305-IS
CCA No. PD- •15
COA No. 13-12-00368-CR ORIGINAL
COURT OF CRIMINAL APPEALS
IN THE
MAY 22 2015
COURT OF CRIMINAL APPEALS OF TEXAS
AT AUSTIN, TEXAS Abe! Acosta, Clerk
FILED IN
JAVIER DE LA ROSA, JR. COURT OF CRIMINAL APPEALS
Appellant
NAY 22 2015
VS.
THE STATE OF TEXAS Abel Acosta, Cierk
In Appeal No. 13-12-00368-CR
from the
Court of Appeals
for the Thirteenth Judical District of Texas
at Corpus Christi - Edinburg, Texas
APPELLANT'S PRO SE PETITION FOR DISCRETIONARY REVIEW
Javier De La Rosa, Jr.
TDCJ No. 1781303
Ferguson Unit
12120 Savage Dr.
Midway, Texas 75852
APPELLANT PRO SE
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
Trial Court Judge:
Hon. Benjamin Euresti, Jr.
District Judge
107th District Court
974 E. Harrison
Brownsville, TX 78520
Appellant:
Javier De La Rosa, Jr.
TDCJ No. 1781303
Ferguson Unit
12120 Savage Dr.
Midway, Texas 75852
(PRO SE ON ANDERS APPEAL AND PDR)
REPRESENTED ON APPEAL BY:
Rebecca E. RuBane
Attorney-At-Law
847 E. Harrison
Brownsville, TX 78520
(2nd Anders Counsel - Court appointed on appeal only)
Reynaldo G. Garza, III
Attorney-At-Law
ADDRESS UNKNOWN
(1st Anders Counsel - Court appointed on appeal only)
REPRESENTED AT TRIAL BY:
Rick Canales
Attorney-At-Law
845 E. Harrison, Suite B
Bownsville, TX 78520
Julio Ledezma
Attorney-At-Law
845 E. Harrison, Suite B
Brownsville, TX 78520
Ed Stapelton
Attorney-At-Law
2401 Wildflower, Cuite C
Brownsville, TX 78520
Sara Stapelton Reeves
Attorney-At_Law
2401 Wildflower, Suite C
Brownsville, TX 78520
State:
The State of Texas
REPRESENTED ON APPEAL BY:
Luis Saenz
Cameron County County and District Attroney
964 E. Harrison
Brownsville, TX 78520
Jennifer Avendano
Assistant District Attorney
REPRSENTED AT TRIAL BY:
Armando Villalobos
FORMER Cameron COunty County and District Attorney
INCARCERATED in federal prison
NAME UNKNOWN
Assistant District Attorney
NAME UNKOWN
Assistant District Attroney
NAME UNKOWN
Assistant District Attorney (Juvenile Division)
i i
- TABlfc- OF CONTENTS PAGE
Identity of Judge, Parties, and Counsel i-ii
Tab^C of Contents iii+iv
Index of Authorties :-V-viv
Statement Regarding Oral Argument vii
Statement of the Case viii
GROUNDS FOR REVIEW xi-xii
Statement of the Case (EXTENDED) xiii-xiv
Statement of Procudural History (EXTENDED) xv-xix
GROUND ONE: fRIVtOUSLY "HELD ARGUABLE ISSUES 1-2
GROUND TWO: APPELLATE COUNSEL IN CONTEMPT OF COURT 3-4
GROUND THREE: JUVENILE COURT RECORD IN ANDERS APPEAL 4-5
gROUND FOUR: COUNSEL ON REMAND (HEARING ON INCOMPLETE RECORD) 6-7
GROUND FIVE: ARGUABLE ISSUE, REVERSIBLE ERROR, & WHOLLY FRIVOLOUS 7-9
GROUND SIX: PRO SE ISSUES .. 9-12
1) INVOLUNTARY GUILTY PLEA 10
2) TRIAL COURT HAD NO JURISDICTION 11
3) INEFFECTIVE ASSISTANCE OF COUNSEL 11-12
4) GUILTY PLEA TO JUDGE = NO JURY 12
«^ •-•-- 13
frayer XJ
Verification/Certificate of Service 13
APPENDIX
"A" - COA Opinion (02/12/15) - NO REVERSIBLE ERROR
"B" - COA ORDER ABATING APPEAL - ARGUABLE ISSUES (01/06/2014)
"C" - COA ORDER OF CONTEMPT - 2ND ANDERS COUNSEL (10/21/2014)
"D" - COA ORDER ABATING APPEAL - INCOMPLETE RECORD (07/30/2013)
"E" - COA DOCKET - CASE EVENTS (05/04/2012 - 03/23/2015)
TABLE OF CONTENTS-
turn PAGE
\f
INDEX OF AUTHORTIES
CASE PAGE
Ex Parte Allen, 618 S.W.2d 357 (Tex.Crim.App.1981) 11
Ex parte Amezquita, 223 S.W.3d 363 (Tex.Crim.App.2006) 12
Anders v. California, 386 U.S. 738 (1967) xvii,4
Andrews v. State, 159 S.W.3d 98 (Tex.Crim.App.2005) 12
Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App.2005) xv,xvii,7
Boykin v. Alabama, 395 U.S. 238 (1969) 10
Ex parte Briggs, 187 S.W.3d 458 (Tex.Crim.App.2005) 12
Carmell v. Quarterman, 292 Fed. Appx. 317 (5th Cir. 2006)...6
Chapman v. California, 87 S.Ct. 824 (1967).. 8
Davis v. State, 150 S.W.3d 196
(Tex.App. - Corpus Christi 2004) 5
De La Cerda v. State, 325 S.W.3d 367 (Tex.Crim.App.2011) 11
High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978) 7
Holt v. State, 64 S.W.3d 434
(Tex.App. - Waco 2001) xix
Jennings v. State, 890 S.W.2d 809 (Tex.Crim.App.1995) 6
Johnson v. State, 43 S.W.3d 1 (Tex.Crim.App.2001)., 8
Kelly v. State, 436 S.W.3d 313 (Tex.Crim.App.2014) xviii,l,4
Kent v. U.S., 383.U.S. 541 (1966) 4
Livar v. State, 929 S.W.2d 573
(Tex.App. - Fort Worth 1996) 11
Marin v. State, 851 S.W.3d 355 (Tex.Crim.App. 1993) 12
Martinez v. State, 313 S.W.3d 355
(Tex.App. - Houston [1st Dist] 2009) 8,9
Ex parte Maxwell, 424 S.W.3d 66 (Tex.Crim.App.2014) 11
Miller v. Alabama, 132 S.Ct. 2155 (2012) 10,11
Moon v. State, PD-1215-13, (Tex .Crim. App-rDecemeber 10, 2014).4
1/
Oliver-v. State, 872 S.W.2d 713 (Tex.Crim.App.1996) 6-
Ortiz v. State, 849 S.W.2d 921
(Tex.App. - corpus Christi 1993) 5
Padilla v. Kentucky, 176 L.Ed.2d 284 (2010) 10
Perryman v. State, 159 S.W.3d 778
(Tex.App. - Waco 2005) 1
Matter of R.A.G., 866 S.W.2d 199 (Tex.1993) 11
Smith v. Rabbins, 120 S.Ct. 746 (2000) 7,8,9
Roper v. Simmons, 125 S.Ct. 1183 (2005) 11-12
Rushing v. State, 85 S.W.3d 283 (Tex.Crim.App.2002) xvi
Satterwhite v. State, 858 S.W.2d 412 (Tex.Crim.App.1993) 2
In re Schulman, 252 S.W.3d 403 (Tex.Crim. App. 2008) 1,2,4,6
In re Shelnutt, 695 S.W.2d 622
(Tex.App. - Austin 1985) 3
Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App.1991) 2
Stine v. State, 908 S.W.2d 429 (Tex. Crim. App. 1995) 12
Taylor v. State, 332 S.W.3d 483 (Tex.Crim.App.2011) 11
In re Tharp, 393 S.W.3d 751 (Tex.Crim.App. 2012) 12
Williams v. State, 252 S.W.3d 353 (Tex.Crim.App.2008) 6
Wilson v. State, 366 S.W.3d 335
(Tex.App. - Houston [1st Dist] 2012) 5
Wilson v. State, 40 S.W.3d 192
(Tex.App. - Texarkana 2011) xix
Wilson v. State, 825 S.W.2d 155
(Tex.App. - Dallas 1992) 10
Young v. State, 8 S.W.3d 156 (Tex .Crim. App. 2000) 11
STATUTES / RULES
Code of Criminal Procedure
Art. 1.051 ( ) 5
Art. 4.18 11
Art. 44.47 (b) 4
Texas Rules of Appellate Procedure
Rule 25.2 (d) xv
Rule 44.2 (a) 8
Rule 44.2 (b) 8
1/ /
STATEMENT REGARDING ORAL ARGUMENT
The very nature of Anders appeals that both removes ones
rright to counsel on appeal and that^are often litigated by uneducated
PRO SE prisonersj increases the need for a close look at the issues
in this appeal during oral argument. And, specifically in this
a
appeal^ the court of appeals prtviously determined there were
"arguable isses" and then sustained a second Anders brief that
did not address the priorly found "arguable issues'1'because, according
to the court of appeaii. there are no reversible errors. Oral
arugment would allow the Court to focus on narrowly defining
the difference between arguable issues, reversible error, and
wholly frivilous. The court of appeal described this appeal
as being in a "unique posture and extereme circumstances" which
is confirmed by the numerous procedural irregularties present
in the appellate procedure followed by the court of appeals.
Oral argument would allow this Court to simplify the facts and
clarify the issues.
Vii
• STATEMENT OF THE CASE ~
Javier De La Rosa, Jr., the Appelant, was charged as a juvenile
with the murder of his girlfriend. The juvenile court waived
jurisdiction over conduct constituting 1st Degree Murder. However,
once in the district court, Mr. De La Rosa was indicted for Capital
Murder based upon the State's additional investigation. At that
time, the Capital Murder charge subjected Mr. De La Rosa to an
automatics capital LIFE sentence 'without parole. To avoid that
sendee, that was declared unconstitutional while this appeal was
pending, Mr. De La Rosa plead guilty to the lesser included offense
of 1st degree murder. The guilty plea was before the trial court
alone and then a jury determinec\only thisentnee of 90 years in
prison. This appeal followed, where after the court of appeals
determined that Mr. De La Rosa had a right to appeal, 1st Anders
counsel filed an Anders brief. The court of appeals originally
concluded that there were "arguable issues" and had new counsel
appointed to file a merits brief. However, 2nd Anders counsel
did not file a brief on the merits; but, rather 2nd Anders counsel
ffiled an Anders brief, under threat of contempt, that failed
to even address the priorly found arguable issues. 2nd Anders
counsel was found in contempt for failure to comply with Kelly
and, yet, she continued to represent Mr. De La Rosa. The court
of appeals sustained the 2nd Anders brief and AFFIRMED the conviction
bec«S*se there were no reversible errors in this case.
Vm
STATEMENT OF PROCEDURAL HISTORY
In trial cause number, 11-CR-17-A, in the 107th District
Court of Cameron County, Texas, Javier De La Rosa , Jr., was
indicted for Capital Murder. On March 8, 2012, Mr. De La Rosa
plead guilty to trial court only. Then a jury was seated and
returned a verdict on punishment alone, for 90 years in prsion.
Mr. De La Rosa was sentenced on May 4, 2012. This appeal followed.
On November 16, 2012, the 13th District Court of Appeals
determined that Mr. De La Rosa had a right to appeal. However,
e« 1st Anders counsel filed an Anders brief on April 3, 2013.
Is""£esponse to a PRO SE pleading, on June 30, 2013, the court
of appeals REMANDED the case to the trial court for a hearing
and determination about the completeness of the record. Mr. De La Rosa
was not represented by counsel at the hearing, but it was determined
that the appelfate record was incomplete. The appellate record
was supplemented with some missing documents and pre-trial hearings.
On January 6, 2014 the court of appeals concluded that there
were "arguable issues" present in the appeal. The court allowed
1st Anders counsel to withdraw and had new counsel appointed.
The court of appeals also orderolthat a brief on the merits be
filed on Mr. De La Rosa's behalf.
Nevertheless, after being threatened with contempt for her
delay in filing anAppellant's SVief, 2nd Anders counsel filed
aa second Anders brief on August, 18, 2014. Yet, 2nd Anders
counsel failed to comply with the notification requirments of
Kelly. And, when 2nd Anders counsel continued to refuse to comply
with Kelly, the court of appeals held her in contempt of court
on October 21, 2014. 2nd Anderscousel continued to represnt
Mr. De La Rosa in this appeal.
i*
2nd Anders counsel's Anders brief did not address the previously
found "arguable issues" in any manner. That did not stop the
13th District Court of Appeals from AFFIRMING the conviction
in a summary Opinion because there were no revrsible errors.
The Opinion was issued on February 12, 2015. NO MOTION FOR REHEARING
WAS FILED. In fact, the appellate record demonstrated" that 2nd
Anders counsel never complied with Rule 68.4 of the Texas Rules
of Appellate Procedure and did NOT notify Mr. De La Rosa of the
Opinion. However, Mr. De l& Rosa was able to leam of the Opinion
through other sources and requested an extension of time to file
this PRO SE PDR. This Court GRANTED the extension and set a
due date of May 15, 2015.
This PRO SE PDR was mailed to the Court of Criminal Appeals,
using the prison mail system, on .
i
GROUNDS FOR REVIEW
GROUND ONE: In an Anders appeal, once the appellate court holds
that there are 'arguable issues' in the appeal,
which is a determination that the appeal is NOT
wholly frivolous, may the appellate court subsequently
dispose of the appeal by sustaining a second Anders
brief that does not discuss the previosly found
agSwable issues?
GROUND TWO: Once an appellate court holds a court-appointed
appellate attorney in contempt of court for her
(non)actions in a pending appeal, must that attorney
be removed from that appeal and substitute counsel
appointed to represent the indigent appellant?
GROUND THREE: In an Anders appeal from a conviction where the
appellant was originally charged as a juvenile,
and when Article 44.47 (b) of the Code of Criminal
Procedure requires juvenile court waiver proceedings
to bg a part of the appeal after a conviction, must
the appellate record examined by the appellate court
to determine whether the appeal is wholly frivolous
include the record from the juvenile court proceedings?
GROUND FOUR: In an Anders appeal, when an appellate court REMANDS
the case back to the trial court for a hearing and
determination about the completeness of the appellate
record, must the appellant be affordcdthe assistance
of counsel at that hearing about the completeness
of the record? [SUPP RR (08/16/2013) PASSIM]
GROUND FIVE: In an Anders appeal, where according*the U.S. Supreme
Court a finding of "wholly frivolous" requires less
merit to an appeal than "unTiTceily* to prevail on appeal",
"no grave and prejudical errors", and "that the
appeal would be unsuccessful", does the standard used
by the 13th District Court of Appeals of no "reversible
error" correctly measure whether the appeal is "wholly
frivolous" -- especially when the court of appeals
previously held that there were "arguable issues"
present in the appeal?
GROUND SIX: In this Anders appeal, do any of the "arguable issues"
presented by the Appellant, PRO SE, have a basis
in law and fact, so that the appeal is not wholly
frivolous, to include:
1) The guilty plea was involuntary when it was
induced by the law's threat of an automatic LIFE
sentence without parole which was subsequently held
to be an unconstitutional and illegal sentence for
juveniles, like Appellant [2 RR (08/29/2012) PASSIM];
X\
2) The trial court had no jurisdiction over the
Capital Murder indictment when the only conduct
the juvenile court considered and waived jurisdiction
o8/2o/2oi:nrS#"hesree murder [supp CR (°8/16/2013 &
3) Trail counsels were ineffective when they
failed to offer any scientific, medical, or psychological
evidence to support their sole strategy at sentencing,
which was that because a juvenile's brain is not
fully developed Appelant desrved a lifghter punishment
[4 RR (08/29/2012) 78]; and,
4) The trial was improperly split into a two-
stage trial and the Jury was an unauthorized trier
of fact to determine punishment, after the trial
court alone accepted the guilty plea and found Appellant
guilty, so that the sentence is VOID [2 RR (08/29/2012) ##]„
NOTES ABOUT CITATIONS USED IN THIS PDR:
A date is included with each record citation becuase of the
numerous supplemental records that were filed. The date used
is the date the record was FILED in the court of appeals, as
reflected on that court's docket listing available on the internet.
Thus, SUPP CR (08/20/2013) ##, refers to the Suppelemtnal
Clern s,,Record FILED on 08/20/2013 in the Court of APpeals and
the "##" reflects that Appellant is unaware of the page number
for that specific cite. The same is followed for "RR" as the
Repolrter's Record.
Additonal cites are given refering to the actions of the
13th District Court of Appeals. Again, dates are used to reference
what happendiri the court of appeals. These dates are as listed
on that court's docket (or case events) available on the internet
and, as included herein, as APPENDIX "E".
"M>
STATEMENT OF THE CASE (EXTENDED)
Javier De La Rosa, Jr., the Appellant, was originally a
juvenile when he was charged with this murder (that made headlines
in south Texas). 1 When the juvenile court waived jurisdiction
that court onltj had before it evidence of conduct that amounted
to first degree murder. In fact, the juvenile court Order specifically
only waived jurisdiction over 1st degree murder, which means
that the juvenile court only con*«dered that the possible punishment
could be 5-99 years or life. SUPP CR (08/16/2013 & 08/20/2013) ##.
nevertheless, after further investigation, the State felt they
had additional evidence of retaliation (?? for child support
even though the deceased was never pregnat ??), of robbery, (??
becuase the deceased's cell phone was missing and perhaps disappeared
as an after-thought to the murder ??), and of kidnapping (??
when the deceased's mother was fully aware the deceased was leaving
with Mr. De La Rosa ??). Therefore, before the adult district
court, the State indicted Mr. De La Rosa for Capital Murder.
1 CR (06/27/2012) 19.
At that time, the Capital Murder indictment subjected
Mr. De La Rosa, a juvenile, to an automatic^ capital LIFE sentence
without parole, if he was convicted. Again, that autotnatice
sentence was something the juvenile court never considered possible
when it made its decision to waive jurisdiction. Then, the State
used the laws's threat of an automatic LIFE sentence without
parole to coerce Mr. De La Rosa into pleading guilty to the lesser
included offense of first degree murder. 2 RR (08/29/2012) 3-7;
2nd Anders Brief ("AB") - Sufficiency of the Indictment. That
T~. It might be noted that the murder in this case was of Mr. De La Rosa's
girlfriend and that it had nothing to do with any gang violence or any
other criminal activity. Similarly, Mr. De La Rosa had absoultely no
other criminal history (juvenile or otherwise).
* 11 ;
coerced guilty plea was made before the trial court only "
and the trial court itself found Mr. De La Rosa guilty.
2 RR (08/29/2012) PASSIM. However, a few months later,
and while this appeal was pending, the U.S. Supereme Court
held that an automatic LIFE sentence without parole was
an unconsitutional and illegal sentence for juveniles, like
Mr. De La Rosa. Subsequently, this Court of Criminal Appeals
also held that that Supreme Court ruling would be retroactively
effective (to past conduct).
Even though the trial court itself found Mr. De La Rosa
guilty, a Jury was seated to decide punishment alone.
Mr. De La Rosa did not plead guilty to the Jury, nor did
the Juryjs verdict include any finding of guilt. CR (06/27/2012) ##;
3 RR (08/29/2012) PASSIM. At sentencing, Mr. De La Rosa's
trial counsel's sole strategy was to convince the Jury that
a less harsh punishment was appropriate because, as a juvenile,
Mr. De La Rosa's brain was not fully developed. 4 RR (08/29/2012)
78. Yet, trial counsel offered no evidence whatsoever of a
scientific, medical, of psychological nature that would
have supported his lone theory. None. Perhaps, not suprisingly
th*n, the Jury returned a verdict of 90 years in prison.
This appeal follows.
•Hi/
STATEMENT OF PROCEDURAL HISTORY (EXTENDED)
In describing this appeal, the 13th District Court of Appeals
held that this appeal has a "unique posture and extreme circumstances
APPENDIX "C" - COA Order of Contempt (10/21/2014) p 4. Yet,
one would hardly get that understanding by reading the Court's
Opinion. APPENDIX "A". This is because the 13th District Court
of Appeals issued a pro forma, standard opinion used for Anders
2
appeals. The court reserved the facts that put this appeal
in a "unique posture and extreme circumstances" to footnotes.
And, ther"facts" provided in those footnotes, as well as other
"facts" in' the Opinion, are misleading and incomplete. Thus,
pursuant to Rule 68.4(h) of the Texas Rules of Appellate Procedure;
it is necessary to address the procedural background of this
appeal in detail.
Appellnat was originally e'epresented on this appeal by
Reynaldo G. Garza, III, court-appointed on appeal only. Inspite
of the lack of a Certification of Defendant's Right to Appeal,
the 13th District Court of Appeals summarly determined that
Mr. De La Rosa did have a right to appeal. COA Notice (11/16/2012)
Yet, Mr. Garza filed a motion to withdraw anf faccompaining Anders
brief. COA Docket (04/03/2013). Mr. De La Rosa, acting PRO SE,
requested access to the record. COA Docket (04/19/2013). And,
there were difficulties with the appellate record being provided
to Mr. De La Rosa. COA Letter (06/04/2013) and APPENDIX "B" -
COA Order Abating Appeal (01/06/2014) p 3. When Mr. De La Rosa
was finally provided with access to the appellate record, the
T. See, Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App.2005).
3. Had the court of appeals at anytime determined that there was no right
to appeal, including because the Certification of Defendant's Right
t0 Appeal was never filed, the proper disposition would have been
DISMISSAL (not affirmed). See, Tex. R. App. Proc, 25.2 (d).
•XV
record was missing parts of the trial record, including the record
of the juvenile court proceedings (where the juvenile court waived
jursidiction). COA Docket (11/18/2013).
Mr. De La Rosa filed a PRO SE motion to supplement the record
with this missing parts and the court of appeals REMANDED the
case back to the trial court for a hearing and determination
of "what constitutes a complete record." APPENDIX "D" - COA Order
(07/30/2013) p 2. However, Mr. De La Rosa was NOT represented
by counsel at the remand hearing concerning the incomplete record;
and, the State was able to get Mr. De La Rosa, a juvenile, to
sign a stipulation about the some of the missing documents.
SUPP CR (08/16/2013 & 08/20/2013) PASSIM, SUPP RR (08/16/2013)
PASSIM. A supplemental record was filed on appeal that included
some priorly excluded pre-trial hearings, but not the juvenile
court proceedings.4 SUPP RR (09/09/2013), SUPP CR (08/20/2013).
Mr. De La Rosa filed a motion requesting for the juvenile
court proceedings to be included in the appellate reocrd and
complaining of the denial of counsel at the remanded hearing
concerning the incomplete record. COA Docket (11/18/2013).
A
Mr. De La Rosa also askeVfor additonal time to file a PRO SE
Response or, in the alternative, for the court of appeal to consider
that motion and all prior pleadings as his PRO SE Response.
The appeallate "e.»rmined and fully considered this motion and
all matters raised therein, [and was] of the opinion that it
should be and is GRANTED IN PART insofar as the Court considers
% The motion to supplement was actually carried with the case. COA Docket
(07/30/2013). And then, it was denied in footnote 5 of the court's Opinion.
Had the court of appeals meant that it was refusing- to accept the supplemental
record that contained the juvenile court's Order waiving jurisdiction,
then the appellate record would continue to support that the trial court
had no jurisdiction. See, ^Rushing, v. State, 85 S.W.3d 283 (Tex.Crim.App.2002).
Therefore, when the court denied thaT motion in a footnote, it must have
meant that it was denying the only relief not priorly grassed — the
supplementing of the juvenile court proceedings. COA Docket (08/16/2013).
this motion, together with the other pro se pleadings on file,
as appellant's pro se brief in this matter. All other relief
requested in this motion is DENIED." APPENDIX "B" - p 2. Then
t-eft 13th District COurt of Appeals,:
"... conclude[d] that there [were] 'arguable'
appellate issues in this case. Anders, 386 U.S. at
744, Bledsoe, 178 S.W.3d at 826-27^ For instance,
appellant has briefed issues pertaining tojurisdiction,
the right to appeal, and the completeness of the appellate
record. We note this matter has been plagued by repeated
difficulties in assembling the appellate record. We
further note that appellate counsel did not have the
entire re£trd when he filed his ANders brief. We stress
that this is not an exhaustive list of arguable issues
that could be raised on appeal and, further, that we
have not determined that any of these arguments have
merit."
APPENDIX "B" - p 3. The court of appeals also specfically mentioned
the "various issues pertaining to juvenile cases" raised by
Mr. De La Rosa. APPENDIX "B" - p 2. Thus, the appellate court
allowed first Anders counsel to withdraw and REMANDED the case
to the trial court to appoint new appellate counsel. Finally,
the court of appeals ORDERED that, "Appellant's brief on the
merits will be due thirtly days after the supplemental record
is filed." APPENDIX "B" - p 4 (emphasis added).
After 7 extensions of time and another remand about the
delay, second Anders counsel, Rebecca E. RuBane, filed another
Anders brief (under threat of contempt of court for the delay).
In the time period before she filed the 2nd Anders brief, Mrs. RuBane
never once communicated with Mr. De La Rosa. COA Docket (05/30/2014
& 06/10/2014). Mr. De La Rosa was seeking to have 2nd Anders
counsel have the appelate record supplemented with the juvenile
court proceedings. COA Docket (03/26/2014). The appellate court
5. It should be noted that 2nd Anders counsel's brief looks extremely similar
to the 1st Anders brief (except for the missing cites and less explanation).
It is not reaching, nor an overstatement, to say that 2nd Anders counsel
prepared her Anders brief very quickly and under extreme duress.
*V 11
refused to require 2nd Anders counsel to communicate with Mr. De La Rosa
COA Notice (06/13/2014). And, the appelate record was never
ft
supplemented with the juvenile court proceedings. Additionally,
when 2nd Anders counsel filed her Anders brief she never complied
with the new requirments of Kelly concerning providing Appellant
(PRO SE) access to the appellate record. Because 2nd Anders
counsel continued to comply with Kelly, the court of appeals
held 2nd Anders counsel in contempt of court. APPENDIX "C".
Nevertheless, over Mr. De LA Rosa's objections, the court
of appeals permitted 2nd Anders counsel to continue to represent
Apellant. Mr. De La Rosa also complained that 2nd Anders counsel
should not have been allowed to file an Anders brief when the
court of appeals had previously held there were "Arguable issues."
COA Docket (09/12/2014 & 10/06/2014). At least in part, that
concern was carried with the case. COA Notice (motion to hold
counsel in contempt) (i0/20/2014). In^UI" of that motion remaining
pendinga&^the recognition that a PRO SE Response does not have
to be a "brief", in its Opinion the court of appeals considered
that no PRO SE Response was filed. APPENDIX "A" - p 3. And,
Fi 2nd Anders counsel acknowledged the need to review the juvenile court
proceedings in her second motion for extension of time. APPENDIX C p Z.
Nevertheless, the 2nd Anders brief did not provide any mention, reference,
nor discussion about the juvenile court proceedings whatsoever._ It
appears 2nd Anders counsel's illness that caused the delay in filing
a brief also resulted in her failure to remember to review the juvenile
court record. la
7 In its Order of Contempt, the court of appeals caiimed that the court
would fulfill the requirments of Kelly. APPENDIX "C". However, the
appellate record (and docket listing) fails to support that the appellate
court ever did anything to comply with Kelly_. Solely as an example,
the Order of Contempt itsffif was not even mailed to Mr. De La Rosa.
COA Notice/Letter (10/21/2014).
YVui
the court of appeals summarly denied the complaintabout a 2nd
Anders brief after the prior finding of "arguable issues" being
present in the appeal. APPENDIX "A" - p 5, fn 5.
Thus, the court of appeals AFFIRMED the conviction claiming
there were no "reversible errors." APPENDNIX "A" - p 4. Amazingly,
ini footnote, the court of appeals transformed itje? previous "note"
about 1st Anders counsel not having the complete record into
g
the sole reason behind the appointment fornew counsel. Perhaps
that mix-up of whS^y the court of appeals appointed new counsel
e
was the result of the numerous different panels of justices that
9
considered this appeal at different stages. This detailed procedural
history confirms th£ "unique poster and extreme circumstance"
of this ap^peal. With this understanding, that is lacking from
the 13th District Court of Appeals Opinion, it is a slap in the
*
face to transparent justice for the court to summarily AFFIRM
without explaining the court's view on the numerous procedural
irregularties encountered in this appeal.
8~! If the sole reason the court of appeals previously appointed
new counsel was because 1st Anders counsel did not review the
entire record, then the proper relief would have been to STRIKE
the 1st Anders brief and allow 1st Anders counsel the opportunity
to rebrief (with the entire record). See i.e., Holt v. State,
64 S.W.3d 434 (Tex.App. - Waco 2001); See also, Wilson v. State,
40 S.W.3d 192 (Tex.App. - Texarkana 2001)(explaining the difference
between substantive and matter of form problems in Andersrbriefs
and that matters:of form result only in rebriefing (not new counsel)).
9. For instance, while Justice Benavides, the author of the
Opinion, is the only Justice on the Opinion's panel that
was on the panel to find "arguable issues"; becuase the
prior Order of Abatement (01/06/2014) was per curiam there
is no indication that Justice Benavides was the lead voter
on that panel for this case. And, whiLiJustice Benavides
was on the panel to hold 2nd Anders counsel in contempt,
she was not on the panel that REMANDED for hearing about
the incomplete record. Moreover, it is unclear what panel,
or single justice, ruled on the numerous motions.
. . ARGUMENT-
GIOBNDTONE: IN AN ANDERS APPEAL, ONCE THE APPELLATE COURT HOLDS
THAT THERE ARE "ARGUABLE ISSUES" IN THE APPEAL,
WHICH IS A DETERMINATION THAT THE APPEAL IS not
WHOLLY FRIVOLOUS, MAY THE APPELLATE COURT SUBSEQUENTLY
DISPOSE OF THE APPEAL BY SUSTAINING A SECOND ANDERS
BREIF THAT DOES NOT DISCUSS THE PREVIOUSLY FOUND
ARGUABLE ISSUES?
This Court has recently "acknowledged 'that there is a need
for uniform procedures for those cases in which an Anders brief
is filed, especially as the Texas Rules of Appellate Procedure
do not provide any explicit guidance.'" See, Kelly v. State,
436 S.W.3d 313, (Tex.Crim. App. 2014) (quoting In re Schutlman),
252 S.W.3d 403, 410 (Tex.Crim.App.2008)). One Anders procedure
this Court has never addressed is whether, after an appellate
court, in response to an Anders brief, holds there are "arguable
issues" in an appeal, may the appellate court subsequently approve
of a second Anders brief filed by newly appointed counsel when
the new Anders brief fails to address the previously found "arguable
issues." Yet, it does appear that at least one court has disapporved
of such a procedure. See, Perryman v. State, 159 S.W.3d 778, 778-
779 (Tex.App. - Waco 2005). In this appeal, the 13th District
Court of Appeals allowed 2nd Anders counsel to withdraw and AFFIRMED
the conviction pursuant to a 2nd Anders brief that did not discuss
the previously found "arguable issues" because, according to
the court of appeal, there were no "reversible errors." COA Op. p 4.
Javier De La Rosa, the Appellant, specifically complained
to the appellate court that 2nd Anders counsel should:have: been
required to file an Appellant's Brief on the Merits. See, COA
Docket (09/12/2014 & 10/06/2014). Primarly, in its January 6, 2014
Order of Abatement, the court of appeals concluded there were
"arguable issues." APPENDIX "B". Thus, under the law of the case
1-
doctrine, the-appellate court could not (lightly) change its - -
prior holding. See, Satterwhite v. State, 858 S.W.2d 412, 430
(Tex.Crim.App.1993)(following law of the case doctrine after
reversal and REMAND from the U.S. Supreme Court). Moreover,
in the Order of Abatement, the court of appeals specifically
ORDERED that newly appointed appellate counsel was to file an
"Appellant's brief on the merits..." APPENDIX "B". That Order
was in complaince with this COurt's prior pronouncements thatfl
the purpose of appointing new appellate counsel, after a prior
Anders brief has been rejected, is so that new counsel can file
a merits brief containing the "arguable issues" pointed out by
the appellate court and any other issues new counsel might find.
See, Schulman, 252 S.W.3d at 409, Stafford v. State, 813 S.W.2d 503,
511 n.32 (Tex.Crim.App.1991). Indeed, an Anders brief is NOT a
brief on the merits, rather it is only a document supporting
a motion to withdraw. See, Schulman, 252 S.W.3d at 410-411.
Thus, the appellate court in this appeal should not have allowed
2nd Anders counsel to file her Anders brief. And, the appellate
court should not have AFFIRMED the conviction without the assistance
of counsel for the indigent Appellant (through the filing of
a brief on the merits).
Along with the denial of several motions about this complaint,
the 13th District Court of Appeals denied the motion to hold
a
2nd Anders in cdxempt for not filing a merits brief in footnote
five of its Opinion. FN This Court should grant review to address
this concern.
W. Mr. De La Rosa did not actually "pray" for the relief of 2nd Anders.
counsel to be held incontempt. Rather, Mr. De La Rosa pointed out -tkie-^o
the court of appeals^hat its prior Orders had ORDERED that a merits brief
be filed, in addition to the other arguments set out herein.
GROUND-TWO:- ONCE AN APPELATE COURT HOLDS A COURT-APPOINTED APPELLATE
ATTORNEY IN CONTEMPT OF COURT FOR HER (NON)ACTIONS
IN A PENDING APPEAL, MUST THAT ATTORNEY BE REMOVED
FROM THAT APPEAL AND SUBSTITUTE COUNSEL APPOINTED
TO REPRESENT THE INDIGENT APPELLANT?
The 13th District Court of Appeals held 2nd Anders counsel
in contempt of court for her actions, or inaction, during the
pendancy of this appeal. Specifically, 2nd Anders counsel was
held in contempt for her failure to comply with the requirments
of Kelly. APPENDIX "C". In that Order of Contempt, the appellate
court discussed 2nd Anders counsel's extensive delay in filing
Appellant's appellate brief. However, the appellate court failed
to discuss 2nd ANders counsel's refusal to communicate with
Mr. De La Rosa. See, COA Docket (03/26/2014, 05/30/2014, & 06/10/2014);
COA Notice (06/13/2014). And, even after being found in contempt
of court, when the court of appeals 0RDERD 2nd Anders counsel
to notify Mr. De La Rosa about the court's Opinion, the appellate
record (docket listing) reveals that 2nd Anders counsel also
refused to comply with Rule 68.4 of the Texas Rules of Appellate
Procedure. Yet, the court of appeals accepted the trial court's
finding that Mr. De La Rosa had "not been denied the effective
assistance of counsel." COA Order 08/11/2014.
Once again, Mr. De La Rosa complained that when 2nd Anders
counsel was held in contempt of court that new counsel should
be appointed. COA Docket 12/23/2014. Indeed, one appellate court
has held that once appelate counsel is held in contempt of court
in a specfic case then new appellate counsel must be appointed.
See, In re Shelnutt, 695 S.W.2d 622, 624 (Tex. App. - Austin 1985).
10. Mr. De La Rosa was able to learn of the Opinion from other sources in
time to request an extension of time from the Court to file his PDR.
Yet, this is a perfect example of why, once counsel has been held in
contempt, it is probable that something is wrong and they will not,
or are unable (becuase of illness), to comply with court Orders (and Rules).
-V
This should- also apply to Anders appeals because, even after
an Anders brief has been filed, counsel contrues to have a duty
to represent (and assist) an appellant. See, Schulman, 252 S.W.2d
11
at 411. When the 13th District Court of Appeals held 2nd Anders
S
counsel in contempt of court, the court Should have required
that new counsel be appointed. Review should be GRANTED to address this
GROUND THREE: IN AN ANDERS APPEAL FROM A CONVICTION WHERE THE
APPELLANT WAS ORIGINALLY CHARGED AS A JUVENILE,
AND WHEN ARTICLE 44.47 (b) OF THE CODE OF CRIMINAL
PROCEDURE REQUIRES JUVENILE COURT WAIVER PROCEEDINGS
TO BE A PART OF THE APPEAL AFTER THE CONVICTION,
MUST THE APPELLATE RECORD EXAMINED BY THE APPELLATE
COURT TO DETERMINE WHETHER THE APPEAL IS WHOOLY
FRIVOLOUS INCLUDE THE RECORD FROM THE JUVENILE
COURT PROCEEDINGS?
The Texas Legislature has provided that when a defendant
is originally charged as a juvenile and the juvenile court waives
jurisdiction, the appeal after the conviction includes any concerns
from the juvenile court proceedings. See, Moon v. State, PD-1215-13,
j^Tex. Crim. App. - December 10, 2014)(citing Tex. Code Crim. Proc,
art. 44.47 (b)). And U.S. Supreme Court has mandated that there
must be meaningful appellate review opportunities for a juvenile
court's decision to waive its exclusive jurisdiction. Id. (following
Kent v. U.S., 383 U.S. 541, 561 (1966)). More specifically,
this Court has held that it will continue to follow Anders v.
California, 386 U.S. 738 (1967) that requires appellate courts
to conduct "a full examination of all proceedings, to decide
whether the case is wholly frivolous." See, Schulman, 252 S.W.3d
at 408-409. Thus, the question of if an appellate court can sustain
an Anders brief in such a case as this appeal, where Mr. De La Rosa
was originally charged as a juvenile and when the appellate court
does not have and has never examined the record from the juvenile
court proceedings.
11. Kelly tends to amplify the need for counsel to continue to provide assistance.
In this Anders appeal,_ no less than six (6) times the-appellate -
court heard from Mr. De La Rosa, acting PRO SE, about the need
to supplement the appellate record with the juvenile court proceedings.
COA Docket (07/05/2013, 08/21/2013, 11/18/2013. 03/26/2014, 06/10/2014,
09/12/2012, and 10/06/2014). And, Mr. De La Rosa explained
that the juvenile court record was needed to demonstrate what
"conduct" was before the juvenile court and that the adult district
court did not have jurisdiction over the Capital Murder indicment.
COA Docket (11/18/2013). Amazingly, in its January 6, 2014 Abatement
Order, the court of appeals recognized that because the juvenile
court record was not in the appellate record that "the completeness
of the appellate record" was an "arguable issue." APPENDIX "B".
Yet, in footnote 5 of its Opinion the court of appeals continued
to refuse to supplement the appellate record with the record
of the juvenile court proceedings.
Multiple appellate courts have held that in an Anders appeal
counsel has a duty to review the record from all the proceedings
below. See, Wilson v. State, 366 S.W.3d 335, 339-340 (Tex.App. -
12
Houston [1st Dist.] 2012)(lisintg cases). It would seem to
follow that the entire record must be made available for the
appellate court to review, if the court is to meet its duty to
examine "all proceedings" prior to determining that and Anders
appeal is wholly frivolous. This court should GRANT review to
determine if "All proceedings" includes juvenile court proceedings
when the Appellant was originally charged as a juvenile.
IT. See also, Davis v. State, 150 S.W.3d 196 (Tex.App. - Corpus Christi
2004), Ortiz v. State, 849 S.W.2d 921, 924 n. 6 (Tex.App. -Corpus Christi
1993), after remand, 885 S.W.2d 271.
s-
GROUND FOUR: IN AN ANDERS APPEAL, WHEN AN APPELLATE COURT REMANDS
THE CASE BACK TO THE TRIAL COURT FOR A HEARING
AND DETERMINATION ABOUT THE COMPLETENESS OF THE
APPELLATE RECORD, MUST THE APPELLANT BE AFFORDED
THE ASSISTANCE OF COUNSEL AT THAT HEARING ABOUT
THE COMPLETENESS OF THE RECORD? [SUPP RR (08/16/2013)]
This Court has held that even after an ANders brief is filed,
court-apointed appellate counsel has a continuing duty to represent
and assist an appellant. See, Schulman, 252 S.W.3d at 411.
Additionally, the right to counsel is such a right that it must
be implemented (when not waived) even without a request from the
criminally accused. See, Williams v. State, 252 S.W.3d 353,
359 n. 40 (Tex.Crim.App.2008), Oliver v. State, 872 S.W.2d 713,
714-715 (Tex.Crim.App.2996). Mr. De La Rosa has never waived
his right to counsel and has a right to counsel in this appeal.
See i.e, Tex. Code Crim. Proc, art. 1.051( ). Yet, upon REMAND,
at the hearing concerning the incomplete record, no counsel was
provided to Mr. De La Rosa. SUPP RR (08/16/2013) PASSIM.
Mr. De La Rosa complained to the court of appeals that counsel
was not provided upon REMAND at the hearing concerning the incomplete
record. COA Docket (11/18/2013). Appellant explained that effective
counsel at the hearing would have made sure that the appellate
record was "completed" with the entire record from the juvenile
court proceedings. The court of appeals disregarded this complaint -•
perhaps hoping that newly appointed counsel would insure the
appeallate record was completed with the juvenile court proceedings.
APPENDIX "B". Yet, it was not to be.
It is well-established that when an appeal is REMANDED for
further consideration, an appellant has a right to the assistance
of counsel to file a supplemental brief. See, Jennings v. State,
890 S.W.2d 809 (Tex.Crim.App.1995); See also, Carmell v. Quarterman
292 Fed. Appx. 317 (5th Cir. 2006)(on remand from Supreme Court).
-4-
This principle should extend to when an appeal is REMANDED to the
trial court for any hearing -- even in an Anders appeal. This
Court should GRANT review to consider this concern.
GROUND FIVE: IN AN ANDERS APPEAL, WHERE ACCORDING TO THE U.S.
SUPREME COURT A FINDING OF "WHOLLY FRIVOLOUS" REQUIRES
LESS MERIT TO AN APPEAL THAN "UNLIKELY TO PREVAIL
ON APPEAL", "NO GRAVE AND PREJUDICAL ERRORS", AND
"THAT THE APPEAL WOULD BE UNSUCCESSFUL", DOES THE
STANDARD USED BY THE 13TH DISTRICT COURT OF APPEALS
OF NO "REVERSIBLE ERROR" CORRECTLY MEASURE WHETHER
THE APPEAL IS "WHOLLY FRIVOLOUS" -- ESPECIALLY
WHEN THE COURT OF APPEM.S PREVIOUSLY HELD THAT
THERE WERE "ARGUABLE ISSUES" PRESENT IN THE APPEAL?
For an indignet appellant to have no right on appeal to
have dt»rt.n this case (and while this appeal was pending_
the U.S. Supr*fte»££burt held that an auotmatic LIFE sentence without
parole was unconsitutional and an illegal Sentence for a juvenile
like Mr. De La Rosa. See, Miller v. Albama, 132 S.Ct. 2155 (2012).15 & 16
It is well-established that the Due Process Clause of the Fifth
and Fourteeth Amendments to the U.S. Constitution requires guilty
pleas to be made intelligently, knowingly, and voluntarily. See,
Boykin v. Alabama, 395 U.S. 238 (1969). Mr De La Rosa's guilty
IT! Ironically, upon the Capital Mur^r indictment, the trial court incorrectly
admonished Mr. De La Rosa that the ra§36of punishment was 5-99 years or
life (which was the range for the lesser included plea bargain).
14. Is there any doubt that trial counsels would have been ineffeetive had they
failed to advise Mr. De La Rosa of the proper range of punishment for Capital
Murder that he was indicted for? See, Padilla v. Kntucky, 176 L.Ed.2d 284
296-297 (2010)("critical obligation of counsel to advise the client of
'the advantage and disadvantages of a plea agreement. )
15. Mr. De la Rosa plead guilty on March 8, 2012 and the Superme Court decided
Miller on June 25, 2012.
-10-
•2) TRIAL COURT HAD NO-JURISDICTION
Of course, Mr. De 1A Rosa should never have been indicted
for Capital mUrder in any event. The Texas Supreme Court has
related that a juvenile court may not make a finding about a
lessserious charge onlHy* to allow an adult district court to
proceed on a more serious charge. See, Matter of R.A.G., 866 S.W.2d
7€V.
199, 200 (.1993). Yet, in this case, the juvenile court only
made a finding o£ probable cause for first degree murder. SUPP
CR (08/16/2013 & 08/20/2013) ##.18 Nevertheless, when Mr. De La Rosa
got to the adult district court, he was indicted for Capital
19 Rr 70
Murder. The trial court had no jurisdiction over the
21
Capital Murder indictment and the proceedings thereunder are VOID.
v
3) INEFFECTIVE ASSISTANCE OF COUNSEL
There is lots of scientific, medical, and psychological
evidence that exisit to demonstrate that the brain of a juvenile
is not fully developed. See, Miller, 132 S.Ct. at , Roper v.
16. This Court of Criminal Appeals has held that Miller applies retroactively.
See, Ex parte Maxwell, 424 S.W.3d 66 (Tex.Crim.App.2014). Thus, it applies
to the past conduct of the guilty plea. .
17. In her Anders brief, 2nd ANders counsel recognized that the purpose of the plea
bargain was for Mr. De La Rosa to avoid the automatic LIFE sentSSce without parole.
18. The juvenile court record would also demonstrate that the evidence (or allegations)
of the capital factors (retalfetion, robbery, and kidnapping) were not before
the juvenile court; thus the idea that the adult district court may indict
for any "conduct" before the juvenile court would not apply here. See,
Livar v. State, 929 S.W.2d 573 (Tex.App. - Fort Worth 1996)(following
Ex parte Alien, 618 S.W.2d 357 (Tex.Crim.App.1981)).
19. Meaning that the juvenile court also never considered the possibabilty of
a sentence of LIFE without parole when it decided to waive jurisdiction.
20. Because the juvenile court did waive jurisdiction over 1st degree murder,
just not Capital Murder, Article 4.18 of the Code of Criminal Procedure,
does not apply to this ground. See, De La Cerda v. State, 325 S.W.3d 367,
379-380 (Tex.Crim.App.2011), Taylor v. State, 332 S.W.3d 483 (Tex.Crim.App.2011).
And, even if an objection was necessary to this jurisdictional error, there
was no straegic reason for trial counsel to fail to object to prevent a
Capital Murder chagre and counsel was ineffective not to object. See also,
Young v. State, 8 S.W.3d 656, 666-667 (Tex.Crim.App.2000)(right to appeal
after open plea of guilty). i,
21. The Judgment for this conviction specifcally records that it is for a
lesser included offense, so that it rests upon the Capital Murder indicment.
- /I-
Simmons, 125 S.Ct. 118-3, 1195 (2005). And, that was Mr.- De-La- Rosa-' s
trial counsel's sole strategy at sentencing: to convince the
Jury that a less harsh punishment was desrved because a juvenile's
brain was not fully developed. 4 RR (08/29/2012) 78. Yet, trial
counsel failed to present to the Jury any scientific, medical,
or psychological evidence to sufcpprt counsel's sole strategy
and counsel was ineffective. See, Ex parte Amezquita, 223 SW.3d
363 (Tex.Crim.App.2006), Ex parte Brigs, 187 S.W.3d 458 (Tex.Crim.
App.2005).22
4) GUILTY PLEA TO JUDGE = NO JURY
Peri-hps, the trial court, rather than a Jury, could have
considered the Supreme Court's opinions that establish that juveniles'
brains are not fully developed. Indeed, Mr. De La Rosa plead
guilty before the trial court alone -- making it a ministrial
duty for the trial court to also assess punishment. See, In re Tharp,
23
393 S.W.3d 751 (Tex.Crim.App.2012) Because this was a mandatory
unitary proceeding, a second finder-of-fact, the Jury, was not
authorized to return a verdict on punishment. Making the 90 year
24
sentence VOID.
With these arguable issues this appeal is not wholly frivolous.
22"! See, Andrews y. State, 159 S.W.3d 98, 102 (Tex.Crim. App. 2005)
(IAC on appeal when no plausible stratgic excuse).
23. This "ministrial duty" is a systemic requirment that is non-waivable
and under Marin v. State, 851 S.W.2d 275, 278 (Tex.Crim.App.1993)
this issue may be raised for the first time on appeal. See,
Stine v. State, 908 S.W.2d 429, 430 (Tex.Crim.App.1995).
24. It is wellknown that a void sentnce may also be raised at anytime.
IV
PRAYER
WHEREFORE, ALL CONSIDERED, JAVIER DE LA ROSA, JR, the Appellant,
acting. PRO SE, PRAYS this Honorable Court GRANT review in this case,
for, one, some, or all of the reasons stated herein, or for any
reason the Court might wish to review on it own motion; AND,
ANY AND ALL OTHER RELIEF THIS COURT CONSIDERES PROPER IN THE
INTEREST OF JUSTICE.
>ectfu¥ly/ Siibmi/t/ted,
/^
^ N 7-
W"
^
"R
De La Rosa, Javier Jr.
Combined Opinion