ACCEPTED
13-14-00380-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
2/23/2015 7:44:06 PM
DORIAN RAMIREZ
CLERK
NO. 13-14-00380-CR
FILED IN
13th COURT OF APPEALS
In The CORPUS CHRISTI/EDINBURG, TEXAS
2/23/2015 7:44:06 PM
Court of Appeals DORIAN E. RAMIREZ
Clerk
Thirteenth Supreme Judicial District
Corpus Christi, Texas
________________________________________________________________
LAWRENCE JAMES, JR
Appellant
vs.
THE STATE OF TEXAS
Appellee
________________________________________________________________
On Appeal in Cause No. 12-14114
252nd District Court, Jefferson County, Texas
HONORABLE LARRY GIST, Judge Presiding
________________________________________________________________
BRIEF FOR APPELLANT
________________________________________________________________
TERRENCE LEON HOLMES
455 Milam Street
Beaumont, Texas 77701
(409) 832-6041
(409) 832-6078 FAX
TBN: 09908486
Attorney for Appellant
No Oral Argument Requested
SUBJECT INDEX
PAGE
IDENTITY OF PARTIES AND COUNSEL 3
INDEX OF AUTHORITIES 6
STATEMENT OF THE CASE 7
ISSUES PRESENTED 10
STATEMENT OF FACTS 11
SUMMARY OF THE ARGUMENT 14
ARGUMENT 14
CERTIFICATE OF COUNSEL 19
CERTIFICATE OF COMPLIANCE WITH RULE 9.4 21
CERTIFICATE OF SERVICE 22
2
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX.R.APP. 38.1(a), Appellant certifies that the following persons
may have an interest in this case to the extent of their respective designations, and this
certification is made in order that the presiding judges may evaluate possible conflicts
of interests.
LAWRENCE JAMES, JR
Defendant/Appellant
Institutional Division
THE STATE OF TEXAS
Complainant, victim, or aggrieved party
TERRENCE LEON HOLMES, 455 Milam, Beaumont, Texas 77705
Attorney for the Appellant on Appeal
RODNEY D. CONERLY, Assistant Criminal District Attorney, Jefferson
County Courthouse, Beaumont, Texas 77701
Counsel for Appellee on Appeal
ERIC HOUGHTON, Assistant District Attorney, 1001 Pearl, Suite 301,
Beaumont, Texas 77701
Counsel for the State (Guilt/innocence and sentencing)
NATHAN L. REYNOLDS, JR., 3500 Memorial Blvd., Port Arthur, Texas
77640
Attorney for the Appellant before Appeal
JUDGE HONORABLE LARRY GIST, 252nd District Court, Jefferson
County, Texas
Trial Court Judge
3
NO. 13-14-00380-CR
In The
Court of Appeals
Thirteenth Supreme Judicial District
Corpus Christi, Texas
________________________________________________________________
LAWRENCE JAMES, JR
Appellant
vs.
THE STATE OF TEXAS
Appellee
________________________________________________________________
On Appeal in Cause No. 12-14114
252nd District Court, Jefferson County, Texas
HONORABLE LARRY GIST, Judge Presiding
________________________________________________________________
BRIEF FOR APPELLANT
________________________________________________________________
TO THE HONORABLE COURT:
LAWRENCE JAMES, JR, Defendant in Cause No. 12-14114 in the 252nd
4
District Court, Jefferson County, Texas, Honorable Larry Gist, Judge Presiding, and
Appellant for the Court of Appeals, respectfully submits this brief to the Court for the
purpose of appealing his conviction of Murder.
For convenience, the parties will be referred to as “Appellant” and the “State.”
5
INDEX OF AUTHORITIES
CASES PAGE
Anders v. California, 366 U. S. 738 (1967) 19
Anderson v. State, Not Reported in S.W.3d,
2003 WL 21197260, Tex.App.-Hous. (1Dist.), May 22, 2003 17
Gainous v. State, 436 S. W. 2d 737 (Tex. Crim. App. 1969) 19
Gomez v. State, 921 S.W.2d 329 (Tex. App.-Corpus Christi 1996) 14
Harvill v. State, 13 S.W.3d 478 (Tex. App.-Corpus Christi 2000) 14
High v. State, 573 S. W. 2d 807 (Tex. Crim. App. 1978) 19
Houston v. State, 201 S.W.3d 212 (Tex. App.- Hous. [14 Dist.] 2006) 14
Lord v. State, 63 S.W.3d 87 (Tex. App.-Corpus Christi 2001) 14
Saldana v. State, 150 S.W.3d 486 (Tex.App.-Austin 2004) 16
STATUTES
Vernon’s Ann.Texas C.C.P. art. 26.13 14, 15, 16 & 17
6
STATEMENT OF THE CASE
Nature of the Case
This is an appeal from a conviction in Cause No. 12-14114 for Murder. On
April 28, 2014 a Pre-Trial Hearing was held. (Supplemental Reporter’s Record,
Volume 1 of 2). The Supplemental Reporter’s Record states that on April 29, 2014 a
Pre-Trial Motion and Voir Dire Hearing was held; however this date is the day after
the Written Plea Admonishment were signed by the Appellant. (Clerk’s Record, pgs.
5-6 and pgs. 29-31; Supplemental Reporter’s Record, Volume 2 of 2). Moreover, on
April 28, 2014, the Appellant pled guilty to said offense in the indictment (Clerk’s
Record, pgs. 5-6 and pgs. 29-31); however, the Reporter’s Record states that the Plea
hearing occurred on April 29, 2014. (Reporter’s Record, Vol. 2, pg. 5, lines 12-14).
Course of Proceedings
The indictment alleges that the offense of Murder occurred on or about March
27, 2012. (Clerk’s Record, pgs. 5-6). On April 28, 2014, the Appellant pled guilty to
said offense in the indictment (Clerk’s Record, pgs. 5-6 and pgs. 29-31); however, the
Reporter’s Record states that the Plea hearing occurred on April 29, 2014. (Reporter’s
Record, Vol. 2, pg. 5, lines 12-14). Additionally, Appellant orally affirmed to the trial
court during the plea hearing that he was pleading guilty of his own free choice and
that he did everything he was charged with in the indictment. (Reporter’s Record, Vol.
7
2, pg. 5, lines 23 thru pg. 6, line 3). Appellant was properly admonished pursuant to
Art. 26.13 of the Texas Code of Criminal Procedure at the time of the plea. (Clerk’s
Record, pgs. 29-31; Reporter’s Record, Vol. 2 pgs. 4-6 and Vol. 4). Under Art. 1.14
Tx.C.C.P., the Appellant gave up all rights to him by law, whether of from, substance
or procedure. Joined by his attorney, Appellant gave up his right to a jury in this case
and his right to the appearance, confrontation and cross examination of the witnesses.
(Clerk’s Record, pgs. 29-31). Written admonitions were signed by the Appellant.
(Clerk’s Record, pgs. 29-31). The Appellant orally represented to the court that he
understood everything he signed with his lawyer. (Reporter’s Record, Vol. 2 pg. 6,
lines 4-22). The Appellant’s plea was non-negotiated or un-agreed. (Reporter’s
Record, Vol. 2 pg. 5, lines 15-18). The Court found the evidence sufficient to find the
Appellant guilty and ordered a pre-sentence report. (Clerk’s Record, pgs. 29-31,
Reporter’s Record, Vol. 2 pg. 6). The pre-sentence report stated that the Appellant was
withdrawing his guilty plea because he “hasn’t been given proper due process” and
was “coerced into pleading guilty” by his attorney. (Clerk’s Record, pg. 47). At the
sentencing hearing on June 2, 2014, the Appellant’s counsel moved to withdraw the
Appellant’s guilty plea. (Reporter’s Record, Vol. 3, pg. 6, lines 15-16). The Court
denied Appellant’s motion to withdraw. (Reporter’s Record, Vol. 3, pg. 6, lines 17-20).
After arguments by the State and the Appellant, the Court sentenced the Appellant to
8
life in the Department of Corrections. (Clerk’s Record, pgs. 55-58). (Reporter’s
Record, Vol. 3, pg. 11, lines 14-16).
Counsel herein was appointed to represent Appellant on appeal.
9
ISSUES PRESENTED
There are no arguable points of error, fundamental or otherwise, upon which
Appellant could obtain relief from the conviction in the trial court below.
10
STATEMENT OF FACTS
This is an appeal from a conviction in Cause No. 12-14114 for Murder. On
April 28, 2014 a Pre-Trial Hearing was held. (Supplemental Reporter’s Record,
Volume 1 of 2). The Supplemental Reporter’s Record states that on April 29, 2014 a
Pre-Trial Motion and Voir Dire Hearing was held; however, this date is the day after
the Written Plea Admonishment were signed by the Appellant. (Clerk’s Record, pgs.
5-6 and pgs. 29-31; Supplemental Reporter’s Record, Volume 2 of 2). Moreover, on
April 28, 2014, the Appellant pled guilty to said offense in the indictment (Clerk’s
Record, pgs. 5-6 and pgs. 29-31); however, the Reporter’s Record states that the Plea
hearing occurred on April 29, 2014. (Reporter’s Record, Vol. 2, pg. 5, lines 12-14).
The indictment alleges that the offense of Murder occurred on or about March
27, 2012. (Clerk’s Record, pgs. 5-6). On April 28, 2014, the Appellant pled guilty to
said offense in the indictment (Clerk’s Record, pgs. 5-6 and pgs. 29-31); however, the
Reporter’s Record states that the Plea hearing occurred on April 29, 2014. (Reporter’s
Record, Vol. 2, pg. 5, lines 12-14). Additionally, Appellant orally affirmed to the trial
court during the plea hearing that he was pleading guilty of his own free choice and
that he did everything he was charged with in the indictment. (Reporter’s Record, Vol.
2, pg. 5, lines 23 thru pg. 6, line 3). Appellant was properly admonished pursuant to
Art. 26.13 of the Texas Code of Criminal Procedure at the time of the plea. (Clerk’s
11
Record, pgs. 29-31; Reporter’s Record, Vol. 2 pgs. 4-6 and Vol. 4). Under Art. 1.14
Tx.C.C.P., the Appellant gave up all rights to him by law, whether of from, substance
or procedure. Joined by his attorney, Appellant gave up his right to a jury in this case
and his right to the appearance, confrontation and cross examination of the witnesses.
(Clerk’s Record, pgs. 29-31). Written admonitions were signed by the Appellant.
(Clerk’s Record, pgs. 29-31). The Appellant orally represented to the court that he
understood everything he signed with his lawyer. (Reporter’s Record, Vol. 2 pg. 6,
lines 4-22). The Appellant’s plea was non-negotiated or un-agreed. (Reporter’s
Record, Vol. 2 pg. 5, lines 15-18). The Court found the evidence sufficient to find the
Appellant guilty and ordered a pre-sentence report. (Clerk’s Record, pgs. 29-31,
Reporter’s Record, Vol. 2 pg. 6). The pre-sentence report stated that the Appellant was
withdrawing his guilty plea because he “hasn’t been given proper due process” and
was “coerced into pleading guilty” by his attorney. (Clerk’s Record, pg. 47). At the
sentencing hearing on June 2, 2014, the Appellant’s counsel moved to withdraw the
Appellant’s guilty plea. (Reporter’s Record, Vol. 3, pg. 6, lines 15-16). The Court
denied Appellant’s motion to withdraw. (Reporter’s Record, Vol. 3, pg. 6, lines 17-20).
After arguments by the State and the Appellant, the Court sentenced the Appellant to
life in the Department of Corrections. (Clerk’s Record, pgs. 55-58). (Reporter’s
Record, Vol. 3, pg. 11, lines 14-16).
12
The Appellant filed notice of appeal on June 5, 2014. (Clerk’s Record, pg. 72).
The Court certified the Appellant’s right to appeal on June 5, 2014. (Clerk’s Record,
pg. 60). Counsel herein was appointed to represent Appellant on appeal, and files this
brief in that regard. No reversible error has been found in this case, as further detailed
in this brief.
13
SUMMARY OF THE ARGUMENT
There are no arguable points of error as further detailed in this brief.
ARGUMENT
After diligently reviewing the record (Reporter's Record and Transcript) in this
case and researching the law, appointed counsel herein has found no reversible error
committed by the trial court and no arguable grounds or error.
First, a nonnegotiated plea of guilty waives all nonjurisdictional defects
occurring prior to entry of the plea, but such a plea does not preclude a defendant from
challenging the voluntariness of his plea on appeal. (Harvill v. State, 13 S.W.3d 478,
2000 WL 221888, Tex.App.-Corpus Christi, February 24, 2000). Next, to be
constitutionally valid, a guilty plea must be knowing and voluntary. Moreover, a trial
court’s substantial compliance with the statute (Vernon’s Ann.Texas C.C.P. art. 26.13)
governing the required admonishments at plea hearings establishes a prima facie case
that the plea was valid. (Lord v. State, 63 S.W.3d 87, 2001 WL 1346401, Tex.App.-
Corpus Christi, November 01, 2001). When considering the voluntariness of a guilty
plea, an appellate court must examine the entire record. (Houston v. State, 201 S.W.3d
212, 2006 WL 2294495, Tex.App.- Hous. [14 Dist.], August 10, 2006). Pursuant to
Gomez v. State, 921 S.W.2d 329, 1996 WL 87107, Tex. App.-Corpus Christi, February
29, 1996, the voluntariness of a guilty plea is determined by the totality of
14
circumstances. Vernon’s Ann. Texas C.C.P. art. 26.13(b)
In light of the evidence in the record, the Appellant’s plea appears to voluntary
and the trial court substantially complied Vernon’s Ann. Texas C.C.P. art. 26.13
which governs the required admonishments at plea hearings. The record shows that the
indictment alleged the offense Murder occurred on or about March 27, 2012. (Clerk’s
Record, pgs. 5-6). And the record shows that on April 28, 2014, the Appellant pled
guilty to said offense in the indictment (Clerk’s Record, pgs. 5-6 and pgs. 29-31);
however, the Reporter’s Record states that the Plea hearing occurred on April 29,
2014. (Reporter’s Record, Vol. 2, pg. 5, lines 12-14). The recorded also shows that the
Appellant’s plea was non-negotiated or un-agreed. (Reporter’s Record, Vol. 2 pg. 5,
lines 15-18). Additionally, Appellant orally affirmed to the trial court during the plea
hearing that he was pleading guilty of his own free choice and that he did everything
he was charged with in the indictment. (Reporter’s Record, Vol. 2, pg. 5, line 23 thru
pg. 6, line 3). Moreover, written admonitions were signed by the Appellant. (Clerk’s
Record, pgs. 29-31; Reporter’s Record, Vol. 4). Furthermore, the Appellant orally
represented to the court that he understood everything he signed with his lawyer.
(Reporter’s Record, Vol. 2 pg. 6, lines 4-22). In the acknowledgement that Appellant
signed it states as follows:
Comes now the defendant, joined by my counsel, and states that I understand the
15
foregoing admonishments from the Court and I am aware of the consequences of my
plea. I am mentally competent and my plea is freely and voluntarily made. If counsel
was appointed, I give up and waive any time provided to me by law to prepare for trial.
I am totally satisfied with the representation provided to me by my attorney who
provided fully effective and competent legal representation. Applying the facts to the
rule, the record reflects that the Appellant was properly admonished pursuant to Art.
26.13 of the Texas Code of Criminal Procedure at the time of the plea. (Clerk’s
Record, Vol. pgs. 29-31; Reporter’s Record, Vol. 2 pgs. 4-6 and Vol. 4).
The record further shows that the Court found the evidence sufficient to find the
Appellant guilty and ordered a pre-sentence report. (Clerk’s Record, pgs. 29-31,
Reporter’s Record, Vol. 2 pg. 6). The pre-sentence report dated May 22, 2014 stated
that the Appellant was withdrawing his guilty plea because he “hasn’t been given
proper due process” and was “coerced into pleading guilty” by his attorney. (Clerk’s
Record, pg. 47). At the sentencing hearing on June 2, 2014, the Appellant’s counsel
moved to withdraw the Appellant’s guilty plea. (Reporter’s Record, Vol. 3, pg. 6, lines
15-16). The Court denied Appellant’s motion to withdraw. (Reporter’s Record, Vol. 3,
pg. 6, lines 17-20).
Pursuant to Saldana v. State, 150 S.W.3d 486, 2004 WL 524445, Tex.App.-
Austin, March 18, 2004, a defendant may withdraw his guilty plea as a matter of right
16
without assigning any reason until the judgment has been pronounced or the case has
been taken under advisement.
In Anderson v. State, Not Reported in S.W.3d, 2003 WL 21197260, Tex.App.-
Hous. (1Dist.), May 22, 2003, the Court held that denial of motion to withdraw plea,
brought after trial court had taken case under advisement and reset it for preparation of
pre-sentence investigation report, was not abuse of discretion. The record reflects that
the Appellant stated his intent to withdraw his plea in the pre-sentence report dated
May 22, 2014 and his attorney moved to withdraw his plea during sentencing June 2,
2014 after the Court made a finding of guilt and ordered a pre-sentence investigation
report on April 29, 2014. Applying the facts to the rule, the denial of Appellant’s
motion to withdraw his plea after trial court had taken the case under advisement and
reset it for preparation of pre-sentence investigation report, was not an abuse of the
trial court’s discretion.
Appellant pled guilty before the court. Appellant was properly admonished
pursuant to Art. 26.13 of the Texas Code of Criminal Procedure at the time of the plea.
Counsel herein has obtained, filed and reviewed the reporter's record from the plea
and found no reversible error, fundamental or otherwise. The trial court assessed
punishment in the hearing with the absence of fundamental error. Counsel reviewed the
indictment, pleadings, the plea proceedings and all other matters in the record. No
17
authority has been found to indicate an abuse of discretion on the part of the trial court
in accepting Appellant plea and pronouncing sentence.
The Appellant has raised a claim of ineffective assistance against his trial
counsel; however, I could not find anything in the record to raise that claim on appeal.
If the Court disagrees with appointed counsel herein, then this appeal should be
abated in the interest of justice, and counsel herein should be directed to prepare a brief
to particularize any complaint of Appellant, which the court finds to be meritorious.
Counsel herein further urges the Court to fully consider any contention of Appellant,
which he may choose to raise pro se, after he receives and review the matter of record
herein.
Respectfully submitted,
/s/ Terrence Leon Holmes
_______________________________
TERRENCE LEON HOLMES
455 Milam Street
Beaumont, Texas 77701
TBN: 09908486
(409) 832-6041
(409) 832-6078 FAX
Email: terrencelholmes@aol.com
18
NO. 13-14-00380-CR
On Appeal in Cause No. 12-14114
LAWRENCE JAMES, JR § IN THE COURT OF APPEALS
Appellant §
§
VS. § THIRTEENTH DISTRICT
§
§
THE STATE OF TEXAS, §
Appellee § CORPUS CHRISTI, TEXAS
CERTIFICATE OF COUNSEL
In compliance with the requirements of High v. State, 573 S. W. 2d 807 (Tex.
Crim. App. 1978), Anders v. California, 366 U. S. 738 1967) and Gainous v. State,
436 S. W. 2d 737 (Tex. Crim. App. 1969) the appointed counsel of record herein for
LAWRENCE JAMES, JR, on the appeal states that he has diligently reviewed the
entire appeal record in this case and the law applicable thereto and, in his opinion, the
appeal from the judgment and sentence and all proceedings appurtenant thereto is
without merit and is frivolous because the record reflects no reversible error. Further,
it is the opinion of counsel herein that there are no grounds upon which an appeal can
be predicated pertaining to the indictment or trial hereof.
Counsel herein has served a copy of this brief on Appellant at the time of its
filing. At the time, counsel informed Appellant by accompanying letter that it is the
opinion of counsel that the appeal is without merit, and that he personally has the right
to view the record and file a pro-se brief raising any ground or error or complaint
which he may desire.
Counsel herein has filed a motion to extend the time to file a brief, requesting
that the Appellant be afforded an additional 30 days from the date he may receive
19
the record herein or 30 days from the date of filing of said motion, in order to file a
pro-se brief if he so chooses.
Respectfully submitted,
/s/ Terrence Leon Holmes
_______________________________
TERRENCE LEON HOLMES
455 Milam Street
Beaumont, Texas 77701
TBN: 09908486
(409) 832-6041
(409) 832-6078 FAX
Email: terrencelholmes@aol.com
ATTORNEY FOR APPELLANT
20
CERTIFICATE OF COMPLIANCE WITH RULE 9.4
I hereby certify that this document complies with the requirements of Tex. R.
App. Proc. 9.4(i)(2)(B) because there are 2020 words in this document, excluding the
portions of the document excepted from the word count under rule 9(i)(1), as
calculated by the MS Word computer program used to prepare it.
_______________________________
/s/ Terrence Leon Holmes
TERRENCE LEON HOLMES
455 Milam Street
Beaumont, Texas 77701
Email: terrencelholmes@aol.com
(409) 832-6041
(409) 832-6078 FAX
21
CERTIFICATE OF SERVICE
I do hereby certify that on February 23, 2015, a true and correct copy of the
foregoing Anders Brief for Appellant was submitted by telecopy (409) 835-8573 via
efile to, Waylyn G. Thompson, Assistant Criminal District Attorney, and a true and
correct copy was mailed via regular US Mail to LAWRENCE JAMES, JR, TDCJ#
01940637, Eastham Unit, 2665 Prison Road #1, Lovelady, Texas 75851.
/s/ Terrence Leon Holmes
______________________________
TERRENCE LEON HOLMES
455 Milam Street
Beaumont, Texas 77701
Email: terrencelholmes@aol.com
(409) 832-6041
(409) 832-6078 FAX
22
Lawrence James Jr. v. State
Combined Opinion