Deborah Ann Patterson v. State

ACCEPTED
12-15-00191-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/24/2015 11:38:22 AM
Pam Estes
CLERK
No. 12-15-00191-CR
FILED IN
12th COURT OF APPEALS
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
TYLER, TEXAS 11/24/2015 11:38:22 AM
PAM ESTES
Clerk
DEBORAH ANN PATTERSON
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the 114th District Court of Smith County, Texas
Trial Cause No. 114-0784-14
ORAL ARGUMENT NOT REQUESTED
Austin Reeve Jackson
Texas Bar No. 24046139
JLawAppeals@gmail.com
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:
Melvin Thompson
2108 S. Wall Ave.
Tyler, TX 75701
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
ISSUES 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
WHEN IT REVOKED APPELLANT'S COMMUNITY
SUPERVISION................................................................................................5
Standard of Review ....................................................................................................4
A. There Was Legally Sufficient Evidence to Support the Revocation ....................5
B. Appellant's Sentence Was Within the Statutory Range of Punishment ................7
C. Appellant Received Effective Assistance of Counsel...........................................8
CONCLUSION AND PRAYER .....................................................................................9
CERTIFICATE OF SERVICE ........................................................................................9
CERTIFICATE OF COUNSEL ....................................................................................10
CERTIFICATE OF COMPLIANCE ............................................................................10
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, 8, 10
Boykin v. Alabama,
395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969) ................................... 5
Strickland v. Washington,
466 U.S. 668, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1984) ................................. 8
TEXAS COURT OF CRIMINAL APPEALS:
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
Gutierrez v. State,
65 S.W.3d 362 (Tex.Crim.App. 2003) .......................................................... 6
Hernandez v. State,
988 S.W.2d 70 (Tex.Crim.App. 1999) .......................................................... 8
Jackson v. State,
973 S.W.2d 954 (Tex.Crim.App. 1998) ........................................................ 8
Kniatt v. State,
206 S.W.3d 657 (Tex.Crim.App. 2006) ........................................................ 5
Lyles v. State,
850 S.W.2d 497 (Tex.Crim.App. 1993) ........................................................ 4
Miniel v. State,
831 S.W.2d 310 (Tex.Crim.App. 1992) ........................................................ 8
iv
TEXAS COURT OF CRIMINAL APPEALS (CON’T):
Moore v. State,
694 S.W.2d 528 (Tex.Crim.App. 1985) ........................................................ 8
Moses v. State,
590 S.W.2d 469 (Tex.Crim.App. 1979) ........................................................ 6
Rickles v. State,
202 S.W.3d 759 (Tex.Crim.App. 2006) ........................................................ 4
Stafford v. State,
813 S.W.2d 503 (Tex.Crim.App. 1991) ........................................................ 8
TEXAS COURTS OF APPEAL:
Canseco v. State,
199 S.W.3d 437 (Tex.App.—Houston [1st Dist.] 2006) ............................... 4
Duke v. State,
2 S.W.3d 512 (Tex.App.—San Antonio 1999) ............................................. 4
Graves v. State,
176 S.W.3d 422 (Tex.App.—Houston [1st Dist.] 2004) ............................... 7
Hays v. State,
933 S.W.2d 659 (Tex.App.—San Antonio 1996) ......................................... 5, 6
Joseph v. State,
3 S.W.3d 627 (Tex.App.—Houston [14th Dist.] 1999) ................................ 4
Kirk v. State,
949 S.W.2d 769 (Tex.App.—Dallas 1997) ................................................... 7
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 Worth 1995) ........................................... 3
v
TEXAS COURTS OF APPEAL (CON’T):
Patrick v. State,
12-07-00137-CR, 2008 Tex.App.LEXIS 2264 (Tex.App.—Tyler 2008) ..... 6
STATUTES:
TEX. CODE CRIM. PROC. art. 26.13 .................................................................... 5
TEX. CODE CRIM. PROC. art. 42.12 .................................................................... 7
TEX. PEN. CODE § 12.35 .................................................................................... 7
TEX. PEN. CODE § 32.31 .................................................................................... 7a
vi
No. 12-15-00191-CR
IN THE TWELFTH COURT OF APPEALS
TYLER, TEXAS
DEBORAH ANN PATTERSON
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the 114th District Court of Smith County, Texas
Trial Cause No. 114-0784-14
TO THE HONORABLE JUSTICES OF THE COURT:
COMES NOW, Austin Reeve Jackson, attorney for Deborah Patterson and
files this brief pursuant to the Texas Rules of Appellate Procedure, and would
show the Court as follows:
STATEMENT OF THE CASE
Deborah Patterson seeks to appeal her conviction and sentence for the of-
fense of felony credit card abuse. (I CR 69). Ms. Patterson was indicted for this
offense in the 114th District Court of Smith County and, pursuant to a plea agree-
ment, was sentenced to two years’ confinement probated for a period of four years.
(I CR 1, 46). In July of this year that probation was revoked and Ms. Patterson
was sentenced to serve a term of eighteen months’ confinement. (I CR 69). Sen-
tence was pronounced on 20 July and notice of appeal then timely filed. (I CR 69,
89).
ISSUE PRESENTED
I. THE TRIAL COURT ACTED WITHIN ITS DISCRETION
IN REVOKING APPELLANT’S COMMUNITY SUPERVI-
SION.
STATEMENT OF FACTS
In June of last year Appellant, Ms. Deborah Patterson, was indicted for the
felony offense of credit card abuse in the 114th District Court of Smith County. (I
CR 1). A plea agreement was reached whereby in exchange for her plea of guilty
Ms. Patterson received a sentence of two years’ confinement probated for four
years. (I CR 46). In April the State filed an application to revoke Ms. Patterson’s
community supervision. (I CR 54). To all of the allegations made against her in
the application, Ms. Patterson entered a plea of “true.” (I CR 67). Based on this
2
plea, the trial court revoked the previously ordered probation and imposed punish-
ment at a term of eighteen months’ confinement. (I CR 69). Sentence was pro-
nounced on 20 July and notice of appeal then timely filed. (I CR 69, 89).
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 must present a professional eval-
uation 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 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 excluding any potential issues that, if successfully raised, would
produce a result adverse to Appellant’s interests.
3
ARGUMENT
Standard of Review
A trial court’s decision to revoke community supervision 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). Appellate review con-
siders the record in the light most favorable to the trial court’s decision. Duke v.
State, 2 S.W.3d 512, 515 (Tex.App.—San Antonio 1999, no pet.).
Proof of a single violation is sufficient to support a revocation. Canseco v.
State, 199 S.W.3d 437, 439 (Tex.App.—Houston [1st Dist.] 2006, pet. ref’d). To
prevail then, an appellant must show, looking in the light most favorable to the
court’s decision, that the record is insufficient evidence to support each 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.).
4
I. THE TRIAL COURT ACTED WITHIN ITS DISCRETION
WHEN IT REVOKED APPELLANT’S COMMUNITY SU-
PERVISION.
A. There Was Legally Sufficient Evidence to Support the Revocation.
By way of the application filed against him, the State argued that Ms. Patter-
son had violated the terms and conditions of her community supervision. (I CR
54). Ms. Patterson entered pleas of “true” to all of the violations alleged against
her. (I CR 67). Those violations included:
Application Para- Allegation
graph
II Failure to report as directed
III Use of cocaine
IV and V Failure to pay fees and costs
(I CR 54-57). If made freely, knowingly, and intelligently, Ms. Patterson’s pleas
of “true” to the allegations made against her are by themselves sufficient to support
the trial court’s revocation of community supervision. See Hays, 933 S.W.2d at
661.
Due process requires that a plea of true must be entered knowingly, intelli-
gently, and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23
L. Ed. 2d 274 (1969); Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006);
see also TEX. CODE CRIM. PROC. ANN. Art. 26.13(b). Before accepting her plea,
the trial court inquired whether Ms. Patterson had been threatened, coerced, or of-
5
fered a promise of benefit in exchange for his plea, and whether he was making his
plea after sufficient opportunity to consult with counsel. (IV RR 4-13). After con-
ducting this inquiry the Court concluded that Ms. Patterson was “freely, knowing-
ly, intelligently, and voluntarily” entering her pleas of true. (IV RR 13).
Additionally, the Clerk’s Record in this case includes written waivers and
admonishments signed by Ms. Patterson in which she acknowledged that she un-
derstood her rights at the revocation hearing and that she was knowingly waiving
those rights. (I CR 67); see Gutierrez v. State, 65 S.W.3d 362, 366
(Tex.Crim.App. 2003) (holding that the full requirements of Article 26.13 do not
apply to revocation proceedings); see also Patrick v. State, 12-07-00137-CR, 2008
Tex.App.LEXIS 2264, *1 (Tex.App.—Tyler 2008, pet. ref’d) (mem. op.) (cited for
reference only) (holding same).
Based on this record there appears to be no basis from which to argue that
the Court’s confidence in whether the pleas entered were made freely, knowingly,
and voluntarily should be undermined. Consequently, the trial court would not
have abused its discretion in revoking Appellant’s community supervision on the
basis of her pleas alone. Hays, 933 S.W.2d at 661; see also 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); Cobb v. State, 851 S.W.2d 871, 873
6
(Tex.Crim.App. 1993) (the State must prove allegations in a revocation by a pre-
ponderance of the evidence).
B. Appellant’s Sentence Was Within the Statutory Range of Punishment.
Ms. Patterson was charged with credit card abuse, a state jail felony as in-
dicted. (I CR 1); TEX. PEN. CODE § 32.31. The range of punishment for a state jail
felony is confinement for six months to two years. TEX. PEN. CODE § 12.35. Ms.
Patterson was sentence to serve eighteen months’ imprisonment. (I CR 69).
The sentence imposed was within the proper punishment range for the of-
fense alleged. TEX. PEN. CODE § 12.35. Consequently, as the punishment imposed
was within the statutory range for the offense, it is virtually presumed not to be
constitutionally cruel and unusual. Kirk v. State, 949 S.W.2d 769, 772
(Tex.App.—Dallas 1997, pet. ref’d); see also TEX. CODE CRIM. PROC. ANN. art.
42.12 § 23(a) (at revocation the court may impose sentence anywhere within the
range of punishment). Moreover, that the sentence was less than what had been
the potential maximum punishment, any argument that the punishment was cruel
or excessive would be difficult to make. See, e.g., Graves v. State, 176 S.W.3d
422, 435 (Tex.App.—Houston [1st Dist.] 2004, pet. struck) (holding that a sen-
tence on the lower end of the punishment range tended to indicate a lack of egre-
gious harm where error in punishment charge was present). Consequently, counsel
7
has been unable to raise a non-frivolous error on the issue of punishment on the
record currently before the Court.
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).
With this standard in mind a comprehensive review of the record has been
made including potential pretrial matters, issues at the revocation hearing, and the
arguments of counsel and found no basis from which to argue that counsel was in-
effective. See Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998) (not-
ing that on direct appeal the record is usually insufficient to support a claim of in-
effective assistance).
8
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 Ms. Patterson 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).
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 concurrently with its filing.
/s/ Austin Reeve Jackson
9
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 con-
sists of 1,875 words.
/s/ Austin Reeve Jackson
10