                                                                     ACCEPTED
                                                                 12-15-00146-CR
                                                    TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                            9/22/2015 3:36:22 PM
                                                                       Pam Estes
                                                                          CLERK

            ORAL ARGUMENT NOT REQUESTED

                   NO. 12-15-00146-CR            FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
               IN THE COURT OF APPEALS    9/22/2015 3:36:22 PM
                 12TH JUDICIAL DISTRICT          PAM ESTES
                                                   Clerk
                       TYLER, TEXAS




                  BRITTANY BARRETT,
                      APPELLANT

                             VS.

                  THE STATE OF TEXAS,
                       APPELLEE




        ON APPEAL IN CAUSE NUMBER 114-0874-12
       FROM THE 114TH JUDICIAL DISTRICT COURT
              OF SMITH COUNTY, TEXAS
    HONORABLE CHRISTI KENNEDY, JUDGE PRESIDING


                  APPELLANT’S BRIEF

JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437
ATTORNEY FOR APPELLANT
             IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
    Brittany Barrett

APPELLANT’S TRIAL COUNSEL:
    Walter Nicholson
    PO Box 1811
    901 North Perry
    Palestine, Texas 75802
    903-729-5400

     Brent Ratekin
     422 S. Spring
     Tyler, Texas 75702
     903-595-1516

     Norman Ladd
     235 S. Broadway, Suite 200
     Tyler, Texas 75702
     903-705-7211

APPELLANT’S APPELLATE COUNSEL
    James Huggler
    100 E. Ferguson, Suite 805
    Tyler, Texas 75702
    903-593-2400
    903-593-3830 (fax)

APPELLEE
    The State of Texas

APPELLEE’S TRIAL COUNSEL
    Jacob Putman
    Whitney Tharpe
    Chris Gatewood
    Smith County Criminal District Attorney’s Office
                                  ii
     100 N. Broadway, 4th Floor
     Tyler, Texas 75702
     903-590-1720
     903-590-1719 (fax)

APPELLEE’S APPELLATE COUNSEL
    Michael West
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720
    903-590-1719 (fax)




                                  iii
                                  TABLE OF CONTENTS
                                                                                               PAGE

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

PROFESSIONAL EVALUATION OF THE RECORD. . . . . . . . . . . . . . . 4

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




                                                   iv
                                TABLE OF AUTHORITIES
CONST.
TEX. CONST. art. V, § 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5


STATUTES
TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2011). . . . . . . . . . . . . . . . 5
TEX. PENAL CODE ANN. § 12.33 (West 2011).. . . . . . . . . . . . . . . . . . . . . . 6
Tex. Penal Code Ann. §22.01(a)(2) (West 2011). . . . . . . . . . . . . . . . . . . . 3
TEX. PENAL CODE ANN. § 22.02 (West 2011).. . . . . . . . . . . . . . . . . . . . 1, 3


CASES
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
   18 L. Ed. 2d 493 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Bray v. State, 179 S.W.3d 725 (Tex. App.– Fort Worth 2005, no pet.). . 6
Duron v. State, 956 S.W.2d 547 (Tex. Crim. App. 1997). . . . . . . . . . . . . 5
Mays v. State, 904 S.W.2d 920 (Tex. App. – Fort Worth 1995, no pet.). 5
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).. . . . . . . . . . . 7
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
   80 L. Ed. 2d 674 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).. . . . . . . . . . . 7



RULES
Tex. R. App. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4




                                                    v
                          NO. 12-15-00146-CR


BRITTANY BARRETT,                   ,§   IN THE COURT OF APPEALS
APPELLANT                           §
                                    §
VS.                                 §    12TH JUDICIAL DISTRICT
                                    §
THE STATE OF TEXAS,                 §
APPELLEE                            §    TYLER, TEXAS



                         APPELLANT’S BRIEF


TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:


      Comes now Brittany Barrett (“Appellant”), by and through her

attorney of record, James Huggler, and pursuant to the provisions of TEX.

R. APP. PROC. 38, et seq., respectfully submits this brief on appeal.




                     STATEMENT OF THE CASE

      Appellant was charged by felony indictment in Smith County cause

number 114-0874-12 with the felony offense of aggravated arrest. TEX.


                                     1
PENAL CODE ANN. §22.02 (West 2011). I CR 11. This is one of three cases

which all occurred at the same time and have been given sequential cause

numbers by both the trial court and this Court.                       Following a plea

agreement, the court placed Ms. Barrett on ten years deferred

adjudication supervision. I CR 32-33, 40; III RR 12-13.2 Timely notice of

appeal was filed on June 2, 2015. I CR 84. A First Amended Application

to Proceed to Final Adjudication was filed.                I CR 67-71. Ms. Barrett

entered a plea of true to each allegation. I CR 77; VI RR 12-17. Following

evidence and argument, the trial court proceeded to final adjudication,

found Ms. Barrett guilty of the offense.                  VI RR 61-62.         Following

argument, the court assessed a fifteen year sentence in this case. VI RR

65. This brief is timely filed on or before September 23, 2015.




                               ISSUES PRESENTED

                                           None


1
 References to the Clerk’s Record are made using “CR” with a roman numeral preceding “CR”
designating the correct volume and an arabic numeral following specifying the correct page.
2
 References to the Reporter’s Record are made using “RR” with a roman numeral preceding
designating the volume and an arabic numeral following designating the correct page.
                                               2
                    STATEMENT OF THE FACTS

     Appellant was charged by felony indictment in Smith County cause

number 114-0874-12 and charged with the felony offense of aggravated

assault. TEX. PENAL CODE ANN. §22.02(a)(2) and 22.01 (a)(2) (West 2011);

I CR 1. The indictment alleged that Ms. Barrett committed an aggravated

assault against Terrence Brown on May 14, 2012 by striking him with a

motor vehicle while using or exhibiting a deadly weapon. I CR 1.

     Ms. Barrett entered a plea of guilty, pursuant to an agreement to

receive ten years deferred adjudication supervision. I CR 40; II RR 17.

The court accepted the plea agreement. III RR 12-13. The State filed an

amended application to proceed to final adjudication alleging a total of

eight paragraphs. I CR 67-71. Ms. Barrett entered a plea of true to each

paragraph. I CR 77; VI RR 12-17. Following evidence and argument of

counsel, the court found Ms. Barrett guilty of the offense. VI RR 61-62.

Following argument, the court imposed a fifteen year sentence with no

fine. VI RR 65; I CR 73-74. This appeal follows.




                                   3
                     SUMMARY OF ARGUMENT

     Counsel has reviewed the record and has concluded that, in his

professional opinion, the record contains no reversible error or

jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.

1396, 1400, 18 L. Ed. 2d 493 (1967). Thus, counsel must move for leave

to withdraw from the case.




                              ARGUMENT

     There is no argument to present to this Court; however, Counsel has

included this section to strictly comply with Texas Rule of Appellate

Procedure 38. Counsel has reviewed the record and has concluded that,

in his professional opinion, the record contains no reversible error or

jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.

1396, 1400, 18 L. Ed. 2d 493 (1967). Therefore, counsel is including the

following explanatory section.




         PROFESSIONAL EVALUATION OF THE RECORD

     When counsel contends that there are no arguable grounds for
                                    4
reversal on appeal, counsel is required to present a professional

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

S.W.2d 920, 922-23 (Tex. App. – Fort Worth 1995, no pet.)

     The indictment conferred jurisdiction on the trial court and provided

Appellant with sufficient notice of the charged offense. See TEX. CONST.

art. V, § 12; Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App.

1997). The trial court has jurisdiction over the case.    See TEX. CODE

CRIM. PROC. ANN. Art. 4.05 (West 2011) (stating that district courts shall

have original jurisdiction in felony criminal cases).

     Appellant's attorney confirmed that he was satisfied that Appellant

was competent and the State offered no evidence regarding competency.

III RR 15. Ms. Barrett was correctly admonished as to the punishment

range. III RR 8; I CR 41. She was admonished as to the effects a guilty

plea may have regarding any immigration status. III RR 8.

     Counsel has found no error occurring in the final hearing and

assessment of punishment. At the sentencing hearing, the trial court

sentenced Appellant to fifteen years confinement. VI RR 65; I CR 73-74.

The sentence assessed by the trial court is within the punishment range


                                     5
provided for by law. See TEX. PENAL CODE ANN. § 12.33 (West 2011).

     Moreover, the judgment does not contain any improper assessment

of fees. See Bray v. State, 179 S.W.3d 725 (Tex. App.--Fort Worth 2005, no

pet.). The bill of costs prepared appears to be accurate and matches the

judgment. I CR 82, 73-74. Because the sentence was within the range of

punishment for a second degree felony, there was no reversible error

during the punishment phase.

     Finally, the undersigned has reviewed the record and found no

arguable ground for ineffective assistance of counsel. Counsel is strongly

presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment. Strickland

v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674

(1984).

     Upon review of the PSI by the trial court, the trial court was of the

opinion that deferred was not appropriate in these cases. III RR 4. Mr.

Nicholson was able to argue effectively for the court to allow Ms. Barrett

the opportunity for the deferred. III RR 9-10. He also sought a transfer

of supervision to Anderson County, and voiced his concerns when the


                                    6
court refused that request. III RR 14, 16-17. Ms. Barrett expresses no

dissatisfaction with Mr. Nicholson. III RR 20.

     Mr. Nicholson’s concerns at the original sentencing were proven

correct at a later hearing on January 30, 2015. IV RR 4-5. Mr. Ratekin

was appointed to represent Ms. Barrett and argued successfully for the

same transfer Mr. Nicholson had sought on September 5, 2012. IV RR 6.

     At the final application to revoke hearing, Mr. Ladd effectively

argued for Ms. Barrett. He was able to cross-examine the witnesses

thoroughly. Ms. Barrett received a fifteen year sentence when the State

sought a seventeen year sentence. VI RR 63. Considering the totality of

the representation of Appellant's trial counsels, the record contains

nothing that would indicate that any counsel's performance was deficient.

See id. at 687, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812

(Tex. Crim. App. 1999).




                            CONCLUSION

     Since counsel is unable to raise any arguable issues for appeal, he

is required to move for leave to withdraw. See Stafford v. State, 813

                                    7
S.W.2d 503 (Tex. Crim. App. 1991).




                          PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Counsel respectfully

prays that this Court permit him to withdraw after this Court’s own

examination of the record in this cause and to afford Appellant his right

to file any pro se brief that he may wish to file.




Respectfully submitted,


/s/ James Huggler
James W. Huggler, Jr.
State Bar Number 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 fax
ATTORNEY FOR APPELLANT




                                      8
                       CERTIFICATE OF SERVICE

A true and correct copy of the foregoing Brief of the Appellant has been

forwarded to counsel for the State by electronic filing on this the 22nd day

of September, 2015. And by regular mail to Ms. Barrett at the address

below.

Attorney for the State:
Mr. Mike West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702


Ms. Brittany Barrett
TDCJ 02002124
Lockhart Unit
PO Box 1170
Lockhart, Texas 78644



                   CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 1,786 words as counted by
Corel WordPerfect version x6.


/s/ James Huggler
James W. Huggler, Jr.
                                     9
