NO. 12-14-00245-CR

IN THE COURT OF APPEALS 

TWELFTH COURT OF APPEALS DISTRICT 

TYLER, TEXAS 

______________________________________________________________________________ 

JUSTIN CHRISTIAN 

Appellant 

V.

STATE OF TEXAS 

State 

_______________________________________________________________________________ 

BRIEF OF APPELLANT, 

JUSTIN CHRISTIAN 

_______________________________________________________________________________ 

LAW OFFICE OF ALLEN W. ROSS 

P.O. BOX 528 

JACKSONVILLE, TEXAS 75766 

TELEPHONE: (903) 589.7852 

TELEFAX: (903) 357.4375 

ORAL ARGUMENT NOT REQUESTED: 

____________________________________ 

ALLEN W. ROSS 

State Bar No. 00788324 

ATTORNEY FOR APPELLANT 

ACCEPTED

12-14-00245-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

1/12/2015 1:43:29 PM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 1/12/2015 1:43:29 PM CATHY S. LUSK Clerk
TABLE OF CONTENTS

NAMES OF ALL PARTIES......................................................................................................... i

INDEX OF AUTHORITIES........................................................................................................ii

INDEX OF ABBREVIATIONS ..................................................................................................ii

PRELIMINARY STATEMENT OF THE NATURE OF THE CASE ....................................3

STATEMENT OF POINTS OF ERROR..................................................................................5

STATEMENT OF FACTS...........................................................................................................5

BRIEF OF THE ARGUMENT....................................................................................................6

ARGUMENT AND AUTHORITY...........................................................................................6

PRAYER FOR RELIEF.............................................................................................................. 15

CERTIFICATE OF SERVICE ................................................................................................... 16

CERTIFICATE OF WORD COUNT...................................................................................... 17
Page i

NAMES OF ALL PARTIES

The parties to this action are:

Appellant

JUSTIN CHRISTIAN

TDCJ-ID #01951215

Bradshaw State Jail

PO Box 9000

Henderson, TX 75693

Appellant’s Counsel

ALLEN W. ROSS

Attorney at Law

PO Box 528

Jacksonville, TX 75766

State of Texas

RACHEL PATTON

Cherokee County District Attorney

West 6th Street

Rusk, Texas 75785

The parties' counsel before the Trial Court:

Appellant

STEN LANGSJOEN

Attorney at Law

PO Box 539

Tyler, TX 75710-0539

State of Texas

RACHEL PATTON

Cherokee County District Attorney

West 6th Street

Rusk, Texas 75785
Page ii

INDEX OF AUTHORITIES

Cases

Andres v. California, 386 U.S. 738 (1967) .........................................................................5

Bennett v. State, 282 (Tex.Crim.App.1972).................................................................. 12

Cardona v. State, 493-94 (Tex.Crim.App.1984)......................................................... 12

Cobb v. State, 874 (Tex.Crim.App.1993)....................................................................... 13

Ex Parte Bratchett, 513 S.W. 2d 851, 853 (Tex. Crim. App. 1974)......................... 12

Gainous v. State of Texas, 436 S.W.2d 137 (Tex. Crim. App. 1969) .........................5

Garrett v. State, 174 (Tex.Crim.App. [Panel Op.] 1981).......................................... 13

Jenkins v. State, 437 (Tex.Crim.App.1983)................................................................... 12

Langford v. State, 739 (Tex.Crim.App.1979) ............................................................... 13

Ross v. State, 403 (Tex.Crim.App.1975) ........................................................................ 13

Saxton v. State, 912 n. 3 (Tex.Crim.App.1991)........................................................... 13

Taylor v. State, 179 (Tex.Crim.App. [Panel Op.] 1980)............................................ 13

Wilson v. State, , 934 (Tex.App.--Dallas 1983, no pet.).......................................... 12

Statutes

Tex. Code Crim. Proc., Art 1.141 ........................................................................................6

Tex. Code Crim. Proc., Art 21.21 ........................................................................................6

Tex. Code Crim. Proc., Art 21.22 ........................................................................................6

Tex. Code Crim. Proc., Art. 42.01........................................................................................8

Tex. Penal Code, §12.34 ........................................................................................................7

Tex. Penal Code, §22.01(b)2)(B) .........................................................................................6

INDEX OF ABBREVIATIONS

Clerk’s Record.............................................................................................................................CR

Reporter’s Record.....................................................................................................................RR
Page 1

NO. 12-14-00245-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

______________________________________________________________________________

JUSTIN CHRISTIAN

Appellant

V.

STATE OF TEXAS

State

_______________________________________________________________________________

BRIEF OF APPELLANT,

JUSTIN CHRISTIAN

TO THE HONORABLE JUSTICES OF SAID COURT:

NOW COMES JUSTIN CHRISTIAN, Appellant in the above-styled and 

numbered cause and Appellant in the Trial Court, and, by and through 

appointed Counsel, files this his Brief of Appellant and respectfully reports to 

the Twelfth Court of Appeals that no errors were found to have been 
Page 2

committed by the Trial Court relating to pretrial and evidentiary rulings during 

trial in Cause Number 19062 in the 369th Judicial District Court of Cherokee 

County, Texas, before the Honorable Judge Bascom Bentley, Judge Presiding.

Following a review of the pre-trial proceedings, trial and judgment, no 

error, that was more than harmless error, was found that could be presented 

for review to the appellate court, and therefore, appointed counsel seeks to 

withdraw here-from and has invited response hereto from the Appellant.
Page 3

PRELIMINARY STATEMENT OF THE NATURE OF THE CASE

The following dates are applicable to the case history in this matter:

On February 14, 2014, the State of Texas filed an information alleging 

the offense of Assault Family Violence – Impeding Breath a 3rd degree felony. 

Said offense was assigned the trial cause number 19062 (CR: pg. 5-6).

On February 18, 2014 Appellant, represented by counsel, waived 

indictment, to the felony offense of Assault Family Violence – Impeding 

Breath (CR: pg. 4).

Further, On February 18, 2014, Appellant and his trial counsel entered 

into a plea recommendation where by the Appellant was sentenced to ten 

(10) years in the Texas Department of Criminal Justice with said sentence 

being suspended and probated for a period of seven (7) years (CR: pg. 7-8).

On February 18, 2014, the trial court certified that the Appellant did not 

have a right to an appeal because Appellant did waive his right to appeal 

concerning all issues which occurred at his plea hearing (CR: pg. 9-10).
Page 4

At the conclusion of the plea hearing, the trial court entered judgment 

in conformity with the plea agreement (CR: pg. 11-12), and did further enter 

an Order Imposing Conditions of Community Supervision (CR: pg. 13-17).

On May 29, 2014, the State of Texas (Appellee herein), filed a Motion to 

Revoke Community Supervision alleging that the Appellant had violated his 

community supervision on thirty-one (31) occasions, and the trial court 

issued a capias for the arrest of the Appellant (CR: 24-38).

On June 24, 2014, Appellant was arrested on the capias of the trial court 

(CR: pg. 39).

On June 26, 2014, the Honorable Sten Langsjoen, Attorney at Law, was 

appointed as trial counsel for the Appellant (CR: pg. 40).

On August 8, 2014 a hearing was held in the 369th Judicial District Court 

with the Honorable Bascom Bentley, III., presiding (CR: pg. 45-46; RR. Vol. II). 

At the conclusion of the hearing, the probation of the Appellant was revoked 

by the trial court and the Appellant was sentenced to ten (10) years in the 

Texas Department of Criminal Justice, Institutional Division (CR: pg. 45-46; 

RR. Vol II, pg. 126).
Page 5

On August 26, 2014, Appellant filed his notice of appeal. (CR: pg. 49).

STATEMENT OF POINTS OF ERROR

No points of error were identified following review of the record, and this 

Brief is submitted in compliance with the tenants of Andres v. California, 386 

U.S. 738 (1967) and Gainous v. State of Texas, 436 S.W.2d 137 (Tex. Crim. App. 

1969).

STATEMENT OF FACTS

On August 8, 2014, a hearing was conducted to determine whether or 

not the Appellant had violated the terms and conditions of this community 

supervision. At the conclusion of the hearing, the trial court did find that some 

but not all of the terms of community supervision had, in fact, been violated. 

The trial court revoked the community supervision of the Appellant and 

sentenced him to ten (10) years imprisonment (CR: pg. 45-46; RR. Vol II, pg. 

126).
Page 6

BRIEF OF THE ARGUMENT

Following a review of the entire record, no error, that was more than 

harmless error, was found that could be presented for review to the appellate 

court, and therefore, appointed counsel seeks to withdraw here-from and has 

invited response hereto from the Appellant.

ARGUMENT AND AUTHORITY

Waiver of Grand Jury & Indictment:

Appellant waived indictment on February 18, 2014 (CR: pg 4). Tex. Code 

Crim. Proc., Art 1.141. The waiver appears to be valid on its face and purports 

to bear the signature of the Appellant and his counsel at trial.

The information appears to be based upon a valid complaint and 

carries the signature of the affiant, Lois Garner and is sworn to before a 

Notary Public of the Texas of Texas whose notary commission appears to be 

valid (CR: pg. 5). Tex. Code Crim. Proc., Art 21.22. Further, the information 

appears to be valid upon its face. Tex. Code Crim. Proc., Art 21.21. The 

language of the information is consistent with the offense alleged in the 

Texas Penal Code. Tex. Penal Code, §22.01(b)2)(B).
Page 7

No challenged was made to the form or the substance of the 

information leaving no matter to appeal. 

Original Sentence of the Trial Court

The original sentence of ten (10) years is within the range of 

punishment for a third degree felony. Texas Penal Code, §12.34.

The suspension of sentence for this offense was within the discretion 

of the trial court and not otherwise prohibited by law.

The trial court followed the plea recommendation made by the 

Appellant and the Appellee.

Revocation Pre-Trial Motions

No pretrial motions were filed on behalf of Appellant. The record 

contains no rulings on any motions and the reporter’s record does not reflect 

that any motions were presented to or ruled on by the Trial Court. Nothing, 

therefore, is preserved for review.

Hearing on Motion to Revoke Probation:

On August 8, 2014, a hearing was held concerning the Appellee’s 

Motion to Revoke Community Supervision. At this hearing, Appellant was 
Page 8

represented by counsel who called witnesses in defense of the motion. 

However, at the conclusion, the trial court found that allegations 5-22 of the 

State’s Motion to Revoke Probation were proven and that the Appellant had 

violated his community supervision. The trial court revoked the probation of 

the Appellant.

Judgment:

The review of the judgments in this cause (CR. Pg. 11-12; 45-46), reveals 

that both judgments appear to be facially valid. Tex. Code Crim. Proc., Art. 

42.01.

Motion to Revoke Hearing: 

Because the trial court found allegations 5 through 22 to have been 

proven by the State, this brief will only review the factual issues as presented 

by the State in the hearing on the motion to revoke relevant to those 

allegations.
Page 9

The State of Texas relied upon the following witnesses:

(1) Simone Silvers who testified to the following:

Topic of Testimony RR Vol II, Page Line

She is the probation officer assigned to the 

Appellant (JC) 4 14-17

JC was placed on probation on Feb 18, 2014 4

5

23-25

1

She read the terms and condition of 

probation to JC on Feb 18, 2014 5 7-8

She met with him one time on March 18, 

2014 for a regular office visit 4 18-20

On March 18, 2014 JC was drug tested and 

acknowledged by written instrument that he 

had used various illegal drugs since being 

placed on probation (State’s exhibit 1)

6

7

18

1-18

1-17

8-15

JC admitted to using illegal drugs on March 

12, 2014 7 20-24

JC did not report on April 14, 2014 8 6-11

That although she had telephone contact 

with JC, he did report again (for April and 

May)

9

21

6-18

11-13

During a telephone call in May 2014, JC 

admitted that he was selling drugs out of a 

hotel room.

11 22-25

JC did not complete an Anger Management 

Class 15 1-9
Page 10

The Appellant called himself to testify at the hearing and he testified 

to the following:

Topic of Testimony RR Vol II, Page Line

The information contained in State’s exhibit 1 

concerning his admitted drug use was true. 96 1-3

The allegations concerning his sale of drugs 

From Feb 2014 through May 14 were true

96

97

8-25

1-6

While on probation he was using and selling 

drugs.

105

106

22-25

1-5

Following presentation of evidence and argument of counsel, the court

found the Appellant had violated allegations 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 

17, 18, 19, 20 (RR: Vol. 2, pg. 123, Ln. 10-15). A review of the evidence reflects 

that the State presented sufficient evidence on the allegations found to be true 

to support the Trial Court’s findings. No error was found for review. 

Punishment Phase:

The court offered both the Appellant and Appellee the opportunity to 

put on more evidence concerning punishment, but each declined (RR. Vol. 2, 

pg. 124, Ln. 14-19).
Page 11

The sentence imposed was within the range available to the Trial Court 

and was supported by the evidence. There is no error available to the Court 

for review.

Assistance of Counsel:

Appellant was appointed counsel on May 16, 2013. CR, at p. 8.

At all times during the proceedings, Appellant had the benefit of counsel.

The Motion to Revoke appears valid on its face. No objections were 

lodged as to its contents. No error is preserved for review.

Appellant’s counsel participated in all aspects of the hearing from 

opening and closing statements to bench conferences. The Reporter’s Record 

is replete with instances of appellant’s counsel conducting direct and cross 

examination of witnesses, objections (RR: Vol. 2). Appellant’s counsel argued 

evidentiary motions and moved to direct the verdict with regard to certain 

allegations not proved when the state rested its case (RR., Vol. 2, pg. 38-41). 

Appellant’s trial counsel participated in closing argument. (RR: Vol. 2, pg. 115-

118). 
Page 12

Reviewing the record in its entirety, counsel provided “reasonably 

effective assistance” to Appellant (Ex Parte Bratchett, 513 S.W. 2d 851, 853 (Tex. 

Crim. App. 1974)), and there does not appear to be grounds for review for 

ineffective assistance of counsel.

Standard of Review:

Probation may be revoked upon a finding that an appellant has 

violated the terms of his or her probation. Wilson v. State, 934 (Tex.App.--

Dallas 1983, no pet.).

Appellate review of a probation revocation proceeding is limited to a 

determination of whether the trial court abused its discretion. Bennett v. 

State, 282 (Tex.Crim.App.1972); Wilson, 645 S.W.2d at 934. To determine 

whether the trial court has abused its discretion, the court must look to 

whether the State has met its burden of proof. See Cardona v. State, 493-94 

(Tex.Crim.App.1984).

The State meets its burden when the greater weight of the evidence 

before the court creates a reasonable belief that the probationer violated a 

condition of probation. Jenkins v. State, 437 (Tex.Crim.App.1983), 
Page 13

disapproved on other grounds by Saxton v. State, 912 n. 3 

(Tex.Crim.App.1991). In other words, the State's burden of proof in 

a probation revocation hearing is by a preponderance of the evidence. Cobb 

v. State, 874 (Tex.Crim.App.1993).

 In revocation proceedings, the trial judge is the sole trier of the facts, the 

credibility of the witnesses, and the weight to be given the testimony. Taylor 

v. State, 179 (Tex.Crim.App. [Panel Op.] 1980) Ross v. State, 403 

(Tex.Crim.App.1975). It is the trial court's duty to judge the credibility of the 

witnesses and to determine whether the allegations in the motion to revoke 

are true or not. Langford v. State, 739 (Tex.Crim.App.1979). The Appellate

Court must therefore view the evidence presented at 

the revocation proceeding in a light most favorable to the trial court's ruling.

Garrett v. State, 174 (Tex.Crim.App. [Panel Op.] 1981).

Summary:

Following review and consideration of pre-trial and trial activities 

before the Trial Court, there are no points of reversible error found.
Page 14

Notice to Appellant:

Counsel hereby notifies Appellant that this Brief requests that the 

appeal be found to be frivolous and be dismissed. Along with the Brief, a 

Motion to Withdraw has been filed requesting permission of the appellate 

court for Counsel to withdraw from this case that if granted, would leave 

Appellant representing himself as a pro se litigant. 

Counsel further advises Appellant that Appellant has a right to prepare

and file a pro se Brief, meaning that Appellant can prepare and file with the 

appellate court his own pro se Brief, under his own signature, pointing out to 

the appellate court any errors or problems he sees in the record or any reason 

why Appellant feels the appeal is not frivolous. 

Counsel also advises Appellant of Appellant’s right to review the record 

before filing a pro se Brief.

If Appellant desires to file a pro se Brief with the appellate court, then 

Appellant should immediately file a Motion for Pro Se Access to the Appellate 

Record with the appellate court. In the cover letter used to send Appellant a 

copy of this Brief, a form Motion for Pro Se Access to the Appellate Record is 
Page 15

enclosed for this purpose. The form motion lacks only Appellant’s signature 

and the date, and informs Appellant that, in order to preserve and pursue his 

right to review the appellate record, if Appellant chooses to invoke it, 

Appellant must sign and date the form motion and send it on to the court of 

appeals within ten days of the date of the letter used to send this information 

to Appellant.

Appellant is advised that if he presents a pro Se Brief or Motion for Pro 

Se Access to the Appellate Record to the appellate court [Twelfth Court of 

Appeals, 1517 West Front Street, Suite 354, Tyler, Texas 75702, Attention: 

Cathy Lusk, Clerk], then he must also 1) provide a copy of his Brief to Counsel 

[Sten Langsjoen, P.O. Box 539, Tyler, Texas 75710]; 2) provide a copy of his 

Brief to the State [Rachel Patton, P.O. Box 450, Rusk, Texas 75785]; and 3) 

include in his Brief a written statement (“Certificate of Service”) that he sent 

copies of his Brief and/or Motion to Counsel and to the State.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Counsel for Appellant, JUSTIN 

CHRISTIAN, respectfully requests and prays that this matter be considered by 
Page 16

the Court and that appointed counsel be allowed to withdraw here-from and 

that this appeal be dismissed following the Appellant’s opportunity to respond 

hereto; and further, Counsel respectfully requests and prays for any and all 

other relief, at law or in equity, to which he may show himself justly entitled.

Respectfully submitted,

______________________________________

ALLEN W. ROSS

Attorney for Appellant

P.O. Box 528

Jacksonville, Texas 75766

Telephone: (903) 683.2454

Telefax: (866) 576.5317

Email: allen@arossatty.com

TBA # 00788324

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing was delivered by 

hand-delivery to the District Attorney, Cherokee County, Texas, and to the 

Appellant, on January 12, 2015.

______________________________________

ALLEN W. ROSS
Page 17

CERTIFICATE OF WORD COUNT

I, ALLEN W. ROSS, do hereby certify that the foregoing Appellant’s Brief for 

Justin Christian does comply with the requirements for a brief preparation, towit:

FONT & Size: SEGOE UI, 14 pt

COUNT: 2873 words

______________________________________

ALLEN W. ROSS