Gregory Carl Rolling, Jr. v. State ( 2015 )

ACCEPTED
12-15-00144-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
8/13/2015 11:53:30 AM
CATHY LUSK
CLERK
No. 12-15-00144-CR
FILED IN
12th COURT OF APPEALS
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
TYLER, TEXAS 8/13/2015 11:53:30 AM
CATHY S. LUSK
Clerk
GREGORY CARL ROLLING, JR.
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the 114th District Court of Smith County, Texas
Trial Cause No. 114-1172-14
ORAL ARGUMENT NOT REQUESTED
Austin Reeve Jackson
Texas Bar No. 24046139
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:
Norman Ladd
235 S. Broadway Ave.
Suite 200
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
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS............................................................................................... iii
INDEX OF AUTHORITIES ......................................................................................... iv
STATEMENT OF THE CASE....................................................................................... 2
ISSUE PRESENTED ...................................................................................................... 2
STATEMENT OF FACTS ............................................................................................. 2
PROFESSIONAL EVALUATION OF THE RECORD ................................................ 3
SUMMARY OF THE ARGUMENT ............................................................................. 3
ARGUMENT .................................................................................................................. 4
I. THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN
REVOKING APELLANT'S COMMUNITY SUPERVISION .................. 4
Standard of Review ................................................................................................... 4
A. There was Legally Sufficient Evidence to Support the Revocation ................... 5
1. The Plea ......................................................................................................... 6
2. Sufficiency of the Evidence ........................................................................... 6
B. Appellant's Setence was Within the Statutory Range of Punishment ................. 7
C. Appellant Received Effective Assistance of Counsel ......................................... 9
CONCLUSION AND PRAYER .................................................................................. 10
CERTIFICATE OF SERVICE ..................................................................................... 11
CERTIFICATE OF COUNSEL ................................................................................... 12
CERTIFICATE OF COMPLIANCE ............................................................................ 12
iii
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
Robinson v. California,
370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962) ..................................... 7
Solem v. Helm,
463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983) ................................. 8
Strickland v. Washington,
466 U.S. 668, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1984) ................................. 9
TEXAS COURT OF CRIMINAL APPEALS:
Aguirre-Mata v. State,
125 S.W.3d 473 (Tex.Crim.App. 2003) ........................................................ 6
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) ........................................................ 6
Cole v. State,
578 S.W.2d 127 (Tex.Crim.App. 1979) ........................................................ 7
Ex parte Brown,
158 S.W.3d 449 (Tex.Crim.App. 2005) ........................................................ 8-9
Garcia v. State,
57 S.W.3d 436 (Tex.Crim.App. 2001) ......................................................... 10
Hernandez v. State,
988 S.W.2d 70 (Tex.Crim.App. 1999) ......................................................... 9
iv
TEXAS COURT OF CRIMINAL APPEALS (CON’T):
Jackson v. State,
877 S.W.2d 768 (Tex.Crim.App. 1994) ....................................................... 10
Jordan v. State,
495 S.W.2d 949 (Tex.Crim.App. 1973) ....................................................... 8
Lyles v. State,
850 S.W.2d 497 (Tex.Crim.App. 1993) ........................................................ 4
Mendez v. State,
138 S.W.3d 334 (Tex.Crim.App. 2004) ........................................................ 6
Miniel v. State,
831 S.W.2d 310 (Tex.Crim.App. 1992) ....................................................... 9
Moore v. State,
605 S.W.2d 924 (Tex.Crim.App. 1980) ........................................................ 7
Moore v. State,
694 S.W.2d 528 (Tex.Crim.App. 1985) ........................................................ 9
Moses v. State,
590 S.W.2d 469 (Tex.Crim.App. 1979) ....................................................... 7 n.1
Rhoades 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
Thompson v. State,
9 S.W.3d 808 (Tex.Crim.App. 1999) ........................................................... 10
v
TEXAS COURTS OF APPEAL:
Aguilar v. State,
279 S.W.3d 350 (Tex.App.—Austin 2007) ................................................... 9 n.2
Bolden v. State,
73 S.W.3d 428 (Tex.App.—Houston [1st Dist.] 2002) ................................. 8
Brooks v. State,
995 S.W.2d 762 (Tex.App.—San Antonio 1999).......................................... 7
Canseco v. State,
199 S.W.3d 437 (Tex.App.—Houston [1st Dist.] 2006) ............................... 4
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) ......................................... 4, 5, 7
Joseph v. State,
3 S.W.3d 627 (Tex.App.—Houston [14th Dist.] 1999) ................................. 4
Lewis v. State,
195 S.W.3d 205 (Tex.App.—San Antonio 2006).......................................... 4
Mays v. State,
904 S.W.2d 290 (Tex.App.—Fort Wroth 1995) ............................................ 3
Noland v. State,
264 S.W.3d 144 (Tex.App.—Houston [1st Dist.] 2007) .............................. 8
Roman v. State,
145 S.W.3d 316 (Tex.App.—Houston [14th Dist.] 2004) ............................. 9
Sims v. State,
326 S.W.3d 707 (Tex.App.—Texarkana 2010) ............................................. 6
vi
TEXAS COURTS OF APPEAL (CON’T):
Trevino v. State,
174 S.W.3d 925 (Tex.App.—Corpus Christi 2005) ...................................... 8
Uresti v. State,
98 S.W.3d 321 (Tex.App.—Houston [1st Dist.] 2003) ................................. 9 n.2
STATUTES AND OTHER CONSTITUTIONAL PROVISIONS:
TEX. HEALTH & SAFETY CODE § 481.134 ......................................................... 8
TEX. PEN. CODE § 12.34 .................................................................................... 8
TEX. R. APP. P. 33.1 .......................................................................................... 6, 8
U.S. CONST. AMEND. VIII ................................................................................. 7
U.S. CONST. AMEND. XIV ................................................................................. 7
vii
No. 12-15-00144-CR
IN THE TWELFTH COURT OF APPEALS
TYLER, TEXAS
GREGORY CARL ROLLING, JR.
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the 114th District Court of Smith County, Texas
Trial Cause No. 114-1172-14
TO THE HONORABLE JUSTICES OF THE COURT:
COMES NOW, Austin Reeve Jackson, attorney for Gregory Rolling and
files this brief pursuant to the Texas Rules of Appellate Procedure, and would
show the Court as follows:
STATEMENT OF THE CASE
Gregory Rolling seeks to appeal his conviction and sentence for the offense
of possession of a controlled substance rendered against him in the 114th District
Court of Smith County. (I CR 86). After being indicted for this offense in Sep-
tember of last year, Mr. Rolling was, by agreement, placed on a term of six years
deferred adjudication community supervision. (I CR 4, 52). However, in May of
this year that probation was revoked and Mr. Rolling was sentenced to serve six
years’ confinement. (I CR 86). Sentence was pronounced on 26 May and notice
of appeal then timely filed. (I CR 86, 91).
ISSUE PRESENTED
THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN
REVOKING APPELLANT’S COMMUNITY SUPERVISION.
STATEMENT OF FACTS
In September of 2014, Appellant, Mr. Gregory Rolling, was indicted for the
felony offense of possession of a controlled substance in a drug free zone. (I CR
4). To this charge, he entered a plea of “guilty” and, pursuant to a plea agreement,
was placed on a term of six years’ deferred adjudication community supervision.
(I CR 52).
Unfortunately, in May of this year Mr. Rolling was facing an application to
proceed to final adjudication in which the State alleged he had committed multiple
violations of his probation. (I CR 71). To the majority of these allegations Mr.
2
Rolling entered pleas of “true” and the trial court, finding the violations to be true,
adjudicated guilt and imposed punishment at six years’ confinement. (I CR 86).
Sentence was pronounced on 26 May and notice of appeal then timely filed. (I CR
86, 91).
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 is required to present a profes-
sional evaluation 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 THE 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-
ed for the Court.
3
ARGUMENT
Standard of Review
Where a trial court revokes a previously imposed term of community super-
vision the decision to do so 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). This review considers the record in the light most favora-
ble to the trial court’s decision. Duke v. State, 2 S.W.3d 512, 515 (Tex.App.—San
Antonio 1999, no pet.).
Proof of even a single violation is sufficient to support a revocation. Can-
seco v. State, 199 S.W.3d 437, 439 (Tex.App.—Houston [1st Dist.] 2006, pet.
ref’d). Therefore, in order to prevail an appellant must show that taking the evi-
dence in the light most favorable to the court’s decision there is insufficient evi-
dence to support each and every 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.). Additionally, a plea of true,
standing alone, is sufficient to support a trial court’s revocation of community su-
pervision. See Hays v. State, 933 S.W.2d 659, 661 (Tex.App.—San Antonio 1996,
4
no pet.) (holding that a plea of “true” to any violation can by itself support a revo-
cation).
THE TRIAL COURT ACTED WITHIN ITS DISCRE-
TION IN REVOKING APPELLANT’S COMMUNITY
SUPERVISION.
A. There Was Legally Sufficient Evidence to Support the Revocation.
By way of a written motion to proceed to final adjudication, Mr. Rolling was
alleged to have violated the terms of his community supervision. (I CR 71). The
application included the following allegations:
Application Paragraph Allegation
I Identity of Defendant
II Failure to Submit to Urinalysis (Abandoned at trial)
III Failure to Pay for a Urinalysis
IV-VI Failure to Pay Various Fees and Costs
VII Failure to Report
VIII Failure to Complete Outpatient Treatment
IX Failure to Attend AA Meetings
(I CR 71-75). To all paragraphs but paragraphs VII and IX, pleas of “true” were
entered. (I CR 86). Thus, if the pleas of “true” were entered freely, knowingly,
and voluntarily, the trial court had sufficient evidence to revoke Mr. Rolling’s
community supervision. Hays, 933 S.W.2d at 661.
5
1. The Plea
Before accepting his plea, the trial court advised Mr. Rolling as to the con-
sequences of entering his plea, including the potential range of punishment, and
also advised him of his right to remain silent and his right to have a hearing on the
allegations at issue. (IV RR 4-22). After having been so advised, Mr. Rolling per-
sisted in his desire to enter pleas of “true” and gave no indication that he was doing
so involuntarily. (Id.); see Sims v. State, 326 S.W.3d 707, 713 (Tex.App.—
Texarkana 2010, pet. struck) (citing Mendez v. State, 138 S.W.3d 334, 350
(Tex.Crim.App. 2004)) (holding that challenges to the voluntariness of a plea must
be raised before the trial court in order to preserve the error for appeal); see also
TEX. R. APP. PROC. 33.1(a)(1). Finally, could any error be advanced regarding the
trial court’s admonishments, such error would be non-constitutional error subject
to a harm analysis and, given the record before the Court, Mr. Rolling could not
meet that burden in this case. See Aguirre-Mata v. State, 125 S.W.3d 473, 474-76
(Tex.Crim.App. 2003).
2. Sufficiency of the Evidence
The State must prove allegations in a revocation setting by a preponderance
of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). Evi-
dence, therefore, is sufficient if an analysis of its comparative weight tends to sup-
port the trial court’s conclusion that at least one condition of probation was violat-
6
ed. See Rickels, 202 S.W.3d at 764 (holding that evidence is sufficient to support a
revocation where the greater weight of the credible evidence before the court sup-
ports a reasonable belief that a condition of probation has been violated). Moreo-
ver, a plea of true, standing alone, is sufficient to support a trial court’s revocation
of community supervision. See, 933 S.W.2d at 661 (holding that a plea of “true” to
any violation can by itself support a revocation). Thus, where the Court finds that
a voluntary plea of true was entered, as was the case here, the evidence is legally
sufficient to support the revocation. (V RR 14); Moore v. State, 605 S.W.2d 924,
926 (Tex.Crim.App. 1980); Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App.
1979); Brooks v. State, 995 S.W.2d 762, 763 (Tex.App.—San Antonio 1999, no
pet.).1
B. Appellant’s Sentence Was Within the Statutory Range of Punishment.
The Eighth Amendment prohibits the imposition of “cruel and unusual pun-
ishment.” U.S. CONST. AMEND. VIII. The Eighth Amendment is applicable to the
states through the Fourteenth Amendment. U.S. CONST. AMEND. XIV; Robinson v.
California, 370 U.S. 660, 667, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962).
Here, neither Mr. Rolling nor his trial counsel raised the issue of cruel or ex-
cessive punishment at the time sentence was imposed and, therefore, this issue has
1
The record also contains a written stipulation of evidence, signed by Mr. Rolling, offered and
accepted by the court at trial, and admitting to the truth of the allegations made against him. (I
CR 84; IV RR 22). Such a written stipulation is, likewise, sufficient to support the trial court’s
decision. See Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979) (a plea of true and
written stipulation is sufficient to support revocation).
7
likely been waived on appeal. See TEX. R. APP. PROC. 33.1(a)(1)(A); Rhoades v.
State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Noland v. State, 264 S.W.3d
144, 151-52 (Tex.App.—Houston [1st Dist.] 2007, pet. ref’d); Castaneda v. State,
135 S.W.3d 719, 723 (Tex.App.—Dallas 2003, no pet.); but see Solem v. Helm,
463 U.S. 277, 288, 103 S. Ct. 3001, 3008-09, 77 L. Ed. 2d 637 (1983) (noting excep-
tion to this general rule if sentence assessed is grossly disproportionate to the
crime). Additionally, the sentence imposed of six years’ confinement was within
the statutory punishment range for the offense and is, consequently, virtually pre-
sumed not to be constitutionally cruel and unusual. Jordan v. State, 495 S.W.2d
949, 952 (Tex.Crim.App. 1973); Trevino v. State, 174 S.W.3d 925, 928
(Tex.App.—Corpus Christi 2005, pet. ref’d); see also TEX. HEALTH & SAFETY
CODE § 481.134(b) (defining possession of a controlled substance, as alleged, as a
third-degree felony); TEX. PEN CODE § 12.34 (punishment range for a third degree
felony). Further, that Mr. Rolling was sentenced below the maximum possible ten-
year sentence is also a factor indicating that the sentence was not excessive or cru-
el. Bolden v. State, 73 S.W.3d 428, 434 (Tex.App.—Houston [1st Dist.] 2002, pet.
ref’d).
Finally, due process requires that the trial court consider the full range of
punishment for an offense and weigh both mitigating and incriminating evidence in
the assessment of sentence. Ex parte Brown, 158 S.W.3d 449, 454
8
(Tex.Crim.App. 2005). In the absence of a clear showing to the contrary, on ap-
peal the Court will presume that the trial court did not act arbitrarily and consid-
ered all of the evidence before it. Roman v. State, 145 S.W.3d 316, 319
(Tex.App.—Houston [14th Dist.] 2004, pet. ref’d). Given the record before the
Court, this presumption cannot be overcome on direct appeal.2
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-
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).
2
The trial court ordered payment of $173.00 to DPS. (I CR 86). This was pursuant to the origi-
nal plea agreement agreed to by Mr. Rolling. (I CR 52, 60); cf. Aguilar v. State, 279 S.W.3d
350, 353-54 (Tex.App.—Austin 2007) (mem. op.); Uresti v. State, 98 S.W.3d 321, 338
(Tex.App.—Houston [1st Dist.] 2003, no pet.) (both noting such fees are generally impressible
when ordered as part of a sentence of confinement).
9
With this standard in mind, a comprehensive review of the record has been
made of the proceedings including pretrial matters, Mr. Rolling’s original plea, the
revocation hearing, and the arguments of counsel. Here, that review fails to shows,
given the totality of the representation provided by trial counsel, any basis from
which to argue that ineffective assistance was rendered. See, e.g., Garcia v. State,
57 S.W.3d 436, 440 (Tex.Crim.App. 2001); Thompson v. State, 9 S.W.3d 808, 812
(Tex.Crim.App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.
1994).
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. Rolling 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).
10
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 efile on this the 13th day of August 2015.
/s/ Austin Reeve Jackson
11
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
consists of 2,332 words.
/s/ Austin Reeve Jackson
12