                                                                             ACCEPTED
                                                                        06-14-00196-CR
                                                              SIXTH COURT OF APPEALS
                                                                   TEXARKANA, TEXAS
                                                                    2/2/2015 2:02:24 PM
                                                                        DEBBIE AUTREY
                                                                                 CLERK
                06-14--00197-CR,
                06-14-00198-CR

                NO. 06-14-00196-CR                      FILED IN
                                                 6th COURT OF APPEALS
                                                   TEXARKANA, TEXAS
                                                 2/5/2015 2:28:00 PM
                      IN THE                         DEBBIE AUTREY
                                                         Clerk
                COURT OF APPEALS
              FOR THE SIXTH DISTRICT
                TEXARKANA, TEXAS




              RANDY JAY HOFSTETTER
                                     Appellant

                           v.

               THE STATE OF TEXAS,
                                     Appellee


ON APPEAL IN CAUSE NUMBERS 0719507,0719508, & 0717509
      FROM THE 8TH JUDICIAL DISTRICT COURT
            OF HOPKINS COUNTY, TEXAS
 BEFORE THE HONORABLE EDDIE NORTHCUTT, JUDGE


              BRIEF OF COUNSEL
     INSUPPORTOFTHEMOTIONTO WITHDRAW


                                                RACHEL FLATT
                                           State Bar No. 24078504
                                                         P.O. Box 5
                                   Sulphur Springs, Texas 75483
                                       Telephone: (903) 885-7118
                                        Facsimile: (903) 885-7133
                      E-mail: law.office.of.rachel.flatt@gmail.com

                                   ATTORNEY FOR APPELLANT
                   IDENTITY OF PARTIES AND COUNSEL

       Because this case is an appeal from a criminal conviction, the only parties

are:

       (1)      the Appellant, Randy Jay Hofstetter, by and through his attorney of

                record on appeal, Rachel Flatt, P.O. Box 5, Sulphur Springs, Texas

                75483; through his trial attorney, Roland Ferguson, 1804

                Woodbridge Drive, Sulphur Springs, Texas 75482; and

       (2)      the State of Texas, by and through Will Ramsay, Criminal District

                Attorney of Hopkins County, 110 Main Street, Sulphur Springs,

                Texas 75482.

       The sentencing hearing was conducted before the Honorable Eddie

Northcutt, Judge Presiding.
                                       TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ......................................................... i

INDEX OF AUTHORITIES ................................................................................. iii

STATEMENT TO THE COURT .......................................................................... 2

STATEMENT OF THE CASE ................................. ............................................. 2

ISSUE PRESENTED ............................................................................................ 4

STATEMENT OF FACTS ............... ......................................... ........................... 5

SUMMARY OF THE ARGUMENT ................................................................... 6

ARGUMENT AND ANALYSIS ........................................................................... 6

CONCLUSION ................................................................................................... 16

CERTIFICATE OF SERVICE ............................................................................ 17

LETTER TO APPELLANT ................................................................................. 18




                                                        11
                                INDEX OF AUTHORITIES

CASES:

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

Blanco v. State
      771 S.W.2d 598 (Tex. App.- Corpus Christi 1989, no pet.) ...................... 8

Byrom v. State
     528 S. W.2d 224 (Tex. Crim. App. 1975) .................................................... 9

Cardona v. State
     665 S.W.2d 492 (Tex. Crim App. 1984) .................................................. 15

Carpenter v. State
     783 S.W.2d 232 (Tex. App.- Dallas 1989, no pet.) ................................. 15

Cobb v. State
     851 S.W.2d 871 (Tex. Crim. App. 1993) .................................................. 13

Currie v. State
      516 S.W.2d 684 (Tex. Crim. App. 1974) .................................................... 2

Dinnery v. State
     592 S.W.2d 343 (Tex. Crim. App. 1979) .................................................... 9

Ex parte Smith
      678 S.W.2d 78 (Tex. Crim. App. 1984) .................................................... 10

Garrett v. State
      619 S.W.2d 172 (Tex. Crim App. [Panel Op.] 1981) ............................... 13

Hall v. State
       935 S.W.2d 852 (Tex. App.- San Antonio 1996, no pet.) ......................... 9

Harris v. State
       160 S.W.3d 621 (Tex. App.- Waco 2005, pet. struck) ............................ 13



                                                111
INDEX OF AUTHORITIES
(Continued)

Hart v. State
      264 S.W.3d 364 (Tex. App.- Eastland 2008, pet. ref d) .......................... 14

Henry v. State
     948 S.W.2d 338 {Tex. App.- Dallas 1997, no pet.) ................................. 16

High v. State
      573 S.W.2d 807 (Tex. Crim. App. 1978) .................................................... 2

In re T.R.S.
       115 S.W.3d 318 (Tex. App.- Texarkana 2003, no pet.) .......... ... ......... 13-15

Jeffery v. State
       903 S.W.2d 776 (Tex. App.- Dallas 1995, no pet.) ................................... 2

Kirk v. State
      949 S.W.2d 769 (Tex. App.- Dallas 1997, pet. ref d) ............................. 15

Liggins v. State
      979 S.W.2d 56 (Tex. App.- Waco 1998, pet. ref d) ................................ 10

Marin v. State
      851 S.W.25 275 (Tex. Crim. App. 1993) .................................................... 7

Marquez v. State
     921 S.W.2d 217 (Tex. Crim. App. 1996) .. ............... .. ................................. 7

Martinez v. State
      981 S.W.2d 195 (Tex. Crim. App. 1998) .................................................... 9

Mitchell v. State
     482 S.W.2d 221 (Tex. Crim. App. 1972) ................................................. 13

Moses v. State
     590 S.W.2d 469 (Tex. Crim. App. 1979) ........................... ....................... 13




                                                 IV
INDEX OF AUTHORITIES
(Continued)

Richards v. State
      562 S. W.2d 456 (Tex. Crim. App. 1977) (on rehearing) .......................... 10

Sanchez v. State
     603 S. W.2d 869 (Tex. Crim. App. 1980) ................................................. 14

Scamardo v. State,
     517 S.W.2d 293 (Tex. Crim. App. 1974) .................................................. 16

Smith v. State
      286 S.W.3d 333 (Tex. Crim. App. 2009) ...... ........ ............... .. ............... ... 14

State v. Jimenez
       987 S. W.2d 886 (Tex. Crim. App. 1999) .................. ................. ... .............. 9


TEXAS CODE OF CRIMINAL PROCEDURE:

TEX. CODE CRJM. PROC. art. 1.051(e) ..... ..................................... .. ...................... . 11

TEX. CODE CRIM. PROC. art. 1.13-1.15 ................................................................... 7

TEX. CODE CRJM. PROC. art. 26.13 .......... ..... ......... ....... ..................................... 8-10

TEX. CODE CRJM. PROC. art. 38.21 ....................................................................... 12

TEX. CODE CRIM. PROC. art. 42.12 ................................................................. 13, 15


TEXAS CONSTITUTION

TEX. CoN ST. art. 1, § 15 ......................................................................................... 7


TEXAS PENAL CODE

TEX. PEN. CODE§ 12.32 ...... .. ..................... ... .. ...... ............... ...... ... ........ .. ......... 9, 15


                                                             v
INDEX OF AUTHORITIES
(Continued)

TEX. PEN. CODE§ 22.021 .................... ............. .. ...... .. ....... ..... .. ..... .. ........... ........ 2, 6


TEXASRULESOFAPPELLATEPROCEDURE

TEX. R. APP. P. 9.2(a)(l) ............... ............ ............... .............................................. 4

TEX. R. APP. P. 21.4(a) ..................................................................... ...................... 4

TEX. R. APP. P. 21.8(c) .... ............ ................ ........... .......... .................. ....... ............. 4

TEX. R. APP. P. 22.3 ................................................................................................ 4

TEX. R. APP. P. 22.4(b) ............... ....... ............................................. .......... ...... ........ 4

TEX. R. APP. P. 26.2(a)(2) ...................... ................................................................ 4


UNITED STATES CONSTITUTION

U.S. CONST. amend. VI .............. ......................... ................................................... 7




                                                             VI
                              NO. 06-14-00196-CR


                                  IN THE
                            COURT OF APPEALS
                          FOR THE SIXTH DISTRICT
                            TEXARKANA, TEXAS



                          RANDY JAY HOFSTETTER
                                          Appellant

                                          v.

                            THE STATE OF TEXAS,
                                            Appellee



TO THE HONORABLE COURT OF APPEALS:

      The undersigned attorney respectfully submits this brief in support of the

motion to withdraw in the above-styled and numbered cause. This is an appeal of

a judgment of conviction by court for three counts of the offense of aggravated

sexual assault of a child, a first degree felony, in the   8th   Judicial District Court of

Hopkins County, Texas, the Honorable Eddie Northcutt, Presiding Judge.




                                          1
                          STATEMENT TO THE COURT

      The undersigned attorney has reviewed the record in this case and is of the

opinion that no arguable points of error or issues are present.      See Anders v.

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

516 S.W.2d 684 (Tex. Crim. App. 1974); Jeffery v. State, 903 S.W.2d 776, 779

(Tex. App.- Dallas 1995, no pet.). In compliance with High v. State, 573 S.W.2d

807 (Tex. Crim. App. 1978), the undersigned attorney has examined the clerk's

record and the applicable case law. No oral argument is requested.

                        STATEMENT OF THE CASE

      In Cause Numbers 0719507, 0719508 & 0719509 (Hopkins County),

Appellant was charged by indictment oh September 20, 2007, for the offense of

aggravated sexual assault of a child. (CR: 7). See current TEX. PEN. CODE §

22.021. The offenses were alleged to have occurred on or about January 10, 2007.

(CR: 7).

      On September 11, 2009, in the 8th Judicial District Court of Hopkins County,

Texas, the Honorable Robert Newsom, presiding, Appellant accepted a plea

bargain and pleaded guilty aggravated sexual assault of a child, a first degree

felony in each of the three cases.   (CR: 82-88).    On that date, the trial court

accepted the Appellant's plea of guilty in each case and placed the Appellant on

deferred adjudication community supervision for a period of ten years. (CR: 82-



                                        2
88).   Appellant waived a JUry m both phases of the trial.       (CR:   86).   The

prosecuting attorney was Martin Braddy, Criminal District Attorney for Hopkins

County, Texas. Appellant's trial counsel was Gene Stump.

       On January 14, 2014, Community Supervision Officer Cody Elliott, filed a

Report of Community Supervision Violation in Cause Number 0719507. (CR: 97).

On July 8, 2014, Peter Morgan, an Assistant Criminal District Attorney for

Hopkins County, Texas filed a Motion to Proceed with Adjudication of Guilt in

each of the three cases. (CR: 99).

       On July 23, 2014, Appellant applied to have an attorney appointed to

represent him in each of the three causes.      (CR: 103).    That same day, the

Honorable Eddie Northcutt appointed attorney Roland Ferguson as counsel for

Appellant. (CR: 103).

       Seven days later, on July 30, 2014, Appellant plead true to violating the

conditions of his community supervision in each of the three cases. (CR: 106).

The Court found as a fact that Appellant was fully competent and that his plea was

entered freely and voluntarily. (CR: 106).

       On August 27, 2014 the sentencing hearing was held. (RR3: 1). On that

date, the trial court assessed Appellant's punishment at confinement for forty (40)

years in the Institutional Division of the Texas Department o.f Criminal Justice in

each of the three cases and ordered the punishment for each of the three cases to



                                         3
run concurrently with one another. (RR3: 53). The prosecuting attorney at the

sentencing hearing was Peter Morgan, an Assistant Criminal District Attorney for

Hopkins County, Texas. Appellant's counsel at the sentencing hearing was Roland

Ferguson.

      Appellant timely filed a Motion for New Trial and Motion in Arrest of

Judgment by executing and filing it on September 23, 2014 with the proper clerk

within thirty (30) days after the day the sentence was imposed. (CR: 116-117).

TEX. R. APP. P. 9.2(a)(l); TEX. R. APP. P. 21.4(a); TEX. R. APP. P. 22.3. The trial

court failed to rule on the Motion For New Trial and Motion in Arrest of Judgment

by letting 75 days pass deeming the motions denied. TEX. R. APP. P. 21.8(c); TEX.

R. APP. P. 22.4(b). Appellant timely filed a written notice of appeal by executing

and filing it on November 10, 2014 with the proper clerk within thirty (30) days

after the day the sentence was imposed. (CR: 121). TEX. R. APP. P. 9.2(a)(l);

TEX. R. APP. P. 26.2(a)(2).

                              ISSUE PRESENTED

      As previously stated, the undersigned attorney is of the opinion that no

arguable points of error or issues are presented in this case.    The 81h Judicial

District Court imposed Appellant's sentence lawfully, and the proceedings show

no non-frivolous issues.




                                        4
                             STATEMENT OF FACTS

      As previously stated, on September 11, 2009, Appellant pleaded guilty to the

trial court to the offense of aggravated sexual assault of a child in each of the three

cases in exchange for the agreed upon sentence recommendation of ten (1 0) years

deferred adjudication community supervision. (CR: 82-88). On that date, the trial

court accepted Appellant's plea of guilty in each of the three cases, followed the

agreed upon sentence recommendation, and placed Appellant on deferred

adjudication community supervision for a period of ten (10) years. (CR: 82-88).

On January 14, 2014, Community Supervision Officer Cody Elliott, filed a Report

of Community Supervision Violation in Cause Number 0719507. (CR: 97). On

July 8, 2014, Peter Morgan, an Assistant Criminal District Attorney for Hopkins

County, Texas filed a Motion to Proceed with Adjudication of Guilt in each of the

three cases. (CR: 99).

      On July 30, 2014, Appellant plead true to violating the conditions of his

community supervision in each of the three cases. (CR: 106). The Court found as

a fact that Appellant was fully competent and that his plea was entered freely and

voluntarily. (CR: 106). On August 27, 2014 the sentencing hearing was held.

(RR3: 1). On that date after hearing all of the evidence presented, the trial court

assessed Appellant's punishment at confinement for forty (40) years in the

Institutional Division of the Texas Department of Criminal Justice in each of the



                                          5
three cases and ordered the punishment for each of the three cases to run

concurrently with one another. (RR3: 53).

                       SUMMARY OF THE ARGUMENT

      Because there are no arguable points of error or issues, no summary of the

argument can be presented.

                         ARGUMENT AND ANALYSIS

      As previously stated, the undersigned attorney has reviewed the clerk's

record in all three cases and the reporter's record in this case and is of the opinion

that no arguable points of error or issues are present. Nevertheless, in the interest

of thoroughly examining the record, counsel will review the documents in the

underlying case.    In this respect, the undersigned attorney would note the

following:

      The indictment for aggravated sexual assault of a child tracks the language

of the statute. (CR: 7). TEX. PEN. CODE§ 22.021. Such offense was a first degree

felony at the time it was alleged to have been committed. TEX. PEN. CODE §

22.021(e). (CR: 7). Each ofthe three cases used the same indictment. (CR: 7).

      This record contains two pre-trial motions filed by Appellant, a Motion to

Reinstate Bond on January 3, 2008 and a Motion for a Speedy Trial filed on

August 3, 2009. (CR: 24, 52). The Motion to Reinstate Bond was granted on

January 9, 2008, and the bond was reinstated on that date. (CR: 29). The Motion



                                          6
for Speedy Trial was granted by the trial court on August 26, 2009 by setting all

three cases for jury selection on September 3, 2009. (CR: 60). On September 3,

2009 a jury was selected to hear all three cases. (CR: 69-81).

       On September 11, 2009, an agreement was reached between the parties

whereby Appellant entered a plea of guilty to the indictment in each of the three

cases in exchange for an agreed upon sentence recommendation of ten (1 0) years

deferred adjudicated community supervision and a three thousand dollar ($3,000)

fine. (CR: 82-88). The plea hearing was conducted on that date. (CR: 82-88).

      Both the United States Constitution and the Texas Constitution protect a

defendant's right to a trial by jury. U.S. CONST. amend. VI; TEX. CONST. art. 1, §

15. A defendant has a right to waive his right to a trial by jury. Marin v. State,

851 S.W.25 275, 280 (Tex. Crim. App. 1993); Marquez v. State, 921 S.W.2d 217,

224 (Tex. Crim. App. 1996). However, because of the fundamental and inviolate

nature of the right to trial by jury, Texas law requires a defendant's waiver of a

jury trial to be made in person in writing in open court with the consent and

approval of the court and the attorney representing the State. Id. at 220; TEX.

CODE CRIM. PROC. art. 1.13 - 1.15. During the plea hearing where Appellant

appeared in court in person, Appellant waived in writing his right to a trial by jury.

(CR: 85-86).    Both the trial court and the attorney for the State approved of




                                          7
Appellant's wa1ver as evidenced by their signatures on the written plea

admonishments containing the waiver. (CR: 87).

       The   Texas     Code    of Criminal      Procedure     mandates     that   certain

"admonishments" must be given to a criminal defendant prior to accepting a plea

of guilty or a plea of nolo contendere. See generally TEX. CODE CRIM. PROC. art.

26.13. These admonishments include: the range of punishment for the offense; the

fact that the recommendation of the prosecuting attorney as to punishment is not

binding on the court; the fact that if the punishment assessed does not exceed the

punishment recommended by the prosecutor and agreed to by the defendant and

his attorney, the trial court must give its permission to the defendant before he may

prosecute an appeal on any matter in the case except for those matters raised by

written motions filed prior to trial; and the fact that if the defendant is not a citizen

of the United States of America, a plea of guilty or nolo contendere for the offense

charged may result in deportation, the exclusion from admission to this country, or

the denial of naturalization under federal law. TEX. CODE CRIM. PROC. art. 26.13.

(a)(1)-(4). The court may make the admonishments required by this article either

orally or in writing. Blanco v. State, 771 S.W.2d 598, 599 (Tex. App. -Corpus

Christi 1989, no pet.).    TEX. CODE CRIM. PROC. art. 26.13(d).          Appellant was

admonished in writing as to each of these. (CR: 82, 84-85). The language of the

written admonishments regarding the range of punishment for a first degree felony



                                           8
offense and other consequences of such guilty plea tracked the language in TEX.

PEN. CODE § 12.32(a) and (b). (CR: 82). See generally TEX. CODE CRIM. PROC.

art. 26.13.    If the court makes the admonitions in writing, it must receive a

statement signed by the defendant and the defendant's attorney that he understands

the admonitions and is aware of the consequences of the plea. TEX. CODE CRIM.

PROC. art. 26.13(d). (CR: 85-86). A finding that a defendant is duly admonished

creates a prima facie showing that a guilty plea was entered knowingly and

voluntarily.   Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998).

Also, in State v. Jimenez, 987 S. W.2d 886, 888 (Tex. Crim. App. 1999), the Court

said:

        Generally, a guilty plea is consider voluntary if the defendant was
        made fully aware of the direct consequences. It will not be rendered
        involuntary by lack of knowledge as to some collateral consequence.

In a felony case, a defendant must appear in open court in person to make a plea of

guilty. Hall v. State, 935 S.W.2d 852, 856 (Tex. App. - San Antonio 1996, no

pet.). Appellant appeared in open court in person when he entered a plea of guilty

to the offense of aggravated sexual assault of a child in each case. (CR: 85-86).

Appellant's judicial confession was admitted into evidence.      (CR: 86-87).   A

judicial confession is sufficient to support the conviction. Dinnery v. State, 592

S.W.2d 343, 353 (Tex. Crim. App. 1979) (on rehearing); Byrom v. State, 528

S.W.2d 224,226 (Tex. Crim. App. 1975).



                                         9
      Before accepting a defendant's guilty plea, a trial court must satisfy itself

that the accused understands "the consequences of his plea." Liggins v. State, 979

S.W.2d 56, 67 (Tex. App. - Waco 1998, pet. refd); See generally TEX. CODE

CRIM. PROC. art. 26.13.     All that is required of a trial court is substantial

compliance with the requirements of article 26.13. Ex parte Smith, 678 S.W.2d 78,

79 (Tex. Crim. App. 1984).      A trial judge is not required to ask any certain

questions nor follow any formula to substantially comply with article 26.13.

Richards v. State, 562 S.W.2d 456, 458 (Tex. Crim. App. 1977) (on rehearing).

The trial court found that the Appellant's plea was made freely, knowingly and

voluntarily and as such should be admitted into evidence; accordingly the trial

court held there to be sufficient evidence to find Appellant guilty based on

Appellant's signed judicial confession but deferred making the finding of guilt and

followed the plea agreement. (CR: 87-88). As a result, Appellant was placed on

deferred adjudication community supervision for a period of ten (1 0) years and

ordered to abide by all of the terms and conditions set forth in the Deferred

Community Supervision Order. (CR: 90-91).

      On January 10, 2014, Community Supervision Officer Cody Elliott filed a

Report of Community Supervision Violation alleging two (2) conditions of

Appellant's Deferred Adjudication Community Supervision Order had been

violated by Appellant. (CR: 97.) On July 8, 2014, Assistant Criminal District



                                        10
Attorney for Hopkins County, Texas, Peter Morgan, filed a Motion to Proceed with

Adjudication of Guilt alleging Appellant had violated four (4) conditions of

Appellant's Deferred Adjudication Community Supervision Order. (CR: 99). On

July 23, 2014, Appellant filled out an application for court-appointed counsel in

each of the three cases. (CR: 103). On that date, the trial court deemed Appellant

indigent and appointed attorney Ron Ferguson to represent Appellant in each of the

three cases. (CR: 103).

      On July 30, 2014, Appellant and trial counsel made their first court

appearance following the filing of the Motion to Proceed.        (RR2: 5). At that

appearance, Appellant announced his intention to plead true to the allegations

contained in the Motion to Proceed and allow the trial court to assess his

punishment at a sentencing hearing.       (RR2: 5-6).   Additionally, trial counsel

requested a presentence investigation report be prepared, and the trial court granted

that request.     (RR2: 5-7).   The plea hearing was also conducted on that date.

(CR: 105-1 07).

      During the plea hearing, defense counsel waived the ten (1 0) days of

preparation time on the record in open court. (RR2: 14-15). TEX. CODE CRIM.

PROC. art. 1.051(e). Appellant consented to defense counsel's waiver of the ten

(10) days of preparation time on the record in open court. (RR2: 13-14). TEX.

CODE CRIM. PROC. art. 1.051 (e). A statement made by an accused is valid if it is



                                          11
made freely and voluntarily without compulsion or persuasion. TEX. CODE CRIM.

PROC. art. 38.21. Both defense counsel and Appellant agreed on the record in open

court that this waiver was made by Appellant freely, voluntarily, knowingly and

competently. (RR2 : 14-15).

      Appellant was then placed under oath by the trial court. (RR2: 15). The

State's Motion to Proceed with Adjudication of Guilt alleged Appellant had

violated condition D in that Appellant had failed to report less than once per month

as directed by his Community Supervision Officer, condition H(1) in that

Appellant had failed to pay a community supervision fee of sixty dollars ($60) per

month, condition H(2) in that Appellant had failed to pay the assessed fine, court

cost, and other fees, and that Appellant had failed to attend and complete sex

offender counseling and pay the associated costs. (CR: 99). Appellant plead true

to each of the allegations contained in the State's Motion to Proceed with

Adjudication of Guilt in each of the three cases. (RR2: 15-16). Appellant then

verified on the record that his plea of true was made freely, voluntarily and for no

other reason than because it was true. (RR2: 15-16). Accordingly, Appellant's

plea of true was also a statement that was properly admitted as it also met the

requirements listed in the Texas Code of Criminal Procedure. TEX. CoDE CRIM.

PROC. art. 38.21. The Texas Court of Criminal Appeals has made it clear that the

violation of a single condition of community supervision is a sufficient ground to



                                        12
support revocation of community supervision. Moses v. State, 590 S.W.2d 469,

470 (Tex. Crim. App. 1979). Furthermore, a defendant's plea of true, standing

alone, is sufficient to support the revocation of community supervision. !d.

Consequently, if a defendant pleads true to violating any condition of his

community supervision, he cannot claim that the evidence is insufficient to support

revocation. Mitchell v. State, 482 S.W.2d 221, 222-23 (Tex. Crim. App. 1972);

Harris v. State, 160 S.W.3d 621, 626 (Tex. App.- Waco 2005, pet. struck).

      The State has the burden of showing by a preponderance of the evidence that

the defendant committed a violation of the conditions of his community

supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). In order

to revoke deferred adjudication community supervision, the State must prove by a

preponderance of the evidence every element of at least one ground for revocation.

TEX. CODE CRIM. PROC. art. 42.12, § 10; TR.S., 115 S.W.3d at 320.

      The State then offered State's Exhibit Number One (1) in each case. (RR2:

16). The admission of this evidence by the trial court complies with the Texas

Rules of Evidence because the plea of true contained in State's Exhibit Number

One ( 1) was a relevant non-hearsay statement. TEX. R. Evm. 401; TEX. R. Evm.

801(e)(2)(A). The trial court is the sole judge of the credibility of the witnesses

and the weight given to their testimony, and the evidence is to be reviewed in the

light most favorable to the trial court's ruling. Garrett v. State, 619 S.W.2d 172,



                                        13
174 (Tex. Crim App. [Panel Op.] 1981); See also In re TR.S., 115 S.W.3d 318,

321 (Tex. App.- Texarkana 2003, no pet.).

       The record supports that Appellant understood the proceedings against him,

understood the potential punishment range for the offenses, understood his rights,

and that Appellant wished to waive those rights and plead true to each of the

allegations in the State's Motion to Proceed to Adjudication of Guilt. (RR2: 16-

17); (CR: I 05-1 07). The trial court found that the decisions Appellant made were

made freely, voluntarily, knowingly, and competently and accepted Appellant's

plea of true to having violated his community supervision as alleged in the State's

Motion to Proceed with Adjudication of Guilt. (RR2: 18). A defendant's plea of

true provides the court with sufficient evidence to revoke his community

supervision. Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009). Proof

of one violation of the terms of community supervision is sufficient to support

revocation. Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980). When

a trial court finds several violations of community supervision conditions, an

appellate court will affirm the revocation order if the proof of any single allegation

is sufficient. See Hart v. State, 264 S.W.3d 364, 367 (Tex. App.- Eastland 2008,

pet. refd).

      After accepting the Appellant's plea on July 30, 2014, trial court set the

matter for a hearing to determine sentencing on August 27, 2014. (RR2: 18-19);



                                         14
(CR: 104). On August 27, 2014, the trial court conducted the sentencing hearing.

(RR3: 1).      After examining the evidence, hearing testimony and arguments of

counsel, the trial court found it true Appellant violated his community supervision,

granted the State's motion to proceed in each of the three cases, and found

Appellant guilty of the offense of aggravated sexual assault of a child in each of

the three cases. (RR: 51-53). A court's decision to revoke community supervision

and proceed to adjudication is examined in the light most favorable to the trial

court's order. TR.S. at 321.

         The trial court assessed punishment at forty (40) years in the penitentiary.

(RR3: 53); (CR: 112-113). There is no evidence that the punishment was cruel or

unusual as it is within the statutory punishment range for the offense. TEX. PEN.

CODE § 12.32; Kirk v. State, 949 S.W.2d 769, 772 (Tex. App. -Dallas 1997, pet.

ref'd.); Carpenter v. State, 783 S.W.2d 232, 232-33 (Tex. App.- Dallas 1989, no

pet.).

         Appellate review of an order revoking probation is limited to abuse of the

trial court's discretion. TEX. CODE CRIM. PROC. art. 42.12, § 5(b); Cardona v.

State, 665 S. W.2d 492, 493 (Tex. Crim App. 1984). In determining questions

regarding sufficiency of the evidence in probation revocation cases, the burden of

proof is by a preponderance of evidence. Cardona at 493. An order revoking

probation must be supported by a preponderance of the evidence; in other words,



                                          15
that greater weight of the credible evidence which would create a reasonable belief

that the defendant has violated a condition of his probation. Scamardo v. State,

517 S.W.2d 293, 298 (Tex. Crim. App. 1974).

      The undersigned attorney for Appellant respectfully requests that this Court

grant the motion to withdraw.

                                CONCLUSION

      WHEREFORE, PREMISES CONSIDERED, the attorney for the

Appellant further states that she has caused a copy of the motion to withdraw and

this brief of counsel in support of the motion to withdraw to be served on the

Appellant, accompanied by a letter informing the Appellant of his right to file a

pro se response.   (See attached copy of such letter.) See Henry v. State, 948

S.W.2d 338, 340-41 (Tex. App.- Dallas 1997, no pet.).



                                     Respectfully submitted,




                                     RACHEL FLATT
                                     State Bar No. 24078504
                                     P.O. Box 5
                                     Sulphur Springs, Texas 75483
                                     Telephone: (903) 885-7118
                                     Facsimile: (903) 885-7133
                                     E-mail: law .office.of.rachel.flatt@gmail.com

                                     ATTORNEY FOR APPELLANT

                                       16
                         CERTIFICATE OF SERVICE

      The undersigned attorney hereby certifies that a true and correct copy of the

foregoing Brief has been mailed, via U.S. Mail, postage pre-paid, to the Appellant,

Randy Jay Hofstetter, CID #00751864, C/0 Tarrant County Jail, 100 North Lamar,

Fort Worth, Texas 76102, and has been hand-delivered to the office of Will

Ramsay, Criminal District Attorney for Hopkins County, on the          2nd   day of

February, 2015.



                                    Thrb i FJa-B:
                                      RACHEL FLATT




                                        17
                                  Law Office of Rachel Flatt
                                614 Oak Avenue • P.O. Box 5
                                 Sulphur Springs, TX 75483
                           903.885.7118 Office • 903.885.7133 Fax

                                      February 2, 2015

ATTORNEY-CLIENT MAIL
Mr. Randy Jay Hofstetter
CID # 0751864
C/0 Tarrant County Jail
100 North Lamar
Fort Worth, TX 76102

       RE:    The State of Texas v. Randy Jay Hofstetter;
              Cause Nos. 0719507, 0719508, 0719509;
              Appeal Nos. 06-14-00196-CR, 06-14-00197-CR, 06-14-00198-CR

Dear Mr. Hofstetter:

        I must regretfully inform you that, after a diligent search of the appellate record in
your case and the applicable case law, it is my opinion that no reversible error was
committed in your case. Therefore, the law requires that I file a motion to withdraw and
a brief in support of that motion.

        The law accords you the right to review the record of your case and file any pro se
response that you deem necessary on your own behalf. This pro se response will be
submitted to the Court of Appeals along with the brief that I have filed. You have the
right to file a pro se response before the Court rules on my motion to withdraw. I am
enclosing a copy of the complete clerk's record in each case which includes 398 pages
along with a complete copy of the reporter's record which includes 91 pages. Please
immediately advise the Clerk of the Court if you desire to file a pro se response on your
own behalf in this case. The address of the Clerk is: Ms. Debra Autrey, Clerk of the
Court, Court of Appeals for the Sixth District at Texarkana, Bi-State Justice Building,
100 North State Line Avenue #20, Texarkana, Texas 75501. I will keep you advised as
to the status of the appeal.

                                                     ith best regards,

                                                            ~
                                                  RACHEL FLATT
/rlf
Enclosures as stated (2)


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