ACCEPTED
04-15-00358-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
11/18/2015 7:34:34 PM
KEITH HOTTLE
CLERK
Court of Appeals Nos. 04-15-00358-CR & 04-15-00359-CR
Trial Court Cause Nos. B09-09 & B08-578
FILED IN
4th COURT OF APPEALS
IN THE FOURTH SUPREME JUDICIAL DISTRICT
SAN ANTONIO, TEXAS
11/18/15 7:34:34 PM
COURT OF APPEALS KEITH E. HOTTLE
Clerk
SAN ANTONIO, TEXAS
_______________________
MARGARET JANE GRIFFITH
v.
THE STATE OF TEXAS
_______________________
APPEALED FROM THE 198TH JUDICIAL DISTRICT COURT,
KERR COUNTY, TEXAS
Honorable Rex Emerson, Presiding
_____________________________________________________________
APPELLANT’S BRIEF
_____________________________________________________________
M. Patrick Maguire
State Bar No. 24002515
M. Patrick Maguire, P.C.
mpmlaw@ktc.com
945 Barnett Street
Kerrville, Texas 78028
Telephone (830) 895-2590
Facsimile (830) 895-2594
ATTORNEY FOR APPELLANT,
MARGARET JANE GRIFFITH
TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL 2
INDEX OF AUTHORITIES 4
STATEMENT OF THE CASE 5
ISSUES PRESENTED 6
SUMMARY OF THE ARGUMENTS 7
CERTIFICATE OF COMPLIANCE WITH TRAP 9.4 8
STATEMENT OF FACTS 9
ARGUMENTS & AUTHORITIES 11
ISSUE 1: Undersigned counsel files this “Anders” Brief after a thorough
review of the appellate record in these cases and no meritorious issues were
found to bring forward for review. 11
PRAYER FOR RELIEF 15
CERTIFICATE OF SERVICE 16
1
Court of Appeals Nos. 04-15-00358-CR & 04-15-00359-CR
Trial Court Cause Nos. B09-09 & B08-578
IN THE FOURTH SUPREME JUDICIAL DISTRICT
COURT OF APPEALS
SAN ANTONIO, TEXAS
_______________________
MARGARET JANE GRIFFITH
v.
THE STATE OF TEXAS
_____________________________________________________________
IDENTITY OF PARTIES & COUNSEL
_____________________________________________________________
Appellant certifies that the following is a complete list of the parties,
attorneys, and any other person who has any interest in the outcome of
this appeal:
Appellant: Margaret Jane Griffith
Appellee: The State of Texas
Attorney for Appellant: M. Patrick Maguire
M. Patrick Maguire, P.C.
945 Barnett Street
Kerrville, Texas 78028
Attorney for Appellee: Hon. Scott Monroe
198th Judicial District Attorney
400 Clearwater Paseo, Suite 500
Kerrville, Texas 78028
2
Trial Judge: Hon. Rex Emerson
198th Judicial District Judge
700 Main Street
Kerrville, Texas 78028
3
INDEX OF AUTHORITIES
CASES
Anders v. California, 386 U.S. 738 (1967) 11
Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997) 13
Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993) 12
Kelly v. State, 436 S.W.3d 212 (Tex. Crim. App. 2014) 11
McMahon v. State, 529 S.W.2d 771 (Tex. Crim. App. 1975) 11
Moses v. State, 590 S.W.2d 469 (Tex. Crim. App. 1979) 12
Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006) 12
Sears v. State, 91 S.W.3d 451
(Tex. App.—Beaumont 2002, no pet.) 14
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) 11
Villescas v. State, 189 S.W.3d 290 (Tex. Crim. App. 2006) 14
STATUTES
Tex. Code Crim. Proc. art. 42.12 §5(b) 12
4
STATEMENT OF THE CASE
Appellant, Margaret Jane Griffith, is appealing the trial court’s
decision to adjudicate Appellant’s deferred adjudication probation in the
above-referenced causes after Appellant pled “true” to allegations contained
in the State’s motions to proceed.
5
APPELLANT'S ISSUES PRESENTED FOR REVIEW
I. Undersigned counsel files this “Anders” Brief after a thorough
review of the appellate record in these cases and no meritorious
issues were found to being forward for review.
** For purposes of reference in the Appellant’s Brief the following will
be the style used in referring to the record:
1. Reference to any portion of the Court Reporter’s Statement
of Facts will be denoted as “(RR____, ____),” representing
volume and page number, respectively.
2. The Transcript containing the District Clerk’s recorded
documents will be denoted as “(CR___, ___).”
6
SUMMARY OF THE ARGUMENTS
After a thorough review of both the Clerk’s Record and the Reporter’s
Record no meritorious issues were found to bring forward for review.
7
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
I certify that this brief contains 2,007 words (counting all parts of the
document and relying upon the word count feature in the software used to
draft this brief). The body text is in 14 point font and the footnote text is in
12 point font.
/s/ M. Patrick Maguire
M. Patrick Maguire,
Attorney for Appellant
8
STATEMENT OF FACTS
On November 2, 2009, Appellant was placed on ten years deferred
adjudication in Cause No. B08-578 for the second degree felony offense of
Possession of a Controlled Substance. CR 1, 12. On that same date,
Appellant was also placed on ten years deferred adjudication in Cause No.
B09-09 for the first degree felony offense of Possession of a Controlled
Substance. CR 1, 12. On October 11, 2012, the State filed Motions to
Proceed in each of Appellant’s cases seeking to adjudicate Appellant guilty
of the underlying offenses and sentence Appellant to a term of confinement
in the Texas Department of Criminal Justice – Institutional Division. CR 1,
16.
On April 20, 2015, the trial court held a hearing on the State’s
Motions to Proceed. RR 1, 1. Appellant entered a plea of “true” to all of the
allegations contained in the Motions to Proceed. RR 1, 6-7. The State then
presented evidence that Appellant was previously convicted of four separate
felony offenses prior to committing the offenses that were before the trial
court. RR 1, 11-12. The evidence of the prior felony offenses was
introduced without objection by Appellant. RR 1, 12. The State then rested.
Appellant testified on her own behalf. RR 1, 13. Appellant also
called an acquaintance, Ted Stokely, to testify. RR 1, 22.
9
The trial court found the allegations contained in the State’s Motion to
Proceed true, adjudicated Appellant guilty of the underlying offenses and
sentenced Appellant to 15 years imprisonment in Cause No. B08-578 and 40
years imprisonment in Cause No. B09-09. RR 1, 30-32.
10
ARGUMENTS & AUTHORITIES
I.
Undersigned counsel files this “Anders” Brief after a thorough review of
both the Clerk’s Record and the Reporter’s Record in these cases and no
meritorious issues were found to bring forward for review.
A. Standard of Review
If, after a thorough review of the record and careful investigation,
appellate counsel concludes that an appeal is frivolous and without merit,
counsel may submit a brief which presents a professional evaluation
showing why there is no basis to advance an appeal. See Anders v.
California, 386 U.S. 738, 744 (1967); See Stafford v. State, 813 S.W.2d 503,
509-10, 510 n.3 (Tex. Crim. App. 1991). Appellate counsel should also
inform the appellant that he has a right to file a pro se appellate brief and
review the record. See McMahon v. State, 529 S.W.2d 771, 771 (Tex. Crim.
App. 1975). Finally, appellate counsel must take steps to ensure that the
appellant has access to the appellate record to exercise his right to file a pro
se brief, if appellant desires. Kelly v. State, 436 S.W.3d 212 (Tex. Crim.
App. 2014).
B. Analysis
Undersigned counsel for Appellant has conducted a thorough review
of the clerk’s record and reporter’s record and has determined that
Appellant’s appeal is frivolous and without merit.
11
Sufficiency of the Evidence
Undersigned counsel first reviewed the sufficiency of the evidence to
support the trial court’s judgment adjudicating Appellant’s deferred
adjudication probation and supporting the sentencing range. An appeal from
a trial court’s order adjudicating guilt is reviewed in the same manner as a
revocation hearing. Tex. Code Crim. Proc. art 42.12 §5(b). When
reviewing an order revoking community supervision imposed, the sole
question before the appellate court is whether the trial court abused its
discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).
In a revocation proceeding, the State must prove by a preponderance of the
evidence that the probationer violated a condition of community supervision
as alleged in the motion. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim.
App. 1993). A plea of “true” standing alone is sufficient to support a trial
court’s revocation order. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim.
App. 1979). The record shows that Appellant pled “true” to all allegations
contained in the State’s Motions to Adjudicate. RR 1, 6-7. Therefore, there
is sufficient evidence supporting the trial court’s judgment adjudicating
Appellant guilty of the underlying offenses.
The next issue reviewed was the appropriateness of the sentences
assessed. The State introduced, without objection, judgments of conviction
12
establishing that Appellant had been convicted at least twice prior to the
commission of the underlying offenses before the trial court. RR 1, 11-12.
The sentences assessed are within the punishment ranges for the offenses
charged and the sequencing of these convictions appears to be in order.
Therefore, there does not appear to be error in the trial court’s action in this
regard.
Enhancement Notice
The record does not contain any notice that the State was going to use
particular convictions that were used for enhancement purposes. Although
the clerk’s record reflects that the State filed a notice to use the convictions
for extraneous offense purposes, there was nothing filed by the State to
indicate that the State was using these convictions for enhancement
purposes. Additionally, there were no enhancement paragraphs included in
the original indictments or in the original plea paperwork executed by
Appellant when she originally entered her guilty pleas. CR 1, 7-15.
Because the issue of enhancement is delayed until punishment, it is
not mandatory that enhancement allegations appear in the indictment or
information but it is necessary to provide reasonable notice of the State’s
intent to enhance. Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App.
1997). In other words, prior convictions used for enhancement must be pled
13
in some form, it is just not necessary to plead them in the indictment. Id.
The exact time period for the required notice has not been specified,
although at least one court of appeals has suggested that 10 days’ notice is
appropriate because this time period is considered sufficient in a number of
other circumstances. Sears v. State, 91 S.W.3d 451, 453-54 (Tex. App.—
Beaumont 2002, no pet.).
The “extraneous offense” notice filed by the State does not constitute
proper notice of intent to enhance Appellant’s punishment using these
convictions. Sears, 91 S.W.3d at 453-54. An error in this regard is of
constitutional dimension. Villescas v. State, 189 S.W.3d 290, 294 (Tex.
Crim. App. 2006). In order to raise this issue on appeal, the issue must be
properly preserved by Appellant. Sears, 91 S.W.3d at 453. (appellant timely
lodged objection to untimely notice); Villescas, 189 S.W.3d at 294 (noting
U.S. Supreme Court’s rejection of due process claims when defendant failed
to raise any matters in defense or to obtain a continuance to investigate the
existence of any possible defense).
In this case, Appellant’s trial counsel did not raise any objections or
seek a continuance based upon the lack of notice.1 Therefore, this issue does
not appear to be cognizable on appeal.
1
Because the record is silent as to trial counsel’s reasons for not objecting, the record in this appeal is
insufficient to develop a claim for ineffective assistance of counsel.
14
After reviewing the entire record in this case, undersigned counsel has
found no meritorious issues to bring forward for review. By copy of this
brief, undersigned counsel is advising Appellant that he has the right to
review the record and to file a pro se brief. Additionally, Appellant certifies
that he has forwarded copies of the clerk’s record and reporter’s record to
Appellant.
After reviewing the entire record in this case, undersigned counsel has
found no meritorious issues to bring forward for review. By copy of this
brief, undersigned counsel is advising Appellant that he has the right to
review the record and to file a pro se brief. Additionally, Appellant certifies
that he has forwarded copies of the clerk’s record and reporter’s record to
Appellant.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
prays that this Honorable Court permit undersigned counsel to withdraw
from further representation of Appellant in this case and permit Appellant
the necessary time to review the record and file a pro se brief.
15
Respectfully submitted,
M. PATRICK MAGUIRE, P.C.
/s/ M. Patrick Maguire
M. Patrick Maguire
State Bar No. 24002515
945 Barnett Street
Kerrville, Texas 78028
Telephone (830) 895-2590
Facsimile (830) 895-2594
ATTORNEY FOR APPELLANT,
MARGARET JANE GRIFFITH
CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct copy of
Appellant's Brief to counsel for the State, Hon. Scott Monroe, via electronic
transmission at scottm@198da.com, and whose address is 400 Clearwater
Paseo, Suite 500, Kerrville, on this the 18th day of November, 2015.
/s/ M. Patrick Maguire
M. Patrick Maguire
16