Anderson, Tyrone Denard

nzH-ts ORIGINAL COURT OF CRIMINAL APPEALS TYRONE DENARD ANDERSON § APPELLANT § RECEIVED IN VS. s § NO. 06-14-00074-CR COURT OF CRIMINAL APPEALS § THE STATE OF TEXAS § AUG 2 7 2015 APPELLEE § Abel Acosta, Clerk PETITION FOR DISCRETIONARY REVIEW ON APPEAL FROM THE 354th DISTRICT COURT HUNT COUNTY,TEXAS TRIAL COURT CAUSE NUMBER 29,512 THE HONORABLE RICHARD A. BEACOM,JR.,JUDGE PRESIDING FILED IN COURT OF CRIMINAL APPEALS AUG 27 2015 Abel Acosta, Clerk TYRONE DENARD ANDERSON TDCJ #1944026 BILL CLEMENTS UNIT 9601 SPUR 591 AMARILLO,TEXAS 79107 ORAL ARGUMENTS NOT REQUIRED TABLE OF CONTENTS TABLE OF CONTENTS i INDEX OF AUTHORITIES i: STATEMENTS OF THE CASE 1 GROUNDS FOR REVIEW 2 ARGUMENT ,2-3 PRAYER 4 CERTIFICATE OF SERVICE 4 INDEX OF AUTHORITIES CASES MITCHELL V.STATE,762 S.W.2d.916(TEX.APP.-SAN ANTONIO 1988) 2 McMANN V. RICHARDSON,90 S.CT.1441,14,n.25 L.Ed.2d.763(1970). 3 STRICKLAND V. WASHINGTON,466 U.S. 688,104 S.CT. 2052,80 L.ed. 2d.674 3 SAUNDERS V. STATE, 817 S.W.2d.688(TEX.CR.APP.1991) ,3 TRAPNELL V. UNITED STATES, 725 F.2d. 151 3 LAWS AND STATUES TEXAS CODE OF CRIM.PRO.Art. 36.14 2 VERNONS CODE OF CRIM.PROC.Art. 38.14 3 li IN THE COURT OF CRIMINAL APPEALS TYRONE DENARD ANDERSON § APPELLANT § VS. § NO. 06-14-00074-CR § THE STATE OF TEXAS § APPELLEE § PETITION FOR DISCRETIONARY REVIEW TO THE HONORABLE JUSTICES OF SAID COURT: COMES NOW,TYRONE DENARD ANDERSON,APPELLANT,HEREIN AND IN SUP PORT OF THIS PETITION FOR DISCRETIONARY REVIEW WILL SHOW THIS HON ORABLE COURT THE FOLLOWING: I. PETITIONER IS REQUESTING THAT ORAL ARGUMENTS BE WAIVED. II. STATEMENT OF THE CASE APPELLANT WAS INDICTED FOR THE OFFENSE OF POSSESSION/MANUFACTURING AND DELIVERY OF A CONTROLLED SUBSTANCE IN AN AMOUNT OF ONE GRAM OR MORE BUT LESS THAN FOUR GRAMS,PENALTY GROUP ONE.APPELLANT PLED NOT GUILTY.A JURY FOUND APPELLANT GUILTY AND PURSUANT TO THE JURY*S FINDING OF TRUE TO THREE OF THE STATES ENHANCEMENT ALLEGATIONS, APPELLANT WAS SENTENCED TO LIFE IN PRISON. 1. III. PROCEDURAL HISTORY NOTICE OF APPEAL WAS FILED ON MARCH 27,2014. THE REPORTERS RECORD WAS FILED ON SEPTEMBER 5,2014. Appellant's APPEAL ATTORNEY FILED AN ANDERS BRIEF. APPELLANT THEN FILED A PRO SE BRIEF ON MARCH 9, 2015 IN THE SIXTH DISTRICT COURT OF APPEALS.THE SIXTH DISTRICT COURT OF APPEALS AFFIRMED THE TRIAL COURT S JUDGMENT ON MAY 8,2015. IV. GROUNDS FOR REVIEW. APPELLANT CONTENDS THAT HIS APPELLANT ATTORNEY WAS INEFFECTIVE FOR FAILURE TO PROPERLYriNVESTIGATE AND REVIEW THE RECORD. COUNSEL FIL ED AN ANDERS BRIEF OVER-LOOKING THE FACT THAT APPELLANT HAD AN AC COMPLICE TO GIVE TESTIMONY AGAINST THE APPELLANT WHO WAS A CO-DEFEN- DENT.THE CO-DEFENDENT WAS CHARGED WITH THE SAME CRIME AS THE APPEL LANT,MAKING THE,CO-DEFENDANT AN ACCOMPLICE AS A MATTER OF LAW. V. ARGUMENT. THE FOURTEENTH AMENDMENT GUARANTEES A DEFENDANT THE RIGHT TO EFFEC TIVE ASSISTANCE OF COUNSEL ON DEFENDANTS FIRST APPEAL.COUNSEL SHOULD MAKE AN INDEPENDANT INVESTIGATION OF THE FACTS OF THE APPELLANTS CASE. MITCHELL vs. STATE,762 S.W.2d.916(TEX.APP.-SAN ANTONIO 1988). APPELLANTS BROTHER,FRANK ANDERSON WAS INDICTED FOR THE SAME CHARGE AND WAS CONSIDERED AN ACCOMPLICE AS A MATTER OF LAW.APPELLANTS TRIAL COUNSEL FAILED TO OBJECT TO THE ACCOMPLICE WITNESS TESTIMONY AND TO REQUEST A JURY CHARGE INSTRUCTION UNDER THE TEX.CODE OF CRIM.PROC. ART.36.14. Attorney MADE NO WRITTEN INSTRUCTION OBJECTING OR REQUEST ING A TRIAL COURT CHARGE. THIS WAS CONSIDERED AN ERROR PER SE THE STATES BRIEF.(pg.5) 2. H THE RIGHT TO COUNSEL IS THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL. McMANN V. RICHARDSON,397 U.S.759,771,n.14,90 S.CT.1441, 1449,n.14,25 L.ED.2d.763(1970). AS ALL THE FEDERAL COURTS OF APPEALS HAVE NOW HELD,THE PROPER STAND ARD FOR ATTORNEY PERFORMANCE IS THAT OF REASONABLY EFFECTIVE ASSIS TANCE. SEE TRAPNELL V. UNITED STATES,725 F.2d,at 151-152. SO THE BENCHMARK FOR JUDGING ANY CLAIM OF INEFFECTIVENESS MUST BE WHETHER COUNSEL'S CONDUCT SO UNDERMINED THE PROPER FUNCTIONING OF THE ADVERSARIAL PROCESS THAT THE TRIAL CANNOT BE RELIED ON AS HAV ING PRODUCED A JUST RESULT. STRICKLAND V. WASHINGTON,466 U.S. 668, 104 S.CT. 2052,80 L.Ed.2d. 674. APPELLANT S TRIAL COUNSELS FAILURE TO REQUEST THE JURY CHARGE IN STRUCTION OF THE TESTOMONY OF AN ACCOMPLICE WITNESS WAS OF THE DE GREE OF HARM, SUFFICIENTLY SERIOUS ENOUGH TO BE CLASSED AS EGREGIOUS!' APPELLANTS CONVICTION AND SENTENCE WAS MADE CLEARLY AND MORE PER SUASIVE BY THE TESTIMONY PRESENTED BY APPELLANTS BROTHER,FRANK AN DERSON,WHO WAS THE CO-DEFENDANT IN THIS CASE.V.C.C.P. art.38.14. THE EVIDENCE PRESENTED IN APPELLANTS TRIAL DEMONSTRATES THAT THE ACCOMPLICE TESTIMONY WAS ESSENTIAL IN HELP MAKING THE STATES CASE AGAINST THE APPELLANT.HAD THE JURY BEEN INFORMED THAT IT COULD NOT CONVICT APPELLANT WITHOUT CORROBORATION OF THE TESTIMONY GIVEN BY APPELLANTS BROTHER FRANK,THERES A REASONABLE PROBILITY A RATIONAL JURY WUOLD NOT HAVE CONVICTED APPELLANT.SEE AND cf.SAUNDERS V. STATE,817 S.W.2d.688 (TEX.CR.APP.1991). FRANK ANDERSON WAS CONNECTED TO THE OFFENSE COMMITTED AND CHARGED. APPELLATE COUNSEL FAILED THE APPELLANT BY FILING AN ANDERS BRIEF WHEN IN FACT APPELLANT HAD A VIABLE AND APPARENT ERROR IN HIS PRO- CEEDINDS. THE LIKELYHOOD OF A COMPETENT LAWYER COMMITTING THIS SAME MISTAKE SHUOLD BE CONSIDERED SLIM TO NONE.(emphasis ray own) WHEREFORE,PREMISES,CONSIDERED, APPELLANT PRAYS THIS HONORABLE COURT GRANTS THIS PETITION FOR DISCRETIONARY REVIEW AND REVERSE AND RE MAND APPELLANTS CONVICTION TO SHOW AN AQUITTAL,NEW PUNISHMENT AND /OR NEW TRIAL AND ANY OTHER RELIEF THAT THE APPELLANT IS ENTITLED TO. IT IS SO PRAYED. RESPECTFULLY SUBMITTED, Q JJjt (jI fi^jyjLte at*- )NE D.ANDERSON #1944026 BILL CLEMENTS UNIT 9601 SPUR 591 AMARILLO,TEXAS 79107 CERTIFICATE OF SERVICE I CERTIFY THAT A TRUE AND CORRECT COPY OF THE ABOVE AND FOREGOING PETITION FOR DISCRETIONARY REVIEW HAS BEEN SSNT TO THE STATE PRO SECUTING ATTORNEY,Mr. JEFFREY VAN HORN AT,P.O.BOX 12405,AUSTIN TEXAS 78711,AND THE COURT OF CRIMINAL APPEALS OF TEXAS AT,P.O.BOX 12308,CAPITOL STATION,AUSTIN,TX. 78711 BY U.S.MAIL,POSTAGE PREPAID, FIRST CLASS. ON THIS THE /*-/ DAY OF //u ftLAjfaoi5. jf {2/i^.elusiW^ TYRONE D.ANDERSON #1944026 4. APPENDEX In The Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-14-00074-CR TYRONE DENARD ANDERSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 354th District Court Hunt County, Texas Trial Court No. 29512 Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Justice Moseley APPENDEX MEMORANDUM OPINION A jury found Tyrone Denard Anderson guilty of possessionof cocaine in an amountof one gram or more but less than four grams, with intent to deliver. Pursuant to the jury's finding of "true" to three out of four of the State's enhancement allegations, Anderson was sentenced to life imprisonment. Anderson's attorney on appeal has filed a brief which states that she has reviewed the record and found no genuinely arguable issues that could be raised on appeal. The brief sets out the procedural history and summarizes the evidence elicited during the course of the proceeding. Meeting the requirements of Anders v. California, counsel has provided a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. Anders v. California, 386 U.S. 738, 743^14 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 509-10 (Tex. Crim. App. 1981); High v. State, 573 S.W.2d 807, 812-13 (Tex. Crim. App. [Panel Op.] 1978). Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal. We note that in Anders cases, "appellatecourts have the authorityto reformjudgmentsand affirm as modified in cases where there is non reversible [sic] error." Ferguson v. State, 435 S.W.3d 291, 294 (Tex. App.—Waco 2014, pet. struck) (comprehensively discussing appellate cases that have modified judgments in Anders cases). Here, we must modify the judgment by deleting the assessment of court-appointed attorney fees. Even though the record demonstrated that Anderson was indigent, the trial court's judgment ordered him to pay attorney fees in the amount of $5,535.00, an amount that was also APPENDEX included in the trial court's bill of costs. Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the authority to order an indigent defendant to pay court-appointed attorney fees only if "the court determines that [the] defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs." Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2014). '"[T]he defendant's financial resources and ability to pay are explicit critical elements in the trial court's determination of the propriety of ordering reimbursement of costs'" of legal services provided. Armstrong v. State, 340 S.W.3d 759, 765-66 (Tex. Crim. App. 2011) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). Here, the record is devoid of any determination or finding by the trial court that Anderson had financial resources or was otherwise able to pay his appointed attorney's fees. Thus, the assessment of attorney fees was erroneous and should be removed. Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); see Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010); Martin v. State, 405 S.W.3d 944, 946-47 (Tex. App.—Texarkana 2013, no pet.). Accordingly, we modify the trial court's judgment by deleting the assessment of attorney fees. . Next, in response to counsel's Anders brief, Anderson has filed a pro se response in which he argues (1) that the indictment was "constructively amended, in violation of his fifth amendment right," (2) that the evidence is legally insufficient to support the jury's finding of guilt because the testimony of an accomplice witness was insufficiently corroborated/(3)^hat_the trial court erred in failing to give the jury an accomplice witness instruction, (4) that the State's use of previous APPENDEX convictions for enhancement purposes violated his double jeopardy rights, and^(5)"))hat both trial and appellate counsel rendered ineffective assistance. We have independently reviewed the entire record, as well as Anderson's pro se response and the State's response, and we find no reversible error. See Halbert v. Michigan, 545 U.S. 605, 623 (2005). Therefore, with the exception of the improper assessment of court-appointed attorney fees, we conclude that no genuinely arguable issues support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We affirm the trial court's judgment, as modified.1 Bailey C. Moseley Justice Date Submitted: May 8, 2015 Date Decided: May 28,2015 Do Not Publish 'Since we agree this case presents no reversible error, we also, in accord with Anders, grant counsel's request to withdraw from further representation of Anderson in this case. Anders, 386 U.S. at 744. No substitute counsel will be appointed. Should Anderson wish to seek further review of this case by the Texas Court of Criming) l/£ffge$$, he must either retain an attorney to file a petition for discretionary review or file a pro sepetition foff^fgcr^^ppar^f?Y^feals Any petition for discretionary review must be filed within thirty days from thedate of this opinion. j^^T£^R.A?P- P. 68.2. Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See TEX. R. App. P. 68.3. Any petition for discretionary review should comply with the requiremerte/tof R^le^Sr/hof the Texas Rules ofAppellate Procedure. See Tex. R. App. P. 68.4. "" *" u 4 Texarkana, Texas Debra K. Autrey, Clerk