No. 12-15-00144-CR

IN THE TWELFTH COURT OF APPEALS

TYLER, TEXAS

GREGORY CARL ROLLING, JR.

Appellant,

v.

THE STATE OF TEXAS

Appellee

On Appeal from the 114th District Court of Smith County, Texas

Trial Cause No. 114-1172-14

ORAL ARGUMENT NOT REQUESTED

Austin Reeve Jackson

Texas Bar No. 24046139

112 East Line, Suite 310

Tyler, TX 75702

Telephone: (903) 595-6070

Facsimile: (866) 387-0152

ACCEPTED

12-15-00144-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

8/13/2015 11:53:30 AM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 8/13/2015 11:53:30 AM CATHY S. LUSK Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

Attorney for Appellant

Appellate Counsel:

Austin Reeve Jackson

112 East Line, Suite 310

Tyler, TX 75702

Trial Counsel:

Norman Ladd

235 S. Broadway Ave.

Suite 200

Tyler, TX 75702

Attorney for the State on Appeal 

Michael J. West

Assistant District Attorney, Smith County

4th Floor, Courthouse

100 North Broadway

Tyler, TX 75702
iii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................. ii

TABLE OF CONTENTS...............................................................................................iii

INDEX OF AUTHORITIES ......................................................................................... iv

STATEMENT OF THE CASE....................................................................................... 2

ISSUE PRESENTED...................................................................................................... 2

STATEMENT OF FACTS ............................................................................................. 2

PROFESSIONAL EVALUATION OF THE RECORD................................................ 3

SUMMARY OF THE ARGUMENT ............................................................................. 3

ARGUMENT.................................................................................................................. 4

I. THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN 

REVOKING APELLANT'S COMMUNITY SUPERVISION .................. 4

 Standard of Review................................................................................................... 4

 A. There was Legally Sufficient Evidence to Support the Revocation ................... 5

 1. The Plea ......................................................................................................... 6

 2. Sufficiency of the Evidence........................................................................... 6

 B. Appellant's Setence was Within the Statutory Range of Punishment................. 7

 C. Appellant Received Effective Assistance of Counsel......................................... 9

CONCLUSION AND PRAYER .................................................................................. 10

CERTIFICATE OF SERVICE..................................................................................... 11

CERTIFICATE OF COUNSEL ................................................................................... 12

CERTIFICATE OF COMPLIANCE............................................................................ 12
iv

INDEX OF AUTHORITIES

UNITED STATES SUPREME COURT:

Anders v. California,

 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ................................... 3, 10, 12

Robinson v. California,

 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) ..................................... 7

Solem v. Helm,

 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) ................................. 8

Strickland v. Washington,

 466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1984) ................................. 9

TEXAS COURT OF CRIMINAL APPEALS:

Aguirre-Mata v. State, 

 125 S.W.3d 473 (Tex.Crim.App. 2003) ........................................................ 6

Cardona v. State, 

 665 S.W.2d 492 (Tex.Crim.App. 1984) ........................................................ 4

Cobb v. State, 

 851 S.W.2d 871 (Tex.Crim.App. 1993) ........................................................ 6

Cole v. State, 

 578 S.W.2d 127 (Tex.Crim.App. 1979) ........................................................ 7

Ex parte Brown,

 158 S.W.3d 449 (Tex.Crim.App. 2005) ........................................................ 8-9

Garcia v. State,

 57 S.W.3d 436 (Tex.Crim.App. 2001) ......................................................... 10

Hernandez v. State,

 988 S.W.2d 70 (Tex.Crim.App. 1999) ......................................................... 9
v

TEXAS COURT OF CRIMINAL APPEALS (CON’T):

Jackson v. State,

 877 S.W.2d 768 (Tex.Crim.App. 1994) ....................................................... 10

Jordan v. State,

 495 S.W.2d 949 (Tex.Crim.App. 1973) ....................................................... 8

Lyles v. State, 

 850 S.W.2d 497 (Tex.Crim.App. 1993) ........................................................ 4

Mendez v. State, 

 138 S.W.3d 334 (Tex.Crim.App. 2004) ........................................................ 6

Miniel v. State,

 831 S.W.2d 310 (Tex.Crim.App. 1992) ....................................................... 9

Moore v. State, 

 605 S.W.2d 924 (Tex.Crim.App. 1980) ........................................................ 7

Moore v. State, 

 694 S.W.2d 528 (Tex.Crim.App. 1985) ........................................................ 9

Moses v. State,

 590 S.W.2d 469 (Tex.Crim.App. 1979) ....................................................... 7 n.1

Rhoades v. State,

 934 S.W.2d 113 (Tex.Crim.App. 1996) ....................................................... 8

Rickles v. State, 

 202 S.W.3d 759 (Tex.Crim.App. 2006) ........................................................ 4, 7

Stafford v. State,

 813 S.W.2d 503 (Tex.Crim.App. 1991) ....................................................... 10

Thompson v. State,

 9 S.W.3d 808 (Tex.Crim.App. 1999) ........................................................... 10
vi

TEXAS COURTS OF APPEAL:

Aguilar v. State,

 279 S.W.3d 350 (Tex.App.—Austin 2007)................................................... 9 n.2

Bolden v. State,

 73 S.W.3d 428 (Tex.App.—Houston [1st Dist.] 2002)................................. 8

Brooks v. State, 

 995 S.W.2d 762 (Tex.App.—San Antonio 1999).......................................... 7

Canseco v. State, 

 199 S.W.3d 437 (Tex.App.—Houston [1st Dist.] 2006)............................... 4

Castaneda v. State,

 135 S.W.3d 719 (Tex.App.—Dallas 2003) .................................................. 8

Duke v. State,

 2 S.W.3d 512 (Tex.App.—San Antonio 1999).............................................. 4

Hays v. State,

 933 S.W.2d 659 (Tex.App.—San Antonio 1996) ......................................... 4, 5, 7

Joseph v. State, 

 3 S.W.3d 627 (Tex.App.—Houston [14th Dist.] 1999)................................. 4

Lewis v. State, 

 195 S.W.3d 205 (Tex.App.—San Antonio 2006).......................................... 4

Mays v. State,

 904 S.W.2d 290 (Tex.App.—Fort Wroth 1995)............................................ 3

Noland v. State,

 264 S.W.3d 144 (Tex.App.—Houston [1st Dist.] 2007) .............................. 8

Roman v. State,

 145 S.W.3d 316 (Tex.App.—Houston [14th Dist.] 2004)............................. 9

Sims v. State, 

 326 S.W.3d 707 (Tex.App.—Texarkana 2010)............................................. 6
vii

TEXAS COURTS OF APPEAL (CON’T):

Trevino v. State,

 174 S.W.3d 925 (Tex.App.—Corpus Christi 2005) ...................................... 8

Uresti v. State,

 98 S.W.3d 321 (Tex.App.—Houston [1st Dist.] 2003)................................. 9 n.2

STATUTES AND OTHER CONSTITUTIONAL PROVISIONS:

TEX. HEALTH & SAFETY CODE § 481.134 ......................................................... 8

TEX. PEN. CODE § 12.34 .................................................................................... 8

TEX. R. APP. P. 33.1 .......................................................................................... 6, 8

U.S. CONST. AMEND. VIII................................................................................. 7

U.S. CONST. AMEND. XIV................................................................................. 7
No. 12-15-00144-CR

IN THE TWELFTH COURT OF APPEALS

TYLER, TEXAS

GREGORY CARL ROLLING, JR.

Appellant,

v.

THE STATE OF TEXAS

Appellee

On Appeal from the 114th District Court of Smith County, Texas

Trial Cause No. 114-1172-14

TO THE HONORABLE JUSTICES OF THE COURT:

COMES NOW, Austin Reeve Jackson, attorney for Gregory Rolling and 

files this brief pursuant to the Texas Rules of Appellate Procedure, and would 

show the Court as follows:
2

STATEMENT OF THE CASE

Gregory Rolling seeks to appeal his conviction and sentence for the offense 

of possession of a controlled substance rendered against him in the 114th District 

Court of Smith County. (I CR 86). After being indicted for this offense in September of last year, Mr. Rolling was, by agreement, placed on a term of six years 

deferred adjudication community supervision. (I CR 4, 52). However, in May of 

this year that probation was revoked and Mr. Rolling was sentenced to serve six 

years’ confinement. (I CR 86). Sentence was pronounced on 26 May and notice 

of appeal then timely filed. (I CR 86, 91). 

ISSUE PRESENTED

THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN 

REVOKING APPELLANT’S COMMUNITY SUPERVISION.

STATEMENT OF FACTS

In September of 2014, Appellant, Mr. Gregory Rolling, was indicted for the

felony offense of possession of a controlled substance in a drug free zone. (I CR 

4). To this charge, he entered a plea of “guilty” and, pursuant to a plea agreement, 

was placed on a term of six years’ deferred adjudication community supervision. 

(I CR 52). 

Unfortunately, in May of this year Mr. Rolling was facing an application to 

proceed to final adjudication in which the State alleged he had committed multiple

violations of his probation. (I CR 71). To the majority of these allegations Mr. 
3

Rolling entered pleas of “true” and the trial court, finding the violations to be true, 

adjudicated guilt and imposed punishment at six years’ confinement. (I CR 86). 

Sentence was pronounced on 26 May and notice of appeal then timely filed. (I CR 

86, 91). 

PROFESSIONAL EVALUATION OF THE RECORD

In accordance with the requirements of Anders v. California, 386 U.S. 738, 

744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), counsel has reviewed the record 

and determined that, in his professional opinion, the record contains no reversible 

error or jurisdictional defects. Under circumstances where there appears to be no 

arguable grounds for reversal on appeal, counsel is required to present a professional evaluation of the record supporting this assertion. See Mays v. State, 904 

S.W.2d 290, 922-23 (Tex.App.—Fort Worth 1995, no pet.). 

SUMMARY OF THE ARGUMENT

Pursuant to the responsibilities and requirements of the governing code of 

professional conduct, a thorough review of the record has been made. Counsel’s 

research has revealed no arguable, non-frivolous grounds that could be advanced in 

support of a claim that there exists reversible error in the trial, judgment, or sentence of Appellant. A review and analysis of any potential issues is herein presented for the Court. 
4

ARGUMENT

Standard of Review

Where a trial court revokes a previously imposed term of community supervision the decision to do so is reviewed under an abuse of discretion standard. 

Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006); Cardona v. State, 

665 S.W.2d 492 (Tex.Crim.App. 1984). A trial court abuses its discretion if it acts 

without reference to guiding principles. Lyles v. State, 850 S.W.2d 497, 502 

(Tex.Crim.App. 1993). This review considers the record in the light most favorable to the trial court’s decision. Duke v. State, 2 S.W.3d 512, 515 (Tex.App.—San 

Antonio 1999, no pet.). 

Proof of even a single violation is sufficient to support a revocation. Canseco v. State, 199 S.W.3d 437, 439 (Tex.App.—Houston [1st Dist.] 2006, pet. 

ref’d). Therefore, in order to prevail an appellant must show that taking the evidence in the light most favorable to the court’s decision there is insufficient evidence to support each and every finding of the court. Lewis v. State, 195 S.W.3d 

205, 209 (Tex.App.—San Antonio 2006, no pet.); Joseph v. State, 3 S.W.3d 627, 

640 (Tex.App.—Houston [14th Dist.] 1999, no pet.). Additionally, a plea of true, 

standing alone, is sufficient to support a trial court’s revocation of community supervision. See Hays v. State, 933 S.W.2d 659, 661 (Tex.App.—San Antonio 1996, 
5

no pet.) (holding that a plea of “true” to any violation can by itself support a revocation). 

THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN REVOKING APPELLANT’S COMMUNITY 

SUPERVISION.

A. There Was Legally Sufficient Evidence to Support the Revocation.

By way of a written motion to proceed to final adjudication, Mr. Rolling was 

alleged to have violated the terms of his community supervision. (I CR 71). The 

application included the following allegations:

Application Paragraph Allegation

I Identity of Defendant

II Failure to Submit to Urinalysis (Abandoned at trial)

III Failure to Pay for a Urinalysis

IV-VI Failure to Pay Various Fees and Costs

VII Failure to Report

VIII Failure to Complete Outpatient Treatment

IX Failure to Attend AA Meetings

(I CR 71-75). To all paragraphs but paragraphs VII and IX, pleas of “true” were 

entered. (I CR 86). Thus, if the pleas of “true” were entered freely, knowingly, 

and voluntarily, the trial court had sufficient evidence to revoke Mr. Rolling’s

community supervision. Hays, 933 S.W.2d at 661.
6

1. The Plea

Before accepting his plea, the trial court advised Mr. Rolling as to the consequences of entering his plea, including the potential range of punishment, and 

also advised him of his right to remain silent and his right to have a hearing on the 

allegations at issue. (IV RR 4-22). After having been so advised, Mr. Rolling persisted in his desire to enter pleas of “true” and gave no indication that he was doing 

so involuntarily. (Id.); see Sims v. State, 326 S.W.3d 707, 713 (Tex.App.—

Texarkana 2010, pet. struck) (citing Mendez v. State, 138 S.W.3d 334, 350 

(Tex.Crim.App. 2004)) (holding that challenges to the voluntariness of a plea must 

be raised before the trial court in order to preserve the error for appeal); see also

TEX. R. APP. PROC. 33.1(a)(1). Finally, could any error be advanced regarding the 

trial court’s admonishments, such error would be non-constitutional error subject 

to a harm analysis and, given the record before the Court, Mr. Rolling could not 

meet that burden in this case. See Aguirre-Mata v. State, 125 S.W.3d 473, 474-76 

(Tex.Crim.App. 2003). 

2. Sufficiency of the Evidence

The State must prove allegations in a revocation setting by a preponderance 

of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). Evidence, therefore, is sufficient if an analysis of its comparative weight tends to support the trial court’s conclusion that at least one condition of probation was violat-
7

ed. See Rickels, 202 S.W.3d at 764 (holding that evidence is sufficient to support a 

revocation where the greater weight of the credible evidence before the court supports a reasonable belief that a condition of probation has been violated). Moreover, a plea of true, standing alone, is sufficient to support a trial court’s revocation 

of community supervision. See, 933 S.W.2d at 661 (holding that a plea of “true” to 

any violation can by itself support a revocation). Thus, where the Court finds that 

a voluntary plea of true was entered, as was the case here, the evidence is legally 

sufficient to support the revocation. (V RR 14); Moore v. State, 605 S.W.2d 924, 

926 (Tex.Crim.App. 1980); Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. 

1979); Brooks v. State, 995 S.W.2d 762, 763 (Tex.App.—San Antonio 1999, no 

pet.).1

B. Appellant’s Sentence Was Within the Statutory Range of Punishment. 

The Eighth Amendment prohibits the imposition of “cruel and unusual punishment.” U.S. CONST. AMEND. VIII. The Eighth Amendment is applicable to the 

states through the Fourteenth Amendment. U.S. CONST. AMEND. XIV; Robinson v. 

California, 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). 

Here, neither Mr. Rolling nor his trial counsel raised the issue of cruel or excessive punishment at the time sentence was imposed and, therefore, this issue has 

 1 The record also contains a written stipulation of evidence, signed by Mr. Rolling, offered and 

accepted by the court at trial, and admitting to the truth of the allegations made against him. (I 

CR 84; IV RR 22). Such a written stipulation is, likewise, sufficient to support the trial court’s 

decision. See Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979) (a plea of true and 

written stipulation is sufficient to support revocation). 
8

likely been waived on appeal. See TEX. R. APP. PROC. 33.1(a)(1)(A); Rhoades v. 

State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Noland v. State, 264 S.W.3d 

144, 151-52 (Tex.App.—Houston [1st Dist.] 2007, pet. ref’d); Castaneda v. State, 

135 S.W.3d 719, 723 (Tex.App.—Dallas 2003, no pet.); but see Solem v. Helm, 

463 U.S. 277, 288, 103 S.Ct. 3001, 3008-09, 77 L.Ed.2d 637 (1983) (noting exception to this general rule if sentence assessed is grossly disproportionate to the 

crime). Additionally, the sentence imposed of six years’ confinement was within 

the statutory punishment range for the offense and is, consequently, virtually presumed not to be constitutionally cruel and unusual. Jordan v. State, 495 S.W.2d 

949, 952 (Tex.Crim.App. 1973); Trevino v. State, 174 S.W.3d 925, 928 

(Tex.App.—Corpus Christi 2005, pet. ref’d); see also TEX. HEALTH & SAFETY 

CODE § 481.134(b) (defining possession of a controlled substance, as alleged, as a 

third-degree felony); TEX. PEN CODE § 12.34 (punishment range for a third degree 

felony). Further, that Mr. Rolling was sentenced below the maximum possible tenyear sentence is also a factor indicating that the sentence was not excessive or cruel. Bolden v. State, 73 S.W.3d 428, 434 (Tex.App.—Houston [1st Dist.] 2002, pet. 

ref’d).

Finally, due process requires that the trial court consider the full range of 

punishment for an offense and weigh both mitigating and incriminating evidence in 

the assessment of sentence. Ex parte Brown, 158 S.W.3d 449, 454 
9

(Tex.Crim.App. 2005). In the absence of a clear showing to the contrary, on appeal the Court will presume that the trial court did not act arbitrarily and considered all of the evidence before it. Roman v. State, 145 S.W.3d 316, 319 

(Tex.App.—Houston [14th Dist.] 2004, pet. ref’d). Given the record before the 

Court, this presumption cannot be overcome on direct appeal.2 

C. Appellant Received Effective Assistance of Counsel.

Effective assistance of counsel is to be evaluated under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344 

(1984); see also, Hernandez v. State, 988 S.W.2d 70 (Tex.Crim.App. 1999). To 

prevail in a claim of ineffective assistance of counsel, a defendant must show (1) 

that her trial counsel’s performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that, but for trial counsel’s alleged 

errors, the result would have been different. Strickland, 466 U.S. at 687-88. On 

appeal, the defendant carries the burden of proving ineffective assistance by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 

1985). Finally, trial counsel’s performance is not to be judged with the benefit of 

hindsight. Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App. 1992).

 2 The trial court ordered payment of $173.00 to DPS. (I CR 86). This was pursuant to the original plea agreement agreed to by Mr. Rolling. (I CR 52, 60); cf. Aguilar v. State, 279 S.W.3d 

350, 353-54 (Tex.App.—Austin 2007) (mem. op.); Uresti v. State, 98 S.W.3d 321, 338 

(Tex.App.—Houston [1st Dist.] 2003, no pet.) (both noting such fees are generally impressible 

when ordered as part of a sentence of confinement). 
10

With this standard in mind, a comprehensive review of the record has been 

made of the proceedings including pretrial matters, Mr. Rolling’s original plea, the 

revocation hearing, and the arguments of counsel. Here, that review fails to shows, 

given the totality of the representation provided by trial counsel, any basis from 

which to argue that ineffective assistance was rendered. See, e.g., Garcia v. State, 

57 S.W.3d 436, 440 (Tex.Crim.App. 2001); Thompson v. State, 9 S.W.3d 808, 812 

(Tex.Crim.App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 

1994).

CONCLUSION AND PRAYER

As counsel was unable to raise any arguable issues for appeal, he is required 

to move for leave to withdraw. See Stafford v. State, 813 S.W.2d 503 

(Tex.Crim.App. 1991). 

WHEREFORE, PREMISES CONSIDERED, counsel prays that the Court, 

after affording Mr. Rolling the opportunity to review the record and file a pro se

brief should he desire to do so, accept this brief and grant the attached Motion to 

Withdraw pursuant to Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 

1396 (1967).
11

Respectfully submitted,

/s/ Austin Reeve Jackson

Texas Bar No. 24046139

112 East Line, Suite 310

Tyler, TX 75702

Telephone: (903) 595-6070

Facsimile: (866) 387-0152

CERTIFICATE OF SERVICE

I certify that a true and correct copy of this brief was delivered to counsel for 

the State by efile on this the 13th day of August 2015.

/s/ Austin Reeve Jackson
12

CERTIFICATE OF COUNSEL

The attorney’s role as an advocate requires that I support my client’s appeal 

to the best of my ability. Anders v. California, 386 U.S. 738. I, Austin Reeve 

Jackson, counsel of record in this appeal, do hereby state that I have diligently 

searched the entire record in this cause. I have researched the law applicable to the 

facts and issues contained therein, and it is my professional opinion that the record 

reflects no reversible error. In conformity with the applicable law pertaining to an 

appeal of this nature, I have set forth any potential grounds of error and have 

briefed them to the extent possible. I have further caused a copy of this brief to be 

served by certified mail on Appellant, accompanied by a letter informing Appellant 

of the right to examine the record for the purpose of filing a pro se brief. 

/s/ Austin Reeve Jackson

CERTIFICATE OF COMPLIANCE

I certify that this document complies with the requirements of Rule 9.4 and 

consists of 2,332 words.

/s/ Austin Reeve Jackson