Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 3/25/2015 10:52:07 AM DEBBIE AUTREY Clerk *1 ACCEPTED 06-14-00177-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 3/25/2015 10:52:07 AM DEBBIE AUTREY CLERK NO. 06-14-00177-CR IN THE COURT OF APPEALS FOR THE SIXTH JUDICIAL DISTRICT OF TEXAS AT TEXARKANA ___________________________________________________________________
MARTIN LUTHER BURNS, Appellant VS.
THE STATE OF TEXAS, Appellee ___________________________________________________________________
Trial Court Cause No. F12698 IN THE 115 TH JUDICIAL DISTRICT COURT MARION COUNTY, TEXAS ___________________________________________________________________
STATE’S APPELLATE BRIEF ___________________________________________________________________
Angela Smoak Marion County Attorney 102 West Austin, Room 201 Jefferson, Texas 75657 (903) 665-2611 (903) 665-3348 (fax) State Bar No. 00797466 *2 TABLE OF CONTENTS TABLE OF CONTENTS ………………………………………………………………………… i
INDEX OF AUTHORITIES ……………………………………………………………………. ii
STATEMENT OF THE CASE ………………………………………………………………… 1
REPLY TO APPELLANT’S POINT OF ERROR NO. 1 ………………………………. 2
THE TRIAL COURT’S SENTENCE OF FIFTY YEARS CONFINEMENT
WAS NOT EXCESSIVE NOR DISPROPORTIONATE.
REPLY TO APPELLANT’S POINT OF ERROR NO. 2 ……………………………… 3
APPELLANT’S GRANT OF DEFERRED PROBATION FOR THE
OFFENSE OF AGGRAVATED KIDNAPPING DOES NOT
CONSTITUTE AN UNAUTHORIZED GRANT OF PROBATION.
PRAYER ……………………………………………………………………………………………. 4
CERTIFICATE OF SERVICE …………………………………………………………………. 5
CERTIFICATE OF COMPLIANCE ………………………………………………………….
i *3 INDEX OF AUTHORITIES Cases:
Cole v. State, 578 SW2d 127 (Tex. Crim. App. 1979) …………………………… 2
Hargrave v. State, 2004 WL 1277946 *1
(not designated for publication) ……………………………………………….. 3
Mullins v. State, 208 SW3d 469, 470
(Tex. App. – Texarkana 2006, no pet.) ……………………………………
Statutes:
Texas Code of Criminal Procedure, Article 42.12
ii *4 STATEMENT OF THE CASE On September 30, 2003, the Appellant was placed on a five year deferred
adjudication community supervision (probation) for the offense of Aggravated
Kidnapping. [CR 4, 28] The judgment, at one point on the first page indicated the
probation was for three years but the body of the judgment showed the probation
was for five years, as does the docket sheet. [CR 4, 28] The probation was
specifically shown by the record to be a non-reporting probation. [CR 4, 22] The
requirement of community work service and probation fees were also waived. [CR
22] The State filed a Motion to Adjudicate the probation on August 10, 2004. [CR
31] The probation was amended on November 22, 2004, to extend the probation
for five more years from the original term and DID include a reporting obligation.
[CR 33] On August 29, 2011, the State filed a Motion to Adjudicate setting out
violations of the probation alleging the Appellant committed a new offense (Injury
to a Child), and used cocaine. [CR 34] The hearing on this motion was not held
until September 22, 2014 due to Appellant’s incarceration. After a hearing was
held regarding a motion filed by Appellant’s trial counsel seeking a dismissal of the
State’s motion, which was denied, the Appellant pled true to the State’s allegations
and the trial court adjudicated the Appellant guilty of the underlying charge and
sentenced him to fifty (50) years confinement in prison. [2RR 23, 2RR 4, 5 and CR
36]
REPLY TO APPELLANT’S POINT OF ERROR NUMBER ONE (from Appellant’s attorney’s brief) APPELLANT’S ASSERTION “The trial court’s sentence of fifty years confinement was excessive
and disproportionate.”
STATE’S REPLY THE TRIAL COURT’S SENTENCE OF FIFTY YEARS CONFINEMENT WAS
NOT EXCESSIVE NOR DISPROPORTIONATE.
SUMMARY OF THE ARGUMENT Appellant knowingly and voluntarily pled true to the allegations in the State’s
Motion to Adjudicate. Subsequently, the Court found those allegations to be true
and sentenced Appellant to fifty years.
A plea of true made to allegations that conditions of probation were violated
is sufficient on its own to support revocation of said probation. Cole v. State, 578
SW2d 127 (Tex. Crim. App. 1979) The trial court is then authorized to assess
punishment within the range allowed by law.
Appellant now objects that the sentence was excessive and
disproportionate. However no objection was made at trial nor in a motion
for new trial. Therefore, Appellant has failed to preserve any error. Hargrave
v. State, 2004 WL 1277946 *1 (not designated for publication) Further,
Appellant fails to present any reason why his sentence is grossly
disproportionate to the crime. The punishment itself falls in the middle of
the range of punishment for a first degree felony. Finally, even if Appellant
had met this threshold requirement, he has failed to provide any instance of
sentences for similar crimes in this jurisdiction as well as others. Mullins v.
State, 208 SW3d 469, 470 (Tex. App. – Texarkana 2006, no pet.)
REPLY TO APPELLANT’S POINT OF ERROR NUMBER TWO (from Appellant’s pro se brief) APPELLANT’S ASSERTION “The charge of Aggravated Kidnapping is unauthorized to
receive a probation sentence of non-reporting, non-supervised,
no community service or any recommended classes or drug
testing for an accused 1 degree felony.”
STATE’S REPLY APPELLANT’S GRANT OF DEFERRED PROBATION FOR THE
OFFENSE OF AGGRAVATED KIDNAPPING DOES NOT
CONSTITUTE AN UNAUTHORIZED GRANT OF PROBATION.
SUMMARY OF THE ARGUMENT Article 42.12, Sec. 5 of the Texas Code of Criminal Procedure
specifically authorizes the Court to grant deferred adjudication for felonies
not entitled to a grant of probation under Article 42.12, sec. 3(g). As such,
Appellant’s deferred adjudication does not constitute unauthorized grant of
probation as argued by Appellant.
PRAYER
Wherefore, upon the issues presented, the State prays that the judgment
of the trial court be in all things affirmed.
Respectfully submitted, s/Angela Smoak Angela Smoak Marion County Attorney 102 W. Austin, Room 201 Jefferson, Texas 75657 (903) 665-2611 (903) 665-3348 (fax) State Bar # 00797466 angela.smoak@co.marion.tx.us *8 CERTIFICATE OF SERVICE I hereby certify that a copy of State’s Appellate Brief was mailed to Appellant
and to Tim Cone, Attorney, pursuant to the Rules on this the 25th day of March,
2015.
/s/ Angela Smoak Angela Smoak CERTIFICATE OF COMPLIANCE I certify that this Brief filed electronically on this the 25th day of March, 2015
complies with T.R.A.P. Sec. 9.4(i)(2)(B) and contains 934 words.
/s/ Angela Smoak Angela Smoak