ACCEPTED
12-15-00221-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/4/2015 3:49:17 PM
Pam Estes
CLERK
No. 12-15-00221-CR
FILED IN
12th COURT OF APPEALS
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS TYLER, TEXAS 11/4/2015 3:49:17 PM PAM ESTES
Clerk
ROGER WILDERN JACKSON
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the Seventh District Court of Smith County, Texas Trial Cause No. 007-0964-14
ORAL ARGUMENT NOT REQUESTED
Austin Reeve Jackson
Texas Bar No. 24046139
JLawAppeals@gmail.com
112 East Line, Suite 310
Tyler, TX 75702
Telephone: (903) 595-6070 Facsimile: (866) 387-0152
IDENTITY OF PARTIES AND COUNSEL
Attorney for Appellant
Appellate Counsel: Austin Reeve Jackson 112 East Line, Suite 310 Tyler, TX 75702
Trial Counsel: Clifton Roberson 1104 First Place Tyler, TX 75702
Attorney for the State on Appeal
Michael J. West Assistant District Attorney, Smith County 4th Floor, Courthouse 100 North Broadway Tyler, TX 75702
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................. ii TABLE OF CONTENTS .............................................................................................. iii INDEX OF AUTHORITIES ......................................................................................... iv STATEMENT OF THE CASE .......................................................................................2 ISSUES PRESENTED ....................................................................................................2 STATEMENT OF FACTS ..............................................................................................2 PROFESSIONAL EVALUATION OF THE RECORD .................................................3 SUMMARY OF THE ARGUMENT ..............................................................................4 ARGUMENT ..................................................................................................................5 I. THE TRIAL COURT ACTED WITHIN ITS DISCRETION WHEN IT REVOKED APPELLANT'S COMMUNITY SUPERVISION................................................................................................5 A. There Was Legally Sufficient Evidence to Support the Revocation ....................5 B. Appellant's Sentence Was Within the Statutory Range of Punishment ................8 C. Appellant Received Effective Assistance of Counsel...........................................9 CONCLUSION AND PRAYER ...................................................................................10 CERTIFICATE OF COUNSEL ....................................................................................11 CERTIFICATE OF SERVICE ......................................................................................12 CERTIFICATE OF COMPLIANCE ............................................................................12
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INDEX OF AUTHORITIES
UNITED STATES SUPREME COURT:
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ................................... 3, 10, 12
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ................................... 6
Strickland v. Washington, 466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1984) ................................. 9
TEXAS COURT OF CRIMINAL APPEALS:
Bowden v. State, 628 S.W.2d 782 (Tex.Crim.App. 1982) ........................................................ 7
Cardona v. State, 665 S.W.2d 492 (Tex.Crim.App. 1984) ........................................................ 4
Cobb v. State, 851 S.W.2d 871 (Tex.Crim.App. 1993) ........................................................ 7, 9
Flournoy v. State, 589 S.W.2d 705 (Tex.Crim.App. 1979) ........................................................ 8
Gutierrez v. State, 65 S.W.3d 362 (Tex.Crim.App. 2003) .......................................................... 7 n.3
Hernandez v. State, 988 S.W.2d 70 (Tex.Crim.App. 1999) .......................................................... 9
Jackson v. State, 973 S.W.2d 954 (Tex.Crim.App. 1998) ........................................................ 9
Jones v. State, 589 S.W.2d 419 (Tex.Crim.App. 1979) ........................................................ 7
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TEXAS COURT OF CRIMINAL APPEALS (CON’T):
Kniatt v. State, 206 S.W.3d 657 (Tex.Crim.App. 2006) ........................................................ 6
Lyles v. State, 850 S.W.2d 497 (Tex.Crim.App. 1993) ........................................................ 4
Miniel v. State, 831 S.W.2d 310 (Tex.Crim.App. 1992) ........................................................ 9
Moore v. State, 694 S.W.2d 528 (Tex.Crim.App. 1985) ........................................................ 9
Rhodes v. State, 934 S.W.2d 113 (Tex.Crim.App. 1996) ........................................................ 8
Rickles v. State, 202 S.W.3d 759 (Tex.Crim.App. 2006) ........................................................ 4, 7
Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991) ........................................................ 10
TEXAS COURTS OF APPEAL:
Canseco v. State, 199 S.W.3d 437 (Tex.App.—Houston [1st Dist.] 2006) ............................... 4, 6
Castaneda v. State, 135 S.W.3d 719 (Tex.App.—Dallas 2003) ................................................... 8
Duke v. State, 2 S.W.3d 512 (Tex.App.—San Antonio 1999) ............................................. 4
Hays v. State, 933 S.W.2d 659 (Tex.App.—San Antonio 1996) ......................................... 6, 7
Jones v. State, 112 S.W.3d 266 (Tex.App.—Corpus Christi 2003) ...................................... 8
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TEXAS COURTS OF APPEAL (CON’T):
Joseph v. State, 3 S.W.3d 627 (Tex.App.—Houston [14th Dist.] 1999) ................................ 4
Kirk v. State, 949 S.W.2d 769 (Tex.App.—Dallas 1997) ................................................... 9
Lewis v. State, 195 S.W.3d 205 (Tex.App.—San Antonio 2006) ......................................... 4, 6 n.2
Mauney v. State, 107 S.W.3d 693 (Tex.App.—Austin 2003) ................................................... 7
Mayes v. State, 904 S.W.2d 290 (Tex.App.—Fort Worth 1995) ........................................... 3
STATUTES: TEX. CODE CRIM. PROC. art. 26.13 .................................................................... 6 TEX. CODE CRIM. PROC. art. 42.12 .................................................................... 8, 9 TEX. CODE CRIM. PROC. art. 62.102 .................................................................. 8 TEX. PEN. CODE § 12.34 .................................................................................... 8, 9 TEX. R. APP. P. 33.1 .......................................................................................... 8
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No. 12-15-00221-CR
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
ROGER WILDERN JACKSON
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the Seventh District Court of Smith County, Texas Trial Cause No. 007-0964-14
TO THE HONORABLE JUSTICES OF THE COURT:
COMES NOW, Austin Reeve Jackson, attorney for Roger Jackson and files this brief pursuant to the Texas Rules of Appellate Procedure, and would show the Court as follows:
STATEMENT OF THE CASE
Roger Jackson seeks to appeal his conviction and sentence for the felony of-
fense of failing to register as a sex offender. (I CR 107). Mr. Jackson was indicted for this offense last year in the Seventh District Court of Smith County. (I CR 1). Initially, he was placed on five years’ probation following the entry of a plea of “guilty.” (I CR 72). However, in August of this year that probation was revoked and Mr. Jackson was sentenced to serve a term of five years’ confinement. (I CR 107). Sentence was pronounced on 4 August and notice of appeal then timely filed. (I CR 107, 118).
ISSUE PRESENTED
I. THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN REVOKING APPELLANT’S COMMUNITY SUPERVI-
SION.
STATEMENT OF FACTS
In 2014, Appellant, Mr. Roger Jackson, was indicted in Smith County for the felony offense of failing to register as a sex offender. (I CR 1). To this charge he entered a plea of “guilty” in exchange for a recommended sentence of five years’ community supervision. (I CR 53).
In August of this year Mr. Jackson found himself facing multiple alleged vi-
olations of his probation. (I CR 91). To theses allegations he entered a plea of
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“not true” and a hearing was held after which the trial court found that the State had proved the majority of the claimed violations. (I CR 108).
Based on that finding the trial court revoked Mr. Jackson’s community su-
pervision and imposed punishment at five years’ confinement. (I CR 107). Sen- tence was pronounced on 4 August and notice of appeal then timely filed. (I CR 107, 118).
PROFESSIONAL EVALUATION OF THE RECORD In accordance with the requirements of Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), counsel has reviewed the record and determined that, in his professional opinion, the record contains no reversible error or jurisdictional defects. Under circumstances where there appears to be no arguable grounds for reversal on appeal, counsel must present a professional eval- uation of the record supporting this assertion. See Mays v. State, 904 S.W.2d 290, 922-23 (Tex.App.—Fort Worth 1995, no pet.).
SUMMARY OF ARGUMENT
Pursuant to the responsibilities and requirements of the governing code of professional conduct, a thorough review of the record has been made. Counsel’s research has revealed no arguable, non-frivolous grounds that could be advanced in support of a claim that there exists reversible error in the trial, judgment, or sen- tence of Appellant. A review and analysis of any potential issues is herein present-
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ed for the Court excluding any potential issues that, if successfully raised, would produce a result adverse to Appellant’s interests.
ARGUMENT
Standard of Review A trial court’s decision to revoke community supervision is reviewed under an abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006); Cardona v. State, 665 S.W.2d 492 (Tex.Crim.App. 1984). A trial court abuses its discretion if it acts without reference to guiding principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App. 1993). Appellate review con- siders the record in the light most favorable to the trial court’s decision. Duke v. State, 2 S.W.3d 512, 515 (Tex.App.—San Antonio 1999, no pet.).
Proof of a single violation is sufficient to support a revocation. Canseco v.
State, 199 S.W.3d 437, 439 (Tex.App.—Houston [1st Dist.] 2006, pet. ref’d). To prevail then, an appellant must show, looking in the light most favorable to the court’s decision, that the record is insufficient evidence to support each finding of the court. Lewis v. State, 195 S.W.3d 205, 209 (Tex.App.—San Antonio 2006, no pet.); Joseph v. State, 3 S.W.3d 627, 640 (Tex.App.—Houston [14th Dist.] 1999, no pet.).
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I. THE TRIAL COURT ACTED WITHIN ITS DISCRETION WHEN IT REVOKED APPELLANT’S COMMUNITY SU-
PERVISION.
A. There Was Legally Sufficient Evidence to Support the Revocation.
By way of the application filed against him, the State argued that Mr. Jack-
son had committed multiple violations of the terms and conditions of his communi- ty supervision. (I CR 91). Those violations included:
Application Para- Allegation graph II Failure to report as directed III Moving to a new home without notifying probation IV Failure to perform community service hours V Failure to demonstrate a sixth grade reading level VI Failure to timely report contact with law enforcement VII Failure to report in person to his probation officer VIII-X Failure to pay various fees and costs XI Failure to attend sex offender counseling sessions XII Failure to register as a sex offender
(I CR 91-98).
To each allegation Mr. Jackson entered a plea of “not true.” (I CR 101).
Proof of the Allegations If the allegations made against Mr. Jackson were not supported by legally sufficient evidence, Mr. Jackson would have a valid claim that the Court abused its
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discretion in revoking his community supervision. However, the record supports at least some of the findings of “true” made by the Court and a finding of true to any single violation is sufficient to support the revocation. Canseco, 199 S.W.3d at 439.
In his defense Mr. Jackson offered extensive medical evidence that he was hospitalized on several of the dates it was alleged that he had failed to report. (De- fense Exhibit 9). Moreover, there was some evidence that the only reason Mr. Jackson had left Smith County, on at least a couple of instances, was that he had been transported to Dallas by EMS for the purposes of emergency treatment at the VA hospital there. (VI RR 32).
Nonetheless, Mr. Jackson was forced to concede that he did not have any de-
fense to his failure to report on some of the dates alleged, he had made no attempt to do community service, and had not done all that he could have to stay in contact with his probation officer. (VI RR 52-54).
Similarly, Mr. Jackson established that he was on an extremely limited and fixed income that left him little money after paying for necessary expenses such as food and shelter, but it was also established that some months he had been able to pay his required fees and other months he admitted to making no payment at all. (VI RR 91).
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The trail court’s findings reflected the evidence before it as the Court, rec-
ognizing that there existed a legitimate defense to some of the allegations, made only partial findings of “true” as to multiple violations. (VI RR 89-95).
Because a revocation hearing is an administrative, and not a formal, criminal proceeding, the State need only prove its allegations by a preponderance of the ev- idence and not beyond a reasonable doubt. Cobb v. State, 851 S.W.2d at 873. This burden is met if the greater weight of the credible evidence creates a reasonable be- lief that the defendant violated a condition of community supervision. Rickels, 220 S.W.3d at 764. Further, when reviewing the record, an appellate court will indulge all reasonable inferences in the light most favorable to the trial court’s ruling and will not reweight the trial court’s resolution of mitigating and inculpating evidence. Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App. 1982); Jones v. Sate, 589 S.W.2d 419, 421 (Tex.Crim.App. 1979) (panel op); Mauney v. State, 107 S.W.3d 693, 695 (Tex.App.—Austin 2003, no pet).
Applying these rules to the instant record it does not appear that a non-
frivolous argument can be made that the trial court erred in finding that the State failed to prove all of the allegations the trial court found to be true. While there was certainly evidence on which the trial court absolutely could have found an al- legation to not be true, and did in several cases, the trial court, as finder of fact, was free to resolve the issues before it in favor of believing the testimony of the
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State’s witnesses and disbelieving that of Mr. Jackson. See Jones v. State, 112 S.W.3d 266, 28 (Tex.App.—Corpus Christi 2003, no pet.) (holding that the trial court is the sole trier of fact in a revocation proceeding and the lone judge of the credibility of witnesses and the weight to be given testimony). Thus, reviewing the record in the applicable light of that most favorable to the trial court’s decision, it does not appear that the trial court abused its discretion by finding at least some of the allegations against Mr. Jackson to be true and in subsequently revoking his community supervision. See Flournoy v. State, 589 S.W.2d 705, 708 (Tex.Crim.App. [Panel Op.] 1979) (noting that the trial court’s authority to revoke is “substantially absolute”).
B. Appellant’s Sentence Was Within the Statutory Range of Punishment.
Mr. Jackson was charged with the offenses of failing to register as a sex of-
fender, a third degree felony as indicted (I CR 1). TEX. CODE CRIM. PROC. art. 62.102(b)(2). A third degree felony carries a maximum punishment of ten years’ confinement and a fine of up to $10,000. TEX. PEN. CODE § 12.34(a)(b). In this case Mr. Jackson was sentenced to serve five years’ imprisonment. (I CR 107).
The failure to raise an objection at the time punishment was imposed likely resulted in the waiver of this issue on direct appeal. See TEX. R. APP. PROC. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Cas- taneda v. State, 135 S.W.3d 719, 723 (Tex.App.—Dallas 2003, no pet.). However,
9
even assuming an objection had been made there does not appear to be any error that could be advanced and sustained on appeal.
The sentence imposed was within the proper punishment range for the of-
fenses as alleged. TEX. PEN. CODE ANN. § 12.34(a)(b) (punishment for a third de- gree felony). Consequently, as the punishment imposed was within the statutory range for the offenses, it is virtually presumed that they are not constitutionally cruel and unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.—Dallas 1997, pet. ref’d); see also TEX. CODE CRIM. PROC. ANN. art. 42.12 § 23(a) (at revocation the court may impose sentence anywhere within the range of punishment). As such, counsel has been unable to raise a non-frivolous error on the issue of pun- ishment.
C. Appellant Received Effective Assistance of Counsel.
Effective assistance of counsel is to be evaluated under the standard enunci-
ated in Strickland v. Washington, 466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1984); see also, Hernandez v. State, 988 S.W.2d 70 (Tex.Crim.App. 1999). To prevail in a claim of ineffective assistance of counsel, a defendant must show (1) that her trial counsel’s performance fell below an objective standard of reasonable- ness, and (2) that a reasonable probability exists that, but for trial counsel’s alleged errors, the result would have been different. Strickland, 466 U.S. at 687-88. On appeal, the defendant carries the burden of proving ineffective assistance by a pre-
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ponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985). Finally, trial counsel’s performance is not to be judged with the benefit of hindsight. Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App. 1992).
With this standard in mind a comprehensive review of the record has been made including potential pretrial matters, issues at the revocation hearing, and the arguments of counsel and found no basis from which to argue that counsel was in- effective. See Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998) (not- ing that on direct appeal the record is usually insufficient to support a claim of in- effective assistance).
CONCLUSION AND PRAYER
As counsel was unable to raise any arguable issues for appeal, he is required to move for leave to withdraw. See Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991).
WHEREFORE, PREMISES CONSIDERED, counsel prays that the Court, after affording Mr. Jackson the opportunity to review the record and file a pro se brief should he desire to do so, accept this brief and grant the attached Motion to Withdraw pursuant to Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396 (1967).
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Respectfully submitted,
/s/ Austin Reeve Jackson
Texas Bar No. 24046139
112 East Line, Suite 310
Tyler, TX 75702
Telephone: (903) 595-6070 Facsimile: (866) 387-0152
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this brief was delivered to counsel for the State by facsimile concurrently with its filing in the Court.
/s/ Austin Reeve Jackson
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CERTIFICATE OF COUNSEL
The attorney’s role as an advocate requires that I support my client’s appeal to the best of my ability. Anders v. California, 386 U.S. 738. I, Austin Reeve Jackson, counsel of record in this appeal, do hereby state that I have diligently searched the entire record in this cause. I have researched the law applicable to the facts and issues contained therein, and it is my professional opinion that the record reflects no reversible error. In conformity with the applicable law pertaining to an appeal of this nature, I have set forth any potential grounds of error and have briefed them to the extent possible. I have further caused a copy of this brief to be served by certified mail on Appellant, accompanied by a letter informing Appellant of the right to examine the record for the purpose of filing a pro se brief.
/s/ Austin Reeve Jackson
CERTIFICATE OF COMPLIANCE I certify that this document complies with the requirements of Rule 9.4 and con-
sists of 2,275 words.
/s/ Austin Reeve Jackson