ACCEPTED
01-15-00357-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/9/2015 1:57:38 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00357-CR
IN THE FIRST COURT OF APPEALS FILED IN
OF THE STATE OF TEXAS 1st COURT OF APPEALS
HOUSTON, TEXAS
11/9/2015 1:57:38 PM
CHRISTOPHER A. PRINE
Clerk
KENNETH L. BROWN
Appellant
v.
THE STATE OF TEXAS
Appellee
On Appeal in Cause Number 1389982
From the 177th District Court of Harris County, Texas
Hon. Ryan Patrick, Judge Presiding
BRIEF FOR APPELLANT
ORAL ARGUMENT WAIVED ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas
BOB WICOFF
Assistant Public Defender
State Bar of Texas No. 21422700
1201 Franklin, 13th floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
bob.wicoff@pdo.hctx.net
Counsel for Appellant
i
Identity of Parties and Counsel
Appellant Kenneth L. Brown
TDCJ # 01995117
Garza West Unit
4250 Highway 202
Beeville, Texas 78102-8982
Presiding Judge Hon. Ryan Patrick
177th District Court
1201 Franklin
19th floor
Houston, Texas 77002
Trial Prosecutor Tammy Massa
Assistant District Attorney
Harris County, Texas
1201 Franklin
Houston, Texas 77002
Defense Counsel in Trial Court Ricardo Gonzalez
Attorney at Law
8876 Gulf Freeway
Houston, Texas 77017
Defense Counsel on Appeal Bob Wicoff
Assistant Public Defender
Harris County, Texas
1201 Franklin, 13th floor
Houston, Texas 77002
i
Table of Contents
Page
Identity of Parties and Counsel: i
Table of Contents: ii
Index of Authorities: iii-iv
Statement of the Case: v
Issue Presented: v
Court-appointed counsel believes that the appeal in this case is
frivolous, since there are no arguable grounds for appeal from the
conviction and sentence following the appellant’s open plea of guilty,
followed by a pre-sentence investigation and hearing before the trial
court.
Statement of Facts: 1
Summary of the Argument: 3
Argument: 4
Prayer: 18
Certificate of Service: 18
Certificate of Compliance: 19
ii
Index of Authorities
Cases Page
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ................. passim
Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005)...................................................... 6
Buchanan v. State, 68 S.W.3d 136 (Tex. App.-Texarkana 2001, no pet.)…….. 15
Coleman v. State, 577 S.W.2d 486 (Tex. Crim. App. 1979) ................................................... 8
Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974)....................................................... 5
Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997) ................................................... 17
Garner v. State, 300 S.W.3d 763 (Tex. Crim. App. 2009) ..................................................... 6
Guevera v. State, 985 S.W.2d 590 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) 9
High v. State, 573 S.W.3d 807 (Tex. Crim. App. 1978) ......................................................... 5
In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008)...................................................... 4
Jenkins v. State, No. 14-97-00121-CR, 1998 WL 802439 (Tex. App.-Houston .............. 12
[14th Dist.] November 19, 1998, no pet.)(not designated for publication)
McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 n.10 (1988) .............................. 4
Mitchell v. State, 193 S.W.3d 153 (Tex.App.-Houston [1st Dist.] 2006, no pet.) ................ 5
Prado v. State, 626 S.W.2d 775 (Tex. Crim. App. 1982)...................................................... 11
Randon v. State, 178 S.W.3d 95 (Tex. App.-Houston [1st Dist.] 2005, no pet.)…….. 16
Rhoades v. State, 934 S.W.2d 113 (Tex. Crim. App. 1996) .................................................. 14
Robinson v. State, 240 S.W.3d 919 (Tex. Crim. App. 2007)................................................... 9
Sanchez v. State, 120 S.W.3d 359 (Tex. Crim. App. 2003) .................................................... 8
iii
Index of Authorities (cont'd)
Cases Page
Solem v. Helm, 463 U.S. 277 (1983)....................................................................................... 14
Sowels v. State, 45 S.W.3d 690 (Tex. App.-Waco 2001, no pet.)……………………… 4
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991)............................................. 4, 5, 6
Stephens v. State, 35 S.W.3d 770 (Tex. App.-Houston [1st Dist.] 2000, no pet.)............... 17
Temple v. State, 342 S.W.3d 572 (Tex. App.-Houston [14th Dist.] 2010) 11
Wood v. State, 260 S.W.3d 146 (Tex. App.-Houston [1st Dist.] 2008, no pet.) 16
Statutes Page
TEX. PENAL CODE ANN., sec. 12.42(d) v, 14
TEX. PENAL CODE ANN., sec. 29.03(a)(2) v, 7
iv
STATEMENT OF THE CASE
Kenneth Brown (hereafter “Appellant”) was indicted in cause number 1389982
for the first-degree felony offense of Aggravated Robbery, which was alleged to have
occurred on June 1, 2013 (C.R. at 13); See Tex. Penal Code, § 29.03(a)(2). The
indictment contained two enhancement paragraphs, thereby subjecting the Appellant
to 25-99 years in prison upon conviction (C.R. at 13); Tex. Penal Code, § 12.42 (d).
The Appellant was found guilty of aggravated robbery as charged in the indictment
(C.R. at 80). After the punishment hearing, the jury assessed the Appellant’s
punishment at thirty-eight (38) years confinement (C.R. at 87). The judgment contains
an affirmative finding of a deadly weapon, namely, a firearm (C.R. at 95). No motion
for new trial was filed.
ISSUE PRESENTED
Court-appointed counsel believes that the appeal in this case is
frivolous, since there are no arguable grounds for appeal from
the appellant’s plea of guilty followed by a pre-sentence
investigation.
v
STATEMENT OF FACTS
Brittany Spates and Curley Carter went out to celebrate Brittany’s birthday with
friends on the evening of June 1, 2013 (4 R.R. at 59-60, 108). Afterward, they drove
back to the apartment complex where they both lived. Upon arriving back at the
complex, as the two of them got out of the car, another car pulled up, a black Toyota
Camry (4 R.R. at 69). As Spates and Carter were walking to their apartment, two men
ran up to them, one of them with a gun drawn, telling them to get down on the
ground (4 R.R. at 70-71, 118). The assailants demanded that Carter and Spates hand
over their belongings (4 R.R. at 71, 118). Spates gave the robbers everything she had,
and both she and Carter gave the men their cell phones (4 R.R. at 74-76, 122). The
two men then ran away and Spates and Carter ran to a neighbor’s apartment, where
the neighbor called 9-1-1 (4 R.R. at 77).
Houston Police Department Officer Ollie Thibeaux responded to the call
within five to ten minutes (3 R.R. at 12, 18; 4 R.R. at 78, 125). Upon arriving,
Thibeaux encountered Spates and Carter, whom he described as “visibly shaking,
nervous” (3 R.R. at 21). They told Officer Thibeaux that two black males driving a
Toyota Camry had stolen an iPhone (3 R.R. at 24). Thibeaux asked Spates if her
phone was an iPhone. They asked her to log into her “find my iPhone” app, which
allowed the police to determine the location of the phone (4 R.R. at 79). In short
order, Officer Thibeaux told Spates and Carter that they needed to go with him to a
second location, where they had located the black Toyota Camry (4 R.R. at 79, 127).
1
Thibeaux drove Spates and Carter to the location where one of the two
suspects was being detained, which was at another nearby apartment complex (3 R.R.
at 27). Thibeaux testified that upon arriving at the black Toyota Camry, he let Spates
and Carter walk up to the vehicle and look through the window at the property lying
inside (3 R.R. at 28). They identified the iPhones inside the car as theirs, in each case
because of the photographs that were on the phones (3 R.R. at 30-31; 4 R.R. at 80,
131-132). The two phone were recovered from the black Toyota Camry, but other
items that were stolen were not recovered (3 R.R. at 43).
After identifying the phones, Spates and Carter were put into the back seat of
a patrol car, where they were asked to look at a suspect to see if they could identify
him (4 R.R. at 81-82). A suspect was then brought in front of the police car with the
headlights shining on him (3 R.R. at 37-38). Spates testified that the man whom she
had identified at the scene as being the robber was the Appellant (3 R.R. at 38-39; 4
R.R. at 84-85). She added that the Appellant had been the man who held the gun
during the robbery (4 R.R. at 85). Carter had not been able to get a good look at the
man wielding the gun (4 R.R. at 131). Spates estimated that the total elapsed time
from the point of being robbed to the identification of the Appellant as the robber
was 30 to 45 minutes (4 R.R. at 86).
Rafael Fuentes lived at the second apartment complex, where the Appellant
was arrested. On the morning that the Appellant was arrested, Fuentes was taking a
bag of trash to the dumpster when he found a gun lying in the grass (3 R.R. at 64).
2
Houston Police Department Officer Matama Roberson responded to the call
regarding the gun, and took it into custody (3 R.R. at 69).
Houston Police Department Officer Tanika Miller testified that she was
working patrol the morning of the robbery. At about 4:30 am, she observed a vehicle
matching the description of the vehicle involved in the robbery (3 R.R. at 82). She
followed the car to the entrance of an apartment complex, where two black males
exited the car (3 R.R. at 86). Once the men walked away from the car, leaving it
running, Officer Miller approached the car, where she could see cell phones lying
inside (3 R.R. at 88; 4 R.R. at 8).
Miller radioed a description of the suspects and the direction they had headed,
and within ten minutes a suspect was detained (3 R.R. at 89-90). She drove her patrol
car to the location where the suspect was being detained and saw that it was the same
person she had seen getting out of the car a few minutes earlier (3 R.R. at 91). She
testified that the Appellant was the man who had gotten out of the driver’s side of the
car and who had been detained (3 R.R. at 92-93).
SUMMARY OF THE ARGUMENT
The undersigned has thoroughly reviewed the record and concluded that there
are no meritorious grounds for appeal from the appellant’s plea of guilty followed by a
pre-sentence investigation. Therefore, the undersigned moves to withdraw from
representing the Appellant and has filed, simultaneously with this brief, a motion to
withdraw.
3
ARGUMENT
A. Anders briefs generally
An attorney has an ethical obligation to refuse to prosecute a frivolous appeal.
In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). If an appointed attorney
finds, following a professional, conscientious evaluation of the record, that a case is
wholly frivolous, his obligation to his client is to seek leave to withdraw. Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel’s obligation to
the appellate court is to assure it, through an Anders brief, that such a complete review
of the record has been undertaken and that the request to withdraw is well-founded.
Id.
A wholly frivolous appeal is one that “lacks any basis in law or in fact.” See
McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 n.10 (1988). A reviewing court
must resolve doubtful issues in the appellant’s favor. Id. In the brief which
accompanies his motion to withdraw, counsel must make references to the appellate
record as well as to any applicable statutes, rules, and cases that lead counsel to the
conclusion that the appeal is frivolous. Sowels v. State, 45 S.W.3d 690, 691 (Tex.App.-
Waco 2001, no pet.). The brief must contain references to anything in the record that
might arguably support the appeal, even though counsel believes that the appeal is
frivolous. Anders v. California, supra; Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App.
1991).
4
Counsel is not required to make arguments that would not be made on behalf
of a client who has retained counsel for the appeal; counsel is not required to make
arguments for which there is no merit. Currie v. State, 516 S.W.2d 684 (Tex. Crim.
App. 1974). If counsel concludes that there are no arguable grounds for appeal, then
counsel should so state and should make references to the record, statutes, and cases
which support that conclusion. Stafford v. State, supra; High v. State, 573 S.W.2d 807
(Tex. Crim. App. 1978). When discussing the record, counsel must discuss the
evidence introduced at trial and must provide the appellate court “with ready
references to the record.” Stafford v. State, supra at 510 n.3; High v. State, supra.
Conclusory statements in the brief are insufficient. Anders v. California, supra; High v.
State, supra; Currie v. State, supra.
Counsel must furnish a copy of the motion to withdraw and a copy of the brief
to appellant and must advise appellant of his right to review the record and to file a
pro se brief. Counsel must certify or otherwise show the appellate court that appellant
has been furnished with a copy of the motion and brief and that appellant has been
advised of his right to obtain the record and to file a pro se brief.
After appellant has himself raised the points that he wishes to raise, or the time
has passed for him to do so, the appellate court must conduct an independent
examination of the proceedings and determine whether the appeal is wholly frivolous.
Anders v. California, supra; Mitchell v. State, 193 S.W.3d 153 (Tex.App.-Houston [1st
Dist.] 2006, no pet.). If the court finds that the appeal is wholly frivolous and that
5
there are no arguable grounds for appeal, it will grant the motion to withdraw and
affirm the judgment of the trial court. Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim.
App. 2009). Although a reviewing court may issue an opinion explaining why the
appeal lacks arguable merit, it is not required to do so. Id., at 767. If the court
determines that there are arguable grounds, it will abate the appeal and remand the
cause to the trial court with instructions that the trial court appoint new and different
counsel to represent appellant on appeal to present those arguable grounds, as well as
any others that new counsel might wish to present. See Bledsoe v. State, 178 S.W.3d 824,
826–27 (Tex. Crim. App. 2005). The appellate court does not make a decision on the
merits of any issue, except to determine whether an appeal is wholly frivolous and that
there either are or are not arguable grounds for appeal. Anders v. California, supra;
Stafford v. State, supra. An appellant may challenge a holding that there are no arguable
grounds for appeal by filing a petition for discretionary review in the Court of
Criminal Appeals. See Bledsoe, supra, at 827-828, fn 6.
B. The appeal in this case is frivolous
The undersigned has evaluated the record from this case with the help of the
useful “Anders Guidelines” posted on the website of the Fourteenth Court of
Appeals. See http://www.txcourts.gov/media/883046/andersguidelines-revised-post-
kelly-.pdf.
6
1. Sufficiency of the indictment or misdemeanor information.
The elements of aggravated robbery under Tex. Penal Code § 29.03 are:
(a) A person commits an offense if he commits robbery as defined in § 29.02;
and
(2) uses or exhibits a deadly weapon; or
Under Tex. Penal Code § 29.02, a robbery is committed if, in the course of
committing theft and with intent to obtain or maintain control of the property, the
defendant intentionally or knowingly threatens or places another in fear of imminent
bodily injury or death.
The indictment charging the Appellant with aggravated robbery alleges the
necessary elements under § 29.03(a)(2). Specifically, the indictment tracks the statutory
language by alleging the Appellant, while in the course of committing the theft of
property, and with the intent to obtain and maintain control of the property, did
intentionally and knowingly threaten and place the complainant in fear of imminent
bodily injury and death, adding the allegation that he used and exhibited a deadly
weapon, a firearm (C.R. at 13). There is nothing which seems amiss with the
aggravated robbery indictment, or which would suggest that it should have been
challenged in the trial court by counsel.
The two enhancement paragraphs in the indictment each allege that the
Appellant was convicted of the felony conviction of “assault family violence.” The
first enhancement alleges a conviction in 2009 that occurred prior to the commission
of the charged offense in this case. The second enhancement alleges a conviction in
7
2012 that also took place prior to the date that the offense in this case was committed
(which was June of 2013), and further alleges that it took place after the conviction in
the first enhancement paragraph had become final. Thus, the enhancement
paragraphs alleged the sequence of prior convictions necessary to enhance the
Appellant’s punishment under section 12.42(d) of the Texas Penal Code.
The purpose of an enhancement allegation is to provide the accused with
notice of the prior conviction relied upon by the State. Coleman v. State, 577 S.W.2d
486, 488 (Tex. Crim. App. 1979). Because the enhancement paragraphs in this case
described the prior convictions by date, cause number, county, and offense, sufficient
notice was provided and a motion to quash would have been futile. Id. No motion to
quash appears in the record for either indictment. Therefore, any defects of form,
substance, want of notice, or any other claim other than fundamental defect is waived.
See Tex. Code Crim. Proc. art. 1.14(b); Sanchez v. State, 120 S.W.3d 359, 367 (Tex.
Crim. App. 2003). However, no such motion was called for, as the indictment was
sufficient in all respects.
2. Any adverse pretrial rulings, including but not limited to rulings on motions
to suppress, motions to quash, and motions for speedy trial
The following motions were filed by the defense in this case:
1) Defendant’s Motion for the Appointment of an Investigator and Request
for Funds for an Investigator (C.R. at 21)(motion was granted);
2) Motion for Discovery and Inspection of Evidence (C.R. at 27)(motion was
not ruled on);
3) Motion for Disclosure and Production of Evidence Favorable to Defendant
(pro se)(C.R. at 29)(motion was not ruled on);
8
4) Request for Notice Under Texas Rules of Criminal Evidence 404 and 609
and Texas Code of Criminal Procedure Article 37.07 (pro se)(C.R. at 33)
(motion was not ruled on);
5) Motion to Dismiss Court Appointed Attorney and Appoint New Counsel
to Act on Behalf of Defendant (pro se)(C.R. at 36)(motion was not ruled
on);
6) Defendant’s Motion in Limine (C.R. at 60)(motion was not ruled on);
7) Motion for Hearing on Admissibility of Any Statement by Defendant
Whether Written or Oral or Evidence Resulting from Same (C.R. at 62)
(motion was not ruled on).
“The State filed a Notice of Intention to Use Evidence of Prior Convictions
and Extraneous Offenses,” so although the Appellant’s motion (number 4 above) was
not presented to the trial court for a ruling, the information sought in such motion
was provided nonetheless. For the remainder of the above listed motions, the record
does not reflect a ruling by the trial court. Motions must be “presented” to the trial
court to preserve a complaint for appellate review, and presentment means more than
mere filing. Guevara v. State, 985 S.W.2d 590, 592 (Tex. App.-Houston [14th Dist]
1999, pet. refd). The movant must make the trial judge aware of the motion by calling
the judge's attention to it in open court and requesting a ruling thereon. Id. Because
trial counsel did not obtain a ruling on the above listed motions (absent the motion
requesting a fee for an investigator) nothing is preserved for appellate review.
As for the Defendant’s pro se motions, because a defendant does not have a
right to hybrid representation, the trial court is free to disregard any pro se motions
presented by a defendant who is represented by counsel. See Robinson v. State, 240
S.W.3d 919, 922 (Tex. Crim. App. 2007). Thus, no point of error would be properly
9
predicated on the Appellant’s pro se motions. In any case, these were boilerplate
motions which, even if adversely ruled on, would not have lent themselves to issues
on appeal. Appellate counsel has detected no other pre-trial motions that were
advisable in this case but not filed. Specifically, there were no grounds to file a motion
to suppress, motion to quash, or motion for speedy trial.
3. Any adverse rulings during trial on objections or motions, including
objections to admission or exclusion of evidence, objections premised on
prosecutorial or judicial misconduct, and motions for mistrial.
Although there were sporadic objections by defense counsel during the
presentation of evidence, none could be said to have involved hotly contested issues.
For example, defense counsel objected periodically to questions that called for hearsay
responses (3 R.R. at 30, 31, 32, 38, 77), or to the form of the question (4 R.R. at 25-
26, 27, 87), but the objections were sustained or the prosecutor rephrased the
question or the objection was properly overruled.
At one point, defense counsel objected to the State’s attempt to introduce a
gun into evidence, and the trial court sustained the objection (3 R.R. at 74-75).
Counsel also objected that the chain of custody had not been proven as to some
clothing the State attempted to introduce, but the trial court sustained that objection
as well (3 R.R. at 94). At times, the State objected to defense questions, and defense
counsel merely rephrased his question (4 R.R. at 12, 16).
10
Suffice it to say, the objections posed by each lawyer at trial were as to matters
of form rather than substance. None of the objections that resulted in adverse rulings
resulted in arguable issues on appeal.
Defense counsel also objected to the following portion of the State's closing
argument:
[The State]: And today is the day for you to do your job. Justice
cannot be done alone. The community has to come together to fight for
what is right and to fight against what is bad and evil in this world and
this event should not be occurring in Harris County and if it does…
[The Defense]: Objection as to improper argument, Your Honor.
[Trial Court]: Overruled. (4 R.R. at 180-181).
It is unclear whether defense counsel’s objection was sufficiently specific. In
any event, a point of error based on the trial court’s ruling would be frivolous. Even
when a jury argument exceeds the approved areas, it will not constitute reversible
error unless the argument is extreme or manifestly improper, violative of a mandatory
statute, or injects new facts harmful to the accused into the trial proceeding. Temple v.
State, 342 S.W.3d 572, 602-603 (Tex. App.-Houston [14th Dist] 2010). Error in
allowing improper argument is generally nonconstitutional error that must be
disregarded unless it affects the defendant's substantial rights. Id. The State’s comment
that “[T]he community has to come together to fight for what is right and to fight
against what is bad and evil in this world” is not inflammatory, extreme, or manifestly
improper. Although it is improper to argue that the community desires a certain
result, the argument in this case was instead a proper plea for law enforcement. Cf.
Prado v. State, 626 S.W.2d 775, 776 (Tex. Crim. App. 1982) with Jenkins v. State, No. 14-
11
97-00121-CR, 1998 WL 802439 (Tex. App.-Houston [14th Dist.] November 19, 1998,
no pet.)(not designated for publication).
4. Any adverse rulings on post-trial motions (e.g., motion for new trial or post-
judgment verdict of acquittal)
There were no post-trial motions, nor were any called for.
5. Potential errors during jury selection
Both sides were allowed to conduct voir dire without interference from the trial
court. There were no objections posed by either lawyer to the other’s questions during
jury selection. No challenges for cause were denied. The trial court granted each side’s
challenges. No objections were lodged by either side to the empaneling of the jury (2
R.R. at 158).
6. Potential errors regarding jury instructions
The jury instructions in this case were standard instructions for an aggravated
robbery case. They included instructions on the law of parties (C.R. at 74), as well as
an application paragraph applying the law of parties to the facts of the case, with the
other, unapprehended robber listed as an “unknown person.” (C.R. at 75). There were
no defensive issues with regard to this case. It was simply a matter of whether the
Appellant was indeed one of the robbers. Therefore, the jury charge did not call for
any unusual instructions. Neither side presented any objections to the charge (4 R.R.
at 152), and there do not appear to be any objections that would have been
appropriate.
12
7. Sufficiency of the evidence.
A legal sufficiency challenge to the Appellant’s conviction would be fruitless. In
regards to the aggravated robbery charge, the State was required to prove that the
Appellant, in the course of committing theft, and with the intent to obtain and
maintain control of the property of another, intentionally or knowingly threatened or
placed another in fear of imminent bodily injury or death. (C.R. at 13). Tex. Penal
Code, sec. 29.03(a)(2).
Evidence was introduced at the guilt-innocence phase of the trial supporting
each of these elements. Simply, the evidence was not seriously in dispute. Spates and
Carter were robbed at gunpoint by two men in a black Toyota at the first apartment
complex. By tracking Spates’s cell phone, police were quickly able to locate the black
Toyota at another nearby complex. A police officer saw two men, one of whom she
later identified as the Appellant get out of a black Toyota. Shortly afterward, the
Appellant was arrested and Spates identified him as the robber who took hers and
Carter’s property at gunpoint less than an hour earlier. Cell phones belonging to both
Carter and Spates were found in the black Toyota. The entire episode, from robbery
to identification of the Appellant as one of the robbers, took less than an hour. The
apprehension of the Appellant in the early morning hours stood less chance of being
mistaken given the absence of very many people on the street, and was buttressed by
the identification by the complainants and Officer Miller. Therefore, the evidence was
13
legally sufficient to convict and a legal sufficiency challenge in this case would have
been pointless.
8. Fundamental error.
There was no fundamental error in this case.
9. Reasonableness of the sentence imposed.
The Appellant entered a plea of true to both enhancement paragraphs of the
indictment (5 RR. at 12). A plea of “true” to an enhancement paragraph constitutes
evidence and is sufficient proof to support the enhancement allegation. Wilson v. State,
671 S.W.2d 524, 526 (Tex. Crim. App. 1984). Thus, the punishment range in his case
was enhanced to 25-99 years in prison upon conviction. Tex. Penal Code, § 12.42(d).
Prison sentences are subject to a proportionality analysis under the Eighth
Amendment of the federal constitution. Solem v. Helm, 463 U.S. 277, 289 (1983).
Additionally, the Texas Constitution prohibits “cruel or unusual punishment.” Tex.
Const, art. 1, § 13. To preserve for appellate review a complaint that a sentence is
grossly disproportionate, constituting cruel and unusual punishment, a defendant
must present to the trial court a timely request, objection, or motion stating the
specific grounds for the ruling desired. Rhoades v. State, 934 S.W.2d 113, 119-20 (Tex.
Crim. App. 1996). No objection was made by the defense to the sentence assessed.
Thus, any claim under the Eighth Amendment and Texas Constitution was waived (8
R.R. at 29-31).
14
In any case, with a minimum punishment of 25 years and the maximum
punishment at 99 years or life, a sentence of thirty-eight (38) years falls closer to the
minimum end of the available range. In any case, the sentence was within the
prescribed statutory range for the offense the Appellant was convicted of, with two
enhancements. “Texas courts have traditionally held that as long as the punishment is
within the range prescribed by the Legislature in a valid statute, the punishment is not
excessive, cruel, or unusual.” Buchanan v. State, 68 S.W.3d 136, 141 (Tex. App.-
Texarkana 2001, no pet.).
10. Whether the written judgment accurately reflects the sentence that was
imposed and whether any credit was properly applied.
The written judgment accurately reflects a conviction for “aggravated robbery-
deadly weapon,” and lists such offense as a first-degree felony (C.R. at 95). This is
accurate. The judgment reflects the thirty-eight (38) year sentence. As to credit for
time served, the judgment reflects that the Appellant was to be credited for the time
period of 6/01/2013 until the date of sentencing, 4/17/2015. This is consistent with
the Appellant’s having been arrested on the date of the offense, 6/01/2013, and being
credited for all time spent until and including the date of sentencing on 4/17/2015.
11. Examination of the record to determine if the appellant was denied
effective assistance of counsel.
There is no suggestion from the record that counsel’s performance was
deficient in a manner that can be raised on direct appeal. The Appellant complained
to the trial court that his lawyer had not filed any the written motions he had thought
15
appropriate (5 R.R. at 7-8), but it is unclear what motions were called for. See section
2, supra. Defense counsel offered a sheriff’s office employee to prove that the clothing
the Appellant was arrested in did not match the clothing described as being worn by
the robber (4 R.R. at 153-154). He also called the Appellant’s mother, Rene Prince, as
a character witness at punishment (5 R.R. at 21).
As has been frequently noted, the record on direct appeal in ineffective
assistance of counsel cases rarely provides the reviewing court an opportunity to
conduct a fair evaluation of the merits. Randon v. State, 178 S.W.3d 95, 102 (Tex. App.-
Houston [1st Dist.] 2005, no pet.). A reviewing court cannot speculate to find trial
counsel ineffective when the record is silent on counsel’s reasoning or strategy. See
Wood v. State, 260 S.W.3d 146, 148 (Tex. App.-Houston [1st Dist.] 2008, no pet.).
Thus, any claimed ineffectiveness in this case would be better raised in a post-
conviction writ proceeding.
12. Conclusion
Although this case presents a substantial sentence with aggravated time, it was
nonetheless a straightforward case for the prosecution, with little opportunity for
missteps by the State and not much that could have been done in defending it. The
lack of substantive issues left a record without any non-frivolous grounds to argue.
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C. The Appellant has been provided with a copy of the complete appellate
record and a copy of the motion to withdraw
A copy of the entire appellate record (which consists of one volume of the
Reporter’s Record, as well as six volumes of the Clerk’s Record) has been sent to the
Appellant at his current address, which is:
Kenneth L. Brown
TDCJ # 01995117
Garza West Unit
4250 Highway 202
Beeville, Texas 78102-8982
The undersigned has also sent a letter with the copy of the record, explaining
further the import of this brief and how the Appellant might pursue issues on an
11.07 writ that cannot be raised on direct appeal. A copy of this brief is also being
sent to the Appellant, as is the attached Motion to Withdraw. See Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967) and Stephens v. State, 35 S.W.3d
770, 771 (Tex. App.-Houston [1st Dist.] 2000, no pet.)(motion to withdraw pursuant
to Anders brief is properly directed to the appellate court, not the trial court).
Should this Court grant the undersigned’s Motion to Withdraw, the
undersigned will inform the Appellant of the result of his appeal and will also inform
the Appellant that he may, on his own, pursue discretionary review in the Court of
Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).
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PRAYER
For the reasons stated above, the undersigned prays that he be allowed to
withdraw from representing the Appellant in this case, and that the Appellant be
given the opportunity to file his own brief.
Respectfully submitted,
Alexander Bunin
Chief Public Defender
Harris County Texas
/s/Bob Wicoff
Bob Wicoff
Assistant Public Defender
Harris County Texas
1201 Franklin, 13th floor
Houston Texas 77002
(713) 274-6781
TBA No. 21422700
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing brief was sent through the efile
system to the Harris County District Attorney’s Office on the 9th of November,
2015.
/s/ Bob Wicoff
Bob Wicoff
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CERTIFICATE OF COMPLIANCE
The undersigned certifies that this brief complies with the length requirements
of Tex. R. App. P. 9.4(i). Specifically, the foregoing brief contains a total of 4,604
words, which is the total word count excluding those matters listed in Tex. R. App. P.
9.4(i)(1).
/s/ Bob Wicoff
Bob Wicoff
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Kenneth L. Brown v. State
Combined Opinion