ACCEPTED 12-14-00295-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 2/27/2015 11:49:01 AM CATHY LUSK CLERK
JOHN D. REEVES ATTORNEY AT LAW FILED IN 12th COURT OF APPEALS TYLER, TEXAS 1007 Grant Ave•Lufkin, Texas 75901 2/27/2015 11:49:01 AM (936) 632-1609 telephone • (936) 632-1640 facsimile CATHY S. LUSK Email: tessabellus@yahoo.com Clerk
February 27, 2015
12th Court of Appeals Attn: Cathy S. Lusk, Clerk 1517 West Front Street, Suite 354 Tyler, Texas 75702
Re: Case Number 12-14-00295-CR Trial Court Case Number 2013-0615
Style: Shadondra Jenkins v. The State of Texas
RE: Brief
Dear Madam, following please find for filing Motion to Withdraw and Anders Brief for Appellant, Shadondra Jenksins.
Thank you for your courtesies.
Sincerely,
/S/ John D. Reeves John D. Reeves
E file cc. April Ayers-Perez, Asst. DA, Angelina County, P.O. Box 908, Lufkin, Texas 75901 12-14-00265-CR _______________________________________________________________
IN THE COURT OF APPEALS FOR THE TWELFTH JUDICIAL DISTRICT TYLER, TEXAS ________________________________________________________________
SHADONDRA JENKINS V. The State of Texas
APPEAL FROM THE 159TH JUDICIAL DISTRICT COURT OF ANGELINA COUNTY, TEXAS
ANDERS BRIEF OF APPELLANT SHADONDRA JENKINS __________________________________________________________________
Respectfully considered,
/s/John D. Reeves _______________________ JOHN D. REEVES Attorney at law 1007 Grant St. Lufkin, Texas 75901 Phone: (936) 632-1609 Fax: (936) 632-1640 SBOT # 16723000 Email: tessabellus@yahoo.com ATTORNEY FOR APPELLANT ORAL ARGUMENT NOT REQUESTED IDENTITY OF PARTIES AND COUNSEL
Parties: Appellant in Trial Court:
Shadondra Jenkins TDCJ# 01962913 Marlin Unit 2893 State Hwy 6 Marlin, Texas 76661
Appellee in Trial Court:
The State of Texas
Trial and Appellate Counsel:
Appellant:
JOHN D. REEVES Trial Jerry Whiteker Attorney at Law Attorney at Law 1007 Grant Ave. P.O. Box 1443 Lufkin, Texas 75901 Lufkin, Texas 75902 Phone: (936) 632-1609 Phone: 936/632-5551 Fax: (936) 632-1263 SBOT: 21361500 SBOT # 16723000
Appellee: April Ayers-Perez Trial Katrina Carswell Angelina Asst. District Atty. Angelina Asst. Dist. Atty. P.O. Box 908 P.O. Box 908 Lufkin, Texas 75901 Lufkin, Texas 75901 Phone: 936-632-5090 Phone: 936/ 632-5090 SBOT# 01921800 SBOT # 10482700 ii TABLE OF CONTENTS
Page:
IDENTITY OF PARTIES AND COUNSEL…………………………………… .ii
TABLE OF CONTENTS……………………………………………………....... iii
INDEX OF AUTHORITIES…………………………………………………... iv,v
STATEMENT OF THE CASE……………………………………………………1
STATEMENT OF JURISDICTION…………………………………………........2
ANDERS ISSUE’S CONSIDERED.…………………………………………....2-3
STATEMENT OF FACTS …………………………………………………….3-12
SUMMARY OF THE ARGUMENT ..…………………………………….....12-13
ARGUMENT………………………………………………………………….13-24
CONCLUSION AND PRAYER………………………………………………....24
CERTIFICATE OF COMPLIANCE……………………………………………..25
CERTIFICATE OF SERVICE…………………………………………………...25
iii. INDEX OF AUTHORITIES
U.S. Supreme Court Cases
Anders v. California, 386 U.S. 738, (1967) ..........................................................1
Strickland v. Washington, 466 U.S. 668, (1984) .............................................22,23
Fifth Circuit
Nero v. Blackburn, 597 F.2d 991, (5th Cir. 1979) ...............................................24
Texas Cases
Blanco v. State, 18 S.W. 3d 218, (Tex. Crim. App. 2000) .................................14
Dinkins v. State, 894 S.W.2d 330, (Tex. Crim. App. 1995)................................19
Euler v. State, 158 S.W. 3d 88, (Tex. Crim. App. 2007) .....................................22
Ex parte Delaney, 207 S.W. 3d 794, (Tex. Crim. App. 2006) .............................14
Harris v. State, 656 S.W. 2d 481, (Tex. Crim. App. 1983).....................................21
Jackson v. State, 877 S.W. 2d 768, (Tex. Crim. App. 1994)..................................23
Jordan v. State, 495 S.W. 2d 949, (Tex. Crim. App. 1973)....................................21
Kniatt v. State, 206 S.W.3d 657, (Tex. Crim. App. 2006.......................................16
Ladd v. State, 3 S.W.3d 547, (Tex. Crim. App. 1999)...........................................21
McFarland v. State, 928 S.W. 2d 482, (Tex. Crim. App. 1996) ............................22
iv. Montgomery v. State, 810 S.W.2d 372, (Tex. Crim. App.1990)...........................20
Rhoades v. State, 934 S.W.2d 113, (Tex. Crim. App. 1996).................................21
Rodriguez v. State, 203 S.W.3d 837, (Tex. Crim. App.2006)...............................20
Young v. State 8 S.W 3d 656, (Tex. Crim. App. 2000) ……................................14
RULES AND OTHER AUTHORITIES
U.S. Const. Amend. VIII .......................................................................................20
U.S. Const. Amend. XIV..................................................................................21,22
Texas Rules of Appellate Procedure, Rule 33.1..................................................1,21
Texas Code of Criminal Procedure Article 26.13 ..................................................15
v. ___________________________________________________________
12-14-00295-CR _______________________________________________________________
IN THE COURT OF APPEALS FOR THE TWELFTH JUDICIAL DISTRICT TYLER, TEXAS ________________________________________________________________
APPEAL FROM THE 159th JUDICIAL DISTRICT COURT OF ANGELINA COUNTY, TEXAS
ANDERS BRIEF OF APPELLANT SHADONDRA JENKINS
TO THE HONORABLE COURT OF APPEALS;
COMES NOW, Shadondra Jenkins., Appellant, pursuant to Texas Rules of
Appellate Procedure, Rule 33.1 by and through her attorney of record, John D.
Reeves, who respectfully submits this Anders brief for Appellant and would show
as follows: (Anders v. California, 386 U.S. 738, (1967)
STATEMENT OF THE CASE
Appellant was charged by indictment in the October/December 2013 term of
the Angelina County Grand Jury with two counts of Injury to a Child allegedly, committed on the 6th and 20th day of August 2013. (Cause # 2013-0615, CR.18 -
19) Appellant pled guilty, without a plea bargain and waived a trial by jury on May
20th, 2014. (RR Vol. 2; CR. 55-59) (RR Vol. 2 p.6-10) A pre-sentence
investigation report was ordered by the court. (RR Vol. 2, p. 7, 14) On October
2nd, 2014 the trial court conducted a sentencing hearing and the Appellant was
sentenced to one hundred fourteen months (114 months) in the Texas Department
of Criminal Justice, Institutional Division. (RR Vol. 4, p.7-125) John Reeves was
appointed to do the appellant’s appeal on October 14th, 2014. (CR p.75) Notice of
appeal was filed by trial counsel on October 7th, 2014. (CR p.72) On October 24th,
an order was signed for the clerk’s record and reporter’s record. (CR p. 82) On
October 3, 2014 a Trial Court’s Certification of Appeal was signed by the trial
court not limiting appellant’s right of appeal as to punishment only. (CR p. 71)
STATEMENT OF JURISDICTION
The Trial Court certified Appellant’s right to appeal without restriction as to
punishment only on October 2, 2014. (CR p. 71)
ANDERS’ ISSUES CONSIDERED
1. Did the appellant waive her right of appeal on guilt/innocence?
2. Is the appellant’s plea of guilty free and voluntary and were proper
admonishments given by the trial court?
2. 3. Is there error regarding the admission into evidence of States’ Exhibit
one through thirteen including any error regarding trial objections?
4. Is the sentence of the trial court disproportionate in violation of the Eighth
Amendment and Fourteenth Amendments to the United States Constitution?
5. Did trial counsel provide ineffective assistance concerning appellants
sentencing hearing?
STATEMENT OF FACTS
The case was called for trial and appellant pled guilty to a two count
indictment of Injury to a Child. (RR Vol. 2 p. 6-7) Appellant was admonished by
the trial court of the range of punishment. (RR Vol. 2 p. 4-5) The trial court
inquired as to the appellant’s competency to stand trial and found the appellant
competent. (RR Vol. 2 p. 5-6) After request for a pre sentence investigation trial
court ordered the same. (RR Vol. 2 p. 7-8, 10) Admitted without objection were
State’s Exhibit one being Written Plea Admonishments-Waivers-Stipulations. (CR
p. 56-59; RR Vol. 2 p. 10) The stipulation reflects there is no plea bargain
agreement between the State and the appellant. (CR p.58) ;( RR Vol. 2 p.9)
The trial court began the appellant’s sentencing hearing on October 2, 2014.
(RR Vol. 4) The State called three witnesses. The court confirmed that four
videos were shared with each counsel regarding DVD statements of the two
3. children. In addition, the State added some notes gathered by the State from a CPS
file. (RR Vol. 4 p. 5-7) Without objection a report from Gene Stanley providing a
forensic mental health evaluation was admitted by the trial court. (RR Vol. 4 p. 8)
Defense counsel was allowed to call John Weismuller out of order for purposes of
convenience. (RR Vol. 4 p. 10-19) Mr. Weismuller testifies he is counsel for the
appellant in CPS Court and a conservatorship agreement was made with the State
on September 24th, 2014. (RR Vol. 4 p. 12-19) He explains there are two cases
involving various children of the appellant with the State as managing conservator
and the appellant possessory conservator and the CPS Court is awaiting the
outcome of appellant’s sentencing. (RR Vol. 4 p. 13-19)
Samantha Skinner states she works as the foster care supervisor for child protective
services of Angelina County. (RR Vol. 4 p. 22) She explains the appellant was
arrested for physical abuse of her children while the children were living with their
grandmother, Ms. Lamb. (RR Vol. 4 p. 23) The names and ages of the three
children are provided and the process of how the children came to the
grandmother’s house is explained. (RR Vol. 4 p. 24-26) The witness explains the
plan of service the appellant entered into and what was expected of her to seek
reunification with her children. (RR Vol. 4 p. 26-29) The concerns of the
department were whether she had stable housing between November 2013 and
4. March 2014. (RR Vol. 4 p. 19) There were issues with the appellant of keeping a
stable job. (RR Vol. 4 p. 29-30) The witness believed the appellant was lacking in
her desire to complete the plan of service. (RR Vol.4 p. 31) After the removal of
the appellant’s fourth child who was a newborn’, she was offered another similar
service plan. (RR Vol. 4 p. 32) She describes some negativism by the appellant
toward a plan of her mother keeping the children in her possession. (RR Vol. 4 p.
32-34)
The State offered exhibits 2-13 which were photos of injuries to two of the
children as named in the indictment. (RR Vol. 4 p. 36) The photos were admitted
without objection. (RR Vol. 4 p. 37)
On cross-examination, the witness admitted that the appellant did not want her
mother to raise her children. (RR Vol. 4 p. 38) The witness explained the reasons
the appellant had issues with her mother, including a previous rape of herself by
one of her mother’s boyfriends, her mother forcing her to have an abortion,
animosity towards her mother’s lifestyle and some of her mother’s friends at
church. (RR Vol. 4 p. 39-40) Lastly, there were issues with the discipline applied
by the mother to the appellant. (RR Vol. 4 p. 40-41) The witness was questioned
about reasons why the appellant would have trust issues with the department. (RR
Vol. 4 p. 42-44) The witness did not believe the
5. appellant was truly remorseful for her actions toward the two children. (RR Vol. 4
p. 43, 45-46) On re-direct examination, the witness reflected background checks
on the grandmother revealed no abuse of the appellant by her mother. She shares
that the appellant sometimes gives less than the full truth concerning her
employment and housing. (RR Vol. 4 p. 46-47) The parties discussed recent
changes in visitation offered by the department. (RR Vol. 4 p. 47-49)
Christopher Harris testifies he was assigned the Appellant to be her probation
officer for a misdemeanor theft by check case. (RR Vol. 4 p. 51-52) While being
supervised under bond conditions for the instant matter he states she admitted
using K-2 on July 16th while with her boyfriend. (RR Vol. 4 p. 52-53) He states
they have discussed catching up on her probation fees and community service
hours. (RR Vol. 4 p. 53, 55) On cross-examination the officer admits the appellant
does not have a car, license or job. (RR Vol. 4 p. 55-56)
Janice Lamb testifies that the appellant is her eldest child and she has custody of
three of the appellant’s children. (RR Vol. 4 p. 57-58) The children are 14, 9, and
3 and have resided with her for a year. (RR Vol. 4 p. 58) She explains she found
out about the appellant hurting the children through a relative and then
by CPS. (RR Vol. 4 p. 58-59) She explains when she first saw the children after
the alleged abuses she believed the children were terrified, confused and did not
6. understand why there were not normal kids. (RR Vol. 4 p. 59) One of the children
was very ‘zoned out” and clingy. (RR Vol. 4 p. 60) Another child she described as
terrified. (RR Vol. 4 p. 61) She explains the children are better, but still are
having issues. Prior to the allegations in August of 2013, the witness explains she
was basically raising the children at one time and there were times the appellant
was around, but that the children have mostly lived with her. (RR Vol. 4 p. 62-64)
The witness explains that there were times over the course of years that she and her
daughter disagreed about how to rear the children. (RR Vol. 4 p. 64-65) The
witness explains she is involved in the two CPS cases and has all four children in
her possession, which includes the new born. (RR Vol. 4 p. 65-66) The
grandmother is surprised that the appellant is now saying she was abused by her.
(RR Vol. 4 p. 66-67) She describes various activities that the appellant
participated in. (RR Vol. 4 p. 67-69) She states that eventually when the appellant
became 18 she was not able to give her much direction that was accepted by the
appellant. (RR Vol. 4 p. 69) She explains the two children who are the subject of
the indictment are in counseling two times a month. (RR Vol. 4 p. 70) The
children are experiencing positive changes as a result of the counseling. (RR Vol.
4 p. 70-71) She testifies both children have fluctuated up and down in their
schoolwork. (RR Vol. 4 p. 72) Over objection, the witness was allowed to testify
7. to the observations she has of the children regarding not seeing their mom. (RR
Vol. 4 p. 73-74) She responds the children seem content where they are. (RR Vol.
4 p. 74) One child is “extremely defiant, angry and has bouts of crying and is
frustrated. (RR Vol. 4 p. 74) Another child is nervous and not real responsive to
yelling, but expressing confusion and fear regarding discipline. (RR Vol. 4 p. 75)
She explains she and the appellant have not had many conversations throughout
the CPS process. (RR Vol. 4 p. 75-76)
On cross-examination the witness admits there is not a good relationship with the
appellant. (RR Vol. 4 p. 77) After a discussion concerning the appellant’s
allegations regarding the witness’s boyfriends the witness was further questioned.
(RR Vol. 4 p. 78-80) The witness reveals five marriages and nine different men in
her home during the appellant’s childhood. (RR Vol. 4 p. 81) She admits the
appellant did not like some of the men. (RR Vol. 4 p. 81) She denies forcing the
appellant into an abortion. She denies knowledge of one of the men impregnating
her daughter. (RR Vol. 4 p. 82) She admits disciplining the appellant with
switches, and belts but denies harshly disciplining the appellant. (RR Vol. 4 p. 82)
She testifies she does not want the children reunited with the
appellant. (RR Vol. 4 p. 84) She did not answer as to what punishment she thought
was right for the appellant other than justice for her grandchildren. (RR Vol. 4 p.
8. 84) She states she did the best she could in rearing the appellant and was not
aware of any changes she would had made other than giving the appellant more
attention. (RR Vol. 4 p. 85-86) The court inquired as to the circumstance in
August 2013 when the allegations of Injury to Child were filed. The witness
explained she was not feeling well as a result of a migraine headache and had the
children transported to the appellant. (RR Vol. 4 p. 89-90) The children were
dropped off but not returned. The witness explains the children were in the
appellant’s care for about two years until they were returned as a result of the
August 2013 incident. (RR Vol. 4 p. 90-92)
The defense called the appellant to testify. She testifies concerning her
employment and residence (RR Vol. 4 p. 93-94) She explains her job history at
Dollar General, Ruben’s, Motel Six and Cybershield. (RR Vol. 4 p. 94-95) She
agreed that she was behind on her probation fees and had transportation issues.
(RR Vol. 4 p. 95) The appellant admits she plead guilty on May 20, 2014 to the
two counts in the indictment. (RR Vol. 4 p. 95) She stated that counseling has had
a great impact in her life since her release from jail in November 2013. (RR Vol. 4
p. 96) She stated she changed her life cycle and worked on parenting classes,
anger management, communication skills, discipline and the admission of the
offense. (RR Vol. 4 p. 96-97) The appellant admits she has great sorrow for her
9. actions towards her children. (RR Vol. 4 p. 97-98) Although disagreeing with her
mother, the appellant explains her version of the abuse and abortion in her
childhood. (RR Vol. 4 p. 98-99) She gave detail to the types of discipline of her
mother involving hitting her with a switch and extension cord. (RR Vol. 4 p. 100)
The appellant explained the abuse she committed on her children was what she was
taught and did not realize it was not right then or in the instant matter. (RR Vol. 4
p. 100) The appellant describes the medication prescribed too her to help with her
sleep, thoughts, moods and control her anxiety received from the Burke Center.
(RR Vol. 4 p. 100-101) She explains her youngest child is involved in some
allegations by her boyfriend but she no longer lives with him which is the subject
matter of the second CPS case. (RR Vol. 4 p. 101-102) The appellant explains the
process of visitation with her children and her attempts to get photos of her
children online. (RR Vol. 4 p. 102-103) The appellant is asking for probation as a
result only having the misdemeanor check case and no prior felony convictions.
(RR Vol. 4 p. 104) She explains her financial circumstances and attempt to get an
online education. (RR Vol. 4 p. 105) In regard to the allegations that her boyfriend
abused her children she explains she is not aware of what the truth is. (RR Vol. 4 p.
105-106) She does admit her boyfriend has hurt her but she stayed with him for
survival and then became pregnant with the last child. (RR Vol. 4 p. 106)
10. Appellant states she has learned from the experience.
“What I’ve learned from all of this is if I’m not good I can’t be any good to my children. I learned that just because something happened with me doesn’t make it right for me to raise my children that way. I’ve learned that I have to take responsibility for my actions. And then I’ve learned that this cycle has to be broken.’ I didn’t realize it then. I didn’t know. I really didn’t know the severity of this until I started talking and releasing things and I’ve learned that I’m going to break that cycle because I do not want my children to have to go through anything like this again and I want to be better so I can be a better parent for them whenever I can see them again. I want to be a better person and be a better mother so I’ll never, ever this life this mistake ever again. (RR Vol. 4 p. 107) On cross examination the State tries to clarify dates of parenting classes and anger
management attended to by the appellant. (RR Vol. 4 p. 109-110) The appellant
explains her delay from May until September in getting evaluated by the Burke
Center. (RR Vol. 4 p. 110) The witness explains the process of being evaluated by
ADAC. (RR Vol. 4 p. 110-111) She does explain that in her past the ADAC
evaluation was the result of the use of drugs. (RR Vol. 4 p. 11-112) The appellant
denies recently asking her sister for money and explains her sister volunteered $
70.00 and she took it but did not use it to pay for probation, her children or to get a
license. (RR Vol. 4 p. 113-114) The State reviewed the appellants initial
statement to the police and admitted until she saw the photos of the children she
was not aware of the severity of the injuries. (RR Vol. 4 p. 115-
11. 116) She stated she admitted the marks on the children came from the use of a
cord. (RR Vol. 4 p. 116) She admits it was a year after the incident until she went
to parenting classes. (RR Vol. 4 p. 117) The appellant explains she tries to convey
concern and love to her children through the CPS worker. (RR Vol. 4 p. 117-119)
After explanation by the trial court the appellant was sentenced to 114 months in
the TDCJ- ID. (RR Vol. 4 p. 123-125)
SUMMARY OF THE ARGUMENT
Five issues are presented as a basis for appeal which is stated in Anders Issues
considered. The first issue is whether the appellant’s right to appeal was waived in
regard to her plea of guilty. Appeal attorney believes her right to appeal her plea
was waived in reviewing the plea waiver and trial court certification signed after
sentencing. Appellant addresses this point in order to address the voluntariness of
appellant’s plea The second issue is whether the appellant’s plea of guilty was
entered freely and voluntarily and whether the trial court properly admonished the
appellant? Appeal counsel finds there is a properly executed waver and
stipulations concerning her plea of guilty to the entire allegations contained in the
State’s Indictment. Also, appellate counsel finds the trial court properly
admonished the appellant and that appellant’s plea of guilty was free and voluntary
and that appellant was not under the influence of any substance nor was there any
12. issue of appellant’s competence. Thirdly, appeal counsel considers the
admissibility of the State’s thirteen exhibits and any error regarding trial
objections. Counsel finds all exhibits were admitted without objection, further the
pre sentence investigation report was admitted without objection. The one
objection not ruled upon in favor of the defense was not pursued by the defense as
the State changed its manner of questioning. Fourthly, counsel considers whether
the sentence rendered by the trial court was disproportionate in violation of the
U.S. Constitution. There was no objection made in the trial court as to the sentence
rendered. The trial court gave a reasoned explanation regarding the sentencing and
allowed the appellant to respond. The sentence in this case is within the
parameters of the Texas Penal Code regarding punishment for a third degree
felony. Lastly, appeal counsel considers whether trial counsel was ineffective. The
record reveals trial counsel presented evidence through the appellant and cross
examined the witnesses and there is no basis on the record to support ineffective
assistance of counsel.
ARGUMENT
1.
Did the appellant waive her right of appeal on guilt/innocence?
In order to consider the second possible issue of the voluntariness of appellant’s
13. entry of her plea, appeal counsel first considers this issue of waiver of appeal. The
appellant signed a waiver of appeal at the time of her plea in regard to
guilt/innocence, (CR 60; RR Vol. 2 p. 9)
The appellant was asked:
The Court: You do you further understand you’re giving up your right to appeal a conviction in this cause if I determine that’s what should happen” The Defendant: Yes; sir.
Additionally, the trial court’s certification of appeal signed on October 2, 2017
limited the appellant’s right to appeal as to solely punishment. CR p. 71) In this
instance the appellant waived her right to appeal as to guilt/innocence at the time
of her plea and again signed a trial court certification to the same effect after her
sentencing. Ex Parte Delaney, 207 S.W. 3d 794, 797 (Tex. App. 2006); Blanco v.
State, 18 S.W. 3d 10.218, 219-20 (Tex. Crim. App. 2000). In regard to the trial
court’s certification signed on October 2, 2014 the trial court did limit appellant’s
appeal to sentencing only. (CR p. 71) Is the appeal limited to punishment only
where there is an open plea of guilty to the trial court? (RR Vol. 2 p. 6, 7) As this
Honorable Court is aware, in Young v. State, 8 S.W 3d 656,666-67 (Tex. Crim.
App. 2000) the Court held “whether entered with or without an agreed
recommendation of punishment by the State, a valid plea of guilty or nolo
14. contendre “waives” or forfeits the right to appeal a claim of error only when the
judgment of guilt was rendered independent of, and is not supported by, the error.
Thus, although as here there is a guilty plea it does not necessarily waive a right to
any appeal. In the instant matter where was no enhancement paragraph and there
was no exchange agreement. (CR p. 18-19) Appellant counsel believes as a result
of the appellant’s waiver signed at the time of the plea and the trial court
certification signed after sentencing as shown above evidences a voluntary waiver
of appeal of guilt/innocence.
2.
Is appellant’s plea of guilty free and voluntary and accepted with proper
admonishment to the appellant?
Appellant entered a plea of guilty to the allegation contained in the State’s
indictment of two counts of Injury to a Child. The record does not reflect there
was any plea agreement. (RR Vol. 2 p. 6-7, 10-11; CR p. 58)) The trial court
ordered a pre- sentence investigation. The trial court inquired of whether the
appellant’s plea of guilty was freely and voluntarily made and accepted her plea of
guilty. (RR Vol. 2 p. 4-7) Admonishments are required by Article 26.13 Texas
Code of Criminal Procedure. As such, to be “voluntary,” a plea must be the
expression of the defendant's own free will and must not be induced by threats,
15. misrepresentations, or improper promises. See Kniatt v. State, 206 S.W.3d 657,
664 (Tex. Crim. App. 2006) The record shows that appellant acknowledged both
orally and in writing that she was aware of the consequences of entering a plea of
guilty. (State’s Exhibit one, RR Vol. 2 p. 5-8) Appellant acknowledged that she
understood the consequences of her plea of guilty. (RR Vol. 2 p. 4) During the
plea hearing the appellant was asked if the plea if she was guilty and was it the
truth and she answered yes. (RR Vol. 2 p. 6) In addition, appellant stated her plea
was free and voluntary and that she was mentally competent to enter her plea and
was not claiming the defense of insanity or involuntariness. (RR Vol. 2 p. 5, 6) The
trial court additionally explained to the appellant after questioning the appellant by
admonishing her of the process of sentencing. (RR Vol. 2 p. 7-9)
Having reviewed the entire record, appellate counsel does not find appellant’s plea
of guilty was involuntary. . The record shows the trial court advised appellant what
could occur if the trial court accepted her plea of guilty to the two counts contained
in the indictment. (RR Vol. 2 p.4)
The Court: Ms. Jenkins, in this case, as you are well aware, you’ve been indicted by the Grand Jury with two felony accounts of injury to a child. These are third degree offenses which if found guilty the punishment range will be no less than two years and no greater than ten years in the penitentiary and a find not to exceed $ 10,000. Do you understand that?
16. The Defendant: Yes, sir.
Appellant signed State’s exhibit one stipulating to her guilt and the waiver of her
rights. (CR p. 56-59; RR Vol. 2 p. 8-10) Appellate counsel believes the record
establishes that appellant entered a free and voluntary plea of guilty after proper
admonishment by the trial court. In addition, appellant testified in punishment on
that she committed the offenses.
Q; And May 20th, 2014 you entered a plea of guilty to the charges in this case:
A: Yes, sir. (RR Vol. 5 p. 96)
Q: You admitted guilt in this, correct? A: Yes, sir.
Q: You know you made a mistake? A: I made a huge mistake. (RR Vol. 5 p. 97)
Q: And with counseling you understand what remorse is? A: Yes, sir, I understand. Q: And you’re sorry that it’s happened? A: I’m sorry every day I wake up. (RR Vol. 2 p. 97-98)
A: I felt that’s the way I was supposed to discipline my children because that’s how I was disciplined but now I do realize that it wasn’t right then and it wasn’t right when I did it and I want… I’m not going to do it anymore. I’m going to make that change. I’m not going to keep that cycle. (RR Vol. 2 p. 100)
Q. What have you learned from all of this?
17. A. What I’ve learned from all of this is if I’m not good I can’t be any good to my children. I learned that just because something happened with me doesn’t make it right for me to raise my children that way. I’ve learned that I have to take responsibility for my actions. And then I’ve learned that this cycle has to be broken. I didn’t realize it then. I didn’t know. I really didn’t know the severity of this until I started talking and releasing things and I’ve learned that I’m going to break that cycle because I do not want my children to have to go through anything like this again and I want to be better so I can be a better parent for them whenever I can see than again. I want to be a better person and be a better mother so I’ll never, ever this life mistake ever again. (RR Vol. 2 p. 107)
The appellant admitted when first questioned she did not realize the extent of the
injury to each child by the use of a belt and cord. (RR Vol. 2 p. 115-116) The
appellant lastly expressed her sorrow for her actions and her desire that her
children know her sorrow for the acts she committed. (RR Vol. 2 p. 126-128)
3.
Is there error in the admission of State’s exhibit one through thirteen four including any error regarding trial objections?
Only thirteen exhibits were offered at the plea and sentencing hearing. No
objections were made to any of the exhibits offered by the State. (RR Vol. 2 p. 10)
State’s exhibits 2-13 were admitted without objection at the sentencing. (RR Vol. 4
p. 37) Defense counsel objected to the State asking Ms. Lamb the mother of the
18. appellant, if one of the children “responded in a positive or negative way to not
having contact with their mother. (RR Vol. 4 p. 73) After discussion and further
questioning the objection was not continued by defense counsel to obtain a ruling
from the court. (RR Vol. 4 p. 73-74) A State objection to questioning by the
defense counsel on the number of men Ms. Lamb had lived with was overruled
after discussion. (RR vol. 4 p. 78-80) A second objection by the State as to Ms.
Lamb regarding a question calling for speculation was not pursued. (RR Vol. 4 p.
87) Defense counsel objected to Nicole Yarbrough testifying on behalf of the State
as the rule had been invoked and the witness had been in the courtroom. The
objection was sustained by the trial court. (RR Vol. 4 p. 120-122) Appellant
counsel found no other instances of objection in the record. Generally it is held
that a timely objection must be made in order to preserve an error in the admission
of evidence. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995) After
review of the above objections appellant counsel only finds one objection that was
not ruled upon by the trial court that defense counsel made as the objection was not
pursued by defense counsel as the State altered the questioning. There being no
basis for arguing an erroneous admission of either State’s exhibit one through
thirteen nor to the pre- sentence investigation report- appellate counsel does not
reach an issue of whether the substantial rights of the appellant was disregarded. In
19. viewing the trial court’s decision to admit or exclude evidence and whether there
was an abuse of discretion it is generally been determined that the trial court is in
the best position to decide questions of admissibility, and will be upheld if a trial
court's decision to admit or exclude evidence is "within the zone of reasonable
disagreement when reviewed under an abuse of discretion standard. See Rodriguez
v. State, 203 S.W.3d 837, 841 (Tex. Crim. App.2006); Montgomery v. State, 810
S.W.2d 372, 390-91 (Tex. Crim. App.1990). Appeal counsel believes there was no
preserved error regarding any of the exhibits or the objections by defense counsel.
As such appeal counsel finds no harm in relation to the record to subvert the
substantial right of the appellant to require a reversal of the trial courts sentence.
4.
Was the trial court’s sentencing of one hundred and fourteen months a disproportionate sentence in violation of the Eighth Amendment and Fourteenth Amendments to the United States Constitution? (U.S. Const. Amend. VIII; U.S. Const. Amend. XIV.)
The sentence of one hundred fourteen months in the ID-TDCJ was within
the penalty range of two to ten years, for a third degree felony in the State of
Texas. In this matter there was no objection to the trial court concerning the
sentence. There was no allegation or complaint that the sentence is grossly
disproportionate, constituting cruel and unusual punishment, and as such the error
20. if any was not preserved for review. See, Tex .R. App. P. 33.1(a); Rhoades v.
State, 934 S.W.2d 113, 119-20 (Tex. Crim. App. 1996). (RR Vol. 4 p. 123-125)
The trial court explained his rationale for the sentenced assessed. Here, after the
trial court announced its sentence at the punishment hearing, appellant made no
objection to the trial court about the punishment assessed and did not assert her
claim under the Eighth Amendment and the Texas Constitution in the trial court.
(RR Vol. 4 p. 125) The appellant was allowed to address the trial court and
expressed her sorrow and accepted responsibility for her actions. She further
explained her goal to overcome her experience with her mother and her children.
(RR Vol. 4 p. 126-128) The trial court explained that it gave due consideration to
the facts of the case in regard to punishment. (RR Vol. 4 p. 129-130) As such, the
punishment of one hundred fourteen months falls within the range set forth by the
Texas Legislature. Therefore, the punishment is not prohibited as cruel, unusual, or
excessive per se. Harris v. State, 656 S.W. 2d 481, 486 (Tex. Crim. App. 1983);
Jordan v. State, 495 S.W. 2d 949, 952 (Tex. Crim. App. 1973) Appeal counsel
believes appellant has waived her cruel and unusual punishment complaint. See
Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999) There is no evidence that
the appellant‘s sentencing process did not provide fundamental fairness. U.S.
21. Const., Amend XIV. Euler v. State, 158 S.W. 3d 88, 91 (Tex. Crim. App. 2007)
Fundamental fairness requires that an accused receive a fair trial. In the instant
matter, the appellant’s testified to what she believed to explain the cycle of
violence that resulted in injury to her children and the history of the appellant was
reviewed regarding the CPS case by the witness Johnny Weismuller. (RR Vol. 4 p.
10-19) Further the court reviewed records of CPS provided in regard to the PSI
report. (RR Vol. 4 p. 122-123) In addition the appellant testified to her social,
criminal and rehabilitative history as reflected previously.
5.
Was trial counsel’s representation ineffective?
The standard promulgated in Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 674 (1984) requires a two step analysis. First it requires a
demonstration that trial counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms. To satisfy this requirement
appellant must identify the acts or omissions of counsel alleged to be ineffective
assistance and affirmatively prove that they fell below the professional norm of
reasonableness. McFarland v. State, 928 S.W. 2d 482, 500 (Tex. Crim. App. 1996)
This Honorable court then will judge a claim of ineffectiveness based on the
totality of the representation. Strickland, supra, 466 U.S. at 695-96, 104 S. Ct. at
22. 2069. The presumption is that trial counsel was effective. See, Jackson v. State,
877 S.W.2d 768,771 (Tex. Crim. App. 1994). Trial counsel did present evidence
through the appellant’s testimony. Trial counsel cross-examined each witness in
detail concerning the appellant’s cycle she stated she was attempting to overcome.
(RR Vol. 4 p. 37-46, 49-51, 55-57, 77-87) The appellant was able to present her
reasoning for her behavior and her request for probation regarding her plans and
goals. (RR Vol. 4 p. 93-119) Appeal counsel finds no basis to determine trial
counsel’s strategy or to ascertain of what value it might have been to call or not to
call other witnesses. The appellant’s testimony as set out previously supports the
facts of the indictment the appellant pled guilty to.
Appeal counsel does not find support from the record to argue “but for” trial
counsels decisions in the sentencing hearing there would have been a different
result. Especially, considering the appellant’s testimony regarding offense. (RR
Vol.2 p. 4, 8-10; RR Vol. 4 p. 96-98,100,107,115-116,126-128) In reviewing the
totality of trial counsel’s representation and presentation of evidence as considered
above- the record does not present evidence of trial counsel falling below the
objective standard of reasonableness and professional norms. Strickland, supra.
Further, appellant counsel does not find a single egregious error or omission that
23. will constitute ineffective assistance. Nero v. Blackburn, 597 F.2d 991, 994 (5th
Cir. 1979)
As such appellate counsel offers this Anders Brief.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant’s counsel respectfully
requests, as relief, that he be allowed to withdraw as this appeal is frivolous and so
advise Appellant so that she may pursue a pro se brief if she so desires, or
alternatively to appoint other counsel for Appellant in the prosecution of this
appeal.
/s/John D. Reeves _______________________ JOHN D. REEVES Attorney at law 1007 Grant St. Lufkin, Texas 75901 Phone: (936) 632-1609 Fax: (936) 632-1640 SBOT # 16723000 Email: tessabellus@yahoo.com ATTORNEY FOR APPELLANT
24. CERTIFICATE OF COMPLIANCE
I John D. Reeves Counsel for appellant hereby certify that this brief exclusive of
the rule provisions that do not provide counting contains 5,226 words.
/s/John D. Reeves _______________________ John D. Reeves
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Appellant’s
Brief on 27nd day of February , 2015 been forwarded to the State’s Counsel, Art
Bauereiss, District Attorney of Angelina County, by e-filing.
/s/John D. Reeves _______________________ John D. Reeves Attorney for Appellant, Shadondra Jenkins
25.