                                                                 ACCEPTED
                                                             03-14-00577-CR
                                                                     5360149
                                                  THIRD COURT OF APPEALS
                                                             AUSTIN, TEXAS
                                                        5/20/2015 1:59:16 PM
                                                           JEFFREY D. KYLE
                                                                      CLERK
            CASE NO. 03-14-00577-CR

                                           FILED IN
                                    3rd COURT OF APPEALS
          IN THE COURT OF APPEALS       AUSTIN, TEXAS
                                    5/20/2015 1:59:16 PM
      THIRD SUPREME JUDICIAL DISTRICT JEFFREY D. KYLE
                                            Clerk

                  AT AUSTIN


           NICOLE DAWN HOLLAND,
                  Appellant
                    vs.

             THE STATE OF TEXAS,
                   Appellee


APPEAL FROM THE 424TH JUDICIAL DISTRICT COURT
           BURNET COUNTY, TEXAS
THE HONORABLE JUDGE DAN H. MILLS, PRESIDING


             APPELLANT'S BRIEF



                     TRACY D. CLUCK
                     Texas Bar No. 00787254
                     1450 West Hwy. 290, #855
                     Dripping Springs, TX 78620
                     Telephone: (512) 264-9997
                     tracy@tracyclucklawyer.com

                     ATTORNEY FOR APPELLANT
                     NICOLE DAWN HOLLAND


      ORAL ARGUMENT IS NOT REQUESTED
                        IDENTITY OF THE PARTIES

APPELLANT:
Nicole Dawn Holland
TDCJ 01962247; SID 04906312
Linda Woodman State Jail
1210 Coryell City Rd.
Gatesville, TX 76528

TRIAL COUNSEL FOR APPELLANT:
Barton Vana (Substituted for Matthew Reinstra)
Texas Bar No. 24084441
101 SH 281 N., Ste. 205-C
Marble Falls, TX 78654

APPELLATE COUNSEL FOR APPELLANT:
Tracy D. Cluck
Law Office of Tracy D. Cluck
1450 West Hwy. 290, #855
Dripping Springs, TX 78620

TRIAL COUNSEL FOR APPELLEE:
Richard Crowther
33rd and 424th District Attorney’s Office
1701 E. Polk, Ste. 24
Burnet, TX 78611

APPELLATE COUNSEL FOR APPELLEE:
Gary Bunyard
33rd and 424th District Attorney’s Office
PO Box 725
Llano, TX 78643




                                            ii
                   TABLE OF CONTENTS

Identity of the Parties ………………………………………………………………ii

Table of Contents ………………………………………………………………… iii

Table of Authorities ……………………………………………………………… iv

Statement of the Case ………………………………………………………………1

Issues Presented …………………………………………………………………… 2

Statement of Facts ………………………………………………………………… 3

Summary of Possible Arguable Issues……………………………………………. 6

Prayer ……………………………………………………………………………… 7

Certificate of Service ……………………………………………………………… 8

Certificate of Word Count....……………………………………………………….8




                           iii
                         TABLE OF AUTHORITIES

Cases:

Anders v. California,
     386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 492 ………………………………1

Benson v. Ohio,
     488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300, 1978 ……………………… 1
High v. State,
      573 S.W.2d 807 (Tex. Crim. App. 1978) (no issues presented for review)…1
Lopez v. State, 343 S.W.3d 137 (Tex.Crim.App. 2011)……………………………4
Statutes:

United States Constitution
      Amendment VIII ……………………………………………………………5




                                      iv
                          STATEMENT OF THE CASE

        Appellant was indicted in Burnet County, Texas on March 5, 2103 for

Drving While Intoxicated With A Pssenger Under the Age of 15 in the Vehicle

alleged to have occurredon or about November 6, 2011. This offense is a State Jail

Felony. On June 21, 2013 Appellant entered a negotiated plea of guilty to this

offense and was sentenced to 2 years confinement in TDCJ-SJD and a fine of

$1,000, both probated for 3 years. The terms and conditions of probation agreed to

by Appellant include that, during the period of probation, she would commit no

offeses against the laws of this state, any other state, or the United States, that she

report in person to the probation office as directed by the probation officer, that she

complete 225 hours of community service as directed by the probation officer, and

that she complete a DWI education class no later than six months afer the date she

entered her plea and was placed on probation.

        On June 11, 2014 the State filed a motion to revoke Appellant’s probation

alleging a number of instances of failure to report as required by the probation

conditions, delinquencies in probations fees and other costs, committing a new

offense—namely drving while license suspended, failure to complete community

service, and failure to attend the required DWI education class within six months

of being placed on probation. A revocation hearing was held on September 3,

2014.    Appellant entered a plea of true to the allegation regarding failure to

                                           1
complete the required DWI education class and not true to all other allegations in

the state’s motion to revoke probation. At the conclusion of the revocation hearing

the trial court found by a preponderence of the evidence that Appellant had

violated the terms and conditions of her probation by failing to report as required,

committing a new offense—namely driving while her license was suspended,

failing to complete community service, and failure to complete the required DWI

education class. The trial court specifically noted on the record that it was not

basing its decision in any way on Appellant’s alleged failure to pay probation fees

and other costs.    The trial court then revoked her probation, and sentenced

Appellant to two years confinement in the State Jail Division of the Texas

Department of Criminal Justice and imposed a fine of $1,000. This appeal follows.



                             ISSUES PRESENTED

      Because this brief is being filed in accordance of the dictates of Anders

vs. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 492; Benson v. Ohio, 488

U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300, 1978; and High v. State, 573 S.W.2d

807 (Tex. Crim. App. 1978), no issues are presented for review. A summary of

facts and a discussion of potentially arguable issues will be presented to justify

the conclusion of Appellant’s attorney that there are no arguable appeal issues

and therefore this appeal is frivolous.

                                          2
                           STATEMENT OF FACTS
            Appellant, Nicole Dawn Holland, was indicted in the 424th Judicial

District Court of Burnet County, Texas for the offense of Driving While

Intoxicated with a Passenger Under the Age of 15, a State Jail Felony, alleged to

have occurred from on or about November 6, 2011. Tr. 4.



      On June 21, 2013 Appellant entered a plea of guilty pursuant to a plea

agreement and was sentenced to two years confinement in state jail and a $1,000

fine probated for three years. Tr. 15-19, 21-22; R.—Vol. 2, pp. 6-11. Appellant

received the terms and conditions of her probation in open court at the time of her

plea. Tr. 23-29; R.—Vol. 2, pp. 16-17. On July 11, 2014 the State filed a motion

seeking to revoke Appellant’s probation alleging that she was delinquent on fees

and other costs, had failed to report to her probation officer as required on a

number of occasions, had commited a new offense while on probation—namely

driving while her license was suspended, that she had failed to complete any

community service, and that she had failed to complete a DWI education class

within six months of being placed on probation. Tr. 30-32. The trial court held a

revocation hearing on September 3, 2014. R.—Vol. 3, p. 5. Appellant entered a

plea of “true” to the allegation concerning her alleged failure to complete the


                                         3
required DWI education class and plea of “not true” to all other allegations in the

state’s motion to revoke probation. R.—Vol. 3, p. 5-7.

      Appellant’s probation officer testified that Appellant had failed to report as

required on the dates alleged in the Motion to Revoke, that Appellant had failed to

complete any community service as directed and approved by the probation

department, that Appellant had been arrested for the offense of Driving While

License Suspended while she was on probation, and that Appellant had failed to

complete the required DWI educatation class as directed. R.—Vol. 3, pp. 9-10.

Appellant’s mother testified that although she had personally observed Apppellant

operate a motor vehicle while she knew her license was suspended, that it was a

medical emergency and Appellant was following her to the hospital as she was

riding in an ambulance. R.—Vol. 3, pp. 15-17, 19-20.

      Appellant also testified at the hearing and admitted to operating the motor

vehicle while her license was suspended, but she said she needed to because of the

medical emergency involving her mother and that a police officer had told her she

could follow the ambulance to the hospital in her car even though her license was

suspended. R.—Vol. 3, pp. 21-22. Appellant testified that she had maintained

contact with her probation officer by phone, fax and email because of her medical

conditions and that her probation officer had never told her that she had to meet in

person. R.—Vol. 3, pp. 22, 25, 26. Appellant also testified that she was confused

                                         4
about when she needed to complete the required DWI education class. R.—Vol. 3,

p. 23.

         At the conclusion of the revocation hearing the trial court found, by a

preponderance of the evidence, that Appellant had violated the terms and

conditions of his probation by committing a new offense while on probation—

namely drving while her license was suspended, by failing to report as directed by

the probation department, by failing to complete the required community service as

directed and approved by the probation department, and by failing to complete the

required DWI education class within six months of being placed on probation.

R.—vol. 3, pp. 30-32. The trial court specifically did not consider Appellant’s

alleged delinquencies in fines and fees in making its determination noting that it

could not, from the evidence, Appellant had established her ability to pay fees and

costs. R.—Vol. 3, p. 30. The trial court also noted that Appellant had entered a

pela of true to the state’s allegation that she had failed to complete the required

DWI education class.      Id. The trial court revoked Appellant’s probation and

sentenced her to two years confinement in state jail and a fine of $1,000. R.—Vol.

3, p. 31; Tr. 37-38.




                                         5
                  SUMMARY OF POSSIBLE ARGUABLE ISSUES

      The record reflects that the trial court had ample evidence and testimony to

support its finding by a preponderance of the evidence that Appellant had violated

the terms and conditions of probation with respect to failing to report as required,

committing a new offense while on probation, failing to complete community

service, and failing to complete the required DWI class (in fact Appellant entered a

plea of “true” that she had violated this condition of probation). Though it is an

abuse of discretion for a trial court to revoke a probation soley for failure to pay

fees where a probationer does not have the ability to pay those fees, in this case the

trial court specifically based its decision to revoke only on Appellant’s failure to

report, her failure to complete required community service, the commission of a

new offense while on probation and her failure to complete the required DWI

education class rather than any failure to pay fees and costs. Having found that

Appellant violated the terms and conditions of her probation, the trial court acted

within its clearly established discretion to revoke Appellant’s probation. The

punishment assessed, two years confinement in state jail and a fine of $1,000 does

not exceed the punishment Appellant agreed to in her orginal plea bargain as

reflected in the record (in fact it is the same punishment Appellant agreed to in her

plea bargain).



                                          6
      Finding no other possible error in the record, the only other arguable issue

Appellant may have is that the sentence imposed by the trial court is so high that it

violates the United States Constitution’s provision against cruel and unusual

punishment. UNITED STATES CONST., amend. VIII.                However, because the

punishment assessed is within the range of punishment established by the

legislature for this crime, this argument will fail.

                                       PRAYER
      For all of the foregoing reasons, Appellant’s attorney, Tracy D. Cluck,

respectfully prays that this Honorable Court grant his Motion to Withdraw

submitted with this brief. Appellant’s attorney sent a letter to Appellant advising

her of the consequences of filing an Anders brief and informing her of her recourse

in this matter.

                                         Respectfully submitted,


                                         /s/ Tracy D. Cluck


                                         TRACY D. CLUCK
                                         Texas Bar No. 00787254
                                         1450 West Hwy. 290, #855
                                         Dripping Springs, TX 78620
                                         Telephone: (512) 264-9997
                                         tracy@tracyclucklawyer.com

                                         ATTORNEY FOR APPELLANT
                                         NICOLE DAWN HOLLAND


                                            7
                          CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing Brief of Appellant,
Nicole Dawn Holland, has been served on the attorney listed below by e-serve and
e-mail, on May 20, 2015:

424th & 33rd District Attorney’s Office
Mr. Gary Bunyard
g.bunyard@co.llano.tx.us



                                /s/ Tracy D. Cluck
                                _______________________________
                                TRACY D. CLUCK




                      CERTIFICATE OF WORD COUNT

     I certify that the pertinent portion of the brief for the Appellant, Nicole
Dawn Holland, is comprised of approximately 1960 words.



                                          /s/ Tracy D. Cluck

                                          TRACY D. CLUCK




                                            8
                                                                                                        ACCEPTED
                                                                                                    03-14-00577-CR
                                                                                                            5361383
                                                                                         THIRD COURT OF APPEALS
                                                                                                    AUSTIN, TEXAS
                                                                                               5/20/2015 2:31:11 PM
                                                                                                  JEFFREY D. KYLE
                                                                                                             CLERK
                                       NO. 03-14-00577-CR


NICOLE DAWN HOLLAND                              §                 IN THE COURT OF APPEALS
                                                 §
v.                                               §                  THIRD JUDICIAL DISTRICT
                                                 §
THE STATE OF TEXAS                               §                SITTING AT AUSTIN, TEXAS



                                CERTIFICATE OF COUNSEL

       In compliance with the requirements of Anders v. California, 386 U.S. 378 (1967), I,

Tracy D. Cluck, court-appointed counsel for appellant, Nicole Dawn Holland, in the above-

referenced appeal, do hereby verify, in writing, to the Court that I have:

1.     notified appellant that I filed a motion to withdraw as counsel with an accompanying
       Anders brief, and provided a copy of each to appellant;

2.     informed appellant of her right to file a pro se response identifying what she believes to
       be meritorious grounds to be raised in her appeal, should she so desire;

3.     advised appellant of her right to review the appellate record, should she wish to do so,
       preparatory to filing that response;

4.     explained the process for obtaining the appellate record, provided the complete appellate
       record in this cause in paper form, and provided the mailing address for this Court; and

5.     informed appellant of her right to seek discretionary review pro se should this Court
       declare her appeal frivolous.


                                                      Respectfully submitted,

                                                      /s/ Tracy D. Cluck

                                                      ____________________________________
                                                      Attorney for Appellant
