ACCEPTED
FILED 13-14-723-CR
IN THE 13TH COURT OF APPEALS THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
CORPUS CHRISTI - EDINBURG
7/27/2015 5:31:58 PM
CECILE FOY GSANGER
7/27/15 CLERK
CECILE FOY GSANGER, CLERK Cause No. 13-14-723-CR
BY DTello
IN THE THIRTEENTH COURT OF APPEALS RECEIVED IN
13th COURT OF APPEALS
CORPUS CHRISTI and EDINBURG, TEXAS
CORPUS CHRISTI/EDINBURG, TEXAS
7/27/2015 5:31:58 PM
GUADALUPE RICHARDSON, CECILE FOY GSANGER
Clerk
Appellant
V.
STATE OF TEXAS,
Appellee
Appealed from Cause No. 09-CR-2645-G in the 319th Judicial District Court,
Nueces County, Texas, the Hon. David Stith presiding.
APPELLANT’S AMENDED ANDERS BRIEF
Respectfully submitted by:
Rene C. Flores
715 Artesian
Corpus Christi, TX 78401
(361) 888-5671
(361) 887-7009 (fax)
List of Parties and Counsel
Appellant
Mr. Guadalupe Richardson
TDCJ # 1970285
Terrell Unit
1300 FM 655
Richardson, TX 77583
Appellant’s Trial Counsel
Mr. Ruben Tijerina
Law Office of Ruben Tijerina
P.O. Box 892
Corpus Christi, TX 78403
Appellant’s Appellate Counsel
Rene C. Flores
715 Artesian
Corpus Christi, TX 78401
Appellee State of Texas’s Trial and Appellate Counsel
Ms. Kelly Palmarozzi
Mr. Jim Rosenkild
Assistant Nueces County District Attorney
Nueces County District Attorney’s Office
Nueces County Courthouse
901 Leopard St.
Corpus Christi, TX 78401
ii
Table of Contents
List of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. Anders statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
II. The signed admonishments do not identify the original charge by
offense, date of offense, or date of community supervision. . . . . . . . 5
III. The trial court failed to admonish defendant that he could proceed
pro se. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Certificate of Compliance and Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
iii
Index of Authorities
Cases
Adams v. United States ex rel. McCann, 317 U.S. 269 (1942) . . . . . . . . . . . . . . . . 6
Anders v. California, 386 U.S. 738 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Anderson v. Sheppard, 856 F.2d 741 (6th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . 7
Brown v. State, 13-12-00067-CR (Tex. App.–Corpus Christi 3-14-2013) . . . . . . . 7
Collier v. State, 959 S.W.2d 621 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . 6
Faretta v. California, 422 U.S. 806 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Seagraves v. State, 342 S.W.3d 176 (Tex. App. –Texarkana 2011, no pet.) . . . . . 7
United States v. Conder, 423 F.2d 904 (6th Cir. 1970) . . . . . . . . . . . . . . . . . . . . . 6
United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) . . . . . . . . . . . . . . . . . . . . . 7
Williams v. State, 252 S.W.3d 353 (Tex. Crim App. 2008) . . . . . . . . . . . . . . . . 6, 7
iv
Statement of the Case
This appeal is brought from a proceeding to adjudicate guilt and revoke
community supervision of the defendant in State of Texas vs. Guadalupe Richardson,
Cause No. 09-CR-2645-G in the 319th Judicial District Court, Nueces County, Texas,
the Hon. David Stith presiding.
Pursuant to a plea agreement (CR p. 42), Mr. Richardson pleaded guilty on June
4, 2010, to the second degree felony offense of aggravated assault with a deadly
weapon. CR pp. 43-45. The court followed the agreement and placed him on deferred
adjudication community supervision for five years. CR 43.
v
Issues Presented
Whether the trial court is required to admonish a defendant in a revocation
proceeding that he has a constitutional right to self-representation.
Whether admonishments in a revocation proceeding are sufficient when they
fail to specify the offense charged, date of offense, or date of community supervision
order.
vi
Statement of Facts
Guadalupe Richardson was charged by indictment of aggravated assault with
a deadly weapon. CR 5. On June 4, 2010, he pleaded guilty pursuant to a plea
agreement and received 5 years deferred adjudication community supervision. CR 43.
On July 25, 2013, Defendant committed the misdemeanor offense of Driving
Under the Influence of Drugs, and he was found guilty on August 28, 2014. SX 1.
On September 25, 2014, he was found guilty and sentenced for misdemeanor assault,
but the documents do not show the date on which the offense occurred. SX 1. On
October 22, 2014, the State filed a Motion to Revoke Community Supervision. CR
61. The State alleged Mr. Richardson pleaded guilty to DWI and family violence
assault in Virginia on August 28, 2014, and Mr. Richardson failed to complete AIR
and BIPP classes and the Felony Victim Impact Panel. CR 62. Mr. Richardson was
arrested and completed an affidavit of indigency, requesting appointed counsel. CR
50.
On November 24, 2014, Mr. Richardson appeared with appointed counsel,
signed admonishments that left blank the underlying offense, date of offense, and date
of imposition of community supervision. CR 54. The trial court inquired of Mr.
Richardson if he could speak English, was a citizen, was ever an MHMR patient, was
on medication at the time of the hearing, understood the proceedings, the allegations
1
in the motion to revoke probation, and the range of punishment. RR Vol. 2, pp. 3-6.
The court asked Mr. Richardson if he was satisfied with the advice given by counsel.
RR Vol. 2, p. 6, ll. 9-11. The trial court admonished Mr. Richardson that there are no
plea bargains in revocation proceedings. RR Vol. 2, p. 6, ll. 12-16. It admonished
Mr. Richardson that he had 30 days to appeal the decision and would have counsel
appointed on request if he could not afford one. RR Vol. 2, p. 6, ll. 16-20. At one
point, Mr. Richardson said he was forced to plead true, but upon further questioning
by the court, he admitted he was not forced to plead true but was doing so voluntarily.
RR Vol. 2, p. 8, ll. 1-12.
Mr. Richardson pleaded true to the allegations. RR Vol. 2, p. 7, ll. 1-15. He
explained the circumstances of the family violence assault in Virginia as a
disagreement with his spouse that was overblown by his stepson who wanted his
father back. RR Vol. 2, p. 9, ll. 12-21. He nevertheless admited to pleaded guilty to
or was found guilty of the charge in Virginia then and pleaded true to the allegation
in Texas at the revocation hearing. RR Vol. 2, p. 10, ll. 17-22.
Mr. Richardson explained his failure to complete the required classes as being
approved by the probation officer in Virginia due to his medical condition (cancer
treatment) and to his continuing education (obtaining a degree in medical technology).
RR Vol. 2, pp. 13-16.
2
The community supervision officer recommended a 90 day jail sanction, zero
tolerance, but continued on deferred adjudication. RR Vol. 2, p. 19, ll. 22 through p.
20, l. 5. Defense asked for a 30 day sanction but indicated a willingness to abide by
the 90 day recommendation of the community supervision officer, with Mr.
Richardson continued on deferred adjudication since he was close to the end of his
probationary period. RR Vol. 2, pp. 20-21. The State asked for revocation and low
pen time or to revoke, adjudicate, and place him back on community supervision. RR
Vol. 2, p. 21, l. 24 through p. 22, l. 5
The trial court revoked community supervision, found Mr. Richardson guilty,
and sentenced him to two years. RR p. 22, ll. 12-19. Mr. Richardson timely appealed
on December 10, 2014. CR 67.
Summary of the Argument
Counsel for Appellant-Defendant has reviewed the record and determined that
no non-frivolous basis for appeal exists. Counsel has determined some irregularities
in the proceedings that are worthy of complaint but do not constitute reversible error.
Hence, Counsel files this brief to comply with the requirements of Anders v.
California, 386 U.S. 738 (1967), illustrating what he considers to items in the record
that arguably support an appeal. Counsel has filed a motion to withdraw.
3
Counsel has taken the additional steps:
1) Sending to the client on July 17, 2015, a form for filing a Pro Se Motion to
Examine the Record which included a motion for extension of time to file pro se brief,
2) Informed the client of his right to file a pro se brief in reply in this Honorable
Court and of his right to file a pro se Petition for Discretionary Review in the Court
of Criminal Appeals in the event this Honorable Court determines the appeal is
frivolous.
Argument
I. Anders statement
Defendant’s counsel has reviewed the record and finds no non-frivolous
grounds for appeal. Defendant pleaded true to the allegations in the motion to revoke
community supervision, the motion was filed before the expiration of the period of
communisty supervisionguilty to the offense charged, the court found the allegations
to be true, revoked community supervision, adjudicated him guilty, and sentenced him
to the minimum sentence for the underlying offense. All the actions by the trial court
were within its broad scope of discretion. Defendant’s counsel has determined there
is the possibility that this Court may find there is some merit to the arguments outlined
below.
4
A motion to withdraw is being filed simultaneously with this brief. Both are
being mailed US Mail CMRR #7006 0810 0003 9567 5861 to
Mr. Guadalupe Richardson
TDCJ # 1970285
Terrell Unit
1300 FM 655
Richardson, TX 77583
II. The signed admonishments do not identify the original charge by offense,
date of offense, or date of community supervision.
The admonishments signed by Mr. Richardson do not specify the offense for
which he was placed on community supervision, the date of the offense, or the date
on which community supervision was imposed. The trial court did not inquire if he
was the same Guadalupe Richardson that was placed on community supervision on
June 4, 2010, for aggravated assault.
Undersigned counsel has found no cases to support an argument that a trial
court’s decision to revoke community supervision is rendered void or voidable for
lack of a recitation in the record that the defendant agrees that he was the person
placed on community supervision on the certain date for the certain offense.
Moreover, no objection was made to the trial court that Mr. Richardson was not the
defendant in Cause No. 09-CR-2645-G, and he testified in a fashion showing that he
5
was the defendant, acknowledging the requirements of attending AIR and BIPP
classes. RR Vol. 2, pp. 13-16. Furthermore, his attorney argued for continuing Mr.
Richardson on community supervision, noting he was nearing the end of that
supervisory period (scheduled to expire June 4, 2015).
6
III. The trial court failed to admonish defendant that he could proceed pro se.
The Sixth Amendment guarantees criminal defendants the right to represent
themselves at trial. Faretta v. California, 422 U.S. 806, 819-20 (1975). The right of
self-representation and the right to counsel are “two faces of the same coin, in that the
waiver of one right constitutes a correlative assertion of the other." United States v.
Conder, 423 F.2d 904, 908 (6th Cir. 1970) (internal quotation marks and citation
omitted). The Sixth Amendment contains the right to self-representation, where the
defendant voluntarily and intelligently requests to represent himself. Faretta, 422
U.S. at 807, 818-20, 835; Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim App.
2008). A defendant who has chosen to proceed pro se should be admonished about
"the dangers and disadvantages of self-representation, so that the record will establish
that `he knows what he is doing and his choice is made with his eyes open.'" Faretta,
422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279
(1942)). In other words, for a waiver of counsel to be made voluntarily and
intelligently in this context, it must be made "with a full understanding of the right to
counsel, which is being abandoned"; generally, the record must reflect that the trial
court "thoroughly" warned and admonished the defendant about proceeding pro se.
Collier v. State, 959 S.W.2d 621, 626 & n.8 (Tex. Crim. App. 1997). Furthermore,
the Texas Court of Criminal Appeals has "recognized that when the record does not
7
affirmatively show that the defendant was sufficiently admonished as required by
Faretta, it is reversible error, not subject to a harm analysis." Williams, 252 S.W.3d
at 35. This analysis applies to probation revocation proceedings. See Brown v. State,
13-12-00067-CR (Tex. App.–Corpus Christi 3-14-2013).
The Sixth Amendment also guarantees that a defendant who can hire his own
attorney has a right, independent and distinct from the right to effective counsel, to be
represented by the attorney of his choice. United States v. Gonzalez-Lopez, 548 U.S.
140, 147-48 (2006). The right to retain counsel has even been held by some courts
to so fundamental that denial of the right does not require a harm analysis. See, e.g.,
Anderson v. Sheppard, 856 F.2d 741, 749 (6th Cir. 1988).
However, this is not a case in which the trial court denied a request to defend
one’s self pro se. This is merely a case in which it is arguably error for the trial court
to fail to admonish the defendant of his right to appear pro se. Defendant did not ask
to appear pro se, and actually requested counsel to be appointed. CR 50. There being
no objection to proceeding with appointed counsel, there is no error preserved.
Furthermore, in admonishing the defendant on an original adjudication, substantial
compliance by the court is sufficient, unless the defendant affirmatively shows that
he was not aware of the consequences of his plea and that he was misled or harmed
by the admonishment of the court. Seagraves v. State, 342 S.W.3d 176, 181-82 (Tex.
8
App. –Texarkana 2011, no pet.); TEX. CODE CRIM. PROC. ANN. art 26.13.
Accordingly, in the event this Honorable Court is of the opinion this issue
presents a non-frivolous point for appeal, Appellant would respectfully request this
Honorable Court order further briefing.
Prayer
Appellant, Guadalupe Richardson, respectfully requests this Honorable Court
review the proceedings below for error, and upon finding an arguable basis for appeal
request briefing on the merits of the points or direct the trial court to appoint new
counsel to brief the issues. Appellant requests all relief to which he may be entitled,
including general relief.
Respectfully submitted,
/s/ Rene C. Flores
Rene C. Flores
State Bar No. 00784063
715 Artesian
Corpus Christi, TX 78401
(361) 888-5671
(361) 887-7009 (fax)
Attorney for Appellant
9
Certificate of Compliance and Service
I, Rene C. Flores, certify that this brief contains 1612 words in those matters not
exempted by Rule 9. I further certify I delivered a copy of this brief to the Nueces
County District Attorney by the State Electronic filing service on July 17, 2015, and
via US Mail CMRR # to
Mr. Guadalupe Richardson
TDCJ # 1970285
Terrell Unit
1300 FM 655
Richardson, TX 77583
/s/ Rene C. Flores
Rene C. Flores
10