ACCEPTED
12-15-00151-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
8/31/2015 2:24:13 PM
CATHY LUSK
CLERK
NO. 12-15-00151-CR
RECEIVED IN
12th COURT OF APPEALS
IN THE COURT OF APPEALS TYLER, TEXAS
8/31/2015 2:24:13 PM
TWELFTH COURT OF APPEALS DISTRICT CATHY S. LUSK
Clerk
TYLER, TEXAS
_________________________________________________________________
8/31/2015
ROLAND I. ODOM
Appellant
V.
STATE OF TEXAS
State
_________________________________________________________________
ANDERS/GAINOUS BRIEF OF APPELLANT
ROLAND I. ODOM
_________________________________________________________________
LAW OFFICE OF STEN M. LANGSJOEN
P.O. BOX 539
TYLER, TEXAS 75710-0539
TELEPHONE: (903) 531-0171
TELEFAX: (903) 531-0187
SBN: 11922800
e-mail: sten@langsjoenlaw.com
ORAL ARGUMENT NOT REQUESTED: Sten M. Digitally signed by Sten M. Langsjoen
DN: cn=Sten M. Langsjoen, o, ou,
email=sten@langsjoenlaw.com, c=US
Langsjoen Date: 2015.08.31 13:28:43 -05'00'
________________________________
STEN M. LANGSJOEN
State Bar No. 11922800
ATTORNEY FOR APPELLANT
TABLE OF CONTENTS
Names of All Parties ...................................................................................................... iv
Index of Authorities ........................................................................................................ v
Index of Abbreviations.................................................................................................. vii
Introduction..................................................................................................................... 1
Preliminary Statement of the Nature of the Case............................................................ 2
Statement of Points of Error [Anders; Gainous] ............................................................. 3
Statement of Facts........................................................................................................... 4
Brief of the Argument ..................................................................................................... 4
Authority and Argument.................................................................................................. 4
WORD Count Certificate.............................................................................................. 11
Prayer............................................................................................................................ 12
Certificate of Service ................................................................................................... 13
Appendix...................................................................................................................... 14
iii
NAMES OF ALL PARTIES
Parties to this action are:
Appellant
Roland I. Odom, Inmate No.: 00580038
Joe F. Gurney Transfer Unit
1385 FM 3328
Palestine, Texas 75803
Counsel for Appellant
Sten Langsjoen
P.O. Box 539
Tyler, Texas 757510-0539
Appellee
State of Texas
Counsel for Appellee
Rachael Patton, District Attorney for Cherokee County
502 North Main
Rusk, Texas 75785
Counsel for the parties before the Trial Court were:
Counsel for Defendant (Appellant)
William Wilder
P.O. Box 537
Rusk, Texas 75785
iv
Counsel for State of Texas
Rachael Patton, District Attorney for Cherokee County
502 North Main
Rusk, Texas 75785
INDEX OF AUTHORITIES
Constitution
United States Constitution, 6th Amendment ................................................................... 8
United States Constitution, 14th Amendment ................................................................. 8
Texas Constitution, Article 1, Section 10....................................................................... 8
Cases
Adkinson v. v. State of Texas, 762 S.W.2d 255, 259
(Tex. App. – Beaumont 1988, pet. ref’d) ............................................................... 5
Anders v. California, 386 U.S. 738 (1967) .................................................................... 3
Ex Parte Bratchett, 513 S.W.2d 851 (Tex. Crim. App. 1974).......................................8
Ex Parte Burns, 601 S.W. 2d 370, 372 (Tex. Crim. App. 1980) ...................................8
Gainous v. State of Texas, 436 S.W.2d 137 (Tex. Crim. App. 1969)............................3
Garcia v. State, 57 S.W.3d at p. 436, 440 (Tex. Crim. App. 2001) ...............................9
Medeiros v. State of Texas,
733 S.W. 2d 605, 607 (Tex. App. – San Antonio 1987)................................................9
v
Strickland v. Washington, .............................................................................................. 8
Statutes/Rules
Tex. Code Crim. Proc, Art. 1.05 (Trial Rights)...................................................... 8
Tex. Code Crim. Proc, Art. 19.27 (GJ Challenge)......................................................5
Tex. Code Crim. Proc, Art. 21.02 (Indictment) ..........................................................5
Tex. Code Crim. Proc, Art. 26.02 (Arraignment) .......................................................5
Tex. Code Crim. Proc, Art. 26.13 (a) (Accepting Guilty Plea)..............................6, 7
Tex. Code Crim. Proc, Art. 26.13 (b) (Accepting Guilty Plea)............................... 6
Tex. Code Crim. Proc, Art. 28.10 (Amendment of Indictment) .............................. 5
Tex. Code Crim. Proc, Art. 42.01 (Judgment)........................................................ 7
Tex. Penal Code, Section, 12.32 (a) (First-Degree Prison Sentence Range)..................5
Tex. Penal Code, Section, 12.32 (b) (First-Degree Fine Range)....................................5
Tex. Penal Code, Section 12.42 (b) (Intox. Manslaughter 2nd Degree felony)...............2
Tex. Penal Code, Section 49.08 (a) (Offense Elements)............................................4, 5
Tex. Penal Code, Section 49.08 (b) (Offense Base Punishment) ...................................2
INDEX OF ABBREVIATIONS
Clerk’s Record........................................................................................................... CR
Reporter’s Record, Volume I.................................................................................... RRI
vi
vii
NO. 12-15-00151-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
_________________________________________________________________
RONALD I. ODOM
Appellant
V.
STATE OF TEXAS
State
_________________________________________________________________
ANDERS/GAINOUS BRIEF OF APPELLANT
RONALD I. ODOM
TO THE HONORABLE JUSTICES OF SAID COURT:
NOW COMES ROLAND I. ODOM, Appellant in the above-styled and
numbered cause and Defendant in the Trial Court, and, by and through appointed
Counsel, files this Brief of Appellant and respectfully reports to the Court of Appeals
that no reversible errors were found to have been committed by the Trial Court relating
to pretrial and evidentiary rulings during trial in Cause Number 18672 in the 2nd
Judicial District Court of Cherokee County, Texas, before the Honorable Judge Bascon
Bentley, III, Judge Presiding.
1
PRELIMINARY STATEMENT OF THE NATURE OF THE CASE
Appellant was charged by indictment for two counts of intoxication
manslaughter. CR, at pp. 6-7; Tex. Penal Code, § 49.08(a); Tab A. The indictment
included an enhancement paragraph alleging Appellant had a prior felony conviction
increasing the punishment into the first-degree felony range. Tex. Penal Code §§
12.32 (a)-(b); 12.42(b); Tab A. The indictment was amended thereafter to correct
the alleged date of the offense. CR, at pp. 16-8.
Appellant’s defense attorney filed a Motion for Discovery (CR, at pp. 29-41);
Motion to Suppress Evidence of Blood Test (CR, at pp. 42-4); Motion to Suppress
Evidence Based on Illegal search and Seizure (CR, at pp. 68-70); and a Motion to
Quash the Indictment (CR, at pp. 132-3); and a Motion in Limine (CR, at pp. 167-
9). The record reflects no rulings on these motions. CR, at pp. 203-6. On
04-13-15, Appellant entered into a plea agreement with the State wherein Appellant
pled guilty and “true” to the enhancement paragraph and accepted a 20-year
sentence. CR, at pp. 173-4; Tab B.
The Trial Court approved and accepted Appellant’s plea and followed the
recommendation of the State; a Judgment of Conviction by Court/Waiver of Trial
was signed by the Trial Court on each count on 04-13-15. RRIX, at pp. 6, 8; CR, at
pp. 177-8, 180-1; Tab C.
2
The Trial Court certified that Appellant could not seek appellate review and
had waived his rights of appeal (CR, at pp. 175-6; Tab D).
Appellant timely filed a notice of appeal on 05-06-15 (CR, at p. 186; Tab E.)
STATEMENT OF POINTS OF ERROR
No reversible points of error were identified following review of the record, and
this Brief is submitted in compliance with the tenants of Anders v. California, 386 U.S.
738 (1967) and Gainous v. State of Texas, 436 S.W.2d 137 (Tex. Crim. App. 1969).
Counsel believes, after a review of the record, the subject appeal is frivolous and should
be dismissed.
3
STATEMENT OF FACTS
On August 18, 2012, Appellant was operating a motor vehicle in Cherokee
County and was involved in a head-on collision with another vehicle resulting in the
death of two people. RRIX, at pp. 2-3, 7; CR, at p. 174 (Stipulation of Evidence et c.)
Tab B.
Appellant was previously convicted of a felony. RRIX, at p. 3.
BRIEF OF THE ARGUMENT
Following a review of the pre-trial proceedings, trial and judgment, no error, that
was more than harmless error, was found that could be presented for review to the
appellate court, and therefore, Appointed Counsel believes the subject appeal is
frivolous and without merit. Appointed Counsel seeks to withdraw here from and has
invited response hereto from the Appellant, as described hereinafter.
ARGUMENT AND AUTHORITY
Grand Jury & Indictment:
Appellant was indicted on two counts of intoxication manslaughter with an
offense date of August 12, 2012 by a Cherokee Grand Jury on January 28, 2013.
CR, at p. 6-7; Tex. Penal Code, §49.08(a). The indictment also carried an
enhancement paragraph accusing Appellant of having a prior felony conviction of
failure to register as a sex offender increasing the punishment into the first-degree
4
range. Tex. Penal Code, §§ 12.32 (a)-(b); 49.08 (b); Tab A. The indictment was
amended on the motion of the State to correct the offense date in count two. CR, at
pp. 16-8. The indictment appears to be valid on its face and carries the signature of
the purported Foreperson of the Grand Jury. Id.; Tex. Code Crim. Proc., Art 21.02.
The record is silent as to any challenge to the composition of the Grand Jury
leaving nothing as to the indictment or grand jury for review. Tex. Code Crim.
Proc., Art. 19.27.
Arraignment:
Appellant through Counsel confirmed knowledge of the charges, confirmed
correct spelling of his name, and entered a plea of not guilty. CR, at p. 15. The
waiver fixed the Appellant’s identity and allowed for the entry of his plea of “not
guilty”. Id.; Tex. Code Crim. Proc., Art. 26.02. The waiver was signed by
Appellant’s counsel and appears to be regular, and, since no objection was raised,
any error regarding deficiencies in the arraignment were waived. Adkinson v. State
of Texas, 762 S.W.2d 255, 259 (Tex. App. – Beaumont 1988, pet. ref’d). No point
of error was found.
Pre-Trial Motions:
The State filed a motion to amend the indictment pursuant to Article 28.10.
Tex. Code Crim. Proc., Art. 28.10. The Motion sought to correct the offense date in
5
count two of the indictment. The Trial Court signed an Order granting the Motion,
and the record does not reflect any objection to the motion. No error is found.
Trial Counsel for Appellant filed five substantive pre-trial motion including a
comprehensive Motion for Discovery (CR, at pp. 29-41); Motion to Suppress (Id.,
at pp. 42-4); Motion to Suppress (Id., at pp. 68-70); Motion to Quash (Id., at pp.
132-3); and Motion in Limine (Id., at pp. 167-69). The record is silent as to the
disposition of any of these motions and no potential error was found.
Appellant’s Plea: Guilty:
The record reflects that the Appellant, joined by his Trial Counsel, signed and
a Felony Agreed Plea Recommendation – No Appeal. CR, at pp. 173-4 Tab B.
Further, the “Felony Agreed Plea Recommendation – No Appeal” was marked as
State’s Exhibit # 1and offered into evidence without objection during the plea
hearing. RRIX, at pp. 4/16 – 5/17.
Article 26.13 of the Texas Rules of Criminal Procedure sets forth that the
Trial Court must substantially comply with the directives in Article 26.13 (a). Tex.
Code Crim. Proc., Art. 26.13 (a) (1) through (6). Prior to accepting a plea of guilty
(pertinent to the case at bar), the Trial Court must advise in part of the range of
punishment; the nonbinding nature of the agreement as to the Trial Court; limited
appellate rights if the agreement is followed or improved upon; the effect of non-
6
citizenship. Id. , Art. 26.13 (1) – (4). RRIX, at pp. 2/2 – 6/9. Further, the Trial
Court must be satisfied that the plea is free and voluntary and that the Defendant is
mentally competent. Id., at Art. 26.13 (b).
At the plea hearing, Appellant entered a plea of “Guilty”, the plea was
accepted, Appellant’s Waivers of rights were approved, and no objection was made
by Appellant’s Trial Counsel. Id.
There appears to be substantial compliance with Article 26.13, and no point
of error appears from the record.
Appellant also pled “true” to the enhancement paragraph and the Trial Court
followed the plea recommendation.
Judgment:
Pursuant to Article 42.01, Texas Code of Criminal Procedure, the Trial Court
entered a judgment accurately describing the charge and sentenced Appellant to a
twenty-year sentence on each of the two counts consistent with the plea agreement.
CR, at pp. 177-8, 180-1; Tab C; Tex. Code Crim. Proc., Art. 42.01. There does
not appear to be a defect as to form or substance regarding the judgment that would
support the presentation of an error.
7
Trial Court’s Certification of Right to Appeal:
During the plea hearing, the Trial Court signed the Trial Court’s Certification
of Defendant’s Right of Appeal noting that this criminal case “is a plea-bargain
case, and the defendant has NO right of appeal.” CR, at pp. 175-6. Tab D.
Additionally, the Trial Court noted that “the defendant has waived the right of
appeal.” Id.
Further, the record is silent as to the grant of permission to appeal having
been given to the Appellant.
Assistance of Counsel:
Appellant was entitled to legal representation in criminal prosecution pursuant to
state and federal constitutional law and statutory law. United State’s Constitution, 6th
Amendment; 14th Amendment; Texas Constitution, Article 1, Section 10; Texas Code
of Criminal Procedure, Art. 1.05. The right to counsel, as described in the state and
federal constitutions, does not mean errorless counsel. Ex Parte Burns, 601 S.W. 2d
370, 372 (Tex. Crim. App. 1980); Howell v. State of Texas, 563 S.W. 2d 933 (Tex.
Crim. App.). Further, the right to counsel has been determined to be sufficient if
counsel provided “reasonably effective assistance.” Ex Parte Bratchett, 513 S.W. 2d
851, 853 (Tex. Crim. App. 1974). In Strickland v. Washington, the standard for review
under Texas law of ineffective assistance of counsel requires 1) identification of the
8
deficient acts or omissions on the part of his attorney; 2) demonstration that the acts or
omissions were not the result of reasonable professional judgment; and 3) establishment
that the acts or omission so prejudiced the Defendant that he was denied a fair trial.
Medeiros v. State of Texas, 733 S.W. 2d 605, 607 (Tex. App. – San Antonio 1987).
Using Garcia v. State as a guide, the Court of Criminal Appeals calls upon the
Appellant to establish reversible ineffective assistance of counsel by demonstrating:
1) “defense counsel’s performance fell below an objective standard of
reasonableness, and
2) there is a reasonable probability that, but for counsel’s unprofessional
error, the result of the proceeding would have been different.”
Garcia v. State, 57 S.W.3d at p. 436, 440 (Tex. Crim. App. 2001).
A review of the record does not evidence conduct or lack of action on the part of
Trial Counsel that would allow a reversible error to be presented for consideration. The
record does not support grounds that satisfy either Crawford prong, and no error was
found to present as a basis of reversal or remand. Although none of the defense pre-trial
motions were ruled upon, it appears that Appellant’s Trial Counsel negotiated and
secured a plea agreement that 1) avoided a deadly weapon finding (that had been sought
by the State; CR, at pp.136-7); 2) avoided higher punishment range minimum sentence
levels (in the event the State advanced its Notice of Intent to Enhance Punishment
9
identifying four additional prior felony convictions of Appellant; Id., at pp. 119-20);
and succeeded in having the sentences run concurrently. CR, at pp. 177-181.
In regard to the various undisposed defense motions, since no hearings were
conducted, a Crawford analysis cannot be completed.
Summary:
Following review and consideration of pre-trial and trial activities before the
Trial Court, there are no points of reversible error found.
Notice to Appellant:
Counsel hereby notifies Appellant that this Brief requests that the appeal be
found to be frivolous and be dismissed. Along with the Brief, a motion to withdraw
has been filed requesting permission of the appellate court for Counsel to withdraw
from this case, that, if granted, would leave Appellant representing himself as a pro
se litigant.
Counsel further advises Appellant that Appellant has a right to prepare and
file a pro se Brief, meaning that Appellant can prepare and file with the appellate
court his own pro se Brief, under his own signature, pointing out to the appellate
court any errors or problems he sees in the record or any reason why Appellant feels
the appeal is not frivolous.
Counsel also advises Appellant of Appellant’s right to review the record
10
before filing a pro se Brief.
If Appellant desires to file a pro se Brief with the appellate court, then
Appellant should immediately send a written request to Counsel requesting a copy
of Reporter’s Record and the Court Reporter’s Record.
Appellant is advised that if he presents a pro Se Brief [Twelfth Court of
Appeals, 1517 West Front Street, Suite 354, Tyler, Texas 75702, Attention: Cathy
Lusk, Clerk], then he must also 1) provide a copy of his Brief to Counsel [Sten
Langsjoen, P.O. Box 539, Tyler, Texas 75710]; 2) provide a copy of his Brief to the
State [Rachael Patton, West 6th Street, Rusk, Texas 75785]; and 3) include in his Brief
a written statement (“Certificate of Service”) that he sent copies of his Brief and/or
Motion to Counsel and to the State.
IX.
Word Count Certificate:
Counsel certifies that WORD format character count is 2,750.
Digitally signed by Sten M.
Sten M. Langsjoen
DN: cn=Sten M. Langsjoen, o, ou,
email=sten@langsjoenlaw.com,
Langsjoen c=US
Date: 2015.08.31 13:29:36 -05'00'
_______________________________
STEN M. LANGSJOEN
11
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Counsel for Appellant, Roland
Odom, respectfully requests and prays that this matter be considered by the Court and
that appointed counsel be allowed to withdraw herefrom and that this appeal be
dismissed following the Appellant’s opportunity to respond hereto; and further, Counsel
respectfully requests and prays for any and all other relief, at law or in equity, to which
he may show himself justly entitled.
Respectfully submitted,
Digitally signed by Sten M. Langsjoen
DN: cn=Sten M. Langsjoen, o, ou,
Sten M. Langsjoen email=sten@langsjoenlaw.com, c=US
Date: 2015.08.31 13:30:12 -05'00'
______________________________
STEN M. LANGSJOEN
Attorney for Appellant
P.O. Box 539
Tyler, Texas 75710-0539
Telephone: (903) 531-0171
Telefax: (903) 531-0187
TBA # 11922800
e-mail: sten@langsjoenlaw.com
12
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Appellant’s Brief was
delivered by certified mail, return receipt requested, and/or by "fax" transmission and/or
by hand-delivery to the State’s attorney on August 31, 2015.
Sten M. Digitally signed by Sten M. Langsjoen
DN: cn=Sten M. Langsjoen, o, ou,
email=sten@langsjoenlaw.com, c=US
Langsjoen Date: 2015.08.31 13:30:44 -05'00'
____________________________
STEN LANGSJOEN
13
APPENDIX
Contents:
Indictment ............................................................................................................... Tab A
Felony Agreed Plea Recommendation- No Appeal ................................................ Tab B
Judgments ............................................................................................................... Tab C
Trial Court’s Certification of Defendant’s Right of Appeal .................................... Tab D
Notice of Appeal......................................................................................................Tab E
Docket Sheet............................................................................................................ Tab F
14
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