THIS COURT.

      Claims of ineffective assistance of counsel under the two-prong test set out

by the United States Supreme Court in Strickland v. Washington6 and adopted by


      6
          466 U.S. 688 (1984) , 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

                                               9
Texas in Hernandez v. State. 7 Appellant must show that trial counsel’s

performance was deficient, that is, counsel’s representation fell below an objective

standard of reasonableness. 8

       Appellant must also show that counsel’s deficient performance prejudiced

his defense. Strickland at 687. This requires Appellant show there is a reasonable

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

proceeding would have been different. Id. at 694. A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Id. at 694

       In reviewing an ineffective assistance of counsel claim, there is a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance and the appellant must overcome the presumption that the

challenged conduct might be considered sound trial strategy. Thompson at 813.

Any allegation of ineffectiveness must be firmly founded and affirmatively

demonstrated in the record to overcome this presumption. It is the Appellant‘s

burden to prove ineffective assistance of counsel by a preponderance of the

evidence. Id. at 813.



       7
           726 S.W.2d 53, 57 (Tex. Crim. App. 1986)
       8
        Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999); Strickland, 466 U.S. at
687-88, 104 S.Ct. at 2064

                                              10
                                      Analysis

      Counsel was appointed to represent Appellant to assure she receive

effective legal assistance in this case and to present any possible defenses to the

State’s allegations that Appellant had violated terms of probation.

      It is clear that Appellant violated all terms of her probation and absconded

from Texas in doing so. Appellant pled true to all allegations because they were in

fact true. It is unforeseeable that any attorney practicing criminal defense in any

jurisdiction could mount a successful defense to the State’s allegations. Most

notably the allegation that Appellant left Texas as was proved by her arrest in

Arizona.

      Appellant’s defense was not prejudiced by any action or in-action taken by

defense counsel as there was no viable defense to the State’s allegations in this

case. The probability that Appellant would have her probation revoked after

absconding for over thirteen (13) years is highly likely.

      Faced without any defense to the State’s allegations, defense counsel asked

the trial court to consider a termination of probation as opposed to a sentence of

imprisonment. The trial court did not side with the defense and chose, within its

right to do so, a sentence of imprisonment.




                                          11
      Based on this record, no legitimate non-frivolous basis exists to argue trial

counsel was constitutionally ineffective.

                 CONCLUSION AND RELIEF REQUESTED

      For the reasons set forth, Appellant’s counsel urges that this appeal presents

no legally non-frivolous questions. Appellate Counsel requests this Court to Grant

his Motion to Withdraw. Appellant urges the Court for such other relief as

Appellant may be entitled.

                                                 Respectfully submitted,

                                                 /s/ Travis Berry
                                                 Travis Berry
                                                 Texas Bar No. 24059194
                                                 P.O. Box 6333
                                                 Corpus Christi, Texas 78466
                                                 T: (361) 673-5611; F: (361) 442-2562
                                                 travisberrylaw@gmail.com

                                                 ATTORNEY FOR APPELLANT




                                            12
                         CERTIFICATE OF SERVICE

      This is to certify that on this day of May 28, 2015, a true and correct copy of

the Appellant’s Anders Brief has been sent via U.S. mail to Jose Aliseda, Live Oak

County District Attorney, 111 S. St. Mary’s Street - Ste. 203, Beeville, Texas

78102.

      This is to further certify that a true and correct copy of the same was sent on

May 28, 2015, via U.S. Mail to Appellant Carmina Padroz, TDC#: 01994822,

Plane State Jail, 904 F.M. 686, Dayton, Texas 77535.

                                              /s/ Travis Berry
                                              Travis Berry




                                         13
                      CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the

undersigned certifies this brief complies with the type-volume limitations

announced in Rule 9.4(i)(2)(B) of the Texas Rules of Appellate Procedure.

1.    The undersigned certifies that the Initial Brief contains no more than 2,359

      words in proportionately spaced typeface, an amount of words within the

      limits set forth in Rule 9.4(i)(2)(B)

2.    The brief has been prepared in proportionately spaced typeface using

      WordPerfect 12 in 14 pt. Times New Roman. Footnotes have been used and

      are all accounted for in the above word count.

3.    The undersigned acknowledges a material misrepresentation in completing

      this certificate, or circumvention of the type-volume limits states in Rule

      9.4(i)(2)(B) of the Texas Rules of Appellate Procedure, may result in the

      Court striking the brief.

                                               /s/ Travis Berry
                                               Travis Berry




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