ACCEPTED
12-15-00009-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/11/2015 5:05:04 PM
Pam Estes
CLERK
ORAL ARGUMENT NOT REQUESTED
NO. 12-15-00009-CR FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE COURT OF APPEALS 9/11/2015 5:05:04 PM
12TH JUDICIAL DISTRICT PAM ESTES
Clerk
TYLER, TEXAS
JOE PITTMAN,
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE
ON APPEAL IN CAUSE NUMBER 114-1053-14
FROM THE 114TH JUDICIAL DISTRICT COURT
OF SMITH COUNTY, TEXAS
HONORABLE CHRISTI KENNEDY, JUDGE PRESIDING
APPELLANT’S BRIEF
JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
APPELLANT:
Joe Pittman
APPELLANT’S TRIAL COUNSEL:
LaJuanda Lacy
2419 Cecil Avenue
Tyler, Texas 75702
903-592-8335
APPELLANT’S APPELLATE COUNSEL
James Huggler
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 (fax)
APPELLEE
The State of Texas
APPELLEE’S TRIAL COUNSEL
Jacob Putman
Lucas Machicek
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720
903-590-1719 (fax)
APPELLEE’S APPELLATE COUNSEL
Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720
903-590-1719 (fax)
ii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
PROFESSIONAL EVALUATION OF THE RECORD. . . . . . . . . . . . . . . 6
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
iii
TABLE OF AUTHORITIES
CONST.
TEX. CONST. art. V, § 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2013). . . . . . . . . . . . . . . . 6
TEX. PENAL CODE ANN. § 12.33 (West 2013).. . . . . . . . . . . . . . . . . . . . . . 7
TEX. PENAL CODE ANN. § 22.02 (West 2013).. . . . . . . . . . . . . . . . . . . . 1, 2
CASES
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
18 L. Ed. 2d 493 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Bray v. State, 179 S.W.3d 725 (Tex. App.– Fort Worth 2005, no pet.). . 7
Duron v. State, 956 S.W.2d 547 (Tex. Crim. App. 1997). . . . . . . . . . . . . 6
Mays v. State, 904 S.W.2d 920 (Tex. App. – Fort Worth 1995, no pet.). 6
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).. . . . . . . . . . 10
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).. . . . . . . . . . 10
RULES
Tex. R. App. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5
iv
NO. 12-15-00009-CR
JOE PITTMAN, ,§ IN THE COURT OF APPEALS
APPELLANT §
§
VS. § 12TH JUDICIAL DISTRICT
§
THE STATE OF TEXAS, §
APPELLEE § TYLER, TEXAS
APPELLANT’S BRIEF
TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:
Comes now Joe Pittman (“Appellant”), by and through his attorney
of record, James Huggler, and pursuant to the provisions of TEX. R. APP.
PROC. 38, et seq., respectfully submits this brief on appeal.
STATEMENT OF THE CASE
Appellant was charged by felony indictment in Smith County cause
number 114-1053-14 with the felony offense of aggravated arrest. TEX.
1
PENAL CODE ANN. §22.02 (West 2013). I CR 41. Following evidence and
argument, a jury found Mr. Pittman guilty of the offense. I CR 81, VIII RR
225.2 The jury then heard evidence and argument during the punishment
phase and assessed a fifteen year sentence. I CR 91, IX RR 40-41.
Timely notice of appeal was filed on January 14, 2015. I CR 108. This
brief is timely filed on or before September 11, 2015.
ISSUES PRESENTED
None
STATEMENT OF THE FACTS
Appellant was charged by felony indictment in Smith County cause
number 114-1053-14 and charged with the felony offense of aggravated
assault. TEX. PENAL CODE ANN. §22.02(a)(2) and 22.01 (a)(2) (West 2013);
I CR 4. Appellant entered a plea of not guilty and had a jury trial. VIII
1
References to the Clerk’s Record are made using “CR” with a roman numeral preceding “CR”
designating the correct volume and an arabic numeral following specifying the correct page.
2
References to the Reporter’s Record are made using “RR” with a roman numeral preceding
designating the volume and an arabic numeral following designating the correct page.
2
RR 11-12. The indictment alleged that Mr. Pittman committed an
aggravated assault against Nancy Tito on July 13, 2014 by striking her
with his hand and kicking her with his foot while using or exhibiting a
deadly weapon. I CR 4. It also alleged that he threatened Ms. Tito with
imminent bodily injury by pointing a firearm at her. I CR 4. To prove the
case, the State called four witnesses. The complainant testified, as did her
neighbor who had called for assistance and two of the responding
deputies.
Mr. William Yard testified that he was Ms. Tito’s neighbor in a rural
area of Smith County. VIII RR 123-24. He heard something that night
that woke him, he went to investigate outside and heard someone yelling
for help. VIII RR 126-27. He got a flashlight, went closer and recognized
Ms. Tito as the person calling for help. VIII RR 127. He saw what
appeared to be blood on her and was told “He’s got my stuff. He’s got a
gun.” VIII RR 129. He saw Mr. Pittman “waving” a gun around and kick
Ms. Tito hard several times. VIII RR 129, 132-33, 143, 146.
Two witnesses were law enforcement officers who responded to the
scene. Deputy Jose Terrazas and Justin Stockwell testified regarding the
3
events of that morning. VIII RR 23, 152. Upon approach to Ms. Tito’s
house, Terrazas was able to see her in the doorway and was able to have
her crawl to him. VIII RR 31-32. He also observed the injuries on Ms.
Tito. VIII RR 36. He was able to identify Ms. Tito as the complainant and
Mr. Pittman as the defendant. VIII RR 32, 40. Deputy Stockwell testifed
similarly, but after Mr. Pittman was taken into custody, he found the
firearm used. VIII RR 156, 157, 158.
Ms. Tito testified that she previously had a relationship with Mr.
Pittman. VIII RR 30. On that night, he came to her home in the middle
of the night. VIII RR 30, 61. She described him as being high on drugs.
VIII RR 63. A further discussion of that testimony is included below. She
testified that Mr. Pittman gave her a black eye, pointed the gun at her
and said that he was going to kill her, kicked her, and kicked her with the
gun in his hand. VIII RR 65, 66, 70-71, 107, 120.
Following all the evidence and argument of counsel, the jury found
Mr. Pittman guilty as charged in the indictment. VIII RR 225. Following
evidence and argument in the punishment phase of trial, the jury assessed
a fifteen year sentence with no fine. IX RR 40-41. Mr. Pittman was
4
sentenced by the court formally the following day. X RR 5-6. This appeal
follows.
SUMMARY OF ARGUMENT
Counsel has reviewed the record and has concluded that, in his
professional opinion, the record contains no reversible error or
jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.
1396, 1400, 18 L. Ed. 2d 493 (1967). Thus, counsel must move for leave
to withdraw from the case.
ARGUMENT
There is no argument to present to this Court; however, Counsel has
included this section to strictly comply with Texas Rule of Appellate
Procedure 38. Counsel has reviewed the record and has concluded that,
in his professional opinion, the record contains no reversible error or
jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.
1396, 1400, 18 L. Ed. 2d 493 (1967). Therefore, counsel is including the
following explanatory section.
5
PROFESSIONAL EVALUATION OF THE RECORD
When counsel contends that there are no arguable grounds for
reversal on appeal, counsel is required to present a professional
evaluation of the record supporting this assertion. See Mays v. State, 904
S.W.2d 920, 922-23 (Tex. App. – Fort Worth 1995, no pet.)
The indictment conferred jurisdiction on the trial court and provided
Appellant with sufficient notice of the charged offense. See TEX. CONST.
art. V, § 12; Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App.
1997). The trial court has jurisdiction over the case. See TEX. CODE
CRIM. PROC. ANN. Art. 4.05 (West 2013) (stating that district courts shall
have original jurisdiction in felony criminal cases).
The evidence admitted supports the finding of guilt in this case.
Given the testimony of Ms. Tito, Mr. Yard and Deputies Terrazas and
Stockwell, raising a claim that the evidence was legally insufficient would
be frivolous.
Appellant's attorney confirmed that he was satisfied that Appellant
was competent and the State offered no evidence regarding competency.
I RR 16.
6
Counsel has found no error occurring in the final hearing and
assessment of punishment. At the sentencing hearing, the trial court
sentenced Appellant to fifteen years confinement in accord with the jury
decision. X RR 5-6; IX RR 40-41; I CR 91. The sentence assessed by the
trial court is within the punishment range provided for by law. See TEX.
PENAL CODE ANN. § 12.33 (West 2013).
Moreover, the judgment does not contain any improper assessment
of fees. See Bray v. State, 179 S.W.3d 725 (Tex. App.--Fort Worth 2005, no
pet.). The bill of costs prepared appears to be accurate. I CR 119, 103-
104.
Counsel is concerned about two specific areas, but after review finds
that they would be frivolous if raised .
The first area relates to evidence placed before the jury regarding
Mr. Pittman’s use of drugs, prior to and that evening, his desire to use
drugs with Ms. Tito and her opinion that he was under the influence of
narcotics that evening. VIII RR 63-64, 94-97. However, this evidence was
admitted without objection. Additionally, the court included a jury
instruction regarding extraneous offenses. I CR 75-76. Raising this issue
7
would be frivolous.
The second area of concern regards the request by defense counsel
during the trial regarding the necessity for a competency evaluation. VIII
RR 91-92. This arose following statements made by Mr. Pittman outside
the presence of the jury regarding his expressions during the testimony
of Ms. Tito. VIII RR 87, 88-90. The court sought assistance from Dr. Paul
Andrews who is a forensic psychologist qualified to perform a competency
examination under Texas law. Dr. Andrews was able to examine Mr.
Pittman during the trial, the evening of the request. IX RR 4. Dr.
Andrews determined that Mr. Pittman was competent. IX RR 4. The trial
court also proposed not having a formal sentencing of Mr. Pittman until
Dr. Andrews final report was prepared. IX RR 4. This was unobjected to
by either side. IX RR 4-5. Both parties received that report prior to
sentencing, did not object and the court sentenced Mr. Pittman in
accordance with the jury verdict. X RR 4-5. If the final determination had
been that Mr. Pittman was not competent, obviously there would be issues
to raise. The only questionable issue was that the court proceeded while
there was an issue as to competency with the trial including whether or
not Mr. Pittman should testify. VIII RR 175. Trial counsel is experienced
8
enough if she had a doubt as to his competence beyond what was
expressed she would have argued that issue. XIII RR 175. Because the
evaluation concluded that Mr. Pittman was competent, raising this issue
would be frivolous.
Because the sentence was within the range of punishment for a
second degree felony, there was no reversible error during the punishment
phase.
Finally, the undersigned has reviewed the record and found no
arguable ground for ineffective assistance of counsel. Counsel is strongly
presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. Strickland
v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674
(1984).
In the present case, trial counsel sought and used an investigator to
prepare, effectively cross-examined witnesses and argued effectively. She
was able to obtain an offer from the State for a five year sentence,
communicated the offer to Mr. Pittman who rejected the offer. IC RR 38.
The State sought a twenty year sentence from the jury. IX RR 17, 30, 36-
9
37. Mr. Pittman received a fifteen year sentence. Considering the totality
of the representation of Appellant's trial counsel, the record contains
nothing that would indicate that counsel's performance was deficient. See
id. at 687, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999).
CONCLUSION
Since counsel is unable to raise any arguable issues for appeal, he
is required to move for leave to withdraw. See Stafford v. State, 813
S.W.2d 503 (Tex. Crim. App. 1991).
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Counsel respectfully
prays that this Court permit him to withdraw after this Court’s own
examination of the record in this cause and to afford Appellant his right
to file any pro se brief that he may wish to file.
10
Respectfully submitted,
/s/ James Huggler
James W. Huggler, Jr.
State Bar Number 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 fax
ATTORNEY FOR APPELLANT
11
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Brief of the Appellant has been
forwarded to counsel for the State by electronic filing on this the 4th day
of September, 2015. And by regular mail to Mr. McLemore at the address
below.
Attorney for the State:
Mr. Mike West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
Mr. Joe Pittman
TDCJ #01977406
Bartlett Unit
1018 Arnold Drive
Bartlett, Texas 75611
CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 2,253 words as counted by
Corel WordPerfect version x6.
/s/ James Huggler
James W. Huggler, Jr.
12