ACCEPTED
06-15-00109-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
9/1/2015 4:04:03 PM
DEBBIE AUTREY
CLERK
No. 06-15-00109-CR
FILED IN
IN The Sixth Court of Appeals
6th COURT OF APPEALS
Texarkana, Texas TEXARKANA, TEXAS
9/1/2015 4:04:03 PM
DEBBIE AUTREY
Clerk
BRIAN LYNN PUCKETT,
Appellant,
V.
THE STATE OF TEXAS,
Appellee.
Appeals from the 124th District Court
Gregg County, Texas
Trial Court No. 44,451-B
ANDERS BRIEF
ATTORNEY FOR APPELLANT:
Jeff T. Jackson
SBOT No. 24069976
736-A Hwy 259 N.
Kilgore, TX 75662
Phone: 903-654-3362
Fax: 817-887-4333
ORAL ARGUMENT NOT REQUESTED
LIST OF PARTIES AND COUNSEL
APPELLANT: BRIAN LYNN PUCKETT
TDCJ No. 02001172
Bradshaw State Jail
P.O. Box 9000
Henderson, TX 75653-9000
Represented at trial by:
Mr. Brandon Winn
SBOT No. 24070866
411 W. Tyler St.
Gilmer, TX 75644
Phone: 903-680-9466
Represented on appeal by:
Jeff T. Jackson
SBOT No. 24069976
736-A Hwy 259 N.
Kilgore, TX 75662
Phone: 903-654-3362
Fax: 817-887-4333
APPELLEE: State of Texas
Represented at trial by:
Mr. V. Christopher Botto
SBOT No. 24064926
101 E. Methvin, Ste. 333
Longview, TX 75601
Phone: 903-236-8440
Represented on appeal by:
Van Colson Brown
Gregg County District Attorney
SBOT No. 03205900
101 E. Methvin, Ste. 333
Longview, TX 75601
Phone: 903-236-8440
i
TABLE OF CONTENTS
List of Parties and Counsel...........................i
Table of Contents....................................ii
Index of Authorities................................iii
Statement of the Case.................................v
Issues Presented.....................................vi
Statement of Facts....................................1
Summary of the Arguments..............................3
Argument..............................................5
I. APPELLANT’S PLEA OF GUILTY COMPLIED WITH THE
REQUIREMENTS OF ARTICLE 26.13 OF THE TEXAS
CODE OF CRIMINAL PROCEDURE.................5
II. NO OBJECTION TO THE EVIDENCE WAS MADE DURING
THE PUNISHMENT STAGE OF TRIAL AND NO
MERITORIOUS LEGAL CLAIM EXISTS RELATED TO THE
IMPOSITION OF PUNISHMENT...............8
III. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IS
NOT A VIABLE CLAIM BASED ON THE RECORD BEFORE
THIS COURT.........................10
Statement of Attorney to the Court...................13
Conclusion and Prayer................................14
Certificate of Compliance............................15
Certificate of Service...............................16
ii
INDEX OF AUTHORITIES
Case Law:
Anders v. California,
386 U.S. 738, 744, (1967) . . . . . . . . . . .2, 9
Brady v. United States,
397 U.S. 742, 749, (1970). . . . . . . . . . . . .5
Crawford v. State,
890 S.W.2d 542, 544 (Tex.Crim.App.1985). . . . . 5
Currie v. State,
516 S.W.2d 684 (Tex.Cr.App.1974). . . . . . . . . 9
Fuentes v. State,
688 S.W.2d 542, 544 (Tex.Crim.App 1985). . . . . .5
Hernandez v. State,
726 S.W.2d 53, 57 (Tex.Crim.App.1986). . . . . . .7
Jack v. State,
871 S.W.2d 741 (Tex.Cr.App.1974) . . . . . . . . .3
Jackson v. State,
877 S.W.2d 768, 771 (Tex.Crim.App.1994) . . . .7, 8
Jeffery v. State,
903 S.W. 776 (Tex.App.-Dallas 1995). . . . . . 3, 9
Strickland v. Washington,
466 U.S. 668 (1984). . . . . . . . . . . . . . 7, 8
Thompson v. State,
9 S.W.3d 808, 812 (Tex.Crim.App.1999). . . . . 7, 8
United States v. Johnson,
527 F.2d 1328, 1329 (5th Cir. 1976). . . . . . . .2
iii
Statutes:
Tex. Code Crim. Proc. Art. 26.13 . . . . . . . .2, 4, 5
iv
STATEMENT OF THE CASE
Appellant was indicted for possession of controlled
substance in penalty group one, namely methamphetamine,
in an amount less than one gram, a state jail felony, by
formal charging instrument filed on December 18th, 2014.
CR p. 3. Appellant elected to enter an open plea to the
court on May 28th, 2015. RR1 p. 5-13. After taking
evidence related to punishment, the Trial Court sentenced
Appellant in open court to eighteen (18) months
incarceration in the State Jail Division of the Texas
Department of Criminal Justice. CR p. 25-26; RR1 p. 30.
Appellant perfected this appeal by timely filing a Notice
of Appeal, dated June 11, 2015. CR p. 29.
v
ISSUES PRESENTED
I. Whether Appellant’s plea of guilty complied with the
requirements of Article 26.13 of the Texas Code of
Criminal Procedure?
II. Whether an objection was made to the evidence or
exhibits during the punishment stage of trial?
III. Whether ineffective assistance of trial counsel is a
viable claim based upon the record before this Court?
vi
TO THE HONORABLE SIXTH COURT OF APPEALS:
Comes now Jeff T. Jackson, attorney for BRIAN LYNN
PUCKETT, Appellant in the above styled and numbered
causes, and respectfully submits this Anders Brief and
would show the Court the following:
STATEMENT OF THE FACTS
In a single count indictment, Appellant was charged
with possession of a controlled substance in penalty
group 1 in an amount punishable as a state jail felony.
CR p. 3. Brandon Winn represented Appellant in the trial
court, and on May 18, 2015, Appellant entered a plea of
“guilty” to the charged offense. RR1 p. 6. A punishment
trial was heard by the trial court wherein evidence was
presented by both the Appellant and the
NOTE:
The record is referred to as:
“CR”: clerk’s record in Cause No.44451-B.
“RR1,2”: reporter’s record, volume number in Cause No.44451-B.
1
State. RR1 pp. 10-32. Appellant was sentenced by the
trial court to eighteen months in the state jail division
of TDCJ. RR1 p. 30.
2
SUMMARY OF THE ARGUMENTS
Under Anders v. California, 386 U.S. 738, 744,
(1967), a court-appointed attorney may not raise an issue
in an appeal if he makes a conscientious examination of
the case and finds the appeal is wholly frivolous. To
comply with Anders, counsel must isolate “possibly
important issues” and “furnish the court with references
to the record and legal authorities to aid it in its
appellate function.” United States v. Johnson, 527 F.2d
1328, 1329 (5th Cir. 1976). After the appellant is given
an opportunity to respond, the court makes a full
examination of the record to detect whether the case is
frivolous. Anders, 386 U.S. at 744. Appellant‘s counsel
has reviewed the Clerk‘s Record and Reporter‘s Record
from the Trial Court, the sentence received by Appellant
and the factual basis for the sentence. As set forth in
the Brief, there are no non-frivolous issues.
The record reveals that the trial court substantially
complied with Article 26.13 of the Texas Code of Criminal
Procedure when accepting Appellant’s plea. RR1 pp. 5-
3
10. No objection was made by Appellant to any of the
evidence, exhibits or the sentencing of Appellant by the
trial court. RR1 pp. 5-30. There are no jurisdictional
defects. There are no non-jurisdictional defects arising
at or after entry of the plea. See Jack v. State, 871
S.W.2d 741 (Tex.Cr.App.1974). Counsel has also filed
with this Court a Motion to Withdraw as Court Appointed
Counsel on Appeal with supporting exhibits in accordance
with the procedures and standards set out in Jeffery v.
State, 903 S.W. 776 (Tex.App.-Dallas 1995, no pet.).
4
ARGUMENTS AND AUTHORITIES
I.
APPELLANT’S PLEA OF GUILTY COMPLIED WITH THE
REQUIREMENTS OF ARTICLE 26.13 OF THE TEXAS CODE
OF CRIMINAL PROCEDURE.
Appellant’s counsel has reviewed the record in detail
and has identified no action or inaction on the trial
court’s part that suggests harmful error in the
Defendant’s pleading guilty to the charges.
Before accepting a guilty plea, the trial court must
admonish a defendant of: (1) the punishment range, (2)
the fact that the State’s sentencing recommendation is
not binding on the court, (3) the limited right to appeal
and (4) the possibility of deportation. Tex. Code Crim.
Proc. art. 26.13(a). The admonishments may be made
either orally or in writing. Id at 26.13(d).
At Appellant’s original pleas, the court admonished
Appellant on the proper range for the possession of a
controlled substance charge. RR1 p. 6; CR p.9. The
5
court substantially complied with the requirements of the
statute in accepting Appellant’s guilty plea as evidenced
by the written plea admonishments and verbal
admonishments by the trial judge. RR1 pp. 5-10; CR pp.
9-10.
To be constitutionally valid, a guilty plea must be
knowing and voluntary. See Brady v. United States, 397
U.S. 742, 749, (1970); see also Tex. Code Crim. Proc.
Ann. art. 26.13(b). When the record shows that the trial
court admonished the defendant in substantial compliance
with Article 26.13 of the Code of Criminal Procedure,
this is a prima facie showing that the plea was knowing
and voluntary. See Tex.Code Crim. Proc Ann. art.
26.13(C); See Crawford v. State, 890 S.W.2d 542, 544
(Tex.Crim.App.1985). There is nothing in the record to
indicate Appellant pleaded guilty and true without
understanding the consequences of his plea, and as a
result, Appellant suffered no harm. See Fuentes v.
State, 688 S.W.2d 542, 544 (Tex.Crim.App 1985). The
trial court accepted Appellant’s original plea of guilty
6
and punishment was assessed. RR pp. 6-10, 32-34. The
voluntariness of Appellant’s pleas is shown by the
record. RR p. 5-9.
7
II.
NO OBJECTION TO EVIDENCE OR EXHIBITS WAS MADE
DURING THE PUNISHMENT STAGE OF TRIAL AND NO
MERITORIOUS LEGAL CLAIM EXISTS RELATED TO THE
IMPOSITION OF PUNISHMENT.
On the 28th day of May, 2015, Appellant’s plea of
guilty was accepted by the trial court. RR1 pp. 5-10.
On the same day, the punishment phase of Appellant’s
trial began. RR1 p.10. No evidence was presented by the
state other than cross-examination of the Defendant and
a defense witness. RR1 pp. 21-30. Appellant called the
Defendant and one other witness, RR pp. 10, 17, and both
sides made a closing argument. RR1 pp. 30-32. Appellant
made no objection to evidence or exhibits offered by the
state, and the trial judge sentenced Appellant to
eighteen (18) months to serve in the state jail division
of TDCJ. RR p. 32.
The trial court was the fact finder for purposes of
the punishment decision. The evidence before the court
8
was substantial. The judge‘s remarks following the close
of evidence indicate the circumstances taken in
consideration related to the sentence assessed in open
court. RR1 pp. 32-34.
9
III.
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IS NOT
A VIABLE CLAIM BASED UPON THE RECORD BEFORE THIS
COURT
Claims of ineffective assistance of counsel are
analyzed under the two-prong test set out by the United
States Supreme Court in Strickland v. Washington, 466
U.S. 668 (1984), and adopted by Texas in Hernandez v.
State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986). Appellant
must show that trial counsel's performance was deficient,
that is, counsel's representation fell below an objective
standard of reasonableness. Thompson v. State, 9 S.W.3d
808, 812 (Tex.Crim.App.1999).
Appellant must also show that counsel's deficient
performance prejudiced his defense. Strickland, 466 U.S.
at 687; Jackson v. State, 877 S.W.2d 768, 771
(Tex.Crim.App.1994). This requires Appellant show there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
10
have been different. Strickland, 466 U.S. at 694;
Jackson, 877 S.W.2d at 771. A reasonable probability is
a probability sufficient to undermine confidence in the
outcome. Strickland, 466 U.S. at 694; Jackson, 877
S.W.2d at 771.
In reviewing an ineffective assistance of counsel
claim, there is a strong presumption that counsel‘s
conduct falls within the wide range of reasonable
professional assistance and the appellant must overcome
the presumption that the challenged conduct might be
considered sound trial strategy. Thompson, 9 S.W.3d at
813; Strickland, 466 U.S. at 689. Any allegation of
ineffectiveness must be firmly founded and affirmatively
demonstrated in the record to overcome this presumption.
Thompson, 9 S.W.3d at 813; see Jackson, 877 S.W.2d at
771. It is the Appellant‘s burden to prove ineffective
assistance of counsel by a preponderance of the evidence.
Id.
At the guilt phase of her trial wherein she entered
a plea of “guilty,” Appellant was informed by the trial
11
court of his right to plead “not guilty” and have the
case tried before a jury. RR1 pp. 6-7. At no point
during any of the proceedings in this cause did Appellant
assert to the trial court that he was unhappy with the
performance and representation of his trial counsel, Mr.
Winn. Appellant pleaded guilty freely and voluntarily
after being properly admonished of the punishment range,
RR1 pp. 5-10. Based on this record, no legitimate non-
frivolous basis exists to argue trial counsel was
constitutionally ineffective.
12
STATEMENT OF ATTORNEY TO THE COURT
This brief is filed by counsel appointed by the court
to represent Appellant on appeal in accordance with
Anders v. California, 386 U.S. 738 (1967), and Currie v.
State, 516 S.W.2d 684 (Tex.Cr.App.1974). Counsel has
also filed with this Court a Motion to Withdraw as Court
Appointed Counsel on Appeal in accordance with the
procedures as standards set out in Jeffery v. State, 903
S.W.2d 776 (Tex.App.-Dallas 1995, no pet.). After
thorough examination of the clerk’s record and reporter’s
record, counsel can find no point of error that can be
supported by the record. Counsel has discussed the
evidence and the documents in the record, citing
references to the records.
13
PRAYER
Wherefore, premises considered, the undersigned
counsel requests the Court of Appeals review the record
on appeal, consider the Motion to Withdraw as Court
Appointed Counsel with supporting affidavit, review the
foregoing Brief in Support of Motion to Withdraw, and
grant the Motion to Withdraw.
Respectfully submitted,
/s/ Jeff T. Jackson
Jeff T. Jackson
SBOT No. 24069976
736-A Hwy 259 N.
Kilgore, TX 75662
Phone: 903-654-3362
Fax: 817-887-4333
Email: jefftjacksonlaw@gmail.com
Attorney for Appellant,
BRIAN LYNN PUCKETT
14
CERTIFICATE OF COMPLIANCE
The foregoing Appellant’s Brief is in compliance with
TEX. R. APP. P. 9.4(i)(2)(B). The total number of words
contained in Appellant’s Brief that are not specifically
excluded from the word count under TEX. R. APP. P. 9.4
(i)(1) is 1,465 words.
/s/ Jeff T. Jackson
Jeff T. Jackson
SBOT No. 24069976
Attorney for Appellant,
BRIAN LYNN PUCKETT
15
CERTIFICATE OF SERVICE
I, the undersigned attorney, do hereby certify that
a true and correct copy of the above Motion was served
on the State of Texas by mailing same to the District
Attorney of Gregg County on September 2nd, 2015.
I further certify that I have mailed a copy of the
above Brief and accompanying motion by First Class Mail,
postage paid, to Appellant, BRIAN LYNN PUCKETT, TDCJ No.
02001172, at the address listed above on the same date.
/s/ Jeff T. Jackson
Jeff T. Jackson
16