ACCEPTED 12-14-00245-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 1/12/2015 1:43:29 PM CATHY LUSK CLERK
NO. 12-14-00245-CR
FILED IN IN THE COURT OF APPEALS 12th COURT OF APPEALS TYLER, TEXAS 1/12/2015 1:43:29 PM TWELFTH COURT OF APPEALS DISTRICT CATHY S. LUSK Clerk
TYLER, TEXAS ______________________________________________________________________________
JUSTIN CHRISTIAN Appellant
V.
STATE OF TEXAS State _______________________________________________________________________________
BRIEF OF APPELLANT, JUSTIN CHRISTIAN _______________________________________________________________________________
LAW OFFICE OF ALLEN W. ROSS P.O. BOX 528 JACKSONVILLE, TEXAS 75766 TELEPHONE: (903) 589.7852 TELEFAX: (903) 357.4375
ORAL ARGUMENT NOT REQUESTED:
____________________________________ ALLEN W. ROSS State Bar No. 00788324 ATTORNEY FOR APPELLANT TABLE OF CONTENTS
NAMES OF ALL PARTIES ......................................................................................................... i INDEX OF AUTHORITIES ........................................................................................................ ii INDEX OF ABBREVIATIONS .................................................................................................. ii PRELIMINARY STATEMENT OF THE NATURE OF THE CASE .................................... 3 STATEMENT OF POINTS OF ERROR .................................................................................. 5 STATEMENT OF FACTS ........................................................................................................... 5 BRIEF OF THE ARGUMENT .................................................................................................... 6 ARGUMENT AND AUTHORITY ........................................................................................... 6 PRAYER FOR RELIEF .............................................................................................................. 15 CERTIFICATE OF SERVICE ................................................................................................... 16 CERTIFICATE OF WORD COUNT...................................................................................... 17 NAMES OF ALL PARTIES
The parties to this action are:
Appellant JUSTIN CHRISTIAN TDCJ-ID #01951215 Bradshaw State Jail PO Box 9000 Henderson, TX 75693
Appellant’s Counsel ALLEN W. ROSS Attorney at Law PO Box 528 Jacksonville, TX 75766
State of Texas RACHEL PATTON Cherokee County District Attorney West 6th Street Rusk, Texas 75785
The parties' counsel before the Trial Court:
Appellant State of Texas STEN LANGSJOEN RACHEL PATTON Attorney at Law Cherokee County District Attorney PO Box 539 West 6th Street Tyler, TX 75710-0539 Rusk, Texas 75785
Page i INDEX OF AUTHORITIES
Cases Andres v. California, 386 U.S. 738 (1967) ......................................................................... 5 Bennett v. State, 282 (Tex.Crim.App.1972) .................................................................. 12 Cardona v. State, 493-94 (Tex.Crim.App.1984) ......................................................... 12 Cobb v. State, 874 (Tex.Crim.App.1993) ....................................................................... 13 Ex Parte Bratchett, 513 S.W. 2d 851, 853 (Tex. Crim. App. 1974) ......................... 12 Gainous v. State of Texas, 436 S.W.2d 137 (Tex. Crim. App. 1969) ......................... 5 Garrett v. State, 174 (Tex.Crim.App. [Panel Op.] 1981) .......................................... 13 Jenkins v. State, 437 (Tex.Crim.App.1983) ................................................................... 12 Langford v. State, 739 (Tex.Crim.App.1979) ............................................................... 13 Ross v. State, 403 (Tex.Crim.App.1975) ........................................................................ 13 Saxton v. State, 912 n. 3 (Tex.Crim.App.1991) ........................................................... 13 Taylor v. State, 179 (Tex.Crim.App. [Panel Op.] 1980)............................................ 13 Wilson v. State, , 934 (Tex.App.--Dallas 1983, no pet.) .......................................... 12 Statutes Tex. Code Crim. Proc., Art 1.141 ........................................................................................ 6 Tex. Code Crim. Proc., Art 21.21 ........................................................................................ 6 Tex. Code Crim. Proc., Art 21.22 ........................................................................................ 6 Tex. Code Crim. Proc., Art. 42.01........................................................................................ 8 Tex. Penal Code, §12.34 ........................................................................................................ 7 Tex. Penal Code, §22.01(b)2)(B) ......................................................................................... 6
INDEX OF ABBREVIATIONS
Clerk’s Record .............................................................................................................................CR
Reporter’s Record ..................................................................................................................... RR
Page ii NO. 12-14-00245-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
______________________________________________________________________________
STATE OF TEXAS State
_______________________________________________________________________________
BRIEF OF APPELLANT, JUSTIN CHRISTIAN
TO THE HONORABLE JUSTICES OF SAID COURT:
NOW COMES JUSTIN CHRISTIAN, Appellant in the above-styled and
numbered cause and Appellant in the Trial Court, and, by and through
appointed Counsel, files this his Brief of Appellant and respectfully reports to
the Twelfth Court of Appeals that no errors were found to have been
Page 1 committed by the Trial Court relating to pretrial and evidentiary rulings during
trial in Cause Number 19062 in the 369th Judicial District Court of Cherokee
County, Texas, before the Honorable Judge Bascom Bentley, Judge Presiding.
Following a review of the pre-trial proceedings, trial and judgment, no
error, that was more than harmless error, was found that could be presented
for review to the appellate court, and therefore, appointed counsel seeks to
withdraw here-from and has invited response hereto from the Appellant.
Page 2 PRELIMINARY STATEMENT OF THE NATURE OF THE CASE
The following dates are applicable to the case history in this matter:
On February 14, 2014, the State of Texas filed an information alleging
the offense of Assault Family Violence – Impeding Breath a 3rd degree felony.
Said offense was assigned the trial cause number 19062 (CR: pg. 5-6).
On February 18, 2014 Appellant, represented by counsel, waived
indictment, to the felony offense of Assault Family Violence – Impeding
Breath (CR: pg. 4).
Further, On February 18, 2014, Appellant and his trial counsel entered
into a plea recommendation where by the Appellant was sentenced to ten
(10) years in the Texas Department of Criminal Justice with said sentence
being suspended and probated for a period of seven (7) years (CR: pg. 7-8).
On February 18, 2014, the trial court certified that the Appellant did not
have a right to an appeal because Appellant did waive his right to appeal
concerning all issues which occurred at his plea hearing (CR: pg. 9-10).
Page 3 At the conclusion of the plea hearing, the trial court entered judgment
in conformity with the plea agreement (CR: pg. 11-12), and did further enter
an Order Imposing Conditions of Community Supervision (CR: pg. 13-17).
On May 29, 2014, the State of Texas (Appellee herein), filed a Motion to
Revoke Community Supervision alleging that the Appellant had violated his
community supervision on thirty-one (31) occasions, and the trial court
issued a capias for the arrest of the Appellant (CR: 24-38).
On June 24, 2014, Appellant was arrested on the capias of the trial court
(CR: pg. 39).
On June 26, 2014, the Honorable Sten Langsjoen, Attorney at Law, was
appointed as trial counsel for the Appellant (CR: pg. 40).
On August 8, 2014 a hearing was held in the 369th Judicial District Court
with the Honorable Bascom Bentley, III., presiding (CR: pg. 45-46; RR. Vol. II).
At the conclusion of the hearing, the probation of the Appellant was revoked
by the trial court and the Appellant was sentenced to ten (10) years in the
Texas Department of Criminal Justice, Institutional Division (CR: pg. 45-46;
RR. Vol II, pg. 126).
Page 4 On August 26, 2014, Appellant filed his notice of appeal. (CR: pg. 49).
STATEMENT OF POINTS OF ERROR
No points of error were identified following review of the record, and this
Brief is submitted in compliance with the tenants of Andres v. California, 386
U.S. 738 (1967) and Gainous v. State of Texas, 436 S.W.2d 137 (Tex. Crim. App.
1969).
STATEMENT OF FACTS
On August 8, 2014, a hearing was conducted to determine whether or
not the Appellant had violated the terms and conditions of this community
supervision. At the conclusion of the hearing, the trial court did find that some
but not all of the terms of community supervision had, in fact, been violated.
The trial court revoked the community supervision of the Appellant and
sentenced him to ten (10) years imprisonment (CR: pg. 45-46; RR. Vol II, pg.
126).
Page 5 BRIEF OF THE ARGUMENT
Following a review of the entire record, no error, that was more than
harmless error, was found that could be presented for review to the appellate
court, and therefore, appointed counsel seeks to withdraw here-from and has
invited response hereto from the Appellant.
ARGUMENT AND AUTHORITY
Waiver of Grand Jury & Indictment:
Appellant waived indictment on February 18, 2014 (CR: pg 4). Tex. Code
Crim. Proc., Art 1.141. The waiver appears to be valid on its face and purports
to bear the signature of the Appellant and his counsel at trial.
The information appears to be based upon a valid complaint and
carries the signature of the affiant, Lois Garner and is sworn to before a
Notary Public of the Texas of Texas whose notary commission appears to be
valid (CR: pg. 5). Tex. Code Crim. Proc., Art 21.22. Further, the information
appears to be valid upon its face. Tex. Code Crim. Proc., Art 21.21. The
language of the information is consistent with the offense alleged in the
Texas Penal Code. Tex. Penal Code, §22.01(b)2)(B).
Page 6 No challenged was made to the form or the substance of the
information leaving no matter to appeal.
Original Sentence of the Trial Court
The original sentence of ten (10) years is within the range of
punishment for a third degree felony. Texas Penal Code, §12.34.
The suspension of sentence for this offense was within the discretion
of the trial court and not otherwise prohibited by law.
The trial court followed the plea recommendation made by the
Appellant and the Appellee.
Revocation Pre-Trial Motions
No pretrial motions were filed on behalf of Appellant. The record
contains no rulings on any motions and the reporter’s record does not reflect
that any motions were presented to or ruled on by the Trial Court. Nothing,
therefore, is preserved for review.
Hearing on Motion to Revoke Probation:
On August 8, 2014, a hearing was held concerning the Appellee’s
Motion to Revoke Community Supervision. At this hearing, Appellant was
Page 7 represented by counsel who called witnesses in defense of the motion.
However, at the conclusion, the trial court found that allegations 5-22 of the
State’s Motion to Revoke Probation were proven and that the Appellant had
violated his community supervision. The trial court revoked the probation of
the Appellant.
Judgment:
The review of the judgments in this cause (CR. Pg. 11-12; 45-46), reveals
that both judgments appear to be facially valid. Tex. Code Crim. Proc., Art.
42.01.
Motion to Revoke Hearing:
Because the trial court found allegations 5 through 22 to have been
proven by the State, this brief will only review the factual issues as presented
by the State in the hearing on the motion to revoke relevant to those
allegations.
Page 8 The State of Texas relied upon the following witnesses:
(1) Simone Silvers who testified to the following:
Topic of Testimony RR Vol II, Page Line She is the probation officer assigned to the 4 14-17 Appellant (JC) JC was placed on probation on Feb 18, 2014 4 23-25 5 1 She read the terms and condition of 5 7-8 probation to JC on Feb 18, 2014 She met with him one time on March 18, 4 18-20 2014 for a regular office visit On March 18, 2014 JC was drug tested and 6 1-18 acknowledged by written instrument that he 7 1-17 had used various illegal drugs since being 18 8-15 placed on probation (State’s exhibit 1) JC admitted to using illegal drugs on March 7 20-24 12, 2014 JC did not report on April 14, 2014 8 6-11 That although she had telephone contact 9 6-18 with JC, he did report again (for April and 21 11-13 May) During a telephone call in May 2014, JC admitted that he was selling drugs out of a 11 22-25 hotel room. JC did not complete an Anger Management 15 1-9 Class
Page 9 The Appellant called himself to testify at the hearing and he testified
to the following:
Topic of Testimony RR Vol II, Page Line The information contained in State’s exhibit 1 96 1-3 concerning his admitted drug use was true. The allegations concerning his sale of drugs 96 8-25 From Feb 2014 through May 14 were true 97 1-6 While on probation he was using and selling 105 22-25 drugs. 106 1-5
Following presentation of evidence and argument of counsel, the court
found the Appellant had violated allegations 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16,
17, 18, 19, 20 (RR: Vol. 2, pg. 123, Ln. 10-15). A review of the evidence reflects
that the State presented sufficient evidence on the allegations found to be true
to support the Trial Court’s findings. No error was found for review.
Punishment Phase:
The court offered both the Appellant and Appellee the opportunity to
put on more evidence concerning punishment, but each declined (RR. Vol. 2,
pg. 124, Ln. 14-19).
Page 10 The sentence imposed was within the range available to the Trial Court
and was supported by the evidence. There is no error available to the Court
for review.
Assistance of Counsel:
Appellant was appointed counsel on May 16, 2013. CR, at p. 8.
At all times during the proceedings, Appellant had the benefit of counsel.
The Motion to Revoke appears valid on its face. No objections were
lodged as to its contents. No error is preserved for review.
Appellant’s counsel participated in all aspects of the hearing from
opening and closing statements to bench conferences. The Reporter’s Record
is replete with instances of appellant’s counsel conducting direct and cross
examination of witnesses, objections (RR: Vol. 2). Appellant’s counsel argued
evidentiary motions and moved to direct the verdict with regard to certain
allegations not proved when the state rested its case (RR., Vol. 2, pg. 38-41).
Appellant’s trial counsel participated in closing argument. (RR: Vol. 2, pg. 115-
118).
Page 11 Reviewing the record in its entirety, counsel provided “reasonably
effective assistance” to Appellant (Ex Parte Bratchett, 513 S.W. 2d 851, 853 (Tex.
Crim. App. 1974)), and there does not appear to be grounds for review for
ineffective assistance of counsel.
Standard of Review:
Probation may be revoked upon a finding that an appellant has
violated the terms of his or her probation. Wilson v. State, 934 (Tex.App.--
Dallas 1983, no pet.).
Appellate review of a probation revocation proceeding is limited to a
determination of whether the trial court abused its discretion. Bennett v.
State, 282 (Tex.Crim.App.1972); Wilson, 645 S.W.2d at 934. To determine
whether the trial court has abused its discretion, the court must look to
whether the State has met its burden of proof. See Cardona v. State, 493-94
(Tex.Crim.App.1984).
The State meets its burden when the greater weight of the evidence
before the court creates a reasonable belief that the probationer violated a
condition of probation. Jenkins v. State, 437 (Tex.Crim.App.1983),
Page 12 disapproved on other grounds by Saxton v. State, 912 n. 3
(Tex.Crim.App.1991). In other words, the State's burden of proof in
a probation revocation hearing is by a preponderance of the evidence. Cobb
v. State, 874 (Tex.Crim.App.1993).
In revocation proceedings, the trial judge is the sole trier of the facts, the
credibility of the witnesses, and the weight to be given the testimony. Taylor
v. State, 179 (Tex.Crim.App. [Panel Op.] 1980) Ross v. State, 403
(Tex.Crim.App.1975). It is the trial court's duty to judge the credibility of the
witnesses and to determine whether the allegations in the motion to revoke
are true or not. Langford v. State, 739 (Tex.Crim.App.1979). The Appellate
Court must therefore view the evidence presented at
the revocation proceeding in a light most favorable to the trial court's ruling.
Garrett v. State, 174 (Tex.Crim.App. [Panel Op.] 1981).
Summary:
Following review and consideration of pre-trial and trial activities
before the Trial Court, there are no points of reversible error found.
Page 13 Notice to Appellant:
Counsel hereby notifies Appellant that this Brief requests that the
appeal be found to be frivolous and be dismissed. Along with the Brief, a
Motion to Withdraw has been filed requesting permission of the appellate
court for Counsel to withdraw from this case that if granted, would leave
Appellant representing himself as a pro se litigant.
Counsel further advises Appellant that Appellant has a right to prepare
and file a pro se Brief, meaning that Appellant can prepare and file with the
appellate court his own pro se Brief, under his own signature, pointing out to
the appellate court any errors or problems he sees in the record or any reason
why Appellant feels the appeal is not frivolous.
Counsel also advises Appellant of Appellant’s right to review the record
before filing a pro se Brief.
If Appellant desires to file a pro se Brief with the appellate court, then
Appellant should immediately file a Motion for Pro Se Access to the Appellate
Record with the appellate court. In the cover letter used to send Appellant a
copy of this Brief, a form Motion for Pro Se Access to the Appellate Record is
Page 14 enclosed for this purpose. The form motion lacks only Appellant’s signature
and the date, and informs Appellant that, in order to preserve and pursue his
right to review the appellate record, if Appellant chooses to invoke it,
Appellant must sign and date the form motion and send it on to the court of
appeals within ten days of the date of the letter used to send this information
to Appellant.
Appellant is advised that if he presents a pro Se Brief or Motion for Pro
Se Access to the Appellate Record to the appellate court [Twelfth Court of
Appeals, 1517 West Front Street, Suite 354, Tyler, Texas 75702, Attention:
Cathy Lusk, Clerk], then he must also 1) provide a copy of his Brief to Counsel
[Sten Langsjoen, P.O. Box 539, Tyler, Texas 75710]; 2) provide a copy of his
Brief to the State [Rachel Patton, P.O. Box 450, Rusk, Texas 75785]; and 3)
include in his Brief a written statement (“Certificate of Service”) that he sent
copies of his Brief and/or Motion to Counsel and to the State.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Counsel for Appellant, JUSTIN
CHRISTIAN, respectfully requests and prays that this matter be considered by
Page 15 the Court and that appointed counsel be allowed to withdraw here-from and
that this appeal be dismissed following the Appellant’s opportunity to respond
hereto; and further, Counsel respectfully requests and prays for any and all
other relief, at law or in equity, to which he may show himself justly entitled.
Respectfully submitted,
______________________________________ ALLEN W. ROSS Attorney for Appellant P.O. Box 528 Jacksonville, Texas 75766 Telephone: (903) 683.2454 Telefax: (866) 576.5317 Email: allen@arossatty.com TBA # 00788324
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was delivered by
hand-delivery to the District Attorney, Cherokee County, Texas, and to the
Appellant, on January 12, 2015.
______________________________________ ALLEN W. ROSS
Page 16 CERTIFICATE OF WORD COUNT
I, ALLEN W. ROSS, do hereby certify that the foregoing Appellant’s Brief for Justin Christian does comply with the requirements for a brief preparation, to- wit:
FONT & Size: SEGOE UI, 14 pt COUNT: 2873 words ______________________________________ ALLEN W. ROSS
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