                                                                                      ACCEPTED
                                                                                 06-14-00177-CR
                                                                       SIXTH COURT OF APPEALS
                                                                            TEXARKANA, TEXAS
                                                                           2/12/2015 12:22:30 PM
                                                                                 DEBBIE AUTREY
                                                                                          CLERK

                         IN THE COURT OF APPEALS

                          SIXTH DISTRICT OF TEXAS               FILED IN
                                                         6th COURT OF APPEALS
                                                           TEXARKANA, TEXAS
                            TEXARKANA, TEXAS
                                                         2/12/2015 12:22:30 PM
                                                              DEBBIE AUTREY
                                                                  Clerk

MARTIN LUTHER BURNS

     Appellant

Vs                                            06-14-00177-CR

THE STATE OF TEXAS

     Appellee

                             ON APPEAL FROM

                     THE 115TH JUDICIAL DISTRICT COURT

                        OF MARION COUNTY, TEXAS

                         TRIAL COURT NO. F12698



                      BRIEF OF BEHALF OF APPELLANT

                                        TIM CONE
                                        State Bar #04660350
                                        P.O. Box 413
                                        Gilmer, Texas 75644
                                        (903) 725-6270
                                        e-mail: timcone6@aol.com
                                        ATTORNEY FOR THE APPELLANT
                                    2




                     IDENTITY OF PARTIES AND COUNSEL

MARTIN LUTHER BURNS TDCJ31956564

CLEMENTS UNIT TDCJ

9601 SPUR 591

AMARILLO, TEXAS 79107

APPELLANT



KURT M. NOELL

231 S. COLLEGE

TYLER, TEXAS 75702

APPELLANT’S COUNSEL AT TRIAL



ANGELA SMOAK

MARION COUNTY ATTORNEY

102 W. AUSTIN, ROOM 201

JEFFERSON, TEXAS 75657

APELLEE’S COUNSEL AT TRIAL
                                3



TIM CONE

P.O. BOX 413

GILMER, TEXAS 75644

APPELLANT’S COUNSEL ON APPEAL



ANGELA SMOAK

MARION COUNTY ATTORNEY

102 W. AUSTIN, ROOM 201

JEFFERSON, TEXAS 75657

APPELLEE’S COUNSEL ON APPEAL
                                       4




                             TABLE OF CONTENTS

                                                            Page No.

List of Parties and Counsel……………………………………………………              2,3

Table of Contents………………………………………………………...........            4,5

Index of Authorities………………………………………………………………                 6

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

Certificate of Counsel……………………………………………………………                8

Professional Evaluation…………………………………………………………                11

Statement of Facts………………………………………………………………… 9

Point of Error Number 1……………………………………………………….. 12

    The trial court’s sentence of fifty years confinement

     was excessive and disproportionate.

Conclusion and Prayer…………………………………………………………… 13

Certificate of Compliance………………………………………………………. 14

Certificate of Service……………………………………………………………… 14
                               5

Exhibit 1 – Letter to Client
                                          6



                              INDEX OF AUTHORITIES

                                                            Page No.



U.S. SUPREME COURT CASES:

Anders v. California, 386 U.S. 738, L.Ed. 2d 493, 87

S.Ct. 1396 (1967)…………………………………………………………………..                 8

TEXAS CASES:

Cole v. State, 578 SW 2d 127 (Tex.Crim.App. 1979)……………..     12

Grammer v. State, 294 SW 3d 182 (Tex.Crim.App.2009)……..      11

LeBlanc v. State, 768 SW 2d 881 (Tex.App.Beaumont 1989)..    12
                                       7



                             NO. 06-14-00177-CR

                                    IN THE

                              COURT OF APPEALS

                                   FOR THE

                      SIXTH JUDICIAL DISTRICT OF TEXAS

                            MARTIN LUTHER BURNS

                                  APPELLANT

                                      VS.

                             THE STATE OF TEXAS

                                             APPELLEE



TO THE HONORABLE JUSTICES OF SAID COURT:

      COMES NOW, the Appellant by and through his Attorney, namely Tim Cone,
hereinafter referred to as Appellant, and submits this brief pursuant to the
provisions of the Texas Rules of Appellate Procedure in Cause no. 06-14-00177-
CRin the 115th District Court of Marion County, Texas, (Trial Court Cause No.
F12698).



                          STATEMENT OF THE CASE

      On September 30, 2003, the Appellant was placed on a five year deferred
adjudication community supervision (probation) for the offense of Aggravated
                                          8

Kidnapping.CR4,28. The judgment, at one point on the first page indicated the
probation was for three years but the body of the judgment showed the
probation was for five years, as does the docket sheet.CR4,28. The probation was
specifically shown by the record to be a non-reporting probation.Cr4,22. The
requirement of community work service and probation fees were also waived.CR
22. The State filed a Motion to Adjudicate the probation on August 10, 2004. CR
31. The probation was amended on November 22,2004, to extend the probation
for five more years from the original term and did include a reporting obligation.
CR 33. On August 29, 2011, the State filed a Motion to Adjudicate setting out
violations of the probation alleging the Appellant committed a new offense
(Injury to a Child), and used cocaine. CR 34. The hearing on this motion was not
held until September 22, 2014. 2 RR. After a hearing was held regarding a motion
filed by Appellant’s trial counsel seeking a dismissal of the State’s motion, which
was denied, the Appellant pled true to the State’s allegations and the trial court
adjudicated the Appellant guilty of the underlying charge and sentenced him to
fifty (50) years confinement in prison. 2RR 23; 2RR 4,5 and CR 36.

  For clarity, THE STATE OF TEXAS will be referred to as “the State”, and MARTIN
LUTHER BURNS will be referred to as “Defendant” or “Appellant.”




                             CERTIFICATE OF COUNSEL

     The attorney’s role as an advocate required that I support my client’s
appeal to the best of my ability. Anders v. California, 386 U.S. 738, 18 L.Ed. 2d

493, 87 S.Ct. 1396(1967). I, Tim Cone, counsel of record on appeal for Appellant
Martin Luther Burns, do hereby state that I have diligently searched the entire
record in Cause No. F12698 including both the Clerk’s Record and the Court
                                         9



Reporter’s Record in the 115th Judicial District Court of Marion County, Texas. I
have researched the law applicable to the facts and issues contained therein, and
it is my professional opinion that no reversible error is reflected by the record.

      I have caused a copy of the brief to be served by certified mail on the
Appellant, accompanied by a letter informing the Appellant of his right to
examine the entire appellate record for the purpose of filing a pro se brief. A
copy of this letter has been attached to this brief.

      Witness my hand this 12th day of February, 2015.
                                       /s/ Tim Cone

                                      ___________________________

                                      Tim Cone

                                      Court Appointed Attorney for the

                                      Appellant, Martin Luther Burns




                            STATEMENT OF THE FACTS

      The statement of facts related to the hearing on September 22, 2014, are
not long but they clearly show that all the facts related to this matter were not
                                         10



before the trial court. Unfortunately, this direct appeal is limited, by law, to the
facts shown in this record. On the day of the hearing, the trial court heard a
motion filed by Appellant’s trial counsel to have the State’s motion dismissed. CR
36; 2 RR 4,5. The basis of the Appellant’s motion suggested that since the original
judgment indicated, at one point, that the probation was to be for a three year
term, the State’s Motion to adjudicate was untimely filed. CR 36. While it is true
that the original judgment did include language regarding a three year probation
at one point on the first page, the same document showed the plea bargain was
for a five year probation and the body of the judgment showed the term to be a
five year probation. CR 28. Further, at the time of the extension and amendment
of the probation terms on November 22, 2004, the document clearly indicated
the original probation was for five years. CR 33. The trial court denied the
Appellant’s motion and proceeded with the hearing. CR 39; 2 RR 5. The trial court
indicated the Appellant was subject to a sentence of up to confinement for life
during the proceeding. 2 RR 10; See CR 24. The trial court explained the State’s
allegations and the Appellant pled true to both of them. 2 RR 7-9.

        There was a discussion, on the record, that indicated that the State would
recommend a sentence of twenty five years confinement if the Appellant waived
any appeal. 2 RR 10. The Appellant then tried to explain that he was not guilty of
the original charge (he had originally pled nolo contendre). CR 4,29; 2 RR 11. The
trial court took the position that there would be no agreement as to punishment
and proceeded with the hearing. 2 RR 12. The State originally indicated they
would call no witnesses but then the probation officer, Tracy Smith, testified. 2 RR
12, 13. Ms. Smith indicated the Appellant had deceived her in that he wrote her
several letters and did not indicate he was incarcerated when the letters were
written. 2 RR 21. Although the record is not a model of clarity, it appears the
Appellant received a deferred adjudication in Dallas County regarding the injury
to a child allegation set out in the State’s Motion to Adjudicate. 2 RR 17, 18. The
Dallas County probation was revoked and the Appellant received a sentence of
                                        11



 five years confinement as a result. 2 RR 19. There is no mention of any missed
reports or other violations and, of course, no such violation was set out in the
State’s motion. With no further evidence, the trial court adjudicated the
Appellant guilty and assessed fifty years confinement in prison. 2 RR 23. It may
not make any difference, but the docket sheet shows the number “40” scratched
out and the number “50” written in its place. CR 5.

                           PROFESSIONAL EVALUATION

        Appellant’s attorney has carefully reviewed the entire record in the case at
bar. Simply stated, there is no valid arguable point of error in the case. The
Appellant has raised one possible point of error but, based on the record in the
case, the point is without merit, in the opinion of Appellant’s attorney. This brief
is especially troubling as there seemed to be a fair amount of misunderstanding
on the Appellant’s part regarding the admonishments by the trial court. For
instance, when the trial court inquired about an agreed punishment (which, of
course, the Court would not be bound by-anyway), the Appellant replied that he
was not guilty of the crime of Aggravated Kidnapping. There is also no explanation
why the State filed its motion in August, 2011, but no hearing was held until
September, 2014. Since there was no objection to the time frame at trial, a point
of error now would be fruitless. It is also somewhat disturbing that there was no
separate hearing on punishment after the adjudication but the law does not
require one be held and the Appellant did plead “true” to both allegations.
Grammer v. State, 294 S.W.3d 182 (Tex.Crim.App. 2009). It is also troubling that
although Appellant’s trial counsel indicated he received 231 pages of record from
presumably the Appellant’s original attorney, there is no showing what, if
anything, those records contained. 2 RR 6. Apparently, that attorney died before
the hearing. 2 RR 6. It seems especially troubling that a case originally warranting
a five year deferred adjudication without a reporting requirement, community
work service requirement, or a probation fee requirement ended up warranting a
fifty year prison sentence for an aggravated charge. There simply must be more to
                                          12

the story but without any more than is in this record, an “Anders” brief seems the
only viable option.




                         POINT OF ERROR NUMBER ONE

      The trial court’s sentence of fifty years confinement was excessive and
disproportionate.




                                     ARGUMENT

        The reason this is an “Anders” brief is due to the simple fact that the
Appellant voluntarily pled true to each allegation set out in the State’s motion to
adjudicate. It is extremely well established that a plea of true alone is sufficient
for a finding of true in a Motion to revoke or adjudicate. Cole v. State, 578 S.W.2d
127 (Tex.Crim.App 1979); LeBlanc v. State, 768 S.W.2d 881 (Tex.App. Beaumont
1989). When a defendant pleads true (voluntarily) and the trial court assesses
punishment within the range allowed by law (even the highest allowable range),
there is nothing on which to base an appeal. That is exactly what occurred in the
case at bar.

        Further, although Appellant does now raise the issue of disproportionate
sentence, no objection regarding the sentence was made at the trial court level.
The law is quite clear on this issue that if the issue is not raised at the trial court
level, it can not be raised on appeal. It just does not seem to make any sense that
                                        13



a case that was so minor as to deserve a five year deferred adjudication (without
many of the standard conditions) turned into a case that mandated a fifty year
aggravated sentence. Appellant’s attorney genuinely regrets not having more to
argue in a case that seems somewhat unjust.




                           CONCLUSION AND PRAYER

     For the reasons stated herein, it is requested that the Court grant our
Motion to Withdraw.




                                      Respectfully submitted,


                                      /s/Tim Cone

                                     ____________________________

                                      TIM CONE

                                      Attorney at Law

                                      P.O. Box 413

                                      Gilmer, Texas 75644

                                      e-mail: timcone6@aol.com

                                      ATTORNEY FOR APPELLANT
                                          14



                             CERTIFICATE OF COMPLIANCE

        I certify the foregoing document complies with Texas Rule of Appellate
Procedure, Rule 9 regarding length of documents, in that exclusive of caption,
identities of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues
presented, statement of jurisdiction, statement of procedural history, signature,
proof of service, certification, certificate of compliance, and appendix, it consists
of 1256 words.

                                         /s/ Tim Cone

                                         __________________________

                                         Tim Cone

                                          Attorney for Appellant



                              CERTIFICATE OF SERVICE

       This is to certify that a true and correct copy of the foregoing Appellant’s
Brief has been provided to the Honorable Angela Smoak, Marion County
Attorney, 102 W. Austin,Room 201, Jefferson, Texas 75657, on this the 12th day
of February, 2015.

                                         /s/ Tim Cone

                                        _________________________

                                        TIM CONE

                                        Attorney at Law
MARTIN LUTHER BURNS                              IN THE COURT OF APPEALS

             Appellant

Vs.                                             SIXTH DISTRICT OF TEXAS

THE STATE OF TEXAS                                   TEXARKANA, TEXAS

             Appellee

                             MOTION TO WITHDRAW

TO THE HONORABLE JUDGE OF SAID COURT

      NOW COMES          Tim Cone the movant and court appointed attorney in
the above entitled appeal, and files this motion to withdraw as attorney for the
Appellant and in support of same would respectfully show the following:

                                          I.

       Attached hereto and labeled Exhibit 1 the Appellant was proved a copy of
the brief that has been filed in the above referenced matter on his behalf and a
letter regarding his right to file a brief on his own behalf and the right to review
the record.

                                          II.

       That after an in depth and diligent review of the Clerk’s Record and
Reporter’s Record, it is my professional opinion that no reversible error is
reflected.

      WHEREFORE, PREMISES CONSIDERED, Attorney for the Appellant
respectfully requests that he be permitted to withdraw as counsel in the above
referenced matter.

                                       Respectfully submitted,
                                     _/S/Tim Cone

                                    ________________________

                                     Tim Cone, Attorney at Law

                                     P.O. Box 413

                                     Gilmer, Texas 75644

                                     e-mail: timcone6@aol.com

                                     ATTORNEY FOR APPELLANT

                           CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing Motion to
Withdraw has been mailed to Martin Luther Burns, #131956564, Clements Unit
TDCJ, 9601 Spur 591, Amarillo, Texas 79107, and to the Honorable Angela Smoak,
Marion County Attorney, 102 W. Austin, Room 201, Jefferson, Texas, on the 12th
day of February, 2015.
                                     /s/ Tim Cone

                                     _________________________

                                     Tim Cone, Attorney at Law
                                     EXHIBIT 1




                                 February 12, 2015



Martin Luther Burns

Clements Unit, TDCJ

9601 Spur 591

Amarillo, TX 79107



Re: Brief in Cause No. F12698




Dear Martin:

      Enclosed please find one copy of the brief that I have prepared and filed on
your behalf in Cause No. F12698. After a diligent search of both the record in
your case and the applicable law, it is my opinion that no reversible error
occurred at your trial.

       The law accords you the right to review the record of your trial and file any
brief that you deem necessary on your own behalf. This brief will then be
submitted to the court of appeals along with the brief that I have filed. I have
enclosed a copy of the entire record in your case so that you can prepare your
own brief, if you wish to do so.
                               Sincerely,

                               /s/ Tim Cone

                               Tim Cone, Attorney at Law

TC/nc

Encl.

cc: Debra Autrey, Clerk

    Court of Appeals

    Sixth Appellate District
