Tyler Coleman-Cone v. State

ACCEPTED
06-17-00191-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/9/2018 3:03 PM
DEBBIE AUTREY
CLERK
Cause No. 06-17-00191-CR
***************
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
1/9/2018 3:03:55 PM
IN THE COURT OF APPEALS DEBBIE AUTREY
Clerk
SIXTH APPELLATE DISTRICT OF TEXAS
AT TEXARKANA, TEXAS
***************
TYLER COLEMAN-CONE
VS.
THE STATE OF TEXAS
**************
AMENDED APPELLATE BRIEF PURSUANT TO ANDERS V. CALIFORNIA
Appealed from the 71st Judicial District Court of
Harrison County, Texas
Trial Court No. 15-0419X
Appellant does not request oral argument.
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Cause No. 06-17-00191-CR
TYLER COLEMAN-CONE § IN THE COURT OF
VS. § APPEALS, SIXTH DISTRICT
THE STATE OF TEXAS § STATE OF TEXAS
NAMES OF ALL PARTIES AND ATTORNEYS
Pursuant to Texas Rule of Appellate Procedure 38.1(a), Appellant certifies that the
following is a true and correct list of all parties to the trial court’s final judgment, and their
counsel:
TYLER COLEMAN-CONE, Appellant
1113 Larry Drive
Marshall, Texas 75670
The Honorable Brad Morin, Trial Judge
200 W. Houston
Marshall, Texas 75670
Shawn Connally, Harrison County Assistant District Attorney at trial
200 W. Houston
Marshall, Texas 75670
Rick Hurlburt, Attorney for Appellant on Plea
222 N. Fredonia St.
Longview, Texas 75601
Laura Carpenter Harrison County Assistant District Attorney on Appeal
200 W. Houston
Marshall, Texas 75670
Rick Berry , Attorney for TYLER COLEMAN-CONE, at plea of true
111 W. Austin St.
Marshall, Texas 75670
Scott Rectenwald, Appellate attorney for TYLER COLEMAN-CONE
110 W. Fannin St.
Marshall, Texas 75670
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TABLE OF CONTENTS
NAMES OF ALL PARTIES ................................................................................................... 2
TABLE OF CONTENTS ....................................................................................................... 3
INDEX OF AUTHORITIES .................................................................................................. 4
PRELIMINARY STATEMENT ............................................................................................. 5
ARGUABLE POINTS PRESENTED ................................................................................... 5
STATEMENT OF FACTS .................................................................................................... 5
ARGUABLE POINT NUMBER ONE ................................................................................... 8
SUMMARY OF ARGUMENT ............................................................................... 8
ARGUMENT AND AUTHORITIES .................................................................... 8
ARGUABLE POINT NUMBER TWO ................................................................................ 10
SUMMARY OF ARGUMENT ............................................................................... 10
ARGUMENT AND AUTHORITIES .................................................................... 11
PRAYER .............................................................................................................................. 13
CERTIFICATE OF SERVICE ............................................................................................ 14
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INDEX OF AUTHORITIES
CASE AUTHORITIES:
Allbright v. State, 13 S.W.3d 817 (Tex.App.-Fort Worth 2000, pet. refused) ................ 10
Davis v. State, 905 S.W.2d 655, 664-65 (Tex. App. -- Texarkana 1995, pet. ref'd)........... 9
Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex.Crim.App.2006) ................................... 9
Gordon v. State, 575 S.W.2d 529, 531 (Tex. Crim. App. [Panel Op.] 1978)..................... 12
Jackson v. State, 989 S.W.2d 842 (Tex.App.–Texarkana 1999, no pet.)........................ 8, 9,10
Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973)......................................... 8
Labelle v. State, 720 S.W.2d 101, 108-09 (Tex. Crim. App. 1986)................................... 12
Latham v. State, 20 S.W.3d 63 (Tex.App.–Texarkana 2000, pet. ref'd)............................ 8, 10
Longoria v. State, 624 S.W.2d 582, 584 (Tex. Crim. App. 1981)..................................... 12
Martinez v. State, 493 S.W.2d 954, 955 (Tex. Crim. App. 1973) .................................... 12
Rodriguez v. State, 951 S.W.2d 199, 204 (Tex. App.-Corpus Christi 1997, no pet.)....... 12
Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 77 L. Ed. 2d 637, 650 (1983).......... 9
STATUTES AND CODES:
Texas Penal Code §49.07 ................................................................................................ 6
T.R.A.P. 33.1(a)(1)(A).................................................................................................... 9
U.S. CONST ., amend. VIII ................................................................................................. 8
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PRELIMINARY STATEMENT OF THE CASE
Appellant TYLER COLEMAN-CONE appeals his conviction on a count of intoxication
assault. On March 20, 2017, Appellant plead guilty, and pursuant to a plea agreement received a
ten year sentence probated for a period of ten years. (CR Vol. I, Page 32) On July 17, 2017, the
State filed an Application for Revocation of Probation, ( CR Vol. I, Pages 41), and later a First
Amended Application for Revocation of Probation on July 25, 2017. (CR Vol. I, Page 54. On
September 13, 2017, the Court held a hearing on the State’s Motion, and the Appellant entered a
plea of true to a single allegation. (RR Vol. I, Pages 8-9) Following testimony from the
Appellant’s probation officer and Appellant, the Court revoked the Appellant’s probation, and
sentenced the Appellant to seven years imprisonment. (RR Vol. II, Page 22) This is a direct
appeal.
ARGUABLE ISSUES EVALUATED
ISSUE NUMBER ONE
Was the Appellant’s sentence disproportionate punishment for the Appellant’s offense so
as to amount to cruel and unusual punishment under the Eighth Amendment to the United States
Constitution?
ISSUE NUMBER TWO
Did the Court err in revoking the Appellant’s probation when the language describing the
condition violated in the State’s Motion to Revoke Supervision failed to track the language of the
Court’s Judgment and Sentence, and when the allegation of the act relied upon as a violation
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failed to allege an actual violation of the Court’s conditions of probation?
STATEMENT OF FACTS
Appellant was indicted on a single count of Intoxication Assault, Tex. Pen. Code 49.07.
(CR Vol. I, Page 52) On March 20, 2017, Appellant plead guilty pursuant to a plea agreement,
and the Court found the Appellant guilty, sentencing him to ten years confinement in the Texas
Department of Corrections and also suspending the imposition of that sentence and placing the
Appellant on probation for a period of ten years under various terms and conditions. (CR Vol. I,
Pages 32-36) The Court’s conditions of probation included, among other things, that the
Defendant “Avoid injurious or vicious habits, as well as persons or places of disreputable or
harmful character...” and that the Defendant should not, “consume or possess....unlawful
controlled substances, narcotic, dangerous drugs, marijuana...” (CR Vol. I, Page 34, conditions
2 and 10). On July 17, 2017, the State filed a motion to revoke supervision, alleging that
Appellant had violated Condition (2) of his probation, that being to “Avoid injurious or vicious
habits, including the use of alcohol, controlled substances or habit forming drugs....” and alleging
his violation to be : “... the Defendant, Tyler Dne’aundre Coleman-Cone, admits to using
marijuana on 6/15/17.” ( CR Vol. I, Pages 41-43) On July 25, 2017, the State filed an amended
motion to revoke supervision, adding two additional allegations. (CR Vol. I, Pag. 54-56) The
Court held a hearing on the State’s motion to revoke probation (RR Vol. II, Page 4). The State
abandoned all allegations other than that relating to condition (2) and the Appellant entered a
plea of true to the allegation that he had violated Condition (2) of his probation. (RR Vol. II,
Pages 8)
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The State called Community Supervision Officer Halle Biery as its sole witness.(RR Vol.
II, Page 9). Biery testified that Appellant had been non-compliant with probation from the
beginning. (RR Vol. II, Page 9) Biery stated that Appellant had continued to use marijuana
during his probation, and at one point she made him agree to a modification of probation for
three days in jail in an effort to make him realize that he could not continue to use marijuana.
(RR Vol. II, Page 10). Appellant reported to jail, but also admitted to using marijuana before
reporting to jail, at which time Biery filed a violation report. (RR Vol. II, Page 11) Biery testified
that to her knowledge the Appellant had not received any kind of counseling for his marijuana
use. (RR Vol. II, Page 12)
The Appellant testified that marijuana had been a problem for him for quite a while, his
use having started his freshman year in high school. (RR Vol. II, Page 13) Appellant continued
to use marijuana even after he had been put on probation, and admitted to Officer Biery that he
had used marijuana in June. (RR Vol. II, Page 14) Appellant used marijuana to cope with his
emotions and calm himself down. (RR Vol. II, Page 14-15) Appellant used marijuana just
before his jail sanction because of a combination of things - a friend had tried to commit suicide,
Appellant had just lost his job, and he was preparing to go to jail. (RR Vol. II, Page 16)
Appellant asked to Court to consider modification of his probation to require drug treatment in
SAF-P. (RR Vol. II, Page 16-17)
At the conclusion of the evidence, the Court found that the Appellant had violated the
conditions of his probation and sentenced him to seven years in the Texas Department of
Criminal Justice Institutional Division. (RR Vol. II, Page 22)
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ISSUE NUMBER ONE
Was the Appellant’s sentence disproportionate punishment for the Appellant’s offense so
as to amount to cruel and unusual punishment under the Eighth Amendment to the United States
Constitution?
SUMMARY OF ARGUMENT
This issue of whether the sentence was disproportionate in this case was not preserved.
Even if the issue had been preserved, the Appellant’s sentence was within the range of
punishment. The record in Appellant’s case did not contain information on the sentences
imposed on other criminals in the same jurisdiction and sentences imposed for commission of
the same crime in other jurisdictions for this Court to make a determination about
disproportionality.
ARGUMENT
Texas courts have traditionally held that as long as the punishment is within the range
prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual.
See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973. However, in Jackson v.
State, 989 S.W.2d 842, 845 (Tex. App. --Texarkana 1999, no pet.), this Honorable Court
recognized that a prohibition against grossly disproportionate punishment survives under the
Eighth Amendment apart from any consideration of whether the punishment assessed is within
the range established by the Legislature. See also Latham v. State, 20 S.W.3d 63, 68-9 (Tex.
App. -- Texarkana 2000, pet. ref'd).
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This Court's proportionality analysis under the Eighth Amendment is guided by (1) the
gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other
criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same
crime in other jurisdictions. Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 77 L. Ed. 2d
637, 650 (1983). Only if the sentence is grossly disproportionate to the offense should the Court
consider the remaining factors of the Solem test and compare the sentence received to sentences
for similar crimes in the same jurisdiction and to sentences for the same crime in other
jurisdictions. Davis v. State, 905 S.W.2d 655, 664-65 (Tex. App. -- Texarkana 1995, pet. ref'd).
In this case, no objection was made to the sentence at the time that it was pronounced.
(RR Vol. II, Page 22), and therefore nothing was preserved for review. T.R.A.P. 33.1(a)(1)(A).
See also Jackson v. State, 989 S.W.2d 842, 845 (Tex.App.–Texarkana 1999, no pet.).
Had the issue been preserved, it would still not prevail. The Appellant received a
sentence of seven years on an intoxication assault, which reduced and modified his original
sentence of ten years (RR Vol. II, Page 22). It is the general rule that as long as a sentence is
within the proper range of punishment, it will not be disturbed on appeal. Jackson v. State, 680
S.W.2d 809, 814 (Tex.Crim.App.1984). See generally Ex parte Chavez, 213 S.W.3d 320, 323–24
(Tex.Crim.App.2006) (describing essentially “unfettered” sentencing discretion of court).
The Appellant presented evidence of his continued struggle with marijuana over a period
of five or more years (RR Vol. II, Pages 13-18) However, the Court is the sole trier of fact and
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determines the credibility of the witnesses and the weight given their testimony. Allbright v.
State, 13 S.W.3d 817, 818–19 (Tex.App.-Fort Worth 2000, pet. refused), and in this case, the
Court was not persuaded that Appellant should be given another chance to resolve his substance
problem while on probation (RR Vol. II, Page 47-8).
Even if the Court were to determine that sentence was exceptionally harsh considering the
gravity of the offense, the record contains no information on the sentences imposed on other
criminals in the same jurisdiction or the sentences imposed for commission of the same crime in
other jurisdictions. There does not appear to be enough information for the Court to conduct a
proportionality analysis. See Jackson v. State, 989 S.W.2d 842 (Tex.App.–Texarkana 1999, no
pet.) and Latham v. State, 20 S.W.3d 63 (Tex.App.–Texarkana 2000, pet. ref'd).
ISSUE NUMBER TWO
Did the Court err in revoking the Appellant’s probation when the language describing the
condition violated in the State’s Motion to Revoke Supervision failed to track the language of the
Court’s Judgment and Sentence, and when the allegation of the act relied upon as a violation
failed to allege an actual violation of the Court’s conditions of probation?
SUMMARY OF ARGUMENT
A challenge to errors in the Motion to Revoke Supervision must be raised in a motion to
quash, otherwise errors from evan a defective motion are not preserved. No complaint was
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raised by the Appellant before a hearing on the motion to revoke supervision, and the State and
the Appellant tried the issue of whether Appellant had used marijuana, an act that did violate the
terms and conditions of the Court’s order. Any error, therefore, was waived.
ARGUMENT
The Court’s judgment in this case had two conditions relevant to the circumstances of
this case: Condition 2 admonished the Defendant to “Avoid injurious or vicious habits, as well
as persons or places of disreputable or harmful character...” Condition 10 mandated that the
Defendant should not, “consume or possess....unlawful controlled substances, narcotic,
dangerous drugs, marijuana...” (CR Vol. I, Page 34, conditions 2 and 10). The State’s
Motion to Revoke Supervision alleging that Appellant had violated Condition (2) of his
probation, that being to “Avoid injurious or vicious habits, including the use of alcohol,
controlled substances or habit forming drugs....” although no such language was specifically
contained in the judgment. ( CR Vol. I, Pages 41-43)
The alleged violation of the Appellant’s probation was that “... the Defendant, Tyler
Dne’aundre Coleman-Cone, admits to using marijuana on 6/15/17.” ( CR Vol. I, Pages 41-43)
Admitting to using marijuana and actually using marijuana are two entirely different matters, and
arguably the State’s motion was defective for failing to state a violation of the Court’s conditions
of probation. The Conditions of probation that were part of the Court’s judgment did not
prohibit making admissions of any kind, and therefore it might have been urged that the State’s
motion completely failed to allege conduct that would have been a violation.
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However, errors in a motion to revoke probation must be pointed out to the trial court in a
timely motion to quash. See Rodriguez v. State, 951 S.W.2d 199, 204 (Tex. App.-Corpus Christi
1997, no pet.) (citing Longoria v. State, 624 S.W.2d 582, 584 (Tex. Crim. App. 1981). In the
absence of such motion, error, if any, is waived. See Gordon v. State, 575 S.W.2d 529, 531 (Tex.
Crim. App. [Panel Op.] 1978). The question of the sufficiency of a motion to revoke probation
cannot be raised for the first time on appeal, even though the motion is in fact defective. See
Martinez v. State, 493 S.W.2d 954, 955 (Tex. Crim. App. 1973). Moreover, a motion to revoke
probation is required only to give the defendant adequate notice of the violation asserted in order
to meet minimum due process requirements; the defendant must be given fair notice upon which
he or she may prepare a defense. See Labelle v. State, 720 S.W.2d 101, 108-09 (Tex. Crim. App.
1986). The determination of whether reversible error has occurred is a three part test: (1) a court
must decide whether the motion to revoke is lacking in some requisite item of notice, and if so,
(2) the Court then decides whether in the context of the case this had an impact on the
defendant's ability to prepare a defense, and finally, (3) the extent of any such impact. See id. In
making these determinations, the entire record may be reviewed for prejudice to the defendant's
substantial rights. See id.
No objection or motion to quash was made concerning the State’s recitation of the
condition of probation allegedly violated - the State’s description of Condition 2 in its Motion
actually appears to be an amalgam of conditions 2 and 10 from the Court’s judgment. Appellant
made no objection or motion to quash as to the conduct allegedly causing the violation of
probation - admitting to using marijuana as opposed to using marijuana. The Appellant plead
true to the allegation #2 contained in the State’s motion (RR Vol. II, Pages 8), and the parties
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proceeded to adduce evidence concerning the Appellant’s use of marijuana while on probation
(RR Vol. II, Pages 9-18). Nothing was preserved for review, and even if it had been, there did
not appear to have been any prejudicial surprise that negatively affected the Appellant’s ability to
prepare, as the parties all clearly understood the issue before the Court judging from the evidence
that they presented.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the undersigned respectfully requests that
the Court review the foregoing analysis, and grant the motion to withdraw.
RESPECTFULLY SUBMITTED,
SCOTT RECTENWALD
110 W. Fannin
Marshall, Texas 75670
(903) 938-3300
(903) 938-3310- FAX
/s/ Scott Rectenwald
Scott Rectenwald
SBOT # 00794510
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Certificate of Service
The undersigned hereby certifies that a true and correct copy of the foregoing Brief was
delivered to the office of the Harrison County District Attorney, 200 W. Houston, Marshall,
Texas 75670 on January 9, 2018.
/s/ Scott Rectenwald
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