ACCEPTED
06-14-00195-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/15/2015 8:44:29 AM
DEBBIE AUTREY
CLERK
NO. 06-14-00195-CR
IN THE COURT OF APPEALS FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
SIXTH APPELLATE DISTRICT OF TEXAS
1/15/2015 8:44:29 AM
DEBBIE AUTREY
AT TEXARKANA, TEXAS Clerk
JERRY LEON MCNEIL,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
Appealed from the 115th Judicial District Court
Marion County, Texas
Trial Court Cause No. F13586
BRIEF OF APPELLANT
IN SUPPORT OF MOTION TO WITHDRAW
Submitted by:
James P. Finstrom
Counsel for Appellant
P.O. Box 276
Jefferson, Texas 75657
903-665-7111
Fax: 903-665-7167
State Bar #07038000
APPELLANT DOES NOT REQUEST ORAL ARGUMENT
IDENTITY OF PARTIES AND COUNSEL
Pursuant to T.R.A.P. 38.1(a)
Appellant: Jerry Leon McNeil
Institutional Division of Texas Department
of Criminal Justice
Appellant’s Counsel for Appellant at trial and on appeal:
Hon. James P. Finstrom
P.O. Box 276
Jefferson, Texas 75657
State’s Counsel at trial and on appeal:
Hon. Angela Smoak, County Attorney
102 West Austin Street
Jefferson, Texas 75657
Trial Judge:
Hon. Lauren Parish, Judge,
115th Judicial District Court
Marion County, Texas
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TABLE OF CONTENTS
Pursuant to T.R.A.P. 38.1(b)
Page
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 5
STATEMENT OF THE CASE 6
ISSUE PRESENTED 7
ISSUE NO. 1: DOES THE ISSUE WHETHER THE EVIDENCE IS
SUFFICIENT TO SUSTAIN THE COURT’S ORDER REVOKING
APPELLANT’S PROBATION HAVE MERIT ON APPEAL?
ISSUE NO. 2: DOES THE ISSUE WHETHER THE JUDICIAL
CONFESSION OF APPELLANT WHEN HE PLEAD GUILTY AND
WAS PUT ON PROBATION IS SUFFICIENT TO SUSTAIN
THE JUDGMENT OF THE TRIAL COURT FINDING HIM GUILTY
AFTER HIS PLEA OF GUILTY HAVE MERIT ON APPEAL?
ISSUE NO. ONE (Restated) 7
DOES THE ISSUE WHETHER THE EVIDENCE IS SUFFICIENT TO
SUSTAIN THE COURT’S ORDER REVOKING APPELLANT’S
PROBATION HAVE MERIT ON APPEAL?
SUMMARY OF THE ARGUMENT 7
ARGUMENT (Issue No. 1) 8
3
ISSUE NO. TWO (Restated) 8
DOES THE ISSUE WHETHER THE JUDICIAL
CONFESSION OF APPELLANT WHEN HE PLEAD GUILTY AND
WAS PUT ON PROBATION IS SUFFICIENT TO SUSTAIN
THE JUDGMENT OF THE TRIAL COURT FINDING HIM GUILTY
AFTER HIS PLEA OF GUILTY HAVE MERIT ON APPEAL?
SUMMARY OF THE ARGUMENT 8
ARGUMENT (Issue No. 2) 9
PRAYER 9
CERTIFICATE OF SERVICE 10
4
INDEX OF AUTHORITIES
Pursuant to T.R.A.P. 38.1(c)
Cases: Page
Burns v. State, 835 S.W.2d 733 7
(Tex.App.—Corpus Christi 1992, p.d.r. ref.)
Dinnery v. State, 592 S.W.2d 343 (Crim.App. 1970) 8
Statutes:
All references to Texas statutes, rules, etc. are to the latest
edition published by West Publishing Company, unless otherwise
noted.
5
STATEMENT OF THE CASE
Pursuant to T.R.A.P. 38.1(d)
Appellant waived indictment and entered a plea of guilty on
March 21, 2005, to an information alleging the third degree felony
offense of possession of a controlled substance on March 11, 2005,
and received a ten (10) year sentence in the Institutional Division of
the Texas Department of Criminal Justice probated for 10 years and
a $2000.00 fine. (CR 4-10) On June 17, 2014, Appellee filed State’s
Petition to Revoke Probated Judgment. (CR 16-17) On October 27,
2014, Appellant entered a plea of true to alleged violations nos. 1 and
2 and not true to alleged violation no. 4 and the Court heard evidence
on the State’s motion and revoked Appellant’s probation, sentencing
him to 10 years in the Institutional Division of the Texas Department
of Criminal Justice. (CR 19-20) The court found that the allegation
Nos. 1, 2 and 4 were true. (CR 19-20) Appellant gave timely pro se
notice of appeal on November 10, 2014. (CR 21) Counsel was
appointed to represent Appellant on appeal on November 17, 2014.
(CR 22) Counsel for Appellant believes that the appeal of this cause
is without merit and submits this brief with his motion to withdraw.
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Counsel for Appellant is sending a copy of this Brief and a copy
of the clerk’s transcript and court reporter’s record to Appellant the
date this Brief is filed.
ISSUES PRESENTED
Pursuant to T.R.A.P. 38.1(e)
ISSUE NO 1: DOES THE ISSUE WHETHER THE EVIDENCE IS
SUFFICIENT TO SUSTAIN THE COURT’S ORDER REVOKING
APPELLANT’S PROBATION HAVE MERIT ON APPEAL?
ISSUE NO. 2: IS THE JUDICIAL CONFESSION OF APPELLANT
WHEN HE PLEAD GUILTY AND WAS PUT ON PROBATION
SUFFIENT TO SUSTAIN HIS PLEA OF GUILTY.
ISSUE NO. ONE
(Restated)
DOES THE ISSUE WHETHER THE EVIDENCE IS SUFFICIENT TO
SUSTAIN THE COURT’S ORDER REVOKING APPELLANT’S
PROBATION HAVE MERIT ON APPEAL?
SUMMARY OF THE ARGUMENT
Pursuant to T.R.A.P. 38.1(g)
Appellant discerns no potential issues to be raised on the
appeal of this cause other than the sufficiency of evidence to support
the judgment of the trial court finding Appellant guilty and probating
his sentence and the sufficiency of the evidence to support the order
of the trial court revoking his probation. Neither have merit under the
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authorities hereinafter set forth. No other issues were raised in the
record.
ARGUMENT
Pursuant to T.R.A.P. 38.1(h)
Issue No. 1
Appellant entered pleas of true to two of the violation of
probation alleged against him. These alone are sufficient to sustain
the trial court’s order revoking probation. See Burns v. State, 835
S.W.2d 733 (Tex.App.—Corpus Christi 1992, p.d.r. ref.) There are no
other issues legal presented in connection with the revocation
proceeding which might arguably result in reversal of the trial court’s
order revoking probation.
ISSUE NO. TWO
(Restated)
IS THE JUDICIAL CONFESSION OF APPELLANT WHEN HE
PLEAD GUILTY AND WAS PUT ON PROBATION SUFFIENT TO
SUSTAIN HIS PLEA OF GUILTY.
SUMMARY OF THE ARGUMENT
Pursuant to T.R.A.P. 38.1(g)
See summary presented for Issue No. 1 above.
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ARGUMENT
Pursuant to T.R.A.P. 38.1(h)
Issue No. 2
It has long been the law that a judicial confession standing
alone is sufficient to support a finding of guilty and assessment of
punishment after a plea of guilty. See Dinnery v. State, 592 S.W.2d
343 (Crim.App. 1970) No other issues were preserved for appeal in
connection with Appellant’s plea of guilty as part of a plea bargain.
PRAYER
Upon the issues presented, counsel for Appellant, Jerry Leon
McNeil, is of the opinion that Appellant’s appeal is without merit in this
case prays that he be permitted to withdraw in this case and for such
other and further relief to which he may be entitled.
Respectfully submitted,
_/s/James P. Finstrom____
James P. Finstrom
Counsel for Appellant
202 S. Marshall,
P.O. Box 276
Jefferson, Texas 75657
903-665-7111
Fax: 903-665-7167
Texas Bar #07038000
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CERTIFICATE OF SERVICE
I certify that I have delivered a true copy of this brief to Hon.
Angela Smoak, counsel for the State, and to Appellant by United
States mail, first class postage prepaid, at the Titus County jail, 304
S. Van Buren, Mt. Pleasant, Texas 75455, on this 15th day of
January, 2015.
__/s/James P. Finstrom___
James P. Finstrom
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Jerry Leon McNeil v. State
Combined Opinion