Norma Jean Sanchez v. State

ACCEPTED
14-14-00780-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
3/19/2015 4:11:33 PM
CHRISTOPHER PRINE
CLERK

NO. 14-14-00780-CR

IN THE FOURTEENTH COURT OF APPEALS OF FILED IN
THE STATE OF TEXAS 14th COURT OF APPEALS
HOUSTON, TEXAS
3/19/2015 4:11:33 PM
CHRISTOPHER A. PRINE
Clerk
NORMA JEAN SANCHEZ
Appellant

v.

THE STATE OF TEXAS
Appellee

On Appeal in Cause Number 1399973
From the 351st District Court of Harris County, Texas
Hon. Mark Kent Ellis, Judge Presiding

BRIEF IN SUPPORT OF MOTION TO WITHDRAW

ORAL ARGUMENT WAIVED ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas

BOB WICOFF
Assistant Public Defender
Bob.Wicoff@pdo.hctx.net
1201 Franklin, 13th floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278

COUNSEL FOR APPELLANT
 IDENTITY OF PARTIES AND COUNSEL

Appellant Norma Jean Sanchez
TDCJ # 01958410
Crain Unit
1401 State School Road
Gatesville, Texas 76599-2999

Presiding Judge Hon. Mark Kent Ellis
351st District Court
Harris County, Texas
1201 Franklin Street
14th floor
Houston, Texas 77002

Trial Prosecutor Kristin Assaad
Assistant District Attorney
Harris County, Texas
1201 Franklin Street
6th floor
Houston, Texas 77002

Defense Counsel at Trial Juan Jose Aguirre
Attorney at Law
1919 N. Loop West
Suite 310
Houston, Texas 77008

Defense Counsel on Appeal Bob Wicoff
Assistant Public Defender
Harris County, Texas
1201 Franklin Street
13th floor
Houston, Texas 77002

i
 Table of Contents

Page

Identity of Parties and Counsel: i

Table of Contents: ii

Index of Authorities: iii-iv

Statement of the Case: v

Issue Presented: v

Court-appointed counsel believes that the appeal in this case is
frivolous, since there are no arguable grounds for appeal from the
appellant’s plea of guilty followed by a pre-sentence investigation

Statement of Facts: 1

Summary of the Argument: 2

Argument: 3

Prayer: 16

Certificate of Service: 17

Certificate of Compliance: 17

ii
 Index of Authorities

Cases Page

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ................. passim

Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005) ...................................................... 5

Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974)....................................................... 4

Garner v. State, 300 S.W.3d 763 (Tex. Crim. App. 2009) ..................................................... 5

Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997) ................................................... 15

High v. State, 573 S.W.3d 807 (Tex. Crim. App. 1978) ......................................................... 4

In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008)..................................................... 3

McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 n.10 (1988) .............................. 3

Mitchell v. State, 193 S.W.3d 153 (Tex.App.-Houston [1st Dist.] 2006, no pet.) ................ 5

Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) … 8

Randon v. State, 178 S.W.3d 95 (Tex. App.-Houston [1st Dist.] 2005, no pet.)…….. 13

Robinson v. State, 844 S.W.2d 925 (Tex. App.-Houston [1st Dist.] 1992, no pet.)….. 11

Smith v. State, 227 S.W.3d 753 (Tex. Crim. App. 2007)...................................................... 14

Sowells v. State, 45 S.W.3d 690 (Tex. App.-Waco 2001, no pet.)……………………. 3

Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991)................................................. 4, 5

Stephens v. State, 35 S.W.3d 770 (Tex. App.-Houston [1st Dist.] 2000, no pet.)............... 15

Wood v. State, 260 S.W.3d 146 (Tex. App.-Houston [1st Dist.] 2008, no pet.) 13

Wiggins v. Smith, 539 U.S. 510 (2003)……………………………………….......... 13

iii
 Index of Authorities (cont'd)

Zuniga v. State, No. 01-11-01124-CR, 2013 WL 485806 12
(Tex. App.-Houston [1st Dist.], Feb. 7, 2013, pet. ref’d)(mem. op., not
designated for publication)

Statutes

TEX. PENAL CODE ANN., sec. 12.42(b) 11
TEX. PENAL CODE ANN., sec. 22.02(a)(2) v, 6
TEX. PENAL CODE ANN., sec. 22.02(b) 11
TEX. PENAL CODE ANN., sec. 22.02(b)(1) 6
TEX. CODE CRIM. PROC. ANN., art. 1.15 12
TEX. CODE CRIM. PROC. ANN., art. 26.13 8-9
TEX. CODE CRIM. PROC. ANN., art. 42.12, sec. 3 7
TEX. CODE CRIM. PROC. ANN., art. 42.12, sec. 4(d)(3) 7
TEX. CODE CRIM. PROC. ANN., art. 42.12, sec. 4(e) 8

iv
 STATEMENT OF THE CASE

The Appellant was indicted for aggravated assault, by causing bodily injury

while using a deadly weapon, the offense alleged to have occurred on or about

September 1, 2013 (C.R. at 23); Tex. Penal Code Ann., sec. 22.02(a)(2). The indictment

contained two enhancement allegations (C.R. at 23). On July 10, 2014, the Appellant

entered an open plea of guilty and the case was reset pending the completion of a

presentence investigation (C.R. at 38). The State abandoned the second enhancement

paragraph and the Appellant pled true to the remaining one, which meant that the

punishment range of a second-degree felony was enhanced once, resulting in the

punishment range for that of a first-degree felony (C.R. at 85). On September 18,

2014, following a sentencing hearing, the trial court sentenced the Appellant to thirty

(30) years in prison for aggravated assault (C.R. at 90). There was a finding of a deadly

weapon (C.R. at 122). There was no motion for new trial.

Issue Presented

Court-appointed counsel believes that the appeal in this case is
frivolous, since there are no arguable grounds for appeal from
the appellant’s plea of guilty followed by a pre-sentence
investigation

v
 STATEMENT OF FACTS

No one testified at the sentencing hearing. The Presentence Report, which was

introduced into evidence by the State without objection (as State’s exhibit 2), contains

the following information, which by is apparently summarized from the police report:

I. PRESENT OFFENSE

A. Police/Court Information

The following is a summarized version of Harris County Sheriff's Office
offense report number 13-121155:

On Sunday, September 1, 2013, Deputies M. Kirksey and D. Garza were
dispatched to 1108 Freeport, in response to a report of an aggravated
assault.

Upon arrival, deputies observed defendant Norma Jean Sanchez exiting
front of business, El Festival Supermarcado. The defendant matched the
description given by the reportee as the person involved in an aggravated
assault in progress call.

The defendant was detained for investigatory reasons and without
incident, the defendant was searched and Delputy Kirksey found a long
kitchen knife in the back of her waist band, inside her jeans. The
defendant was placed in the rear seat of the patrol unit and the
defendant was identified on the scene.

Deputy Kirksey met with witness Loralinda Garcia and Carlos Garcia,
who stated they were heading home from shopping at Wal-Mart and
observed an unknown white female, waving a knife at an unknown
Hispanic male parking lot of the Bi-Rite Supermarket. Witness Loralinda
stated she pulled into the El Festival Supermarcado parking lot and
continued to observe the defendant.

Witnesses observed the defendant standing at the intersection of Renult
and Freeport, blocking traffic. Witness Loralinda stated something was
not right and she immediately called 911 for police assistance. Witness
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 Loralinda stated the defendant left the roadway and walked into the El
Festival Supermarcado. Complainant Leonardo Rico returned to the
scene and Deputy Kirksey observed a red liquid substance on his right
wrist.

Complainant Rico advised he exited the Bi-Rite Supermarket and was
headed to his vehicle and defendant Sanchez was in the parking lot and
asked him for help. He stated he assumed the defendant was in need of
emergency assistance and walked over to her. Complainant Rico walked
over to the defendant and she pulled out a long kitchen knife from her
waist band and attempted to stab him in his abdomen. Complainant
Rico stated he raised his right arm in a reactionary defensive posture and
deflected the long kitchen knife with his wrist. Mr. Rico stated he
became fearful for his life, ran to his truck and departed the scene.

Mr. Rico stated he sustained a cut to his right wrist when he deflected
the long kitchen knife used by the defendant when she attempted to stab
him.

Deputy Kirksey contacted the Harris County District Attorney's Office
and spoke with ADA Paaso and she accepted charges of aggravated
assault on defendant Norma Jean Sanchez (2 R.R.: State’s exhibit 2-PSI
Report).

SUMMARY OF THE ARGUMENT

The undersigned has thoroughly reviewed the record and concluded that there

are no meritorious grounds for appeal from the appellant’s plea of guilty followed by a

pre-sentence investigation. Therefore, the undersigned moves to withdraw from

representing the Appellant and has filed, simultaneously with this brief, a motion to

withdraw.

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 ISSUE PRESENTED

Court-appointed counsel believes that the appeal in this case is
frivolous, since there are no arguable grounds for appeal from
the appellant’s plea of guilty followed by a pre-sentence
investigation
Argument
A. Anders briefs generally

An attorney has an ethical obligation to refuse to prosecute a frivolous appeal.

In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). If an appointed attorney

finds, following a professional, conscientious evaluation of the record, that a case is

wholly frivolous, his obligation to his client is to seek leave to withdraw. Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel’s obligation to

the appellate court is to assure it, through an Anders brief, that such a complete review

of the record has been undertaken and that the request to withdraw is well-founded.

Id.

A wholly frivolous appeal is one that “lacks any basis in law or in fact.” See

McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 n.10 (1988). A reviewing court

must resolve doubtful issues in the appellant’s favor. Id. In the brief which

accompanies his motion to withdraw, counsel must make references to the appellate

record as well as to any applicable statutes, rules, and cases that lead counsel to the

conclusion that the appeal is frivolous. Sowels v. State, 45 S.W.3d 690, 691 (Tex.App.-

Waco 2001, no pet.). The brief must contain references to anything in the record that

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might arguably support the appeal, even though counsel believes that the appeal is

frivolous. Anders v. California, supra; Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App.

1991).

Counsel is not required to make arguments that would not be made on behalf

of a client who has retained counsel for the appeal; counsel is not required to make

arguments for which there is no merit. Currie v. State, 516 S.W.2d 684 (Tex. Crim.

App. 1974). If counsel concludes that there are no arguable grounds for appeal, then

counsel should so state and should make references to the record, statutes, and cases

which support that conclusion. Stafford v. State, supra; High v. State, 573 S.W.2d 807

(Tex. Crim. App. 1978). When discussing the record, counsel must discuss the

evidence introduced at trial and must provide the appellate court “with ready

references to the record.” Stafford v. State, supra at 510 n.3; High v. State, supra.

Conclusory statements in the brief are insufficient. Anders v. California, supra; High v.

State, supra; Currie v. State, supra.

Counsel must furnish a copy of the motion to withdraw and a copy of the brief

to appellant and must advise appellant of his right to review the record and to file a

pro se brief. Counsel must certify or otherwise show the appellate court that appellant

has been furnished with a copy of the motion and brief and that appellant has been

advised of his right to obtain the record and to file a pro se brief.

After appellant has himself raised the points that he wishes to raise, or the time

has passed for him to do so, the appellate court must conduct an independent
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examination of the proceedings and determine whether the appeal is wholly frivolous.

Anders v. California, supra; Mitchell v. State, 193 S.W.3d 153 (Tex.App.-Houston [1st

Dist.] 2006, no pet.). If the court finds that the appeal is wholly frivolous and that

there are no arguable grounds for appeal, it will grant the motion to withdraw and

affirm the judgment of the trial court. Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim.

App. 2009). Although a reviewing court may issue an opinion explaining why the

appeal lacks arguable merit, it is not required to do so. Id., at 767. If the court

determines that there are arguable grounds, it will abate the appeal and remand the

cause to the trial court with instructions that the trial court appoint new and different

counsel to represent appellant on appeal to present those arguable grounds, as well as

any others that new counsel might wish to present. See Bledsoe v. State, 178 S.W.3d 824,

826–27 (Tex. Crim. App. 2005). The appellate court does not make a decision on the

merits of any issue, except to determine whether an appeal is wholly frivolous and that

there either are or are not arguable grounds for appeal. Anders v. California, supra;

Stafford v. State, supra. An appellant may challenge a holding that there are no arguable

grounds for appeal by filing a petition for discretionary review in the Court of

Criminal Appeals. See Bledsoe, supra, at 827-828, fn 6.

B. The appeal in this case is frivolous

The undersigned has evaluated the record from this case with the help of the

useful “Anders Guidelines” posted on the website of the Fourteenth Court of

Appeals. See http://www.14thcoa.courts.state.tx.us/pdf/AndersGuidelines.pdf.
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1. Sufficiency of the indictment or misdemeanor information

The elements of assault under Tex. Penal Code, § 22.01(a)(1) are:

1. A person
2. intentionally, knowingly, or recklessly
3. causes bodily injury to another, including the person’s spouse.

The elements of aggravated assault under Tex. Penal Code, § 22.02(a)(2) are:

1. A person
2. commits assault as defined in Section 22.01, and
3. uses or exhibits a deadly weapon during the commission of the assault.

The indictment in the instant case alleges each element prescribed by the statute (C.R.

at 23). The trial court made a deadly weapon finding (C.R. at 90; 1 R.R. at 10).

There is nothing incorrect about the indictment, or which would suggest that it

should have been challenged in the trial court by counsel. The indictment does

properly allege all of the elements of an aggravated assault with a deadly weapon.

Further, the enhancement allegations are properly pled, alleging two prior aggravated

assault cases.

2. Any adverse pretrial rulings, including but not limited to rulings on
motions to suppress, motions to quash, and motions for speedy trial

The Clerk’s Record contains some boilerplate motions filed by the defense, but

apparently not presented for a ruling by the trial court (Motion to Have Official Court

Reporter Make a Full Record (C.R. at 47); Request for Notice of State’s Intention to

Use Evidence of Extraneous Offenses at Trial (C.R. at 50); Motion to Prevent State

From Reading or Alluding to Nonjurisdictional Enhancement Court at or Before

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Guilt/Innocence Phase (C.R. at 52); Motion in Limine (C.R. at 55); Motion for

Discovery (C.R. at 60); Motion for Discovery of Exculpatory and Mitigating Evidence

(C.R. at 70); Motion for Defendant to Appear in Personal Clothing and Without

Restraints (C.R. at 73); Motion Invoking “The Rule” (C.R. at 76); Motion to Arraign

Defendant Outside the Presence of the Jury (C.R. at 78)). Most of these motions were

obviously relevant to trial, which did not take place. The discovery motions were

rendered moot due to the filing of various notices by the State (C.R. at 27, 28, 29, 31,

33). In any case, it is not apparent that any other motions were advisable. As stated

supra, the indictment contained nothing which suggested a motion to quash, as it

alleged all the requisite elements of the offense.

As to limitations and speedy trial issues, there were none. The offense occurred

on September 1, 2013 (C.R. at 23). The case was indicted on October 25, 2013, about

two months later (C.R. at 23). The Appellant pled guilty on July 10, 2014, after several

resets and a competency evaluation (C.R. at 38). She was sentenced about two months

later, on September 18, 2014 (C.R. at 90). Thus, everything moved at a typical speed

once the Appellant was arrested, and there were certainly no limitations or speedy trial

issues. As for other possible pre-trial motions, the undersigned has detected no other

pre-trial motions that were advisable in this case. Counsel for the Appellant did not

file a Motion for Community Supervision, but in a plea to the trial court, failure to file

such a motion does not preclude the grant of community supervision. Compare Tex.

Code Crim. Proc. Art. 42.12, sec. 3 (“Judge Ordered Community Supervision”)(which
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does not require the filing of a motion to be eligible) with Tex. Code Crim. Proc. Arts.

42.12, sec. 4(d)(3) and 4(e) (“Jury Recommended Community Supervision”)(which

does require, in order to be eligible for community supervision, that the Defendant

first file a sworn motion as to his eligibility). In any case, the Appellant had many

prior convictions and was indicted as an habitual offender, so while theoretically she

was eligible for community supervision, it was an unlikely prospect.

This appears to have been a situation where there was little to work with on

guilt-innocence and the defense strategy was to admit guilt and seek the lightest

punishment by admitting to the offense.

3. Compliance with Texas Code of Criminal Procedure 26.13 and, if
appropriate, Padilla v. Kentucky, 130 S.Ct. 1473 (2010)

In Padilla v. Kentucky, the U.S. Supreme Court held that the Sixth Amendment

requires defense counsel to provide affirmative, competent advice to noncitizen

defendants regarding immigration consequences of guilty pleas and that absence of

such advice may be a basis for a claim of ineffective assistance of counsel. Padilla v.

Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

The pre-sentence investigation report suggests that the Appellant was born in

Houston (2 R.R. at State exhibit 2, page 8). Thus, she enjoys United States citizenship.

Further, at the plea colloquy, the trial court admonished her of the possible

immigration consequences of her guilty plea (C.R. at 84).

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 With respect to Tex. Code Crim. Proc. Ann., article 26.13 (“Plea of Guilty”),

written or oral admonishments were given to the Appellant by the trial court, and her

response, either orally or in writing, indicated her understanding of the following:

a. Range of punishment. Tex. Code Crim. Proc. Ann. 26.13(a)(1). The
Appellant initialed a paragraph admonishing her that the offense she was pleading
guilty to, enhanced by one prior felony conviction, was 5-99 years or life (C.R. at 40-
41). The court orally admonished her of the same, to which she indicated her
understanding (C.R. at 85);

b. Admonishment regarding the fact that any recommendation of
punishment by the prosecutor is not binding on the court, but that if the court
chose to reject the agreement, the defendant could withdraw his guilty plea.
Tex. Code Crim. Proc. Ann. 26.13(a)(2). The plea was entered without any
recommendation of punishment, so such admonishment was irrelevant in this case.

c. Admonishment that if the punishment assessed by the court did not
exceed the punishment recommended by the prosecutor, the trial court must
give its approval before any appeal could be undertaken (except for matters
raised by written motions filed prior to trial). Tex. Code Crim. Proc. Ann.
26.13(a)(3). The plea was entered without any recommendation of punishment, so
such admonishment was irrelevant in this case.

d. Admonishment informing the defendant that if he is not a U.S.
citizen, his plea of guilty or nolo contendre could result in deportation. Tex.
Code Crim. Proc. Ann. 26.13(a)(4). As stated supra, the Appellant was a U.S. citizen. (2
R.R. at State exhibit 2, page 8). Further, at the plea colloquy, the trial court
admonished her of the possible immigration consequences of her guilty plea (C.R. at
84).

e. Admonishment concerning sex offender registration for certain
offenses. Tex. Code Crim. Proc. Ann. 26.13(a)(5). There was no such admonishment,
but aggravated assault does not carry such consequences.

From the above, it is clear that the trial court provided the admonishments

necessary under Tex. Code Crim. Proc. Ann. 26.13(a)(1)-(5), and that the Appellant

indicated that she understood each of them.
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4. Whether the issue of competency was raised prior to sentencing, so as to
warrant any inquiry by the court, and whether appellant was mentally
competent when the court accepted the plea.

The Appellant’s competency was raised in this case. A competency evaluation

was undertaken of the Appellant on October 8, 2013 and a written report was made

part of the record (C.R. at 18-22). The report contains an extensive accounting of the

Appellant’s background, clinical observations by Jon Brown, Psy.D., and a conclusion

that although the Appellant did exhibit a mental illness, it was not the kind of mental

incapacity that rendered her incompetent (C.R. at 22). At the plea colloquy, the trial

court inquired of the Appellant if she had any mental health problems, to which she

responded that she did (C.R. at 83). The trial court then asked the Appellant for her

diagnosis and further inquired of defense counsel if he believed that the Appellant

was competent, to which counsel replied that he believed she was (C.R. at 84).

The Presentence Investigation Report states, under the “health” section:

Mental health: The defendant reported she was diagnosed
in 1999, with manic depression and schizophrenia and
received psychiatric and psychological counseling or
treatment (Unverified).

According to the Harris County Special Needs Response
Form, defendant Sanchez was diagnosed on September 2,
2007, with Axis 1 — Intermittent Explosive Disorder and
Axis 4 — Prob with Interaction with Legal. On May 10,
2011, she was diagnosed with Axis 1 — Schizoaffective
Disorder and Axis 2 —Antisocial Personality D/O. On
September 2, 2013, the defendant was diagnosed with Axis
1 — Bipolar I MRE Mixed, Moderate. (2 R.R. at State’s
exhibit 2, page 10)

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 Despite the compelling mental health issues which clearly plagued the

Appellant, on the issue of competency, an inquiry into her competency was made, an

investigation followed, and the facts surrounding her mental health history were made

known to the sentencing authority, the trial court.

5. Whether the appellant’s plea was freely and voluntarily made.

The written plea papers and the colloquy with the trial court do not reflect any

apparent confusion by the Appellant as to the nature of the proceedings.

6. Any adverse rulings during the sentencing hearing on objections or motions.

Counsel for the Appellant did not object to introduction of the presentence

report (1 R.R. at 4), but there was no obvious reason to. There were no other

objections, either during the guilty plea proceedings or at the sentencing hearing, but

again, there was nothing that suggests an objection was called for.

7. Any failure on the part of appellant’s trial counsel to object to fundamental
error.

It is unclear what “fundamental error” could have existed in this case. The

indictment was correctly pled and the undersigned has certainly not detected any

other errors to which an objection should have been posed.

8. Whether the sentence imposed was within the applicable range of
punishment.

Aggravated assault as it was pled in this case was a second-degree felony,

pursuant to Tex. Penal Code Ann., § 22.02(b). The Appellant pled true to the

previous felony conviction alleged for enhancement, making the punishment range 5-
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99 years and the possibility of a fine not to exceed $10,000.00. See Tex. Penal Code

Ann., § 12.42(b). Therefore, the thirty-year punishment which was assessed was

within the applicable range of punishment.

9. Whether the written judgment accurately reflects the sentence that was
imposed and whether any credit was properly applied.

The written judgment accurately reflects a conviction for “agg assault w/deadly

weapon,” and lists such offense as a second-degree felony (C.R. at 90). This is

accurate. The judgment reflects the 30 year sentence. As to credit for time served, the

judgment reflects that the Appellant was to be credited for the time period of

9/1/2013 until the date of sentencing, 9/18/2014. This is consistent with the

Appellant’s having been arrested on the day of the offense in 2013, and being credited

for all time spent until and including the date of sentencing.

10. Whether there is evidence to support a guilty plea in a felony case.

Article 1.15, Tex. Code Crim. Proc. Ann., provides that the State offer

sufficient proof to support any judgment based upon a guilty plea before the court. It

is unclear whether the plea papers, usually introduced to support the plea, were ever

introduced in this case. However, the PSI, which was admitted as State’s exhibit 2,

contains the Appellant’s version of events, which includes an admission that she stuck

the complainant with a knife. (2 R.R. at State’s exhibit 2 at pages 5-6). Thus, there was

some evidence to support the guilty plea. See Zuniga v. State, No. 01-11-01124-CR,

2013 WL 485806 (Tex. App.-Houston [1st Dist.], Feb. 7, 2013, pet. ref’d)(mem. op.,

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not designated for publication)(where community supervision file was admitted into

evidence without objection, such “other evidence” was enough to support guilty plea).

11. Examination of the record to determine if the appellant was denied effective
assistance of counsel.

There is no suggestion from the record that counsel’s performance was

deficient in a manner that can be raised on direct appeal. No evidence or witnesses

was offered by the defense at punishment. While this does raise the question of

whether counsel undertook the required investigation into possible mitigation of

punishment, the competency evaluation, as well as the Appellant’s own statement in

the P.S.I. report, makes the mitigating facts surrounding her case apparent to the trial

court (2 R.R. at pages 5-6 of P.S.I. report). A failure to uncover and present mitigating

evidence cannot be justified as a tactical decision when defense counsel have “not

‘fulfill[ed] their obligation to conduct a thorough investigation of the defendant’s

background.’ ” Wiggins v. Smith, 539 U.S. 510 (2003)(quoting Williams v. Taylor, 529

U.S. 362 (2000)). However, whether counsel did conduct a thorough investigation in

this case, and whether there was any mitigating evidence to be had beyond what was

presented via the P.S.I and reflected in the competency report is a matter of

conjecture with the record that is available. For example, the absence of any additional

character reference letters in the P.S.I. may be because counsel didn’t seek them, but it

may be because despite asking for them, no one was willing to participate.

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 As has been frequently noted, the record on direct appeal in ineffective

assistance of counsel cases rarely provides the reviewing court an opportunity to

conduct a fair evaluation of the merits. Randon v. State, 178 S.W.3d 95, 102 (Tex. App.-

Houston [1st Dist.] 2005, no pet.). A reviewing court cannot speculate to find trial

counsel ineffective when the record is silent on counsel’s reasoning or strategy. See

Wood v. State, 260 S.W.3d 146, 148 (Tex. App.-Houston [1st Dist.] 2008, no pet.).

Several extraneous offenses committed by the Appellant were included in the

PSI report (2 R.R. at pages 2-4). In terms of taking steps to bar consideration of the

extraneous offense, if indeed there was any way to do so, it should be remembered

that a presentence investigation report does not necessarily have to establish beyond a

reasonable doubt that the defendant is responsible for extraneous misconduct before

a court may consider it in assessing punishment. Smith v. State, 227 S.W.3d 753, 763

(Tex. Crim. App. 2007). In any event, these extraneous offenses were all related to

prior convictions (see C.R. at 31), and they were admissible for consideration at the

punishment stage of the proceedings.

Therefore, there is no meritorious ground to be raised on direct appeal as to

possible ineffective assistance as to the sentencing phase.

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 C. The Appellant has been provided with a copy of the complete appellate
record and a copy of the motion to withdraw

A copy of the entire appellate record (which consists of four volumes of the

Reporter’s Record, as well as one volumes of the Clerk’s Record) has been sent to the

Appellant at his current address, which is:

Norma Jean Sanchez
TDCJ # 01958410
Crain Unit
1401 State School Road
Gatesville, Texas 76599-2999

The undersigned has also sent a letter with the copy of the record, explaining further

the import of this brief and how the Appellant might pursue issues on an 11.07 writ

that cannot be raised on direct appeal. A copy of this brief is also being sent to the

Appellant, as is the attached Motion to Withdraw. See Anders v. California, 386 U.S.

738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967) and Stephens v. State, 35 S.W.3d 770, 771

(Tex. App.-Houston [1st Dist.] 2000, no pet.)(motion to withdraw pursuant to Anders

brief is properly directed to the appellate court, not the trial court).

Should this Court grant the undersigned’s Motion to Withdraw, the

undersigned will inform the Appellant of the result of her appeal and will also inform

the Appellant that she may, on her own, pursue discretionary review in the Court of

Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).

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 PRAYER

For the reasons stated above, the undersigned prays that he be allowed to

withdraw from representing the Appellant in this case, and that the Appellant be

given the opportunity to file her own brief.

Respectfully submitted,

Alexander Bunin
Chief Public Defender
Harris County Texas

/s/Bob Wicoff
Bob Wicoff
Assistant Public Defender
Harris County Texas
1201 Franklin, 13th floor
Houston Texas 77002
(713) 274-6781
TBA No. 21422700

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 CERTIFICATE OF SERVICE

A true and correct copy of the foregoing brief was sent through the efile

system to the Harris County District Attorney’s Office on the 19th of March, 2015.

/s/ Bob Wicoff
Bob Wicoff

CERTIFICATE OF COMPLIANCE

The undersigned certifies that this brief complies with the length requirements

of Tex. R. App. P. 9.4(i). Specifically, the foregoing brief contains a total of 3,874

words, which is the total word count excluding those matters listed in Tex. R. App. P.

9.4(i)(1).

/s/ Bob Wicoff
Bob Wicoff

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