Nicole Dawn Holland v. State ( 2015 )

ACCEPTED
03-14-00577-CR
5384098
THIRD COURT OF APPEALS
N O . 03-14-00577-CR AUSTIN, TEXAS
5/21/2015 3:29:05 PM
JEFFREY D. KYLE
CLERK
I N T H E COURT OF APPEALS OF
FILED IN
3rd COURT OF APPEALS
T H E T H I R D DISTRICT OF TEXAS A T AUSTIN AUSTIN, TEXAS
5/21/2015 3:29:05 PM
JEFFREY D. KYLE
Clerk
NICOLE D A W N H O L L A N D ,
Appellant
T H E STATE OF TEXAS
Appellee
Appeal in Cause No. 41204 in the
424"^ Judicial District Court of Burnet County, Texas
Brief For Appellee
OFFICE OF DISTRICT ATTORNEY
3 3 ^ and 424" JUDICLAL DISTRICTS
Wiley B. McAfee, District Attorney
P. O. Box 725, Llano, Texas 78643
Telephone Telecopier
(325) 247-5755 (325) 247-5274
g.bunyard@co.llano.tx.us
By: Gary W. Bunyard
Assistant District Attorney
State Bar No. 03353500
ATTORNEY FOR APPELLEE
May 21, 2015
Oral Argument Waived
Identity Of The Parties
Trial Court
Honorable J. Allen Garrett (Plea of Guilty on 06/21/2014 -
33''* Judicial District Community Supervision granted)
Burnet County Courthouse Annex (North)
1701 East Polk St., Suite 74
Burnet, T X 78611
Honorable Dan Mills (Hearing on Motion to Revoke
424'^ Judicial District (former) Community Supervision 9/3/2014)
Burnet County Courthouse Annex (North)
1701 East Polk St., Suite 74
Burnet, T X 78611
ii
State/Appellee
Peter Keim (Trial Counsel - 6/21/2014)
Assistant District Attorney
1701 E. Polk St., Suite 24
Burnet, Texas 78611
(512) 756-5449
State Bar No. 15532500
Robert Blake Ewing (Trial Counsel - 9/3/2014)
Assistant District Attorney
1701 E. Polk St., Suite 24
Burnet, Texas 78611
(512) 756-5449
State Bar No. 24076376
Richard S. Crowther (Trial Counsel - 9/3/2014)
Assistant District Attorney
1701 E. Polk St., Suite 24
Burnet, Texas 78611
(512) 756-5449
State Bar No. 05174200
Gary W. Bunyard (Appellate Counsel)
Assistant District Attorney
P. O. Box 725
Llano, Texas 78643
(325) 247-5755
State Bar No. 03353500
g.bunyard@co.llano.tx.us
iii
Appellant
Matthew Rienstra (Trial Counsel - 6/21/2014)
P.O. Box 91226
Austin, T X 78709
(512) 476-5588
State Bar No. 16908020
Barton Joseph Vana (Trial Counsel - 9/3/2014)
Attorney at Law
P.O. Box 398
Burnet, T X 78611
(512) 756-5117
State Bar No. 24084441
Tracy D. Cluck (Appellate Counsel)
Attorney at Law
1450 West Hwy. 290, #855
Dripping Springs, T X 78620
(512) 264-9997
State Bar No. 00787254
Nicole Dawn Holland (Appellant)
TDCJ #01962247
SID #04906312
Linda Woodman State Jail
1210 Coryell CityRd.
Gatesville,TX 76528
iv
Table Of Contents
Page
Index of Authorities vi
Statement of the Case 2
Statement on Oral Argument 3
Response to Issues Presented 4
Statement of the Facts 4
Summary of the Argument and Argument -
Response to Issue No. 1 5
The State agrees that no reversible error
exists in the record of this cause and that the
appeal herein is frivolous.
Prayer for Relief. 6
Certificate of Word Count 6
Certificate of Service 7
V
Index Of Authorities
Case Law
Anders v. California. 386 U.S. 738, 87 S. Ct. 1396,
18 L.Ed.2nd 492 (1967)
Highv. State. 573 S.W.2d 807 (Tex. Crim. App. 1978)
Pensonv. Ohio. 488 U.S. 75,109 S. Ct. 346,
102 L. Ed. 2d 300 (1988)
Constitutions
None cited
Statutes/Rules
Tex. R. App. Proc. 38.1(d)
Tex. R. App. Proc. 38.1(g)
vi
N O . 03-14-00545-CR
I N THE
COURT OF APPEALS
OF T H E T H I R D DISTRICT OF TEXAS A T A U S T I N
NICOLE D A W N H O L L A N D ,
Appellant
V.
TFIE STATE OF TEXAS
Appellee
Appeal in Cause No. 41204
in the 424'" Judicial District Court of
Burnet County, Texas
Brief For Appellee
To The Honorable Justices Of Said Court:
Now comes the State of Texas, hereinafter called Appellee, and submits this
brief pursuant to the provisions of the Texas Rules of Appellate Procedure in support
of the State's request affirm the judgment of the trial court.
1
statement Of The Case
Appellant has not adequately described the Statement of the Case as it is not
supported by record references. Tex. R. App. Proc. 38.1(d).
Appellant was indicted on March 5, 2013, for the offense of Driving While
Intoxicated with a Child Passenger on November 6, 2011. CR Vol. 1 Page 4. On
June 21, 2013, Appellant entered into a negotiated plea of Guilty to the offense
charged in exchange for the State recommending punishment of 2 years
confinement in the State Jail Division of the Texas Department of Criminal Justice
and a fme of $1,000, with both the fine and term of imprisonment to be probated for
a period of 3 years. CR Vol. 1 Pages 17 - 19; 21 - 22. On September 3,2014, at the
conclusion of a hearing, the trial court revoked Appellant's community supervision
and sentenced Appellant to serve two years confinement in the State Jail Division of
the Texas Department of Criminal Justice and imposed a fine of $1,000. RR Vol.
3 Page 31; CR Vol. 1 Pages 37 - 38. Appellant filed her Motion for New Trial on
September 8, 2014. CR Vol. 1 Pages 43 - 45. Notice of Appeal was then dmely
filed on September 8, 2014. CR Vol. 1 Page 46.
2
statement on Oral Argument
The undersigned waives Oral Argument. The undersigned does not believe
that Oral Argument will be beneficial for this case for the reason that the issues are
straight forward and lack any novel or complex nuances. Should the Court believe
that Oral Argument will assist the Court in any way, the undersigned will
accommodate the Court.
3
R e s p o n s e To i s s u e s Presented
The State agrees that no reversible error exists in the record o f this
cause and that the appeal herein is frivolous.
Statement Of Tite Facts
Appellant has accurately described the facts o f this case as the facts are not
supported by record references. Tex. R. App. Proc. 38.1(g).
4
Summary Of The Argument and Argument on
R e s p o n s e to i s s u e No. i
The State agrees that no reversible error exists in the record of
this cause and that the appeal herein is frivolous.
Appellant seeks to appeal her conviction and sentence. Appellant's appellate
counsel describes various arguable grounds for appeal and explains why such
grounds do not support a finding of reversible error. The State of Texas has fully
reviewed the record and agrees that there was no reversible error committed in the
trial proceedings and that the appeal thereof is frivolous. See Anders v. California.
386U.S. 738, 87 S. Ct. 1396,18 L.Ed.2nd 492 (1967); Pensonv. Ohio. 488U.S. 75,
109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); and High v. State. 573 S.W.2d 807 (Tex.
Crim. App. 1978).
5
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellee prays the Court deny
the relief sought in Appellant's appeal and affirm the judgment and sentence of the
trial court.
Respectfully submitted,
OFFICE OF DISTRICT ATTORNEY
33" and 424'^ JUDICIAL DISTRICTS
Wiley B. McAfee, District Attorney
P. O. Box 725
Llano, Texas 78643
Telephone Telecopier
(325) 247-5755 (325) 247-5274
^Sar"^X^r'^BunySo
Assistant District Attorney
State Bar No. 03353500
ATTORNEY FOR APPELLEE
C E R T I F I C A T E OF WORD C O U N T
This is to certify that the pertinent portion of this brief contains 223 words
printed in Aldine401 BT 14 font according to the WordPerfect™ X7 word count
tool.
C E R T I F I C A T E OF SERVICE
This is to certify that a true copy of the above and foregoing instrument,
together with this proof of service hereof, has been forwarded by EServe and by
email on the 21st day of May 2015, to Mr. Tracy D. Cluck, Attorney for Appellant,
at tracy@tracyclucklawyer.com.
^C-"xy "Spunyai"
Assistant District Attorney
7