Ronny Lee Williams v. State

ACCEPTED
12-15-00140-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/16/2015 11:57:47 AM
Pam Estes
CLERK

NOS. 12-15-00139-CR
and 12-15-00140-CR
FILED IN
IN THE 12th COURT OF APPEALS
TYLER, TEXAS
11/16/2015 11:57:47 AM
TWELFTH COURT OF APPEALS PAM ESTES
Clerk
SITTING AT TYLER, TEXAS

___________________________

RONNY LEE WILLIAMS,
Appellant,

v.

THE STATE OF TEXAS,
Appellee.

___________________________

Appealed from the 145TH District Court of
Nacogdoches County, Texas
Trial Court No. F1320424 and F1521685

ANDERS BRIEF

Noel D. Cooper
Texas Bar No. 00796397
LAW OFFICES OF NOEL D. COOPER
117 North St., Suite 2
Nacogdoches, Texas 75961
Telephone: (936) 564-9000
Telecopier: (936) 715-6022
noelcooper@noelcooper.com
ATTORNEY FOR APPELLANT,
RONNY LEE WILLIAMS
 NOS. 12-15-00139-CR
and 12-15-00140-CR

RONNY LEE WILLIAMS,
Appellant,

v.

THE STATE OF TEXAS,
Appellee.

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

lawsuit:

Noel D. Cooper
Texas Bar No. 00796397
LAW OFFICES OF NOEL D. COOPER
117 North St., Suite 2
Nacogdoches, Texas 75961
Telephone: (936) 564-9000
Telecopier: (936) 715-6022
ATTORNEY FOR APPELLANT,
RONNY LEE WILLIAMS

Nicole LoStracco
State Bar No. 00792906
Nacogdoches County District Attorney
101 W. Main, Suite 250
Nacogdoches, Texas 75961
Telephone: (936) 560-7766
Fax: (936) 560-6036
Email:nlostracco@co.nacogdoches.tx.us
ATTORNEY FOR APPELLEE

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RONNY LEE WILLIAMS
TDCJ-ID # 02001514
Stiles Unit
3060 FM 3514
Beaumont, TX 77705
APPELLANT

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 TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL .......................................................... 2
TABLE OF CONTENTS ................................................................................. 4
INDEX OF AUTHORITIES ........................................................................... 5
STATEMENT OF THE CASE ........................................................................ 9
ISSUES PRESENTED ................................................................................. 10
STATEMENT OF FACTS ............................................................................. 10
SUMMARY OF THE ARGUMENT.............................................................. 20
ARGUMENT AND AUTHORITIES..............................................................21
Standard for Anders Brief ...................................................................21
Potential Issue 1: Was the evidence is legally sufficient to
support Appellant’s convictions? ........................... 25

Potential Issue 2: Was Appellant’s trial counsel ineffective in
his representation of the Appellant?...................... 30

CONCLUSION ............................................................................................. 40
PRAYER .......................................................................................................41
CERTIFICATE OF COMPLIANCE .............................................................. 42
CERTIFICATE OF SERVICE....................................................................... 43

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 INDEX OF AUTHORITIES

Case Law

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967) ................................................................................ 20, 21, 40, 41

Barnes v. State, 876 S.W.2d 316
(Tex. Crim. App. 1994) ....................................................................... 27

Brooks v. State, 323 S.W.3d, 893
(Tex. Crim. App. 2010) ...................................................................... 27

Bryson v. State, 820 S.W.2d 197
(Tex. App.—Corpus Christi 1991, no pet) ........................................... 24

Clewis v. State, 922 S.W.2d 126
(Tex. Crim. App. 1996) ................................................................. 25, 28

Conner v. State, 67 S.W.3d 192
(Tex. Crim. App. 2001) ...................................................................... 27

Davis v. State, 930 S.W.2d 765
(Tex. App.—Houston [1st Dist.], pet. ref’d.).................................. 25, 32

Espinosa v. State, 853 S.W.2d 36
(Tex. Crim. App. 1993) ....................................................................... 22

Ex Parte Briggs, 187 S.W.3d 458
(Tex. Crim. App. 2005) ...................................................................... 33

Ex Parte Gonzales, 204 S.W.3d 391
(Tex. Crim. App. 2006) ...................................................................... 34

Freeman v. State, 167 S.W.3d 114
(Tex. App.—Waco 2005, no pet.) ....................................................... 34

Gainous v. State, 436 S.W.2d 137
(Tex. Crim. App. 1969) ........................................................................41

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Gollihar v. State, 46 S.W.3d 243
(Tex. Crim. App. 2001) ...................................................................... 27

Hernandez. v. State, 726 S.W.2d 53
(Tex. Crim. App. 1986) ........................................................................31

Hernandez v. State, 988 S.W.2d 770
(Tex. Crim. App. 1999) ....................................................................... 30

High v. State, 573 S.W.2d 807
(Tex. Crim. App. 1978) ..................................................... 20, 33, 40, 41

Ieppert v. State, 908 S.W.2d 217
(Tex. Crim. App. 1995) ....................................................................... 22

Jackson v. State, 877 S.W.2d 768
(Tex. Crim. App. 1994) ................................................................. 26, 32

Jackson v. State, 989 S.W.2d 842
(Tex. App.—Texarkana 1999, no pet.) ................................................ 37

Jackson v. Virginia, 443 U.S. 307, 319
(1979) ................................................................................................. 26

Johnson v. United States, 360 F.2d 844
(D.C. Cir. 1966) .................................................................................. 40

King v. State, 29 S.W.3d 556
(Tex. Crim. App. 2000) ...................................................................... 26

Krumboltz v. State, 945 S.W.2d 176
(Tex. App.—San Antonio 1997, no pet.) ............................................. 38

Malik v. State, 953 S.W.2d 234
(Tex. Crim. App. 1997) ....................................................................... 27

McFarland v. State, 928 S.W.2d 482
(Tex. Crim. App. 1996) ........................................................... 25, 32, 33

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Mercado v. State, 718 S.W.2d 291
(Tex. Crim. App. 2006) ...................................................................... 36

Milburn v. State, 15 S.W.3d 267
(Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) ............................ 34

Mitchell v. State, 68 S.W.3d 640
(Tex. Crim. App. 2002) ...................................................................... 39

Peck v. State, 923 S.W.2d 839
(Tex. App.—Tyler 1996, no pet.) ........................................................ 22

Penagraph v. State, 623 S.W.2d 341
(Tex. Crim. App. 1981) ....................................................................... 27

Rivera v. State, 123 S.W.3d 21
(Tex. App.—Houston [1st Dist] 2003, pet. ref’d) ................................ 34

Robertson v. State, 187 S.W.3d 475
(Tex. Crim. App. 2006) ...................................................................... 33

Sanchez v. State, 222 S.W.3d 85
(Tex. Crim. App. 2006) .......................................................................31

Stone v. State, 823 S.W.2d 375
(Tex. App.—Austin 1992, pet. ref’d, untimely)................................... 28

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984) .......................................................................... 25, 30, 31, 32, 39

Thompson v. State, 9 S.W.3d 808
(Tex. Crim. App. 1999) ....................................................................... 33

White v. State, 671 S.W.2d 40
(Tex. Crim. App. 1984) ....................................................................... 29

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Statutes

TEX. HEALTH & SAFETY CODE
§ 481.102 ............................................................................................ 29
§ 481.115 ............................................................................................. 29

TEX. PENAL CODE
§ 22.01 ................................................................................................ 29
§ 29.02 ............................................................................................... 28
§ 29.03 ............................................................................................... 28
§ 30.02 ............................................................................................... 28

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 NOS. 12-15-00139-CR
and 12-15-00140-CR

RONNY LEE WILLIAMS,
Appellant,

v.

THE STATE OF TEXAS,
Appellee.

ANDERS BRIEF

COMES NOW, Noel D. Cooper, court-appointed counsel for

Appellant, RONNY LEE WILLIAMS, in the above numbered cause, and

files this “Anders Brief” and would show this Honorable Court as follows:

STATEMENT OF THE CASE

Nature of the Case. Appellant was charged by two indictments and

was tried on four felonies: aggravated robbery, burglary of a habitation,

assault on a public servant, and possession of a controlled substance. The

case was filed in the 145TH District Court under Cause Numbers F1320424

and F1521685.

Course of Proceedings. On May 1, 2013, a jury was selected, and

evidence was opened on May 18, 2015, and closed on May 19, 2013.

Arguments were heard on May 19, 2015, and the punishment phase took

place that day.

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 Trial Court Disposition. The jury found Appellant guilty of all four

counts. Appellant was sentenced to 20 years for possession of controlled

substance, 70 years for aggravated robbery, ten (10) years for the assault on

a public servant, and eight (8) years for the burglary of a habitation.

ISSUES PRESENTED

Potential Issue 1: Was the evidence is legally sufficient to support

Appellant’s?

Potential Issue 2: Was Appellant’s trial counsel was ineffective in his

representation of the Appellant during the jury trial?

STATEMENT OF FACTS

Prior to opening the evidence, Appellant was sworn in and the plea

bargain offer was placed on the record, and Appellant insisted that he

wanted a jury trial. RR 3:7-8.1 The Rule was invoked. RR 3:9. Appellant

pleaded “not guilty” to the charges read to the jury in the indictments. RR

3:14-15. Appellant’s trial counsel waived making an opening statement

prior to the State’s case-in-chief. RR 3:22.

1Because the two Reporter’s Records are identical, references to the trial transcript are
designated “RR” for each case.

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 Guilt-Innocence Phase

Keith Hawkins

The State’s first witness was Keith Hawkins, an officer with the

Nacogdoches Police Department (“NPD”). RR 3:22-23. Mr. Hawkins

testified that it was the policy of NPD to take all persons on whom a TASER

had been used to the hospital so medical personnel can remove the TASER

barbs and inspect the small wounds. RR 3:32. On September 11, 2013, Mr.

Hawkins was working as a police sergeant for NPD. RR 3:35. A call came in

for a burglary/robbery, and he was the first officer on the scene. RR 3:36-

37. When he arrived, two men, Mr. Flanagan and Mr. Goad, were there and

Mr. Flanagan kept saying “I almost had him.” RR 3:37. The scene of the

alleged crime was the residence of Eugene Morgan. RR 3:39. When got out

of the unit, Mr. Flanagan and Mr. Goad informed him that their employer

had been attacked and gave him a description of the assailant. RR 3:40. Mr.

Hawkins checked on the injured person, Mr. Bright, who had a laceration

on his face. RR 3:40. Appellant was described as a black male with no shirt

and white shorts. RR 3:40. Mr. Hawkins believed that the Appellant had

left his shirt at the scene of the crime. RR 3:42. He also discovered shoes at

the scene, and Appellant was not wearing shoes when he was found. RR

3:42-43.

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 After securing the scene, a suspect was located across the street from

the scene of the crime. RR 3:45. The suspect was hiding in a child’s

playhouse, trying to conceal himself. RR 3:45. When he arrived at the

location, Appellant was on the top level of the playhouse. RR 3:47. Mr.

Hawkins, along with two other officers, Keith Finchum and Nick Stewart,

attempted to take Appellant into custody, but he was swinging and kicking

at them. RR 3:48. Mr. Hawkins noticed that Appellant was wearing dark

Under Armour-type shorts, and there was a white pair of shorts on the

ground next to the playset. RR 3:50-51. Appellant was saying that he was

the Lord and then that he was the Devil. RR 3:51-52. After several minutes

of trying to talk Appellant down, the decision was made to use a TASER. RR

3:52. Appellant was struck with the TASER, but he just pulled the barbs

out. RR 3:53. He was then hit with a second TASER, and he pulled those

barbs out, too. RR 3:3-54. While Mr. Hawkins was reaching down for

another TASER, Mr. Finchum was struck in the face by Appellant. RR 3:54.

The third time Appellant was struck with a TASER also did not work. RR

3:54. The decision was made to go up and physically grab Appellant, and

then Appellant jumped off of the playset. RR 3:55-56. When Appellant

landed on the ground, he was immediately taken into custody. RR 3:56. At

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the jail, Appellant remained noncompliant and had to be placed into a

restraint chair. RR 3:57. Appellant was identified by Mr. Hawkins. RR 3:60.

Nick Stewart

Nick Stewart was employed by NPD on September 11, 2013. RR 3:64-

65. He was assigned to the Street Crimes Unit when the call came in for a

burglary in progress. RR 3:65-66. When he reached the area of the crime,

two witnesses pointed to Appellant who was standing at the top of a

treehouse. RR 3:67. Appellant was only wearing underwear. RR 3:70. His

first thought was that Appellant had possibly been using drugs. RR 3:71.

The officers tried to get Appellant to surrender, but they decided they had

to enter the treehouse. RR 3:71. Mr. Stewart entered first, followed by Mr.

Finchum and later Mr. Hawkins. RR 3:72. The officers tried to get

Appellant to surrender and comply, but Appellant would not, so Mr.

Stewart tried to grab Appellant by the leg. RR 3:72. When that did not

work, the officers decided to use a TASER. RR 3:72-73. The TASER was

ineffective. RR 3:73. The officers tried using a TASER on Appellant multiple

times. RR 3:73-74. While Mr. Finchum was trying to reload his TASER,

Appellant swung his right hand and hit Mr. Finchum in the face with a

closed fist. RR 3:75-76. During the incident in the treehouse, Appellant was

threatening to urinate on the officers. RR 3:84.

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 Walter McKee

Walter McKee was an officer with the Nacogdoches Police

Department. RR 3:90. On the date of the incident, Mr. McKee responded to

a burglary call to assist in locating the assailant. RR 3:91. Mr. McKee was

one of the last officers to arrive at the treehouse. RR 3:92. He was handed a

pair of white shorts by Mr. Stewart, and when he searched the shorts he

found a vanilla extract bottle in a black bag which he knew was a common

carrying vessel for users of PCP because the dark, tinted bottles protect the

PCP from being degraded by sunlight. RR 3:93. Mr. McKee did not open

the bottle because he was afraid of coming in contact with PCP, and it is the

policy of the Nacogdoches Police Department to not try to field test

suspected PCP. RR 3:95-96. Mr. McKee took the bottle back to the evidence

locker at the headquarters of the Nacogdoches Police Department. RR 3:97.

Appellant’s trial counsel stipulated that the substance in the bottle

was PCP. RR 3:98-99. Appellant’s trial counsel also stipulated to the

laboratory report that the bottle contained 10.11 grams of phencyclidine,

PCP. RR 3:103. Finall, Appellant’s trial counsel stipulated to the

admissibility of the medical records of Keith Finchum from September 11,

2013. RR 3:105.

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 Roy Harrison

Roy Harrison was a nurse in the emergency room at Nacogdoches

Memorial Hospital, RR 3:108, and he was working as a nurse on September

11, 2013. RR 3:110. Mr. Harrison knew Mr. Finchum, because Mr. Finchum

had worked security at the hospital. RR 3:110. Mr. Finchum came to the ER

complaining of facial pain after being struck in the face, and his face was

visibly red and swollen. RR 3:111.

Theodore Flanagan

Mr. Flanagan was a resident of Nacogdoches who knew Morgan

Bright. RR 3:115. He met Mr. Bright while he was homeless and staying at

Godtel in Nacogdoches because Mr. Bright would pickup Mr. Flanagan to

work on his property while he was a Godtel resident. RR 3:116. Mr.

Flanagan was working for Mr. Bright on the date of the accident. RR 3:118.

Will, who now lives in Minnesota, was working there, too. RR 3:116-17. Mr.

Flanagan and Will were clearing brush when a Hispanic boy told them that

someone was at Mr. Bright’s house, and then later they could hear Mr.

Bright calling for them. RR 3:118-19. While walking back, Mr. Flanagan saw

Mr. Bright’s legs go up in the air and then come down, so he and Will

started running toward Mr. Bright. RR 3:119. When they got to Mr. Bright,

Appellant was there wearing nothing but his shorts, and he jumped the

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fence. RR 3:119-20. Mr. Bright’s face was bloody. RR 3:121. He saw

Appellant hitting Mr. Bright. RR 3:122.

Morgan Eugene Bright

Morgan Eugene Bright was a retired resident of Nacogdoches. RR

3:126. On September 11, 2013, he had taken a load of wood to the dump,

and a neighbor told him that he had someone in his house. RR 3:129-30.

He thought it was someone trying to buy a car or car parts, so he told his

helpers to finish loading up his truck. RR 3:131. When Mr. Bright arrived at

his house, he did not see a car parked in his driveway, but the door was

open on the west end of the house, and he saw someone inside his home.

RR 3:132. Mr. Bright was 99% sure that Appellant was the person who was

in his house, but Appellant was 30 to 35 pounds heavier at the time of trial

than the man in his house. RR 3:141. The man in his house was taking food

out of the freezer. RR 3:134. When Mr. Bright asked the man to put the

food back, the man confronted him and kept asking, “Are you the devil?”

RR 3:135. Mr. Bright walked about half the way to where his helpers were

working and yelled that he needed some help. RR 3:136. While he was

outside, the man had removed his shirt and shoes which he had been

wearing, but he was still wearing his white shorts. RR 3:139-40. Mr. Bright

went back inside and the man assaulted him. RR 3:136-37. While being

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assaulted, Teddy yelled at the man, and then he quit assaulting Mr. Bright.

RR 3:138. At the time of the incident, Mr. Bright was 66 years old, and he

had been on social security disability since 2012. RR 3:138. The police

recovered the shirt and shoes. RR 3:139. Mr. Bright lost nine (9) teeth

because of the assault. RR 3:140.

James Buckingham

James Buckingham was a medical doctor specializing in psychiatry.

RR 4:6. Dr. Buckingham examined Appellant for insanity. RR 4:7.

Appellant told Dr. Buckingham that he had used PCP on September 11,

2013, and he knew what he did was wrong. RR 4:13. Dr. Buckingham

testified that voluntary consumption of drugs would nullify any insanity

defense. RR 4:15. Appellant did not provide Dr. Buckingham with any

indication that he had not voluntarily used PCP on September 11, 2013. RR

4:16. The circumstances of the offense suggested led Dr. Buckingham to

conclude that Appellant was not insane at the time of the offense. RR 4:18.

Dr. Buckingham diagnosed Appellant as having a psychotic disorder. RR

4:18. Appellant could have believed that Mr. Bright was the devil. RR 4:20.

Appellant entered Mr. Bright’s house to get a drink to cool off. RR 4:22. Dr.

Buckingham did not believe that the offenses on September 11, 2013, would

have happened if Appellant had not been smoking PCP. RR 4:24.

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 Frank Murphy

Frank Murphy was a psychiatrist in private practice who specialized

in forensic psychiatry. RR 4:26. Dr. Murphy examined Appellant in October

2014. RR 4:27. Appellant admitted to using PCP on the date of the incident,

and he did not say that he ingested the PCP involuntarily. RR 4:31-32.

Appellant was diagnosed with schizophrenia, and violence amount a

schizophrenic patient is uncommon. RR 4:33. Dr. Murphy did not see any

evidence that Appellant did not know that his actions were wrong. RR 4:35.

Appellant

Appellant chose not to testify and did not present any evidence during

guilt or innocence. RR 4:42.

Punishment Phase

During the punishment phase, the State and Appellant’s trial counsel

stipulated to a driving while intoxicated conviction in 2010, a driving while

license invalid conviction in 2006, a possession of marijuana conviction in

2006, an evading arrest conviction in 2006, a second-offense driving while

intoxicated conviction in 2012, a conviction for failure to stop and render

aid in 2012, a felony conviction for delivery of marijuana in 2004, a felony

conviction for credit card abuse in 2010, a felony conviction for evading

arrest in 2012, and three convictions for failure to appear in 2006. RR 5:7-

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9. The State and Appellant’s trial counsel also stipulated that Appellant was

the same person about whom the State’s first three witnesses would be

testifying. RR 5:12.

Robert Collier

Mr. Collier was employed for almost four years by the Nacogdoches

Police Department. RR 5:13. On July 4, 2013, Mr. Collier came in contact

with Appellant while doing a medical assist call as a police officer. RR 5:14.

At the call, he found Appellant in a back bedroom, incoherent and

thrashing about. RR 5:15. When entering the house, Mr. Collier could smell

the chemical odor of PCP. RR 5:15-16. Appellant had been smoking PCP

and had ingested some and smoked methamphetamines earlier in the day.

RR 5:17. Appellant was taken to the hospital because it was feared he had

overdosed. RR 5:17.

Jonathan Durham

Jonathan Durham was employed by the Nacogdoches Police

Department as a patrolman. RR 5:18. On August 30, 2013, Mr. Durham

responded to a welfare check involving Appellant. RR 5:19. Appellant was

passed out in the street, and he admitted to smoking PCP, and he was

arrested for public intoxication. RR 5:20.

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 Brett Ayers

Brett Ayers worked as a police officer for the Nacogdoches Police

Department. RR 5:21-22. On August 21, 2013, he responded to a call

regarding a suspicious person where he found Appellant on the porch of the

caller’s residence, and Appellant appeared to be intoxicated. RR 5:22-23.

Mr. Ayers smelled a chemical that he associated with PCP. RR 5:23.

Appellant was arrested for public intoxication. RR 5:24.

Appellant

Appellant did not take the stand or present any evidence during the

punishment phase of the trial. RR 5:25-26.

SUMMARY OF THE ARGUMENT

In compliance with the requirements of Anders v. California, 396

U.S. 738, 744, 87 S.Ct. 1396, 1400 (1967) and High v. State, 573 S.W.2d

807 (Tex. Crim. App. 1978), the undersigned attorney states that he has

diligently reviewed and evaluated the entire record and investigated all

possible grounds for appeal, but his review and investigation have revealed

no error to bring to the Court’s attention. Counsel would respectfully show

the Court that the instant appeal would be wholly frivolous and without

merit and that appellate counsel should be permitted to withdraw. Id.

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Matters considered by appellate counsel in reaching this conclusion are set

forth above as well as below in additional detail.

In reaching the conclusion that this appeal is without merit, Appellate

Counsel advances two possible appellate issues which could possibly be

raised. Those issues reference possible trial errors consisting of: (1) the

evidence was legally and factually insufficient to support the jury’s finding

that the Appellant was in possession of a controlled substance under one

gram; and (2) the Appellant’s trial counsel failed to provide effective

assistance of counsel denying the Appellant a fair trial.

ARGUMENT AND AUTHORITIES

Standard for Anders Brief.

After a thorough review of the record, Appellant’s counsel is unable to

find any errors which he, in good faith, can urge which warrant a reversal of

the sentences handed down by the trial court. Counsel is aware that he has

a duty to advance arguable grounds of error. Anders v. California, 386 U.S.

736, 87 S.Ct. 1396, 19 L.Ed.2d 493 (1967). There are two possible or

potential errors to investigate on appeal, but research reflects that both

legal issues are frivolous based upon standing case and statutory law. The

following is the general review of the record considered by the Appellate

Counsel in reaching this conclusion:

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 1. The Complaint and Information. The Appellant’s indictments are in

the proper form. CR 7; CR2 6;2 Peck v. State, 923 S.W.2d 839 (Tex. App.—

Tyler 1996, no pet.). There are no errors concerning the charging

instrument. Ieppert v. State, 908 S.W.2d 217 (Tex. Crim. App. 1995).

2. Pre-Trial Motions and Hearings. Several pretrial motions were

filed. Initially, Appellant’s competency was questioned and he was deemed

incompetent to stand trial by the trial court. CR 11-12. Upon regaining

competency, CR 32-37, Appellant’s trial counsel requested that he be tried

by two different psychiatrists on the issue of insanity; CR 38-39, 46-47; and

Appellant’s trial counsel gave notice of the insanity defense. CR 40-41.

There were no errors occurring during the pretrial proceedings. Espinosa v.

State, 853 S.W.2d 36 (Tex. Crim. App. 1993).

3. Trial Motions. There were no trial motions filed by either party. CR

passim, CR2 passim. Appellant’s trial counsel made no objections.

4. Jury Selection. The voir dire was recorded. RR 2:1. Appellant’s trial

counsel made no objections during voir dire and no errors were noted or

preserved. RR 2:passim.

2“CR” shall reference the Clerk’s Record in F1320424, and “CR2” shall reference the
Clerk’s Record in F1521685.

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 5. The Guilt /Innocence Phase.

a. The State & Appellant’s Opening Statement. The State's

opening Statement appears in the record, RR 3:15, and there were no

defense objections during the State's opening statement. RR 3:passim.

Examination of the State's opening statement reveals that it was in proper

form, not subject to objection, and without legal error. Appellant’s trial

counsel did not give an opening statement following the State’s, RR 3:22

and because Appellant elected to not testify, Appellant’s trial counsel gave

no testimony at the introduction of evidence from Appellant. RR 4:passim.

b. The State's Evidence. The State called eight (8) witnesses in

addition to introducing 15 exhibits during the guilt-innocence phase.

c. Objections. Appellant’s trial counsel made no objections

during the State’s case-in-chief. A reading of the record fails to reflect any

glaring errors in the failure to make any other objections to the evidence

and testimony by the State.

d. The Defendant's Evidence. The Appellant’s trial counsel did

not call any witnesses during the guilt/innocence phase of the trial and did

not offer any exhibits. All of the Courts rulings appear to be proper. No

error occurred and no error was preserved.

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 e. The Guilt/Innocence Charge. The Guilt/Innocence charge is

contained in the record to which there were no objections. RR 4:42-43.

f. The State's Guilt/Innocence Closing Argument. The State's

Guilt/Innocence arguments appear in the record. RR 4:76. No defense

objection was made during the State’s guilt/innocence argument. State’s

argument revealed nothing improper. Bryson, 820 S.W.2d at 198-99.

g. The Defense's Guilt/Innocence Closing argument. The

defense's guilt/innocence argument appears in the record. RR 4:74. There

were no objections during defense's argument. No error occurred and no

error was preserved. . Bryson, 820 S.W.2d at 198-99.

h. The Guilt/Innocence Verdict of the Jury. The

Guilt/Innocence verdict of the jury appears in the record. CRS 28.

Examination of the verdict reveals that it is in proper form. The defense

made no complaint in the record regarding the form or verdict, and

accordingly, no errors occurred and none were preserved. Bryson, 820

S.W.2d at 198-99.

6. The Punishment Phase. Appellant elected to have the jury assess

punishment. CR 56. The sentence was not unreasonable. The record fails to

reflect any error of law by the trial court in the rulings. Bryson, 820 S.W.2d

at 198-99.

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 7. Sufficiency of the Evidence. In reviewing the legal sufficiency of the

evidence, a court of appeals shall not set aside a jury verdict unless it is so

contrary to the overwhelming weight of the evidence as to be clearly wrong

and unjust. Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). If a

person were to provide a Cliff’s Notes version of the trial, it might read,

“Appellant abuses dissociative drug, burgles an elderly person’s home, robs

and severely injures the elderly person after being discovered, flees [not

very far] from the crime scene to a treehouse where he assaults a police

officer, and is found to have possessed that same dissociative drug.”

8. Ineffective Assistance of Counsel. Ineffectiveness of counsel is

usually difficult to determine upon direct appeal. The court of appeals must

indulge in a strong presumption in favor of avoiding a finding of ineffective

assistance and the burden is onerous. Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052 (1984); McFarland v. State, 928 S.W.2d 482 (Tex.

Crim. App. 1996). Appellant must show that counsel’s performance was

deficient (below the objective standard of reasonableness) and that but for

this deficiency, the result of the proceeding would have been different. The

court of appeals will indulge in a strong presumption of reasonableness in

counsel’s conduct, and examine the trial as a whole, considering error in

trial strategy only if counsel’s actions are without plausible basis. Davis v.

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State, 930 S.W.2d 765, 767 (Tex. App.—Houston [1st Dist.], pet. ref’d.). If

there exists any plausible basis for counsel’s actions, the court of appeals

may not speculate on reasons for that action when the record contains no

evidence for the actions. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.

App. 1994). This was not a complicated case. It appears from the record

that the Appellant’s trial counsel was not ineffective.

Potential Issue 1: Was the evidence is legally sufficient to
support Appellant’s convictions?
Argument & Authorities

Standard of Review

Legal sufficiency of the evidence “is an essential of the due process

guaranteed by the Fourteenth Amendment that no person shall be made to

suffer the onus of a criminal conviction except upon sufficient proof –

defined as evidence necessary to convince a trier of fact beyond a

reasonable doubt of the existence of every element of the offense.” Jackson

v. Virginia. 443 U.S. 307, 316 (1979). The standard of review is whether,

when viewed in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Id. at 319; King v. State, 29 S.W.3d 556, 562 (Tex. Crim.

App. 2000). This standard is the only standard that a reviewing court will

apply in determining whether the evidence is sufficient to support each

-26-
element of the offense which the State is required to prove beyond a

reasonable doubt. Brooks v. State, 323 S.W.3d, 893, 912 (Tex. Crim. App.

2010). The appellate court will consider all evidence admitted, whether

proper or improper. “Every fact need not point directly or independently to

the defendant’s guilt [citation omitted]. A conclusion of guilt can rest on the

combined cumulative for of all incriminating circumstances.” Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). The jury is the exclusive

judge of the facts, the credibility of the witnesses, and the weight to be given

to that testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App.

1994); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).

Legal sufficiency of the evidence is measured against the elements of

the offense as defined by a hypothetically correct jury charge, one that

“accurately sets out the law, is authorized by the indictment, does not

necessarily increase the State’s burden of proof or unnecessarily restrict the

State’s theories of liability, and adequately describes the particular offense

for which the defendant was tried.” Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997). The charge should not merely quote the elements of

the offense listed in the statute, but should list the statutory elements “as

modified by the charging instrument.” Gollihar v. State, 46 S.W.3d 243,

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254 (Tex. Crim. App. 2001). “A hypothetically correct charge has its basis in

the indictment allegations.” Id. at 255.

In deciding whether or not evidence in a given case is legally

sufficient, the court must look at all of the evidence adduced at trial to

determine if viewing all the evidence impartially, it must set aside the

verdict because it is so contrary to the overwhelming weight of the evidence

as to be clearly wrong and unjust.” Clewis, 922 S.W.2d 126; Stone v. State,

823 S.W.2d 375 (Tex. App.—Austin 1992, pet. ref’d, untimely).

The evidence was legally sufficient.

The charge included jury questions on Aggravated Robbery, Assault

on a Public Servant, and Burglary of a Habitation, CR 61, as well as

Possession of a Controlled Substance in the amount of four grams or more

but less than 200 grams. CR2 10. A person commits aggravated robbery if

he intentionally or knowingly threatens of places another in fear of

imminent bodily injury or death and causes bodily injury to a person 65

years of age or older. TEX. PENAL CODE §§ 29.02, 29.03. The State is not

required to prove that a completed theft occurred. White v. State, 671

S.W.2d 40, 41-42 (Tex. Crim. App. 1984). A person commits the offense of

Assault on a Public Servant if he intentionally, knowingly, or recklessly

causes bodily injury to another who the actor knows to be a public servant.

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TEX. PENAL CODE § 22.01(a)(1),(b)(1). A person commits the offense of

Burglary of a Habitation if the person, without the effective consent of the

owner, enters a habitation with the intent to commit theft. TEX. PENAL CODE

§ 30.02(a)(1). A person commits the offense of possession of a PCP if he

intentionally or knowingly possesses a PCP. TEX. HEALTH & SAFETY CODE §§

481.102(8), 481.115.

The easiest case to analyze is the case against Appellant for

possession of PCP. Appellant’s trial counsel conceded that at the time

Appellant was arrested that he was in possession of PCP, RR 3:98-103, as

the Controlled Substance Analysis Laboratory Report clearly indicated that

Appellant was in possession of PCP. CR 6:16. Appellate counsel suspects

that this was in an effort by Appellant’s trial counsel, not to shirk his

responsibility to defend Appellant, but to set up an argument for the

mitigation of punishment was will be discussed below.

The aggravated robbery and burglary cases rested upon two

witnesses, Theodore Flanagan and Morgan Bright. Both men testified that a

person was in the residence of Mr. Bright, and Mr. Flanagan testified that it

was undoubtedly Appellant who was assaulting Mr. Bright inside Mr.

Bright’s home. Mr. Bright testified to both his age, the fact that Appellant

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was assaulting him, including his injuries, that Appellant did not have

permission to be in his home, and that Appellant was stealing from him.

The case against Appellant for Assaulting a Public Servant was

equally straight forward. While officers of the Nacogdoches Police

Department were trying to arrest and detain Appellant, he assaulted one of

the officers by striking him in the face. This evidence supported the jury’s

verdict, and since the jury is the sole trier of fact and any inconsistencies in

the evidence are deemed to have been resolved by the jury in favor of their

verdict, it is unlikely that Appellant could prevail on the issue of legal

sufficiency of the evidence to support the verdict.

Potential Issue 2: Was Appellant’s trial counsel was
ineffective in his representation of the Appellant during the jury
trial?
Argument & Authorities

Standard of Review.

The Appellant would no doubt criticize Trial Counsel for many of his

decisions throughout the trial. However, in this appeal attacking Trial

Counsel on ineffectiveness will most likely be fruitless. The adequacy of

counsel’s representation is evaluated using the two-part standard

articulated by Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct.

2052, 2068 (1984) and adopted by Hernandez v. State, 988 S.W.2d 770,

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772 (Tex. Crim. App. 1996). Sanchez v. State, 222 S.W.3d 85, 90 (Tex.

Crim. App. 2006). The test is: 1) whether the attorney’s performance fell

below an objective standard of reasonableness under prevailing

professional norms, and 2) whether there is a reasonable probability that,

but for counsel’s unprofessional errors, the results of the proceedings could

have been different. Id. Reasonable probability is a probability sufficient to

undermine confidence in the outcome. Hernandez. v. State, 726 S.W.2d 53,

55 (Tex. Crim. App. 1986).

The reviewing court begins with the presumption that counsel’s

actions and decisions were reasonably professional and motivated by sound

trial strategy. Sanchez, 222 S.W.3d at 90. The party challenging counsel’s

effectiveness has the burden to rebut the presumption by presenting

evidence. Id. at 90.

Appellant’s trial counsel was not ineffective.

In the present case, there is nothing in the record to indicate that but

for the trial counsel’s performance, the outcome of the case at hand would

have been different as required by the second prong of the Strickland test.

Strickland v. Washington, 466 U.S. 688, 694-95, 104 S.Ct. 2052, 2068

(1984). Strickland requires that, to show ineffective assistance of counsel,

an appellant must prove that his attorney’s representation fell below an

-31-
objective standard of reasonableness under the prevailing professional

norms and that there is a reasonable probability that, but for those

unprofessional errors, the result of the proceeding would have been

different. Id. at 694-95.

Ineffectiveness of counsel is usually difficult to determine upon direct

appeal. The court of appeals must indulge in a strong presumption in favor

of avoiding a finding of ineffective assistance and the burden is onerous.

Strickland v. Washington, 466 U.S. 668 (1984), and McFarland v. State,

928 S.W.2d 482 (Tex. Crim. App. 1996). The Appellant must show that

counsel’s performance was deficient (below the objective standard of

reasonableness) and but for that deficiency, the result of the proceeding

would have been different. The court of appeals will indulge in a strong

presumption of reasonableness in counsel’s conduct, and examine the trial

as a whole, considering error in trial strategy only if counsel’s actions are

without plausible basis. Davis, 930 S.W.2d at 767. If there exists any

plausible basis for counsel’s actions, the Court of Appeals may not speculate

on reasons for that action when the record contains no evidence for the

actions. Jackson, 877 S.W.2d at 771.

Court’s have consistently stated that it looks to the totality of

representation and not isolated instances when judging the effectiveness of

-32-
counsel, as follows: “Isolated instances in the record reflecting errors of

omission or commission do not render counsel's performance ineffective,

nor can ineffective assistance of counsel be established by isolating one

portion of trial counsel's performance for examination.” McFarland, 928

S.W.2d at 483. Counsel's performance is judged by “the totality of the

representation” and “judicial scrutiny of counsel's performance must be

highly deferential” with every effort made to eliminate the distorting effects

of hindsight. See Id.; Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim.

App. 2006); see also Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999) (an appellate court looks to the totality of the representation

and the particular circumstances of each case in evaluating the effectiveness

of counsel).

A Defendant in entitled to rely upon counsel to make an independent

examination of the facts and circumstances for guilt/innocence. Ex Parte

Briggs, 187 S.W.3d 458, 469 (Tex. Crim. App. 2005). “[C]ounsel has a duty

to make reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary.” Id. at 466-67. When

determining whether counsel was ineffective, “a particular decision not to

investigate must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel’s

-33-
judgment’s.” Id. at 467 (citing Wiggins v. Smith, 539 U.S. 510, 521-22, 123

S.Ct. 2527, (2003)). The same standard applies to punishment. See

Freeman v. State, 167 S.W.3d 114, 117-18 (Tex. App.—Waco 2005, no pet.)

(failure to investigate client’s mental health issues ineffective assistance);

Rivera v. State, 123 S.W.3d 21, 31 (Tex. App.—Houston [1st Dist] 2003, pet.

ref’d) (trial counsel’s failure to make reasonable investigation fell below

professional standard); Milburn v. State, 15 S.W.3d 267, 270-71 (Tex.

App.—Houston [14th Dist.] 2000, pet. ref’d) (trial counsel’s failure to offer

any mitigating evidence was ineffective assistance); see also Ex Parte

Gonzales, 204 S.W.3d 391, 398-400 (Tex. Crim. App. 2006) (trial counsel

ineffective for failing to investigate mitigating evidence).

In the instant case, the trial transcript and record reflect that the

Appellant’s trial counsel demonstrated an excellent knowledge of the facts

of the case and handled the representation of his client in an effective

fashion to the extent that any claim of ineffective assistance of counsel

would most certainly fail particularly when considering the totality of the

circumstances of the trial as a whole.

Without any testimony from Appellant’s trial counsel regarding his

strategy, we are left to make assumptions based on the trial transcript, and

that evidence leads appellate counsel to surmise that Appellant’s trial

-34-
counsel was attempting to minimize Appellant’s punishment exposure. The

offenses happened. That much was not contested at trial, and was most

likely incontrovertible. The question then for Appellant’s trial counsel

would then be to give a jury an explanation as to why Appellate committed

the offenses in order to minimize Appellant’s exposure during punishment.

In this case, the record establishes that at the beginning of the proceedings

after indictment that Appellant was not competent to stand trial. CR 11-12.

Once Appellant regained his competency, his trial counsel initially sought

to raise an insanity defense, but the evidence would not support that

defense. CR 44-45, 50-54. Thus, Appellant’s trial counsel apparently

attempted to mitigate Appellant’s exposure though a process of questioning

most of the witnesses about Appellant’s apparent mental state.

As a further potential issue to show ineffective assistance of counsel

by the Appellant’s trial counsel, it has been held that appellate counsel is

required to undertake an independent investigation of the facts including

those that bear upon punishment.

During the punishment phase of the trial, Appellant chose not to take

the stand in his own defense, and this was likely caused in part by his

mental illness. It is apparent from the record that Appellant’s trial counsel

investigated Appellant’s mental health issues and other mitigation

-35-
evidence, but that evidence available did little to stem the tide against the

overwhelming evidence offered by the State. First, not only was Appellant

competent to stand trial, CR 32-37, but his trial counsel had requested that

he be examined for insanity, and two experts reported that he was sane at

the time of the offenses. CR 44-45, 50-54. More importantly, Appellant was

able to testify about his mental health issues during the punishment

hearing. RR 5:26.

In the event that the Appellant believes that his trial counsel rendered

ineffective assistance by failing to object to the severity of the punishment

rendered by the trial court in this case, the record fails to support such a

contention or claim. Trial counsel did not object to the severity of the

sentence assessed, either at the conclusion of the hearing or in a motion for

new trial, and based upon the decision of the jury, there were no grounds

upon which to appeal that required preserving. Therefore, there is nothing

to argue on appeal in that regard, because counsel did not preserve error.

Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 2006).

Even if counsel had preserved error regarding the severity of the

sentence, the argument would be frivolous. There are two types of

punishment error regarding the severity of the sentence: (1) cruel and

unusual punishment, and (2) disproportionality. This sentence is not cruel

-36-
and unusual. The punishments assessed by the jury suggest that they

assessed punishments for each offense specific to each crime, with the most

severe punishment for the aggravated robbery, likely due in part to the

severity of the injuries suffered by Mr. Bright. Further, evidence was

presented during the punishment phase of the trial that in addition to the

charged offenses, Appellant had a very lengthy criminal record as well as

numerous previous encounters with law enforcement preceding the trial

due to Appellant’s abuse of PCP. Given the facts presented during the trial,

it was within the sole discretion of the trial court to determine the

Appellant’s sentence. Punishment within the statutory range is generally

not considered to be cruel and unusual punishment. Jackson v. State, 989

S.W.2d 842, 845 (Tex. App.—Texarkana 1999, no pet.) (citing Jordan v.

State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973)). Also notable is the fact

that the jury did not sentence Appellant to life in prison.

Even if a sentence is not cruel and unusual, it may still be grossly

disproportionate to the crime. To determine whether a sentence is grossly

disproportionate, the appellate court first looks to the gravity of the offense

and the length of the prison sentence. If it determines from this analysis

that the sentence was disproportionate, the appellate court then considers:

(1) sentences imposed on other criminals in the same jurisdiction, and (2)

-37-
sentences imposed for the same crime in other jurisdictions. Krumboltz v.

State, 945 S.W.2d 176, 177 (Tex. App.—San Antonio 1997, no pet.). In the

current appeal, there is nothing to indicate that the threshold issue of

disproportionality has been satisfied. Appellant was fully aware of the range

of punishment available to the jury during the punishment phase of the

trial, meaning, 5 to 99 years, or life, with up to a $10,000.00 fine for the

aggravated robbery, and Appellant had already been admonished that he

turned down a 20-year plea bargain offer. RR 3:7-8. Therefore, any

disproportionality argument would fail along with any ineffective assistance

of counsel claim pursuant to the record.

The Appellant’s trial counsel fully and thoroughly represented the

Appellant during the guilt/innocence phase of the trial. After listening to

the testimony of the State’s witnesses, who were thoroughly and rigorously

cross-examined by Appellant’s trial counsel, the jury found the Appellant

guilty as charged in the indictments. The Appellant’s trial counsel clearly

demonstrated knowledge of his client’s case supporting his investigation

and knowledge of the facts associated with the charge against his client.

Due to the fact that eyewitness testimony linked Appellant to the crime,

there is nothing in the record to indicate that “but for the trial counsel’s

performance,” the outcome of the case at hand would have been different as

-38-
required by the second prong of the Strickland test. Strickland, 466 U.S. at

694-95, 104 S.Ct. at 2068. Strickland requires that, to show ineffective

assistance of counsel, an appellant must prove that his attorney’s

representation fell below an objective standard of reasonableness under the

prevailing professional norms and that there is a reasonable probability

that, but for those unprofessional errors, the result of the proceeding would

have been different. Id. at 694-95. Given the vigorous representation of his

client by the Trial Counsel, it is unlikely that any other representation of the

Appellant would have resulted in a different outcome. As a result, it is not

likely that the Appellant would prevail on this issue.

Further, As the Court of Criminal of Appeals has previously stated,

rarely will the record on direct appeal be sufficient to show that counsel's

conduct was so deficient as to meet the first prong of Strickland as the

"reasonableness of counsel's choices often involves facts that do not appear

in the appellate record." Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim.

App. 2002); Strickland v. Washington, 466 U.S. 668 (1984). An application

for a post-conviction writ of a habeas corpus is the more appropriate

vehicle to raise and develop ineffective assistance of counsel claims. Id.

Consequently, Appellate Counsel can not find within the Appellate Record

sufficient specific facts to challenge Trial Counsel’s decisions at trial. Trial

-39-
Counsel’s reasons for the decisions made at trial do not appear in the

Appellate Record.

In conclusion, it is Appellate Counsel’s professional opinion based

upon a thorough evaluation over the record that there was no reversible

error reflected by the record. Therefore, Appellate Counsel’s professional

opinion is that this appeal is without merit and frivolous. No other potential

points of ineffective assistance of counsel may be found in the record.

CONCLUSION

Because Appellate Counsel, after a thorough review of the record, is

unable to identify any potentially meritorious points on appeal, it is the

professional opinion of the undersigned counsel that the appeal is frivolous

and without merit. See Anders v. California, 386 U.S. 738 (1967); see

Johnson v. United States, 360 F.2d 844, 846 n. 2 (D.C. Cir. 1966) (Burger,

J. concurring): (“An attorney owes his first duty to the court. His oath

requires him to be absolutely honest even though his client’s interests may

seem to require a contrary course.”)

Counsel has executed an attached Certificate of Service certifying that

he is sending Appellant a copy of his Motion to Withdraw, and a copy of

this Brief, with an explanation of Appellant’s further rights regarding his

appeal. High v. State, 537 S.W.2d 807 (Tex. Crim. App. 1978).

-40-
 PRAYER

Counsel has conducted a professional evaluation of the record in this

cause and reluctantly concluded that as a matter of professional judgment,

the record contains no reversible error and no jurisdictional defects are

present. Where counsel concludes that there are no arguable grounds for

reversal, he is required to present a professional evaluation of the record

demonstrating why there are no arguable grounds to be advanced as has

been done in the instant case. Anders v. California, 386 U.S. 738 (1967);

Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). The record does

not support a meritorious argument for reversal of the jury trial’s

conviction and punishment sentence of the Appellant. Pursuant to the

requirements of Anders v. California, 386 U.S. at 744-45, and High v.

State, 573 S.W.2d at 813, counsel has documented that he has furnished

Appellant with a copy of this brief, contemporaneous with the filing of this

brief, and has notified Appellant that he has the right to review the record

and to file any brief that he deems appropriate. Counsel therefore

respectfully requests that the Court accept his brief, and he be allowed to

withdraw from representation of Appellant upon disposition of the appeal.

-41-
 Respectfully submitted,

/s/Noel D. Cooper
Noel D. Cooper
Texas Bar No. 00796397
LAW OFFICES OF NOEL D.
COOPER
117 North St., Suite 2
Nacogdoches, Texas 75961
Telephone: (936) 564-9000
Telecopier: (936) 715-6022
ATTORNEY FOR APPELLANT,
RONNY LEE WILLIAMS

CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that this document is

computer generated and contains 6, 836 words based on a computer word

count.

/s/Noel D. Cooper
Noel D. Cooper

-42-
 CERTIFICATE OF SERVICE

I certify that I delivered a copy of this Anders Brief to each attorney of

record or party in accordance with the Texas Rules of Appellate Procedure

on November 16, 2015, at the addresses and manners below.

Nicole LoStracco
State Bar No. 00792906
Nacogdoches County District Attorney
101 W. Main, Suite 250
Nacogdoches, Texas 75961
Telephone: (936) 560-7766
Fax: (936) 560-6036
Email:nlostracco@co.nacogdoches.tx.us
Via Electronic Service

RONNY LEE WILLIAMS
TDCJ-ID # 02001514
Stiles Unit
3060 FM 3514
Beaumont, TX 77705
Via First Class Mail and CMRRR

/s/Noel D. Cooper
Noel D. Cooper

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