                                                                     ACCEPTED
                                                                 06-15-00163-CR
                                                      SIXTH COURT OF APPEALS
                                                            TEXARKANA, TEXAS
                                                           11/6/2015 11:49:46 AM
                                                                DEBBIE AUTREY
                                                                          CLERK

             NO. 06-15-00163-CR

                                         FILED IN
                                  6th COURT OF APPEALS
      IN THE COURT OF APPEALS FOR TEXARKANA, TEXAS
THE   SIXTH COURT OF APPEALS DISTRICT
                                  11/6/2015 11:49:46 AM
           TEXARKANA, TEXAS            DEBBIE AUTREY
                                           Clerk




CHRISTOPHER WILLIAM MANN,

                 Appellant
                     v.
        THE STATE OF TEXAS,

                 Appellee


             ANDERS BRIEF
  On Appeal from the 264th District Court
          of Bell County, Texas,
       Trial Court Cause No. 71362

                          E. Alan Bennett
                          State Bar #02140700
                          Attorney for Appellant

                          Sheehy, Lovelace & Mayfield, P.C.
                          510 N. Valley Mills Dr., Ste. 500
                          Waco, Texas 76710
                          Telephone: (254) 772-8022
                          Telecopier: (254) 772-9297
                          Email: abennett@slmpc.com
                     Identity of Parties and Counsel

        Appellant, pursuant to Rule of Appellate Procedure 38.1(a), provides

the following list of all parties to the trial court’s judgment and the names

and addresses of all trial and appellate counsel.

Christopher William Mann                                             Appellant
TDCJ #01942096
Bartlett State Jail
1018 Arnold Drive
Bartlett, TX 76511

Michael F. White                                    Trial Counsel for Appellant
100 Kasberg Drive, #A
Temple, Texas 76502

E. Alan Bennett                             Appellate Counsel for Appellant
510 North Valley Mills Dr., Ste. 500
Waco, Texas 76710

Terry E. Clark                                       Trial Counsel for the State
Assistant District Attorney

Bob D. Odom                                  Appellate Counsel for the State
Assistant District Attorney

Henry Garza
District Attorney

Bell County District Attorney’s Office
P.O. Box 540
Belton, Texas 76513




Appellant’s Brief                                                          Page 2
                                             Table of Contents

Identity of Parties and Counsel.............................................................................2

Table of Contents ....................................................................................................3

Index of Authorities ................................................................................................5

Statement of the Case .............................................................................................7

Statement Regarding Oral Argument ..................................................................7

Issues Presented ......................................................................................................8

Anders Certification .................................................................................................8

Statement of Facts ...................................................................................................9

Summary of the Argument ..................................................................................11

Argument ...............................................................................................................12

  I. The Trial Court Had Jurisdiction. .............................................................12
  II. Mann Received Constitutionally Adequate Notice................................13
  III. The Evidence Supports the Trial Court’s Decision. ...............................14
  IV. The Trial Court Sentenced Mann Within the Statutory Range. ...........15
  V. Mann Received Effective Assistance of Counsel. ...................................16
  VI. Summary .......................................................................................................18



Prayer ......................................................................................................................19

Certificate of Compliance ....................................................................................20


Appellant’s Brief                                                                                                      Page 3
Certificate of Service .............................................................................................20

Appendix ................................................................................................................21




Appellant’s Brief                                                                                                  Page 4
                                             Index of Authorities

                                                     Federal Cases

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

McCoy v. Court of Appeals, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988)
..................................................................................................................................11

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
........................................................................................................................... 16, 17

                                                       Texas Cases

Antwine v. State, 268 S.W.3d 634 (Tex. App.—Amarillo 2008, pet. ref’d) .....14

Aranda v. State, No. 04–13–00307–CR, 2014 WL 2157537 (Tex. App.—San
Antonio May 21, 2014, no pet.) (mem. op., not designated for publication)
..................................................................................................................................16

Atchison v. State, 124 S.W.3d 755 (Tex. App.—Austin 2003, pet. ref’d) .. 14, 15

Duncan v. State, 321 S.W.3d 53 (Tex. App.—Houston [1st Dist.] 2010, pet.
ref’d) ................................................................................................................. 14, 15

Dunn v. State, 997 S.W.2d 885 (Tex. App.—Waco 1999, pet. ref’d)................14

Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009) .............................16

Ex parte Ellis, 233 S.W.3d 324 (Tex. Crim. App. 2007)......................................17

Ex parte Huskins, 176 S.W.3d 818 (Tex. Crim. App. 2005) ...............................16

Garner v. State, 545 S.W.2d 178 (Tex. Crim. App. 1977) ...................................13

Jenkins v. State, 740 S.W.2d 435 (Tex. Crim. App. 1983)...................................14

Johnson v. State, 885 S.W.2d 641 (Tex. App.—Waco 1994, pet. ref’d).............11

Jordan v. State, 979 S.W.2d 75 (Tex. App.—Austin 1998), aff’d on other grounds,
36 S.W.3d 871 (Tex. Crim. App. 2001) ................................................................11


Appellant’s Brief                                                                                                           Page 5
LaBelle v. State, 720 S.W.2d 101 (Tex. Crim. App. 1986)...................................13

Mills v. State, No. 14–09–00867–CR, 2011 WL 397950 (Tex. App.—Houston
[14th Dist.] Feb. 8, 2011, pet. ref’d) (mem. op., not designated for publication)
..................................................................................................................................17

Miniel v. State, 831 S.W.2d 310 (Tex. Crim. App. 1992) ...................................17

Moses v. State, 590 S.W.2d 469 (Tex. Crim. App. [Panel Op.] 1979) ........ 14, 15

Sanchez v. State, 603 S.W.2d 869 (Tex. Crim. App. [Panel Op.] 1980) ............14

State v. Dunbar, 297 S.W.3d 777 (Tex. Crim. App. 2009)........................... 12, 13

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) .................................17

Torres v. State, No. 09–13–00405–CR, 2014 WL 989705 (Tex. App.—Beaumont
Mar. 12, 2014, no pet.) (mem. op., not designated for publication)...............16

Von Schounmacher v. State, 5 S.W.3d 221 (Tex. Crim. App. 1999) ...................15

Williams v. State, 910 S.W.2d 83 (Tex. App.—El Paso 1995, no pet.) ..............14

                                                Texas Constitution

TEX. CONST. art. V, § 8 ...........................................................................................12

                                                     Texas Statutes

TEX. CODE CRIM. PROC. art. 4.05 ...........................................................................12

TEX. CODE CRIM. PROC. art. 42.12, § 5 ........................................................... 12, 14

TEX. GOV’T CODE § 24.007 .....................................................................................12

TEX. GOV’T CODE § 24.441 .....................................................................................12

TEX. PEN. CODE § 22.02 ..........................................................................................12




Appellant’s Brief                                                                                                           Page 6
                          Statement of the Case

        Christopher William Mann pleaded “true” to fourteen alleged

violations of his deferred adjudication community supervision for

aggravated assault with a deadly weapon. (CR 34-36), (2 RR 6) The trial

court, the Honorable Martha Trudo, Judge of the 264th District Court of Bell

County, sentenced Mann to fourteen years’ imprisonment. (CR 66-67), (4 RR

13) Mann timely filed his notice of appeal. (CR 60)




                    Statement Regarding Oral Argument

        Oral argument will not aid the Court’s decisional process in this

appeal.




Appellant’s Brief                                                      Page 7
                              Issues Presented

        A careful review of the record reveals no issues of arguable merit.




                            Anders Certification

        The undersigned counsel hereby certifies that he has provided

Appellant Christopher William Mann: (1) a copy of this Anders brief, (2) a

copy of the appellate record, and (3) a letter advising him of the right to file

a pro se response. A copy of counsel’s letter to Mann advising him of his

rights is included in the Appendix to this brief.




Appellant’s Brief                                                          Page 8
                              Statement of Facts


        Mann pleaded “guilty” to assaulting Christian Bohannon “by striking

her on or about the head, face and body” with a club that he used or

exhibited as a deadly weapon. (CR 4, 18-25) The trial court placed Mann on

two years’ deferred adjudication community supervision in accordance with

a plea agreement. (CR 28-31) The State filed a motion to adjudicate about six

months later, alleging fourteen violations. (CR 34-36) Mann was not

apprehended until almost a year later. (CR 38-41)

        At the beginning of the hearing on the motion to adjudicate, the trial

court advised Mann regarding his various rights and admonished him that

the range of punishment was between two and twenty years’ imprisonment

and a fine of up to $10,000. (2 RR 4-5) The trial court also explained the effect

of the deadly weapon allegation. (2 RR 5)

        Mann pleaded “true” to the allegations. (2 RR 6) At the request of his

counsel, the trial court postponed sentencing until an updated presentence

investigation was conducted. (2 RR 7)

        At sentencing, the trial court sustained the State’s hearsay objection to

Mann’s proffer of a letter from the victim, Ms. Bohannon. (3 RR 4-5) Mann



Appellant’s Brief                                                           Page 9
testified and denied committing the assault he had pleaded “guilty” to in

this case. (3 RR 7) Regardless, he asked the court to allow him to remain on

deferred adjudication community supervision for a longer term or

adjudicate his guilt and grant him regular community supervision. (3 RR 6-

7) He explained further that the only reason he pleaded “guilty” was because

he was tired of being in jail and the State had made such a low probation

offer. (3 RR 7-8) The trial court granted a recess to allow Mann’s attorney to

secure Bohannon’s testimony. (3 RR 11)

        At the time of the adjudication hearing, Ms. Bohannon was in jail

charged with capital murder. Her attorney advised the trial court that she

would invoke her Fifth Amendment right and refuse to testify if called as a

witness. (4 RR 5) Mann called her to testify, and she did just that. (4 RR 6-7)

        Mann retook the stand and testified, consistent with the original

presentence investigation report, that he had always maintained his

innocence of the charge. (4 RR 8-10) Mann also criticized his attorney’s

performance. (4 RR 10-11)

        Mann’s attorney asked the court to grant him regular probation. (4 RR

12-13) The prosecutor asked the court to sentence him to “at least eight




Appellant’s Brief                                                        Page 10
years.” The trial court adjudicated Mann’s guilt and sentenced him to

fourteen years’ imprisonment. (CR 66-67), (4 RR 13)




                       Summary of the Argument

        Under Anders v. California, court-appointed counsel must not present

an issue in an appeal if counsel has made a conscientious review of the entire

record and finds the appeal to be wholly frivolous. 386 U.S. 738, 744, 87 S.Ct.

1396, 1400, 18 L.Ed.2d 493 (1967). “If the only theories that the attorney can

discover after [a] conscientious review of the record and the law are

‘arguments that cannot conceivably persuade the court,’ then the appeal

should be considered frivolous.” Johnson v. State, 885 S.W.2d 641, 645 (Tex.

App.—Waco 1994, pet. ref’d) (quoting McCoy v. Court of Appeals, 486 U.S.

429, 436, 108 S.Ct. 1895, 1901, 100 L.Ed.2d 440 (1988)) The undersigned

counsel has carefully reviewed the record and, for the reasons set forth in

this brief, has concluded that this appeal presents no issues of arguable

merit. See Jordan v. State, 979 S.W.2d 75, 78 (Tex. App.—Austin 1998), aff’d on

other grounds, 36 S.W.3d 871 (Tex. Crim. App. 2001).




Appellant’s Brief                                                        Page 11
                                  Argument

I.      The Trial Court Had Jurisdiction.

        The State charged Mann with aggravated assault with a deadly

weapon, a second degree felony. (CR 4) See TEX. PEN. CODE § 22.02(a)(2), (b).

The 264th District Court of Bell County has subject-matter jurisdiction over

felony charges. See TEX. CONST. art. V, § 8; TEX. CODE CRIM. PROC. art. 4.05;

TEX. GOV’T CODE §§ 24.007(a), 24.441.

        The presentment of the indictment against Mann gave the trial court

jurisdiction over his person. State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim.

App. 2009). Further,

        [a] court retains jurisdiction to hold a hearing under Subsection
        (b) and to proceed with an adjudication of guilt, regardless of
        whether the period of community supervision imposed on the
        defendant has expired, if before the expiration the attorney
        representing the state files a motion to proceed with the
        adjudication and a capias is issued for the arrest of the
        defendant.

TEX. CODE CRIM. PROC. art. 42.12, § 5(h).

        Regarding the timing of the motion to revoke, the State filed the

motion, and the district clerk issued the capias on June 23, 2014, eighteen




Appellant’s Brief                                                           Page 12
months before Mann’s term of community supervision expired. (CR 34-36,

39)

        Therefore, the trial court had jurisdiction of both the subject matter and

the person in Mann’s case. See Dunbar, 297 S.W.3d at 780.


II.     Mann Received Constitutionally Adequate Notice.

        [I]n all fairness the allegations as to violation of probation should
        be fully and clearly set forth in the revocation motion, so that the
        defendant and his counsel might be informed as to that upon
        which he will be called to defend. When the allegations in the
        motion fail to fully inform the probationer, and the trial court
        refused to sustain an exception timely filed, the probationer is
        denied the rudiments of due process.

LaBelle v. State, 720 S.W.2d 101, 104 (Tex. Crim. App. 1986) (quoting Garner

v. State, 545 S.W.2d 178 (Tex. Crim. App. 1977)).

        Mann’s trial counsel did not challenge the adequacy of notice provided

by the motion to adjudicate. See Rodriguez v. State, 951 S.W.2d 199, 204 (Tex.

App.—Corpus Christi 1997, no pet) (trial objection required to preserve

complaint that revocation motion was defective).               Nevertheless, the

allegations in Mann’s motion to adjudicate provided adequate notice.




Appellant’s Brief                                                               Page 13
III.    The Evidence Supports the Trial Court’s Decision.


        The State bears the burden of proving a violation of community

supervision by a preponderance of the evidence. Jenkins v. State, 740 S.W.2d

435, 437 (Tex. Crim. App. 1983); Williams v. State, 910 S.W.2d 83, 85 (Tex.

App.—El Paso 1995, no pet.). A plea of “true,” standing alone, is sufficient

to support a judgment revoking community supervision. See Moses v. State,

590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979); Duncan v. State, 321

S.W.3d 53, 58 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). A court does

not abuse its discretion in revoking community supervision if the State

proves even a single violation. Sanchez v. State, 603 S.W.2d 869, 871 (Tex.

Crim. App. [Panel Op.] 1980); Dunn v. State, 997 S.W.2d 885, 887 (Tex. App.—

Waco 1999, pet. ref’d).

        These same principles apply to a trial court’s decision to proceed with

an adjudication of guilt under article 42.12, section 5. See TEX. CODE CRIM.

PROC. art. 42.12, § 5(b); Antwine v. State, 268 S.W.3d 634, 636 (Tex. App.—

Amarillo 2008, pet. ref’d); Atchison v. State, 124 S.W.3d 755, 758 n.4 (Tex.

App.—Austin 2003, pet. ref’d).




Appellant’s Brief                                                        Page 14
        Here, Mann pleaded “true” to all the violations alleged. (2 RR 6). His

plea of “true,” standing alone, is sufficient to support the court’s decision to

adjudicate. See Moses, 590 S.W.2d at 470; Duncan, 321 S.W.3d at 58; Atchison,

124 S.W.3d at 758 .


IV.     The Trial Court Sentenced Mann Within the Statutory Range.

        The undersigned counsel understands that Mann wants to challenge

the trial court’s decision to impose a sentence greater than the 8-year

sentenced urged by the prosecutor in closing argument. This potential issue

is meritless for two reasons. First, the prosecutor argued for a sentence of “at

least eight years.” (4 RR 13) (emphasis added) And second, the trial court

was within its discretion to impose a sentence anywhere within the statutory

range regardless of any recommendation from the State. Texas courts have

so held on numerous occasions.

        [R]egardless of whether the deferred adjudication was part of a
        plea bargain, recommended by the prosecution, imposed by the
        trial court without objection by the appellant, or granted under
        other circumstances, once the trial court proceeds to
        adjudication, it is restricted in the sentence it imposes only by the
        relevant statutory limits.

Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1999) (per

curiam).


Appellant’s Brief                                                               Page 15
        This rule applies “[e]ven if the parties purport to have a plea bargain

as to the sentence to be assessed after adjudication.” Ex parte Huskins, 176

S.W.3d 818, 819 (Tex. Crim. App. 2005). And so, upon adjudication of guilt,

“the judge can assess any punishment statutorily permitted.” Ex parte

Broadway, 301 S.W.3d 694, 698 (Tex. Crim. App. 2009).

        Following these decisions, appellate courts have regularly rejected

contentions that a trial court was bound to a particular sentence in a hearing

on a motion to adjudicate guilt. See, e.g., Aranda v. State, No. 04–13–00307–

CR, 2014 WL 2157537, at *2 (Tex. App.—San Antonio May 21, 2014, no pet.)

(mem. op., not designated for publication); Torres v. State, No. 09–13–00405–

CR, 2014 WL 989705, at *1-2 (Tex. App.—Beaumont Mar. 12, 2014, no pet.)

(mem. op., not designated for publication).

        Here, the trial court assessed a punishment within the statutory range.

The court was well within its discretion to do so.


V.      Mann Received Effective Assistance of Counsel.

        A defendant’s Sixth Amendment right to counsel includes the right to

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104

S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). And the right to effective assistance



Appellant’s Brief                                                          Page 16
of counsel applies in a hearing on a motion to adjudicate. Mills v. State, No.

14–09–00867–CR, 2011 WL 397950, at *2 (Tex. App.—Houston [14th Dist.]

Feb. 8, 2011, pet. ref’d) (mem. op., not designated for publication).

        To establish ineffective assistance, an appellant must overcome the

“strong presumption that counsel’s conduct fell within the wide range of

reasonable professional assistance.” Ex parte Ellis, 233 S.W.3d 324, 330 (Tex.

Crim. App. 2007) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999)) Thus, the appellant must “overcome the presumption that,

under the circumstances, the challenged action might be considered sound

trial strategy.” Id. (quoting Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim.

App. 1992)) “[S]trategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable.” Id.

(quoting Strickland, 466 U.S. at 690, 104 S. Ct. at 2066)

        Mann was capably represented by counsel in the trial court, and

counsel pursued a reasonable defensive strategy. Under this record, Mann

cannot “overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.” See Ellis, 233

S.W.3d at 330.




Appellant’s Brief                                                       Page 17
VI.     Summary

        The trial court had both personal and subject-matter jurisdiction; the

adjudication motion, capias and hearing were all timely; the adjudication

motion provided Mann constitutionally adequate notice; the evidence

supports the trial court’s decision to proceed with an adjudication of guilty;

the trial court sentenced Mann within the statutory punishment range; and

the record does not support a claim for ineffective assistance of counsel.

Accordingly, Mann’s appeal presents no issues of arguable merit.




Appellant’s Brief                                                       Page 18
                                  Prayer

        WHEREFORE, PREMISES CONSIDERED, the undersigned counsel

contends that this appeal presents no issues of arguable merit and counsel

should be permitted to withdraw. Pursuant to Anders v. California and Texas

decisional law interpreting Anders, counsel prays that this Honorable Court

provide Appellant the opportunity to file a pro se brief or response

presenting any issues he believes the Court should consider and grant such

other and further relief to which he may show himself justly entitled.

                                         Respectfully submitted,


                                            /s/ Alan Bennett
                                         E. Alan Bennett
                                         SBOT #02140700
                                         Attorney for Appellant

                                         Sheehy, Lovelace & Mayfield, P.C.
                                         510 N. Valley Mills Dr., Ste. 500
                                         Waco, Texas 76710
                                         Telephone:        (254) 772-8022
                                         Fax:        (254) 772-9297
                                         Email:      abennett@slmpc.com




Appellant’s Brief                                                        Page 19
                       Certificate of Compliance

        The undersigned hereby certifies, pursuant to Rule of Appellate

Procedure 9.4(i)(3), that this computer-generated brief contains 2,941 words.



                                            /s/ Alan Bennett
                                         E. Alan Bennett




                          Certificate of Service

        The undersigned hereby certifies that a true and correct copy of

this brief was served on November 6, 2015: (1) by email to counsel for the

State, Bob D. Odom, bob.odom@co.bell.tx.us; and (2) by mail to

Appellant Christopher William Mann, TDCJ #02023857, Joe F. Gurney

Unit, 1385 FM 3328, Tennessee Colony, TX 75803.



                                            /s/ Alan Bennett
                                         E. Alan Bennett




Appellant’s Brief                                                      Page 20
                             Appendix




    1. Letter Advising Client of Anders Rights




Appellant’s Brief                                Page 21
TAB NO. 1
                            SHEEHY, LOVELACE & MAYFIELD, P. C.
                                          ATTORNEYS AND COUNSELORS AT LAW

                                               Established 1 893


                                           510 N. VALLEY MILLS DRIVE
E. ALAN BENNETT                                     SUITE 500                             E-MAIL: abennett@slmpc.com
                                              WACO, TEXAS 76710

                                           TELEPHONE (254) 772-8022
                                            FACSIMILE (254) 772-9297




                                             November 6, 2015

    Christopher William Mann
    TDCJ #02023857
    Joe F. Gurney Unit
    1385 FM 3328
    Tennessee Colony, TX 75803

           Re:     No. 06-15-00163-CR; Mann v. State; In the Sixth Court of Appeals, Texarkana

    Mr. Mann:

    Enclosed please find copies of: (1) the motion to withdraw; (2) the brief pursuant to Anders v.
    California that I have prepared and filed in the above case; and (3) the appellate record. After a
    diligent search of both the clerk’s record and reporter’s record in your case and a review of the
    applicable law, it is my opinion that no reversible error occurred at your adjudication proceeding.

    Whenever appellate counsel files a motion such as this, the law provides the appellant the right to
    review the record and file a response identifying to the appellate court any grounds he thinks are
    non-frivolous issues to be raised on his behalf that the appellate court should consider in deciding
    whether the case presents any meritorious grounds for appeal. Because I have filed this motion
    and brief, you now have the right to review the record and file a response or brief if you so choose.
    I have enclosed a copy of the record for your review.

    I anticipate that the Court of Appeals will send notice directly to you informing you that your
    response will be due to be filed in the Sixth Court of Appeals within 30 days of the date of this
    letter. If you choose to file a response, you must mail it to the Sixth Court of Appeals at the
    following address:

                   Sixth Court of Appeals
                   100 N. State Line Ave., Ste. 20
                   Texarkana, Texas 75501

    Whether or not you file a response, the law requires the Court of Appeals to review the record to
    determine if the Court agrees with my assessment that no meritorious grounds for appeal exist,
    i.e., that no reversible error exists. If the Court does not agree, but instead believes there are non-
    frivolous issues to be raised on your behalf, the Court must abate the appeal to have another
    attorney appointed to review the record on your behalf.
Christopher Mann
Client Letter
November 6, 2015
Page 2

Should the Court of Appeals ultimately determine that there are no meritorious grounds to be raised
and that your appeal is frivolous, the Court will affirm your adjudication. You may then file a pro
se petition for discretionary review with the Texas Court of Criminal Appeals. Such petition must
be filed within 30 days of the date the Court of Appeals renders its judgment. The mailing address
for the Court of Criminal Appeals is as follows:

               Court of Criminal Appeals
               Post Office Box 12547
               Austin, Texas 78711

Feel free to write me if you have any questions about the procedure utilized in your appeal. I will
do my best to answer any questions you may have.

                                                     Sincerely,



                                                     E. Alan Bennett
Enclosures

       1)      Motion to Withdraw
       2)      Anders Brief
       3)      Clerk’s Record
       4)      Reporter’s Record (4 volumes)
