NO CR IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS DALLAS, TEXAS. ********************** COREY TERRELL GARDNER, Appellant v.

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1 NO CR IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS DALLAS, TEXAS COREY TERRELL GARDNER, Appellant v. THE STATE OF TEXAS, Appellee Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court No. F I BRIEF IN SUPPORT OF MOTION TO WITHDRAW ATTORNEY FOR APPELLANT: GEORGE R. CONKEY 4347 West Northwest Hwy. Suite 120, #132 Dallas, TX / FAX 214/ Bar No

2 LIST OF PARTIES AND COUNSEL APPELLANT: Corey Terrell Gardner, BIN Lew Sterrett Justice Center, North Tower 2E05 c/o Dallas County Sheriff's Department 133 No. Riverfront Blvd., LB 31 Dallas, Texas Represented at original plea by: Jennifer. Castillo, Attorney at Law State Bar No Rocky Top Circle Dallas, TX Represented at motion to proceed by: Davey O. Lamb, Attorney at Law State Bar No P.O. Box Dallas, Texas Represented on appeal by: George R. Conkey, Attorney at Law State Bar No W. Northwest Hwy., Suite 120, #132 Dallas, Texas APPELLEE: State of Texas Represented at original plea by: Laquita Byrd, State Bar No Represented at motion to proceed by: Rachael Jones, State Bar No Christopher David Young, State Bar No Dallas County Assistant District Attorneys Represented on appeal by: Craig Watkins or designated representative Dallas County District Attorney Crowley Courts Building, LB No. Riverfront Blvd. Dallas, Texas i

3 TABLE OF CONTENTS List of Parties and Counsel Table of Contents Index of Authorities i ii ii Style and Salutation 1 Statement of the Case 2 Statement of Facts 3 Statement of Attorney to the Court 6 Prayer 7 Certificate of Service 8 INDEX OF AUTHORITIES Statutes: Texas Code of Criminal Procedure Art Art , 5(b) 5 Art , 21 5 Texas Penal Code Texas Health and Safety Code Sec (a) & (c) 3,7 ii

4 Case Law: Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) 6 Bradley v. State, 608 S.W.2d 652, 655 (Tex. Crim. App. 1980) 5 Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974) 6 Frazier v. State, 600 S.W.2d 271, 276 (Tex. Crim. App. 1980) 5 Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) 6 Jack v. State, 871 S.W.2d 741 (Tx.Crim.App. 1994) 6 Jeffery v. State, 903 S.W.2d 776 (Tex.App.-Dallas 1995, no pet.) 6 Lemmons v. State, 818 S.W.2d 58 (Tx.Crim.App. 1991) 6 Moore v. State, 11 S.W.3d 495, 498 (Tex.App.-Houston [14th Dist.] 2000, no pet.) 5 Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.--Texarkana 2003, pet. ref'd) 5 Strickland v. Washington, 466 U.S. 668, , 694 (1984) 6 iii

5 NO CR IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS DALLAS, TEXAS COREY TERRELL GARDNER, Appellant v. THE STATE OF TEXAS, Appellee Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court No. F I BRIEF IN SUPPORT OF MOTION TO WITHDRAW TO THE HONORABLE COURT OF APPEALS: Comes now Corey Terrell Gardner, Appellant in the above styled and numbered cause, and respectfully submits this Brief in Support of Motion to Withdraw in such cause. NOTE: The record is referred to as: CR clerk's record, one volume. RR1 reporter's record for plea on September 1, RR2 reporter s record for probation hearing on August 20,

6 STATEMENT OF THE CASE Appellant was charged by indictment with possession of a controlled substance. The date of the offense being April 30, CR-02. On September 1, 2009, appellant entered a plea bargain agreement, waived his right to a jury trial, and entered a plea of guilty. CR-08-09, RR1-05, 08. Appellant signed and stipulated to a judicial confession which was admitted into evidence with no objection. CR-10, RR1-08. The court admonished the appellant as to the range of punishment, accepted his plea, followed the plea agreement, and found the evidence sufficient for a finding of guilt, but deferred a finding of guilt and placed appellant on deferred adjudication for three years and a fine of $1,500. RR1-09, CR-11. The appellant was served with conditions of probation. CR On July 29, 2010, the State filed amended motion to proceed to adjudication of guilt alleging eight violations of conditions of probation. CR The State abandoned the first allegation. RR2-04. At hearing August 20, 2010, Appellant entered a plea of not-true to the remaining allegations. RR2-04. The court granted the State s motion, found appellant violated conditions (d), (m), (p) and (r), found him guilty as indicted and sentenced appellant to ten (10) years confinement in the penitentiary. RR , CR-06, 28. Sentence was imposed and the court entered judgment on August 20, CR-28. Appellant timely filed notice of appeal. CR-36. 2

7 STATEMENT OF FACTS Charging Instrument. The indictment alleges that appellant did possess a controlled substance, to-wit: cocaine, in an amount of 1 gram or more but less than 4 grams. CR-02. The indictment contains all the elements required for the offense by the Texas Health and Safety Code. 1 This offense is a thirddegree felony. 2 The range of punishment for a third-degree felony is imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years and an optional fine not to exceed $10, There was no objection made to the indictment and no motion to quash filed. No error is found in the indictment. Sufficiency of Evidence Original Plea. Appellant entered an agreed plea bargain, waived certain statutory rights (CR-08-09) and signed and stipulated to a judicial confession (CR-10). RR This judicial confession, sworn to by appellant and approved by attorney for defendant, assistant district attorney, and the presiding judge, is legally sufficient to sustain a finding of guilt. The court acted within its discretion in finding the evidence sufficient to find appellant guilty. Voluntariness of Original Plea. Before accepting appellant's plea of guilty, the trial court admonished him pursuant to TEX.CODE CRIM. PROC. ANN. art (Vernon 1989), questioning him regarding his understanding of the consequences of his plea. RR1-06. Appellant testified he understood the 1 Health and Safety Code, Sec (a) (Vernon Supp. 1994) 2 Health and Safety Code, Sec (c) (Vernon Supp. 1994) 3 Penal Code, Sec (Vernon 1994) 3

8 charges, waived a jury trial and pled guilty for probation. RR1-09. Thus it cannot be shown that appellant did not understand the consequences of his plea or that it was not voluntary. Sufficiency of Evidence Revocation Hearing. The State, in its amended motion to proceed to adjudication alleged: That the defendant has violated the following conditions: (a), (h), (j) & (m) of said supervision in that: SEE PAGE 2 ATTACHED (list of 8 violations) This violation-offense occurred after SEPTEMBER 1, 2010 and during the term of Supervision. The State abandoned the first allegation of condition (a). Appellant entered a plea of not true to the remaining allegations. RR2-04. The State s amended motion contains the obvious clerical error listing the date of SEPTEMBER 1, 2010 because the hearing was on August 20, 2010, prior to the listed date. Appellant was placed on probation on September 1, 2009, which would have been the correct date. CR-11. The State proceeded with the hearing on the motion in spite of the obvious variance. Dallas County Probation Officer, Josephine Hadnot, testified she worked in Criminal District Court No. 2 since 2002 and was familiar with appellant and his case. RR2-05. Hadnot testified that appellant violated condition (d) by not reporting, condition (h) by not paying court costs and fines, condition (j) by not paying probation fees, and that he failed to complete community service, failed to report to CATS, failed to complete his GED, and failed to participate in Safe Neighborhood training. RR Appellant testified he did not have a job so he was unable to pay court costs and fees, that he would complete community service if kept on probation, and admitted that he did not report from October 2009 to March RR Appellant s counsel moved to deny the State s motion due to the defect in the motion as 4

9 to the September 1, 2010 date being an impossibility (RR2-10) and in closing argument (RR2-16). The court denied appellant s motion and proceeded to the adjudication of guilt. RR2-10, 16. Issue might be made that the court abused its discretion in revoking appellant s community supervision because of the variance of the date and that the State's allegations were not supported by the evidence. However, case law indicates that allegations in a revocation motion need not be made with the same particularity as an indictment or information. See Frazier v. State, 600 S.W.2d 271, 276 (Tex. Crim. App. 1980). The State need only show that a violation of law is alleged and that fair notice is given to the probationer. Bradley v. State, 608 S.W.2d 652, 655 (Tex. Crim. App. 1980); Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.-- Texarkana 2003, pet. ref'd). Appellant s admission of a violation of a condition of his probation, i.e. not reporting, is sufficient for the court to proceed to an adjudication of guilt. The State must prove every element of at least one ground for revocation by a preponderance of the evidence. TEX.CODE CRIM. PROC. ANN. art , 21 (Vernon Supp.2003); Moore v. State, 11 S.W.3d 495, 498 (Tex.App.-Houston [14th Dist.] 2000, no pet.). The trial court holds very broad discretion over community supervision, its revocation, and its modification. See TEX.CODE CRIM. PROC. ANN. art , 21. It cannot be shown by the variance in the date that the trial court abused its discretion by adjudicating the guilt of appellant. No appeal can be taken from the court s determination to proceed with an adjudication of guilt. TEX.CODE CRIM. PROC. ANN. art , Sec. 5(b). Punishment Range. The punishment assessed after guilt was adjudicated was ten years confinement in the 5

10 penitentiary. RR2-19. This sentence is within the range for a third-degree felony. This is within the discretion of the trial court. No objection was made to the punishment assessed which cannot be shown to be cruel or unusual, and no error is found. Effective Assistance of Counsel. There is nothing in the record to indicate that appellant was denied the effective assistance of counsel at his trial. Ineffective assistance of counsel is judged by the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), and Hernandez v. State, 726 S.W.2d 53 (Tex.Cr.App.1986). Appellant does not appear to be misled by trial counsel in the record that he would receive special treatment, leniency, or be continued on probation. Defense counsel s strategy on the open plea was to attempt to have appellant kept on probation or to have the motion denied due to the variance in the date. RR Appellant s trial counsel appears to meet the Strickland standard. There were no pre-trial matters ruled on prior to trial. See Lemmons v. State, 818 S.W.2d 58 (Tx.Cr.App. 1991). There are no jurisdictional defects. There are no non-jurisdictional defects arising at or after entry of the plea. See Jack v. State, 871 S.W.2d 741 (Tx.Cr.App. 1994). STATEMENT OF ATTORNEY TO THE COURT This brief is filed by counsel appointed by the court to represent appellant on appeal in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974). Counsel has also filed with this Court a Motion to Withdraw as Court Appointed Counsel on Appeal with supporting exhibits in accordance with the procedures and standards set out in Jeffery v. State, 903 S.W.2d 776 6

11 (Tex.App.-Dallas 1995, no pet.). After thorough examination of the clerk s record and reporter s record, counsel can find no point of error that can be supported by the record. Counsel has discussed the evidence and the documents in the record, citing references to the record. Counsel notes that the judgment indicates under Statute of Offense : Health and Safety Code. CR-28. This is incorrect and should state: Health and Safety Code, the correct statute for possession of a controlled substance. This court of appeals may order this correction to the judgment. PRAYER WHEREFORE, premises considered, the undersigned counsel requests the Court of Appeals review the record on appeal, modify the judgment, consider the Motion to Withdraw as Court Appointed Counsel with supporting affidavit, review the foregoing Brief in Support of Motion to Withdraw, and grant the Motion to Withdraw. RESPECTFULLY SUBMITTED: GEORGE R. CONKEY Attorney for Appellant 4347 West Northwest Hwy. Suite 120, #132 Dallas, TX / FAX 214/ Bar No

12 CERTIFICATE OF SERVICE I, the undersigned attorney, do hereby certify that a true and correct copy of the above Brief was served on the State of Texas, by mailing same to the District Attorney of Dallas County, Texas, by personal delivery to the District Attorney of Dallas County, Appellate Section office, on, I further certify that I have mailed a copy of the above Brief by first class mail, postage paid, to Appellant, Corey Terrell Gardner, BIN , Lew Sterrett Justice Center, North Tower 2E05, c/o Dallas County Sheriff's Department, 133 No. Riverfront Blvd., LB 31, Dallas, Texas 75207, on the same date. George R. Conkey 8

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