Jerry Leon McNeil v. State

• Court: Court of Appeals of Texas
• Decided: January 15, 2015
• Docket: 06-14-00195-CR
• Status: Published

Opinion

ACCEPTED 06-14-00195-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 1/15/2015 8:44:29 AM DEBBIE AUTREY CLERK

NO. 06-14-00195-CR

IN THE COURT OF APPEALS FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS SIXTH APPELLATE DISTRICT OF TEXAS 1/15/2015 8:44:29 AM DEBBIE AUTREY AT TEXARKANA, TEXAS Clerk

JERRY LEON MCNEIL, Appellant

VS.

THE STATE OF TEXAS, Appellee

Appealed from the 115th Judicial District Court Marion County, Texas Trial Court Cause No. F13586

BRIEF OF APPELLANT IN SUPPORT OF MOTION TO WITHDRAW

Submitted by:

James P. Finstrom Counsel for Appellant P.O. Box 276 Jefferson, Texas 75657 903-665-7111 Fax: 903-665-7167 State Bar #07038000

APPELLANT DOES NOT REQUEST ORAL ARGUMENT IDENTITY OF PARTIES AND COUNSEL Pursuant to T.R.A.P. 38.1(a)

Appellant: Jerry Leon McNeil Institutional Division of Texas Department of Criminal Justice

Appellant’s Counsel for Appellant at trial and on appeal:

Hon. James P. Finstrom P.O. Box 276 Jefferson, Texas 75657

State’s Counsel at trial and on appeal:

Hon. Angela Smoak, County Attorney 102 West Austin Street Jefferson, Texas 75657

Trial Judge:

Hon. Lauren Parish, Judge, 115th Judicial District Court Marion County, Texas

2 TABLE OF CONTENTS Pursuant to T.R.A.P. 38.1(b) Page

IDENTITY OF PARTIES AND COUNSEL 2

TABLE OF CONTENTS 3

INDEX OF AUTHORITIES 5

STATEMENT OF THE CASE 6

ISSUE PRESENTED 7

ISSUE NO. 1: DOES THE ISSUE WHETHER THE EVIDENCE IS SUFFICIENT TO SUSTAIN THE COURT’S ORDER REVOKING APPELLANT’S PROBATION HAVE MERIT ON APPEAL?

ISSUE NO. 2: DOES THE ISSUE WHETHER THE JUDICIAL CONFESSION OF APPELLANT WHEN HE PLEAD GUILTY AND WAS PUT ON PROBATION IS SUFFICIENT TO SUSTAIN THE JUDGMENT OF THE TRIAL COURT FINDING HIM GUILTY AFTER HIS PLEA OF GUILTY HAVE MERIT ON APPEAL?

ISSUE NO. ONE (Restated) 7

DOES THE ISSUE WHETHER THE EVIDENCE IS SUFFICIENT TO SUSTAIN THE COURT’S ORDER REVOKING APPELLANT’S PROBATION HAVE MERIT ON APPEAL?

SUMMARY OF THE ARGUMENT 7

ARGUMENT (Issue No. 1) 8

3 ISSUE NO. TWO (Restated) 8

DOES THE ISSUE WHETHER THE JUDICIAL CONFESSION OF APPELLANT WHEN HE PLEAD GUILTY AND WAS PUT ON PROBATION IS SUFFICIENT TO SUSTAIN THE JUDGMENT OF THE TRIAL COURT FINDING HIM GUILTY AFTER HIS PLEA OF GUILTY HAVE MERIT ON APPEAL?

SUMMARY OF THE ARGUMENT 8

ARGUMENT (Issue No. 2) 9

PRAYER 9

CERTIFICATE OF SERVICE 10

4 INDEX OF AUTHORITIES Pursuant to T.R.A.P. 38.1(c)

Cases: Page

Burns v. State, 835 S.W.2d 733 7 (Tex.App.—Corpus Christi 1992, p.d.r. ref.)

Dinnery v. State, 592 S.W.2d 343 (Crim.App. 1970) 8

Statutes:

All references to Texas statutes, rules, etc. are to the latest edition published by West Publishing Company, unless otherwise noted.

5 STATEMENT OF THE CASE Pursuant to T.R.A.P. 38.1(d)

Appellant waived indictment and entered a plea of guilty on

March 21, 2005, to an information alleging the third degree felony

offense of possession of a controlled substance on March 11, 2005,

and received a ten (10) year sentence in the Institutional Division of

the Texas Department of Criminal Justice probated for 10 years and

a $2000.00 fine. (CR 4-10) On June 17, 2014, Appellee filed State’s

Petition to Revoke Probated Judgment. (CR 16-17) On October 27,

2014, Appellant entered a plea of true to alleged violations nos. 1 and

2 and not true to alleged violation no. 4 and the Court heard evidence

on the State’s motion and revoked Appellant’s probation, sentencing

him to 10 years in the Institutional Division of the Texas Department

of Criminal Justice. (CR 19-20) The court found that the allegation

Nos. 1, 2 and 4 were true. (CR 19-20) Appellant gave timely pro se

notice of appeal on November 10, 2014. (CR 21) Counsel was

appointed to represent Appellant on appeal on November 17, 2014.

(CR 22) Counsel for Appellant believes that the appeal of this cause

is without merit and submits this brief with his motion to withdraw.

6 Counsel for Appellant is sending a copy of this Brief and a copy

of the clerk’s transcript and court reporter’s record to Appellant the

date this Brief is filed.

ISSUES PRESENTED Pursuant to T.R.A.P. 38.1(e)

ISSUE NO 1: DOES THE ISSUE WHETHER THE EVIDENCE IS SUFFICIENT TO SUSTAIN THE COURT’S ORDER REVOKING APPELLANT’S PROBATION HAVE MERIT ON APPEAL?

ISSUE NO. 2: IS THE JUDICIAL CONFESSION OF APPELLANT WHEN HE PLEAD GUILTY AND WAS PUT ON PROBATION SUFFIENT TO SUSTAIN HIS PLEA OF GUILTY.

ISSUE NO. ONE

(Restated)

DOES THE ISSUE WHETHER THE EVIDENCE IS SUFFICIENT TO SUSTAIN THE COURT’S ORDER REVOKING APPELLANT’S PROBATION HAVE MERIT ON APPEAL?

SUMMARY OF THE ARGUMENT Pursuant to T.R.A.P. 38.1(g)

Appellant discerns no potential issues to be raised on the

appeal of this cause other than the sufficiency of evidence to support

the judgment of the trial court finding Appellant guilty and probating

his sentence and the sufficiency of the evidence to support the order

of the trial court revoking his probation. Neither have merit under the

7 authorities hereinafter set forth. No other issues were raised in the

record.

ARGUMENT

Pursuant to T.R.A.P. 38.1(h) Issue No. 1

Appellant entered pleas of true to two of the violation of

probation alleged against him. These alone are sufficient to sustain

the trial court’s order revoking probation. See Burns v. State, 835

S.W.2d 733 (Tex.App.—Corpus Christi 1992, p.d.r. ref.) There are no

other issues legal presented in connection with the revocation

proceeding which might arguably result in reversal of the trial court’s

order revoking probation.

ISSUE NO. TWO

IS THE JUDICIAL CONFESSION OF APPELLANT WHEN HE PLEAD GUILTY AND WAS PUT ON PROBATION SUFFIENT TO SUSTAIN HIS PLEA OF GUILTY.

See summary presented for Issue No. 1 above.

8 ARGUMENT

Pursuant to T.R.A.P. 38.1(h) Issue No. 2

It has long been the law that a judicial confession standing

alone is sufficient to support a finding of guilty and assessment of

punishment after a plea of guilty. See Dinnery v. State, 592 S.W.2d

343 (Crim.App. 1970) No other issues were preserved for appeal in

connection with Appellant’s plea of guilty as part of a plea bargain.

PRAYER

Upon the issues presented, counsel for Appellant, Jerry Leon

McNeil, is of the opinion that Appellant’s appeal is without merit in this

case prays that he be permitted to withdraw in this case and for such

other and further relief to which he may be entitled.

Respectfully submitted,

_/s/James P. Finstrom____ James P. Finstrom Counsel for Appellant 202 S. Marshall, P.O. Box 276 Jefferson, Texas 75657 903-665-7111 Fax: 903-665-7167 Texas Bar #07038000

9 CERTIFICATE OF SERVICE

I certify that I have delivered a true copy of this brief to Hon. Angela Smoak, counsel for the State, and to Appellant by United States mail, first class postage prepaid, at the Titus County jail, 304 S. Van Buren, Mt. Pleasant, Texas 75455, on this 15th day of January, 2015.

__/s/James P. Finstrom___ James P. Finstrom