5th Court of Appeals
FILED: 8/19/2013
Lisa Matz, Clerk
NO. 05-13-00313-CR
NO. 05-13-00311-CR
IN THE
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS, TEXAS
===================
JAMES DARRELL WESTBROOK
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
================
ON APPEAL IN CAUSE NUMBERS
F12-59894-I AND F12-24087-I
FROM CRIMINAL DISTRICT COURT NUMBER 2
=================
BRIEF FOR THE APPELLANT,
JAMES DARRELL WESTBROOK
================
Deborah Ellison Farris
SBN 06843200
4136 High Summit Drive
Dallas, Texas 75244
(972) 484-2895
ATTORNEY ON APPEAL ONLY
IDENTITY OF PARTIES AND COUNSEL
This is an appeal from criminal convictions. The only parties are Appellant,
James Darrell Westbrook, BNO 13012474, Dallas County Jail, P.O. Box 660334,
Dallas, Texas, 75222-0334 and the State of Texas, as represented by the Criminal
District Attorney of Dallas County, Texas.
ATTORNEYS FOR APPELLANT
At trial and revocation: Rebecca Malek, Asst. P.D. & Margaret Jones-Johnson-133
N. Riverfront Blvd., Dallas, Texas 75207; P.O. Box 225390, Dallas, Texas 75222-
5390
SBN - 24054378 SBN-00796844
On Appeal: Deborah Ellison Farris - 4136 High Summit Drive, Dallas, Texas 75244
SBN - 06843200
ATTORNEYS FOR STATE
At trial and revocation: Felicia Kerney and Adolfo Lopez - 133 N. Riverfront Blvd.,
Dallas, Texas 75207
SBN - 24012956 SBN - 24070169
On Appeal: Appellate attorney designated by Craig Watkins, District Attorney
Dallas County - 133 N. Riverfront Blvd., Dallas, Texas 75207
THE JUDGE(S)
The Honorable Farrel Chapman
The Honorable Don Adams
Criminal District Court Number 2
Dallas County, Texas
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TABLE OF CONTENTS
INDEX
IDENTITY OF PARTIES AND COUNSEL i
TABLE OF CONTENTS ii
INDEX OF AUTHORITIES iii
STATEMENT OF THE CASES 2,3
ISSUES PRESENTED 4
ARGUMENT 5
STATEMENT OF FACTS 6
SUMMARY OF THE ARGUMENTS 8
PRAYER 13
CERTIFICATE OF SERVICE 13
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Anders v. California, 386 U.S. 738 (1966) 5
Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969) 5,12
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005 11
Harmelin v. Michigan, 501 U.S. 957 (1991) 12
Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983) 11
Jeffery v. State, 903 S.W.2d 776 (Tex. App.--Dallas 1995, no pet.) 12
Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005) 10
Robertson v. State, 821 S.W.2d 446,448 (Tex. App.- Corpus Christi 10
1991, pet. ref'd)
Strickland v. Washington, 466 U.S. 668 (1984) 11
Swarb v. State, 125 S.W.3d 672,684 (Tex. App.-Houston [1st Dist.] 10
2003 pet. dism'd)
Thompson v. State, 9 S.W.3d 808,812-813 (Tex. Crim. App. 1999) 11
Young v. State, 8 S.W.3d 656 (Tex. Crim. App. 2000) 9
CODES
TEX. CODE CRIM. PROC. ANN. art. 1.13 10
TEX. CODE CRIM. PROC. ANN. art. 1.14 10
TEX. CODE CRIM. PROC. ANN. art. 1.15 9
TEX. CODE CRIM. PROC. ANN. art. 26.13 8,9
TEX. PENAL CODE ANN. SEC. 31.03 9
TEX. HEALTH & SAFETY CODE, 481.115 9
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CONST.
U.S. CONST. amend. VIII 11
TEX. CONST. Art. I § 13 11
TEX. CONST. ART. V § 12 10
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NO. 05-13-00313-CR
NO. 05-13-00311-CR
IN THE
COURT OF APPEALS
FOR THE
FIFTH DISTRICT OF TEXAS AT
DALLAS, TEXAS
______________________________________________________
JAMES DARRELL WESTBROOK
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE
__________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
APPELLANT, JAMES DARRELL WESTBROOK, respectfully submits this
brief related to his convictions in Cause Numbers F12-59894-I and F12-24087-I.
Appellant waived a jury and entered negotiated pleas of guilty to the offenses of
theft, enhanced, and possession of a controlled substance, to wit: methamphetamine.
Pursuant to the plea agreements, the court magistrate deferred adjudication of guilt
and placed Appellant on probation for five (5) years community supervision in each
case. Additionally, in Cause Number F12-59894, the court assessed a $2,000 fine
and ordered $206 in restitution. (RR.II-8; CR.II-21). Pursuant to the State's Motion
to Proceed with Adjudications of Guilt, Appellant pleaded true to violations
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of probation. The trial court found Appellant guilty and assessed punishment at five
(5) years' imprisonment in each case. The cases were heard in Criminal District
Court Number 2, before the Honorable Farrell Chapman and the Honorable Don
Adams, judges presiding.
STATEMENT OF THE CASES
In Cause No. F12-24087-I, Appellant, James Darrell Westbrook, was
charged by indictment filed on November 5, 2012, with the offense of theft,
enhanced, alleged to have been committed on or about July 9, 2012, in Dallas
County, Texas. (CR.I-11).
In Cause No. F12-59894-I, Appellant, James Darrell Westbrook, was
charged by indictment filed on October 29, 2012, with the offense of possession of
a controlled substance, to wit: methamphetamine, alleged to have been committed
on or about September 6, 2012, in Dallas County, Texas. (CR.II-12).
Both cases were tried together. On November 12, 2012, Appellant requested
that his cases be heard before a magistrate. (CR.I-12; CR.II-13). Appellant waived a
jury and entered negotiated pleas of guilty. (RR.II-5,6; CR.I-15; CR.II-16). In each
case, the State offered State's Exhibit No. 1, Appellant's signed judicial confession
and stipulation of evidence. (RR.II-7; CR.I-16;CR.II-19). The magistrate followed
the plea agreements, deferred a finding of guilt and placed Appellant on five (5)
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years community supervision. (RR.II-8; CR.I-20). Additionally, the trial court
assessed a $2,000 fine and ordered $ 206 restitution in cause number F12-59894.
(RR.II-8;CR.II-21).
On February 26, 2013, the State filed Motions to Revoke or Proceed with
Adjudications of Guilt alleging Appellant violated certain conditions of his
community supervision. (CR.I-31;CR.II-31). The State's motions were heard on
February 28, 2013, and Appellant pleaded true to the allegations. (RR.III-7; CR.I-
43; CR.II-40). In each case, State's Exhibit No.1, Appellant's signed pleas of true
and stipulations of evidence were offered and admitted into evidence without
objection. (RR.III-7,8). After hearing all the evidence, the trial court adjudicated
Appellant guilty, found the enhancements true, and assessed Appellant's punishment
at five (5) years' imprisonment in each case. (RR.III- 24,25; CR.I-45; CR.II-42).
The Appellant excepted the verdicts and, filed in each case, Motions for New
Trial and timely Notices of Appeal on February 28, 2013. (CR.I-50, 51; CR.II-
50,51). The undersigned counsel was appointed to represent Appellant on appeal.
(CR.I-54; CR.II-52).
====================
CR.I- refers to the clerk's record in Cause No. F12-24087-I; CR.II- refers to the clerk's record in Cause No.
F12-59894-I ; RR-II. refers to the reporter's record of Appellant's pleas taken on November 12, 2012; RR.III-
refers to the reporter's record of Appellant's pleas taken on February 28, 2013.
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ISSUES PRESENTED FOR REVIEW
Appellant submits that the brief contains no arguable grounds
of error.
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ARGUMENT
In compliance with the requirements of Anders v. California, 386 U.S. 738
(1966) and Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969), the
undersigned appointed attorney on appeal for Appellant, James Westbrook, states
that she has diligently reviewed the entire record in the causes and the law
applicable thereto and, in her opinion, the appeals are without merit and wholly
frivolous in that the record reflects no reversible error. It is also the opinion of the
undersigned appointed attorney on appeal that there are no grounds of error on
which an appeal can be predicated.
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STATEMENT OF FACTS
Both cases were tried together. Appellant pleaded guilty to the offenses of
theft and possession of a controlled substance, to wit: methamphetamine. Pursuant
to the plea agreements, the trial court deferred a finding of guilt, placed Appellant
on five (5) years community supervision, and assessed a $2,000 fine and ordered
$206 restitution in cause number F12-59894.
Later, the State filed motions to proceed with adjudications of guilt alleging
Appellant violated certain conditions of his community supervision. Subsequent to
the hearing on the State's motions, Appellant pleaded true . (CR.I-31; CR.II-
31;RR.III-7).
Appellant testified that while on probation he was ordered to the Substance
Abuse Facility Punishment Program (SAFPF) and he was unsuccessful because he
has a problem with reading and writing. (RR.III-8). He also stated, but later denied
he has a sleeping disorder and was placed on medications.(RR.III-11,13). Appellant
stated he signed up for the program and that if he could have been able to read and
write that he could have done the program because he participated in the program.
Appellant stated that he does not have a drug problem, even though he
acknowledged that he was convicted of approximately 8 drug offenses in 2007.
(RR.III-17,18). Appellant denied he told the probation officer that he had a
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GED. (RR.III-17). Appellant denied that he stole the car he is now on probation.
(RR.III-18).Appellant admitted his problem is that he is always around the wrong
people and that he cannot read or write. (RR.III-15) .
Josephine Hadnot, a probation officer with Dallas County, stated that
Appellant advised her that in 2007, while in prison, he got his GED. She stated that
Appellant never advised her that he needed special education classes. (RR.III-20).
After hearing all the evidence, the court granted the State's motions, found
Appellant guilty, the enhancements true, and assessed Appellant's punishment at
five (5) years' imprisonment, in each case. (RR.III-24,25; CR.I-45;CR.II-42).
Appellant filed Motions for New Trial and Notices of Appeal on February 28, 2013.
(CR.I-50,51; CR.II-50,51).
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SUMMARY OF THE ARGUMENTS
After diligent search, the undersigned attorney, appointed as counsel for
Appellant on appeal, has determined that the appeals are frivolous and without
merit.
The record in the causes clearly reflects that pursuant to the plea agreements,
the court deferred a finding of guilt and placed Appellant on five (5) years'
community supervision. Additionally, the trial court assessed a $2,000 fine and
ordered $ 206 restitution in cause number F12-59894. (RR.II-8; CR.II-21).Prior to
accepting Appellant's negotiated pleas of guilty, the trial court inquired as to the
voluntariness of the plea and Appellant's understanding of the consequences of his
plea. (RR.II-5,6,7). Appellant stated in the positive and that he understood its
consequences. (RR.II-6,7). The Appellant testified that he can read and understands
the English language. (RR.II-5). The trial court made a specific finding that
Appellant was competent to enter his pleas. (RR.II-8). Additionally, after a complete
review of the record, the undersigned attorney is satisfied that Appellant was
competent to enter his pleas of guilty, and that the pleas were both free and
voluntary. TEX. CODE CRIM. PROC. ANN. art. 26.13 (b). The record contains
written admonishments in accordance with the terms of TEX. CODE CRIM.
PROC. ANN. art. 26.13. (CR.I-13). The admonishments contain a deportation
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clause. The admonishments were signed by Appellant. (CR.I-19; CR.II-20).
Additionally, Appellant was admonished in open court by the trial court judge; those
admonishments are in substantial compliance with Article 26.13. (RR.II-4-8).
The State introduced evidence sufficient to substantiate Appellant's pleas of
guilty. TEX. CODE CRIM. PROC. ANN. art. 1.15. Appellant judicially
confessed to the crimes with which he was charged; this was introduced, in each
case as State's Exhibit 1. (RR.II-7; CR.I-18;CR.II-19). Appellant testified and
admitted that he was pleading guilty voluntarily. (RR.II-7). Pursuant to the plea
agreements, the trial court deferred adjudication of guilt and placed Appellant on
community supervision for five (5) years. In cause no. F12-59894-I, the court
assessed a $2,000 fine and $206 in restitution. (RR.II-8). Subsequently, the state
filed motions to adjudicate guilt. At the hearing to adjudicate guilt, Appellant
pleaded true to certain violations. The trial court adjudicated Appellant guilty and
assessed his punishment at (5) years confinement in each case.
After diligent review of the record, the undersigned attorney perceives no
error jurisdictional or non jurisdictional defects. Compare Young v. State, 8 S.W.3d
656 (Tex. Crim. App. 2000). The indictments for theft and possession of a
controlled substance, to wit: methamphetamine, contain all elements of the offenses
as prescribed by TEX. PENAL CODE, SECTION 31.03 and TEX. HEALTH &
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SAFETY CODE, 481.115. The indictments conferred jurisdiction upon the trial
court. TEX. CONST. Art. V § 12. , Robertson v. State, 821 S.W.2d 446,448 (Tex.
App.- Corpus Christi 1991, pet. ref'd); Swarb v. State, 125 S.W.3d 672,684 (Tex.
App.-Houston [1st Dist.] 2003 pet. dism'd); Poindexter v. State, 153 S.W.3d 402,
405 (Tex. Crim. App. 2005). No complaint, either in the form of objections or
motions were made to the indictments of theft and possession of a controlled
substance, to wit: methamphetamine TEX. CODE CRIM. PROC. ANN. art. 1.14
(b).
The undersigned attorney has searched the record for any pre-trial motions
which might support a point of error. No pre-trial motions, if any, were brought to
the court's attention which might support a ground of error. Hence, there is nothing
for review.
The request for referral to a magistrate was signed by all the parties and the
presiding judge Don Adams. (CR.I-12,13). Appellant properly waived his right to a
jury trial in accordance with the terms of TEX. CODE CRIM. PROC. ANN. art.
1.13. (RR.II-5,6; CR.I-15;CR.II-16). The waivers made in open court and the court's
admonitions to the defendant were signed by all parties, and received the consent
and approval of the trial court, as required by Art. 1.13. (CR.I-15; R.II-16).
The undersigned attorney has reviewed the records to determine if any
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objections were made on Appellant's behalf which would support a Point of Error on
appeal. No objections were made on Appellant's behalf. Nor does the record reflect
any opportunity where a proper objection could have been interposed on Appellant's
behalf. The record reflects that Motions for New Trial were not filed at the time of
the deferred adjudication sentence. The Motions for New Trial filed after the
revocations were overruled by the trial court. There is no basis on which to predicate
a point of error. The undersigned attorney has reviewed the performance of trial
counsels. Based on the standards of Strickland v. Washington, 466 U.S. 668
(1984), Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005 (quoting
Thompson v. State, 9 S.W.3d 808, 812-813 (Tex. Crim. App. 1999), the record
reflects that Appellant received reasonably effective assistance of trial counsel at
both the guilty plea and motion to revoke hearings.
The trial court inquired as to whether Appellant was aware of the proper
range of punishments and Appellant responded in the positive. (RR.II-6). The
signed admonishments also contain the proper range of punishments established by
the Legislature, and as such, do not violate the constitutional prohibitions against
cruel and unusual punishment or either U.S. CONST. amend. VIII or TEX.
CONST. Art. I § 13. (RR.III-24,25). Harris v. State, 656 S.W.2d 481, 486 (Tex.
Crim. App.1983); Thompson v. State, 9 S.W.3d 808, 812-813 (Tex. Crim. App.
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1999). Nor does the undersigned attorney discern anything in the record to suggest
that the punishments assessed are grossly disproportionate to the crimes. See
Harmelin v. Michigan, 501 U.S. 957 (1991). Additionally, no objection was made
to the punishment assessed. Both of the court's written judgments appear accurate.
(CR.I-45; CR.II-42 ).
The undersigned appointed attorney on appeal has served a copy of this brief
on Appellant. At this time, the undersigned attorney informed Appellant, by letter,
that, in her professional opinion, the appeal is without merit. The undersigned
attorney also explained that Appellant also has the right to review the record and file
a pro se brief if he so desires. The undersigned attorney has explained to Appellant
that the trial court may make the records available to him. Gainous v. State, 436
S.W.2d at 138. Appellant has also been informed by the undersigned attorney that
he may request an extension of time from this Honorable Court for the filing of a
pro se brief if he so desires. The undersigned attorney has also attached a Motion to
Withdraw as mandated by the Court's opinion in Jeffery v. State, 903 S.W.2d 776
(Tex. App.--Dallas 1995, no pet). In the undersigned attorney's professional opinion,
Appellant received a fair trial free from reversible error. After full review of the
record, the undersigned attorney is of the opinion that the appeals are without merit
and wholly frivolous in that the record reflects no reversible error.
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PRAYER
WHEREFORE, PREMISES CONSIDERED, the Appellant prays, that if
reversible error appears in the record of the trial of these cases, that this Honorable
Court enter judgments of acquittal or, in the alternative, to reverse the convictions
and remand the cases to the trial court for further proceedings.
Respectfully submitted,
________________________
Deborah Ellison Farris
SBN 06843200
4136 High Summit Drive
Dallas, Texas 75244
(972) 484-2895
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing brief will be E-briefed to the
Fifth Court of Appeals, 600 Commerce Street, Dallas, Texas 75202 and by hand
delivery to the same, and to the Appellee, Craig Watkins, District Attorney for
Dallas County, Texas, Appellate Section, Crowley Courts Bldg., 133 N. Riverfront
Blvd., LB-19, Dallas, Texas, 75207, by hand delivery to the District Attorney's
"basket" located in the Dallas Court of Appeals, and to Appellant, James Darrell
Westbrook, BNO 13012474, Dallas County Jail, P.O. Box 660334, Dallas, Texas,
75222-0334 by U.S. Mail or about this _____ day of August 2013.
_____________________________________
DEBORAH ELLISON FARRIS
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NO. 05-13-00313-CR
NO. 05-13-00311-CR
IN THE
COURT OF APPEALS
FOR THE
FIFTH DISTRICT OF TEXAS AT
DALLAS, TEXAS
______________________________________________________
JAMES DARRELL WESTBROOK
APPELLANT
VS.
THE STATE OF TEXAS,
=================
MOTION TO WITHDRAW
AS APPOINTED COUNSEL ON APPEAL
================
COMES NOW Deborah Ellison Farris, appointed counsel on appeal,
respectfully submits this Motion to Withdraw as Appointed Counsel on Appeal in
the above entitled and numbered causes. In support of this Motion, appointed
counsel would show this Honorable Court the following:
I.
On February 28, 2013, the undersigned attorney was appointed by the
Honorable Don Adams, presiding judge of Criminal District Court Number 2 of
Dallas County, Texas to represent Appellant in the appeal of his convictions in these
causes; notice of appeal given on February 28, 2013. Pursuant to the appointment,
the undersigned attorney prepared and filed Designations of the Clerk's Record and
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requests for the Court Reporter's Records for appeal on Appellant's behalf.
II.
After a full review of the records in the causes, the undersigned attorney is of
the opinion that there are no grounds of error upon which an appeal can be
predicated.
III.
The undersigned attorney informed Appellant, by letter, that, in her
professional opinion, the appeals are without merit. The undersigned attorney has
explained to Appellant that he has the right to file a pro se brief if he so desires and
that the trial court may make the records available to him if he desires to file a pro
se brief. Counsel has mailed copies of the brief and the clerk and reporter's records
to Appellant. Appellant has been informed by the undersigned attorney that he may
request an extension of time from this Honorable Court for the filing of a pro se
brief, if he so desires.
WHEREFORE, PREMISES CONSIDERED, the undersigned attorney
prays that this Court grant the Motion to Withdraw as Appointed Counsel on Appeal
in the above entitled and numbered causes.
Respectfully submitted,
Deborah Ellison Farris
SBN 06843200
4136 High Summit Drive
Dallas, Texas 75244
(972) 484-2895
Attorney on Appeal
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CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing will be E-
briefed and by U.S. mail, delivered to the Fifth Court of Appeals, 600 Commerce
Street, 2nd floor, Dallas, Texas 75202 and the Appellee, Craig Watkins, the
Criminal District Attorney of Dallas County, Texas, 133 N. Riverfront Blvd., Dallas,
Texas 75207 in their "basket" in the Court of Appeals, Fifth Judicial District at
Dallas; and to Appellant, James Darrell Westbrook, BNO 13012474, Dallas County
Jail, P.O. Box 660334, Dallas, Texas, 75222-0334 by U.S. Mail or about this
_______ day of August 2013.
_______________________________
Deborah Ellison Farris
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James Westbrook v. State
Combined Opinion