Nicole Dawn Holland v. State

Opinion

ACCEPTED

03-14-00577-CR

5384098

THIRD COURT OF APPEALS

N O . 03-14-00577-CR AUSTIN, TEXAS 5/21/2015 3:29:05 PM

JEFFREY D. KYLE

CLERK

I N T H E COURT OF APPEALS OF FILED IN

3rd COURT OF APPEALS

T H E T H I R D DISTRICT OF TEXAS A T AUSTIN AUSTIN, TEXAS 5/21/2015 3:29:05 PM

JEFFREY D. KYLE

Clerk

NICOLE D A W N H O L L A N D , Appellant

T H E STATE OF TEXAS

Appellee

Appeal in Cause No. 41204 in the 424^^^ Judicial District Court of Burnet County, Texas

Brief For Appellee

OFFICE OF DISTRICT ATTORNEY 3 3 ^ and 424^^ JUDICLAL DISTRICTS Wiley B. McAfee, District Attorney P. O. Box 725, Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274 g.bunyard@co.llano.tx.us

By: Gary W. Bunyard

Assistant District Attorney State Bar No. 03353500 ATTORNEY FOR APPELLEE

May 21, 2015

Oral Argument Waived

Identity Of The Parties

Trial Court

Honorable J. Allen Garrett (Plea of Guilty on 06/21/2014 - 33''* Judicial District Community Supervision granted) Burnet County Courthouse Annex (North) 1701 East Polk St., Suite 74 Burnet, T X 78611

Honorable Dan Mills (Hearing on Motion to Revoke 424'^ Judicial District (former) Community Supervision 9/3/2014) Burnet County Courthouse Annex (North) 1701 East Polk St., Suite 74 Burnet, T X 78611

ii

State/Appellee

Peter Keim (Trial Counsel - 6/21/2014) Assistant District Attorney 1701 E. Polk St., Suite 24 Burnet, Texas 78611 (512) 756-5449 State Bar No. 15532500

Robert Blake Ewing (Trial Counsel - 9/3/2014) Assistant District Attorney 1701 E. Polk St., Suite 24 Burnet, Texas 78611 (512) 756-5449 State Bar No. 24076376

Richard S. Crowther (Trial Counsel - 9/3/2014) Assistant District Attorney 1701 E. Polk St., Suite 24 Burnet, Texas 78611 (512) 756-5449 State Bar No. 05174200

Gary W. Bunyard (Appellate Counsel) Assistant District Attorney P. O. Box 725 Llano, Texas 78643 (325) 247-5755 State Bar No. 03353500 g.bunyard@co.llano.tx.us

iii

Appellant

Matthew Rienstra (Trial Counsel - 6/21/2014) P.O. Box 91226 Austin, T X 78709 (512) 476-5588 State Bar No. 16908020

Barton Joseph Vana (Trial Counsel - 9/3/2014) Attorney at Law P.O. Box 398 Burnet, T X 78611 (512) 756-5117 State Bar No. 24084441

Tracy D. Cluck (Appellate Counsel) Attorney at Law 1450 West Hwy. 290, #855 Dripping Springs, T X 78620 (512) 264-9997 State Bar No. 00787254

Nicole Dawn Holland (Appellant) TDCJ #01962247 SID #04906312 Linda Woodman State Jail 1210 Coryell CityRd. Gatesville,TX 76528

iv

Table Of Contents

Page

Index of Authorities vi

Statement of the Case 2

Statement on Oral Argument 3

Response to Issues Presented 4

Statement of the Facts 4

Summary of the Argument and Argument -

Response to Issue No. 1 5 The State agrees that no reversible error exists in the record of this cause and that the appeal herein is frivolous.

Prayer for Relief. 6

Certificate of Word Count 6

Certificate of Service 7

V

Index Of Authorities

Case Law

Anders v. California. 386 U.S. 738, 87 S. Ct. 1396,

18 L.Ed.2nd 492 (1967)

Highv. State. 573 S.W.2d 807 (Tex. Crim. App. 1978)

Pensonv. Ohio. 488 U.S. 75,109 S. Ct. 346, 102 L.Ed.2d 300 (1988)

Constitutions

None cited

Statutes/Rules

Tex. R. App. Proc. 38.1(d)

Tex. R. App. Proc. 38.1(g)

vi

N O . 03-14-00545-CR

I N THE

COURT OF APPEALS

OF T H E T H I R D DISTRICT OF TEXAS A T A U S T I N

NICOLE D A W N H O L L A N D ,

Appellant

V.

TFIE STATE OF TEXAS

Appellee

Appeal in Cause No. 41204 in the 424'^^ Judicial District Court of Burnet County, Texas

Brief For Appellee

To The Honorable Justices Of Said Court:

Now comes the State of Texas, hereinafter called Appellee, and submits this

brief pursuant to the provisions of the Texas Rules of Appellate Procedure in support

of the State's request affirm the judgment of the trial court.

2

statement Of The Case

Appellant has not adequately described the Statement of the Case as it is not

supported by record references. Tex. R. App. Proc. 38.1(d).

Appellant was indicted on March 5, 2013, for the offense of Driving While

Intoxicated with a Child Passenger on November 6, 2011. CR Vol. 1 Page 4. On

June 21, 2013, Appellant entered into a negotiated plea of Guilty to the offense

charged in exchange for the State recommending punishment of 2 years

confinement in the State Jail Division of the Texas Department of Criminal Justice

and a fme of $1,000, with both the fine and term of imprisonment to be probated for

a period of 3 years. CR Vol. 1 Pages 17 - 19; 21 - 22. On September 3,2014, at the

conclusion of a hearing, the trial court revoked Appellant's community supervision

and sentenced Appellant to serve two years confinement in the State Jail Division of

the Texas Department of Criminal Justice and imposed a fine of $1,000. RR Vol.

3 Page 31; CR Vol. 1 Pages 37 - 38. Appellant filed her Motion for New Trial on

September 8, 2014. CR Vol. 1 Pages 43 - 45. Notice of Appeal was then dmely

filed on September 8, 2014. CR Vol. 1 Page 46.

3

statement on Oral Argument

The undersigned waives Oral Argument. The undersigned does not believe

that Oral Argument will be beneficial for this case for the reason that the issues are

straight forward and lack any novel or complex nuances. Should the Court believe

that Oral Argument will assist the Court in any way, the undersigned will

accommodate the Court.

4

R e s p o n s e To i s s u e s Presented

The State agrees that no reversible error exists in the record o f this

cause and that the appeal herein is frivolous.

Statement Of Tite Facts

Appellant has accurately described the facts o f this case as the facts are not

supported by record references. Tex. R. App. Proc. 38.1(g).

5

Summary Of The Argument and Argument on R e s p o n s e to i s s u e No. i

The State agrees that no reversible error exists in the record of

this cause and that the appeal herein is frivolous.

Appellant seeks to appeal her conviction and sentence. Appellant's appellate

counsel describes various arguable grounds for appeal and explains why such

grounds do not support a finding of reversible error. The State of Texas has fully

reviewed the record and agrees that there was no reversible error committed in the

trial proceedings and that the appeal thereof is frivolous. See Anders v. California.

386U.S. 738, 87 S. Ct. 1396,18 L.Ed.2nd 492 (1967); Pensonv. Ohio. 488U.S. 75,

109 S. Ct. 346, 102 L.Ed.2d 300 (1988); and High v. State. 573 S.W.2d 807 (Tex.

Crim. App. 1978).

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellee prays the Court deny

the relief sought in Appellant's appeal and affirm the judgment and sentence of the

trial court.

Respectfully submitted,

OFFICE OF DISTRICT ATTORNEY 33^^ and 424'^ JUDICIAL DISTRICTS Wiley B. McAfee, District Attorney P. O. Box 725 Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274

^Sar^^^X^r'^BunySo Assistant District Attorney State Bar No. 03353500 ATTORNEY FOR APPELLEE

C E R T I F I C A T E OF WORD C O U N T

This is to certify that the pertinent portion of this brief contains 223 words printed in Aldine401 BT 14 font according to the WordPerfect™ X7 word count tool.

7

C E R T I F I C A T E OF SERVICE

This is to certify that a true copy of the above and foregoing instrument, together with this proof of service hereof, has been forwarded by EServe and by email on the 21st day of May 2015, to Mr. Tracy D. Cluck, Attorney for Appellant, at tracy@tracyclucklawyer.com.

^C-^^xy ^^Spunyai^^

Assistant District Attorney