Kimeele Carolyn Black-Thomas v. State

Opinion

NO. 07-14-00434-CR

FILED IN

IN THE COURT OF APPEALS 7th COURT OF APPEALS AMARILLO, TEXAS

FOR THE SEVENTH DISTRICT OF TEXAS5/8/2015 2:06:29 PM AT AMARILLO VIVIAN LONG CLERK

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KIMEELE CAROLYN BLACK-THOMAS V.

THE STATE OF TEXAS

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ON APPEAL FROM THE 100th DISTRICT COURT OF CARSON COUNTY; HONORABLE STUART MESSER PRESIDING JUDGE CAUSE NO. 4,889

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APPELLANT KIMEELE CAROLYN BLACK-THOMAS'

BRIEF

HARLEY CAUDLE State Bar No. 24065026 1017 W. 10TH AMARILLO, Texas 79101 harley@hcaudlelaw.com (806) 331-7785 (806) 331-7786 - fax

ATTORNEY FOR APPELLANT KIMEELE CAROLYN BLACK-THOMAS

NO. 07-14-00434-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO

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KIMEELE CAROLYN BLACK-THOMAS V.

THE STATE OF TEXAS

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ON APPEAL FROM THE 100th DISTRICT COURT

OF CARSON COUNTY;

HONORABLE STUART MESSER

CAUSE NO. 4,889

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APPELLANT KIMEELE CAROLYN BLACK-THOMAS’

BRIEF

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TO THE HONORABLE JUSTICES OF THE AMARILLO COURT OF APPEALS:

Appellant's Counsel, Harley Caudle, respectfully submits

this brief in response to the trial court's judgment which

finally adjudicated Appellant KIMEELE CAROLYN BLACK-THOMAS

guilty on the offense of Possession of Marijuana, a state jail

felony, and assessed a sentence of twenty months in the Texas

Department of Criminal Justice State Jail Division.

For convenience, Appellant, KIMEELE CAROLYN BLACK-THOMAS

will be referred to as Appellant; and the State of Texas as

Appellee. The transcript of the Final Hearing will be referenced by page number.

STATEMENT OF THE CASE

The Appellant was charged by Indictment by the District Attorney's Office for the one hundredth Judicial District for the state jail felony offense of "Possession of Marijuana".

Appellant filed an Application for Community Supervision and based upon a Plea Bargain Recommendation from the District Attorney's office, Appellant pled guilty to the offense and was given deferred adjudication and placed on community supervision for a term of three years. Appellant waived any rights to appeal of the plea in each case.

The State filed a Motion to Adjudicate alleging that Appellant had violated numerous conditions of probation.

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On December 5, 2014 a hearing was held to determine if Appellant had violated the conditions of community supervision and then to determine the punishment for Appellant. The hearing was heard by the Honorable Judge Stuart Messer of the 100th Judicial District of Texas.

The Court heard evidence as presented by the State of Texas represented by the 100th Judicial District Attorney Luke Inman and from Appellant as represented by counsel, Erin Mulanax. (RR/1-75) At the conclusion of the hearing, after Appellant pled true to alleged violations contained in the Motion to Adjudicate, the Court found that Appellant had in fact violated those provisions of appellant's probation order as alleged in the Motion to Revoke Probation.(RR/10, 77).

After considering evidence and argument, the Court ordered that, having been found to have violated her community supervision, Appellant be finally adjudicated guilty of the state jail felony offense of Possession of Marijuana and that Appellant be sentenced to twenty months in the Texas Department of Criminal Justice State Jail Division.(RR/77).

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ISSUES PRESENTED

Issue 1: Actual Innocence of the offense for which Appellant was found guilty.

Issue 2: Ineffective Assistance of Counsel at any stage of proceedings.

Issue 3: Severity of the Punishment

STATEMENT OF FACTS

Appellant appeals the 100th Judicial Court's sentencing of Appellant. The Court determined based upon the evidence that Appellant had in fact violated conditions 7, 8 and 10 of appellant's probation order as alleged in the Motion to Revoke. (RR/10, 77-78).

Appellant admitted to a violation of conditions 7, 8 and 10(RR/10).

Mark WHite of the 100th District Community Supervision and

Corrections Department was the only witness called by the State (RR/11). He testified that he conducted the probation intake on June

4, 2012 when the Appellant pled guilty to the felony offense of

Possession of Marijuana, was placed on deferred adjudication and was

placed on community supervision for a period of three years.

(RR/13-15). He then testified that Appellant had been noncompliant

with her conditions of probation (RR/17-21). He testified that

Appellant had failed to report in writing, failed to make required

payments and failed to complete required community service.

(RR/17-21).

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SUMMARY OF THE ARGUMENT

After an exhaustive review of the trial court's transcript and the record in this cause, Appellant could raise several points for appeal including, (1) that there was insufficient evidence to convict her or to revoke her community supervision, (2) that her attorney at the original plea, or her attorney at the adjudication hearing was ineffective; and (3) that the twenty month sentence was inappropriate.

A thorough examination of the transcript, exhibits, and case law regarding the issues reveals that the Court's decisions on the adjudication portion of the case are backed by reasonable evidence and are not appealable and cannot be reviewed by this Appellate Court. Further, the law, and

evidence will show that Appellant's counsel was not ineffective. Finally, the trial court was within his discretion in sentencing the appellant within the range of

punishment.

ARGUMENT

ANDERS BRIEF IN SUPPORT OF MOTION TO WITHDRAW

Now comes Harley D. Caudle, Court appointed counsel

for KIMEELE CAROLYN BLACK-THOMAS, Appellant in this appeal, and

files this brief in support of his Motion to Withdraw. In

support of counsel's diligent effort to find a meritorious ground for appeal counsel would show the following:

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ISSUE 1.

ANY ISSUES CONCERNING THE ORIGINAL PLEA OR THE ADJUDICATION ARE UNABLE TO BE APPEALED

To the extent that appellant now questions the evidence underlying the evidence of her guilt for the original

charge, established law bars appellate courts from considering the matter. Pena, Jr. V. State (No. 07-03-0511-

CR 7th Court of Appeals August 2005); Manuel V. State, 994 S.W. 2d 658, 661-662 (Tex. Crim. App. 1999). Appellant waived her right to appeal any issues which occurred at the time of his plea of guilty on June 4, 2012. (CR).

On reviewing the testimony and the findings made by the Court, it is clear that Appellant had failed to report in writing, failed to make required payments and failed to perform required community service, all being violations of Appellant's community supervision. Thus, the Court did not err in finding that Appellant

had violated provision 2 (RR/10, 77). If any conditions of probation have been violated by Appellant, then the court has the right to proceed to final adjudication and sentencing.

ISSUE 2.

INEFFECTIVE COUNSEL AT ANY LEVEL OF PROCEEDINGS BEFORE THE COURT.

Appellant may wish to urge ineffective assistance of

counsel for her trial counsel at both the original plea

hearing, and at the motion to adjudicate hearing. Said

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complaint must come from actions of appellant's counsel at

the respective hearings. This court must evaluate any claim of ineffectiveness of counsel under the standard

enunciated in Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W. 2d 770 (Tex. Crim. App. 1999); Calloway v. State, (No. 05-03-00927 5th Court of Appeals September 2005). To

prevail on his claim, appellant must show (1) counsel's performance

fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. The review of counsel's performance should be highly

deferential, and it is presumed that counsel provided reasonable

assistance. Bone v. State, 11 S.W. 3d 828, 833 (Tex. Crim. App.

2002) Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Id. At 836. When the record is silent regarding counsel's

reasons for his conduct, the court should defer to counsel's decisions if there is at least the possibility that the conduct could

have been legitimate trial strategy. Calloway, at 2.

In the case at hand, the record reflects that Appellant did not raise an objection of his trial counsel's assistance at the time of

the original plea, and that she waived any appealable issues at the

time of the plea hearing. Further, she at no time raised an objection to any of her counsel's actions at the time of her hearing on the

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State's motion to adjudicate. From the face of the proceedings,

Appellant's counsel on the Motion to adjudicate hearing brought forth

all of Appellant's objections, and attempted to show the facts as

Appellant wanted them presented.

At no time was an objection made as to the effectiveness of

Appellant's counsel. It does not appear that given the deference

required that Appellant's counsel failed to meet any other

requirements of effectiveness. Therefore, based upon the above

stated law, the court should find that there is no ineffectiveness

of counsel.

ISSUE 3.

SEVERITY OF THE PUNISHMENT.

In this Court's review of the trial judge's determination of the

appropriate punishment a great deal of discretion is allowed the

sentencing judge. Jackson v. State, 680 S.W. 809 (Tex. Crim. App.

1984) Furthermore, the sentencing judge's decision will not be

disturbed on appeal absent a showing of abuse of discretion and

harm. Jackson v. State, 680 S.W. 809 (Tex. Crim. App. 1984); Hogan v.

State, 529 S.W. 515 (Tex. Cr. App. 1975) It is also the general rule

that as long as a sentence is within the proper range of punishment

it will not be disturbed on appeal. Jackson v. State, 680 S.W. 809

(Tex. Crim. App. 1984); Nunez v. State, 565 S.W. 2d 536 (Tex. Cr. App.

1978)

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In the instant case, Appellant was sentenced to twenty

months imprisonment.

The Appellant's sentence was clearly within the range of

punishment as Appellant was sentenced to twenty months which is less than the maximum punishment of for a state jail felony,

same being twenty four months. Furthermore, the court could consider all of the evidence presented at the adjudication

hearing. In this case the court clearly had evidence to support

his ruling.

CONCLUSION

After reviewing the relevant case law and reviewing the

trial hearing transcript, Counsel cannot find a non-frivolous ground for appeal that would affect the outcome of the trial

court's adjudication and sentence.

PRAYER

Counsel for Appellant requests that the Court allow

counsel to withdraw and provide Appellant additional time to file any additional pro se brief in support of her appeal.

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Respectfully Submitted,

Harley D. Caudle 1017 W. 10th Amarillo, TX 79101 harley@hcaudlelaw.com PH: (806) 331-7785 FAX: (806) 331-7786

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By: /s/ Harley D. Caudle

Harley D. Caudle State Bar No. 24065026 Attorney for Appellant NATHAN ONEAL DAVIS

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing document has been served on the following counsel of record and parties by certified mail, addressed as follows on this 8th day of May 2015:

/s/ Harley D. Caudle Harley D. Caudle Attorney for Appellant KIMEELE CAROLYN BLACK-THOMAS

KIMEELE CAROLYN BLACK-THOMAS TDCJ #01967595 Lucile Plane State Jail Texas Department of Criminal Justice 904 FM 686 Dayton, Texas 77535 Luke M. Inman 100th Judicial District Attorney State Bar No. 24050806 800 West Avenue, Box 1 Wellington, Texas 79095

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Erin Mulanax Stockard, Johnston & Brown 1800 S. Washington, Ste. 115 Amarillo, Texas 79102

CERTIFICATE OF COMPLIANCE

I, Harley D. Caudle, hereby certify that the above and

foregoing Appellant's Brief is 1,896 words in its

completion, signed on this 8th day of May 2015, in accordance

with the rules governing same.

/s/ Harley D. Caudle Harley D. Caudle

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APPENDIX

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INDEX TO APPENDIX

1. Order of Deferred Adjudication

2. Judgment Adjudicating Guilt 3. Trial Court's Certification of Defendant's Right to Appeal 4. Letter to Appellant