ACCEPTED 06-16-00108-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 7/1/2016 9:54:25 AM DEBBIE AUTREY CLERK NO. 06-16-00108-CR IN THE COURT OF APPEALS FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS SIXTH APPELLATE DISTRICT OF TEXAS 7/1/2016 9:54:25 AM DEBBIE AUTREY AT TEXARKANA, TEXAS Clerk TODD OKEITH SMITH, Appellant VS. THE STATE OF TEXAS, Appellee Appealed from the 276th Judicial District Court Marion County, Texas Trial Court Cause No. F14488 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: Todd Okeith Smith Institutional Division of Texas Department of Criminal Justice Joe F. Gurney Unit 1385 FM 3328 Palestine, Texas 75803 Counsel for Appellant at trial: Hon. William T. Hughey P. O. Box 2012 Marshall, Texas 75671 Counsel for Appellant on appeal: Hon. James P. Finstrom P.O. Box 276 Jefferson, Texas 75657 State’s Counsel at trial and on appeal: Hon. Angela Smoak 102 West Austin Street Jefferson, Texas 75657 Trial Judge: Hon. Robert Rolston, Judge, 276th Judicial District Court Marion County, Texas 2 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 4 STATEMENT OF THE CASE 5 ISSUE PRESENTED 6 ISSUE NO. 1: DOES THE ISSUE WHETHER THE EVIDENCE IS SUFFICIENT TO SUSTAIN THE COURT’S ORDER ADJUDICATING APPELLANT’S GUILT HAVE MERIT ON APPEAL? ISSUE NO. ONE (Restated) 6 DOES THE ISSUE WHETHER THE EVIDENCE IS SUFFICIENT TO SUSTAIN THE COURT’S ORDER REVOKING APPELLANT’S DEFERRED ADJUDICATION HAVE MERIT ON APPEAL? SUMMARY OF THE ARGUMENT 6 ARGUMENT (Issue No. 1) 6 PRAYER 7 CERTIFICATE OF SERVICE 8 CERTIFICATE OF COMPLIANCE 8 3 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.) Gobell v. State, 528 S.W.2d 223 7 (Tex.Crim.App. 1975) Jones v. State, 571 S.W.2d 191 7 (Tex.Crim.App. 1978) Statutes: All references to Texas statutes, rules, etc. are to the latest edition published by West Publishing Company, unless otherwise noted. 4 STATEMENT OF THE CASE Pursuant to T.R.A.P. 38.1(d) Appellant was placed on deferred adjudication for ten (10) years on May 4, 2015. (CR 10) The State filed State’s Motion to Proceed with an Adjudication of Guilt on February 22, 2016. (See Supplemental Clerk’s Record) The trial court heard the Motion on May 13, 2016. (CR 3-4) Appellant pleaded true to allegations 1 2, and 4 and not true to allegation 3 in the Motion To Revoke. (CR 10- 11, RR 11-13) The trial court found allegations to be true and adjudicated Appellant and sentenced him to 15 years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant gave timely notice of appeal June 10, 2016. (CR 10-11) Counsel was appointed to represent Appellant on appeal on June 23, 2016. (CR 4) Counsel for Appellant believes that the appeal of this cause is without merit and submits this brief with his motion to withdraw from representation in this cause. 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. 5 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 ADJUDICATING APPELLANT’S DEFERRED ADJUDICATION HAVE MERIT ON APPEAL? ISSUE NO. ONE (Restated) DOES THE ISSUE WHETHER THE EVIDENCE IS SUFFICIENT TO SUSTAIN THE COURT’S ORDER ADJUDICATING APPELLANT’S DEFERRED ADJUDICATION 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 adjudicating him and sentencing him to fifteen (15) years confinement in the Institutional Division of the Texas Department of Criminal Justice. ARGUMENT Pursuant to T.R.A.P. 38.1(h) Issue No. 1 Appellant entered pleas of true to three of the allegations of the motion to adjudicate filed against him. (RR 11-13) These alone are sufficient to sustain the trial court’s order adjudicating and sentencing 6 him. See Jones v. State, 571 S.W.2d 191, 193-94 (Tex.Crim.App. 1978; Gobell v. State, 528 S.W.2d 223, 224 (Tex.Crim.App. 1975); 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. PRAYER Upon the issues presented, counsel for Appellant, Todd Okeith Smith, 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 Appellant 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 7 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 Joe G. Gurney Unit, 1385 FM 3328, Palestine, Texas 75803, on this 1st day of July, 2016. __/s/James P. Finstrom___ James P. Finstrom CERTIFICATE OF COMPLIANCE I certify that Appellant’s Brief filed electronically on this 1st day of July, 2016 complies with Tex. R. App. P. 9.4(i)(2)(B). This Brief contains 900 words. /s/ James P. Finstrom James P. Finstrom 8
Todd Okeith Smith v. State
Combined Opinion