ACCEPTED
12-14-00290-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
4/1/2015 4:10:01 PM
CATHY LUSK
CLERK
ORAL ARGUMENT NOT REQUESTED
NO. 12-14-00290-CR FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE COURT OF APPEALS 4/1/2015 4:10:01 PM
12TH JUDICIAL DISTRICT CATHY S. LUSK
Clerk
TYLER, TEXAS
FREDRICK PERKINS,
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE
ON APPEAL IN CAUSE NUMBER 114-0932-14
FROM THE 114th DISTRICT COURT
OF SMITH COUNTY, TEXAS
HONORABLE CHRISTI KENNEDY, JUDGE PRESIDING
APPELLANT’S BRIEF
JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
APPELLANT:
Fredrick Perkins
APPELLANT’S TRIAL COUNSEL:
M. Brent Ratekin1
422 S. Spring Street
Tyler, Texas 75702
903-595-1516
APPELLANT’S APPELLATE COUNSEL
James Huggler
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
APPELLEE
The State of Texas
APPELLEE’S TRIAL COUNSEL
Jacob Putman
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720
APPELLEE’S APPELLATE COUNSEL
Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720
1
At all times relevant to this case, Mr. Ratekin was a defense attorney, and the address and phone
number is included which was accurate at the time of this case. On or about March 2, 2015, Mr.
Ratekin was employed by the Smith County District Attorney’s Office.
ii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
PROFESSIONAL EVALUATION OF THE RECORD. . . . . . . . . . . . . . . 4
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
iii
TABLE OF AUTHORITIES
STATUTES
TEX. CODE CRIM. PROC. ANN. Art. 4.05 (West 2013).. . . . . . . . . . . . . . . . 5
Tex. Health A& Safety Code Ann. §481.115 (a) and (b)(West 2013). . 2, 3
TEX. PENAL CODE ANN. § 12.425 (West 2013).. . . . . . . . . . . . . . . . . 3, 5, 6
CASES
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
18 L. Ed. 2d 493 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Bray v. State, 179 S.W.3d 725 (Tex. App.– Fort Worth 2005, no pet.). . 6
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Mays v. State, 904 S.W.2d 920 (Tex. App. – Fort Worth 1995, no pet.). 4
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).. . . . . . . . . . . 8
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).. . . . . . . . . . . 7
RULES
TEX. R. APP. PROC. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
TEX. R. APP. PROC. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4
iv
NO. 12-14-00290-CR
FREDRICK PERKINS, § IN THE COURT OF APPEALS
APPELLANT §
§
VS. § 12TH JUDICIAL DISTRICT
§
THE STATE OF TEXAS, §
APPELLEE § TYLER, TEXAS
APPELLANT’S BRIEF
TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:
Comes now Fredrick Perkins, (“Appellant”), by and through his
attorney of record, James Huggler, and pursuant to the provisions of TEX.
R. APP. PROC. 38, et seq., respectfully submits this brief on appeal.
STATEMENT OF THE CASE
Appellant was charged by indictment with the state jail felony
offense of possession of a controlled substance in Smith County occurring
1
on June 6, 2014. CR 8;2 TEX. HEALTH & SAFETY CODE ANN. §481.115(a)
and (b) (West 2013). The punishment range was enhanced to a second
degree felony and Mr. Perkins entered a plea of guilty without an
agreement. Tex. Penal Code Ann. §12.425(b) (west 2013); CR 47 and 49;
II RR 43. Following evidence and argument of counsel, the court imposed
a fifteen year sentence with no fine. III RR 11; CR 69-70. Timely notice
of appeal was filed. CR 74. This brief is timely filed on or before April 3,
2015.
ISSUES PRESENTED
None
STATEMENT OF THE FACTS
Appellant was charged by indictment with the state jail felony
2
References to the Clerk’s Record are designated “CR” with an arabic numeral following “CR”
specifying the correct page in the record.
3
References to the Reporter’s Record are made “RR” with a roman numeral preceding “RR”
indicating the volume and an arabic numeral following specifying the correct page.
2
offense of possession of a controlled substance, cocaine in an amount of
less than one gram. CR 8; TEX. HEALTH & SAFETY CODE ANN. §481.115(b)
(West 2013). The punishment range was enhanced to a second degree
punishment range by the inclusion of two sequential previous felony
convictions in the indictment. CR 8; TEX. PENAL CODE ANN. §12.425(b)
(West 2013). Mr. Perkins entered a plea of guilty to the indictment, and
pleas of true to the two enhancement paragraphs without an agreement
as to punishment. CR 47, 52-53; II RR 4, 11-13, 15-16.
Following evidence and argument of counsel, the trial court found
Mr. Perkins guilty of the offense of possession of a controlled substance,
found the two enhancement paragraphs to be true, and sentenced him to
fifteen years confinement . CR 69-70; III RR 11. Further discussion of the
facts in the case is included below.
SUMMARY OF ARGUMENT
Counsel has reviewed the record and has concluded that, in his
professional opinion, the record contains no reversible error or
3
jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.
1396, 1400, 18 L. Ed. 2d 493 (1967). Thus, counsel must move for leave
to withdraw from the case.
ARGUMENT
There is no argument to present to this Court; however, Counsel has
included this section to strictly comply with Texas Rule of Appellate
Procedure 38. Counsel has reviewed the record and has concluded that,
in his professional opinion, the record contains no reversible error or
jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.
1396, 1400, 18 L. Ed. 2d 493 (1967). Therefore, counsel is including the
following explanatory section.
PROFESSIONAL EVALUATION OF THE RECORD
When counsel contends that there are 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
4
S.W.2d 920, 922-23 (Tex. App. – Fort Worth 1995, no pet.). Counsel has
conducted a review of the record, and has concluded that it presents no
arguable error.
Counsel first reviewed the record for jurisdictional defects, and has
found none. As charged in the indictment, the offense was a state jail
felony; thus, the trial court has jurisdiction over the case. See TEX. CODE
CRIM. PROC. ANN. art. 4.05 (West 2013) (stating that district courts shall
have original jurisdiction in all felony cases). The indictment filed
conferred jurisdiction on the trial court and provided Appellant with
sufficient notice of the charged offense. The enhancement paragraphs
were properly alleged in the indictment elevating the punishment range
to a second degree felony. TEX. PENAL CODE. ANN. 12.425 (b) (West 2013).
Counsel has examined the totality of evidence as well, and has
determined that there are no arguable grounds for review of the
sufficiency of the evidence. For legal sufficiency purposes, the question is
whether, "after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Jackson v. Virginia,
5
443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). The stipulation
of evidence supported the plea of guilty, and the true pleas to the
enhancement paragraphs. CR 52-53; II RR 15-16.
The sentence was within the punishment range provided for by law,
and is therefore not subject to challenge. See TEX. PENAL CODE ANN. §
12.425(b) (West 2013) (punishment range for state jail enhanced to a
second degree felony offense). Moreover, the judgment does not contain
any improper assessment of fees. CR 69-70 and 85; See Bray v. State, 179
S.W.3d 725 (Tex. App.--Fort Worth 2005, no pet.). As this Court is well
aware, some of the Smith County trial courts has assessed an attorney fee
in the amount of $300 as court costs following a finding that the defendant
was indigent. That did not occur in this case. CR 85. Thus, there is no
arguably reversible error during the punishment phase.
Finally, the undersigned has reviewed the record and found no
arguable ground for ineffective assistance of counsel. Counsel is strongly
presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. Strickland
v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674
6
(1984).
Trial counsel filed a motion for appointment of an investigator
almost immediately following the indictment and it appears that the
investigator was able to assist which resulted in a no bill being returned
in a companion case which could have exposed Mr. Perkins to a minimum
punishment of 25 years.4
At the sentencing proceedings, the State sought an eighteen year
sentence in the case. III RR 6. Defense counsel was able to argue and
influence the trial court not to impose that sentence, but rather a shorter
sentence. III RR 6-10.
Considering the totality of the representation of Appellant's trial
counsel, the record contains nothing that would indicate that counsel's
performance was deficient. See Strickland 466 U.S. at 687, 104 S. Ct. at
2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
Counsel is also aware that Mr. Perkins apparently believes that the
4
The offense for which an investigator was sought was an Assault Family Violence with
Previous Conviction. CR 4-5. That offense is a third degree felony. If it had been indicted, the
third degree punishment range would have been increased to an enhanced felony with a twenty-
five year minimum punishment range.
7
lengthy sentence argued for by the State was related to the no bill on the
companion assault case discussed above. CR 66 and 67. The record from
the punishment argument does not support taking this position. III RR
6.
CONCLUSION
Since counsel is 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).
8
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Counsel respectfully
prays that this Court permit him to withdraw after this Court’s own
examination of the record in this cause and to afford Appellant his right
to file any pro se brief that he may wish to file.
Respectfully submitted,
/s/ James Huggler
James W. Huggler, Jr.
State Bar Number 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 fax
ATTORNEY FOR APPELLANT
9
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Brief of the Appellant has been
forwarded to counsel for the State by regular mail or through the State of
Texas Electronic Filing System on this the 1st day of April 2015 and to the
Appellant at the address listed below by regular mail.
Attorney for the State:
Mr. Mike West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
Fredrick Perkins
TDCJ#01961955
C. Moore Unit
1700 North FM 87
Bonham, Texas 75418
/s/ James Huggler
James W. Huggler, Jr.
10
CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 1,852 words as counted by
Corel WordPerfect version x5.
/s/ James Huggler
James W. Huggler, Jr.
11