ACCEPTED
12-14-00248-cr
TWELFTH COURT OF APPEALS
TYLER, TEXAS
4/10/2015 4:52:58 PM
CATHY LUSK
CLERK
ORAL ARGUMENT NOT REQUESTED
NO. 12-14-00248-CR FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE COURT OF APPEALS 4/10/2015 4:52:58 PM
12TH JUDICIAL DISTRICT CATHY S. LUSK
Clerk
TYLER, TEXAS
ROBERTA WINNIE BAGWELL,
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE
ON APPEAL IN CAUSE NUMBER 114-1742-10
FROM THE 114TH JUDICIAL DISTRICT COURT
OF SMITH COUNTY, TEXAS
HONORABLE CHRISTI KENNEDY, JUDGE PRESIDING
APPELLANT’S BRIEF
JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
APPELLANT:
Jolly Dee Neely
APPELLANT’S TRIAL COUNSEL:
Brent Ratekin
422 South Spring Avenue
Tyler, Texas 75702
903-595-1516
APPELLANT’S APPELLATE COUNSEL
James Huggler
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 (fax)
APPELLEE
The State of Texas
APPELLEE’S TRIAL COUNSEL
Jacob Putman
Christopher Gatewood
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720 903-590-1719 (fax)
APPELLEE’S APPELLATE COUNSEL
Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720 903-590-1719 (fax)
ii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PROFESSIONAL EVALUATION OF THE RECORD. . . . . . . . . . . . . . . 6
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
iii
TABLE OF AUTHORITIES
CONST.
TEX. CONST. art. V, § 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2014). . . . . . . . . . . . . . . . . 8
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West 2014). . . . . . . . . . 3
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West 2014). . . . . . . . . . 9
TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(A) (West 2014). . . . . . . . . . 1, 2
TEX. PENAL CODE ANN. § 12.35 (West 2014).. . . . . . . . . . . . . . . . . . . . . 10
CASES
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
18 L. Ed. 2d 493 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Bray v. State, 179 S.W.3d 725 (Tex. App.– Fort Worth 2005, no pet.). 10
Duron v. State, 956 S.W.2d 547 (Tex. Crim. App. 1997). . . . . . . . . . . . . 8
Jordan v. State, 54 S.W.3d 783 (Tex. Crim. App. 2001). . . . . . . . . . . . . 8
Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001). . . . . . . . . . . . . . 8
Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999). . . . . . . . . . . . 7
Mays v. State, 904 S.W.2d 920 (Tex. App. – Fort Worth 1995, no pet.). 6
Moses v. State, 590 S.W.2d 469 (Tex. Crim. App. 1979). . . . . . . . . . . . . 9
Nix v. State, 65 S.W.3d 664 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . 7
Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006). . . . . . . . . . . . 9
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).. . . . . . . . . . 11
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
iv
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).. . . . . . . . . . 11
RULES
Tex. R. App. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6
v
NO. 12-14-00248-CR
ROBERTA WINNIE BAGWELL, ,§ IN THE COURT OF APPEALS
APPELLANT §
§
VS. § 12TH JUDICIAL DISTRICT
§
THE STATE OF TEXAS, §
APPELLEE § TYLER, TEXAS
APPELLANT’S BRIEF
TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:
Comes now Roberta Winnie Bagwell (“Appellant”), by and through
her attorney of record, James Huggler, and pursuant to the provisions of
TEX. R. APP. PROC. 38, et seq., respectfully submits this brief on appeal.
STATEMENT OF THE CASE
Appellant was indicted in Cause No. 114-01742-10 for the state jail
felony offense of theft. TEX. PENAL CODE ANN. §31.03(a), (e)(4)(A) (West
1
2008). CR 11. Appellant elected to plead guilty to the charge. CR 43.
Based upon Appellant's judicial confession, the trial court deferred a
finding of guilt and placed Appellant on probation for a term of five years.
III RR 23-242. The State subsequently filed an application to proceed to
final adjudication. CR 83-86. Following the entry of pleas of true to five
of the eight paragraphs, the court found Appellant guilty, then sentenced
her to two years confinement. CR 91; RR 33-35. Timely notice of appeal
was filed on August 15, 2014. CR 99.
ISSUES PRESENTED
None
STATEMENT OF THE FACTS
Appellant was indicted in Cause No. 114-01742-10 for the state jail
felony offense of theft. TEX. PENAL CODE ANN. §31.03(a), (e)(4)(A) (West
1
References to the Clerk’s Record are made using “CR” and an arabic numeral following
specifying the correct page.
2
References to the Reporter’s Record are made using “RR” with a roman numeral preceding
designating the volume and an arabic numeral following designating the correct page.
2
2008). CR 1. Pursuant to a plea bargain agreement, Appellant entered
a plea of guilty to the charge in the indictment on December 2, 2013. III
RR 19; CR 43. Appellant waived her right to a jury trial, her right to
confront and cross-examine witnesses, the notification that if Appellant
was not a citizen, a plea of guilty may result in deportation, the effect of
the plea on his rights, the consequences of the plea and the range of
punishment for a second degree felony. CR 52-54. A stipulation of
evidence was also admitted at this hearing that detailed the Appellant's
conduct. CR 56-59. Appellant was then placed on deferred adjudication
probation for a term of five years, with a variety of conditions under the
authority of the Texas Code of Criminal Procedure Art. 42.12 §5(a) (West
2014). CR 43-48. A Waiver of Motion for New Trial and Motion in Arrest
of Judgment and Waiver of Right to Appeal was also filed on December 2,
2013. CR 60. The trial court entered a certification of defendant's right
to appeal on December 2, 2013, which stated that Appellant waived her
right to an appeal. CR 50.
During the course of Appellant’s deferred adjudication probation, the
conditions of her probation were modified and status reports were
3
conducted. CR 63-67. However, on August 6, 2014, the State filed an
Application to Proceed to Final Adjudication in this case, alleging six
separate violations. CR 83. On August 8, 2014, the State filed its First
Amended Application to Proceed to Final Adjudication, which added one
additional violation. CR 76-79.
A revocation hearing was held on October 12, 2014. V RR 1. The
appellant entered pleas of true to Paragraphs 1,2,3,4 and 8 of the state's
application. CR 97; V RR 4-5, 11-15. Appellant was admonished by the
court regarding her rights, including the right to call witnesses, confront
the state's witnesses. V RR 8. Appellant was questioned regarding her
ability to read, write and understand English, her consumption of alcohol
or any drugs, her mental health history, and whether she had adequate
time to consult with his attorney. V RR 4-6. She was advised that if
Appellant was not a citizen, a plea of guilty may result in deportation. V
RR 8. She also was admonished regarding the proper range of
punishment. V RR 11. A Written Plea Admonishments and Stipulation,
signed by Appellant, was introduced as State’s Exhibit 1. V RR 16; CR 97.
The State then presented two witnesses at the hearing to prove the
4
allegations in Paragraphs 5 (possession of cocaine), 6 (consumption of
cocaine) and 7 (failure to submit to a urinalysis). Appellant’s probation
officer testified that on August 4, 2014, Appellant submitted to a
urinalysis, and the presumptive test showed that she tested positive for
cocaine use, in violation of the conditions of her probation3. V RR 19. The
director of the lab that tested Appellant’s sample confirmed that the
sample contained cocaine. V RR 28. Following the conclusion of the
evidence, the court found paragraphs 1, 2, 3, 4, 5, 6, and 8 to be true. V
RR 32. The court revoked Appellant’s probation, proceeded to a final
adjudication of guilt, and found Appellant guilty of the offense of theft.
Timely notice of appeal was filed on August 15, 2014. CR 99. This brief
is timely filed.
SUMMARY OF ARGUMENT
Counsel has reviewed the record and has concluded that, in his
professional opinion, the record contains no reversible error or
3
The State had alleged in Paragraph 7 that Appellant failed to submit to the urinalysis, in
violation of her probation. However, the probation officer confirmed that Appellant submitted to
the test, and that the allegation in Paragraph 7 was a mistake. V RR 19.
5
jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.
1396, 1400, 18 L. Ed. 2d 493 (1967). Thus, counsel must move for leave
to withdraw from the case.
ARGUMENT
There is no argument to present to this Court; however, Counsel has
included this section to strictly comply with Texas Rule of Appellate
Procedure 38. Counsel has reviewed the record and has concluded that,
in his professional opinion, the record contains no reversible error or
jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.
1396, 1400, 18 L. Ed. 2d 493 (1967). Therefore, counsel is including the
following explanatory section.
PROFESSIONAL EVALUATION OF THE RECORD
When counsel contends that there are no arguable grounds for
reversal on appeal, counsel is required to present a professional
evaluation of the record supporting this assertion. See Mays v. State, 904
S.W.2d 920, 922-23 (Tex. App. – Fort Worth 1995, no pet.)
6
In the present case, Appellant entered a plea of guilty to the
charged offense, was placed on deferred adjudication and waived her right
to an appeal. The State subsequently filed a motion to revoke, and
Appellant entered pleas of true to allegations that she violated the terms
and conditions of her community supervision. The court adjudicated her
guilt, assessed her sentence, and certified her right to appeal.
Appellant is precluded from appealing issues arising from the
original plea proceedings since she waived her right to appeal those
issues, and since the applicable time period for appeal has passed.
Generally, a defendant who is placed on deferred adjudication probation
may raise issues relating to the original plea proceeding only in an appeal
taken when deferred adjudication probation is first imposed. Manuel v.
State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). Such issues may
not be raised in an appeal from an order revoking probation and
adjudicating guilt. Id.
An exception to the general rule in Manuel exists when the
judgment is “void.” 4 See Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App.
4
Another exception mention in Nix is the “habeas corpus” exception, which involves the
litigation of a writ of habeas corpus at the probation revocation proceedings. Id. at 669. To
invoke the habeas corpus exception on appeal, the defendant must show: (a) that the claim is
cognizable on a writ of habeas corpus and (b) that the defendant attempted to litigate the claim at
7
2001); Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim. App. 2001). A
judgment of conviction for a crime is void when (1) the document
purporting to be a charging instrument does not satisfy the constitutional
requisites of a charging instrument, (2) the trial court lacks subject matter
jurisdiction over the offense charged, (3) the record reflects that there is
no evidence to support the conviction, or (4) an indigent defendant is
required to face criminal trial proceedings without appointed counsel.
Nix, at 668. However, none of these exceptional circumstances exist in the
present case. The indictment conferred jurisdiction on the trial court and
provided Appellant with sufficient notice of the charged offense. See TEX.
CONST. art. V, § 12; Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim.
App. 1997). The trial court has jurisdiction over the case. See TEX. CODE
CRIM. PROC. ANN. Art. 4.05 (West 2014) (stating that district courts shall
have original jurisdiction in felony criminal cases). The conviction was
supported by Appellant’s signed confession, and the written plea
admonishments indicate that Appellant's plea was made freely and
voluntarily5. CR 52-59. The record also indicates that she was
the revocation proceeding. Neither of these criteria are supported by the record.
5
When the record indicates that a defendant was properly admonished after pleading guilty, it is
sufficient evidence to establish a prima facie case that the plea was both knowing and voluntary.
8
represented at trial by appointed counsel. Therefore, review for potential
error is limited to the revocation hearing.
Counsel has examined the revocation hearing, and has found no
reversible error. An adjudication of guilt on the original charge of an
appellant under deferred adjudication is reviewed in the same way as a
revocation of community supervision. TEX. CODE CRIM. PROC. ANN. art.
42.12, § 5(b) (West 2014). In a probation revocation proceeding, the State
has the burden of proving a violation of the terms of probation by a
preponderance of the evidence. See Rickels v. State, 202 S.W.3d 759, 763-
764 (Tex. Crim. App. 2006). A plea of true to any one alleged violation is
sufficient to support revocation of community supervision. Moses v. State,
590 S.W.2d 469, 470 (Tex. Crim. App. 1979).
Appellant in the present case pled "true" to five of the paragraphs
set forth in the State’s motion to revoke. The record reflects that these
pleas of true were made freely and voluntarily, as supported by the
written plea admonishments and the court's findings. CR 97; RR V11.
During the revocation hearing, the trial court confirmed that Appellant
had reviewed the written plea admonishments with her attorney and that
Mallett v. State, 65 S.W.3d 59, 64 (Tex. Crim. App. 2001).
9
Appellant was making the plea of her own free will. V RR 4;11 .
Appellant's attorney confirmed that he was satisfied that Appellant was
competent. V RR 9-10. Therefore, the record supports the trial court’s
finding that the Appellant had violated the terms of her probation based
upon her pleas of true; thus, the trial court did not abuse its discretion by
revoking Appellant's community supervision.
Finally, counsel has found no error occurring is the assessment of
punishment. At the punishment hearing, the trial court sentenced
Appellant to two years' confinement. CR 93; V RR 32-33 . The sentence
assessed by the trial court is within the punishment range provided for by
law. See TEX. PENAL CODE ANN. § 12.35 (West 2005)(state jail felony).
Moreover, the judgment does not contain any improper assessment of fees.
See Bray v. State, 179 S.W.3d 725 (Tex. App.--Fort Worth 2005, no pet.).
Thus, the undersigned has found no reversible error during the
punishment phase.
Finally, the undersigned has reviewed the record and found no
arguable ground for ineffective assistance of counsel. Counsel is strongly
presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. Strickland
10
v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674
(1984). In the present case, trial counsel lodged pertinent objections at
the hearing, and argued for a lesser sentence. Considering the totality of
the representation of Appellant's trial counsel, the record contains nothing
that would indicate that counsel's performance was deficient. See id. at
687, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.
App. 1999).
CONCLUSION
Since counsel is 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).
11
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Counsel respectfully
prays that this Court permit him to withdraw after this Court’s own
examination of the record in this cause and to afford Appellant her right
to file any pro se brief that she may wish to file.
Respectfully submitted,
/s/ James Huggler
James W. Huggler, Jr.
State Bar Number 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 fax
ATTORNEY FOR APPELLANT
12
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Brief of the Appellant has been
forwarded to counsel for the State by electronic filing on this the 10th day
of April, 2015.
Attorney for the State:
Mr. Mike West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 2,608 words as counted by
Corel WordPerfect version x6.
/s/ James Huggler
James W. Huggler, Jr.
13