                                                                                      ACCEPTED
                                                                                  06-15-00069-CR
                                                                       SIXTH COURT OF APPEALS
                                                                             TEXARKANA, TEXAS
                                                                            8/17/2015 10:03:39 AM
                                                                                 DEBBIE AUTREY
                                                                                           CLERK




                                                    FILED IN
                I$ The Sj.xth Court of A1>peal's
                                             6th COURT OF APPEALS
                                                 TEXARKANA, TEXAS
                      Texarkana, Texas
                                                        8/17/2015 10:03:39 AM
                                                             DEBBIE AUTREY
                                                                 Clerk
                    Tqika Charnette          Owetts,
                                                       Ap'pe77ant,
                                    v.
                         THE STAW OF TE){AS,

                                                       Ay>pellee.

            Ay:,peal-s   from the   Ath   Distri<:t Court,
                         Rusk Courtty, Texas
                   Trial Court No.         G.74-,305



                            Anders Brief



                                     ATTORNEY FOR .APPELI,ANT:

                                            ileff T. J'ackson
                                            SBOT No. 2406997 6
                                            736-A Hwy' 259 N.
                                            KilEone, TX 75662
                                            Phonr::         -654-3362
                                                         1903
                                            Fax:         8L7 -887-4333

ORAL ARGTTMENT NOT REQUESTED
                    LIST   OF" PARSTES             AI{D   COUNSIIL

APPELLAIiIT: Ternika Charnette                     Owens
                TDCJ No. 019991628
                SrD No. 060614L0
                Texas Department of Criminal Justice
                San Saba Unit
                206 S. Wallace Creek Rd.
                San Saba, TX 1 6817
    Represented at appeal by:
    SBOT    No. 24069916
    136-A Hwy 259 N.
    Kilgore, TX 15662
    Phone   :   903-65 4-3362
    Fax:        BIl - BB7-4333
    Represented at trial_ by:
    ffi
    SBOT    No. 00785248
    P.O" Box 1108
    Henderson, TX 75653
    Phone: 903-657-0561

APPELLEE: State of Texas
    Renrescn1-od
         vUvIIuvV    af
                     sU
                           .l_r'i
                           U!rq!  al   hrz.
                                       py.



    PrrqJr f-nrrnfrz
           vvurr9J   DiStflCt
                     UJUUI.|           AtfOrneV
                                       nuuvltruy

    SBOT: 00189406
    115 N. Main St.
    Hencl6rrson - TX 15652
    Phone: 903-651-2265
    Fax:       903- 651 -0329
                                        TABLES OE' CONTENTS

List of Parties and Counsel_
Tabl-e of Content.s
Index of Authorities-
Statemen +'U           aF
                       VI    1_l.r^
                             (-II.g t.\--^
                                    UClDC


Tq.qrraq         P   resent.ed
Statemen t             of Facts
St tmma    rr;       of the Arguments
7\ rnr rmn n I
nr   v LrllrgLr L-

          I.         WHETHER THE IND]CTMENT WAS          SUFF-TC]ENT......3
          II.        WHETHER THE TR]AL COURT ERRED IN RULING ON
                     PRETRIAL MATTERS OR APPELLANT' S OBJECTIONS
                     DUR]NG TRIAL, OR WHETHER THERE WAS
                     FUNDAMENTAL             ERROR                  ......6
         ITT. WHETHER THE EVIDENCE WAS SI]FF-TCIENT                           TO
              SUPPORT A CONVICTION FOR THE OFFENSE                            OF
                     HARASSMENT OF            A PUBLIC SERVANT       ....13
         rV. INEFFECTIVE ASSISTANCE OF COUNSJEL IS NOT A
                     VIABLE CLA]M BASED ON THE           RECOF|D ]SEFORE THE
                     COURT                                          .....15
Statement of Attorney to the Court                                        . . .18
Conclusion and Prayer...                                               .....19
Certificate                 of Compliance                               ....20
Certificate                 of Service..                               .....2I
                                 rNDEX OF AUTHORTTTES
vsVV        !UVY.




Anders v. CaLifornia,
    385 u.s. 138, '744, (1961)                               2,LB
Brooks v. State,
    951 S.W.2d 30 (Tex.Crim.App. L99j).                     .6,L3
Currie v. State,
        516 S.W.2d 684 (Tex.Cr.App.I914).                     .18

Duff-Snith v. State,
     685 S.W.2d 26 (Tex. Crim. App. L9B5).                       B


Frausto v. State,
    642 S.W.2d 505 (Tex.Crim.App. 1982).                       11

Fttr"rafa       \r   _ql_ate /
        200 S.W.3d 7BI (Tex. App.-Fort Worrh 200G)             .6
Hawkins v. State,
   605 S.W.2d 586 (Tex. Crim. App. I9B0).                      L2

Hernandez v. State,
       126 S.W.2d53,51               (Tex.Crim.App.19B6).      15

Jackson v " State,
    811 S.W.2d '768, 11I (Tex.Crim.App. 1994) .             13,15
Jeffery v" St.ate,
     903 S. W. 11 6 (Tex.App. -Dallas            1995   )     . 1B

Lawrence v. State,
    240 S.W.3d 9I2 (Tex. Crim. App. 2007).                   .3,5
Lindley v" State,
     535 S.W.2d 54I, (Tex. Crim. App. 7982)                    .B



                                          111
PoLk   v. State,
    337 S.W.3d 286 (Tex. App. -Eastland     ,1010 )   .      .13

Riney v" State,
    28 S.W.3d 56I, (Tex.Crim.App.200O)
Smith v " State,
    309 S.W.3d 10 (Tex. Crim. App. 2010).                         3


State v" Moff,
    I54 S.W.3d 599 (Tex. Crim. App. 2004).                  .3,5
Strickfand v. Washington,
     466 U.S. 668 (1984).                                 .]-5,16

Stoker v. State,
    7BB S.W.2d 1 (Tex.Crim.App.l9B9).                        -B

Thompson    v. State,
    9 S.W.3d BOB, BL2 (Tex.Crim.App.7999) .               -15,L6

United States v" Johnson,
    521 F .2d I32B , 1329 (5th Cir " I91 6) ,'                    2


Vil-f escas v. State ,
      189 S.W.3d 290 (Tex. Crim. App. 2006)                       6


SLatutes:
Tex. Pen. Code sec.     B   .04 (a)   .                       12

Tex. Pen. Code Sec. 12.42                                     10

Tex. Pen. Code Sec. 22.II


Tex. Code Crim. Proc. Art 36.01(a)                            11

Tex. Code Crim. Proc. art. 39.14(b)                               B




                                      1V
                                         STATEIVIENT OE' THIE CA$E

        By a single count indictment relurned by the                                                              Rusk

County grand jury                               at        the       Sanl-aml'-rar
                                                                    VVI/UVILLJJU!            fUV!ILL,
                                                                                                arm             )n1
                                                                                                                LVLA    A
                                                                                                                            I



AppelIant was charged with                                       Harassment of                         a Publ-ic
Qarrr.anf         f-P
                  vr\        n     A
                                   v|     r^rhi nl
                                          "",.--i)   rs    a    l-h
                                                                urrf!ui rrl   rlanr^aa
                                                                              \aEYIq:\,      fo I nnrz rrnrlo-
                                                                                             !vtvrrj   urt\-lcI


m^-'^^
r g2!d.D n^^^'r
         relIct_L Code Sec. 22.LI                           .      The trial- court granted
the State's moti-on to amend and interlineate                                                                          the
indictment.                  CR        p. 30.
        Appellant was represented at trial                                            by .Brent Wil-der.
On April           21, 2015| a jury was empaneLed to hear the
case.            RR2, pp. 191-L94.                                 Appellant                pleaded "not
guilt.y" to both counts on the indictment.                                                   fd p. 195.
        A trial- was held on t.he issue of gu-11t, RR3, and                                                             on

April           29,          2015, the               jury        returned                  a verdict                    of
"guilLy."               RRS1, pp. I51 p. 5.                          The pun:Lshment phase of
the trial               was held on the same dav t-he verdict                                                          was

rafrrrnad
        rrvv/         .nj
                      srrv        fhe
                                  erfv    irrrrz:qqaqqod
                                          )v-J     quuvJUvv             nUnishment
                                                                        I/urr!9rrrrlvrru         Of
                                                                                                 vr     2 vears
                                                                                                        - Jgq!o


incarceration.                         RR4   p. 39.
                 On April                 29, 2015, the Trial                             Cortrt sentenced
Appellant                        j-n         accordance                  with               t-he            j   ury'        s
recommendations. RR4, p. 47-42.          Jeff T" Jackson     was

appointed to represent Appellant on appeal. CR p.98.
Appellant timely   perfected appeal by       f   iling   wri-tten
Notice of Appeal on May 1 , 2075.   CR   p. 94.




                           vi
                             ISST'ES PRESENTED

I.   Whether the indict.ment was suffidierLt?

rr. whether the trlal               court erred j-n ruling              on

Appellant.' s   ob   j   ections during trial , o.c whether there
was fundamental error?

rrr. whether the evidence was suffiqient                  Lo support     a

conviction f or t.he         of f ense    of   hara s.smenf   of a publ-ic
servant   ?




                                    vll
TO THE HONORABLE STXTH COURT OF APPEALS:

        Comes now       l^++          rll
                                       I.     ,T:   r'lz
                                              vsvJ\uvrrt   <   nn        attorney for       Temika
Charnette Owens, Appellant in the ablove styled                                                  and
numbered cause, and respectfully                                        submits thi-s Brief       on

such cause.
                        STATEI\4ENT                OF THE FAcEq
        On June 1"., 2014, dt about 3:00 a.m., .Appellant. was

stopped by officer                          Goodson, a public                          servant   of
Henderson Police                Department,                         f   or   drlvinq       without
headlights.           she was arrested                                    f,or d::ivinq      whil-e
intoxicated.          The arresting                            officer        accused her of
intending to assaul-t him by causing her sar-iva to
contact his person while struggllng                                          with him in the
back of hi s   ne   I rn I     rzoh   i cle    .      RR3 pp             . 2I-28   .




NOTE:
The record is referred to as:
"CR": cferk's record in Cause No. CR14-305.
*RR 7-4": reporter's record in Cause No. CR14-305.
"RR S1": reporter's supplemental record in Cause No. CRl4-305.
                          ST,MI4ARY       OF THE ARGIJI\4NTSI

       Under Anders v. Cal-if ornia , 385                           U. S .     7   3B   ,     7   44 ,

(7967), a court-appointed attorney may not raise                                                    an

issue in          an appeal i f                  he makes i1 conscientious
examj-nation of the case and finds the crppeal is wholly
f   rivolous.     To comply with Andersl counrsel- must isol-at.e
"possibly important issues" and "furnistr the court with
ref erences to the record and l-eqal- author:i-ties to aid

it     in   itS    ^nnal I af a            functiOn " "           Un.tted States v.
Johnson, 52'7 E .2d I32B , i-329 ( 5th Cir . I91 6) .                                       Af t    er
rne
fll^ apperra--,
     -h^n1I16l-      iq     ryirran        an
                                           ^n opporru
                                              a\nna\rJ-rrnil-rz     J-n   raqrrn6rl               .l-ha


court makes a full- examination of the r:ecord to detect
whether the case is                   f   rivolous .         Andez:s,     3B   6    U.      S. at
144. As set forth by his Brief , counsel for Appel-l-ant
has determined that there are no non-fri-volous issues
to appeal-.
                                 ARGUMENTS AI{D AUTHORTETETS

                                        ARGI'MENT      I.
           THE TNDICTMENT !{AS SUFFICIENT.



           The sufficiency             of the indictment is reviewed                                    de

novo because that issue is a question of l-aw. Smith v.
State, 309 S.W.3d 10, 13-14 (Tex. Crj-m. App. 2010);
State v. Moff, 154 S.W.3d 599, 501 (Tex. Crim. App.
2004)             . A criminal defendant has a constitutional                                       rlqht
to not j-ce .                Lawrence v. State, 240                     lS .    W. 3d     9I2      ,   9L6

 (Tex. Crim. App. 2007).                               To satisfy                 this             notice
radrr i ramant- , an
!VYUT!VIILVIIU'   gII indictment
                      IITVIVUILIVIIU           must be
                                               lIIUJ   U    Vg   .qne,r-.i f=i
                                                                 O}/E;Uf,T-IU     r: enorroh f o
                                                                                        EAIUUYIl        L-\J




inform the defendant of the nature of the accusation
against him so he may prepare a defense. Id.; Moff,                                                    L54

S . W.     3d at       601   .     "An indictment is gene-raIly suf f icient
as long as it                    tracks the language of a penal statute
that itself             satisfies       the constitut.ional requirement of
notice."               Lawrence, 240 S.W.3d at 9t6; see Snith,                                         309

S.W.3d at L4.
       7\nnn'l'l
       nl1-yE    r   _L   -^l- L
                          o.Lr       was indicted             for             the         offense                  of
Harassment of                          Public Servant.              Tex             Pon         f-nrlo       Qon
                                                                                                             uvv



22.   11     reads:
      A     person commits an of f ense rf , with. tLre intent
      to assault, harass, or alarm, the p,3rson
      causes Snnfhor n^rson the actor knows to be                                                        a

      public servant to contact the blood,                                                seminal_

      f    luid,            vaginal         f   l_uid, sal_iva, uriner , or                     f eces

      of the actor, ofly other person I or a.n                                             anj_mal

      while                   t.he         public       servant           is          lawf uf        l_y

      discharging an of f icial- duty or in retal_iation
      or on account of an exercise of the pub]ic
      servant's official                           power or performance of                           an

      official                 dutv.        Id.
The indictment in the instant case was amended bv order
of the trial                       court to read:
                     . that TEMIKA                 CHARNETTE OWENS             hereinafter
      styled Defendant, on or about the 1" day of
      June      , 2014, and before the presentment of this
      'i   ncli cf ment -             in    the
                                            urrv    Qgrrnf
                                                    vvurru rz
                                                           )/ of
                                                              v!    Rrisk -
                                                                    r\uol\f          Slf  a1-
                                                                                     r) uqug    e of
                                                                                                  \
    Texas, did then with the intent                                  to assault,
    harass, or al-arm, the person cause i1 person the
    defendant knew to be a publrc servant, namely;
    Chris Goodson, to contact the salLiva of the
    defendant whil-e sai-d Chris Goodson                            \/vas   lawfullv
    di scharging hi s            o   ff   icial          duty as a police
    of f j-cer   f   or    the       City           of    Hender:son Pol-ice
    Department .          RR   p. 6,       29   .


The indictment tracks the Ianguage of the appfi-cable
penal statute sufficient                  to give the r,=quisite notice,
as rerriri rccl under Lawrence and Moff -                  I
                                                               stt":,ra
                                                               uvJvLu.
                              ARGI'MENT TT   .


         THE TRTAL COURT DID NOT           ERR      ]:N RIULING           ON

         PRETR.IAI,   MATTERS,      NOR      WERE         AP]PELI,ANT / S

         OB.]]ECTIONS ERRONEOUSLY O\ZERRULED .DTJIRINIG TRIAL,

         NOR If,AS THERE FUNDAI\4ENTAL ERTi.OR OTHEIRW]ISE.



         The Brooks Notice.
         The trial    court rul-ed on several pl:e-Lrial matters
in the instant case.             Included amonq tliem was "state's
Notice of Intent          to Seek Hiqher          Pun   j-shm,ent Based         on

Prj-or Conviction Pursuant to Brooks                          ."     CR   p. 18-
L9   .      Appellant did not ob; ect to thLis Notice,                         and

Appellant stipulated to the admisslon of the court/                                s

judgment of the prior conviction during trial.                         RR4 pp.

         The Brooks Notice was timely qj-ven under                    Brooks
v. State, 95'7 S.W.2d 30, 33-34 (Tex. Cr:im,, App. \991);
See al-so Vill-escas v. State , LBg              S.W"   3it   290   , 294   (Tex   .


Crim. App. 2006) and Fugate v. State, 20Ct S.W.3d'lBL,
783 (Tex. App.-Fort Worth 2006).
          The Amendment of the fndictment.

          The state a-l-so moved to amend the :Lndictment twice
without objection by Appellant"                              An amendment of          a

charging instrument shalf be made with Lhe leave of the
court and under its dlrecti-on .                          Tex. cod.e crim. proc .
art. 28.r0.           Here, the writt.en amendment \,vas submitted
to t.he trial-            court and included in th.e record in
compliance with Riney v. State, 28 St.W.3d 56I,                                  566
(Tex . Crim. App      .2000   )   .



         -Ob-iection to State/ s Ca].].ing Expert !{itness
         The other objection Appelrant made before trial                         was

an       ob   j ection to the State' s calling                chiad Tayror as an
expert witness, citing                j_nsuf f   icient notice.        CR   p.   33   .


Chad Taylor was allowed to testify                           as StaLte, s witness
wiLhout an          nh-i ar-l- i nn t^ry   Appellant at trizrl "         RR3 pp.
65   "        Appellant neither requested pre-t-riiel notice of
designation of             an expert witness,                  nor reguested          a

continuance f or the st.ate' s                    f   a   j-lure to give timely
not.ice of its intent to use an expert witnerss.
       The state must disclose the witnesses who wilf                                             be

used at any stage of the trial                               upon request by the
defendant in a pre-trial                     motion and oriler of the triat
court .          Stoker           v.    State ,        l BB         S . W.,   2d        L,        15

(Tex . crim. App . 198 9 )        .     rn      the      conte><t of                       expert
wj-Lnesses, this              common     law duty has b,=en codif ied by
statute, and has been extended to crimjna_L defendants.
Tex. code crim. Proc. art. 39.14 (b) .                             rf t-he state                 has

a duty to discl-ose an expert witness but fails                                             to    do

so, any error in allowing that witness to                                     f esf 'i f rz over

a cl-aim of lack-of-notice                     is waived by the defendant's
failure          to move for           a continuance.                \AA         l.1n/1
                                                                                LLIISLVJ I a\7    \7
                                                                                                   v.


State, 635 S.W.2d 547, 544 (Tex. Crim. ApF,. I9B2) .                                             See

Duff-Smith v. State, 685 S.W.2d 26,                           32    (Te><.       Crim. App.
1985)    .


      Statels Voir Dire on Enhancement olf Punishment
      n-^^-t^-f
      rr1-,lPe-L-Lcrllu   al.so
                          qrr\J   ohreCted
                                  vrJJsULeLf    tO VO_L.J. cl ire
                                                LO vOir                cruesf inn'i nr-r         l-rrz
                                                                                                 pJ

the State regarding the law relating tr: punishment if
it were to prove a previous felony convictj_on.                                         RR2 pp.

B   5-168    .    Appell-ant. had a prior                f   elony' conviction                   on
which the punj_shment range could                    be    enhanced.      CR pp.
    R.-1 q       Qrran'i f i ^r'l 'l ,, the
1
                 -pecl_rl_ca_Lty,              State       asked individual
panelists:
        rn a case where a person is convicted of                           a

       third-de.rrAA for nnr4, if         the state can prove              a

       prior     f   elony conviction         that     resr-rlted in       a

       neni fLEIrL
       yErrr  onf i:rrz    qani_ a        can    you       consi-der
                           --..-vflCeT                                   the
       upper end of 20 years? you donrt have to commit
       to the increased sentence, but just                           can you
       wait     and hear         all     the    evidence i-n the
       punishment phase bef ore you                       cons   j_der your
       sentence, and are you at least open to the
       possibility        that     it     could       be         a   2O-year
       sentence?          RR2   p. 86.
Over Appef lant' s running obj ection, RR2 pp. j 5-l j , t.his
l-ine of questioning was permitted by the triar                         court   on

i-ndividual voir dire.            Id.
       Appellant's        objection to the mention of enhanced
punishment range during individual- voir dlre was three-
pronged: first,           that the issue should have been taken
up as a pretrial matter so that Appel_Iant                                                                  wor-ll_d have

suf f icient                time to respond to the Statr:' s                                                    argument;
sor-oncl     -      f   hat the State had alreaclrz                                            r:l o.secl       its        voir
dire,        and that it                          could only go into                                    .issues raised
drr   ri nn rrrri r dire
9U.!!rrY         vvr!        s!!v           of
                                            v!      the
                                                    urlv           nane I
                                                                   ygrrv!        clrr
                                                                                 vq!JrrYri nr-i i nd'i rri dual
                                                                                                rrrva     v J              voir

dire; and third,            that rts hiqhly pre j udir:ial and used
as
q'D A nl
    q     nrz hrz
      -L1JUy  tJJ fultshe JLaL-s
                          sf af e to
                                  U\J Secure Aa rrrrv
                                      DV\-LrIC  )uLJ  where;
                                                      vvr--uruIl-I
                                                                        1--^^
                                                                   ^ O- -Lo.I9tj
portJ-on of the panel had stated that they woul-d not                                                                            be

able to follow the l-aw as to punishment for this type
of case. RR2 pp.                           '7
                                                 5-11      .



           Harassment of a public servant j-s a third                                                                 degree

felony.                 If the State follows the proper p,rocedures and
nrn\/es
yr\JVgD           fLIIghc      Defendant
                               L-lgICIIL,IO-IIL                has
                                                               fIC-!)        nrerri       orrsl 'iz l-reen
                                                                             IJTSVI\-,rLrJr_y       I-/EErI
                                                                                                                  .tr-i   *^'r I "
                                                                                                                  I-LlIO.-L-Ly



convicted for                        an offense other than a state                                                         iail
felonrz- fhe nrrnishmenf ranne for this oJ:fense Can                                                                             be

enhanced from 2                             10 years conflnement to 2                                            20 years
conf inement and                      probation is no't avai.ltrbl,e .                                          Tex.       Pen.

Code Sec. 12.42.                                 During the trial,                          the State did not
disclose to the jury that the defend.rnt had previously
been convicted of a felonv.


                                                                        10
    vfhile the state may question the jury panel on the
applicable range of punishment, it mav noL. disclose to
the veni-re that    it    bel-ieves that the      clef   endant has
previously been convicted of a f elony "          ljee Tex.    Code

Crim. Proc. Art 36.01 (a) .        This restrj_ction is desiqned
to prevent the pre j udice that woul-d inev_Ltably result
from an announcement at the outset of the proceedings
that the state believes the defendant was previousry
convicted 9f .a n:rj- i nrrl41 of fense at a pa:rticular time
and in a particular      court .     See Frau,sto \r. State,       642

s.i,{.2d 506 (Tex.crim.App. r9B2).        This:restriction     does

not, however, prevent the trial        court or: the prosecutor
from informing the jury panel in hypothLetj_cal terms of
the applicabre range of punishment if the state proves
any prior convj-ctions for enhancement pllrposes. rd.              rn
the instant case, the state was careful- to stav within
the legal constraints set forth in Fraus;o, id.
   Charglof the Court
   Apperlant obj ected to an j-nstructio.n in the charqe
of the court. that       voruntary intoxicati-on         i s nor    a



                               t1
defense to a criminal_ of fense.   RR 3 p. 19 .           Rel_iance

on invol-untary intoxication to negate an intent element
is prohibited by Tex. pen. Code sec.    B   .04 (a) ; see aLso
Hawkins v. State, 605 S.W.2d 586, 589       (   Tex   . Crim.   App   .


1980)   .   Therefore, the Charge of the Court correctly
stated that law applicabl_e in this case




                             t2
                            ARGUMENT     III
       IHE   EVTDENCE I{AS        SUFFTCIENT    T(3 SIJPPORT A
       CONVICTION FOR THE OFFENSE CIF HAITASSMENT OF A

       ]PT'BLIC SERVA}IT.



       The standard of       revlew for        sufficiencv         of the
evldence is whether any rationaf jury could have found
Appel-lant guilty      beyond a reasonable doubt. . Jackson v.
Virginia,     443 U.S. 307 (I919); Brooks v,, State,                   323

S.W.3d 893, 9I2 (Tex. Crim. App. 2010);                 pc>J_k   v. State,
331 S.W.3d 286,2BB-89 (Tex. App.-Eas;tland 2010, tr€t.
ref 'd) . Under t.he Jackson st.andard, an examination is
made    of al-f of the evidence in the liqht. most favorable
to the verdict        and determine whether:, based on that
evi-dence and reasonable inf erences                f   rom it,        any
rational- trier     of fact could have founrl t.he essential-
elements of the of fense bevond a reaso:nabl-e doubt.
Jackson, 443 U . S . at     319   . The standarcl giv'es f ull ptay
to the responsibility        of the trier      of fact to resolve
conf   l-icts in the testimony, to weigh the evidence,                 and


                                    IJ
to draw reasonabl-e inf erences                                        f rom              basic facts                    to
uftimate            facts.          Jackson,443              U.S. at 379; Winfrey v.
State, 393 S.W.3d'/63, 168 (Tex. Crim. Apil . 2013).                                                                  The

st.andard of                      review        is    the          same f or                          direct          and

circumstanti-al evidence cases.
         In the instant case, the State's wit.nesses included
fhe
(-l.Ig   (lomnlninant
         \/\-'ITLIJ.LCTIIIO.IlU     and anofher
                                    o.Il\,T
                                        o.I]\-/UIIgI        resn^^,{-i ^'*
                                                            Tg'JT../\J.TI\,|'III,\J            "F+:r-cr-
                                                                                               L,'II-L\-gI         hnfh
                                                                                                                   L/\JLII
                                                                                                             '


who testif ied                     to         the    of   fense.                          F.R3 pp.               19-52.
Appell-ant cal-l-ed no witnesses and rested                                                                  wit.hout
presenting any evidence.                                  Here, it                    cannot be argued
that a rational                      j   ury could not have f or.rnd Appellant
guilty             beyond a reasonabl-e doubt                                         f   or       the charged
oI Iense       "




                                                      t4
                                                             ARGUMENT      VI.
               INEFFECTIVE ASSISTAI{CE OF                                  TRIAI    COUNSEIL           IS     NOT

              A VIABLE CI,AIM BASED UPON THE IIEICORD BEE'ORE
              TIIIS             COURT.




              Claims of ineffective                                      assistance of counsel are
analyzed under the two-prong test set out by the United
.Sf    af    es .Sttnreme Court. in Strickl-and v. Wa:;hinrtf on -                       vvspttLttY         uv!t    l'    466
                                                                                                                          = v v



U.S. 668 (1984), and adopted by Texas in Hernandez v.
State,                          126            S.W.2d          53,        51       (Tex.Crim.App.1986).
Appelf ant must show that                                            trial       coun,sel-'s performance
was deficient,                                  that is,         counsel's representation fell
below an obj ective standard of reasoniableness.                                                             Thompson

v. State, 9 S.W.3d B0B, BL2 (Tex.Crim.App.L999).
              Ap'oellant must also show that                                       courLsel-f         s def icient
performance prejudiced his defense.                                                      StrickJand,                      466

U.S. at                         681   ; Jackson v. State, B-l'7 S.W.2d 168,                                               11L

/\f   Tow Cri m Ann
       ez\.vrlrLL.,r-y-y.LJr          .
                                          .1   gg4Jt )   .     Th'i
                                                               rrrlu s    recltr i res   Annel lant                      ShOw

there                    j-s a reasonable probability                                    thert,             but           f   or
couLnsel-'                     s unprof essional errors,                          the result                       of the

                                                                    15
 proceeding woul_d have been                                       di_f   ferenc.           StrickLand,466
 U.   S. at 694; Jackson, 811 S.W.2d at                                              'j   jI.     A      reasonabl_e
 probability                     is a probability                         sufficient              T-ar       unde rmi ne

 confidence in the outcome. Strickl_and,                                                  tI66     rf    d
                                                                                                             . at 694;
 Jackson, B'7'/ S . W. 2d at                        117   .


           In reviewing an ineffective                                         assistance of counsel
 claim, there is a strong presumpt j-on that counsel                                                                     .
                                                                                                                             s

 conduct falls                           within      the wlde ranqe o:f reasonabl_e
professi-onal- assistance and the appei_lant musr overcome
the presumption that the challenged conduct might                                                                       be

considered sound trial                               s1-rafacrrz Thomps<>n, 9 S.W.3d at
813; strickland,                             466 u.s.              at 689. Any allegation                               of
ineffectiveness                              must         be              fi_rmlv               founded               and
af f j-rmatively                    demonstrated in the record to                                             ove rcome

fhiq.         nraqlrmnfinn
              I/!vuufrryurvrr.                  'Thrlmn<nn
                                                lttvtL.truvtt       /     9    S.W.3ci           -\+
                                                                                                             813; see
Jackson, 817                        S . W.   2d at        71       I.     It    is        the Appetlant
burden to prove ineffective                                        assistance of counsel bv
preponderance of the evidence. Id.

                       Counsel has detected no error on the part of
 n^^^1'l      ^^.{-t
iaIJI-,,El-_LClr1L       ^
                         D       trial       attorney, Mr. Nel-son.                               A1-
                                                                                                  rru        nn
                                                                                                             rrv   nni nl-
                                                                                                                   I/vIrIL




                                                              t6
during any of       the proceedj-ngs in       thi s cause did
Appellant assert      Lo the triar    court     that   she   was

unhappy with the performance and repres;entation of her
trial   counsel .    Based on this   rcr:ord - n^ legitimate
non-frivol-ous basis exj-sts to argue trial       counsel    was

constitutional-l-v inef fecti_ve .




                               l7
                      STATED4ENT   OF ATTORNSY TO 'THE COURT

          This brief      is fil-ed brz r:orrnsel appointed by the
court to represent Appef lant on appea-L i n accord.ance
with Anders v. Cal-ifornia,                   386 U.S. 738 (I96j),             and

Currie v.            State,    51-6 S.W.2d 684 (Tex.Cr.App. I914)                     .


Counsel has also fil-ed wi-th this                   Cou:rt a Motion to
Withdraw as Court Appointed Counsel on Appeal in
accordance with t.he procedures as standards set out in
Jeffery v. State, 903 S.W.2d 116 (Tex.App.-Dallas                            1995,

no pet. ) .           After thorough examination of the clerk's
record and reportert s record, counsel can find no non-
f ri vol ott.s noj-nt     of   error   that    can l-ro   sr'n1nrtrJ-   ecl hv the
                                                                               UITV




record.             Counsel has discussed the er,,idence and the
documents in            the record, citing           references to the
      ^^-A L,lD
I-^ U\-\-,'I  ^ .




                                        18
                          PRAYER

    wherefore, premises considered, Lhe undersigned
counsel- request.s the court of Appeals rerview the record
on appeal, consi-der the Motion to withd:raw as court
Appornted Counsel, review the             foregoing              Brief   in
Support of Motion to withdraw, and grant t-he Motion to
Withdraw.
                                              qrrhmi ttarl
                          Roqnor-J- frrl I rr uttvrLL.! u uvv,




                                  . {Jackson
                          SBOT No" 24069916
                          7 3 6-A Hwy 259 l{.
                          Kj-lgore, TX 15662
                          Phone: 903-65 4-3362
                          Fax:      B]-l-887-433.3
                          Email:
                          -iOf                               I . com
                          J _*' fJ- i:r-kqnn'i:r.rfinrnr.i
                                           ___-r-Lav/Lqglnaf -1


                          Af f nrrla\7   fnr     Annal    I anfu
                                                         Lstt      /


                                 Temika Cha.rnette               Owens




                            t9
                 CERTIE TCATE OE COMPLIAN'CE

     The foregoing Appellant' s Brief              is i_n compl-iance
with TEX. R. APP. P. 9.4(i) (2) (B) .          The totat_ number of
words contained in     Appe]l-ant's Brief                that        are nor
specifically   excl-uded from the word count under TEX.                   R.

APP. P. 9.4 (i) (1) is 2,315 words.




                            SBOT No. 2406991             6
                             A1-t^
                            r-aLL\JLITCY   tar
                                           LrJJ-    Zrrnal   l tnf
                                                   rlJPC.L_LA.ttL/
                               Temika Charn<>tte Owens




                             20
                 CERTTFTCATE OF SERVTCE

    r, the undersigned attorney, do hereby certify        that
a true and correct copy of the above Motion was served
on the state of Texas by mailing same to the District
Attorney of Rusk County on August Il , 2015.
    I further certify   that I have mail_ed a copv of the
above Brief   and accompanying Motj-on by First          cl-ass
Mail-, postage paid,    to Appel_l_ant, Temi.ka Charnette
owens at the address fisted    above on the same date.



                                          ar:kson
                                          2,406997   6




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