Richard Harlan Chapman v. State

NO. 07-07-0419-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

AUGUST 27, 2008

______________________________

RICHARD HARLAN CHAPMAN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

NO. 4078; HONORABLE STEVE EMMERT, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

          Pursuant to a guilty plea, Appellant, Richard Harlan Chapman, was convicted by the trial court of possession of marihuana in an amount of 2,000 pounds or less but more than 50 pounds. Punishment was assessed at sixteen years confinement and a $10,000 fine. Appellant presents two points of error contending the trial court abused its discretion in sentencing him to sixteen years confinement (1) in that his trial counsel’s request for a continuance was denied and (2) in effectively denying trial counsel the opportunity to make a closing statement before sentencing. We affirm.

Background

          Appellant was convicted in 1974 for possession of a controlled substance with intent to deliver and served time in a federal prison. According to his testimony, in 2000, he began using methamphetamine because he was depressed. He eventually became indebted to dealers and was physically threatened into trafficking drugs for them. In July 2003, he was stopped in Wheeler County, Texas, and charged with possession of marihuana. Two months later, he was stopped in Columbia County, Georgia, for trafficking drugs and was convicted and sentenced to fifteen years confinement. In 2007, Appellant was released on parole in Georgia, subject to the underlying charge which was still pending in Wheeler County.

Guilty Plea Hearing

          At a hearing conducted on September 13, 2007, both sides announced ready and Appellant entered a guilty plea to the possession charge. Defense counsel later requested leave to withdraw his statement of “ready” and made an oral motion for continuance to make an offer of proof. Counsel explained that he had contacted Appellant’s parole officer to testify about Appellant’s progress for the nine months he had been on parole. The parole officer reluctantly provided an affidavit (which is included in the presentence investigation report), but refused to update the affidavit with other favorable information requested by defense counsel.

          The State argued that defense counsel was aware of the September 13, 2007 hearing date and that he had received the parole officer’s affidavit as early as August 17, 2007, allowing ample opportunity to have the parole officer available for the hearing. Additionally, the State argued the affidavit was sufficient and that the case had already been continued several times.

          The trial court denied the oral motion for continuance. The court also commented that Appellant, who chose to testify, could testify to any additional facts not included in the parole officer’s affidavit.

          Appellant, the only witness at the hearing, testified that during his nine months on parole, he made scheduled visits with his parole officer and was current on his fines. He successfully completed a drug abuse awareness program and was working steadily at day work. During the nine months on parole, he had been randomly tested for drugs five times, with only one testing positive.

          At the conclusion of Appellant’s testimony, the following colloquy occurred:

[Defense counsel]: We have nothing further, Your Honor. We would argue – well, there is a presentence investigation, Your Honor.

The Court: Okay. Ms. Lee, do you have a PSI? Okay. Would you bring it forward.

[Defense Counsel]: Your Honor, if I may interrupt the Court’s reading, the copy the Court is looking at, it almost looks like there’s a bunch of redaction in it, but in fact, it’s an overliner.

          The Court then pronounced Appellant’s sentence and asked Appellant if he understood the pronouncement, to which he responded, “[y]es, Your Honor.” The State requested that restitution be added to the judgment and the proceedings were closed.

Discussion

I. Point of Error One – Oral Motion for Continuance.

          Appellant maintains the trial court abused its discretion in denying his motion for continuance. We disagree. A motion for continuance that is not written nor sworn as required by articles 29.03 and 29.08 of the Texas Code of Criminal Procedure does not preserve the complaint for review. See Dewberry v. State, 4. S.W.3d 735, 755 (Tex.Crim.App. 1999). Moreover, as the State points out, the reason for the continuance (to supplement the affidavit provided by Appellant’s parole officer) was satisfied by Appellant’s unchallenged testimony about his progress while on parole. Point of error one is overruled.

II. Point of Error Two – Denial of an Opportunity to Make a Closing Statement.

          Appellant contends the trial court abused its discretion in effectively denying defense counsel an opportunity to make a closing statement before he was sentenced. We disagree.

          A trial court abuses its discretion if it denies defense counsel the right to make a closing argument. Ruedas v. State, 586 S.W.2d 520, 524 (Tex.Crim.App. 1979). However, it is necessary to preserve that right by notifying the trial court of the desire to present closing argument, the trial court must refuse that opportunity, and a timely objection to the court’s ruling must be presented. Tex. R. App. P. 33.1(a); Foster v. State, 80 S.W.3d 639, 640-41 (Tex.App.–Houston [1st Dist.] 2002, no pet.).

          During Appellant’s plea hearing, defense counsel stated, “[w]e have nothing further, Your Honor. We would argue – well, there is a presentence investigation [report] . . . .” Counsel did not make a request to present any further argument nor did he object to the trial court proceeding to sentencing.

          Appellant relies on Dang v. State, 154 S.W.3d 616 (Tex.Crim.App. 2005), in support of his argument that defense counsel was denied a statutory right to present closing argument. See also Tex. Code Crim. Proc. Ann. art. 36.07 and 36.08 (Vernon 2007). Dang involved a complicated capital murder jury trial where the trial court limited closing arguments to twenty minutes per side despite defense counsel’s request for an additional three minutes, to which an objection was lodged. 154 S.W.3d at 617. In considering certain factors, the Court determined that the court of appeals should have concluded the trial court abused its discretion in denying the additional three minutes for closing argument. Id. at 622.

          Appellant’s plea hearing was brief and uncomplicated. Defense counsel did not request a further opportunity to argue after bringing the PSI to the trial court’s attention. No objections were presented either before or after pronouncement of sentence. We conclude Dang is inapposite. Point of error two is overruled.

Conclusion

          Consequently, the trial court’s judgment is affirmed.

                                                                           Patrick A. Pirtle

                                                                                 Justice

Do not publish.

>

NOS. 07-10-00122-CR, 07-10-00123-CR, 07-10-00171-CR and 07-10-00172-CR

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL A

 

MAY 4, 2011

 

 

GREGORIO RODRIGUEZ, APPELLANT

 

v.

 

THE STATE OF TEXAS, APPELLEE

 

 

FROM THE COUNTY COURT AT LAW NO. 2

 

AND THE 137^TH DISTRICT COURT OF LUBBOCK COUNTY;

 

NOS. 2009-455,818, 2009-458,190, 2009-425,597, 2009-422,825;

 

HONORABLE CECIL PURYEAR, JUDGE

 

 

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

 

 

MEMORANDUM OPINION

 

In each of these four appeals, appellant Gregorio Rodriguez appeals his conviction on an open plea of guilty and resulting sentence.

Offenses committed on December 21, 2008:

In appellate case number 07-10-0172-CR, appellant was convicted of evading arrest or detention with a vehicle and sentenced to 18 months in a state jail facility;[1]

In appellate case number 07-10-0122-CR, appellant was convicted of possession of marijuana of less than two ounces in a drug free zone and sentenced to 12 months in the Lubbock County Jail.[2]

Offenses committed on October 25, 2009:

In appellate case number 07-10-0171-CR, appellant was convicted of possession of a controlled substance listed in penalty group 1, cocaine of less than one gram and sentenced to 24 months in a state jail facility;[3]

In appellate case number 07-10-0123-CR, appellant was convicted of driving while intoxicated and sentenced to 6 months in the Lubbock County Jail.[4]

In each case, appellant’s court-appointed appellate attorney has filed a motion to withdraw from representation supported by an Anders brief.[5]  Agreeing with counsel’s conclusion that the record fails to show any arguably meritorious issue capable of supporting an appeal, we grant the motion to withdraw in each case and affirm the trial court’s judgments.

Punishment hearing testimony showed that on December 21, 2008, a police officer saw a vehicle driving erratically.  The officer attempted a traffic stop.  As the officer followed the vehicle, he saw a person leap from the vehicle while it remained in motion.  The vehicle then jumped a curb, knocked down a fence, and collided with a parked vehicle in a driveway.  The location of the accident was within 1,000 feet of a public school.  When the officer entered the passenger compartment to turn off the ignition and place the transmission in park, he saw an open container of alcohol.  An officer later also found a baggy containing what he believed was marijuana.  Police eventually were able to identify appellant as the person operating the vehicle.

Punishment evidence also showed that on October 25, 2009, a motor vehicle driven by appellant struck a police vehicle in the presence of officers.  Appellant attempted to flee on foot, but was apprehended and arrested for evading arrest or detention.  An officer detected the odor of alcohol on appellant’s breath and the odor of marijuana “on his person.”  While searching appellant for weapons, the officer discovered a baggie containing what he believed was marijuana.  In the officer’s opinion, appellant appeared intoxicated.  He had difficulty standing and walking and was unresponsive to questions.  The officer transported appellant to a holding facility.  As appellant left the police vehicle, a clear plastic baggie containing a white powder fell from his pant leg.  According to a field test, the substance was cocaine.  This was later confirmed by the Texas Department of Public Safety Crime Laboratory.

Appellant was charged by indictment or information with the four offenses, and entered guilty pleas to the charged offenses without a plea bargain agreement.  A punishment hearing in each case was held the same day as the plea hearing.  The trial court admonished appellant of the applicable ranges of punishment and determined he was a United States citizen.  It also explained and determined appellant wished to waive the right to trial by jury and the right against self-incrimination.  Two police officers gave the testimony we have summarized of the circumstances of the December 2008 and October 2009 offenses.  Appellant presented two witnesses.  A deacon testified of appellant’s church involvement over the preceding five months.  The second witness, a relative of appellant, testified of his industry in the workplace, abstinence from alcohol, and family commitment.  Following the close of evidence and arguments, the court sentenced appellant in each case.  Appellant obtained trial court certification of the right of appeal and timely appealed.

Thereafter, appellant’s appointed appellate counsel filed a motion to withdraw supported by an Anders brief.  In the brief, he certifies to his diligent review of the record and his opinion under the controlling authorities and facts of the cases no reversible error or arguably legitimate ground for appeal exists.  The brief discusses the procedural history of the case and the events at the plea hearing.  Counsel discusses the applicable law and sets forth the reasons he believes no arguably meritorious issues for appeal exist.  A letter to appellant from counsel, attached to counsel’s motion to withdraw, indicates that a copy of the Anders brief and the motion to withdraw were served on appellant, and counsel advised appellant of his right to review the record and file a pro se response.  Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.--Waco 1994, pet. refused).  By letter, this court also notified appellant of his opportunity to submit a response to the Anders brief and motion to withdraw filed by his counsel.  Appellant did not file a response.

In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record in each matter.  Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.--San Antonio 1997, no pet.).  If we determine the appeal has arguable merit, we will remand it to the trial court for appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).

In the Anders brief, counsel concludes the appeal is frivolous.  We have made an independent review of the entire record to determine whether arguable grounds supporting an appeal exist.  See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).  We find no arguable grounds supporting a claim of reversible error, and agree with counsel that the appeal is frivolous.

Accordingly, we grant counsel’s motion to withdraw^[6] in each case and affirm the judgments of the trial court.

 

                                                                                                James T. Campbell

                                                                                                            Justice

Do not publish. 

 

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[1]  A person commits the offense of evading arrest or detention if he intentionally flees a person he knows is a peace officer lawfully attempting to arrest or detain him.  Tex. Penal Code Ann. § 38.04(a) (West Supp. 2010).  The offense is a state jail felony if the actor uses a vehicle while in flight and the actor has not previously been convicted under Penal Code § 38.04.  Tex. Penal Code Ann. § 38.04(b)(1)(B) (West Supp. 2010).

[2]  Possession of two ounces or less of marijuana is a Class B misdemeanor, Tex. Health & Safety Code Ann. § 481.121(b)(1) (West 2010), but increases to a Class A misdemeanor if committed within 1,000 feet of the real property of a school.  Tex. Health & Safety Code Ann. § 481.134(f)(1) (West 2010).  A Class A misdemeanor is punishable by confinement in jail for up to one year and/or a fine not to exceed $4,000.  Tex. Penal Code Ann. § 12.21 (West 2003).

[3] Possession of less than one gram of cocaine is a state jail felony.  Tex. Health and Safety Code Ann. § 481.102(3)(D) (West 2010) (cocaine is a Penalty Group 1 controlled substance) and Tex. Health and Safety Code Ann. § 481.115(a),(b) (West 2010) (possession of less than one gram of cocaine is a state jail felony).  A state jail felony is punishable by confinement in a state jail facility for any term of not more than two years or less than 180 days and a fine not to exceed $ 10,000.  Tex. Penal Code Ann. § 12.35 (West 2010).

[4]  In the absence of facts not charged here, driving while intoxicated is a Class B misdemeanor.  A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place.  Tex. Penal Code Ann. § 49.04(a) (West 2003). 

[5]  Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed. 2d 493 (1967) and In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008) (orig. proceeding).

[6] Counsel shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant’s right to file a pro se petition for discretionary review. Tex. R. App. P. 48.4.