                                                                              ACCEPTED
                                                                          06-15-00036-CR
                                                               SIXTH COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                                                                     8/17/2015 5:50:27 PM
                                                                         DEBBIE AUTREY
                                                                                   CLERK

                NO. 06 – 15 – 00036 – CR

                                                        FILED IN
                                                 6th COURT OF APPEALS
     IN THE SIXTH DISTRICT COURT OF                TEXARKANA, TEXAS
                                             APPEALS
                TEXARKANA, TEXAS                 8/18/2015 8:23:00 AM
                                                     DEBBIE AUTREY
                                                         Clerk

                  QUINTON JACKSON

                              Appellant,

                             v.

                 THE STATE OF TEXAS

                                  Appellee


On appeal from the 124TH District Court, Gregg County, Texas
               Trial Court Case No. 42,425-B


           BRIEF OF THE STATE OF TEXAS


      – ORAL ARGUMENT NOT REQUESTED –

                          CARL L. DORROUGH
                          Criminal District Attorney

                          Zan Colson Brown
                          Texas Bar No. 03205900
                          Assistant District Attorney
                          Gregg County, Texas
                          101 East Methvin St., Suite 333
                          Longview, Texas 75601
                          Telephone: (903) 236–8440
                          Facsimile: (903) 236–3701
                                          TABLE OF CONTENTS

TABLE OF CONTENTS ......................................................................................... 1

INDEX OF AUTHORITIES .................................................................................... 2
STATEMENT OF FACTS ....................................................................................... 3

SUMMARY OF THE ARGUMENT ...................................................................... 6

ARGUMENT ............................................................................................................. 7
   1) The trial court did not err in assessing punishment without
         hearing further evidence on punishment. .................................................... 7
           A.     Error was not preserved. ........................................................................ 7
           B.     The trial court did not abuse its discretion by failing to hold
                  a separate punishment hearing after adjudicating Jackson’s
                  guilt, because Jackson had an opportunity to, and did,
                  present evidence on punishment at the adjudication hearing. ............. 11

PRAYER .................................................................................................................. 15
CERTIFICATE OF SERVICE ............................................................................. 15

CERTIFICATE OF COMPLIANCE ................................................................... 16




                                                             1
                                   INDEX OF AUTHORITIES



Cases

Grammer v. State,
   294 S.W.3d 182 (Tex. Crim. App. 2009) .........................................................11
Issa v. State,
     826 S.W.2d 159 (Tex. Crim. App. 1992) .......................................................7, 9
Pearson v. State,
    994 S.W.2d 176 (Tex. Crim. App. 1999) .....................................................9, 11
Rules

Tex. R. App. Proc. Rule 21.3 (a) and (h) ...................................................................8




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                              STATEMENT OF FACTS

       Appellant QUINTON JACKSON, was indicted in cause number 42,425-B

for one count of intentionally and knowingly causing bodily injury to a child under

14 by forcing the child to and against the ground and by striking the child with his

hand. See Indictment, CR 7-8, and Amended Indictment, CR 58-59. There were

other counts, for assault of other family/household members, enhanced by prior

conviction for assault, but those were abandoned when he pleaded guilty. CR 58-59.

The conviction used for enhancement was for the misdemeanor of assaulting his

grandfather, Clyde Cooks. Cause number 2010-1211. The guilty plea resulted in a

deferred adjudication for only the assault on the child. See Order of Deferred

Adjudication, CR 75. In October of 2014, the State moved to adjudicate Jackson

for six alleged violations:

      1) he intentionally and knowingly caused bodily injury to Clyde Cooks (over
      65 years old) by striking him with a pan on July 18, 2014;

      2) he intentionally and knowingly caused bodily injury to Clyde Cooks (over
      65 years old) by pushing him to the floor;

      3) he spent time with Lyanswer Pea, a person of disreputable or harmful
      character who smoked marijuana in his presence;

      4) he was present on April 15, 2014, when Lyanswer Pea consumed
      marijuana;

      5) he consumed marijuana on April 15, 2014; and

     6) he consumed marijuana on June 23, 2014.
CR 87

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      Jackson pleaded “not true” to allegations 1, 2, and 3, and “true” to violations

4, 5, and 6, and after admonishments, the judge accepted those pleas. CR 90; 5 RR

7-10. Testimony was taken as to allegations 1, 2, and 3, from all the persons at the

scene, or in the house on the day of the offense, including the defendant. 5 RR.

Each attorney made a final argument. 5 RR 94-99. Defense counsel argued for

allegations 1,2, and 3 to be found not true, and for the violations 4, 5, and 6, to

result in not prison, but in a modification of his probation terms. 5 RR 95-96.

      In the part of the Reporter’s Record labeled, “SENTENCING,” The judge

pronounced allegation 1 to be true, allegations 2 and 3 to be not true, and of course,

he found allegations 4, 5, and 6 true. He gave a complete explanation of his

reasoning for his findings on 1, 2, and 3. 5 RR 98-100.

      Then he proceeded to the actual sentencing: “Having found that -- Allegation

1 true, and then Allegations 4, 5, and 6, I have to decide what to do with Mr.

Jackson.” 5 RR 100. No objection was forthcoming from either side.

      The judge then summarized Jackson’s criminal history, and put on the record

details from the offense report (stipulated by Jackson and his attorney) relating to

the allegations abandoned by the State, details of the Christmas Day family

altercation during which the child suffered a fractured skull, and three adult family

members claimed to have assaulted by Jackson. 5 RR 10; SX 1 and SX 2.




                                          4
      The judge recalled that he would not have deferred the adjudication except

for the fact that the mother of the injured child asked that the Court not incarcerate

her brother. 5 RR 102. At that time he announced his decision to adjudicate him

guilty and sentence him to ten years. 5 RR 102. After that he asked for and got a

decision from Jackson about his desire to appeal, and then said, “If there’s nothing

further,” before he adjourned the court.      Nobody asked to put on any more

evidence. 5 RR 102.

      Jackson’s appellate lawyer filed a motion for new trial, alleging the generic

language, “[T]here has been material error committed that is calculated to injure the

rights of Defendant,” and “[B]oth the guilt innocence verdict and the punishment

verdict are contrary to the law and the evidence on the case.” CR 108. Nothing is

mentioned in the motion for new trial that puts the trial court on notice that Jackson

is demanding to put on evidence regarding his punishment.




                                          5
                      SUMMARY OF THE ARGUMENT

1)    Appellant did not preserve error on the trial court’s decision to assess

punishment soon after he announced his decision to adjudicate.

2)    The trial court did not err in assessing punishment soon after he announced

his decision to adjudicate because he had already heard the evidence from the

defendant’s relatives and the defendant request continued probation rather than

prison time.




                                        6
                                     ARGUMENT

1) The trial court did not err in assessing punishment without hearing further
   evidence on punishment.

   A. Error was not preserved.


      Rule 33.1 (a) requires a claimed error to be preserved by contemporaneous

objection or in a motion for new trial, with the exact claim specifically pointed out

to the judge in time for a judge to correct the error. TX R App. Proc. Rule 33.1 (a)

Vernon, 2013.

      Appellant cites Issa v. State for the proposition that his claim of error could

be raised for the first time on appeal despite the lack of a timely objection. The

majority in Issa agreed that the issue of the lack of a separate punishment phase was

error, and that it could be raised for the first time in a motion for new trial.

      But Justice Overstreet dissented, pointing out that the error had not been

preserved. Issa v. State, 826 S.W.2d 159, 161-162 (Tex. Crim. App. 1992). The

defendant in Issa, 826 S.W.2d 159 filed a timely motion for new trial, raising the

issue of the court’s failure to allow evidence on punishment. Issa, 826 S.W.2d 159.

Judge Overstreet agreed that a trial court must hold a second phase for presenting

evidence after adjudicating guilty, but disagreed that Issa had preserved error. Issa,

826 S.W.2d at 162. Judge Overstreet opined that even Issa’s motion for new trial




                                            7
was too late to raise the issue; he should have raised it at trial and asked for the

opportunity to present evidence that day.

       This case is different from Issa in that the motion for new trial filed for

Quinton Jackson does not raise the issue with any specificity. The two generic

grounds mentioned in Jackson’s motion for new trial are two suggested by the

statute:

       1) “. . . [T]here has been material error committed that is calculated to
       injure the rights of Defendant.”
       2) “ . . . [B]oth the guilt/innocence verdict and the punishment verdict
       are contrary to the law and the evidence in this case.”

Jackson’s Motion for New Trial, CR 68; See Tex. R. App. Proc. Rule 21.3

(a) and (h) Vernon, 2013. Neither of these is specific enough to call the

Court’s attention to the allegation made in Appellant’s brief.

       In addition, the record does not show that Appellant presented his

motion for new trial to the trial court nor does it show that he requested a

hearing on the motion for new trial. On appeal, he does not complain that his

motion for new trial was denied, only that the court erred in failing to hold

separate hearings on adjudication and punishment.

       Another way this case is different from Issa is that Issa’s attorney

raised the issue twice during the trial, but was twice denied the opportunity

to present evidence by the trial court. In Jackson’s trial, Jackson was allowed




                                            8
to testify as to his desire for continued probation, including additional terms

of probation that he needed and would agree to.

      Later Court of Appeals cases have distinguished Issa. Pearson v. State, 994

S.W.2d 176 (Tex. Crim. App. 1999). In Pearson, the Court of Criminal Appeals

summarized the facts in the Issa case.

      In Issa, appellant moved to continue his probation, alleging
      insufficient evidence to revoke it. Issa, 826 S.W.2d at 160. The trial
      court denied the motion. Id. Appellant then responded, "Defendant
      rests," and arguments began. Id. In response to an objection by the
      state during appellant's argument, appellant asked to re-open and
      present testimony. Id. The trial court denied the request. Id. Appellant
      requested to proffer what the witness would testify to, but the trial
      court again denied the request, thereby denying appellant the
      opportunity to present evidence. Id. At the conclusion of appellant's
      argument, the trial court, in one proclamation, adjudicated appellant's
      guilt and sentenced him. 826 S.W.2d at 161. Appellant did not object
      to the trial court's action and claimed that the trial judge immediately
      left the bench without giving him the opportunity to make such
      objection. 826 S.W.2d at 160. We determined that appellant had no
      opportunity to object to the trial court's action until after that action
      had been taken. 826 S.W.2d at 161. Thus, appellant in Issa had neither
      the opportunity to present punishment evidence nor the opportunity to
      object to the trial court's action. We found that appellant preserved
      error for appellate review by raising his objection to the trial court's
      actions by timely filing a motion for new trial. Id.


Pearson v. State at 178. (footnotes omitted)

   The Pearson court did not overturn Issa, but it did distinguish it, and limited its

application to its specific set of facts. In Pearson, the defendant not only had the

opportunity to put on evidence regarding punishment, but he did present evidence



                                          9
regarding punishment. He testified in his own behalf, requesting that his probation

be continued, even suggesting that it be extended “a couple of years.” The Pearson

court said “It is immaterial that the opportunity to present evidence came before the

actual words of adjudication.” As long as the defendant had an opportunity to

present evidence during the proceedings, that is all that is required. Therefore, the

trial court’s judgment was affirmed in Pearson, even though there was no separate

hearing on punishment.

      Jackson’s case is more like Pearson than Issa.      Jackson’s own testimony

regarding his possible punishment and his willingness to have the terms of his

probation modified to include more limitations sufficed to show that he had an

opportunity to discuss his punishment before the adjudication decision was

announced. In addition, the judge in Jackson’s case prefaced the adjournment with

“if there’s nothing further,” thus allowing either side to bring up any issue they

wished. 5 RR 102. The defense responded with a statement that Jackson wanted to

appeal. 5 RR 102. He could just as easily objected, at that time, to the fact that

there had been no separate punishment phase. That was one opportunity he had to

ask for the opportunity to bring more evidence. His motion for new trial was a

second opportunity to ask to present more evidence. The likeliest reason Jackson

did not ask the trial court to allow him to put on more evidence is that he had

already put forth all he had.



                                         10
   For these reasons, Jackson’s claim should be rejected as not having been

preserved.



   B. The trial court did not abuse its discretion by failing to hold a separate
      punishment hearing after adjudicating Jackson’s guilt, because Jackson
      had an opportunity to, and did, present evidence on punishment at the
      adjudication hearing.


   If Jackson’s claim of error is considered, it should be rejected on the merits.

      In addition to the Pearson case, above, this Court should consider a more

recent case from the Court of Criminal Appeals, who granted discretionary review

in Grammer v. State, 294 S.W.3d 182 (Tex. Crim. App. 2009). As in Pearson, the

trial judge in Grammer adjudicated Grammer’s guilt and immediately thereafter,

announced his sentence. Grammer v. State, at 183. Because Grammer “had the

opportunity to, and did, present punishment evidence at the adjudication hearing,”

his sentence was affirmed, at both appellate levels. The Court of Criminal Appeals

held that “the court of appeals did not err to reject appellant’s claim that the trial

court abused its discretion in not holding ‘a separate punishment hearing.’”

Grammer v. State 294 at 192.

      In the Jackson case, the following evidence was elicited before the judge

announced his decision on adjudication:




                                          11
      Mr. Clyde Cooks testified that if Jackson were released, Cooks did not want

Jackson back in his home, but other family members did. 5 RR 28-30, 33.

      Ms. Bennie Cooks testified that Jackson was no trouble to her and helped out

around the house. 5 RR 48-49.

      The prosecutor asked Lyanswer Pea if she understood that Jackson, being on

probation, could go to jail for smoking marijuana. 5 RR 77. She later said she had

changed and he had, too. 5 RR 78.

      Jackson was asked about his efforts to get a job, get on his feet, and be able

to get his own place, allowing him to move out of his grandparents’ home. 5 RR 83.

Jackson explained he had smoked marijuana since his mother died, and admitted he

had a problem with it, and was asking the judge for help with it, wanting “another

chance”. 5 RR 87-88. He testified that if the judge were to modify his probation

and forbid him to go to his grandfather’s house, he would abide by that condition. 5

RR 88. He testified do deal with his anger issues, that he was in church more. 5 RR

90.

      At the close of the defendant’s direct examination, this colloquy occurred,

regarding the defendant’s requests for consideration during punishment:

      Q. Is there anything else that you'd like to tell the Judge, before I pass
      you as a witness, that I didn't talk about?
      A. Just really, I wouldn't have took probation the first time if I didn't
      feel like I could handle it. And I know it's not going to come into play.
      I mean, I failed two drug tests, but I've passed two. And I'm trying to
      get myself together and get my life together. And this probation really

                                          12
      has been the thing to straighten me up. And I just want another
      opportunity. I don't want to be here.
      Q. Do you think you can benefit from counseling for losing your
      mother?
      A. Yes, sir.
      Q. Do you think you could benefit from counseling for anger?
      A. Yes, sir.
      Q. Do you think you could benefit from counseling for [90] use of
      marijuana?
      A. Yes, sir.
      Q. Do you feel like those are things that you need?
      A. Yes, sir.

      Then the prosecutor asked him about the effect of his mother’s death, about

his anger issues and the steps he had taken to resolve those, and they talked about

his ability to tell his probation officer about the mistakes he’s made on probation. 5

RR 90-92.

      Thus, Clyde Cooks’ testimony concerned the terms of probation he and the

other family members wanted the judge to consider; Bennie Cooks told the judge

that Jackson was no trouble, and that he helped out; Pea’s testimony concerned the

mitigating factor of change; and Jackson’s own testimony covered mitigation

(effect of mother’s death), how he would benefit from counseling resolve anger

issues, how he was willing to avoid contact with his grandfather, and how the judge

could modify his probation terms and allow him to remain out of prison. All of

these concern disposition factors, not just whether he should be adjudicated.

      In the defense attorney’s closing statement, he began by requesting modified

probation terms and no incarceration.

                                          13
      My client has stated that he does have an issue with marijuana, and I
      think it's pretty evident that he does. He had some -- had some issues
      growing up based on the fact of having lost his mother at 13. I don't
      think he's ever gotten any counseling for that. I think that's something
      that he could benefit from, as well as some anger management classes.
      And certainly a condition that he not go back to that residence or have
      contact with his grandfather, I think would resolve the issues that we
      have here at the grandparents' home.


5 RR 96. And he concluded his argument: “So we'd ask the Court to find the new

offense "not true," modify the probation to whatever the Court deems fit. We would

just ask that he not be revoked and sent to prison.” 5 RR 98.

   In his closing statement, the prosecutor made no request for a specific number of

years, arguing only for revocation. 5 RR 98-99.

      While there was no separate hearing on punishment, there was evidence

introduced regarding disposition, and the defense did make arguments for continued

probation before the judge ruled on the adjudication motion. The prosecution did

not ask to put on evidence for any particular disposition, but that could not be said

to have harmed the defendant.

   Pursuant to the Court of Criminal Appeals’ opinions in Pearson and Grammer,

this trial court’s judgment was not an abuse of discretion because Jackson had the

opportunity to, and did, present evidence during the adjudication phase that he

would have presented during a punishment phase if one had been held. It does not

matter when the evidence came in, as long as he was not prevented from presenting



                                         14
it.   Jackson’s sole issue should be rejected and the conviction and sentence

affirmed.

                                     PRAYER

       The State prays for affirmation.

                                          Respectfully Submitted,



                                          /s/Zan Colson Brown
                                          Zan Colson Brown
                                          Texas Bar No. 03205900
                                          Assistant Criminal District Attorney
                                          101 East Methvin St., Suite 333
                                          Longview, TX 75601
                                          Telephone: (903) 236–8440
                                          Facsimile: (903) 236–3701
                                          EMAIL: zan.brown@co.gregg.tx.us


                          CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above and foregoing has been
forwarded to all counsel of record by efiling to

       Clement Dunn
       140 East Tyler, Suite 240
       Longview, TX 75601


this 17th day of August, 2015.

                                                 /s/ Zan Colson Brown____________
                                                 Zan Colson Brown
                                                 Assistant Criminal District Attorney




                                            15
                      CERTIFICATE OF COMPLIANCE


      I certify that the BRIEF OF THE STATE OF TEXAS, exclusive of the

following: caption, identity of parties and counsel, statement regarding oral

argument, table of contents, index of authorities, statement of the case, statement of

issues presented, statement of jurisdiction, statement of procedural history,

signature, proof of service, certification, certificate of compliance, and appendix,

contains 2,828 words, according to Word software.


                                       /s/_Zan Colson Brown
                                       Zan Colson Brown
                                       Assistant Criminal District Attorney




                                          16
