                                                                                 ACCEPTED
                                                                            12-14-00333-CR
                                                                TWELFTH COURT OF APPEALS
                                                                             TYLER, TEXAS
                                                                       1/28/2015 3:25:55 PM
                                                                               CATHY LUSK
                                                                                     CLERK

                   No. 12-14-00333-CR

                                                           FILED IN
                                                    12th COURT OF APPEALS
        IN THE TWELFTH COURT OF              APPEALS TYLER, TEXAS
                  TYLER, TEXAS                      1/28/2015 3:25:55 PM
                                                         CATHY S. LUSK
                                                             Clerk

                MARY LOUISE HENRY

                              Appellant,

                             v.

                 THE STATE OF TEXAS

                                  Appellee


On Appeal from the 7th District Court of Smith County, Texas
               Trial Cause No. 007-1056-13




        ORAL ARGUMENT NOT REQUESTED


                         Austin Reeve Jackson
                         Texas Bar No. 24046139
                         112 East Line, Suite 310
                         Tyler, TX 75702
                         Telephone: (903) 595-6070
                         Facsimile: (866) 387-0152
                   IDENTITY OF PARTIES AND COUNSEL


Attorney for Appellant

Appellate Counsel:
Austin Reeve Jackson
112 East Line, Suite 310
Tyler, TX 75702

Trial Counsel:
John Jarvis
326 S. Fannin
Tyler, TX 75702

Attorney for the State on Appeal

Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702




                                            ii
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS............................................................................................... iii
INDEX OF AUTHORITIES ......................................................................................... iv
STATEMENT OF THE CASE....................................................................................... 2
ISSUE PRESENTED ...................................................................................................... 2
STATEMENT OF FACTS ............................................................................................. 2
PROFESSIONAL EVALUATION OF THE RECORD ................................................ 3
SUMMARY OF THE ARGUMENT ............................................................................. 3
ARGUMENT .................................................................................................................. 4

    THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN
       REVOKING APELLANT'S COMMUNITY SUPERVISION .................. 4
     Standard of Review ................................................................................................... 4
     A. There was Legally Sufficient Evidence to Support the Revocation ................... 5
          1. The Plea ......................................................................................................... 5
          2. Sufficiency of the Evidence ........................................................................... 6
     B. Appellant's Setence was Within the Statutory Range of Punishment ................. 7
     C. Appellant Received Effective Assistance of Counsel ......................................... 9

CONCLUSION AND PRAYER .................................................................................. 10
CERTIFICATE OF SERVICE ..................................................................................... 10
CERTIFICATE OF COUNSEL ................................................................................... 11
CERTIFICATE OF COMPLIANCE ............................................................................ 11




                                                             iii
                                 INDEX OF AUTHORITIES


UNITED STATES SUPREME COURT:

Anders v. California,
 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ................................... 3, 10, 11

Robinson v. California,
 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) ..................................... 7

Solem v. Helm,
 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) ................................. 7-8

Strickland v. Washington,
  466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1984) ................................. 9


TEXAS COURT OF CRIMINAL APPEALS:

Aguirre-Mata v. State,
 125 S.W.3d 473 (Tex.Crim.App. 2003) ........................................................ 6

Cardona v. State,
 665 S.W.2d 492 (Tex.Crim.App. 1984) ........................................................ 4

Cobb v. State,
 851 S.W.2d 871 (Tex.Crim.App. 1993) ........................................................ 6

Cole v. State,
 578 S.W.2d 127 (Tex.Crim.App. 1979) ........................................................ 7

Ex parte Brown,
 158 S.W.3d 449 (Tex.Crim.App. 2005) ........................................................ 8

Garcia v. State,
 57 S.W.3d 436 (Tex.Crim.App. 2001) ......................................................... 9

Hernandez v. State,
 988 S.W.2d 70 (Tex.Crim.App. 1999) ......................................................... 9


                                                   iv
TEXAS COURT OF CRIMINAL APPEALS (CON’T):

Jackson v. State,
  877 S.W.2d 768 (Tex.Crim.App. 1994) ....................................................... 9

Jordan v. State,
  495 S.W.2d 949 (Tex.Crim.App. 1973) ....................................................... 8

Lyles v. State,
 850 S.W.2d 497 (Tex.Crim.App. 1993) ........................................................ 4

Mendez v. State,
 138 S.W.3d 334 (Tex.Crim.App. 2004) ........................................................ 6

Miniel v. State,
 831 S.W.2d 310 (Tex.Crim.App. 1992) ....................................................... 9

Moore v. State,
 605 S.W.2d 924 (Tex.Crim.App. 1980) ........................................................ 7

Moore v. State,
 694 S.W.2d 528 (Tex.Crim.App. 1985) ........................................................ 9

Moses v. State,
 590 S.W.2d 469 (Tex.Crim.App. 1979) ....................................................... 7 n.1

Rhoades v. State,
 934 S.W.2d 113 (Tex.Crim.App. 1996) ....................................................... 7

Rickles v. State,
  202 S.W.3d 759 (Tex.Crim.App. 2006) ........................................................ 4, 6

Stafford v. State,
  813 S.W.2d 503 (Tex.Crim.App. 1991) ....................................................... 10

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

TEXAS COURTS OF APPEAL:



                                                    v
Bolden v. State,
 73 S.W.3d 428 (Tex.App.—Houston [1st Dist.] 2002) ................................. 8

Brooks v. State,
 995 S.W.2d 762 (Tex.App.—San Antonio 1999).......................................... 7

Canseco v. State,
 199 S.W.3d 437 (Tex.App.—Houston [1st Dist.] 2006) ............................... 4

Castaneda v. State,
 135 S.W.3d 719 (Tex.App.—Dallas 2003) .................................................. 7

TEXAS COURTS OF APPEAL (CON’T):

Duke v. State,
 2 S.W.3d 512 (Tex.App.—San Antonio 1999).............................................. 4

Hays v. State,
 933 S.W.2d 659 (Tex.App.—San Antonio 1996) ......................................... 4, 5, 7

Joseph v. State,
  3 S.W.3d 627 (Tex.App.—Houston [14th Dist.] 1999) ................................. 4

Lewis v. State,
 195 S.W.3d 205 (Tex.App.—San Antonio 2006).......................................... 4

Mays v. State,
 904 S.W.2d 290 (Tex.App.—Fort Wroth 1995) ............................................ 3

Noland v. State,
 264 S.W.3d 144 (Tex.App.—Houston [1st Dist.] 2007) .............................. 7

Roman v. State,
 145 S.W.3d 316 (Tex.App.—Houston [14th Dist.] 2004) ............................. 8

Sims v. State,
  326 S.W.3d 707 (Tex.App.—Texarkana 2010) ............................................. 6

Trevino v. State,
 174 S.W.3d 925 (Tex.App.—Corpus Christi 2005) ...................................... 8

                                                 vi
STATUTES AND OTHER CONSTITUTIONAL PROVISIONS:

TEX. HEALTH & SAFETY CODE § 481.134 ......................................................... 8

TEX. PEN. CODE § 12.34 .................................................................................... 8

TEX. R. APP. P. 33.1 .......................................................................................... 7

U.S. CONST. AMEND. VIII ................................................................................. 7

U.S. CONST. AMEND. XIV ................................................................................. 7




                                                            vii
                             No. 12-14-00333-CR


                   IN THE TWELFTH COURT OF APPEALS
                             TYLER, TEXAS


                          MARY LOUISE HENRY

                                        Appellant,

                                       v.

                           THE STATE OF TEXAS

                                            Appellee


          On Appeal from the 7th District Court of Smith County, Texas
                         Trial Cause No. 007-1056-13




TO THE HONORABLE JUSTICES OF THE COURT:

      Comes Now, Austin Reeve Jackson, attorney for Mary Henry, and files this

brief pursuant to the TEXAS RULES OF APPELLATE PROCEDURE, and would show

the Court as follows:
                          STATEMENT OF THE CASE

         Mary Henry seeks to appeal her conviction and sentence for the offense of

Possession of Marijuana in a Drug Free Zone. (I CR 64). Ms. Henry was indicted

for this offense in the Seventh District Court of Smith County and, after entering a

plea of “guilty” to the offense, was initially placed on community supervision. (I

CR 1, 36). In October of last year that community supervision was revoked and

Ms. Henry was sentenced to serve a term of five years’ confinement. (I CR 64).

Sentence was pronounced on 13 October 2014 and notice of appeal then timely

filed. (I CR 64, 69).

                               ISSUE PRESENTED

         THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN
         REVOKING APPELLANT’S COMMUNITY SUPERVISION.

                            STATEMENT OF FACTS

         In August of 2013, Appellant, Ms. Mary Henry, was indicted for the felony

offense of Possession of Marijuana in a Drug Free Zone. (I CR 1). An agreement

was reached in response to that charge that in return for her plea of “guilty” Ms.

Henry would be placed on five years’ deferred adjudication community supervi-

sion. (I CR 36). That term of community supervision began in November of 2013.

(Id.).

         Unfortunately, in September of 2014, Ms. Henry was charged with violating

the terms and conditions of her probation and faced revocation. (I CR 43). To the

                                         2
allegations made against her Ms. Henry entered pleas of “true.” (I CR 54). After

accepting her plea, the trial court revoked the previously imposed term of commu-

nity supervision and sentenced Ms. Henry to serve a period of five years’ confine-

ment. (I CR 64). Sentence was pronounced on 13 October 2014 and notice of ap-

peal then timely filed. (I CR 64, 69).

            PROFESSIONAL EVALUATION OF THE RECORD

      In accordance with the requirements of Anders v. California, 386 U.S. 738,

744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), counsel has reviewed the record

and determined that, in his professional opinion, the record contains no reversible

error or jurisdictional defects. Under circumstances where there appears to be no

arguable grounds for reversal on appeal, counsel is required to present a profes-

sional evaluation of the record supporting this assertion. See Mays v. State, 904

S.W.2d 290, 922-23 (Tex.App.—Fort Worth 1995, no pet.).

                      SUMMARY OF THE ARGUMENT

      Pursuant to the responsibilities and requirements of the governing code of

professional conduct, a thorough review of the record has been made. Counsel’s

research has revealed no arguable, non-frivolous grounds that could be advanced in

support of a claim that there exists reversible error in the trial, judgment, or sen-

tence of Appellant. A review and analysis of any potential issues is herein present-

ed for the Court.



                                         3
                                  ARGUMENT

      Standard of Review

      Where a trial court revokes a previously imposed term of community super-

vision the decision to do so is reviewed under an abuse of discretion standard.

Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006); Cardona v. State,

665 S.W.2d 492 (Tex.Crim.App. 1984). A trial court abuses its discretion if it acts

without reference to guiding principles. Lyles v. State, 850 S.W.2d 497, 502

(Tex.Crim.App. 1993). This review considers the record in the light most favora-

ble to the trial court’s decision. Duke v. State, 2 S.W.3d 512, 515 (Tex.App.—San

Antonio 1999, no pet.).

      Proof of even a single violation is sufficient to support a revocation. Can-

seco v. State, 199 S.W.3d 437, 439 (Tex.App.—Houston [1st Dist.] 2006, pet.

ref’d). Therefore, in order to prevail an appellant must show that taking the evi-

dence in the light most favorable to the court’s decision there is insufficient evi-

dence to support each and every finding of the court. Lewis v. State, 195 S.W.3d

205, 209 (Tex.App.—San Antonio 2006, no pet.); Joseph v. State, 3 S.W.3d 627,

640 (Tex.App.—Houston [14th Dist.] 1999, no pet.). Additionally, a plea of true,

standing alone, is sufficient to support a trial court’s revocation of community su-

pervision. See Hays v. State, 933 S.W.2d 659, 661 (Tex.App.—San Antonio 1996,




                                         4
no pet.) (holding that a plea of “true” to any violation can by itself support a revo-

cation).

      THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN
      REVOKING APPELLANT’S COMMUNITY SUPERVISION.

      A. There Was Legally Sufficient Evidence to Support the Revocation.

      By way of a written motion to proceed to final adjudication, Ms. Henry was

alleged to have violated the terms of his community supervision. (I CR 44-46).

The application included the following allegations:

Application Paragraph      Allegation
            I              Identity of Defendant
           II              DWI
          III              Failure to ID
          IV               Possession of Alcohol
           V               Consumption of Alcohol
          VI               Failure to Complete Drug Class
          VII              Driving Without a License

(Id.). To all paragraphs pleas of “true” were entered. (I CR 54). Thus, if the pleas

of “true” were entered freely, knowingly, and voluntarily, the trial court had suffi-

cient evidence to revoke Ms. Henry’s community supervision. Hays, 933 S.W.2d

at 661.

      1. The Plea

      Before accepting her plea, the trial court advised Ms. Henry as to the conse-

quences of entering her plea, including the potential range of punishment, and also

advised her of his right to remain silent and her right to have a hearing on the alle-

                                          5
gations at issue. (V RR 7-13). After having been so advised, Ms. Henry persisted

in her desire to enter pleas of “true” and gave no indication that she was doing so

involuntarily. (Id.); see Sims v. State, 326 S.W.3d 707, 713 (Tex.App.—Texarkana

2010, pet. struck) (citing Mendez v. State, 138 S.W.3d 334, 350 (Tex.Crim.App.

2004)) (holding that challenges to the voluntariness of a plea must be raised before

the trial court in order to preserve the error for appeal); see also TEX. R. APP. PROC.

33.1(a)(1). Finally, could any error be advanced regarding the trial court’s admon-

ishments, such error would be non-constitutional error subject to a harm analysis

and, given the record before the Court, Ms. Henry could not meet that burden in

this case. See Aguirre-Mata v. State, 125 S.W.3d 473, 474-76 (Tex.Crim.App.

2003).

      2. Sufficiency of the Evidence

      The State must prove allegations in a revocation setting by a preponderance

of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). Evi-

dence, therefore, is sufficient if an analysis of its comparative weight tends to sup-

port the trial court’s conclusion that at least one condition of probation was violat-

ed. See Rickels, 202 S.W.3d at 764 (holding that evidence is sufficient to support a

revocation where the greater weight of the credible evidence before the court sup-

ports a reasonable belief that a condition of probation has been violated). Moreo-

ver, a plea of “true,” standing alone, is sufficient to support a trial court’s revoca-



                                          6
tion of community supervision.             See Hays v. State, 933 S.W.2d 659, 661

(Tex.App.—San Antonio 1996, no pet.) (holding that a plea of “true” to any viola-

tion can by itself support a revocation). Thus, where the Court finds that a volun-

tary plea of true was entered, as was the case here, the evidence is legally sufficient

to support the revocation. (V RR 14); Moore v. State, 605 S.W.2d 924, 926

(Tex.Crim.App. 1980); Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. 1979);

Brooks v. State, 995 S.W.2d 762, 763 (Tex.App.—San Antonio 1999, no pet.).1

       B. Appellant’s Sentence Was Within the Statutory Range of Punishment.

       The Eighth Amendment prohibits the imposition of “cruel and unusual pun-

ishment.” U.S. CONST. AMEND. VIII. The Eighth Amendment is applicable to the

states through the Fourteenth Amendment. U.S. CONST. AMEND. XIV; Robinson v.

California, 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).

       Here, neither Ms. Henry nor her trial counsel raised the issue of cruel or ex-

cessive punishment at the time sentence was imposed and, therefore, this issue has

likely been waived on appeal. See TEX. R. APP. PROC. 33.1(a)(1)(A); Rhoades v.

State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Noland v. State, 264 S.W.3d

144, 151-52 (Tex.App.—Houston [1st Dist.] 2007, pet. ref’d); Castaneda v. State,

135 S.W.3d 719, 723 (Tex.App.—Dallas 2003, no pet.); but see Solem v. Helm,
1
  The record also contains a written stipulation of evidence, signed by Ms. Henry, offered and
accepted by the court at trial, and admitting to the truth of the allegations made against her. (I
CR 54). Such a written stipulation is, likewise, sufficient to support the trial court’s decision.
See Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979) (a plea of true and written stipu-
lation is sufficient to support revocation).

                                                7
463 U.S. 277, 288, 103 S.Ct. 3001, 3008-09, 77 L.Ed.2d 637 (1983) (noting excep-

tion to this general rule if sentence assessed is grossly disproportionate to the

crime). Additionally, the sentence imposed of five years’ confinement was within

the statutory punishment range for the offense and is, consequently, virtually pre-

sumed not to be constitutionally cruel and unusual. Jordan v. State, 495 S.W.2d

949, 952 (Tex.Crim.App. 1973); Trevino v. State, 174 S.W.3d 925, 928

(Tex.App.—Corpus Christi 2005, pet. ref’d); see also TEX. HEALTH & SAFETY

CODE ANN. § 481.134 (as alleged, offense was a third degree felony); TEX. PEN

CODE § 12.34 (punishment range for a third degree felony). Further, that Ms. Hen-

ry was sentenced below the maximum possible ten-year sentence is also a factor

indicating that the sentence was not excessive or cruel. Bolden v. State, 73 S.W.3d

428, 434 (Tex.App.—Houston [1st Dist.] 2002, pet. ref’d).

      Finally, due process requires that the trial court consider the full range of

punishment for an offense and weigh both mitigating and incriminating evidence in

the assessment of sentence.         Ex parte Brown, 158 S.W.3d 449, 454

(Tex.Crim.App. 2005). In the absence of a clear showing to the contrary, on ap-

peal the Court will presume that the trial court did not act arbitrarily and consid-

ered all of the evidence before it.      Roman v. State, 145 S.W.3d 316, 319

(Tex.App.—Houston [14th Dist.] 2004, pet. ref’d). Given the record before the

Court, this presumption cannot be overcome on direct appeal.



                                         8
      C. Appellant Received Effective Assistance of Counsel.

      Effective assistance of counsel is to be evaluated under the standard enunci-

ated in Strickland v. Washington, 466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344

(1984); see also, Hernandez v. State, 988 S.W.2d 70 (Tex.Crim.App. 1999). To

prevail in a claim of ineffective assistance of counsel, a defendant must show (1)

that her trial counsel’s performance fell below an objective standard of reasonable-

ness, and (2) that a reasonable probability exists that, but for trial counsel’s alleged

errors, the result would have been different. Strickland, 466 U.S. at 687-88. On

appeal, the defendant carries the burden of proving ineffective assistance by a pre-

ponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App.

1985). Finally, trial counsel’s performance is not to be judged with the benefit of

hindsight. Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App. 1992).

      With this standard in mind, a comprehensive review of the record has been

made of the proceedings including pretrial matters, Ms. Henry’s original plea, the

revocation hearing, and the arguments of counsel. Here, that review fails to shows,

given the totality of the representation provided by trial counsel, any basis from

which to argue that ineffective assistance was rendered. See, e.g., Garcia v. State,

57 S.W.3d 436, 440 (Tex.Crim.App. 2001); Thompson v. State, 9 S.W.3d 808, 812

(Tex.Crim.App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.

1994).



                                           9
                         CONCLUSION AND PRAYER

      As counsel was unable to raise any arguable issues for appeal, he is required

to move for leave to withdraw.          See Stafford v. State, 813 S.W.2d 503

(Tex.Crim.App. 1991).

      WHEREFORE, PREMISES CONSIDERED, counsel prays that the Court,

after affording Ms. Henry the opportunity to review the record and file a pro se

brief should she desire to do so, accept this brief and grant the attached Motion to

Withdraw pursuant to Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct.

1396 (1967).

                                              Respectfully submitted,

                                              /s/ Austin Reeve Jackson
                                              Texas Bar No. 24046139
                                              112 East Line, Suite 310
                                              Tyler, TX 75702
                                              Telephone: (903) 595-6070
                                              Facsimile: (866) 387-0152


                         CERTIFICATE OF SERVICE

      I certify that a true and correct copy of this brief was delivered to counsel for

the State by electronic service on this the 28th day of January 2014.



                                              /s/ Austin Reeve Jackson




                                         10
                           CERTIFICATE OF COUNSEL

      The attorney’s role as an advocate requires that I support my client’s appeal

to the best of my ability. Anders v. California, 386 U.S. 738. I, Austin Reeve

Jackson, counsel of record in this appeal, do hereby state that I have diligently

searched the entire record in this cause. I have researched the law applicable to the

facts and issues contained therein, and it is my professional opinion that the record

reflects no reversible error. In conformity with the applicable law pertaining to an

appeal of this nature, I have set forth any potential grounds of error and have

briefed them to the extent possible. I have further caused a copy of this brief to be

served by certified mail on Appellant, accompanied by a letter informing Appellant

of the right to examine the record for the purpose of filing a pro se brief.



                                               /s/ Austin Reeve Jackson



                       CERTIFICATE OF COMPLIANCE

      I certify that this document complies with the requirements of Rule 9.4 and

consists of 2,328 words.

                                               /s/ Austin Reeve Jackson




                                          11
