Carmina Padroz v. State ( 2015 )

ACCEPTED
13-15-00195-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
5/28/2015 4:38:31 PM
DORIAN RAMIREZ
CLERK
CAUSE NO. 13-15-00195-CR
IN THE COURT OF APPEALS RECEIVED IN
13th COURT OF APPEALS
FOR THE THIRTEENTH JUDICIAL DISTRICT OF TEXAS TEXAS
CORPUS CHRISTI/EDINBURG,
AT CORPUS CHRISTI, TEXAS5/28/2015 4:38:31 PM
DORIAN E. RAMIREZ
Clerk
FILED
CARMINA PADROZ, IN THE 13TH COURT OF APPEALS
CORPUS CHRISTI - EDINBURG
Appellant, 5/28/2015
CECILE FOY GSANGER, CLERK
V. BY scarranza
THE STATE OF TEXAS,
Appellee,
Appeal from the 36th District Court of Live Oak County, Texas
Cause Number L-00-0078-2-CR-B
BRIEF OF DEFENDANT - APPELLANT
Pursuant to Anders v. California, 386 U.S. 738 (1967)
TRAVIS BERRY
State Bar No. 24059194
P.O. Box 6333
Corpus Christi, Texas 78466
Telephone: (361) 673-5611
Facsimile: (361) 442-2562
travisberrylaw@gmaail
ATTORNEY FOR APPELLANT
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
The following list is a complete list of all parties, as well as names and
addresses of all counsel:
PARTIES: COUNSEL:
Appellant: For Appellant (Trial):
Carmina Padroz Jessica Canter
TDC: 01773183 Texas Bar No. 24086671
Ferguson Unit 331A N. Washington Street
12120 Savage Drive Beeville, Texas 78102
Midway, Texas 75852 Telephone: (361) 358-1925
For Appellant:
Travis Berry
Texas Bar No. 24059194
P.O. Box 6333
Corpus Christi, Texas 78466
Telephone: (361) 673-5611
Facsimile: (361) 442-2562
Appellee: For Appellee:
The State of Texas Jose Aliseda
Texas Bar No. 01012900
Live Oak County District Attorney
111 S. St. Mary's Street - Ste. 203
Beeville, Texas 78102
361-621-1550
James Sales (assistant prosecutor)
Texas Bar No. 17531960
ii
TABLE OF CONTENTS
CONTENT:
PAGE:
The Parties and Their Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Arguable Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii
Anders Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Arguable Issue I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Arguable Issue II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Arguable Issue III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Conclusion and Request for Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
iii
INDEX OF AUTHORITIES
CASES: PAGE:
Allbright v. State, 13 S.W.3d 817 (Tex. App.–Fort Worth 2000, pet. ref’d) . . . . . 3
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967) . . . . . . . . . . . . . . passim.
Cantu v. State, 842 S.W.2d 667 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . 2, 4, 6
Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984) . . . . . . . . . . . . . . . . . . 2
Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . 3
Davis v. State, 905 S.W.2d 655 (Tex.App.-Texarkana 1995, pet. ref'd) . . . . . . . . 6
Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973) . . . . . . 4
Graham v. Florida, 560 U.S. 48 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Harmelin v. Michigan, 501 U.S. 957 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) . . . . . . . . . . . . . 10
High v. State, 573 S.W.2d 807 (Tex.Crim.App. [Panel Op.] 1978) . . . . . . . . . . . . 2
Jackson v. State, 645 S.W.2d 303 (Tex. Crim. App. 1983) . . . . . . . . . . . . . . . . . . 2
Johnson v. State, 885 S.W.2d 641 (Tex. App. – Waco 1994) . . . . . . . . . . . . . . 1, 2
Jordan v. State, 495 S.W.2d 949 (Tex.Crim.App. 1973) . . . . . . . . . . . . . . . . . . . . 6
Joseph v. State, 3 S.W.3d 627 (Tex. App.-Houston [14 Dist.] 1999, no pet.) . . . . 3
Lockyer v. Andrade, 538 U.S. 63 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Mart. v. State, 571 S.W.2d 20 (Tex. Crim. App.1978) . . . . . . . . . . . . . . . . . . . . . 4
iv
Mattias v. State, 731 S.W.2d 936 (Tex. Crim. App. 1987) . . . . . . . . . . . . . . . . . . . 4
Miller v. Alabama, 132 S. Ct. 2455 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Moore v. State, 11 S.W.3d 495 (Tex. App. Houston [14th Dist.] 2000, no pet.) . . 3
Solem v. Helm, 463 U.S. 277 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Staten v. State, 328 S.W.3d 901 (Tex. App.–Beaumont 2010, no pet.) . . . . . . . . . 4
Strickland v. Washington, 466 U.S. 668, 104S.Ct.2052, 80L.Ed.2d 674(1984) . 9, 10
Thompson v. State, 9 S.W.3d 808 (Tex.Crim.App.1999) . . . . . . . . . . . . . . . . . . . 10
United States v. Johnson, 527 F.2d 1328 (5th Cir. 1976) . . . . . . . . . . . . . . . xii, 1, 2
Weems v. United States, 217 U.S. 349 (1910) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Williamson v. State, 175 S.W.3d 522 (Tex.App.-Texarkana 2005, no pet.) . . . . . 6
STATUTES & RULES PAGE:
EIGHTH AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
TEX. CONST. Art. 1 Sec. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
v
STATEMENT OF THE CASE
On October 31, 2000, Appellant was indicted for possessing marijuana in
excess of fifty (50) pounds but less than two thousand (2,000) pounds. (CR6)
Appellant was represented by counsel (CR15), pled guilty via a plea agreement
(CR 29, 72) and was granted a deferred probation for a period of ten (10) years.
(CR41, 72)
On July 24, 2002, The State filed a motion to revoke probation. (CR 84)
A hearing on the State’s motion was conveined on May 1, 2015 wherein Appellant
pled true to all alleged violations of probation. The trial court found that Appellant
had violated conditions of her community supervision, adjudicated her guilt,
revoked Appellant’s community supervision, and sentenced Appellant to six (6)
years incarceration in the Institutional Division of the Texas Department of
Criminal Justice. (CR161)
vi
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not requested. Counsel has moved to withdraw and has
filed this brief pursuant to Anders v. California, 386 U.S. 738 (1967). After careful
study of the record and the applicable law, it is the good faith belief and
professional opinion of counsel that this case presents no non-frivolous basis for
appeal.
vii
ARGUABLE ISSUES PRESENTED:
ARGUABLE ISSUE NO. 1:
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN
REVOKING APPELLANT’S COMMUNITY SUPERVISION.
ARGUABLE ISSUE NO. 2:
NO MERITORIOUS LEGAL CLAIM EXISTS RELATED TO THE
IMPOSITION OF PUNISHMENT IN THIS CASE.
ARGUABLE ISSUE NO. 3:
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IS NOT A VIABLE
CLAIM BASED UPON THE RECORD BEFORE THIS COURT.
viii
STATEMENT OF FACTS
On October 31, 2000, Appellant was indicted for possession of marijuana, a
second degree felony. (CR 6) On November 29, 2000, Appellant reached a plea
agreement was placed on deferred adjudication for ten (10) years. (CR 41, 72)
On January 22, 2010, Appellant waived her right to a jury trial and to the
confrontation of witnesses (CR 24-26), and pleaded guilty to the charge, judicially
confessed to committing the offense (CR 33), and stipulated to evidence
supporting her plea.(CR 43). Appellant signed the trial courts written
admonishments on her statements given and her plea of guilty (CR 29-35)
The trial court accepted Appellant’s plea deferred adjudication of
Appellant’s guilt, and placed her on community supervision for ten years, with
conditions of such supervision to include placement at a Substance Abuse Felony
Punishment Facility. (CR 72) The trial court’s order to that effect was signed on
February 9, 2001. (CR 77).
Appellant was given a chance to have her probation transferred to her home
state of California. On January 17, 2002, the Court granted Appellant travel to
California from January 16, 2002, until March 16, 2002, for the purpose of
securing a place to live before a transfer could occur. (CR 83) Appellant was to
stay in contact and report to probation until the Interstate Compact channels had
ix
completed Appellant’s probation transfer to California.
On May 1, 2002, the probation department made contact with Appellant in
California on her failure to return to Texas via U.S. Certified Mail; Appellant
signed the return receipt card for Certified Mail No. 70012510000898290495. In
this certified letter, the probation department notified Appellant of her failure to
return to Texas as ordered and directed her to appear at the probation office on
May 31, 2002, at 1:00 p.m.. Appellant never returned to Texas. On July 24, 2002,
the probation department filed a report alleging that Appellant had absconded
from Texas probation and the Court’s order.
On July 24, 2002, the State filed a motion to adjudicate Appellant’s guilt
and revoke her community supervision, alleging that she had violated several
conditions of such supervision. (CR 102). On April 15, 2015, the trial court heard
that motion, accepted Appellant’s pleas of true to all of the allegations in such
motion (RR2 - 7, 8), received evidence, and found that Appellant had violated the
conditions of his community supervision for which she had entered pleas of true.
(RR2 3 - 12)
Defense counsel argued that Appellant’s ten (10) year probationary period
had ended, that Appellant had not committed any violent offenses since the
inception of this case, and that the trial court should terminate Appellant’s
x
probation. (RR2 - 10) The State argued that the possession of 183 pounds of
marijuana, followed by Appellant’s thirteen (13) year disappearance after SAF-PF
did not warrant a termination of probation, rather it warranted a “sentence”. (RR2 -
11)
The trial court revoked Appellant’s community supervision, adjudicated her
guilty of possession of marijuana in the second degree, and sentenced her to six
(6) years in the Institutional Division of the Texas Department of Criminal Justice.
(CR 161, RR2 - 12)
xi
SUMMARY OF ARGUMENT
Under Anders, a court-appointed attorney may not raise an issue in an
appeal if he makes a conscientious examination of the case and finds the appeal is
wholly frivolous.1. To comply with Anders, counsel must isolate possibly
important issues and furnish the court with references to the record and legal
authorities to aid it in its appellate function.2. After the appellant is given an
opportunity to respond, the court makes a full examination of the record to detect
whether the case is frivolous.3
Appellant’s court-appointed counsel has reviewed the Clerk’s Record and
Reporter’s Record from the Trial Court, the sentence received by Appellant and
the factual basis for the sentence. As set forth in the Brief, there are no non-
frivolous issues.
1
Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396 (1967)
2
United States v. Johnson, 527 F.2d 1328, 1329 (5th Cir. 1976)
3
Anders at 744
xii
CAUSE NO. 13-15-00195-CR
IN THE COURT OF APPEALS
FOR THE THIRTEENTH JUDICIAL DISTRICT OF TEXAS
AT CORPUS CHRISTI, TEXAS
CARMINA PADROZ,
Appellant,
V.
THE STATE OF TEXAS,
Appellee,
Appeal from the 36th District Court of Live Oak County, Texas
Cause Number L-00-0078-2-CR-B
BRIEF OF DEFENDANT - APPELLANT
Pursuant to Anders v. California, 386 U.S. 738 (1967)
Appellant in the above referenced cause number files this Anders Brief and
would show the Court the following:
After a detailed search of the record, Appellant’s court-appointed counsel
has been unable to find any non-frivolous error.4
4
A frivolous appeal has been defined as an appeal in which the result is obvious or the arguments
of error are wholly without merit. Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir. 1988). This
Court defined a .frivolous appeal. as one where .the only theories that the attorney can discover
after this conscientious review of the record and the law are ‘arguments that cannot conceivably
persuade the court…’. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App. – Waco 1994). Any
1
The Anders Brief
The purpose of an Anders brief is to support counsel‘s Motion to Withdraw
by showing he has performed a conscientious examination of the record and the
appeal is so frivolous that an appellant should be denied his constitutional right to
appointed counsel on appeal. The ultimate test of an Anders brief is whether it
contains a professional evaluation of the record demonstrating why, in effect, there
are no arguable grounds to be advanced.
Standard of Review
Appellate review of an order revoking community supervision is limited to
determining whether the trial court abused its discretion. Cardona v. State, 665
S.W.2d 492, 493 (Tex. Crim. App. 1984).
An abuse of discretion occurs where the trial judge’s decision was so wrong
that it falls outside the zone within which reasonable persons might disagree.
Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). Courts of Appeal
examine the evidence in the light most favorable to the trial court’s order revoking
community supervision. Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App.
point which is .arguable on [the] merits. is, by definition, not frivolous. Johnson at 645. Yet
another definition is an appeal is .frivolous. when .the trial court‘s ruling[s were] correct. or .the
appellant was not harmed by the ruling[s].. High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App.
[Panel Op.] 1978).
2
1983)
Burden of Proof on Motions to Revoke Probation
The State’s burden of proof on a motion to revoke community supervision is
by a preponderance of the evidence that the terms of community supervision were
violated. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The State
satisfies its burden of proof when the greater weight of credible evidence before
the court creates a reasonable belief that it is more probable than not that a
condition of probation has been violated as alleged in the motion to revoke.
Joseph v. State, 3 S.W.3d 627 (Tex. App.—Houston [14 Dist.] 1999, no pet.).
A plea of true to any one of the alleged violations contained in a motion to
revoke is sufficient to support the trial court's order revoking community
supervision. Moore v. State, 11 S.W.3d 495, 498 n.1 (Tex. App. Houston [14th
Dist.] 2000, no pet.). Once a plea of true has been entered, a defendant may not
challenge the sufficiency of the evidence to support the subsequent revocation. Id.5
In a community supervision revocation hearing, the trial judge is the sole
trier of fact and determines the credibility of the witnesses and the weight to be
given to their testimony. Allbright v. State, 13 S.W.3d 817, 819 (Tex. App.–Fort
5
(citing Rincon v. State, 615 S.W.2d 746, 747 (Tex. Crim. App. [Panel Op.] 1981); Cole
v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979); Hays v. State, 933 S.W.2d
659, 661 (Tex. App. San Antonio 1996, no pet.)).
3
Worth 2000, pet. ref’d); Martin v. State, 571 S.W.2d 20, 22 (Tex. Crim. App.
1978). The trial judge may accept or reject any or all of the witness’ testimony.
Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987).
Abuse of Discretion
While the defendant at a revocation of community supervision proceeding
need not be afforded the full range of constitutional and statutory protections that
are available at a criminal trial, a person on community supervision is entitled to
certain due process protections. Staten v. State, 328 S.W.3d 901, 905 (Tex.
App.–Beaumont 2010, no pet.); see Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93
S. Ct. 1756, 1759-60, 36 L. Ed. 2d 656 (1973).
An abuse of discretion occurs where the trial judge’s decision was so wrong
that it falls outside the zone within which reasonable persons might disagree.
Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).
The “Arguable Issues of Law”
ARGUABLE ISSUE NO. 1: THE TRIAL COURT DID NOT ABUSE ITS
DISCRETION WHEN REVOKING APPELLANT’S COMMUNITY
SUPERVISION.
The trial court took Appellant’s pleas of true and found that all allegations
of violations were true. Of those violations, the most obvious for the trial court to
4
consider was Appellant’s knowledge of her status as being in violation of the
probation order from the 36th District Court to return to Texas and never returning
to Texas until being extradited from Arizona. (CR 109)
At the hearing, the trial court engaged Appellant and determined that:
• Appellant’s had received her conditions of probation (RR2 - 4)
• Appellant understood the conditions of her probation (RR2 - 4)
• Appellant had received her condition of probation (RR2 - 4)
• Appellant understood she was being sentenced that day (RR2 - 5)
• Appellant understood she could be sent to prison (RR2 - 6)
• Appellant was not mentally ill and was sober (RR2 - 6)
• Appellant was satisfied with her legal representation (RR2 - 6)
Of Appellant’s probation violations, the most glaring for the trial court to
consider was Appellant’s knowledge of her status as being in violation of the
probation order from the 36th District Court to return to Texas and never returning
to Texas until being extradited from Arizona. (CR 109)
Viewing the evidence in the light most favorable to the trial court’s ruling,
and giving deference to that court as the sole trier of facts, the credibility of the
witnesses, and the weight to be given to the evidence presented, it cannot be said
5
that the trial court abused its discretion in finding that the weight of the credible
evidence before it created a reasonable belief that Appellant violated a condition
of her community supervision, particularly when Appellant did not challenge any
of the violations to which she pleaded true.
The trial judge’s decision to revoke Appellant’s community supervision
rather than simply terminate the probation, in light of the violations, does not fall
outside the zone within which reasonable persons might disagree. Cantu v. State,
842 S.W.2d 667, 682 (Tex. Crim. App. 1992).
ARGUABLE ISSUE NO. 2: NO MERITORIOUS LEGAL CLAIM EXISTS
RELATED TO THE IMPOSITION OF PUNISHMENT IN THIS CASE.
Applicable Law and Standard of Review
The Legislature is vested with the power to define crimes and prescribe
penalties. See Davis v. State, 905 S.W.2d 655, 664 (Tex.App.-Texarkana 1995,
pet. ref'd). “Texas courts have traditionally held that, as long as the punishment
assessed is within the range prescribed by the Legislature in a valid statute, the
punishment is not excessive, cruel, or unusual." Williamson v. State, 175 S.W.3d
522, 524 (Tex.App.-Texarkana 2005, no pet.) (citing Jordan v. State, 495 S.W.2d
949, 952 (Tex.Crim.App. 1973)).
6
The Eighth Amendment to the United States Constitution provides that
“[e]xcessive bail shall not be required, nor excessive fines, nor cruel and unusual
punishment inflicted.” U.S. CONST. amend. VIII. “The concept of proportionality
is central to the Eighth Amendment.” Miller v. Alabama, 132 S. Ct. 2455, 2463
(2012) (citing Graham v. Florida, 560 U.S. 48, 59 (2010)). “Embodied in the
Constitution’s ban on cruel and unusual punishments is the ‘precept of justice that
punishment for crime should be graduated and proportioned to [the] offense.’”
Graham, 560 U.S at 59 (quoting Weems v. United States, 217 U.S. 349, 367
(1910)). TEX. CONST. Art. 1 Sec. 13. “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel or unusual punishment inflicted.”
United States Supreme Court cases that have addressed contests to the
proportionality of sentences fall within two general classifications: (1) challenges
to the length of term-of-years sentences given all the circumstances in a particular
case; and (2) cases in which a proportionality standard is implemented by certain
categorical restrictions on the death penalty. Id.
In a “term-of-years” proportionality challenge, we consider all of the
circumstances of the case to determine whether the sentence is unconstitutionally
excessive. Graham, 560 U.S. at 59. We begin our analysis with a threshold
comparison of the gravity of the offense and the severity of the sentence. Id.
7
(citing Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J.
concurring)). In the “rare case” in which the threshold comparison “leads to an
inference of gross disproportionality,” we then compare the defendant’s sentence
with the sentences received by other offenders in the same jurisdiction and with
the sentences imposed for the same crime in other jurisdictions. Id. If the analysis
“validates an initial judgment that the sentence is grossly disproportionate, the
sentence is cruel and unusual.” Id.
Analysis
The crime for which Appellant pled guilty has a two (2) to twenty (20) year
range of punishment. Appellant’s plea agreement “capped” her punishment at a ten
(10) year maximum. After hearing overwhelming evidence that Appellant violated
her probation, the trial court revoked her probation. At this juncture, the trial court
was authorized to impose a term of imprisonment up to ten (10) years.
In Solem v. Helm, 463 U.S. 277 (1983), standards were set to guide a
reviewing court to determine if the sentence violated the Eighth Amendment,
including comparing gravity of offense against severity of sentence. If such seems
extreme, the Court should compare sentences for similar crimes in the jurisdiction
and sentences for the same crime in other jurisdictions. Harmelin v. Michigan, 501
U.S. 957, 1006 (1991). See also Lockyer v. Andrade, 538 U.S. 63 (2003).
8
Under the totality of the circumstances - the gravity of possessing 183
pounds of marijuana, the complete lack of response to the State’s orders through
the 36th Judicial District Court to report to probation, the complete lack of
response after signing for a Certified Mail letter directing her return to Texas - it
was very likely that this Appellant could have received the full ten (10) year
punishment term. The trial court applied its discretion and decided on a six (6)
year term, four (4) years less than could have been imposed. In Texas, receiving a
six (6) year term of imprisonment for possessing such a large quantity of
marijuana is not an unusual punishment for such a crime.
Under Harmelin v. Michigan, 501 U.S. 957 (1991) and the 8th Amendment,
Appellant’s six (6) year sentence was not an extreme sentence that was grossly
disproportionate to the crime itself and was not cruel or unusual.
ARGUABLE ISSUE NO. 3: INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL IS NOT A VIABLE CLAIM BASED UPON THE RECORD
BEFORE THIS COURT.
Claims of ineffective assistance of counsel under the two-prong test set out
by the United States Supreme Court in Strickland v. Washington6 and adopted by
6
466 U.S. 688 (1984) , 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
9
Texas in Hernandez v. State. 7 Appellant must show that trial counsel’s
performance was deficient, that is, counsel’s representation fell below an objective
standard of reasonableness. 8
Appellant must also show that counsel’s deficient performance prejudiced
his defense. Strickland at 687. This requires Appellant show there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. at 694. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id. at 694
In reviewing an ineffective assistance of counsel claim, there is a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance and the appellant must overcome the presumption that the
challenged conduct might be considered sound trial strategy. Thompson at 813.
Any allegation of ineffectiveness must be firmly founded and affirmatively
demonstrated in the record to overcome this presumption. It is the Appellant‘s
burden to prove ineffective assistance of counsel by a preponderance of the
evidence. Id. at 813.
7
726 S.W.2d 53, 57 (Tex. Crim. App. 1986)
8
Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999); Strickland, 466 U.S. at
687-88, 104 S.Ct. at 2064
10
Analysis
Counsel was appointed to represent Appellant to assure she receive
effective legal assistance in this case and to present any possible defenses to the
State’s allegations that Appellant had violated terms of probation.
It is clear that Appellant violated all terms of her probation and absconded
from Texas in doing so. Appellant pled true to all allegations because they were in
fact true. It is unforeseeable that any attorney practicing criminal defense in any
jurisdiction could mount a successful defense to the State’s allegations. Most
notably the allegation that Appellant left Texas as was proved by her arrest in
Arizona.
Appellant’s defense was not prejudiced by any action or in-action taken by
defense counsel as there was no viable defense to the State’s allegations in this
case. The probability that Appellant would have her probation revoked after
absconding for over thirteen (13) years is highly likely.
Faced without any defense to the State’s allegations, defense counsel asked
the trial court to consider a termination of probation as opposed to a sentence of
imprisonment. The trial court did not side with the defense and chose, within its
right to do so, a sentence of imprisonment.
11
Based on this record, no legitimate non-frivolous basis exists to argue trial
counsel was constitutionally ineffective.
CONCLUSION AND RELIEF REQUESTED
For the reasons set forth, Appellant’s counsel urges that this appeal presents
no legally non-frivolous questions. Appellate Counsel requests this Court to Grant
his Motion to Withdraw. Appellant urges the Court for such other relief as
Appellant may be entitled.
Respectfully submitted,
/s/ Travis Berry
Travis Berry
Texas Bar No. 24059194
P.O. Box 6333
Corpus Christi, Texas 78466
T: (361) 673-5611; F: (361) 442-2562
travisberrylaw@gmail.com
ATTORNEY FOR APPELLANT
12
CERTIFICATE OF SERVICE
This is to certify that on this day of May 28, 2015, a true and correct copy of
the Appellant’s Anders Brief has been sent via U.S. mail to Jose Aliseda, Live Oak
County District Attorney, 111 S. St. Mary’s Street - Ste. 203, Beeville, Texas
78102.
This is to further certify that a true and correct copy of the same was sent on
May 28, 2015, via U.S. Mail to Appellant Carmina Padroz, TDC#: 01994822,
Plane State Jail, 904 F.M. 686, Dayton, Texas 77535.
/s/ Travis Berry
Travis Berry
13
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the
undersigned certifies this brief complies with the type-volume limitations
announced in Rule 9.4(i)(2)(B) of the Texas Rules of Appellate Procedure.
1. The undersigned certifies that the Initial Brief contains no more than 2,359
words in proportionately spaced typeface, an amount of words within the
limits set forth in Rule 9.4(i)(2)(B)
2. The brief has been prepared in proportionately spaced typeface using
WordPerfect 12 in 14 pt. Times New Roman. Footnotes have been used and
are all accounted for in the above word count.
3. The undersigned acknowledges a material misrepresentation in completing
this certificate, or circumvention of the type-volume limits states in Rule
9.4(i)(2)(B) of the Texas Rules of Appellate Procedure, may result in the
Court striking the brief.
/s/ Travis Berry
Travis Berry
14