3WS
ORIGINAL
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
CODY LAMONT BLAYLOCK or-
Petitioner/ wmm appeal
VS.
JUN 10 2015
STATE OF TEXAS
Respondent/
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FILED IN
COURT OF CRIMINAL APP^
In Appeal No.12-13-00363-CR JUN 10 2G;5
From The Court Of Appeals
For The Twelfth Judicial District
Tyler/Texas Abel Acosta, Clerk
CODY LAMONT BLAYLOCK
TDCJ-CID#1898529
2661 FM 2054
TENN COLONY,TX 75884
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
Page
INDEX OF AUTHORITY i
STATEMENT REGARDING ORAL ARGUMENT 1
STATEMENT OF THE CASE 1
STATEMENT OF PROCEDURAL HISTORY 2
GROUNDS FOR REVIEW 2
EXCESSIVE SENTENCING.WHETHER THE COURT OF APPEALS
TWELFTH DISTRICT OF TEXAS ERRED IN HOLDING
SENTENCE WAS NOT EXCESSIVE? 2
INEFFECTIVE ASSISTANCE OF COUNSEL: PETITIONER'S
PLEA OF GUILT WAS INVOLUNTARY GIVEN BASED ON
COUNSEL'S ILL ADVICE. 2
WHETHER THE COURT OF APPEALS TWELFTH DISTRICT OF
TEXAS ERRED IN FINDING THAT PETITIONER'S PLEA WAS
VOLUNTARILY GIVEN? 2
ARGUMENT 2
PRAYER FOR RELIEF 6
APPENDIX
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INDEX OF AUTHORITY
Cases Page
Apprendi v. New Jersey,530U.S. 466(2000) 3
Blakely v. Washington, 542U.S. 296(2004) 3
Hill v. Lockhart,474 U.S. 52(1985) 4
Hernandez v. State,726 S.W.2d 53(Tex,Crim.App.1986) 2
Strickland v. Washington,466 U.J3. 668(1984) 2,5
Virgil v. Dretke,446 F.3d 598(5th Cir.2006) 5
Wiggins v. Smith,539 U.S. 510(2003) 4,5
STATUTES & RULES
TEX.R.A.P. RULE 68.4(a) i
TEX.R.A.P. RULE 68.4(b) ii
TEX.R.A.P. RULE[S] 68.4(c), (d) 1
TEX.R.A.P. RULE 68.4(e), (f),(g) 2
TEX.PEN.CODE ANN. Art. § 30.05(a)(1) 4
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IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
CODY LAMONT BLAYLOCK
VS.
STATE OF TEXAS
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
Petitioner respectfully submits this Petition for Discretionary
Review and moves that this Honorable Court grant review of this
cause and offers the following in support thereof:
STATEMENT REGARDING ORAL ARGUMENT T.R.A.P. 68.4(e)
Petitioner requests oral argument to better assist the Court
in reaching a decision.
STATEMENT OF THE CASE T.R.A.P. 68.4(d)
Petitioner was convicted on November 7th,2013 of the felony
offense of engaging in organized crime. Petitioner was originally
placed on probation in cause No.114-1070-10 on. December 13,2010.
After committing a criminal trespass and failing to pay fees the
State moved for a "Final adjudication". This case was adjudicated
in the 114th judicial district Court of Smith County,Texas.
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STATEMENT OF PROCEDURAL HISTORY T.R.A.P. 68.4(e)
This case originated in the 114th Judicial District Court of
Smith County/Texas. The Honorable Christi Kennedy presided. After
initially being placed on probation the State moved to Final
adjudication based on a violation on November 7th, 2013. This was
cause No.114-1070-10. He was given an opportunity to appeal.
He timely appealed. Appellate counsel was appointed to represent
him in 12-13-00363-CR. Counsel moved to withdraw, and on April
30,2014 the Clerk ordered that the motion be passed for considera
-tion with the merits of the appeal. Petitioner filed his pro se
Brief in the Twelfth Court of Appeals on July 03,2014 according
to the file stamp date. This Court has granted an extension of
time to file a Petition for discretionary review until June 02,
2015. This petition for discretionary review is timely filed.
GROUNDS FOR REVIEW T.R.A.P. 68.4(f)
EXCESSIVE SENTENCING. WHETHER THE COURT OF APPEALS TWELFTH DISTRICT
OF TEXAS ERRED IN HOLDING SENTENCE WAS NOT EXCESSIVE?
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INEFFECTIVE ASSISTANCE OF COUNSEL: PETITIONER'S PLEA OF GUILT
WAS INVOLUNTARY GIVEN BASED ON COUNSEL'S ILL ADVICE.
WHETHER THE COURT OF APPEALS TWELFTH DISTRICT.OF TEXAS ERRED IN
FINDING THAT PETITIONER'S PLEA WAS VOLUNTARILY GIVEN?
ARGUMENT T.R.A.P. 68.4(g)
Ineffective assistance of counsel is governed by the well-known
standard set forth in Strickland v. Washington,466 U.S.668,104
S.Ct. 2052, 80 L.Ed.2d 674(1984); Hernandez v. State,726 S.W.2d
53 Tex.Crim.App.1986) Petitioner must show that his counsel's
performance was deficient. Second, he must show that the deficient
performance prejudiced him at trial. That a reasonable probability
Jbpjt- .fpr/r-cpunsel' s conduct the outcome of the case would have
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beenn different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome of the proceeding. Id.,
In the case at bar,petitioner has stated that he was sentenced
to an excessive amount of time given his criminal background
and the relative minor infraction he purportedly committed. While,
the trial Judge has wide latitude in revocation case[s],an abuse
of discretion may result when the Judge sentences a defendant to
an excessive amount of time for a relatively minor crime.
Blakely v. Washington,542 U.S. 296(2004). In this case, petitioner
was facing the full range of punishment for violating his probation
for engaging in organized crime. So in truth, the full range of
punishment was available to the Court. However, it must be factored
that petitioner had no real criminal background per se, except what
he was initially placed on probation for. He had a job and support
within the community. While he was slow paying his fees, this was
not, and should not have been determinative in revoking his
probation. The purported criminal trespass should have been looked
into more thoroughly by counsel. Even given the revocation on the
basis of a criminal trespass, a twenty (20) year sentence was
not warranted in this case. In essence, petitioner was sentenced
to twenty(20) years for criminal trespassing which is excessive.
Apprendi v. New Jersey,530 U.S. 466(2000).(holding sentence imposed
in excess of maximum sentence based on the findings made by Judge)
While the Judge made the findings which led to the revocation of
petitioner's probation,she could have exercised more reasonableness
given such a minor infraction, which he may not even be guilty of.
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While petitioner had a very active juvenile history, this is
inadmissible and usually sealed for purposes of sentencing.
The Judge should have reinstated probation given that petitioner
faced a misdemeanor criminal trespass. This offense(criminal trespass)
was not admissible for enhancement in any other criminal proceeding.
It defies reason and sound judgment that it would cause petitioner
to be sentenced to twenty (20) years in prison, basically for a
misdemeanor. Again a violation (criminal trespass) of deferred
adjudicated probation subjects a defendant to the full range of
punishment for the first degree felony offense(engaging Org/crime)
probated (5 to 99 years,Life). Clearly, the Judge in this case has
sentenced petitioner excessively. The punishment does not fit the
crime. The Court should -reform the judgment and tailor the sentence
to fit the crime. While this seems unlikely, a remand is necessary
for resentencing.
WHETHER THE TWELFTH COURT OF APPEALS ERRED IN FINDING THAT
PETITIONER'S PLEA OF GUILT WAS VOLUNTARILY GIVEN?
Petitioner herein asserts that his guilty plea was involuntary
based on the ill advice of counsel. Hill v. Lockhart,474 U.S. 52(1985)
He asserts that had counsel properly investigated issues relative
to and surrounding criminal trespass counsel would have filed an
appeal to challenge this faulty conviction. Wiggins v. Smith,539
U.S. 510 (2003). Petitioner in his haste to be free again,coupled
with his ignorance of the law represented himself when he should
not have and pled.guilty to trespass when ,in fact, no trespass
had occurred. Access to public road to where he dropped his relative
off in front of campus housing does not constitute the offense of
criminal trespass. See Tex.Pen.Code Ann.§ 30.05(a)(1). Had counsel
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took time to investigate the law and facts surrounding this case
he would have discovered this fact. Absent a criminal trespass
conviction the State is hard pressed to violate probation given
that no violation ever occurred. Counsel advocating effectively
would have brought this to the Court's attention along with State's
counsel and reinstated probation. Counsel had a duty to discover
what petitioner was being violated for, and to determine if in fact
the law was broken. Strickland ,Id. Counsel instead advised his
client to plead guilty and stipulate to all facts surrounding the
probation violation. No reasonable counsel would fail to investigate
the facts of a case before determining that the law was broken.
Strickland,id. Counsel's only responsibility is reasonableness under
prevailing professional norms. Here, the erroneous advise of counsel
caused petitioner to receive a (20) twenty year sentence. Petitioner
has alleged facts which, if true, would entitle him to relief.
Pursuant to Wiggins v. Smith, 539 U.S. 510(2003) counsel had a duty
to investigate and determine a reasonable course for his client.
Blindly agreeing to stipulate to all evidence and facts without
an investigation is simply not sound strategy and is so ill chosen
that it permeated this entire proceeding with obvious unfairness.
Virgil v. Dretke,446 F.3d 598(5th Cir.2006) Clearly, counsel's
conduct in failing to investigate that no criminal trespass
occurred and making an informed decision with regard to advising
his client to plead, was deficient performance. Strickland,Id.
This deficiencyprejudiced petitioner costing him a twenty (20)
sentence. Probation should have been reinstated. Accordingly, this
court should grant PDR and appoint counsel for briefing.
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PRAYER FOR RELIEF
WHEREFORE,PREMISES CONSIDERED, petitioner respectfully prays that
this Honorable Court would appoint counsel for briefing regarding
his ineffective assistance claim and grant this Petition for
discretionary review.
Respectfully submitted,
Cody ^Lamont^ Blaylock#1898529
Coffield Unit
2661 FM 2054
Tennessee Colony,Texas 75884
CERTIFICATE OF SERVICE
I, Cody L. Blaylock hereby certify that a true and correct copy
of his Petition for discretionary review was sent to the Clerk
of the Texas Court of Criminal Appeals postage prepaid by placing
same in the U.S. mail to: Clerk, P.O. Box 12308 Capitol Station
Austin,Texas 787J.1. Executed on 31* day of f\Aat//
-M_ 2015.
^gnat/ure
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NO. 12-13-00363-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CODY LAMONT BLAYLOCK, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STA TE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Cody Lamont Blaylock appeals his conviction for engaging in organized criminal
activity. Appellant's counsel filed a brief in compliance with Anders v. California, 386 U.S.
738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim.
App. 1969). We affirm.
Background
Appellant was indicted for the first degree felony offense of engaging in organized
criminal activity by committing aggravated assault with a deadly weapon as a member of a
criminal street gang.' Appellant and the State entered a negotiated plea agreement for an agreed
punishment of deferred adjudication community supervision for ten years in exchange for
Appellant's "guilty" plea and pleas of "true" to the allegations that he used a deadly weapon and
that he was a member of a criminal street gang at the time of the offense.
In accordance with the agreement, the trial court placed Appellant on deferred
adjudication community supervision for a ten year period in December 2010. The trial court also
See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011), § 71.02(a)(1), (b) (West Supp. 2014).
considered two additional charges in determining whether to place Appellant on deferred
adjudication community supervision.2
The State filed an application to proceed to final adjudication in May 2012. Appellant
pleaded "true" to most of the allegations. After a hearing, the trial court denied the application.
In October 2013, the State filed another application to proceed to final adjudication. The
State twice amended its application. In the application, the State alleged that Appellant failed to
abide by the terms of his community supervision in that he (1) committed the offense of criminal
trespass, (2) failed to pay for urinalysis testing on numerous occasions, (3) failed to pay
supervision fees and court costs, and (4) failed to obtain a GED as ordered by the court. At the
subsequent hearing, Appellant pleaded "true" to each paragraph in the application. The trial
court adjudicated Appellant's guilt, found him guilty of the offense, and found that the
allegations that he used a deadly weapon and was a member of street gang were true. After a
hearing on punishment, the trial court sentenced Appellant to twenty years of imprisonment.
This appeal followed.
Analysis Pursuant To Anders v. California
Appellant's counsel filed a brief in compliance vs'it\\ Anders v. California and Gainous v.
State. Appellant's counsel states that he has diligently reviewed the appellate record and is of
the opinion that the record reflects no reversible error and that there is no error upon which an
appeal can be predicated. He further relates that he is well acquainted with the facts in this case.
In compliance with Anders, Gainous, and High v. State, 573 S.W.2d .807 (Tex. Crim. App.
[Panel Op.] 1978), Appellant's brief presents a chronological summation of the procedural
history of the case and further states that Appellant's counsel is unable to raise any arguable
issues for appeal.
Appellant filed a pro se brief in which he raised issues that his sentence was excessive
and that he received ineffective assistance of counsel when he was advised to plead "guilty" and
"true" to the State's application to proceed to final adjudication, rendering the pleas involuntary.
We have reviewed the record for reversible error and have found none. See Bledsoe v. State, 178
S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
: See TEX. PENAL CODE ANN. § 12.45(a) (West 2011).
Conclusion
As required by Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant's
counsel has moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex.
Crim. App. 2008) (orig. proceeding). We are in agreement with Appellant's counsel that the
appeal is wholly frivolous. Accordingly, his motion for leave to withdraw is hereby granted, and
the trial court's judgment is affirmed. See TEX. R. APP. P. 43.2.
As a result of our disposition of this case, Appellant's counsel has a duty to, within five
days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise
him of his right to file a petition for discretionary review. See TEX. R. APP. P. 48.4; In re
Schulman, 252 S.W.3d at 411 n.35. Should Appellant wish to seek review of this case by the
Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for
discretionary review on his behalf or he must file a petition for discretionary review pro se. Any
petition for discretionary review must be filed within thirty days from the date of this court's
judgment or the date the last timely motion for rehearing was overruled by this court. See TEX.
R. App. P. 68.2. Any petition for discretionary review must be filed with the Texas Court of
Criminal Appeals. See Tex. R. App. P. 68.3(a). Any petition for discretionary review should
comply with the requirements of Texas Rule of Appellate Procedure 68.4. See In re Schulman,
252S.W.3dat408n.22.
Opinion delivered March 4, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 4, 2015
NO. 12-13-00363-CR
CODY LAMONT BLAYLOCK,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No-. 114-1070-10)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
^y per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J., andNeeley, J.