9. Name & Address of Court Reporter: Paula Beaver PO Box 233 Comfort Tx 78013
10. The trial was before the Court: Without a Jury ~, A Jury on both Guilt & Punislunent-, A Jury on Punishment Only A Jury on Guilt Only~_.
11. Sentence was imposed/suspended on: November 30 th • ')015 (3) Years in theJl1stitutional Division-
Witness my hand this the ?:Ii th day of December, 2015. .. FILED 1 ;l. --.:J.,;;J.. 2QjJ S @4.'~?;{).M ROBBIN BURLEW O' ct CI . , rr unty, TX. NO. B14·554
B~~~a,t.:!:!YI1ItLiOeputy STATE OF TEXAS § IN THE DISTRICT OURT § vs. § 198TH JUDICIAL DISTRICT § TAMARA JOY MCCRACKEN § KERR COUNTY, TEXAS
MOTION FOR NEW TRIAL AND MOTION IN ARREST OF JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Tamara Joy McCracken, the Defendant in the above styled and
numbered cause, and files this Motion for New Trial and Motion in Arrest of Judgment
pursuant to Rules 21 and 22 of the Texas Rules of Appellate Procedure. and in support
thereof would show this court the following:
1. The Defendant was sentenced on November 30,2015. This Motion. filed
within the thirty-day timetable, is therefore timely. A hearing must be commenced
before the 75th day after the sentence, which is February 13, 2016, or this motion is
overruled by operation of law.
2. The verdict in this cause is contrary to the law and the evidence. See
Tex. R. App. P. 21.3.
3. The trial court has the discretion to grant a new trial in the interests of
justice, as the Court of Criminal Appeals has emphasized:
For more than one hundred and twenty years. our trial judges have had the
discretion to grant new trials in the interest of justice. In Mullins v. State, 37 Tex.
337, 339-340 (1872-73), the Supreme Court, which at that time had criminal
jurisdiction, held:
... The discretion of the District Court. in granting new trials. is almost the .,
only protection to the citizen against the illegal or oppressive verdicts of
prejudiced, careless, or ignorant juries, and we think the District Court
should never hesitate to use that discretion whenever the ends of justice
have not been attained by those verdicts.
State v. Gonzalez, 855 S.W.2d 692 (Tex. Crim. App. 1993).
4. For the foregoing reasons, and for such other reasons that may arise on
the hearing of this Motion, Defendant requests a new trial.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court set
aside the judgment of conviction entered in this cause and order a new trial on the
merits.
Respectfully submitted,
M. PATRICK MAGUIRE, P.C. Attorney and Counselor 945 Barnett Street Kerrville, Texas 78028 Tel: (830) 895-2590 Fax: (83 ) 895-2594
BY:---=_ _~--lI._ _ _ ---1___--.:.~r--- __ M. Patrick Maguire State Bar No. 24002515 mpmlaw@ktc.com Attorney for Tamara Joy McCracken
CERTIFICATE OF PRESENTMENT
By signature above, I hereby certify that a true and correct copy of the above and
foregoing has been hand-delivered to the Office for the 198th Judicial District Court of
Kerr County. on this day, December 22,2015. CERTIFICAorE OF SERVICE
This is to certify that on December 22, 2015, a true and correct copy of the above
and foregoing document was served on the District Attorney's Office, Kerr County, 402
Clearwater Paseo, Suite 500, Kerrville, Texas 78028, by hand delivery. NO. B14-554
STATE OF TEXAS § IN THE DISTRICT COURT § VS. § 198th JUDICIAL DISTRICT § TAMARA MCCRACKEN § KERR COUNTY, TEXAS
NOTICE OF APPEAL
Now comes Tamara McCracken, Defendant in the above styled and nwnbered cause, and
gives this written notice of appeal to the Court of Appeals of the State of Texas from the
judgment ofconviction and sentence herein rendered against Tamara McCracken.
BRETT FERGUSON 327 Earl Garrett Ste 104 FILED I.tL.M rei. :.2. '.7 20L,l
Kerrville, Texas 78028 ROBBIN BURLEW District CIer1t. Kerr County, TX Tel: (830) 895-2544 Fax: (830) 895-3353 ~;X~
By:---,.~~..,::::::;;...=--..::::. _ _ _ _ _ _ _ __ e rguson te Bar No. 24040889 bferg@ktc.com Attorney for Tamara McCracken
CERTIFICATE OF SERVICE
This is to certify that on December 3, 2015, a true and correct copy of the above and
foregoing docwnent was served on the District Attorney's Office, Kerr County by hand delivery. CAUSE NO. B 14-554--MTP
THE STATE OF TEXAS § IN THE DISTRICT COURT § VS. § 198th JUDICIAL DISTRICT § TAMARA JOY MCCRACKEN § KERR COUNTY, TEXAS
TRIAL COURT'S CERTIFICATION OF DEFENDANT'S RIGHT TO APPEAL
I, judge of the trial court, certifY this criminal case:
r- is not a plea-bargain case, and the defendant has the right of appeaL [or]
is a plea-bargain case, but matters were written by motion and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal. [or]
is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right of appeal. [or]
is a plea-bargain case, and the defendant has NO right of appeaL [or]
Judge Date Signed
I have received a copy of the certification. I have also been informed of tbe rights concerning any appeal of this criminal case, including any right to file a pro se petition for discretionary review pursuant to Rule 68 of tbe Texas Rules of Appellate Procedure. I have been admonished tbat my attorney must mail a copy of the court of appeal's judgment and opinion to my last known address and I bave only 30 days in which to file a pro se petition for discretionary review in the court of appeals. TEX. R. APP. P. 68.2 I acknowledge that, if I wish to appeal this case and if I am entitled to do so, it is my duty to inform my appellate attorney, by written communication, of any change in the address at which I am currently living or any change in my current prison unit. I understand that, because of appellate deadlines, if I fail to timely inform my appellate attorney of any cbanges in my address, I may lose the opportunity to file a pro e petition for discretionary review.
efen t: T JOY McCRACKEN Mailing Address: 120 CRESSCENT DR ~FERGUSON State Bar Texas 10#: KERRVILLE, TX 78028 Mailing Address: Telephone Number: (830) 370-2591 Telephone Number: (830) 895-2544 Fax Number (if any): Fax Number (if any): (830) 895-3353
FILED @~ I c3!-. tlgg ;2.:20Ki. M OBBIN BURLEW strict lerk. K County TX Cause No. B14-554
THE STATE OF TEXAS § IN THE 198TH JUDICIAL v. § DISTRICT COURT OF TAMARA JOY McCRACKEN § KERR COUNTY, TEXAS ADJUDICATION OF GUILT; SENTENCE To Institutional Division, JDeJ
DATE OF JUDGMENT: NOVEMBER 30, 2015 JUDGE PRESIDING: M. REX EMERSON ATIORNEY FOR THE STATE: scon F. MONROE, DA/ STEPHEN HARPOLD, ADA ATIORNEY FOR THE DEFENDANT: BRm FERGUSON OFFENSE: POSSESSION OF A CONTROllED SUBSTANCE HEROIN
~~ DATE OF OFFENSE: SEPTEMBER 5, 2014 DATE OF COMMUNITY SUPERVISION ORDER: FEBRUARY 6, 2015 FILED 20/:j CHARGING INSTRUMENT: Indictment @ Of!o_,OlLM TERMS OF PLEA AGREEMENT NONE OBBIN BURLEW (IN DETAIL): Clerk, Ke County, TX PLEA TO MOTION TO ADJUDICATE: True FINDING AS TO ALLEGATIONS IN MOTION TO True ADJUDICATE: CONDITlONS OF COMMUNITY SUPERVISION As set out In State's Exhibit A VIOLATED (as set out in the moHon to adJudicate): AFFIRMATIVE FINDING ON DEADLY WEAPON Not Applicable OTHER AFFIRMATIVE SPECIAL FINDINGS; Drugs/alcohol affected this crime DATE SENTENCE IMPOSED: N~EMBER 3~2015 PUNISHMENT AND PLACE OF CONFINEMENT: "1flrpe l 5) YEARS In the InsHtutlonal Dlvlslon-TDCJ! TIME CREDITED TO SENTENCE: 71 DAYS I COURT COSTS: $ 70 $ AnY FEES TOTAL AMOUNT OF RESTITUTION: $-0 NAME AND ADDRESS FOR RESTITUTION: N/A
DOB: 02/0411980 SS#: XXX-XX-XXXX SID#: TX06578409
This sentence shall run eonseeutive to BI4-SSS. The sentence this case shall begin after the sentence in B 15·555 is completed.
On the date stated above, the Defendant entered a plea of Guil ty to the offense stated above and was granted a deferred adjudication in the above numbered and styled cause. The Defendant was placed on community supervision as stated above, subject to the conditions of supervision set out in the order in this cause. Thereafter, and during the period of supervision, the State filed a motion to adjudicate in this cause, alleging that the Defendant had violated conditions of supervision set out in said order.
On the date stated above, the above numbered and entitled cause was regularly reached and caned for a hearing on the motion to adjudicate, and the State appeared by the attorney stated above. and the Defendant and the Defendant's attorney, as stated above, were also present. Thereupon both sides announced ready for the hearing, and the Defendant, Defendant's attorney, and the Defendant waived the reading of the motion to adjudicate, and, upon being asked by the Court as to how the defendant pleaded, entered a plea of True to the allegations in the motion to revoke.
Adjudication of Guilt; Direct Sentence; Page I of2 Pages Thereupon, the Defendant was admonished by the Court of the consequences of the plea; it appeared to the Court that the Defendant was competent and that the defendant was not influenced in making said plea by any consideration of fear or by an persuasion prompting said plea; and the Court received the free and voluntary plea, which is now entered of record in the minutes of the court. The Court, after hearing all of the evidence for the State and the Defendant and arguments of counsel, was of the opinion and found that the Defendant violated the conditions of community supervision as stated above.
The Court then adjudicated the Defendant guilty of the offense stated above and found the offense was committed on the date stated above. A pre-sentence investigation report was not required or done. After hearing additional evidence on the issue of punishment, if any, the Court then assessed punishment as stated above.
And thereupon the Court asked the Defendant whether the Defendant had anything to say why said sentence should not be pronounced upon said Defendant, and the Defendant answered nothing in bar thereof. Whereupon the Court proceeded to pronounce sentence upon said Defendant as stated above.
It is therefore ORDERED, ADJUDGED and DECREED by the Court that the defendant is guilty of the offense stated above, the punishment is fixed as stated above, and the State of Texas do have and recover of said defendant all court costs in this prosecution expended, for which execution will issue.
It is ORDERED by the Court that the Defendant be taken by the authorized agent of the State of Texas or by the Sheriff of this county and be safely conveyed and delivered to the Director, Institutional Division-TDCJ. there to be confined in the manner and for the period aforesaid, and the said defendant is hereby remanded to the custody of the Sheriff of this county until such time as the Sheriff can obey the directions of this sentence. The defendant is given credit as stated above on this sentence for the time spent in county jail. The Defendant also is ordered to pay restitution to the person(s) named above in the amount specified above.
Signed on the 30 TH day of NOVEMBER, 2015.
JUDG
Defendant's
Adjudication of Guilt; Direct Sentence; Page 2 of 2 Pages Cause No. B14554
THE STATE OF TEXAS Exhibit VS. Tamara McCracken "A" The defendant has violated the terms and conditions of her probation as follows:
(b) AVOID INJURIOUS OR VICIOUS HABITS: • Defendant failed to avoid injurious or vicious habits and abstain from the use or possession or narcotic drugs or controlled substances, namely amphetamine, on or about the 1st day of May, 2015 as evidenced by defendant's admission of use.
• Defendant failed to avoid injurious or vicious habits and abstain from the use or possession or narcotic drugs or controlled substances, namely methamphetamine, on or about the 7th day of June, 2015 as evidenced by defendant's admission of use.
• Defendant failed to avoid injurious or vicious habits and abstain from the use or possession or narcotic drugs or controlled substances, namely methamphetamine, on or about the 15 th day of June, 2015 as evidenced by urinalysis drug test.
• Defendant failed to avoid injurious or vicious habits and abstain from the use or possession or narcotic drugs or controlled substances, namely amphetamine, on or about the 15th day of June, 2015 as evidenced by urinalysis drug test.
• Defendant failed to avoid injurious or vicious habits and abstain from the use or possession or narcotic drugs or controlled substances, namely benzodiazepine, on or about the 15th day of June, 2015 as evidenced by urinalysis drug test.
• Defendant failed to avoid injurious or vicious habits and abstain from the use or possession or narcotic rd drugs or controlled substances, namely methamphetamine, on or about the 3 day of November, 2015 as evidenced by defendant's admission of use.
• Defendant failed to avoid injurious or vicious habits and abstain from the use or possession or narcotic drugs or controlled substances, namely heroin, on or about the 4th day of November, 2015 as evidenced by defendant's admission of use.
(d) REPORT: th • Defendant failed to report for an administrative hearing at the Kerr County CSCD on the 26 day of June, 2015.
(m)(l) COURT COSTS: • Defendant failed to pay Court Costs in the amount of $413.00 instanter (or as directed by further order of the Court) and currently has a remaining balance of$413.00.
(m)(2) FINE: • Defendant failed to pay Fine in the amount of$1500.00 instanter (or as directed by further order of the Court) and currently has a remaining balance of$1500.00. ~.~.
, . . • a€ use No, BI4554
THE STATE OF TEXAS VS, Tamara McCracken
(m)(3) PROBATION FEES:
• Defendant failed to pay probation fees in the amount of $60.00 per month for the months of March, April, May, June, July, August, September, October, and November 2015, for a delinquency of $540.00.
(m)(4) ATTORNEY FEES: • Defendant failed to pay restitution to county for Court appointed attorney fees in the amount of $667.50 payable instanter (or as directed by further order of the Court) and currently has a remaining balance of $667.50.
(0) FINANCIAL STATEMENT: • After default in monthly Court ordered payments defendant failed to file a sworn statement with the Probation Office listing individually all monthly income and expenses.
(q) 2. RANDOM URINALYSIS: • Defendant failed to pay for urinalysis testing and currently owes $36.00.
(s) COMMUNITY SERVICE: • Defendant failed to perfonn 150 hours of community service at a minimum of 16 hours of service per month and currently has 140 hours remaining.
(u) 4. ABSTAIN FROM ALL USE OF ALCOHOL AND NARCOTIC DRUGS-CONTROLLED SUBSTANCES: • Defendant failed to abstain from all use of alcohol and narcotic drugs-controlled substances, namely amphetamine, on or about the 15t day of May, 2015 as evidenced by defendant's admission of use.
• Defendant failed to abstain from all use of alcohol and narcotic drugs-controlled substances, namely methamphetamine, on or about the 7th day of June, 2015 as evidenced by defendant's admission of use.
• Defendant failed to abstain from all use of alcohol and narcotic drugs-controlled substances, namely methamphetamine, on or about the 15 th day of June, 2015 as evidenced by urinalysis drug test.
• Defendant failed to abstain from all use of alcohol and narcotic drugs-controlled substances, namely amphetamine, on or about the 15 th day of June, 2015 as evidenced by urinalysis drug test.
• Defendant failed to abstain from all use of alcohol and narcotic drugs-controlled substances, namely benzodiazepine, on or about the 15 th day of June, 2015 as evidenced by urinalysis drug test.
• Defendant failed to abstain from all use of alcohol and narcotic drugs-controlled substances, namely methamphetamine, on or about the 3rd day of November, 2015 as evidenced by defendant's admission of use.
• Defendant failed to abstain from all use of alcohol and narcotic drugs-controlled substances, namely heroin, on or about the 4th day of November, 2015 as evidenced by defendant's admission of use.
LAST KNOWN ADDRESS: 114 Candlelite Dr, Ingram, TX 78025