IN THE COURT OF APPEALS 

SIXTH DISTRICT OF TEXAS 

TEXARKANA, TEXAS 

MARTIN LUTHER BURNS 

 Appellant 

Vs 06-14-00177-CR

THE STATE OF TEXAS 

 Appellee 

ON APPEAL FROM 

THE 115TH JUDICIAL DISTRICT COURT 

OF MARION COUNTY, TEXAS 

TRIAL COURT NO. F12698 

BRIEF OF BEHALF OF APPELLANT 

 TIM CONE 

 State Bar #04660350 

 P.O. Box 413 

 Gilmer, Texas 75644 

 (903) 725-6270

 e-mail: timcone6@aol.com 

 ATTORNEY FOR THE APPELLANT 

ACCEPTED

06-14-00177-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

2/12/2015 12:22:30 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 2/12/2015 12:22:30 PM DEBBIE AUTREY Clerk
2

IDENTITY OF PARTIES AND COUNSEL

MARTIN LUTHER BURNS TDCJ31956564

CLEMENTS UNIT TDCJ

9601 SPUR 591

AMARILLO, TEXAS 79107

APPELLANT

KURT M. NOELL

231 S. COLLEGE

TYLER, TEXAS 75702

APPELLANT’S COUNSEL AT TRIAL

ANGELA SMOAK

MARION COUNTY ATTORNEY

102 W. AUSTIN, ROOM 201

JEFFERSON, TEXAS 75657

APELLEE’S COUNSEL AT TRIAL
3

TIM CONE

P.O. BOX 413

GILMER, TEXAS 75644

APPELLANT’S COUNSEL ON APPEAL

ANGELA SMOAK

MARION COUNTY ATTORNEY

102 W. AUSTIN, ROOM 201

JEFFERSON, TEXAS 75657 

APPELLEE’S COUNSEL ON APPEAL
4

TABLE OF CONTENTS

Page No.

List of Parties and Counsel............................................................ 2,3

Table of Contents.......................................................................... 4,5

Index of Authorities........................................................................ 6

Statement of the Case.................................................................... 7

Certificate of Counsel..................................................................... 8

Professional Evaluation.................................................................. 11

Statement of Facts........................................................................... 9

Point of Error Number 1................................................................. 12

 The trial court’s sentence of fifty years confinement

was excessive and disproportionate.

Conclusion and Prayer..................................................................... 13

Certificate of Compliance................................................................ 14

Certificate of Service........................................................................ 14
5

Exhibit 1 – Letter to Client
6

INDEX OF AUTHORITIES

Page No.

U.S. SUPREME COURT CASES:

Anders v. California, 386 U.S. 738, L.Ed. 2d 493, 87 

S.Ct. 1396 (1967)............................................................................. 8

TEXAS CASES:

Cole v. State, 578 SW 2d 127 (Tex.Crim.App. 1979)................. 12

Grammer v. State, 294 SW 3d 182 (Tex.Crim.App.2009)........ 11

LeBlanc v. State, 768 SW 2d 881 (Tex.App.Beaumont 1989).. 12
7

NO. 06-14-00177-CR

IN THE

COURT OF APPEALS

FOR THE

SIXTH JUDICIAL DISTRICT OF TEXAS

MARTIN LUTHER BURNS

APPELLANT

VS.

THE STATE OF TEXAS

APPELLEE

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW, the Appellant by and through his Attorney, namely Tim Cone, 

hereinafter referred to as Appellant, and submits this brief pursuant to the 

provisions of the Texas Rules of Appellate Procedure in Cause no. 06-14-00177-

CRin the 115th District Court of Marion County, Texas, (Trial Court Cause No. 

F12698).

 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 
8

Kidnapping.CR4,28. 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.CR4,28. The probation was

specifically shown by the record to be a non-reporting probation.Cr4,22. 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. 2 RR. 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.

 For clarity, THE STATE OF TEXAS will be referred to as “the State”, and MARTIN 

LUTHER BURNS will be referred to as “Defendant” or “Appellant.”

CERTIFICATE OF COUNSEL

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

appeal to the best of my ability. Anders v. California, 386 U.S. 738, 18 L.Ed. 2d 

493, 87 S.Ct. 1396(1967). I, Tim Cone, counsel of record on appeal for Appellant 

Martin Luther Burns, do hereby state that I have diligently searched the entire 

record in Cause No. F12698 including both the Clerk’s Record and the Court 
9

Reporter’s Record in the 115th Judicial District Court of Marion County, Texas. I 

have researched the law applicable to the facts and issues contained therein, and 

it is my professional opinion that no reversible error is reflected by the record.

I have caused a copy of the brief to be served by certified mail on the

Appellant, accompanied by a letter informing the Appellant of his right to 

examine the entire appellate record for the purpose of filing a pro se brief. A 

copy of this letter has been attached to this brief.

Witness my hand this 12th day of February, 2015.

 /s/ Tim Cone

___________________________

Tim Cone

Court Appointed Attorney for the 

Appellant, Martin Luther Burns

STATEMENT OF THE FACTS

The statement of facts related to the hearing on September 22, 2014, are 

not long but they clearly show that all the facts related to this matter were not 
10

before the trial court. Unfortunately, this direct appeal is limited, by law, to the 

facts shown in this record. On the day of the hearing, the trial court heard a 

motion filed by Appellant’s trial counsel to have the State’s motion dismissed. CR 

36; 2 RR 4,5. The basis of the Appellant’s motion suggested that since the original 

judgment indicated, at one point, that the probation was to be for a three year 

term, the State’s Motion to adjudicate was untimely filed. CR 36. While it is true 

that the original judgment did include language regarding a three year probation 

at one point on the first page, the same document showed the plea bargain was 

for a five year probation and the body of the judgment showed the term to be a 

five year probation. CR 28. Further, at the time of the extension and amendment 

of the probation terms on November 22, 2004, the document clearly indicated 

the original probation was for five years. CR 33. The trial court denied the 

Appellant’s motion and proceeded with the hearing. CR 39; 2 RR 5. The trial court 

indicated the Appellant was subject to a sentence of up to confinement for life 

during the proceeding. 2 RR 10; See CR 24. The trial court explained the State’s 

allegations and the Appellant pled true to both of them. 2 RR 7-9.

There was a discussion, on the record, that indicated that the State would 

recommend a sentence of twenty five years confinement if the Appellant waived 

any appeal. 2 RR 10. The Appellant then tried to explain that he was not guilty of 

the original charge (he had originally pled nolo contendre). CR 4,29; 2 RR 11. The 

trial court took the position that there would be no agreement as to punishment 

and proceeded with the hearing. 2 RR 12. The State originally indicated they 

would call no witnesses but then the probation officer, Tracy Smith, testified. 2 RR 

12, 13. Ms. Smith indicated the Appellant had deceived her in that he wrote her 

several letters and did not indicate he was incarcerated when the letters were 

written. 2 RR 21. Although the record is not a model of clarity, it appears the 

Appellant received a deferred adjudication in Dallas County regarding the injury 

to a child allegation set out in the State’s Motion to Adjudicate. 2 RR 17, 18. The 

Dallas County probation was revoked and the Appellant received a sentence of
11

five years confinement as a result. 2 RR 19. There is no mention of any missed 

reports or other violations and, of course, no such violation was set out in the 

State’s motion. With no further evidence, the trial court adjudicated the 

Appellant guilty and assessed fifty years confinement in prison. 2 RR 23. It may 

not make any difference, but the docket sheet shows the number “40” scratched 

out and the number “50” written in its place. CR 5.

 PROFESSIONAL EVALUATION

Appellant’s attorney has carefully reviewed the entire record in the case at 

bar. Simply stated, there is no valid arguable point of error in the case. The 

Appellant has raised one possible point of error but, based on the record in the 

case, the point is without merit, in the opinion of Appellant’s attorney. This brief 

is especially troubling as there seemed to be a fair amount of misunderstanding 

on the Appellant’s part regarding the admonishments by the trial court. For 

instance, when the trial court inquired about an agreed punishment (which, of 

course, the Court would not be bound by-anyway), the Appellant replied that he 

was not guilty of the crime of Aggravated Kidnapping. There is also no explanation 

why the State filed its motion in August, 2011, but no hearing was held until 

September, 2014. Since there was no objection to the time frame at trial, a point 

of error now would be fruitless. It is also somewhat disturbing that there was no 

separate hearing on punishment after the adjudication but the law does not 

require one be held and the Appellant did plead “true” to both allegations. 

Grammer v. State, 294 S.W.3d 182 (Tex.Crim.App. 2009). It is also troubling that 

although Appellant’s trial counsel indicated he received 231 pages of record from 

presumably the Appellant’s original attorney, there is no showing what, if 

anything, those records contained. 2 RR 6. Apparently, that attorney died before 

the hearing. 2 RR 6. It seems especially troubling that a case originally warranting 

a five year deferred adjudication without a reporting requirement, community 

work service requirement, or a probation fee requirement ended up warranting a 

fifty year prison sentence for an aggravated charge. There simply must be more to 
12

the story but without any more than is in this record, an “Anders” brief seems the 

only viable option.

 POINT OF ERROR NUMBER ONE

The trial court’s sentence of fifty years confinement was excessive and 

disproportionate.

 

ARGUMENT

The reason this is an “Anders” brief is due to the simple fact that the 

Appellant voluntarily pled true to each allegation set out in the State’s motion to 

adjudicate. It is extremely well established that a plea of true alone is sufficient 

for a finding of true in a Motion to revoke or adjudicate. Cole v. State, 578 S.W.2d 

127 (Tex.Crim.App 1979); LeBlanc v. State, 768 S.W.2d 881 (Tex.App. Beaumont 

1989). When a defendant pleads true (voluntarily) and the trial court assesses 

punishment within the range allowed by law (even the highest allowable range), 

there is nothing on which to base an appeal. That is exactly what occurred in the 

case at bar. 

Further, although Appellant does now raise the issue of disproportionate 

sentence, no objection regarding the sentence was made at the trial court level. 

The law is quite clear on this issue that if the issue is not raised at the trial court 

level, it can not be raised on appeal. It just does not seem to make any sense that
13

a case that was so minor as to deserve a five year deferred adjudication (without 

many of the standard conditions) turned into a case that mandated a fifty year 

aggravated sentence. Appellant’s attorney genuinely regrets not having more to 

argue in a case that seems somewhat unjust.

CONCLUSION AND PRAYER

For the reasons stated herein, it is requested that the Court grant our 

Motion to Withdraw.

Respectfully submitted,

/s/Tim Cone

 ____________________________

TIM CONE

Attorney at Law

P.O. Box 413

Gilmer, Texas 75644

e-mail: timcone6@aol.com

ATTORNEY FOR APPELLANT
14

 CERTIFICATE OF COMPLIANCE

I certify the foregoing document complies with Texas Rule of Appellate 

Procedure, Rule 9 regarding length of documents, in that exclusive of caption, 

identities of parties and counsel, statement regarding oral argument, table of 

contents, index of authorities, statement of the case, statement of issues 

presented, statement of jurisdiction, statement of procedural history, signature, 

proof of service, certification, certificate of compliance, and appendix, it consists 

of 1256 words.

 /s/ Tim Cone

 __________________________

 Tim Cone

 Attorney for Appellant 

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing Appellant’s 

Brief has been provided to the Honorable Angela Smoak, Marion County

Attorney, 102 W. Austin,Room 201, Jefferson, Texas 75657, on this the 12th day 

of February, 2015.

 /s/ Tim Cone

_________________________

TIM CONE

Attorney at Law
MARTIN LUTHER BURNS IN THE COURT OF APPEALS

Appellant

Vs. SIXTH DISTRICT OF TEXAS

THE STATE OF TEXAS TEXARKANA, TEXAS

Appellee

MOTION TO WITHDRAW

TO THE HONORABLE JUDGE OF SAID COURT

NOW COMES Tim Cone the movant and court appointed attorney in 

the above entitled appeal, and files this motion to withdraw as attorney for the 

Appellant and in support of same would respectfully show the following:

I.

Attached hereto and labeled Exhibit 1 the Appellant was proved a copy of 

the brief that has been filed in the above referenced matter on his behalf and a 

letter regarding his right to file a brief on his own behalf and the right to review 

the record.

II.

That after an in depth and diligent review of the Clerk’s Record and 

Reporter’s Record, it is my professional opinion that no reversible error is 

reflected.

WHEREFORE, PREMISES CONSIDERED, Attorney for the Appellant 

respectfully requests that he be permitted to withdraw as counsel in the above 

referenced matter.

Respectfully submitted,
_/S/Tim Cone

 ________________________

Tim Cone, Attorney at Law

P.O. Box 413

Gilmer, Texas 75644

e-mail: timcone6@aol.com

ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing Motion to 

Withdraw has been mailed to Martin Luther Burns, #131956564, Clements Unit 

TDCJ, 9601 Spur 591, Amarillo, Texas 79107, and to the Honorable Angela Smoak, 

Marion County Attorney, 102 W. Austin, Room 201, Jefferson, Texas, on the 12th

day of February, 2015.

 /s/ Tim Cone

_________________________

Tim Cone, Attorney at Law
EXHIBIT 1

February 12, 2015

Martin Luther Burns

Clements Unit, TDCJ

9601 Spur 591

Amarillo, TX 79107

Re: Brief in Cause No. F12698

Dear Martin:

Enclosed please find one copy of the brief that I have prepared and filed on 

your behalf in Cause No. F12698. After a diligent search of both the record in 

your case and the applicable law, it is my opinion that no reversible error 

occurred at your trial.

The law accords you the right to review the record of your trial and file any 

brief that you deem necessary on your own behalf. This brief will then be 

submitted to the court of appeals along with the brief that I have filed. I have 

enclosed a copy of the entire record in your case so that you can prepare your 

own brief, if you wish to do so.
Sincerely,

 /s/ Tim Cone

Tim Cone, Attorney at Law

TC/nc

Encl.

cc: Debra Autrey, Clerk

 Court of Appeals

 Sixth Appellate District