                                                                              ACCEPTED
                                                                          04-15-00358-CR
                                                              FOURTH COURT OF APPEALS
                                                                   SAN ANTONIO, TEXAS
                                                                    11/18/2015 7:34:34 PM
                                                                           KEITH HOTTLE
                                                                                   CLERK

     Court of Appeals Nos. 04-15-00358-CR & 04-15-00359-CR
            Trial Court Cause Nos. B09-09 & B08-578
                                                         FILED IN
                                                  4th COURT OF APPEALS
       IN THE FOURTH SUPREME JUDICIAL        DISTRICT
                                                   SAN ANTONIO, TEXAS
                                                  11/18/15 7:34:34 PM
                    COURT OF APPEALS                KEITH E. HOTTLE
                                                          Clerk
                   SAN ANTONIO, TEXAS

                   _______________________

                 MARGARET JANE GRIFFITH

                              v.

                    THE STATE OF TEXAS
                   _______________________

  APPEALED FROM THE 198TH JUDICIAL DISTRICT COURT,
                   KERR COUNTY, TEXAS
               Honorable Rex Emerson, Presiding
_____________________________________________________________

                     APPELLANT’S BRIEF
_____________________________________________________________

                               M. Patrick Maguire
                               State Bar No. 24002515
                               M. Patrick Maguire, P.C.
                               mpmlaw@ktc.com
                               945 Barnett Street
                               Kerrville, Texas 78028
                               Telephone (830) 895-2590
                               Facsimile (830) 895-2594

                               ATTORNEY FOR APPELLANT,
                               MARGARET JANE GRIFFITH
                         TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL                                        2

INDEX OF AUTHORITIES                                                 4

STATEMENT OF THE CASE                                                5

ISSUES PRESENTED                                                     6

SUMMARY OF THE ARGUMENTS                                             7

CERTIFICATE OF COMPLIANCE WITH TRAP 9.4                              8

STATEMENT OF FACTS                                                   9

ARGUMENTS & AUTHORITIES                                              11

ISSUE 1: Undersigned counsel files this “Anders” Brief after a thorough
review of the appellate record in these cases and no meritorious issues were
found to bring forward for review.                                    11

PRAYER FOR RELIEF                                                    15

CERTIFICATE OF SERVICE                                               16




                                     1
       Court of Appeals Nos. 04-15-00358-CR & 04-15-00359-CR
              Trial Court Cause Nos. B09-09 & B08-578

         IN THE FOURTH SUPREME JUDICIAL DISTRICT

                           COURT OF APPEALS

                          SAN ANTONIO, TEXAS

                          _______________________

                     MARGARET JANE GRIFFITH

                                     v.

                    THE STATE OF TEXAS
_____________________________________________________________

              IDENTITY OF PARTIES & COUNSEL
_____________________________________________________________

Appellant certifies that the following is a complete list of the parties,
attorneys, and any other person who has any interest in the outcome of
this appeal:

Appellant:                      Margaret Jane Griffith

Appellee:                       The State of Texas

Attorney for Appellant:         M. Patrick Maguire
                                M. Patrick Maguire, P.C.
                                945 Barnett Street
                                Kerrville, Texas 78028

Attorney for Appellee:          Hon. Scott Monroe
                                198th Judicial District Attorney
                                400 Clearwater Paseo, Suite 500
                                Kerrville, Texas 78028




                                     2
Trial Judge:   Hon. Rex Emerson
               198th Judicial District Judge
               700 Main Street
               Kerrville, Texas 78028




                     3
                       INDEX OF AUTHORITIES

                                 CASES

Anders v. California, 386 U.S. 738 (1967)                   11

Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997)       13

Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993)   12

Kelly v. State, 436 S.W.3d 212 (Tex. Crim. App. 2014)       11

McMahon v. State, 529 S.W.2d 771 (Tex. Crim. App. 1975)     11

Moses v. State, 590 S.W.2d 469 (Tex. Crim. App. 1979)       12

Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006)     12

Sears v. State, 91 S.W.3d 451
(Tex. App.—Beaumont 2002, no pet.)                          14

Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991)    11

Villescas v. State, 189 S.W.3d 290 (Tex. Crim. App. 2006)   14

                               STATUTES

Tex. Code Crim. Proc. art. 42.12 §5(b)                      12




                                     4
                      STATEMENT OF THE CASE

      Appellant, Margaret Jane Griffith, is appealing the trial court’s

decision to adjudicate Appellant’s deferred adjudication probation in the

above-referenced causes after Appellant pled “true” to allegations contained

in the State’s motions to proceed.




                                     5
             APPELLANT'S ISSUES PRESENTED FOR REVIEW

     I.      Undersigned counsel files this “Anders” Brief after a thorough
             review of the appellate record in these cases and no meritorious
             issues were found to being forward for review.

**        For purposes of reference in the Appellant’s Brief the following will
          be the style used in referring to the record:

             1.    Reference to any portion of the Court Reporter’s Statement
                   of Facts will be denoted as “(RR____, ____),” representing
                   volume and page number, respectively.

             2.    The Transcript containing the District Clerk’s recorded
                   documents will be denoted as “(CR___, ___).”




                                        6
                  SUMMARY OF THE ARGUMENTS

      After a thorough review of both the Clerk’s Record and the Reporter’s

Record no meritorious issues were found to bring forward for review.




                                     7
                    CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

I certify that this brief contains 2,007 words (counting all parts of the

document and relying upon the word count feature in the software used to

draft this brief). The body text is in 14 point font and the footnote text is in

12 point font.

                                        /s/     M. Patrick Maguire
                                        M. Patrick Maguire,
                                        Attorney for Appellant




                                       8
                         STATEMENT OF FACTS

         On November 2, 2009, Appellant was placed on ten years deferred

adjudication in Cause No. B08-578 for the second degree felony offense of

Possession of a Controlled Substance.      CR 1, 12.     On that same date,

Appellant was also placed on ten years deferred adjudication in Cause No.

B09-09 for the first degree felony offense of Possession of a Controlled

Substance. CR 1, 12. On October 11, 2012, the State filed Motions to

Proceed in each of Appellant’s cases seeking to adjudicate Appellant guilty

of the underlying offenses and sentence Appellant to a term of confinement

in the Texas Department of Criminal Justice – Institutional Division. CR 1,

16.

         On April 20, 2015, the trial court held a hearing on the State’s

Motions to Proceed. RR 1, 1. Appellant entered a plea of “true” to all of the

allegations contained in the Motions to Proceed. RR 1, 6-7. The State then

presented evidence that Appellant was previously convicted of four separate

felony offenses prior to committing the offenses that were before the trial

court.    RR 1, 11-12.    The evidence of the prior felony offenses was

introduced without objection by Appellant. RR 1, 12. The State then rested.

         Appellant testified on her own behalf. RR 1, 13. Appellant also

called an acquaintance, Ted Stokely, to testify. RR 1, 22.



                                      9
      The trial court found the allegations contained in the State’s Motion to

Proceed true, adjudicated Appellant guilty of the underlying offenses and

sentenced Appellant to 15 years imprisonment in Cause No. B08-578 and 40

years imprisonment in Cause No. B09-09. RR 1, 30-32.




                                     10
                     ARGUMENTS & AUTHORITIES

                                    I.
 Undersigned counsel files this “Anders” Brief after a thorough review of
 both the Clerk’s Record and the Reporter’s Record in these cases and no
        meritorious issues were found to bring forward for review.

A.    Standard of Review

      If, after a thorough review of the record and careful investigation,

appellate counsel concludes that an appeal is frivolous and without merit,

counsel may submit a brief which presents a professional evaluation

showing why there is no basis to advance an appeal.             See Anders v.

California, 386 U.S. 738, 744 (1967); See Stafford v. State, 813 S.W.2d 503,

509-10, 510 n.3 (Tex. Crim. App. 1991). Appellate counsel should also

inform the appellant that he has a right to file a pro se appellate brief and

review the record. See McMahon v. State, 529 S.W.2d 771, 771 (Tex. Crim.

App. 1975). Finally, appellate counsel must take steps to ensure that the

appellant has access to the appellate record to exercise his right to file a pro

se brief, if appellant desires. Kelly v. State, 436 S.W.3d 212 (Tex. Crim.

App. 2014).

B.    Analysis

      Undersigned counsel for Appellant has conducted a thorough review

of the clerk’s record and reporter’s record and has determined that

Appellant’s appeal is frivolous and without merit.

                                       11
Sufficiency of the Evidence

      Undersigned counsel first reviewed the sufficiency of the evidence to

support the trial court’s judgment adjudicating Appellant’s deferred

adjudication probation and supporting the sentencing range. An appeal from

a trial court’s order adjudicating guilt is reviewed in the same manner as a

revocation hearing.    Tex. Code Crim. Proc. art 42.12 §5(b).         When

reviewing an order revoking community supervision imposed, the sole

question before the appellate court is whether the trial court abused its

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

In a revocation proceeding, the State must prove by a preponderance of the

evidence that the probationer violated a condition of community supervision

as alleged in the motion. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim.

App. 1993). A plea of “true” standing alone is sufficient to support a trial

court’s revocation order. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim.

App. 1979). The record shows that Appellant pled “true” to all allegations

contained in the State’s Motions to Adjudicate. RR 1, 6-7. Therefore, there

is sufficient evidence supporting the trial court’s judgment adjudicating

Appellant guilty of the underlying offenses.

      The next issue reviewed was the appropriateness of the sentences

assessed. The State introduced, without objection, judgments of conviction



                                     12
establishing that Appellant had been convicted at least twice prior to the

commission of the underlying offenses before the trial court. RR 1, 11-12.

The sentences assessed are within the punishment ranges for the offenses

charged and the sequencing of these convictions appears to be in order.

Therefore, there does not appear to be error in the trial court’s action in this

regard.

Enhancement Notice

      The record does not contain any notice that the State was going to use

particular convictions that were used for enhancement purposes. Although

the clerk’s record reflects that the State filed a notice to use the convictions

for extraneous offense purposes, there was nothing filed by the State to

indicate that the State was using these convictions for enhancement

purposes. Additionally, there were no enhancement paragraphs included in

the original indictments or in the original plea paperwork executed by

Appellant when she originally entered her guilty pleas. CR 1, 7-15.

      Because the issue of enhancement is delayed until punishment, it is

not mandatory that enhancement allegations appear in the indictment or

information but it is necessary to provide reasonable notice of the State’s

intent to enhance. Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App.

1997). In other words, prior convictions used for enhancement must be pled



                                       13
in some form, it is just not necessary to plead them in the indictment. Id.

The exact time period for the required notice has not been specified,

although at least one court of appeals has suggested that 10 days’ notice is

appropriate because this time period is considered sufficient in a number of

other circumstances. Sears v. State, 91 S.W.3d 451, 453-54 (Tex. App.—

Beaumont 2002, no pet.).

         The “extraneous offense” notice filed by the State does not constitute

proper notice of intent to enhance Appellant’s punishment using these

convictions. Sears, 91 S.W.3d at 453-54. An error in this regard is of

constitutional dimension. Villescas v. State, 189 S.W.3d 290, 294 (Tex.

Crim. App. 2006). In order to raise this issue on appeal, the issue must be

properly preserved by Appellant. Sears, 91 S.W.3d at 453. (appellant timely

lodged objection to untimely notice); Villescas, 189 S.W.3d at 294 (noting

U.S. Supreme Court’s rejection of due process claims when defendant failed

to raise any matters in defense or to obtain a continuance to investigate the

existence of any possible defense).

         In this case, Appellant’s trial counsel did not raise any objections or

seek a continuance based upon the lack of notice.1 Therefore, this issue does

not appear to be cognizable on appeal.

1
  Because the record is silent as to trial counsel’s reasons for not objecting, the record in this appeal is
insufficient to develop a claim for ineffective assistance of counsel.


                                                       14
      After reviewing the entire record in this case, undersigned counsel has

found no meritorious issues to bring forward for review. By copy of this

brief, undersigned counsel is advising Appellant that he has the right to

review the record and to file a pro se brief. Additionally, Appellant certifies

that he has forwarded copies of the clerk’s record and reporter’s record to

Appellant.

      After reviewing the entire record in this case, undersigned counsel has

found no meritorious issues to bring forward for review. By copy of this

brief, undersigned counsel is advising Appellant that he has the right to

review the record and to file a pro se brief. Additionally, Appellant certifies

that he has forwarded copies of the clerk’s record and reporter’s record to

Appellant.

                          PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that this Honorable Court permit undersigned counsel to withdraw

from further representation of Appellant in this case and permit Appellant

the necessary time to review the record and file a pro se brief.




                                       15
                                      Respectfully submitted,

                                      M. PATRICK MAGUIRE, P.C.


                                      /s/ M. Patrick Maguire
                                      M. Patrick Maguire
                                      State Bar No. 24002515
                                      945 Barnett Street
                                      Kerrville, Texas 78028
                                      Telephone (830) 895-2590
                                      Facsimile (830) 895-2594

                                      ATTORNEY FOR APPELLANT,
                                      MARGARET JANE GRIFFITH




                     CERTIFICATE OF SERVICE

      I hereby certify that I have served a true and correct copy of
Appellant's Brief to counsel for the State, Hon. Scott Monroe, via electronic
transmission at scottm@198da.com, and whose address is 400 Clearwater
Paseo, Suite 500, Kerrville, on this the 18th day of November, 2015.




                                      /s/ M. Patrick Maguire
                                      M. Patrick Maguire




                                     16
