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