Cooper, Joseph Bernard
PD-1217-15
Tex. App.Nov 18, 2015Background
- Joseph Bernard Cooper was indicted for aggravated assault with a deadly weapon (felony) and assault causing bodily injury (misdemeanor); a jury convicted him and the trial court sentenced him to 75 years (aggravated assault) and 6 months (misdemeanor), to run concurrently.
- The trial court found two prior felony convictions true for enhancement at punishment but did not amend the indictment to include enhancement allegations on its face; Cooper contends that makes the enhanced sentence illegal.
- Cooper was not present for certain pretrial/motion proceedings and was absent when the jury sent four notes asking for clarification/read-back; he argues those absences denied his constitutional right to be present and impaired his ability to object.
- Cooper’s appellate counsel filed an Anders brief concluding the appeal was frivolous; Cooper filed a pro se response and sought discretionary review after the Ninth Court of Appeals affirmed and declined to appoint new counsel to rebrief.
- Cooper raises multiple grounds on PDR including: ineffective assistance on appeal/Anders counsel, denial of presence at hearings, jury communication/read-back/recall of testimony, multiplicity/double jeopardy, defects in indictment/enhancements, improper jury instructions (non‑statutory definitions), insufficiency of evidence (deadly weapon), failure to rule on a motion for new trial, and refusal to give a lesser‑included offense instruction.
Issues
| Issue | Plaintiff's Argument (Cooper) | Defendant's Argument (State / Court of Appeals) | Held |
|---|---|---|---|
| Whether appellate court should have appointed new counsel to rebrief after Anders brief | Anders counsel missed arguable errors (pretrial absence, other issues); new counsel should rebrief | Anders procedure applied; record reviewed and appeal found frivolous | Ninth Court: appeal wholly frivolous; affirmed; did not remand for new counsel |
| Right to be present at pretrial/motions hearings | Cooper was excluded from pretrial/motions and could not object; this caused prejudice | State contends any complaint not raised at trial is waived | Cooper raised as error; appellate court found no reversible error in record review |
| Jury communications/read‑back and refusal to recall testimony | Jury asked for read‑back; judge refused to read reporter notes/recall testimony; Cooper absent and could not object; error prejudiced verdict | State asserts absence of contemporaneous objection waived any error | Cooper argued harm and requested harm analysis; court found no arguable reversible error |
| Multiplicity / double jeopardy (two convictions from same conduct) | Convictions constitute multiple punishments for same unit of prosecution; trial counsel ineffective for not objecting | State/court treated assault causing bodily injury as not a lesser‑included offense of aggravated assault with deadly weapon | Court of Appeals affirmed convictions; no reversible error found on multiplicity claim |
| Enhancements not on face of indictment (sentence illegality) | Enhancements were proven but not pleaded on indictment face; sentence therefore illegal and void | Court treated enhancement finding as proper and affirmed punishment | Court affirmed; did not find sentence illegal under record review |
| Improper jury charge (non‑statutory definitions) | Jury instructed with non‑statutory or misleading definitions (deadly weapon, bodily injury, intent) causing egregious harm | State: jury charge adequate; lack of timely objection waived complaint | Court found no reversible charge error on independent review |
| Sufficiency of evidence of deadly weapon | Alleged object (shoe string / necklace) was not shown to be a deadly weapon; no proof of use with intent or capacity to cause death | State presented testimony and argued fact issues for jury resolution | Court concluded no arguable basis to reverse sufficiency finding |
| Failure to rule on motion for new trial / Brady/conflict claims | Motion (and requested evidentiary hearing) not ruled on; Cooper alleges investigator bias, Brady materials withheld, and judicial/DA conflicts | State did not prevail on those arguments at trial; issues not shown to be reversible on record | Court affirmed; found no arguable reversible error |
| Denial of lesser‑included offense instruction | Evidence supported at least a jury charge on assault causing bodily injury as lesser | State argued charge as given was legally sufficient; no reversible error | Court found no arguable merit to require reversal or remand |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (governs counsel filing a brief asserting appeal is frivolous and procedure for court review)
- Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005) (describes appellate handling of Anders briefs and pro se responses)
- Rutledge v. United States, 517 U.S. 292 (1996) (discusses prejudice that can arise from a conviction itself)
- Ball v. United States, 470 U.S. 856 (1985) (addresses prejudice from convictions and collateral consequences)
- Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012) (holds that courts should not define common words for juries when ordinary meaning suffices)
- Mizell v. State, 119 S.W.3d 804 (Tex. Crim. App. 2003) (addresses correction of illegal sentences)