Darrian Dewayne Johnson, Jr. v. State

ACCEPTED 12-15-00099-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 8/5/2015 4:25:15 PM CATHY LUSK CLERK

CAUSE NO. 12-15-00099-CR IN THE COU RT O F APPEA LS FILED IN 12th COURT OF APPEALS FOR THE TYLER, TEXAS TWELFTH DISTRICT OF TEXAS 8/5/2015 4:25:15 PM AT TYLER CATHY S. LUSK Clerk

DAR RIAN DEW AYN E JO HNS ON, J R., Appellant vs. The State of Texas, Appellee

On Appeal from Criminal Cause No. 18851 in the 2nd Judicial District Court of Cherokee County, Texas

ANDERS BRIEF

ORAL ARGUM ENT IS NOT REQUESTED

LAW OFFICE OF FORREST K. PHIFER P.O. Box 829 /S/ Forrest K. Phifer Rusk, Texas 75785-0829 Forrest K. Phifer (903) 721-1842 SBN 15908570 Attorney for App ellant, Court Appointed

NO POINTS OF ERROR PRESENTED

1. The undersigned finds no legally or factually non-frivolous grounds for appeal

reasonably calculated to return a judgment of modif ication or reversal.

i

CERTIFICATE OF INTERESTED PARTIES

The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of this Honorable Court may evaluate possible disqualification or recusal. Darrian DeWayne Johns on, Jr . . . . . . . . . . . . . . . . . . . . . . . . . Appellant/Defendant Jeff Clark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial Counsel for Appellant

Sten Langsjoen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court Appointed Trial Counsel on Motion to Adjudicate for A ppellant

Forrest K. Phifer . . . . . . . . . . . . . . . . . . . . . . . . Court Appointed Ap pellate Counsel for Appellant

The State of Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prosecuting Party

Rachel Patton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . District Attorney, Cherokee County, Texas

Charles Breaux . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assistant D istrict A ttorney, Cherokee County, Texas

Respectfully submitted, Forrest K. Phifer

BY: /S/ Forrest K. Phifer SBN 15908570 Attorney f or Appellant on Ap peal, Court Appointed

ii

TABLE OF CONTENTS

NO POINTS OF ERROR PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i CERTIFICATE OF INTERE STED PAR TIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF CON TENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii TABLE OF AUT HORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

CONST ITUTIONA L PROVISION S, Statutes and Code of Criminal Procedure Involved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

STATEME NT OF THE C ASE

I. NATU RE OF TH E PRO CEEDING . . . . . . . . . . . . . . . . . . . . . . . . . viii

II. SUMMA RY OF THE FA CTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvi

ARGUMENT

1. The undersigned find s no legally or factually non-frivolous grounds for appeal reasonably calculated to return a judgment of modification or reversal . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

iii

TABLE OF AUTHORITIES

CASES: United States Supreme Court

Ande rs v Ca lifornia, 3865 US 7 38(1967 ) . . . . . . . . . . . . . . . . . . xvii,8 McCoy v C ourt of Appe als, 486 US 42 9 (1988) . . . . . . . . . . . . . xvii,8 Miranda v Arizona, 384 US 43 6 (1966) . . . . . . . . . . . . . . . . . . . . xvii,7 Padilla v Kentucky, 559 US 35 6 (2010) . . . . . . . . . . . . . . . . . . . xviii,8 Strickland v Washington, 466 US 66 8 (1984) . . . . . . . . . . xviii,xix,12

Texa s Court of C rimina l Appeals

Butler v State, 716 SW2d 48 (Tex Crim App 1986) . . . . . . . . . . xix,13 Bynu m v Sta te, 767 SW2d 769 (Tex Crim App 19989) . . . . . . . . xvii,1 Chap ple v State, 521 SW2d 280 (Tex Crim Ap p 1975) . . . . . . . . xvii,1 Cole v State, 578 SW2d 127 (Tex. Crim. App. 19 79) . . . . . . . . xix,13 Eastep v Sta te, 941 SW2d 130 (Tex Crim. App 1997) . . . . . . . . xvi,1 Ex Parte Wellborn, 785 SW2d 391 (Tex Crim. App . 1990) . . . . xvi,7 Harryman v State, 522 SW2d 512 (Tex Crim App 1975) . . . . . . xvii,7 Hern ande z v State, 726 SW2d 53 (Tex Crim App 1986) . . . . . xviii,12 Mene fee v State, 287 3rd 9 (Tex Crim App 20 09) . . . . . . . . . . . . . xvi,7 Neal v State, 256 3rd 264 (Tex Crim App 20 08) . . . . . . . . . . . . . . xvi,7 Stafford v Sta te, 813 SW2d 503 (Tex Crim Ap p 1991) . . . . . . . . xvi,7

UNITED STATES C ONSTITU TIONA L PROV ISIONS:

Amendment V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii,13 XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

TEXAS CO NSTITUT IONAL PROVI SIONS:

Tex. C onst. art. I, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii § 19 Tex. Const. art. V, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii Tex. Const. art. V, § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii Tex. Const. art. V, § 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

iv TEXAS STA TUTES:

Texas Code of Criminal Pro cedure §1.04 .................. vii §1.05 .................. vii §1.15 .................. vii §4.01 .................. vii §4.03 .................. vii

Texas Government Code §22.201(m) . . . . . . . . . . . . . vii §22.213 . . . . . . . . . . . . . . . . vii

Texas Health & Safety Code § 481.102(3)(D) vii,viii,ix ,x,2,6 §481.115(a) . . vii,viii,ix,x,2,6 (b) . . . . vii,viiiix,x,2,6

Texas Penal Code § 6.03(a) . . . . . . . . . . . . . . vii,x § 12.04 . . . . . . . . . . . . . . . . vii,x § 12.35(a) . . . . . . . . . . vii,viii,x (b) . . . . . . . . . . vii,viii,x

TEXAS RULES OF APPELLATE PROCEDURE:

Texas Rules of Appellate Procedure Rule 21.8 . . . . . . . . . . . vii,ix,xii Rule 25.2(a)(2) . . . . . . . . . vii,x Rule 26.2(a) . . . . . . . . . . . vii,x Rule 33.1(a) . . . . . . . . . vii,xvi,7 Rule 35.2 . . . . . . . . . . . vii,ix,x Rule 35.3 (b) . . . . . . . . . . . vii,x Rule 35.3 (c) . . . . . . . . . . . vii,x Rule 44.2(a) . . . . . . . . . vii,xvi

DISCIPLINARY RULES OF PROFESSIONAL CONDUCT:

Rule 3.01 . . . . . . . . . . . . . . . . 1

v

CAUSE NO. 12-15-00099-CR

IN THE COU RT O F APPEA LS FOR THE TWELFTH DISTRICT OF TEXAS AT TYLER

Darrian DeWayne Johnson, Jr., Appellant

vs.

The State of Texas,

Appellee

On Appeal from Criminal Cause No. 18851

in the 2nd Judicial District Court of

Cherokee County, Texas

Anders Brief TO THE HONORABLE JUSTICES OF SAID COURT:

Forrest K. Phifer, Court Appointed Appellant Counsel for Appellant, Darrian Dewayne Johnson, Jr., Defendant in Criminal Cause No. 188 51, before the 2nd Judicial District Court of Cherokee County, Texas, respectfully submits this Anders Brief in

support of his Motion to Withdraw. vi

Opinions Below

The Order of Def erred Adjudication as rendered by the court is set forth in the Clerk’s Record (CR vol 1, page 13). The O rder Imposing Cond itions of C ommunity Supervision is set forth in Clerk’s R ecord (C R vol. 1, pa ge 15). The Motion to Adjudicate is set forth in the Clerk’s Record (CR vol 1, page 20). The judgment adjudicating Guilt and assessing sentence is set forth in the Clerk’s Record ( CR vol 1, page 44) and the Reporter’s Records (RR vol 2, page 48 and vol 2 , page 84) and Appendix A.

Jurisdiction

Appellant jurisdiction for this cause is properly before this Court pursuant to Texas Constitution art. V, §§ 1, 6 and 8; Texas Code Criminal Procedure Ann. arts. 4.01 and 4.03; and Texas Government Code §§ 22.201(m) and 22.213.

Constitutional Provisions, Statutes and Code of Criminal Procedure involved

This app eal involves U. S. Constitution Amendments V, VI and XIV; Texas Constitution art. I, §§ 10 and 19 and art. V, §§ 1, 6 and 8; Texa s Government Code §§, 22.201(m), and 22.213; Texas Code of Criminal Procedure arts. 1.04, 1.05, 1.15, 4.01, 4.03; Texas Penal Code §§ 6.03, 12.04, 12.35(a) and (b); Texas Health & Safety Code §§ 481.102(3)(D); 481.115(a) and (b) Texas Rules of Appellate Procedure Rules 21.8,

25.2(a)(2), 26.2(a), 33.1(a), 35 .2, 35.3(b) and (c) and 4 4.2(a). vii

Statement of the Case I. Nature of the Proce eding

This cause originated in the 2 nd Judicial District C ourt of Cherokee County, Texas. On M ay 28, 2013, Appellant was indicted for Possession of a C ontrolled Substance - Penalty Group 1. (CR vol 1, page 6) Health & Safety Code §§ 481.102(3)(D); 481.115(b) On September 12 , 2013 , Appellant, by and through his attorney of record, filed his written waiver of arraignment and agreement to be arraigned at time of trial. (CR vol 1, page 8) The of fense, as alleged in the information, constituted a State Jail Felony. Texas Health & Safety Code § 481.115 (b). Punishment for a Sta te Ja il Felony has been set by our legislature at confinement in a state jail facility of the Texas Department of Criminal Justice, Institutional Division, for a term not less than one hundred eighty (180) days, nor more than 2 yea rs. Texas Penal Code § 12.35(a). In addition to confinement, a fine may be imposed in an amount not to exceed $10,000.00. Texa s Pen al Co de § 12.35(b).

On that January 16, 2014, Ap pellant, with his attorney’s signed consent and app roval, entered his w ritten Plea B argain agreement and Waiver of and Stipulation to the Evidence a nd Statements. (CR vol 1, page 9 ). The Court accepted the agreement, waiver and stipulation and found the Ap pellant competent and had acted knowingly and voluntarily in the plea. (CR vol 1, page 10) The Ord er of Deferred

viii Adjudication wa s entered on that same date. (CR vol 1, page 13).

On July 9, 2 014, the State filed its Motion to Adjudicate. (CR vol 1, page 20). On October 24, 201 4, the Court considered Appellants application for court appointed attorney and entered its order appointing legal counsel to represent Appellant at the adjudication hearing. (CR vol 1, page 40) On January 8, 2015, the Court held the hearing on the motion. (RR vol 2, page 1 ).

The Judgment adjudicating guilt was entered on that same day. (CR vol 1, page 44) (RR vol 2, page 46, line 19) The Court assessed c onfinement in the State J ail Facility of TDCJ , ID for a period of two (2) years to be consecutive with its companion case, cause # 18851. (RR vol 2, page 85, ,line 9) (CR 1 page 44) II. Summar y of the Fa cts

This cause originated in the 2nd Judicial District C ourt of Cherokee County, Texas. On May 28, 2013, Appellant was indicted for the offense of Possession of a Controlled Substance - Penalty Group 2. (CR vol 1, page 6) Texs Health & saftey Code 481.102(3)(D), 481.115(a)and(b) On September 12, 2013, Appellant, by and through his attorney of record, filed his written waiver of arraignment and agreed to be arraigned at trial. (CR vol 1, page 8) The offense, as alleged in the information, constituted a State Jail Felony. Texas Health and Safety Code § 481.115(b). Punishment for a State Jail Felony has been set by our legislature at confinement in a

ix state jail facility of the Texas Department of Criminal Justice, Institutional Division, for a term not less than one hund red eighty (180 ) days, nor more than 2 years. Texas Penal Code § 12.35(a). In addition to confinement, a fine may be imposed in an amount not to exceed $ 10,000.00. Texa s Pen al Co de § 12.35(b).

On January 16, 201 4, Appellant, with his attorney’s signed consent and app roval, entered his written Plea Bargain agreement and Waiver of and Stipulation to the Evidence and Statements. (CR vol 1, page 9). The Court accepted the agreement, waiver and stipulation and found the Ap pellant competent and had acted knowingly and voluntarily in the plea. (CR vol 1, page 10) The Order of D eferred Adjudication wa s entered on that same date. (CR vol 1, page 13).

On July 9, 2014, the State filed its Motion to Adjudicate. (CR vol 1, page 20) On October 24, 201 4, the Court considered Appellants application for court appointed attorney and entered its order appointing legal counsel to represent Appellant at the adjudication hearing. (CR vol 1, page 40) On January 8, 2015, the Court held the hearing on the motion. (RR vol 2, page 1 ).

At the beginning of the hearing, the Court admonished Appellant of his rights and the possible consequences of pleading true to the allegations filed in the State’s motion. (RR vol 2, page 1, line 8). Defense counsel also represented that he had also counseled with his client regarding the motion and its contents. (RR vol 2, page 4, line

x 4). Appellant entered a plea of TRUE to the allegations, except for paragraphs ## 11, 12, 13, 14 , 22, 24, 29, and 30 to w hich he pled NOT TR UE. (RR vol 2, page 4, line 10) The State abandoned paragraph # 15. (RR vol 2, page 4, line 22)

The State waived opening statement (RR vol 2, page 7, line 6) The State opened by introducing State’s exhibit 1, a certificate of the analysis of the blood (concerning the DWI allegation set forth in the violation allegation paragraph 3 of the motion to adjudicate) which had been on file with the Court since the previous November 12th, without any previous objection to its filing. (RR vol 2, page 7, page 20) How ever, Defense counsel objected at this time stating that they had already pled TRUE to the referenced allegation and that the plea therefore took the issue out of consideration, making the introduction bolstering. (RR vol 2, page 7, line 25). The Court overrule d the objection. (RR vol 2, page 8, line 6) “A conviction rendered without sufficient evidence to support a guilty plea constitutes a trial error.” (emphasis added) Menefee v State, 287 SW3rd 9, 14 (Tex Crim App 2009); Tex Code Crim Proc. Art. 1.15.

The State then called its first witness, Alan Schantz, the Appellant’s supervising probation officer. (RR vol 2, page 9, line 8) Schantz testified that his notes did not reflect that the Appellant had any problems understanding the terms of his probation. (RR vol 2, page 10, line 19) Schantz was not allowed to testify as to hearsay evidence concerning allegation of activity in Houston Couny. (RR vol 2, page 12, line 10)

xi

Under cross-examination, Schantz testified that Appellant tested positive for drugs (RR vol 2, page 13, line 19) and that Appellant confessed to Schantz that he had been using drugs (RR vol 2, page 14,line 1)

On re-direct, it was confirmed that the drugs for which App ellant tested positive were cocaine and marihuana. (RR vol 2, page 15, line 14)

The State’s second witness was Deputy Justin Link of the Houston County Sheriff’s office. (RR vol 2, page 17, line 6) Link testified that, while on patrol, he stopped the Appellant within Houston County on or about June 2, 2014 for driving erratically (RR vol 2, page 18, line 8) around 7:30 p.m. (R R vo l 2, page 19, line 18) Identifying the driver as the Appellant (RR vol 2, page 23, line 12), Link further testified that when he approached Appellant he could smell the strong odor of marihuana (RR vol 2, page 24, line 18) and that Ap pellant admitted that he smoked “K2" earlier. (RR vol 2, page 24, line 23) His further testimony indicated that Appellant identified a bottle’s contents as “crack cocaine” (RR vol 2, page 26, line 8) and that the 27 pills contained therein were Xanax pills, for which he did not have a prescription (RR vol 2, page 27, line 1) Link also stated that Appellant confirmed that both the cocaine and the Xanax were for his (Appellant’s) personal use (RR vol 2, page 27, line 2) Officer Link testified that Appellant was arrested for possession of a controlled substance (RR vol 2, page 27, line 22 ) as well as for tamp ering with

xii evidence since Appellant tried to throw the bottle away before he was stopped. (RR vol 2, page 28, line 1) Efforts to identify the contents of the bottle as cocaine by any other method other than Appellant’s statements were ruled inadmissable hearsay (RR vol 2, page 28, line 21) Defense counsel’s objection to Appellant’s statements concerning the bottle and its contents as in violation of Appellant’s Miranda rights were overruled. (RR vol 2, page 38, line 13). A discussion was had concerning whether the statements were made during a custodial interrogation and whether once Miranda had been read and the App ellant confirmed his previous statements and continued to answer questions whether that the statements were then made admissible. (RR vol 2, page 36, line 9)

During cross-examination, it was determined that when Officer Link had returned with the bottle which Appellant was seen throwing out of his vehicle, Link asked whether the bottle belonged to Appellant at which time Appellant identified what was inside of it. (RR vol 2, page 31, line 6 and page 35, line 15). “If a statement was admissible as res gestae the fact that it wa s made in resp onse to an inquiry, or while under arrest does not render the testimony inadmissible.” Harryman v State, 522 SW2nd 512, 516 (T ex Crim App 19 75) Further, after making these statements Appellant was read his Miranda warnings, indicated that he understood them and continued to answer the officer’s questions concerning the narcotics. (RR vol 2, page

xiii 31, line 14)

The State rested calling no further witnesses. (RR vol 2, page 42, line 16)

The Appellant declined to testify. (RR vol 2, page 43, line 18). The defense called no witnesses. (RR vol 2, page 43, line 11)

Both parties agreed that the Court could adjudicate the App ellant guilty based upon the pleas. (RR vol 2, pa ge 44, line 16) A plea of TR UE, standing alone, is sufficient to support a revoca tion of probation. Cole v State, 578 SW2nd 12 7, 128 (Tex Crim App 1979)

The Judgment adjudicating guilt was entered on that same day. (CR vol 1, page 48) (RR vol 2, page 46, line 19)

The punishment phase began with the State calling its first and only witness, Officer Brandon Dobbs of the Jacksonville Police Department. (RR vol 2, page 49, line 19) Officer Dobbs testified as the arresting officer for the underlying charges and discussed the circumstances surround ing same. (R R vol 2, pa ge 50, line 9) The state rested. (RR vol 2, page 57, line 12)

The defense presented its first and only witness, Gerri Michelle Johnson, Appellant’s mother, as a character witness. (RR vol 2, page 57, line 15) The defense then rested (RR vol 22, page 82, line 25)

The Court assessed confinement in the State Jail Facility of TDCJ , ID for a

xiv period of two (2) years to b e consecutive with its companion case, cause # 19099. (RR vol 2, page 85, line 9) (CR 1 page 44)

Appellant filed a pro se Notice of Appea l on January 20, 2015 (C R vol 1, page 47). That same d ate, App ellate also filed a request for the app ointment of a ppellate counsel. (CR vol 1, page 48) The Court found A ppellate indigent and appointed legal counsel on appeal on February 12, 2015 (C R vol 1, page 52) how ever, notice of the appointment was not forwarded until March 18, 2015. (CR vol 1, page 53) Appellant’s counsel filed a Motion for New Trial and Motion in Arrest of Judgment (CR vol 1, page 57), as well as the Written Designation Specifying M atters for Inclusion in Clerk’s Record (CR vol 1, page 59) and his R equest for Preparation of Reporter’s Record and Designation of Matters to be Included, along with his Request for a Free Reporter’s Record (CR vol 1, page 61 ). The Motion for New Trial was DENIED by operation of law. Texa s Rules of A ppellate P roce dure 21.8.

The Clerk’s Record (CR) was received and timely filed with the Court of App eals. Texa s Rules of A ppellate P roce dure 35.2 The Reporter’s Record (RR) was also received and timely filed with the Court. Id. All necessary and proper prerequisites for this appeal have timely and properly occ urred. Texas Rules of Appellate Proc edure 25 .2(a)(2), 2 6.2(a), 35.2 and 35.3 (b) and (c).

xv

Summary of the Argument

ANDERS GROUNDS

After thorough review, Appellate counsel can find no legally or factually non-frivolous grounds for appeal reasonably calculated to return a judgment of modification or revers al. Ande rs v Ca lifornia, 386 US 738 (1967)

PRESERVATION OF ERROR

To preserve error on ap peal, the complaining party must make a timely, specif ic objection, and obtain a ruling on the objection. TRAP 33.1(a); Neal v State, 256 SW3rd 264, 279 (Tex Crim App 2008)

xvi

ARGUMENT

1. The Undersigne d Finds N o Leg ally or Factually Non-Frivolous Grounds

For Appeal Reasonably Calculated To Return A Judgment Of

Modification Or Reversal

Appellant is guaranteed Due Process under the 5th and 14th Amendments to the United States Constitution and the Texas Constitution Art. I, §19, wherein is stated, “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” See also, Texas Code of Criminal Procedure § 1.05.

Pursuant to Rule 3.01 Meritorious C laims and Contentions of the Texas R ules of Disciplinary C onduc t, a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous.

In Ande rs v Ca lifornia, 386 US 738, 744 (19 67), the United States Supreme Court provided a procedure w herein an appointed legal counsel in a criminal appellate case should follow when seeking to withdraw from the appeal which in counsel’s professional opinion is frivolous. The Court stated that counsel must “master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal. McCoy v C ourt of Appe als, 486 US 429 *2 (1988 ); see als o, And ers v C alifornia, 386 US at 744-45.

After a thorough and conscientious review of the record, the undersigned concludes that the appeal of the instant case is wholly frivolous and that there is found no legal or factual non-frivolous grounds for an appeal reasonably calculated to return a judgment of modif ication or reversal. Therefore, the und ersigned must resp ectf ully advise this Court of same and request permission to w ithdraw. Ande rs v Ca lifornia, 386 US at 7 44; Stafford v Sta te, 813 SW2d 503, 511 (Tex Crim App 1991); Texas Disciplinary Rules of Professional Conduct Rule 3.01.

A. Suff icienc y of the ind ictme nt or misdemeanor information.

On May 28,2013 A ppellant was indicted for the criminal offense of Pos session of a Controlled Substance - Penalty Group 1. (CR vol 1, page 6) Texas Heakth & Safety Code §§ 481.102(3)(D) and 481.115(a) and (b) Appellant, by and through his attorney of record, filed his written waiver of arraignment and agreed to be arraigned at time of trial. (CR vol 1, page 8) The offense, as alleged in the information, constituted a State Jail Felony. Texas Health & Safety Code § 481.115(b). Punishment for a State Jail Felony has been set by our legis lature at confinement in a state jail facility of the Texas Department of Criminal Justice, Institutional Division, for a term not less than one hundred eighty (180) days, nor more than 2 years. Texas Penal Code § 12.35(a). In addition to confinement, a fine may be imposed in an amount not to *3 exceed $10,000.00. Texa s Pen al Co de § 12.35(b).

The Indictment appear as to be in proper form and alleges s ufficient facts to apprise Appellant of the charges. Further, those charges are stated in substantial conformity with the cited statutes.

Both the Sixth Amendment to the U.S. Constitution and Article I, § 10 of the Texas Constitution require that a Defendant be given proper notice before trial of the “nature and cause” of the acc usation against him, and further requires that the notice be provided with sufficient clarity and detail as to enable the d efendant to anticip ate the State’s evidence and prepare a proper defense to it. Eastep v Sta te, 941 SW2nd 130, 132 (Tex Crim Ap p 1997) U nder Article I,§ 10, the requisite notice must come from the face of the charging ins trument. Id Thus, in this case, the Indictment must allege, in plain and intelligible language, all of the facts and circumstances necessary to establish all of the material elements of the offense alleged . Bynum v State , 767 SW2nd 76 9, 779 (Tex Crim Ap p 1989).

The fact that the incident occurred within the jurisdiction of the Court, comprising Cherokee County, Texas, w as expressly established by the Indictment (CR vol 1, page 6) and Appellant’s written Stipulation (CR vol 1, page 9)

The Motion to Adjudicate was precise in its notice of the violations alleged. (CR vol 1, page 20)

B. Any adverse pretrial rulings, including but not limited to rulings on

motions to suppress, m otions to quash, and m otions for speedy trial.

The undersigned finds no evidence that Appellant was arraigned p rior to his plea. An attorney representing a Defendant may present a waiver of arraignment, and the clerk of the court may not require the presence of the Defendant as a cond ition of accepting the waiver. To preserve error on appeal, the complaining party must make a timely, specific objec tion, and obtain a ruling on the objection. TRAP 33.1(a); Neal v State, 256 SW3rd 2 64, 279 (Tex C rim App 200 8); In Re A.D.A., 287 SW3rd 382, 387 (Tex App Texark ana 2009). N o objection was made. Furthermore, a plea of TRUE, standing alone, is sufficient to support a revocation of probation. Cole v State, 578 SW2nd 127, 128 (Tex Crim App 1979) Additional, Appellant waived his right by written agreement (CR vol 1, page 9)

C. Compliance with Texas Co de of Criminal Procedure article 26.13

and, if appropria te, Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

The Ap pellant properly admonished in writing of his rights at the time of the original plea. (CR vol 1, page 9) At time of the hearing on the motion to adjudicate, the Court again admonished him concerning the revocation. (RR vol 2, page 1, line 1)

D. Whether the issue of competency w as raised prior to sentencing, so

as to warrant an inquiry by the court, and whether appellant was

mentally competent when the court accepted the plea.

The Court made a specific finding of the competence of Appellant. (CR vol 1, page 9) No other evidence suggests Appellant was not mentally competent at time of the hearing on the Motion to Adjudicate.

E. Whether appellant’s plea was freely and voluntarily made.

The Court made a specific finding that the plea was free and voluntary (CR vol 1, page 9). No other evidence suggests that Appellant’s plea w as not free and voluntary. Appellant was also represented by legal counsel who stated that he had previously counsel with Appellant concerning the plea and its consequences.(RR vol 2, page 4, line 4)

F. Any adverse rulings during the sentencing hearing on objections or

motions.

There were no objections during the sentencing hearing.

G. Any failure on the part of a ppellant’s trial counsel to ob ject to

fundamental error.

There is no evidence of fundamental error

H. Whether the sentence imposed was within the applicable range of

punishment.

Appellant was charged with the criminal offense of Possession of a Controlled *6 Substance - Penalty Group 1. (CR vol 1, page 6); Texas Health & Safety Code § 481.102(3)(D) and 481.115(a) and (b). The offens e, as alleged in the indictment, constituted a State Jail Felony. Texas Health & Safety Code § 481.115(b). Punishment for a State Jail Felony has been set by our legislature at confinem ent in a state jail facility of the Texas Department of Criminal Justice, Institutional Division, for a term not less than one hundred eighty (180) days, nor more than 2 years. Texas Penal Code § 12.35(a). In addition to confinement, a fine may be imposed in an amount not to exceed $10,000.00. Texa s Pen al Co de § 12.35(b). The Court assessed c onfinement in the State Jail Facility of TDCJ, ID for a period of two (2) years to b e consecutive with its companion case, cause # 19099. (RR vol 2, page 85, ,line 9) (CR 1 page 44) The punishment was within the permissible range.

I. Whether the written judgm ent accurately reflects the sentence that

was imposed and w hether any credit was prope rly applied.

The judgment accurately reflects the sentence imposed and the proper credit earned. (CR vol 1,page 44)

J. Whether there is evidence to support a guilty plea in a felony case.

There is sufficient evidence to support a Guilty/True plea. A plea of TRUE, standing alone, is sufficient to support a revoca tion of probation. Cole v State, 578 SW2nd 127, 128 (Tex Crim App 1979)

In addition to Appellant’s plea of TRUE, the State opened it case by introducing State’s exhibit 1, a certifica te of the analysis of the blood (concerning the DWI allegation set forth in the violation allegation paragraph 3 of the motion to adjudicate) which had been on file with the Court since the previous November 12 th, without any previous objection to its filing. (RR vol 2, page 7, page 20) H owever, Defense counsel objected at this time stating that they had already pled TRUE to the referenced allegation and that the plea therefore took the issue out of consideration, making the introduction bolstering. (RR vol 2, page 7, line 25). The Court overruled the objection. (RR vol 2, page 8, line 6) “A conviction rendered withou t sufficien t evidence to support a guilty plea constitutes a trial error.” (emphasis added) Menefee v State, 287 SW3rd 9, 14 (Tex Crim App 2009); Tex Code Crim Proc. Art. 1.15.

The State then called its first witness, Alan Schantz, the Appellant’s supervising probation officer. (RR vol 2, page 9, line 8) Schantz testified that his notes did not reflect that the Appellant had any problems understanding the terms of his probation. (RR vol 2, page 10, line 19) Schantz was not allowed to testify as to hearsay evidence concerning allegation of activity in Houston Couny. (RR vol 2, page 12, line 10)

Under cross-examination, Schantz testified that Appellant tested positive for drugs (RR vol 2, page 13, line 19) and that Appellant confessed to Schantz that he had been using drugs (RR vol 2, page 14,line 1)

On re-direct, it was confirmed that the drugs for which App ellant tested positive were cocaine and marihuana. (RR vol 2, page 15, line 14)

The State’s second witness was Deputy Justin Link of the Houston County Sheriff’s office. (RR vol 2, page 17, line 6) Link testified that, while on patrol, he stopped the Appellant within Houston County on or about June 2, 2014 for driving erratically (RR vol 2, page 18, line 8) around 7:30 p.m. (RR vol 2, pag e 19, line 18) identifying the driver as the Appellant (RR vol 2, page 23, line 12) Link further testified that when he approached A ppellant he could smell the strong odor of marihuana (RR vol 2, page 24, line 18) and that Ap pellant admitted that he smoked “K2" earlier. (RR vol 2, page 24, line 23) His further testimony indicated that Appellant identified a bottle’s contents as “crack cocaine” (RR vol 2, page 26, line 8) and that the 27 pills contained therein were Xanax pills, for which he did not have a prescription (RR vol 2, page 27, line 1) Link also stated that Appellant confirmed that both the cocaine and the Xanax were for his (Appellant’s) personal use (RR vol 2, page 27, line 2) Officer Link testified that Appellant was arrested for possession of a controlled substance (RR vol 2, page 27, line 22 ) as well as for tamp ering with evidence since Appellant tried to throw the bottle away before he was stopped. (RR vol 2, page 28, line 1) Efforts to identify the contents of the bottle as cocaine by any other method other than Appellant’s statements were ruled inadmissable hearsay (RR vol 2, *9 page 28, line 21) Defense counsel’s objection to Appellant’s statements concerning the bottle and its contents as in violation of Appellant’s Miranda rights were overruled. (RR vol 2, page 38, line 13). A discussion was ha d concerning whether the statements were made during a custodial interrogation and whether once Miranda had been read and the Appellant confirmed his previous statements and continued to answer questions whether that the statements were then made admissible. (RR vol 2, page 36, line 9)

During cross-examination, it was determined that when Officer Link had returned with the bottle which Appellant was seen throwing out of his vehicle, Link asked whether the bottle belonged to Appellant at which time Appellant identified what was inside of it. (RR vol 2, page 31, line 6 and page 35, line 15). “If a statement was admissible as res gestae the fact that it wa s made in resp onse to an inquiry, or while under arrest does not render the testimony inadmissible.” Harryman v State, 522 SW2nd 512, 516 (Tex Crim App 1975 ) Further, after making these statements Appellant was read his Miranda warnings, indicated that he understood them and continued to answer the officer’s questions concerning the narcotics. (RR vol 2, page 31, line 14)

K. Jury Selection.

The case was tried to the Court p ursuant to a waiver at the time of the underlying *10 charge. The hearing on the Motion to Adj udicate w as tried to the Court

L. Examination of the record to de termin e if the appellant was denied

effective assistance of counsel.

There is no evidence that counsel was ineffective. The Strickland standard has been adopted in Texas for resolving allegations of ineffective assistance of counsel under both the federal and state constitutions. Hernandez v State, 726 SW2d . 53 (Tex Crim App 1986). Measured by subsequent developments, the prejudice prong creates a “but for” reasonableness standa rd, i.e., “but for” counsel’s unprofessionalism, a different result would have occurred. Even if Appellant demonstrates counsels’ unreasonable errors, he must show that they adversely affected the defense. Whether a fundamentally unfair result occurred becomes the focus for appellate review. Strickland v Washington, 466 US 66 8 (1984).

Among counsel's duties is that of making an independent investigation of the facts of his client's case. It is fundamental that an attorney must have a firm command of the facts of the case as w ell as the law before he can render reasonably effective assistance of counsel. A natural consequence of this notion is that counsel also has a responsibility to seek out and interview potential witnesses and failure to do so is to be ineffective, if not incompetent, where the result is that any viab le defense available to the accused is not advanced. Ex Parte Wellborn, 785 SW2d 3 91 (Tex Crim pp 1990 ); *11 Butler v State, 716 SW2d 48, (Tex Crim App 1986)

Moreover, counsel has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. Thus a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceed ings. Id.

Counsel’s actions demonstrated knowledge of the facts of the case. He presented objections, with the Court susta ining most of them. (RR vol 2, page 7, line 25-bolstering/Denied; page 12, 10-hearsay/Sustained; page 12, line 25-hearsay/Sustained; page 28, line 22-hearsay/Sustained; page 36, line 9-Miranda/Denied.

Insofar as the bolstering objection, the State opened its case by introducing State’s exhibit 1, a certifica te of the analysis of the b lood (conc erning the DWI allegation set forth in the violation allegation paragraph 3 of the motion to adjudicate) which had been on file with the Court since the previous November 12 th, without any previous objection to its filing. (RR vol 2, page 7, page 20) However, Defense counsel objected at this time stating that they had already pled TRUE to the referenced allegation and that the plea therefore took the issue out of consideration, making the introduction bolstering. (RR vol 2, page 7, line 25). The Court overruled the objection. (RR vol 2, page 8, line 6) “A conviction rendered withou t sufficien t evidence to support a guilty plea constitutes a trial error.” (emphasis added) Menefee v State, 287 *12 SW3rd 9, 14 (Tex Crim App 2009); Tex Code Crim Proc. Art. 1.15.

Insofar as the Miranda objection, Officer Link’s testimony indicated that Appellant identified a bottle’s contents as “crack cocaine” (RR vol 2, page 26, line 8) and that the 27 pills contained therein were Xanax pills, for which he did not have a prescription (RR vol 2, page 27, line 1) Link also stated that Appellant confirmed that both the cocaine and the Xanax were for his (Ap pellant’s) personal use (RR vol 2, page 27, line 2) Officer Link testified that Appellant was arrested for possession of a controlled substance (RR vol 2, page 27, line 22 ) as well as for tamp ering with evidence since Appellant tried to throw the bottle away before he was stopped. (RR vol 2, page 28, line 1) Efforts to identify the contents of the bottle as cocaine by any other method other than A ppellant’s statements were ruled inadmissable hearsay (RR vol 2, page 28, line 21) Defense counsel’s objection to Appellant’s statements concerning the bottle and its contents as in violation of App ellant’s Miranda rights were overruled. (RR vol 2, page 38, line 13). A discussion was had concerning whether the statements were made during a custodial interrogation and whether once Miranda had been read and the App ellant confirmed his previous statements and continued to answer questions whether that the statements were then made admissible. (RR vol 2, page 36, line 9)

During cross-examination, it was determined that when Officer Link had *13 returned with the bottle which Appellant was seen throwing out of his vehicle, Link asked whether the bottle belonged to Appellant at which time Appellant identified what was inside of it. (RR vol 2, page 31, line 6 and page 35, line 15). “If a statement was admissible as res gestae the fact that it wa s made in resp onse to an inquiry, or while under arrest does not render the testimony inadmissible.” Harryman v State, 522 SW2nd 512, 516 (T ex Crim App 19 75) Further, after making these statements Appellant was read his Miranda warnings, indicated that he understood them and continued to answer the officer’s questions concerning the narcotics. (RR vol 2, page 31, line 14)

The record also reflected that he and his client spoke in depth about the procedural aspects of the case as well. (RR vol 2, page 4,line 4)

Conclusion

For the reasons stated above, Appellant respectfully prays that this Court GRANTS Counsel’s Motion To Withdraw, notifies Appellant of this action and grant Appellant an opportunity to either hire legal counsel or file a response or brief pro se. In the event Appellant desires to f ile a response or brief pro se, Counsel would urge to Court to grant Appellant sufficient reasonable time for research and preparation of same.

Respectfully submitted, LAW OFFICE OF FORREST K. PHIFER Forrest K. Phifer P.O. Box 829 SBN 15908570 Rusk, Texas 75785-0829 (903) 721-1842 By: /S/ Forrest K. Phifer

Certificate of Compliance with TRAP 9.4(i)(3)

I, the undersigned certify that this brief contains 8,975 words.

BY: /S/ Forrest K. Phifer

CERTIFICATE OF SERVICE

The undersigned hereby c ertifies that a true and correct copy of the above and foregoing document has been served on the prosecuting attorney, Cherokee County, Cherokee County Courthouse, 135 South Main Street, Rusk, Cherokee County, Texas 75785 in accordance with the applicable Texas Rules of Criminal Procedure on August 5, 2015.

By: /S/ Forrest K. Phifer

APPENDIX

APPENDIX A [Trial C ourt’s Judgm ent or other appea lable order f rom w hich relief is sought]

APPENDIX B [Jury Charge and Verdict, if any, or the Trial Court’s Findings of Fact and Conclusions of Law]

not applicable

APPENDIX C [Text of any rule, regulation, ordinance, statute, constitutional provision, or other law (excluding case law) on which the argument is based, and the text of any contract or other documen t that is cen tral to the argu ment.]

APPENDIX C

Texas Disciplinary Rules of Professional Conduct Rule 3.01 Meritorious Claims and Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonab ly believes that there is a bas is for doing so that is not frivolous.

The Constitution of the United States of America Amendment 5

No person shall be held to answer f or a cap ital, or otherwis e infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in a ny criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment 6

In all criminal prosecutions, the accused shall enjoy the right to a speed y and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Amend ment XIV

All persons born or naturalized in the United States and subjec t to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor s hall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Constitution of the State of Texas (1876) Article I § 10. Rights of Accused in Criminal Prosecutions

In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy th ereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases a rising in the army or navy, or in the militia, when in actual service in time of war or public danger

§ 19. Deprivation of Life, Liberty, etc.; Due Course of Law

No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

Article V § 1. Judicia l Power; Courts in Which V ested.

The judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of App eals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law.

The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto. ... § 6. Courts of App eals; Terms of Justic es; Clerk s.

(a) The state shall be divided into courts of appeals districts, with each district having a Chief Justice, two or more other Justices, and such other officials as may be provided by law. The Justices shall have the qualifications prescribed for Justices of the Supreme Court. The Court of Appeals may sit in sections as authorized by law. The concurrence of a majority of the judges sitting in a section is necessary to decide a case. Said Court of Appeals shall have appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. Provided, that the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error. Said courts shall have such other jurisdiction, original and appellate, as may be prescribed by law.

(b) Each of said Courts of A ppeals shall hold its sess ions at a p lace in its dis trict to be designated by the Legislature, and at such time as may be prescribed by law. Said Justices shall be elected by the q ualified voters of their respective districts at a general election, for a term of six years and sha ll receive for their s ervices the sum provided by law.

(c) All constitutional and statutory references to the Courts of Civil Appeals shall be construed to mean the Courts of Appeals.

§ 8. Jurisdiction of District Court.

District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body. District Court judges shall have the pow er to issue writs necessary to enforce their jurisdiction.

The District Court shall have appellate jurisdiction and general supervisory control over

the County Commissioners Court, with such exceptions and under such regulations as may be prescribed by law.

Texas Gover nment Code § 22.2 01. Courts of A ppeals D istricts

(a) The state is divided into 14 courts of app eals districts with a c ourt of ap peals in each dis trict. ...

(m) The Tw elfth Court of Appeals District is composed of the counties of Anderson, Angelina, Cherokee, Gregg, Henderson, Houston, Nacogdoches, Rains, Rus k, Sabine, San Augustine, Shelby, Smith, Trinity, Upshur, Van Zandt, and Wood. ...

§ 22 .213. Twelf th Court of A ppeals

(a) The Court of Ap peals for the Twelfth Court of Appeals District shall be held in the City of Tyler.

(b) The City of Tyler and Smith County shall furnish and equip suitable rooms and a library for the court and the justices without expense to the state.

(c) The court may transact its business in the City of Tyler or at the county seat of any county in the district as the court determines is necessary or convenient, except that all cases originating in Smith County shall be heard and transacted in the City of Tyler.

Texas Code of Criminal Procedure Art. 1.04

No citizen of this State sha ll be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

Art. 1.05. Rights of Accused

In all criminal p rosecutions the ac cused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy th ereof. He shall not be compelled to give evidence against himself. He shall have the right of being heard by himself, or counsel, or both; shall be confronted with the witnesses against him, and shall have compulsory process for obtaining witnesses in his favor. No person shall be held to answer for a felony unless on indictment of a gra nd jury.

Art. 1.15. Jury in Felony

No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in w riting in accordance w ith Articles01.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea w ithout suff icient evidence to support the same. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Suc h waiver and consent must b e approved by the court in writing, and be filed in the file of the papers of the cause.

Art. 4.01. What Courts Have C riminal Jurisdiction

The following courts have jurisdiction in criminal actions: ... 3. The district courts;

Art. 4.03. Courts of Appeals

The Courts of Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts in all criminal cases except those in which the death p enalty has been assessed. This Article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the count y criminal

court, or county court at law, in which the fine imposed by the county court, the county criminal court or county court at law does not exceed one hundred dollars, unless the sole issue is the constitutionality of the statute or ordinance on which the convic tion is based.

Texas Penal Code §6.03. Definitions of Culpable Mental States

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduc t or cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts know ingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasona bly certain to c ause the result.

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of ca re tha t an ordinary person would exercise under all the circumstances as view ed from the actor's sta ndpoint.

(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must b e of such a nature a nd degree that the fa ilure to perceive it constitutes a gross deviation from the standard of care tha t an ordinary person would exercise under all the circ umstances as viewed from the actor's standp oint.

12.04 Classification of Felonies (a) Felonies are classified according to the relative seriousness of the offense into five categories:

(1) capital felonies; (2) felonies of the first degree; (3) felonies of the second degree; (4) felonies of the third degree; and (5) state jail felonies. (b) An offense designated a felony in this code without specific ation as to category is a state jail felony.

§12.3 5. State Jail Felony Punishment

(a) ... an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days.

(b) In addition to confinement, an individual adjudged guilty of a state jail felony may be punished by a fine not to exceed $10,000.

Health & Safety C ode

§481.102 Penalty Group 1 ... (3) the following substances, however produc ed, except those narc otic drugs listed in another group: ... (D) Cocaine, including: (i) its salts, its optical, position, and geometric isomers, and the salts of those isomers; (ii) coca leaves and a salt, compound, derivative, or preparation of coca leaves; (iii) a salt, compound, derivative, or preparation of a salt, compound, or derivative that is chemically equivalent or identical to a substance described by Subpa ragraph (i) or (ii), other than decocainized coca leaves or extractions of coca leaves that do not contain cocaine or ecgonine

§481.115 Possession of Substance in Penalty Group 1 (a) Except as authorized by this chapter, a person commits an offense if the person

knowingly or intentionally possesses a controlled substance listed in Penalty Group 1, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.

(b) An offense under Subsec tion (a) is a state jail felony if the amount of the controlled substance possess ed is, by aggregate weight, including adulterants or dilutants, less than one gram.

Texas Rules of Appellate Procedure

Rule 21 New Trials in Criminal Cases ... 21.8 Court's Ruling.

(a) Time to Rule. --The court must rule on a motion for new trial within 75 days after imposing or suspending sentence in open court.

(b) Ruling. --In ruling on a motion for new trial, the cou rt may make oral or written findings of fa ct. The granting of a motion for new trial must be accomplished by written order. A docket entry does not constitute a written order.

(c) Failure to Rule. --A motion not timely ruled on by written order will be deemed denied when the period prescribed in (a) expires.

Rule 25.2(a)(2)

Of the De fenda nt.–A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. ...

Rule 26.2 Criminal Cases. (a) By the Defen dant. --The notice of appeal must be filed:

(1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or

(2) within 90 days after the sentence is imposed or suspended in open court if the defendant timely f iles a motion for new trial.

Rule 33.1 Preservation; How Shown.

(a) In General. --As a prerequisite to presenting a complaint for appellate review, the record must show that:

(1) the complaint wa s made to the trial court by a timely request, objection, or motion that:

(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient spec ificity to mak e the trial court a ware of the complaint, unless the specific grounds were apparent from the context; and

(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and

(2) the trial court:

(A) ruled on the request, objection, or motion, either expressly or implicitly; or

(B) ref used to rule on the request, objection, or motion, and the complaining party objected to the refusal.

Rule 35.2 Criminal Cases. --The appellate record must be filed in the appellate court: ... (b) if a timely motion for new trial is filed and denied , within 12 0 days a fter the da te the sentence is imposed or suspended in open court; ...

Rule 35 Time to File Record; Responsibility for Filing Record ... 35.2 Criminal Cases. --The ap pellate record must be filed in the appellate court:

(a) if a motion for new trial is not filed, within 60 da ys after the d ate the sentence is imposed or suspended in open court or the order appealed from is signed;

(b) if a timely motion for new trial is filed and denied, with in 120 days af ter the date the sentence is imposed or suspended in open court; or

(c) if a motion for new trial is granted, within 60 days after the order granting the motion is signed. ... 35.3 Responsibility for Filing Record.

(b) Reporter's Record. --The official or deputy reporter is responsible for preparing, certifying, and timely filing the reporter's record if:

(1) a notice of appeal has been filed; (2) the appellant has requested that the reporter's record be prepared; and

(3) the party responsible for paying for the preparation of the reporter's rec ord has paid the reporter's fee, or has made satisfactory arrangements with the reporter to pay the fee, or is entitled to appeal without paying the fee.

Rule 44.2(a)

If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court d etermines beyond a reasonable d oubt that the error did not contribute to the conviction or punishment.