Darrian Dewayne Johnson, Jr. v. State

ACCEPTED 12-15-00100-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 8/5/2015 2:48:44 PM CATHY LUSK CLERK NO. 12-15-00100CR JOHNSON, DARRIAN § FILED IN IN THE COURT OF APPEALS 12th COURT OF APPEALS DEWAYNE, JR. TYLER, TEXAS § 8/5/2015 2:48:44 PM vs. § 12 TH JUDICIAL DISTRICT CATHY S. LUSK Clerk § STATE OF TEXAS § STATE OF TEXAS MOTION TO W ITHDRAW AS APPELLATE COUNSEL (ANDERS BRIEF) TO THE HONORA BLE JUSTICES OF SAID COURT: Comes now Movant, Forrest K. Phifer, Ap pellate Counsel for Darrian DeWa yne Johnson, Jr., Appellant herein, and files this his Motion to Withdraw pursuant to requirements of an Anders Brief and in accordance with Tex. R. App. P. 6.5. Accompanying this motion, the undersigned has filed an Anders Brief. Accordingly, the undersigned respectfully requests that he be allowed to withdraw from further representation in this matter. In accordance with TRAP 6.5, the undersigned certifies: 1. There are no current deadlines in this case as ide from the filing of Appellant’s Brief and this motion. 2. Appellant’s name and last known add ress are: Darrian DeWayne Johns on, Jr. TDCJ # 01987904 SID # 08052716 TDC J,ID Brads haw U nit Henderson, Texas 75653-9000 903/655-0 880 (voice) 3. As noted in the below Certificate of Service, this motion has been delivered to Appellant both by Certif ied M ail, Return Receipt Requested and by First Class U.S. Mail, Address Correction Requested. 4. Appellant is hereby notified of his right to object in writing. 5. Appellant has a right to obtain a copy of the record from the undersigned for the preparation of a pro se brief. Accordingly, Appellate Counsel has provided Appellant a “USB Flash Drive” containing downloaded true and correct copies of: 1) the Clerk’s Record; 2) the Court Reporter’s Record; and 3) Ap pellate correspondences as an enclosure w ith a copy of the Anders Brief and the instant Motion to Withdraw in the correspondence sent via Certified Mail, Return Receip t Requested. (The d ocuments referenced were provided to Appellant Counsel in electronic form and therefor, an electronic copy of same were copied to the drive for Appellant’s convenienc e.) Also included within that same correspondence was a proposed , unsigned request for an extension of time to file Appellant’s brief, for Appellant’s review and consideration in the event Appellant desired to respond and file his own brief. See attached exhibit “A.” WHEREFORE, PRE MISES C ONSIDE RED , Movant respectf ully requests that his Motion to W ithdraw be GRAN TED, that he be relieved from further representation of Appellant in this matter, and for such further and other relief, whether at law or in equity, to which he has shown himself justly entitled. Respectfully submitted, Forrest k. Phifer Forrest k. Phifer P.O. Box 829 Rusk, Texas 75785-0829 BY: /S/ Forrest K. Phifer (903) 721-1842 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing instrument has been forwarded by electronic filing to the Cherokee County District Attorney’s Office in accordance with TRAP 9.5(b)(1) on August 5, 2015. Furthermore, a true and correct copy of the foregoing instrument has been forwarded by both Certified Mail, Return Receipt Requested, and via First Class, U.S. Mail, Address Correction Requested, to: Darrian DeWayne Johns on, Jr. TDCJ # 01987904 SID # 08052716 TDC J,ID Brads haw U nit P.O. Box 9000 Henderson, Texas 75653-9000 on the sa me date. (See attached exhib it “B”.) BY: /S/ Forrest K. Phifer EXHIBIT “A” NO. 12-15-00100CR JOHNSON, DARRIAN § IN THE COURT OF APPEALS DEWAYNE, JR. § vs. § 12 TH JUDICIAL DISTRICT § STATE OF TEXAS § STATE OF TEXAS 1 ST PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF TO THE HONORA BLE JUSTICES OF SAID COURT: COMES NOW the Ap pellant in the above styled and numbered cause, and files this his 1st Pre Se Motion for Extension of time to File Appellant Brief and in support thereof would show this court the following: 1. This case is on appeal from the 2 nd Judicial District Court of Cherokee County, Texas. 2. The case below was styled State of Texas vs. Darrian Dewayne Johnson, Jr. and was numbered 1 9099. Ap pellant waived indictment, entered a plea of Guilty and received 4 years Deferred Adjud ication on January 16, 2014. 3 On July 9, 2014, a Motion to Adjudicate was filed to which Defendant pled NOT TRUE to allegations alleged in paragraphs ## 11, 12, 13, 14, 22, 24, 29 and 30 of the Motion to Ad judicate and the State abandoned paragraph 15. To the remaining allegations, Defendant pled TRUE. Hearing was held before the Court on the Motion to Adjudicate for the underlying charge of Aband on/Endanger of Child-Criminal N eglect. Upon hearing thereof on January 8, 2015, the Court found the presented allegations in the Motion to Adjudicate to be True and sentenced the Defendant to confinement in the Texas Department of Criminal Justice, State Jail Division for a term of two (2) years with costs and 1 50 da ys jail credit, to run consecutively with the companion case # 18851. 4. Notice of Appeal was filed pro se on January 20, 2015. 5. Both the Clerk’s Record and the Rep orter’s Records have been previously filed with the C ourt. 6. Appellant’s trial counsel withdrew on January 15, 201 5. Although Appellate Counsel was appointe d on February 12, 2015, the order was not filed until March 17, 2015 and notic e was not forwarded until March 18, 2015. Appellate Counsel has filed an Anders Brief and an accompanying Motion to Withdraw and notified A ppellate of this action. Because of the above, Appellant has not been able to properly research and prepare a b rief on behalf of A ppellant. 7. Appellant requests that an extension of a minimum of 30 days, or such additional time as the Court may deem appropriate, be granted for the filing of Appellant’s response to this action and brief. 8. This request is not sought merely for delay, but rather that justice may be had. This delay will not occasion any undue delay in the progression of this case. WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Court GRANT this request and extend the date for filing of Appellant’s brief. Respectfully submitted, TDCJ # 01987904 Darrian DeWayne Johns on, Jr. SID # 08052716 TDC J, ID Brads haw U nit P.O. Box 9000 Henderson, Texas 75653-9000 903-655 -0880 (voice) By: Darrian DeWayne Johns on, Jr. CERTIFICATE OF CONFERENCE By the signature above, I hereby certify that I have NOT conferenced w ith the prosecutor in this case regarding the merits of this request. By: Darrian DeWayne Johns on, Jr. CERTIFICATE OF SERVICE This is to certify that on_________ ______ ______ , a true and correct copy o f the above and foregoing document was served on the District Attorney's Office, Cherokee County, 13 5 S. Main, Rusk, Texas 75785, by U .S. mail delivery. By: Darrian DeWayne Johns on, Jr. EXHIBIT “B” Law Office of Forrest K. Phifer P.O. Box 829 Rusk, Texas 75785-0829 August 5, 2015 “Attorney-C lient Corres pondence; Pr ivileged C ommunication” Darrian DeWayne Jo hnson, Jr. SID # 08052716 TDCJ # 01987904 TDCJ, ID Brads haw U nit P.O.Box 9000 Henderson, Texas 75653-9000 Re: Darrian DeWayne Johnson, Jr. vs. State of Texas Trial Case # 19099; In The 2nd District Court of Cherokee County, Texas Appellate Case # 12-15-00100-CR; In The 12th District Court of Appeals of Texas , sitting in Tyler, TX Dear M r. Johnson: As you are aware, I w as appointed to represent you in the ab ove referenced ap pellate matter by Judge Bascom Bentley. You have been c onvicted of the criminal offense of “Endangerment of a Child.” After a thorough review of the Clerk’s R ecord and the Court Repo rter’s Record, I have be en unable to find any legal or factual non-frivolous ground reas onably calculated to return a judgment of modification or reversal. Accordingly, I must file a motion to withdraw as your a ttorney. You have the right to object and file a respons e to my motion. A copy of my motion , along with the Anders brief in support thereof is included herein for your review and consideration. I have asked the court to allow you time to file a response and a brief, if you so desire. It is very important that you maintain adherence to the court’s deadlines. The next few paragraphs will present a basic outline of the procedural steps and considerations that are a part of a criminal appeal post appellate decision. Please bear in mind that I am authorized only to represent you on the appeal of this current case to the initial Court of Appeals and NOT to the Court of Criminal Appeals in Austin, Texas. Motion for Rehearing: Once the Court of Appeals has made its decision, the losing party (either you or the State) has an opportunity to file a petition asking the court to reconsider their decision. The petition must be filed within 15 days after the issua nce of the decision. Generally speaking, a motion for rehearing should be filed only if you believe that the court mistakenly interpreted the facts or the law. Even if I do not file a request for rehearing, you have the right to do so on your own behalf, if you so desire. If the court gra nts a rehearing, it has the authority to issue a new op inion reaching a different result. Further Proceeding: If the Court of Appeals does not grant relief in your case, affirms the conviction, or otherwise issues a n opinion with which you disagree, you may have a further appeal of your case by filing a Petition for Discretionary Review in the Texas Court of Criminal Appeals. This petition must be filed within 30 days after the issua nce of the Court of App eals’ opinion (or within 30 da ys after the Court of Appeals denies a motion for rehearing, if one is filed). I have not been appointed to represent you o n an appeal to the Court of Criminal Appeals or the U.S. Supreme Court. THEREFORE , IF YOU WISH TO CON TINUE THE APPEAL, YOU WILL NEED TO FILE A PETITION FOR DISCRETIONARY REVIEW. You w ill need to file the petition and a ll copies of the petition with the Court of Appeals. The Appellate Court with jurisdiction for your case. The address for the Court of Appeals handling this particular case is as follows: 12th Court of Appe als 1517 W. Front Street #354 Tyler, Texas 75702 (903) 593-8471 (Fax) 593-2193 The address for the Court of Criminal Appeals is as follows: Texas Court of Criminal Appea ls P.O. Box 12308 Capitol Station Austin, Texas 78711 (512) 463-1551. You may also request the Court of Criminal Appea ls to extend the time to file a petition, but only if you request it within fifteen (15) days after the d ate the court issues an opinion on the request for rehearing. A Petition for Discretionary Review must be as brief as possible. It must be addressed to the “Court of Criminal Appeals of Texas” and must state your name as the party applying for review. It must also contain the following: 1. A “Table of Contents” with references to the pages of the petition and must indicate the subject matter of each ground or question presented for review. 2. An “Index of Authorities” arranged alphabetically and indicating the pages of the petition where the authorities are cited. 3. A “Stateme nt Regarding Oral A rgument” explaining why oral arguments would be helpful or that such arguments are waived. 4. A “Statement of the Case” briefly describing the nature of the case. 5. A “Statement of the Procedural History” providing: a. the date any opinion of the Court of Appe als was issued; b. The date of the filing of the motion for rehearing; and, c. The date the motion for rehearing was denied. 6. The “Grounds for Review” for which you are requesting re view, separately numbered. 7. The “Reasons for Review” providing a concise and direct argument, with supporting authorities, as to why the court should review your case. 8. A “Prayer for Relief” clearly stating what relief you are seeking; and, 9. An “Append ix” containing a copy of the opinion of the Court of Appeals. 10. A “Certification pursuant to TRAP 9.4" wherein you advise the C ourt how many word s are in yo ur brief. The petition must be no longer than fifteen (15) pages, exclusive of the Table of Contents, Index of Authorities, Statement Regarding Oral Arguments, Statement of the Case, Statements of Procedural History and the Appe ndix. The State has the right to petition for review if the Court of Appeals grants the relief you request. IF THIS OCCUR S, YOU M AY BE ELIGIBLE FO RELEASE ON BAIL WHILE THE STATE SEEKS DISCRETIONARY REV IEW. The amount of bail is determined by the Court of Criminal Appe als upon your filing a motion requesting same. Potential Adverse C onsequences of a Reversal: Although the Court of Appeals affirms far more cases that ir reverses, I feel it is important that you understand the appellate process and its possible effect on you. If the punishment in your case was assessed by a jury and your case is remanded for a new trial, you may be found guilty a second time. At the new trial, a second jury may give you any sentence it deems appropriate, within the range allowed by law, i.e., the same se ntence as w as granted originally, a sentence less than before, or one greater than before. If your case is remanded and you choose to have a judge assess punishment, you may be assessed a greater punishment in the event the court is made aware of new testimony or evidence not presented at the first trial which warrants a longer sentence, or if you have engaged in some action after the first trial that might be used to justify a longer sentence. Of course, the judge is also permitted to assessed a sentence le ss than at the firs t trial. Termination of Authority: As stated earlier, I am not authorized to represent you on any other matter. I represent you only on the initial preparation and appeal in this matter, and my authority to do so terminates upon the entry and acceptance of a judgment issued b y the court. Also, my app ointment to represent you on the current appeal does not include an appointment to pursue a Petition for Discretionary R eview; howe ver, if the Court of Criminal Appeals grants your petition, the Trial Court must appoint an attorney to represent you in further proceedings. I have als o enclo sed w ithin the po sting forw arded to you via Certified Mail, Return Receipt Requested, a USB Flash Drive w herein is downloade d the Clerk’s Record and the Court R eporter’s R ecord, along with the appellate correspondence for your review. Thank you for your kind understanding of the above. I wish that the circumstances could have been different. Nevertheless, I do wish you well in your future. Sincerely, Forrest K. Phifer Attorney at Law FKP/cmp