                                                                                  ACCEPTED
                                                                              12-15-00191-CR
                                                                 TWELFTH COURT OF APPEALS
                                                                               TYLER, TEXAS
                                                                       11/24/2015 11:38:22 AM
                                                                                    Pam Estes
                                                                                       CLERK

                    No. 12-15-00191-CR

                                                            FILED IN
                                                    12th COURT OF APPEALS
         IN THE TWELFTH COURT OF              APPEALS     TYLER, TEXAS
                   TYLER, TEXAS                     11/24/2015 11:38:22 AM
                                                           PAM ESTES
                                                             Clerk

              DEBORAH ANN PATTERSON

                               Appellant,

                              v.

                  THE STATE OF TEXAS

                                   Appellee



On Appeal from the 114th District Court of Smith County, Texas
                Trial Cause No. 114-0784-14




          ORAL ARGUMENT NOT REQUESTED


                          Austin Reeve Jackson
                          Texas Bar No. 24046139
                          JLawAppeals@gmail.com
                          112 East Line, Suite 310
                          Tyler, TX 75702
                          Telephone: (903) 595-6070
                          Facsimile: (866) 387-0152
                    IDENTITY OF PARTIES AND COUNSEL


Attorney for Appellant

Appellate Counsel:
Austin Reeve Jackson
112 East Line, Suite 310
Tyler, TX 75702

Trial Counsel:
Melvin Thompson
2108 S. Wall Ave.
Tyler, TX 75701

Attorney for the State on Appeal

Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702




                                            ii
                                          TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS .............................................................................................. iii
INDEX OF AUTHORITIES ......................................................................................... iv
STATEMENT OF THE CASE .......................................................................................2
ISSUES PRESENTED ....................................................................................................2
STATEMENT OF FACTS ..............................................................................................2
PROFESSIONAL EVALUATION OF THE RECORD .................................................3
SUMMARY OF THE ARGUMENT ..............................................................................3
ARGUMENT ..................................................................................................................4
    I.      THE TRIAL COURT ACTED WITHIN ITS DISCRETION
            WHEN IT REVOKED APPELLANT'S COMMUNITY
            SUPERVISION................................................................................................5
    Standard of Review ....................................................................................................4
    A. There Was Legally Sufficient Evidence to Support the Revocation ....................5
    B. Appellant's Sentence Was Within the Statutory Range of Punishment ................7
    C. Appellant Received Effective Assistance of Counsel...........................................8
CONCLUSION AND PRAYER .....................................................................................9
CERTIFICATE OF SERVICE ........................................................................................9
CERTIFICATE OF COUNSEL ....................................................................................10
CERTIFICATE OF COMPLIANCE ............................................................................10




                                                           iii
                                  INDEX OF AUTHORITIES

UNITED STATES SUPREME COURT:

Anders v. California,
 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ................................... 3, 8, 10

Boykin v. Alabama,
 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ................................... 5

Strickland v. Washington,
  466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1984) ................................. 8

TEXAS COURT OF CRIMINAL APPEALS:

Cardona v. State,
 665 S.W.2d 492 (Tex.Crim.App. 1984) ........................................................ 4

Cobb v. State,
 851 S.W.2d 871 (Tex.Crim.App. 1993) ........................................................ 6

Gutierrez v. State,
 65 S.W.3d 362 (Tex.Crim.App. 2003) .......................................................... 6

Hernandez v. State,
 988 S.W.2d 70 (Tex.Crim.App. 1999) .......................................................... 8

Jackson v. State,
  973 S.W.2d 954 (Tex.Crim.App. 1998) ........................................................ 8

Kniatt v. State,
 206 S.W.3d 657 (Tex.Crim.App. 2006) ........................................................ 5

Lyles v. State,
 850 S.W.2d 497 (Tex.Crim.App. 1993) ........................................................ 4

Miniel v. State,
 831 S.W.2d 310 (Tex.Crim.App. 1992) ........................................................ 8




                                                   iv
TEXAS COURT OF CRIMINAL APPEALS (CON’T):

Moore v. State,
 694 S.W.2d 528 (Tex.Crim.App. 1985) ........................................................ 8

Moses v. State,
 590 S.W.2d 469 (Tex.Crim.App. 1979) ........................................................ 6

Rickles v. State,
  202 S.W.3d 759 (Tex.Crim.App. 2006) ........................................................ 4

Stafford v. State,
  813 S.W.2d 503 (Tex.Crim.App. 1991) ........................................................ 8


TEXAS COURTS OF APPEAL:

Canseco v. State,
 199 S.W.3d 437 (Tex.App.—Houston [1st Dist.] 2006) ............................... 4

Duke v. State,
 2 S.W.3d 512 (Tex.App.—San Antonio 1999) ............................................. 4

Graves v. State,
 176 S.W.3d 422 (Tex.App.—Houston [1st Dist.] 2004) ............................... 7

Hays v. State,
 933 S.W.2d 659 (Tex.App.—San Antonio 1996) ......................................... 5, 6

Joseph v. State,
  3 S.W.3d 627 (Tex.App.—Houston [14th Dist.] 1999) ................................ 4

Kirk v. State,
 949 S.W.2d 769 (Tex.App.—Dallas 1997) ................................................... 7

Lewis v. State,
 195 S.W.3d 205 (Tex.App.—San Antonio 2006) ......................................... 4

Mays v. State,
 904 S.W.2d 290 (Tex.App.—Fort Worth 1995) ........................................... 3

                                                    v
TEXAS COURTS OF APPEAL (CON’T):

Patrick v. State,
 12-07-00137-CR, 2008 Tex.App.LEXIS 2264 (Tex.App.—Tyler 2008) ..... 6


STATUTES:

TEX. CODE CRIM. PROC. art. 26.13 .................................................................... 5

TEX. CODE CRIM. PROC. art. 42.12 .................................................................... 7

TEX. PEN. CODE § 12.35 .................................................................................... 7

TEX. PEN. CODE § 32.31 .................................................................................... 7a




                                                          vi
                              No. 12-15-00191-CR


                  IN THE TWELFTH COURT OF APPEALS
                            TYLER, TEXAS


                       DEBORAH ANN PATTERSON

                                       Appellant,

                                      v.

                             THE STATE OF TEXAS

                                           Appellee



        On Appeal from the 114th District Court of Smith County, Texas
                        Trial Cause No. 114-0784-14




TO THE HONORABLE JUSTICES OF THE COURT:

      COMES NOW, Austin Reeve Jackson, attorney for Deborah Patterson and

files this brief pursuant to the Texas Rules of Appellate Procedure, and would

show the Court as follows:
                          STATEMENT OF THE CASE

        Deborah Patterson seeks to appeal her conviction and sentence for the of-

fense of felony credit card abuse. (I CR 69). Ms. Patterson was indicted for this

offense in the 114th District Court of Smith County and, pursuant to a plea agree-

ment, was sentenced to two years’ confinement probated for a period of four years.

(I CR 1, 46). In July of this year that probation was revoked and Ms. Patterson

was sentenced to serve a term of eighteen months’ confinement. (I CR 69). Sen-

tence was pronounced on 20 July and notice of appeal then timely filed. (I CR 69,

89).

                               ISSUE PRESENTED

   I.      THE TRIAL COURT ACTED WITHIN ITS DISCRETION
           IN REVOKING APPELLANT’S COMMUNITY SUPERVI-
           SION.

                            STATEMENT OF FACTS

        In June of last year Appellant, Ms. Deborah Patterson, was indicted for the

felony offense of credit card abuse in the 114th District Court of Smith County. (I

CR 1). A plea agreement was reached whereby in exchange for her plea of guilty

Ms. Patterson received a sentence of two years’ confinement probated for four

years. (I CR 46). In April the State filed an application to revoke Ms. Patterson’s

community supervision. (I CR 54). To all of the allegations made against her in

the application, Ms. Patterson entered a plea of “true.” (I CR 67). Based on this



                                         2	  
plea, the trial court revoked the previously ordered probation and imposed punish-

ment at a term of eighteen months’ confinement. (I CR 69). Sentence was pro-

nounced on 20 July and notice of appeal then timely filed. (I CR 69, 89).

            PROFESSIONAL EVALUATION OF THE RECORD

      In accordance with the requirements of Anders v. California, 386 U.S. 738,

744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), counsel has reviewed the record

and determined that, in his professional opinion, the record contains no reversible

error or jurisdictional defects. Under circumstances where there appears to be no

arguable grounds for reversal on appeal, counsel must present a professional eval-

uation of the record supporting this assertion. See Mays v. State, 904 S.W.2d 290,

922-23 (Tex.App.—Fort Worth 1995, no pet.).

                          SUMMARY OF ARGUMENT

      Pursuant to the responsibilities and requirements of the governing code of

professional conduct, a thorough review of the record has been made. Counsel’s

research has revealed no arguable, non-frivolous grounds that could be advanced in

support of a claim that there exists reversible error in the trial, judgment, or sen-

tence of Appellant. A review and analysis of any potential issues is herein present-

ed for the Court excluding any potential issues that, if successfully raised, would

produce a result adverse to Appellant’s interests.




                                          3	  
                                   ARGUMENT

       Standard of Review

       A trial court’s decision to revoke community supervision is reviewed under

an abuse of discretion standard.        Rickels v. State, 202 S.W.3d 759, 763

(Tex.Crim.App. 2006); Cardona v. State, 665 S.W.2d 492 (Tex.Crim.App. 1984).

A trial court abuses its discretion if it acts without reference to guiding principles.

Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App. 1993). Appellate review con-

siders the record in the light most favorable to the trial court’s decision. Duke v.

State, 2 S.W.3d 512, 515 (Tex.App.—San Antonio 1999, no pet.).

       Proof of a single violation is sufficient to support a revocation. Canseco v.

State, 199 S.W.3d 437, 439 (Tex.App.—Houston [1st Dist.] 2006, pet. ref’d). To

prevail then, an appellant must show, looking in the light most favorable to the

court’s decision, that the record is insufficient evidence to support each finding of

the court. Lewis v. State, 195 S.W.3d 205, 209 (Tex.App.—San Antonio 2006, no

pet.); Joseph v. State, 3 S.W.3d 627, 640 (Tex.App.—Houston [14th Dist.] 1999,

no pet.).




                                          4	  
   I.      THE TRIAL COURT ACTED WITHIN ITS DISCRETION
           WHEN IT REVOKED APPELLANT’S COMMUNITY SU-
           PERVISION.

        A. There Was Legally Sufficient Evidence to Support the Revocation.

        By way of the application filed against him, the State argued that Ms. Patter-

son had violated the terms and conditions of her community supervision. (I CR

54). Ms. Patterson entered pleas of “true” to all of the violations alleged against

her. (I CR 67). Those violations included:

 Application Para-        Allegation
 graph
             II           Failure to report as directed
            III           Use of cocaine
         IV and V         Failure to pay fees and costs

(I CR 54-57). If made freely, knowingly, and intelligently, Ms. Patterson’s pleas

of “true” to the allegations made against her are by themselves sufficient to support

the trial court’s revocation of community supervision. See Hays, 933 S.W.2d at

661.

        Due process requires that a plea of true must be entered knowingly, intelli-

gently, and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23

L.Ed.2d 274 (1969); Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006);

see also TEX. CODE CRIM. PROC. ANN. Art. 26.13(b). Before accepting her plea,

the trial court inquired whether Ms. Patterson had been threatened, coerced, or of-


                                           5	  
fered a promise of benefit in exchange for his plea, and whether he was making his

plea after sufficient opportunity to consult with counsel. (IV RR 4-13). After con-

ducting this inquiry the Court concluded that Ms. Patterson was “freely, knowing-

ly, intelligently, and voluntarily” entering her pleas of true. (IV RR 13).

      Additionally, the Clerk’s Record in this case includes written waivers and

admonishments signed by Ms. Patterson in which she acknowledged that she un-

derstood her rights at the revocation hearing and that she was knowingly waiving

those rights.    (I CR 67); see Gutierrez v. State, 65 S.W.3d 362, 366

(Tex.Crim.App. 2003) (holding that the full requirements of Article 26.13 do not

apply to revocation proceedings); see also Patrick v. State, 12-07-00137-CR, 2008

Tex.App.LEXIS 2264, *1 (Tex.App.—Tyler 2008, pet. ref’d) (mem. op.) (cited for

reference only) (holding same).

      Based on this record there appears to be no basis from which to argue that

the Court’s confidence in whether the pleas entered were made freely, knowingly,

and voluntarily should be undermined. Consequently, the trial court would not

have abused its discretion in revoking Appellant’s community supervision on the

basis of her pleas alone. Hays, 933 S.W.2d at 661; see also Moses v. State, 590

S.W.2d 469, 470 (Tex.Crim.App. 1979) (a plea of true and written stipulation is

sufficient to support revocation); Cobb v. State, 851 S.W.2d 871, 873




                                          6	  
(Tex.Crim.App. 1993) (the State must prove allegations in a revocation by a pre-

ponderance of the evidence).

      B. Appellant’s Sentence Was Within the Statutory Range of Punishment.

      Ms. Patterson was charged with credit card abuse, a state jail felony as in-

dicted. (I CR 1); TEX. PEN. CODE § 32.31. The range of punishment for a state jail

felony is confinement for six months to two years. TEX. PEN. CODE § 12.35. Ms.

Patterson was sentence to serve eighteen months’ imprisonment. (I CR 69).

      The sentence imposed was within the proper punishment range for the of-

fense alleged. TEX. PEN. CODE § 12.35. Consequently, as the punishment imposed

was within the statutory range for the offense, it is virtually presumed not to be

constitutionally cruel and unusual.      Kirk v. State, 949 S.W.2d 769, 772

(Tex.App.—Dallas 1997, pet. ref’d); see also TEX. CODE CRIM. PROC. ANN. art.

42.12 § 23(a) (at revocation the court may impose sentence anywhere within the

range of punishment). Moreover, that the sentence was less than what had been

the potential maximum punishment, any argument that the punishment was cruel

or excessive would be difficult to make. See, e.g., Graves v. State, 176 S.W.3d

422, 435 (Tex.App.—Houston [1st Dist.] 2004, pet. struck) (holding that a sen-

tence on the lower end of the punishment range tended to indicate a lack of egre-

gious harm where error in punishment charge was present). Consequently, counsel




                                        7	  
has been unable to raise a non-frivolous error on the issue of punishment on the

record currently before the Court.

      C. Appellant Received Effective Assistance of Counsel.

      Effective assistance of counsel is to be evaluated under the standard enunci-

ated in Strickland v. Washington, 466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344

(1984); see also, Hernandez v. State, 988 S.W.2d 70 (Tex.Crim.App. 1999). To

prevail in a claim of ineffective assistance of counsel, a defendant must show (1)

that her trial counsel’s performance fell below an objective standard of reasonable-

ness, and (2) that a reasonable probability exists that, but for trial counsel’s alleged

errors, the result would have been different. Strickland, 466 U.S. at 687-88. On

appeal, the defendant carries the burden of proving ineffective assistance by a pre-

ponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App.

1985). Finally, trial counsel’s performance is not to be judged with the benefit of

hindsight. Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App. 1992).

      With this standard in mind a comprehensive review of the record has been

made including potential pretrial matters, issues at the revocation hearing, and the

arguments of counsel and found no basis from which to argue that counsel was in-

effective. See Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998) (not-

ing that on direct appeal the record is usually insufficient to support a claim of in-

effective assistance).



                                           8	  
                            CONCLUSION AND PRAYER

       As counsel was unable to raise any arguable issues for appeal, he is required

to move for leave to withdraw.                 See Stafford v. State, 813 S.W.2d 503

(Tex.Crim.App. 1991).

       WHEREFORE, PREMISES CONSIDERED, counsel prays that the Court,

after affording Ms. Patterson the opportunity to review the record and file a pro se

brief should he desire to do so, accept this brief and grant the attached Motion to

Withdraw pursuant to Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct.

1396 (1967).

                                                        Respectfully submitted,

                                                        /s/ Austin Reeve Jackson
                                                        Texas Bar No. 24046139
                                                        112 East Line, Suite 310
                                                        Tyler, TX 75702
                                                        Telephone: (903) 595-6070
                                                        Facsimile: (866) 387-0152


                              CERTIFICATE OF SERVICE

       I certify that a true and correct copy of this brief was delivered to counsel for the

State by efile concurrently with its filing.

                                                        /s/ Austin Reeve Jackson




                                                9	  
                         CERTIFICATE OF COUNSEL

       The attorney’s role as an advocate requires that I support my client’s appeal

to the best of my ability. Anders v. California, 386 U.S. 738. I, Austin Reeve

Jackson, counsel of record in this appeal, do hereby state that I have diligently

searched the entire record in this cause. I have researched the law applicable to the

facts and issues contained therein, and it is my professional opinion that the record

reflects no reversible error. In conformity with the applicable law pertaining to an

appeal of this nature, I have set forth any potential grounds of error and have

briefed them to the extent possible. I have further caused a copy of this brief to be

served by certified mail on Appellant, accompanied by a letter informing Appellant

of the right to examine the record for the purpose of filing a pro se brief.

                                                   /s/ Austin Reeve Jackson



                        CERTIFICATE OF COMPLIANCE

       I certify that this document complies with the requirements of Rule 9.4 and con-

sists of 1,875 words.

                                                   /s/ Austin Reeve Jackson




                                          10	  
