ACCEPTED
12-14-00282-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
3/9/2015 12:20:48 PM
CATHY LUSK
CLERK
12-14-00282- CR
12-14-00283-CR
_______________________________________________________________
RECEIVED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE COURT OF APPEALS 3/9/2015 12:20:48 PM
FOR THE TWELFTH JUDICIAL DISTRICT CATHY S. LUSK
TYLER, TEXAS Clerk
3/9/2015
GENEVA DORIS VASQUEZ
V.
The State of Texas
________________________________________________________________
APPEAL FROM THE 159TH JUDICIAL DISTRICT COURT
OF ANGELINA COUNTY, TEXAS
ANDERS BRIEF OF APPELLANT
GENEVA DORIS VASQUEZ
__________________________________________________________________
Respectfully, Submitted:
/s/ John D. Reeves
JOHN D. REEVES
Attorney at law
1007 Grant Ave.
Lufkin, Texas 75901
Phone : 936-632-1609
Fax: (936) 632-1640
SBOT # 16723000
Email. tessabellus@yahoo.com
ATTORNEY FOR APPELLANT
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Parties:
Appellant in Trial Court:
Geneva Doris Vasquez
Marlin Unit
TDC # 01960391
801 FM 969
Marlin, Texas 76661
Appellee in Trial Court:
The State of Texas
Trial and Appellate Counsel:
APPEAL:
JOHN D. REEVES TRIAL Rudy Velasquez
Attorney at law Attorney at law
1007 Grant Ave. P.O. Box 308
Lufkin, Texas 75901 Milam, Texas 75969
Phone: (936) 632-1609 Phone: (936) 229-0110
Fax: (936) 632-1640 SBOT# 20540350
SBOT # 16723000
Appellee:
April Ayers-Perez TRIAL Katrina Carswell
Angelina Dist. Attorney Angelina Asst. Dist. Atty
P.O. Box 908 P.O. Box 908
Lufkin, Texas 75901 Lufkin, Texas 75901
Phone: 936-632-5090 Phone: 936 632-5090
SBOT# 01921800 SBOT#: 10482700
ii.
TABLE OF CONTENTS
Page:
IDENTITY OF PARTIES AND COUNSEL…….……………………………..ii
TABLE OF CONTENTS……………………………………………………….iii
INDEX OF AUTHORITIES………………………………………………….iv-v
STATEMENT ON ORAL ARGUMENT. ……………………….……………...1
STATEMENT OF THE CASE…….…………………………………………..2-4
STATEMENT OF JURISDICTION.…………………………………………..4-5
ANDERS ISSUES.……………………………………….………………............5
STATEMENT OF FACTS .................................................................................6-7
SUMMARY OF THE ARGUMENT …….…………………………………….8-9
ARGUMENT…………………………………………………………………10-21
CONCLUSION AND PRAYER………………………………………………..22
CERTIFICATE OF COMPLIANCE………………………………………….....22
CERTIFICATE OF SERVICE………………………………. …………………23
iii.
INDEX OF AUTHORITIES
CASES
SUPREME COURT CASES
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493 (1967)………2
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984)...20
Nero v. Blackburn, 597 F.2d 991, (5th Cir. 1979)………………………………..21
TEXAS CASE LAW
Bessey v. State, 239 S.W.3d 809, (Tex.Crim.App.2007)…………………………15
Caddell v. State, 605 S.W.2d 275, (Tex. Crim. App. 1980)…..…………………12
Cardona v. State, 665 S.W. 2d 492, (Tex. Crim. App. 1984)…….………………10
Cochran v. State, 78 S.W.3d 20, (Tex. App.—Tyler 2002, no pet.)……..……….12
Cole v. State, 578 S.W.2d 127, (Tex. Crim. App. [Panel Op.] 1979)……….……13
Dinkins v. State, 894 S.W.2d 330, (Tex. Crim. App. 1995) …………………… 17
Euler v. State, 158 S.W.3d 88, (Tex. Crim. App. 2007)………………………….20
Ex Parte Delaney, 207 S.W 3d 794, (Tex. Crim. App. 2006)…………………….14
Flournoy v. State, 589 S.W.2d 705, (Tex. Crim. App. 1979)……………………..10
Gutierrez v. State, 108 S.W.3d 304, (Tex. Crim. App. 2003)…………………… 11
Hart v. State, 264 S.W.3d 364, (Tex. App.—Eastland 2008, pet. ref'd)………….12
iv.
Hoskins v. State, 425 S.W 2d 825, (Tex Crim. App. 1968)………………………12
Jackson v. State, 877 S.W.2d 768, (Tex. Crim. App. 1994)………………………21
Ladd v. State, 3 S.W.3d 547, (Tex. Crim. App. 1999) ………………………….. 20
McFarland v. State, 928 S.W. 2d 482, (Tex. Crim. App. 1996)…………………..20
Montgomery v. State, 810 S.W.2d 372, (Tex. Crim. App.1990)…………………18
Moore v. State, 605 S.W.2d 924, (Tex. Crim. App. 1980)……………………….13
Moses v. State, 590 S.W.2d 469, (Tex. Crim. App. 1979)……………………….13
Munoz v. State, 840 S.W.2d 69, (Tex. App.-Corpus Christi 1992, pet. ref'd)……15
Rhoades v. State, 934 S.W.2d 113, (Tex. Crim. App. 1996)……………………..19
Rickels v. State, 202 S.W.3d 759, (Tex. Crim. App. 2006) ……………………...10
Rodriguez v. State, 203 S.W.3d 837, (Tex. Crim. App.2006)……………………18
Seagraves v. State, 342 S.W.3d 176, (Tex. App. 2011)…………………………..16
Young v. State, 8 S.W. 3d 656, (Tex. Crim. App. 2000) ………………………...14
RULES AND OTHER AUTHORITIES
U.S. Const. Amend. VIII; U.S. Const. Amend. XIV…………………………….19
Tex. Code Crim. Proc. Ann. Art 42.12 sec. 23 (b) (West supp. 2014)……………11
Tex. Code Crim. Proc. Art. 26.13 (Vernon’s 2012)……………………...8,11,15-16
Tex .R. App. P. 33.1(a) ……………………………………………………………2
v.
_____________________________________________________________
12-14-00282-CR
12-14-00283-CR
_______________________________________________________________
IN THE COURT OF APPEALS
FOR THE TWELFTH JUDICIAL DISTRICT
TYLER, TEXAS
________________________________________________________________
Geneva Doris Vasquez
V.
The State of Texas
________________________________________________________________
APPEAL FROM THE 159th JUDICIAL DISTRICT COURT
OF ANGELINA COUNTY, TEXAS
ANDERS BRIEF OF APPELLANT
GENEVA DORIS VASQUEZ
TO THE HONORABLE COURT OF APPEALS:
STATEMENT ON ORAL ARGUMENT
APPELLANT WAIVES ORAL ARGUMENT
ANDERS BRIEF OF APPELLANT
TO THE HONORABLE COURT OF APPEALS
COMES NOW, Geneva Doris Vasquez , Appellant, pursuant to Texas Rules of
Appellate Procedure, Rule 33.1 by and through his attorney of record, John D.
Reeves, who respectfully submits this Anders brief for Appellant and would show
as follows: (Anders v. California, 386 U.S. 738, (1967)
STATEMENT OF THE CASE
Appellant pled guilty to an information for the offense of Burglary of a
Habitation on July 18, 2014 in cause 2014-0421, 12-14-00283-CR. (CR Vol. 1 p.
15-18; RR Vol. 2 p. 5-6) The Clerks’ record includes a waiver of rights to
indictment by a Grand Jury. (CR Vol. 1 p. 13-14) The Clerks record includes a
written plea admonishments-waivers- stipulations signed on July 18th, 2014.
(Cause 2014-0421 CR Vol. 1 p. 15-18) In addition, the appellant pled true to
allegations she violated her probation for the offense of Credit Card Abuse on July
18, 2014 in cause 2012-0039. (2012-0039 CR Vol. 1p. 58-59), (Cause 2014-0421)
Sup. CR Vol. 1 p. 6, RR Vol. 2 p.5), The trial court ordered a pre-sentence
investigation and a sentencing hearing was conducted on August 29th, 2014. (RR
Vol. 3) After the sentencing hearing on August 29th, 2014 the appellant was
sentenced in 2012-0039 to two years (2) in the State Jail for offense of Credit Card
Abuse. (Cause 2012-0039, CR Vol. 1 p. 56-57, RR Vol. 3 p. 11-12) (In cause
2.
2014-0421 the appellant was sentenced to fifteen (15) years in the ID-TDCJ for the
offense of burglary of a habitation. The sentences were ordered to run
concurrently. (Cause 2014-0421 CR Vol. 1p. 19-20) RR Vol. 3 p. 11-12) A
corrective judgment revoking community supervision was signed and filed with
the District Clerk on September 3, 2014. (Cause 2012-0039 CR Vol. 1 p. 58-59)
Notice of appeal was filed by trial counsel on September 26th, 2014 in both cases.
(Cause 2014-0421 CR Vol. 1 p. 21)
The trial court signed a trial court certification on July 18, 2004 denying appellant
a right of appeal in cause 2014-0421 prior to the sentencing on August 29, 2014.
(Cause 2014-0421, CR Vol. 1 p. 9) In cause 2012-0039 at the time of the plea on
July 18, 2014 the trial court also signed a trial court certification denying an
appeal. (Cause 2012-0039, CR Vol. 1 p. 50) Thereafter, a sentencing hearing was
conducted on August 29th, 2014. (RR Vol. 3.) The trial court signed a trial court
certification denying appellant’s right to appeal on September 29th, 2014. (Cause
2014-0421, CR Vol. 1 p. 25)(Denying appellant’s right to appeal in cause 2014-
0421 and 2012-0039) By order of this court filed with the Angelina District Clerk
December 4, 2014, the trial court conducted a hearing and made findings of fact
regarding appellant’s right of appeal in each case. (Cause 2012-0039, 2014-0421)
(Sup. CR p. 12-13) Appeal was denied except for sentencing in cause 2012-0039
3.
and 2014-0421. (Sup. CR Vol. 1 p. 12-13) At that time the trial court also
appointed counsel for appellant’s appeal in each case. (Supp. CR p. 14)
Subsequently, in response to this Courts Per Curiam Order on Abatement and
Remand, the trial court signed a recertification of appellant’s right of appeal in
each case. The recertification in each case was filed February 20, 2015. In cause
2012-0039 the court certified the appeal giving the appellant the right of appeal of
the revocation proceeding. (Supp. CR. Vol. 2) The trial court recertified appeal in
cause 2014-0421 with unlimited right of appeal. (Sup. CR Vol. 2) In Cause 2012-
0039 the CR does not include a specific waiver of appeal signed by the appellant
after sentencing on August 29th, 2014. Inappropriate trial court certifications were
entered on September 29, 2014 as set out previously. Counsel was appointed to
pursue appellant’s appeal on December 4, 2014 and file a docketing statement with
the 12th Court of Appeals by December 14th. 2014. (Sup. CR Vol. 1 p. 14) The
order for designation of records was signed by the trial court on October 24th, 2014
for the Clerk’s Record and the Reporter’s Record.
STATEMENT OF JURISDICTION
The trial court recertified appeal which was filed on March 2, 2015 by
supplemental record. A supplemental Trial Court Certification was filed with the
4.
appropriate signatures of the trial court, appellant and appeal Counsel after the
filing of the CR in each cause and after the Clerks filing Supplemental Clerk’s
Record Vol. 1. It should be reflected in Supp. CR Vol. 2
ANDERS ISSUES CONSIDERED
1. Did the trial court abuse its discretion in revoking the appellants
probation after finding appellant violated the terms of her community
supervision in cause 2012-0039, 12-14-00282-CR?
2. Did the appellant waive her right of appeal on guilt/innocence in Cause
2014-0214, 12-14-00283-CR?
3. Is the appellant’s plea of guilty in cause 2014-0421, 12-14-00283- CR,
free and voluntary and were proper admonishments given by the trial
court?
4. Is there error in the admission of State’s exhibit one and was there any
error regarding trial objections?
5. Is the sentence of the trial court in 12-14-00282-CR and 12-14-00283-CR
disproportionate in violation of the Eighth Amendment and Fourteenth
Amendments to the United States Constitution?
6. Did trial counsel provide ineffective assistance?
5.
STATEMENT OF FACTS
The appellant appeared before the trial court in 2012-0039 and 2014-0421
on July 18th, 2014. The record reflects the court addressed 2012-0039 first. (RR
Vol. 2 p. 4) The appellant waived a reading of the State’s motion to revoke. (RR
Vol. 2 p. 5) The appellant entered a plea of true to the allegations she violated
probation. (RR Vol. 2 p. 5) After admonition of the range of punishment in 2014-
0421 the appellant entered a plea of guilty to the offense of burglary of a
habitation. (RR Vol. 2 p. 5-6) The appellant stated her plea of true to the
revocation and plea of guilty to the burglary were free and voluntary. ( RR Vol. 2
p. 6) The appellant admitted she waived her right to a revocation hearing and a
right to a jury trial in the respective matters. ( RR Vol. 2 p. 7) It was announced
there was no plea bargain in either matter. ( RR Vol. 2 p. 8) The trial court ordered
a pre-sentence investigation. (RR Vol. 2 p. 8-9) States exhibit one was offered
without objection. (RR Vol. 4) This exhibit is actually Written Plea Admonishment
in 2012-0039 when appellant pled to the credit card abuse in March 2012, wherein
the appellant agreed to two years for five years probation and a five hundred dollar
fine for the offense of credit card abuse. ( RR Vol. 4 p)
On August 29, 2014 the trial court called both cases. After sorting out the
cases the appellant pled true to the allegations in the Motion to Revoke in the credit
6.
card abuse case and guilty in the burglary of a habitation case and the court
proceeded with the sentencing. ( RR Vol. 3 p. 2-3) The defense objected to the
PSI report and desired to offer evidence. The appellant was called and admitted
she pled true to the allegations she violated her probation and guilty to burglary of
a habitation. ( RR Vol. 3 p. 6-7) She explained that the probation officer who
interviewed her regarding the PSI left some information out of the report. ( RR
Vol. 3 p. 7) The information concerning the appellant was that she is suicidal and
tried to commit suicide “many times in the past.” ( RR Vol. 3 p. 8) She explains
she was raped while in State Jail by three women and the prison officials did
nothing about it. She stated she has attempted suicide approximately ten times. (
RR Vol. 3 p. 8) The appellant was upset because she advised the probation officer
who interviewed her for the PSI report and this information was not included in it.
( RR Vol. 3 p. 8-9) The court made inquiry regarding the appellant’s criminal
history and acknowledged her attempts to commit suicide while in custody on prior
occasions. ( RR Vol. 3 p. 9-10) The trial court sentenced the appellant in 2012-
0039 to two years (2) in the State Jail Division for credit card abuse and to fifteen
(15) years in 2014-0421 in the TDCJ-ID for the offense of Burglary of a
Habitation. ( RR Vol. 3 p. 11-12; CR Vol. 1 p. 19-20)
7.
SUMMARY OF THE ARGUMENT
Six issues are presented as a basis for appeal which is stated in Anders Issues
considered. The first issue is whether the trial court abused its discretion in
revoking appellant’s probation. Counsel believes the trial court did not abuse its
discretion as the appellant pled true to all the allegations contained in the State’s
motion to revoke probation. Further, the appellant admitted at the time of the plea
and at sentencing that the allegations were true. The second issue is whether the
appellant’s right to appeal was waived in regard to her plea of true and guilty.
Appeal attorney believes her right to appeal her plea was not waived in reviewing
the plea waiver and trial court certification signed after sentencing. Appellant
addresses this point in order to address the voluntariness of appellant’s plea The
third issue is whether the appellant’s plea of guilty was entered freely and
voluntarily and whether the trial court properly admonished the appellant? Appeal
counsel finds there is not a properly executed waver and stipulations concerning
her plea of guilty to the entire allegations contained in the State’s Indictment.
Also, appellate counsel finds the trial court improperly admonished the appellant in
regard to her right of appeal. However, counsel does not find this requirement as
necessary in regard to Tex. Code Crim. Proc. Art 26.13. The required admonition
regarding the appellant’s range of punishment in the burglary of a habitation case
8.
was given. The admonition although not required in a revocation proceeding was
given. Counsel finds that appellant’s plea of guilty was free and voluntary and that
appellant was competent. Fourthly, appeal counsel considers the admissibility of
the State’s one exhibit and any error regarding trial objections. Counsel finds the
one exhibit was admitted without objection. There was an objection to the pre
sentence investigation however, trial counsel produced the evidence for the trial
court to consider regarding the appellant’s suicidal tendencies. The one objection
not ruled upon in favor of the defense was not pursued by the defense as a result of
the appellant testifying . Fifthly, counsel considers whether the sentence rendered
by the trial court was disproportionate in violation of the U.S. Constitution. There
was no objection made in the trial court as to the sentence rendered. The trial court
gave a reasoned explanation regarding the sentencing. The sentence in this case is
within the parameters of the Texas Penal Code regarding punishment for a State
Jail felony in regard to 12-14-00282-CR and 12-14-00283-CR. for a second degree
felony. Lastly, appeal counsel considers whether trial counsel was ineffective. The
record reveals trial counsel presented evidence through the appellant at the time of
the pleas in each case and at sentencing. Counsel finds there is no basis on the
record to support ineffective assistance of counsel.
9.
ARGUMENT
1. Did the trial court abuse its discretion in revoking the appellants
probation after finding appellant violated the terms of her community
supervision in cause 2012-0039, 12-14-00282-CR?
In the instant matter the appellant entered a plea of true to the allegations
contained in the State’s amended motion to revoke community supervision. (RR
Vol. 2p. 2, 6) (Cause 2012-0039, CR Vol. 1 p. 47-49) The appellant also signed a
written waiver and consent to stipulation of testimony and stipulation. (CR Vol. 1
p. 51-53) In community supervision revocation cases, the State has the burden to
establish by a preponderance of the evidence that the terms and conditions of
community supervision have been violated. Cardona v. State, 665 S.W.2d 492, 493
(Tex. Crim. App. 1984). The preponderance of the evidence standard is met when
the greater weight of the credible evidence before the trial court supports a
reasonable belief that a condition of community supervision has been violated.
Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim. App. 2006). The trial court
determines if the State has met its burden of proof. If no procedural issue is raised,
the decision whether to revoke community supervision is within the discretion of
the trial court. Flournoy v. State, 589 S.W.2d 705, 708 (Tex. Crim. App. 1979). At
the time of the plea the trial court inquired if the plea of true was free and
10.
voluntary and if there was a waiver of the reading of the allegations. (RR Vol. 2. 6,
7) The trial court admonished the appellant that she had a right to a hearing in
regard to the revocation.( RR Vol. 2 p. 7) However, the trial court wrongly advised
appellant she had waived a right to an appeal ( RR Vol. 2p. 6-7) As this court is
well aware the appellant has the right to appeal the conviction and sentence. (Tex.
Code Crim. Proc. Ann. Art 42.12 sec. 23 (b) (West supp. 2014.)
To consider if the trial courts error regarding an appellant’s right of appeal is
sufficient to rise to establish an abuse of discretion in revoking appellant’s
probation, counsel considers if the error is sufficient. The appellant was
admonished concerning the range of punishment. (RR Vol. 2 p. 4) In Gutierrez v.
State, the court of criminal appeals held that a trial court is only required to
admonish a defendant of the punishment range before he or she pleads guilty to a
felony offense and not before he or she pleads true in a revocation proceeding. 108
S.W.3d 304, 309-10 (Tex. Crim. App. 2003)
("[I]n the context of revocation proceedings, the
legislature . . . has not required the court to inquire as to the
existence of a plea agreement or admonish the defendant
pursuant to 26.13."); see also Aguirre-Mata v. State, 125
S.W.3d 473, 475 (Tex. Crim. App. 2003) (stating that Boykin
v. Alabama, 395 U.S. 238, 89Page 3S. Ct. 1709 (1969),
"clearly did not hold that due process requires the equivalent
of the Article 26.13(a) admonishments or an admonishment on
the range of punishment" to a defendant pleading guilty); cf.
Tex. Code Crim. Proc. Ann. art. 26.13(a) (1) (West 2009 &
11.
Supp. 2014) (stating that before a trial court accepts a guilty
plea or plea of nolo contendere, it shall admonish the
defendant of the range of punishment attached to the offense).
In this matter the trial court advised the appellant of the range of punishment
even though not required. (RR Vol. 2 p. 4) As such the error of the trial court
regarding the right of appeal does not rise to a circumstance as may be found in
regard to a plea of guilty. Appellant finds no basis to address the trial courts error
as it relates to the finding of the plea of true and the sentence imposed by the trial
court. As this court has held, an appeal from an order revoking community
supervision is generally limited to the propriety of the revocation. Hoskins v.
State, 425 S.W 2d 825,828 (Tex Crim. App. 1968)
Appellant now considers the record as it relates to the trial court’s order
revoking community supervision and whether the trial court abused its discretion.
Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). In the instant
matter the trial court finds several violations of community supervision conditions
as a result of the appellant’s plea of true. (RR Vol. 3 p. 4) The proof of any single
allegation is sufficient. See Hart v. State, 264 S.W.3d 364, 367 (Tex. App.—
Eastland 2008, pet. ref'd); Cochran v. State, 78 S.W.3d 20, 28 (Tex. App.—Tyler
2002, no pet.). In other words, if there is some evidence to support the finding of
12.
even a single violation, the revocation order must be upheld. Cochran, 78 S.W.3d
at 28 (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). A plea
of "true, " standing alone, is sufficient to support a revocation of community
supervision. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979); Cole v.
State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979) In this matter
appellant’s plea of true is sufficient to find appellant violated the terms of
community supervision as alleged and the trial court did not abuse its discretion.
2.
Did the appellant waive her right of appeal on guilt/innocence in Cause
2014-0214, 12-14-00283-CR?
In this matter the plea was without agreement. (RR Vol. 2 p.8) In order to
consider the second possible issue of the voluntariness of appellant’s entry of her
plea, appeal counsel first considers this issue of waiver of appeal. The appellant
signed a waiver of appeal at the time of her plea in regard to guilt/innocence;
however this was prior to the sentence. The waiver was signed July 18, 2014 and
the sentence was August 29th, 2014. ( Cause 2014-0421 , CR Vol. 1 p. 9,15-18 ;
RR Vol. 2 p.7) The waiver of appeal in the written plea admonishments-waivers-
and stipulations is ineffective. (Cause 2014-0421, CR Vol. 1 p. 15-18) Contained
in this stipulation is “Waiver of right to appeal: If consideration was given by the
13.
State for my plea of guilt or no contest, I knowingly, intelligently, and voluntarily
waive my right to appeal”. (Cause 2014-0421, CR Vol. 1 p. 16) The
admonishments include the waiver of time provided to appeal. CR Vol. 1 p. 16)
additionally, the document contains a paragraph on Permission to Appeal.
Where you plead guilty or nolo contendre (no contest)
with a plea bargain agreement and the punishment assessed
does not exceed the agreement between you and the
prosecutor, the Court must give permission before you can
appeal on any matter in the case except for those matters
raised by written motion filed before trial. Where you plead
guilty or nolo contendre without a plea bargain agreement, all
nonjurisdictional defects, including claimed deprivations of
federal due process, are waived and no appeal may be made.
(CR Vol. 1 p. 15)
In light of Delaney, the waiver as contained in the document is ineffective
as it is prior to the appellant knowing what the punishment would be. ( Ex Parte
Delaney, 207 S.W 3d 794, 797 ( Tex. Crim. App. 2006) In the instant matter as
reflected upon by the court, and pursuant to Young v. State, appellant did not
waive a right to any appeal and thus counsel will consider the voluntariness of the
appellant’s plea. Young v. State, 8 S.W. 3d 656, 666-667 (Tex. Crim. App. 2000)
3.
Is appellant’s plea of guilty free and voluntary and accepted with
proper admonishment to the appellant?
14.
In the instant matter, the appellant was admonished regarding the range of
punishment. (RR Vol. 2 p. 5-6) The appellant stated the plea was entered without
force, threat or abuse and was voluntary. (RR Vol. 2 p. 6) The appellant states she
is pleading guilty because she is. (RR Vol. 2 p. 6-7) The trial court confirmed that
appellant had waived the right to jury trial, appeal, and cross examination of
witnesses among others. (RR Vol. 2 p. 7) The admonition regarding the waiver of
appeal was erroneous. The only exhibit offered was without objection. (RR Vol. 2
p. 9, RR Vol. 4) The exhibit was a copy of the stipulations entered at the time of
the appellant’s original plea in regard to Cause 2012-0039) A pre-sentence
investigation was ordered. (RR Vol. 2 p. 9)
In admonishing the defendant, there must be a determination if the trial court
substantially complied with Tex. Code. Crim. Proc. Ann. Art. 26.13.
A] court's failure to properly admonish a defendant
cannot be forfeited and may be raised for the first time on
appeal unless it is expressly waived.” Bessey v. State, 239
S.W.3d 809, 812 (Tex.Crim.App.2007).
The trial court may make the admonitions either orally or in writing. Tex.
Code Crim. Proc. Ann. art. 26.13(d); Munoz v. State, 840 S.W.2d 69, 75 (Tex.
App.-Corpus Christi 1992, pet. ref'd). The appellant was admonished orally as set
above. (RR Vol. 2 p. 4-8) In addition, as previously set out there was a written plea
15.
admonishments –waivers- stipulations which contained error regarding appellant’s
right of appeal. What is substantial compliance? In Seagraves, the Texarkana
court considered what is substantial compliance regarding required admonitions.
Seagraves v. State , 342 S.W.3d 176 (Tex. App. 2011) The court stated there must
be a affirmative showing that the defendant was not aware of the consequences of
the plea and was “misled or harmed by the admonishment of the court. Seagraves,
supra, at, [342 S.W.3d 183]. Tex. Code Crim. Proc. Ann. art. 26.13(c).
If the trial court substantially complies with Article 26.13,9
the defendant has the burden, under Article 26.13(c), to show
he or she pled guilty without understanding the consequences
of that plea and, consequently, suffered harm. Martinez, 981
S.W.2d at 197; Redd v. State, No. 06–08–00001–CR, 2008
WL 4613805, 2008 Tex. App. LEXIS 7969 (Tex. App.-
Texarkana Oct. 20, 2008, no pet.) (mem. op., not designated
for publication). admonishment is deemed substantial
compliance” with the statutory requirement.
A review of the cases regarding admonishments is generally when the trial
court does not properly admonish the defendant as to the correct range of
punishment or the consequences regarding enhancement paragraphs as shown in
Seagraves, supra. The appellate review is whether there is harmless error. It is to
determine if the error in regard to appeallant’s plea rendered appellant’s plea
involuntary or caused harm to the appellant.
Martinez v. State, 981 S.W. 2d 195, 196 (Tex. Crim. App.
16.
1998), and Gonzales v. State, 746 S.W.2d 902 (Tex. App.-
Corpus Christi 1988, no pet.) (citing Weekley v. State, 594
S.W.2d 96 (Tex. Crim. App. [Panel Op.] 1980) The Court of
Criminal Appeals has consistently applied this standard. High
v. State, 964 S.W.2d at 638; Cain v. State, 947 S.W.2d 262,
264 (Tex.Crim.App.1997).
Appeal counsel cannot direct this Honorable court to the record which
provides appellant did not understand the consequence of her plea and was misled
and harmed as a result of the trial courts error regarding appellant’s appeal rights.
Tex. Code. Crim. Procedure art. 26.13 does not address an admonishment
regarding appeal. In addition, appellant testified in punishment that she violated
her probation and committed the offense of burglary of a habitation. (RR Vol. 3 p.
7) The appellant admitted when first questioned that she pled guilty to the
burglary of habitation without force, threat, abuse and voluntarily. ( (RR Vol. 2 p.
6)
4.
Is there error in the admission of State’s exhibit one and was there any
error regarding trial objections?
State’s exhibit one was admitted without objection. (RR Vol. 2 p. 8-9)
Generally, it is held that a timely objection must be made in order to preserve an
17.
error in the admission of evidence. Dinkins v. State, 894 S.W.2d 330, 355 (Tex.
Crim. App. 1995) After review of the record only one objection was made by trial
counsel in the sentencing. (RR Vol. 4 p. 5) As was stated by counsel is the
objection that appellant had a history of attempting suicide. (RR Vol. 4 p. 7-9) The
one objection that was not ruled upon by the trial court as defense counsel did not
pursue it -as he made a record of the testimony he wanted included in the pre
sentence report. There being no basis for arguing an erroneous admission of either
State’s exhibit one or the lone objection to the pre-sentence report, appellate
counsel does not reach an issue of whether the substantial rights of the appellant
were disregarded. In viewing the trial court’s decision to admit or exclude evidence
and whether there was an abuse of discretion it is generally been determined that
the trial court is in the best position to decide questions of admissibility, and will
be upheld if a trial court's decision to admit or exclude evidence is "within the zone
of reasonable disagreement” when reviewed under an abuse of discretion standard.
Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App.2006); Montgomery v.
State, 810 S.W.2d 372, 390-91 (Tex. Crim. App.1990). Appeal counsel believes
there was no preserved error regarding the exhibit or the objection by defense
counsel regarding the PSI. As such, appeal counsel finds no harm in relation to the
record to subvert the substantial right of the appellant to require a reversal of the
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trial courts sentence.
5.
Was the trial court’s sentence of two years State Jail in cause 12-14-00283-
CR and fifteen (15) years in cause 12-14-00283-CR a disproportionate
sentence in violation of the Eighth Amendment and Fourteenth Amendments
to the United States Constitution? (U.S. Const. Amend. VIII; U.S. Const.
Amend. XIV.)
The sentence of two years State Jail in 12-14-00282-CR is within the penalty
range of a State Jail felony in the State of Texas. The sentence of fifteen years in
the ID-TDCJ in 12-14-00283-CR is within the penalty range of a second degree
felony in the State of Texas. In this matter there was no objection to the trial court
concerning the sentence in either case. There was no allegation or complaint that
the sentence is grossly disproportionate, constituting cruel and unusual
punishment, and as such the error if any was not preserved for review. See, Tex
.R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 119-20 (Tex. Crim. App.
1996). The trial court explained his rationale for the sentenced assessed. (RR Vol.
3 p. 8-12) Here, after the trial court announced its sentence at the punishment
hearing and appellant made no objection to the trial court about the punishment
assessed and did not assert her claim under the Eighth Amendment and the Texas
Constitution in the trial court. (RR Vol. 3 p. 11-12) The trial court explained that it
19.
gave due consideration to the criminal history and history of suicide attempts. (RR
p. 11-12) Appeal counsel believes appellant has waived her cruel and unusual
punishment complaint. See Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App.
1999) There is no evidence that the appellant‘s sentencing process did not provide
fundamental fairness. U.S. Const., Amend XIV. Euler v. State, 158 S.W. 3d 88, 91
(Tex. Crim. App. 2007) Fundamental fairness requires that an accused receive a
fair trial. In the instant matter, the appellant’s testified to her history of suicide
attempts while in the Texas Department of Criminal Justice and her complaint
regarding the department not investigating properly. (RR Vol. 3 p. 8-10)
6.
Was trial counsel’s representation ineffective?
The standard promulgated in Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 674 (1984) requires a two step analysis. First it requires a
demonstration that trial counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms. To satisfy this requirement
appellant must identify the acts or omissions of counsel alleged to be ineffective
assistance and affirmatively prove that they fell below the professional norm of
reasonableness. McFarland v. State, 928 S.W. 2d 482, 500 (Tex. Crim. App. 1996)
This Honorable court then will judge a claim of ineffectiveness based on the
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totality of the representation. Strickland, supra, 466 U.S. at 695-96, 104 S. Ct. at
2069. The presumption is that trial counsel was effective. See, Jackson v. State,
877 S.W.2d 768,771 (Tex. Crim. App. 1994). Trial counsel did present evidence
through the appellant’s testimony. The appellant was the only witness. As stated by
trial counsel the appellant wanted the trial court to become aware of her history of
suicide. Trial counsel was in error regarding the right of appellant to appeal each
case but did file a notice of appeal. Appeal counsel finds no basis to determine trial
counsel’s strategy or to ascertain of what value it might have been to call or not to
call other witnesses. The appellant’s testimony as set out previously supports the
facts of the indictment the appellant pled guilty to. The appellant’s testimony
supports her plea of true to the allegations she violated probation. Appeal counsel
does not find support from the record to argue “but for” trial counsels decisions in
the sentencing hearing there would have been a different result. In reviewing the
totality of trial counsel’s representation and presentation of evidence as considered
above- the record does not present evidence of trial counsel falling below the
objective standard of reasonableness and professional norms. Strickland, supra.
Further, appellant counsel does not find a single egregious error or omission that
will constitute ineffective assistance. Nero v. Blackburn, 597 F.2d 991, 994 (5th
Cir. 1979) As such, appellate counsel offers this Anders Brief.
21.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant’s counsel respectfully
requests, as relief, that he be allowed to withdraw as this appeal is frivolous and so
advise Appellant so that she may pursue a pro se brief if he so desires, or
alternatively to appoint other counsel for Appellant in the prosecution of this
appeal.
Respectfully considered,
/s/John D. Reeves
_______________________
JOHN D. REEVES
Attorney at law
1007 Grant St.
Lufkin, Texas 75901
Phone: (936) 632-1609
Fax: (936) 632-1640
SBOT # 16723000
Email: tessabellus@yahoo.com
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
I, John D. Reeves Counsel for appellant hereby certify that this brief exclusive of
the rule provisions that do not provide counting contains 4,137 words.
/s/John D. Reeves
_______________________
John D. Reeves
22.
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Appellant’s
Brief on 9th day of March, 2015 been forwarded to the State’s Counsel, April
Ayers, Perez, Assistant District Attorney of Angelina County , by E filing.
/s/John D. Reeves
_______________________
John D. Reeves
Attorney for Appellant
Geneva Doris Vasquez
23.