Case Information
*0 RECEIVED IN 12th COURT OF APPEALS TYLER, TEXAS 11/2/2015 4:47:33 PM PAM ESTES Clerk *1 ACCEPTED 12-15-00166-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 11/2/2015 4:47:33 PM Pam Estes CLERK
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12-15-00166-CR _______________________________________________________________ IN THE COURT OF APPEALS FOR THE TWELFTH JUDICIAL DISTRICT TYLER, TEXAS
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SAMUEL LANCASTER IV v.
The State of Texas APPEAL FROM THE 217 th DISTRICT COURT OF ANGELINA COUNTY, TEXAS Cause No. 2014-0496
ANDERS BRIEF OF APPELLANT SAMUEL LANCASTER IV __________________________________________________________________
Respectfully, Submitted: /S/ John D. Reeves JOHN D. REEVES Attorney at Law 1007 Grant Ave.
Lufkin, Texas 75901 Phone: (936) 632-1609 Fax: (936) 632-1640 SBOT # 16723000 Email: tessabellus@yahoo.com ATTORNEY FOR APPELLANT ORAL ARGUMENT NOT REQUESTED
*2 IDENTITY OF PARTIES AND COUNSEL Parties:
Appellant in Trial Court:
Samuel Lancaster IV
TDCJ# 2004508
2350 Atascocita Rd.
Humble, Texas 77396
Appellee in Trial Court:
The State of Texas
Trial and Appellate Counsel :
Appellant :
JOHN D. REEVES Trial William Agnew
Attorney at Law Attorney at Law
1007 Grant Ave P.O. Box 2507
Lufkin, Texas 75901 Lufkin, Texas 75901
Phone: (936) 632-1609 Phone: 936/637-1200
Fax: (936) 632-1640 SBOT: 00796105
SBOT # 16723000
Appellee :
April Ayers- Perez Trial Sandra Martin
Asst. Angelina County District Atty. Asst. Angelina County District Atty.
P.O. Box 908 P.O. Box 908
Lufkin, Texas 75901 Lufkin, Texas 75901
Phone: 936-632-5090 Phone: 936/ 632-5090
SBOT# 24090975 SBOT# 24081674
ii.
TABLE OF CONTENTS
Page: IDENTITY OF PARTIES AND COUNSEL…………………………………… .ii
TABLE OF CONTENTS…………………………………………………….......iii
INDEX OF AUTHORITIES…………………………………………………... iv-v
STATEMENT OF THE CASE……………………………………………….....1-2
STATEMENT OF JURISDICTION……………………………………..………2
ISSUE PRESENTED.............................................................................................2-4
STATEMENT OF FACTS ……………………………………………………3-9
SUMMARY OF THE ARGUMENT ……………………………………........9-10
ARGUMENT…………………………………………………………………11-20
CONCLUSION AND PRAYER…………………………………………………20
CERTIFICATE OF COMPLIANCE…………………………………………….21
CERTIFICATE OF SERVICE…………………………………………………..21
iii. *4 INDEX OF AUTHORITIES Page: U.S. Supreme Court Cases
Anders v. California, 386 U.S. 738, (1967) ..........................................................1
Strickland v. Washington, 466 U.S. 668, (1984) ..............................................18-19
Fifth Circuit
Nero v. Blackburn, 597 F.2d 991, (5th Cir. 1979) ...............................................21
Texas Cases
Dinkins v. State, 894 S.W.2d 330, (Tex. Crim. App. 1995)....................................15
Euler v. State, 158 S.W. 3d 88, (Tex. Crim. App. 2007) ........................................18
Gonzalez v. State, 337 S.W.3d 473, 479 (Tex. App.-Houston [1 Dist.] 2011).12, 13
Harris v. State, 656 S.W. 2d 481, (Tex. Crim. App. 1983).....................................17
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ..................................12
Jackson v. State, 877 S.W. 2d 768, (Tex. Crim. App. 1994).......................12, 13, 19
Jordan v. State, 495 S.W. 2d 949, (Tex. Crim. App. 1973).....................................17
Ladd v. State , 3 S.W.3d 547, (Tex. Crim. App. 1999)............................................18
McFarland v. State, 928 S.W. 2d 482, (Tex. Crim. App. 1996) .............................18
iv.
Montgomery v. State, 810 S.W.2d 372, (Tex. Crim. App.1990)............................16
Rhoades v. State, 934 S.W.2d 113, (Tex. Crim. App. 1996)..................................17
Rodriguez v. State, 203 S.W.3d 837, (Tex. Crim. App.2006).................................16
Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) .............................12
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) ....................12,13
RULES AND OTHER AUTHORITIES
U.S. Const. Amend. VIII ................................................................................17
U.S. Const. Amend. XIV.................................................................................17
Tex. Health & Safety Code Sec. 481.121....................................................11-12
Texas Penal Code Ann. Section 38.04.............................................................11
Texas Rules of Appellate Procedure, Rule 33.1...............................................17
v.
___________________________________________________________
12-15-00166-CR _______________________________________________________________ IN THE COURT OF APPEALS FOR THE TWELFTH JUDICIAL DISTRICT TYLER, TEXAS
________________________________________________________________
Samuel Lancaster IV
v.
The State of Texas APPEAL FROM THE 217 th DISTRICT COURT OF ANGELINA COUNTY, TEXAS Cause No. 2014-0496
BRIEF OF APPELLANT
Samuel Lancaster IV TO THE HONORABLE COURT OF APPEALS;
COMES NOW, John D. Reeves, court appointed attorney on appeal for Samuel Lancaster, IV Appellant, and pursuant to Anders v. California, 386 U.S.
738 (1967). Johnson v. State, 885 S.W. 2d 641 (Tex. App.-Waco 1994), and
Stafford v. State 813 S.W. 2d 503 (Tex. Crim. App. 1999), files this Anders Brief.
STATEMENT OF THE CASE Appellant was indicted by a grand jury in cause 2014-0496 the July/September term for evading arrest or detention- one or more prior. (CR Vol.
1 p. 17) Additionally, appellant was indicted by a grand Jury in the July/September
term in cause 2014-0634 on October 3, 2014 for the offense of possession of
marijuana in an amount of five pounds or less but more than four ounces. (CR Vol.
2 p. 11) The two matters were consolidated by agreement on November 3, 2014
into cause 2014-0496. (CR Vol. 1 p. 34) On August 15, 2014. Appellant waived
arraignment and entered a plea of not guilty. (CR Vol. 1 p. 27) A jury was waived
in both cases on January 29 th , 2015. (CR Vol. 1 p. 35) A non-jury trial occurred on
May 15, 2015. (RR Vol. 2) Appellant was found guilty on counts and sentenced to
eight years in the ID-TDJC on the evading arrest and two years in the State Jail
Division for the possession of marijuana charge. (RR Vol. 2 p. 62-64) Notice of
Appeal was filed on June 10, 2015. (CR Vol. 1 p. 52) John Reeves was appointed
to represent Appellant on July 14, 2015. (CR Vol. 1 p. 56)
STATEMENT OF JURISDICTION Appellate counsel did not find a Trial Court Certification in Volume I or Volume II of the Clerk’s Records. The Clerk has been notified and certification
has been sent to the client for signature so the record can be supplemented.
ANDERS ISSUES PRESENTED Anders Issue 1
Is the evidence is legally sufficient to support proof of the two indictments *8 of evading arrest and possession of marijuana?
Anders Issue 2
Is there error regarding the admission into evidence of States’ Exhibit one through twenty five including any error regarding trial objections?
Anders Issue 3
Is the sentence of the trial court disproportionate in violation of the Eighth Amendment and Fourteenth Amendments to the United States Constitution?
Anders Issue 4
Did trial counsel provide ineffective assistance concerning appellant’s sentencing hearing?
STATEMENT OF FACTS
The case was called for trial upon an indictment charging appellant with possession of marijuana in an amount greater than four ounces yet less than five
pounds and evading arrest or detention with a vehicle wherein the appellant
entered a plea of not guilty to each count. (RR Vol. 2, p. 5-6) The prosecutor
requested, and the Court agreed, that the Court take Judicial Notice of the State’s
intent to seek a deadly weapon finding, previously filed with the Court, and the
State’s notice of filing of the certificate of analysis that both the State and defense
counsel stipulate is accurate and admissible as to the substance being marijuana
and the amount. (RR Vol. 2, p. 8) The testimony considered by the judge on
guilt/innocence consisted of three witnesses by the state and two witnesses for the
defense, beginning with the testimony of Sergeant Michael Ray of the Sabine
County Sheriff’s Department (SCSD). (RR Vol. 2, p. 9-28)
Sergeant Ray testified that he had been a peace officer for eleven years, and had been employed with the Hemphill Police Department at the time of this
incident. (RR Vol. 2, p. 9) On May 19 th , 2014, the witness stated he was a patrol
officer, patrolling the streets and answering calls for service. Sergeant Ray stated
that he had been advised by dispatch that the Louisiana State Police was in pursuit
of a black Chrysler. At the Milam four-way intersection, at Highway 103 and 87,
he observed the car come to a complete stop. He verified the license plate number.
Once Sergeant Ray pulled out, the vehicle, travelling westbound, picked up speed,
and passed an 18-wheeler in a no passing zone. Sergeant Ray testified that as the
car was passing the 18-wheeler, another 18-wheeler that was traveling east, had to
run off the road to avoid an accident. The witness then activated his lights and
siren, the car sped up to over 100 miles per hour, and advised his dispatcher that he
was in pursuit of the vehicle. Sergeant Ray stated that during most of the pursuit,
the driver would turn his headlights off and travel into oncoming traffic lanes at
speeds between 100 and 120 miles per hour. The witness testified that he gave the
car space to avoid any potential collision. In the Sergeant’s opinion, the driver was
driving in a manner that was capable of causing death or serious bodily injury.
During the pursuit, Sergeant Ray advised his dispatcher of his location, lost contact
via radio at the county line, but kept in contact using his cell phone. When he
reached the San Augustine County and Nacogdoches County lines, he requested
that his dispatch advise each of the county authorities that he was entering their
county and request support. As he approached Angelina County, he was told
Angelina County was going to set up spike strips around the Highway 103 bridge,
but he did not see any officers until he reached the Lufkin city limits. (RR Vol. 2,
p. 10-12) Sergeant Ray observed that the vehicle hit the spike strips while traveling
about 90 miles an hour. An Angelina County deputy followed the car with
Sergeant Ray ensuing. The car swerved then proceeded in the middle of the lane
until it reached the loop, he tried to turn left, and the car finally stopped. (RR Vol.
2, p. 13)
State’s Exhibit 1, Sergeant Ray’s in-car dash camera video and audio of the incident, starting at approximately 2:30 a.m., was admitted. (RR Vol. 2, p. 14) The
Sergeant did not arrest the driver, but recalled he observed a large amount of
marijuana in the vehicle. He left the scene when the driver was ready to transport
to jail. (RR Vol. 2, p. 15) State’s Exhibit 1 was published and Sergeant Ray
narrated. At the Milam intersection, the appellant appeared to driving in an orderly
way, but based on the information he had received from Louisiana the Sergeant
followed the vehicle to verify the license plate. Sergeant Ray was not aware of the
reason Louisiana authorities were pursuing the vehicle. (RR Vol. 2, p. 16) The
video showed that the Sergeant’s lights and siren were on. He stated that the
appellant turned off his lights, but when he would travel down a hill or steep curve,
he would turn them on, and would turn his lights back off again. (RR Vol. 2, p. 17-
18) Once stopped, Sergeant Ray stated that an Angelina County deputy was trying
to knock the window out since the doors were locked. (RR Vol. 2, p. 21) There
was one occupant in the vehicle that was told to exit, but did not comply,
remaining on the floorboard in a fetal position. (RR Vol. 2, p. 22)
On recross examination, Sergeant Ray stated that he had kept a distance of approximately a football field away from the vehicle. (RR Vol. 2, p. 26) The
Sergeant did not speak to the appellant once removed from the vehicle. The
witness admitted that the appellant was probably scared when the deputy broke the
window. (RR Vol. 2, p. 27)
Officer Mark McLin, an Angelina County Sheriff’s office patrol lieutenant since 2004 observed the defendant on May 19, 2014. (RR Vol. 2, p. 28-45) State’s
Exhibit 2, his Angelina County Sheriff’s office patrol car video of that morning
was admitted. (RR Vol. 2, p. 29-30) The video begins at the patrol station where
the Sheriff’s office received information that Louisiana State Patrol had been in
pursuit of a vehicles and another officer from a neighboring county within Texas
was in pursuit heading towards Angelina County. (RR Vol. 2, p. 31) Spike strips
were set prior to the Officer’s vehicle. The vehicle hit the spike strips and as the
vehicle passed the Officer, the Officer turned on his lights, began following the
appellant, while the appellant was swerving “all over the road”. Officer McLin
“bumped” the appellant and the appellant stopped. In the Officer’s opinion, the
appellant’s driving was “extremely erratic and dangerous”. (RR Vol. 2, p. 34-35)
State’s Exhibits 3 through 7, snapshots of Officer McLin’s patrol car video, were
admitted. The snapshots depicted a passing 18-wheeler and other vehicles, the
appellant’s vehicle traveling at a high rate of speed without lights on, and the
appellant traveling in multiple lanes. State’s Exhibits 8 through 22, photographs of
the scene when the vehicle was stopped and when the vehicle was processed at the
Sheriff’s office, were admitted. (RR Vol. 2, p. 37) Officer McLin discovered
marijuana in a backpack and paraphernalia, including a digital scale, empty clear
capsules, a marijuana grinder, and papers when he processed the vehicle. (RR Vol.
2, p. 38) When he removed the paraphernalia out of the car, he packaged it and
placed it into a secured locker at the sheriff’s office. Later, an evidence technician
would take the evidence from the locker and place it in a locked evidence room.
(RR Vol. 2, p. 39) State’s Exhibit 24, the marijuana and the digital scale, was
admitted. State’s Exhibit 25, the backpack that the marijuana was in and now
contained just the paraphernalia, was admitted. (RR Vol. 2, p. 40-42) The amount
of marijuana was approximately one pound, definitely less than five pounds but
more than four ounces. (RR Vol. 2, p. 43)
On cross-examination, Officer McLin stated that when the appellant was removed from the vehicle, he appeared completely withdrawn, and would not
listen to any of their demands. (RR Vol. 2, p. 44) On redirect examination, the
Officer stated that they demanded several times that the appellant exit the vehicle,
and he never opened the door. (RR Vol. 2, p. 44)
Stewart Kendall, a deputy with the Angelina County Sheriff’s Department for two years, was on patrol on May 19, 2014. (RR Vol. 2, p. 45-49) While Deputy
Kendall was located in a parking lot off of Highway 103, he observed the appellant
drive through the turning lane, or median, into opposing lanes towards his vehicle,
putting him in fear of serious bodily injury. (RR Vol. 2, p. 47) Deputy Kendall
observed the vehicle being stopped and the appellant being pulled from the vehicle.
He took custody of the appellant and transported him to the jail. When the
appellant was removed from the vehicle, he was not very responsive to anything,
but during transport requested to see medical staff for glass in his eye. Deputy
Kendall transported the defendant to Memorial Medical Center where a doctor
looked at his eye, and the Deputy was relieved. The State rested. (RR Vol. 2, p. 48-
49) Regina Lancaster, the appellant’s mother, was called as a witness by the
defense. (RR Vol. 2, p. 49-52) Ms. Lancaster testified that the appellant had been
to a mental institution a couple of times for nervous breakdowns that started when
he was about 16 years old. She did not recall the diagnosis. The appellant’s prior
attorney had filed a motion for a mental exam to determine competency. (RR Vol.
2, p. 50) The witness stated that when the appellant is confronted with stressful
situations, he shuts down or makes bad decisions. He had not been prescribed any
medication. (RR Vol. 2, p. 51)
On cross-examination, Ms. Lancaster stated that the defendant is 22 years old, and had been prescribed medication in the past, but marijuana was not
prescribed. (RR Vol. 2, p. 52)
Mr. Lancaster, the appellant testified. (RR Vol. 2, p. 52-62) The appellant testified that he was coming from Natchitoches, Louisiana after dropping off a
cousin. He was aware that the police were following him, and was driving fast
because he was afraid since he was in an unfamiliar area. He had come from and
noticed police were following him after he crossed the state line into Texas. The
appellant stated that he did not want anyone to get hurt, but was scared and wanted
to get away from the area and get home. (RR Vol. 2, p. 53-54) He stated that
marijuana was in his vehicle, and he was trying to get to his home located in
Houston. He stated that he had been incarcerated for one year and did not feel that
a sentence of eight years was fair. The defendant stated that no one was hurt, and
the evading arrest was a Class A misdemeanor raised to a third degree felony and
that the State is seeking a finding of a deadly weapon which he did not possess.
(RR Vol. 2, p. 55) He stated that he is a hard-working man, had been raising his
son, and made a mistake. Prior to this, he had only one misdemeanor on his record
and would like a second chance. (RR Vol. 2, p. 56-57)
On cross examination, the appellant stated that he was not sure how it appeared to other people how he handled stressful situations, but agreed that he
shuts down in such situations. The State mentioned allegations, but not
convictions, of acts on his criminal history, including assault in 2014, robbery in
Bexar County, taking a weapon from an officer, and assault of a public servant.
The appellant’s responses were unclear, responding “Okay” or “I’m not sure.” The
Court directed the State to move on. The State asked whether the appellant was
scared while he was in Louisiana and why. The defendant stated he was scared
because he was under arrest. He did not recall driving without lights, and did not
give the officers his name when removed from the vehicle because he was
exercising his right to remain silent, although he was not sure whether he was
under arrest or recall if he was handcuffed. (RR Vol. 2, p. 58-62)
The State and defense rested and closed. (RR Vol. 2, p. 62) The appellant waived presentence investigation. (RR Vol. 2, p. 63-64) The judge returned a verdict of guilty on evading arrest with a vehicle, with a finding of a deadly weapon, to wit, a motor vehicle, and guilty of possession of
marijuana in an amount greater than four ounces yet less than five pounds. The
trial court sentenced appellant to eight years confinement in the Texas Department
of Criminal Justice Institutional Division on the charge of evading arrest with a
vehicle with a finding of a deadly weapon, and two years confinement in a state
jail facility for the charge of possession of marijuana in an amount greater than
four ounces yet less than five pounds. The sentences were to run concurrently. (RR
Vol. 2, p 64)
SUMMARY OF THE ARGUMENT Four issues are presented as a basis for appeal, which is stated in Anders Issue
considered. First is considered sufficiency of the evidence, The State’s witnesses testimony was not controverted and included video and photo evidence.
The appellant admitted to the crime in punishment. Appeal counsel considers
admissibility of the State’s twenty-five exhibits and any error regarding trial
objections. Counsel finds all exhibits were admitted without objection. The one
objection not ruled upon in favor of the defense was not pursued by the defense as
the State changed its manner of questioning. Thirdly, counsel considers whether
the sentence rendered by the trial court was disproportionate in violation of the
U.S. Constitution. There was no objection made in the trial court as to the sentence
rendered and each was in the range of punishment by statute. Lastly, appeal
counsel considers whether trial counsel was ineffective. The record reveals trial
counsel presented evidence through the appellant and cross-examined the
witnesses and there is no basis on the record to support ineffective assistance of
counsel.
ARGUMENT
Anders Issue 1
Is the evidence is legally sufficient to support proof of the offenses of evading arrest and possession of marihuana as alleged in the indictments? Appellant counsel finds that the evidence is legally sufficient to support the finding of guilt for evading arrest and possession of marihuana as the convictions
are supported by the evidence. The State’s indictment is pursuant to
Texas Penal Code Sec. 38.04: Evading Arrest or Detention
(a) A person commits an offense if he intentionally flees from a person he knows
is a peace officer or federal special investigator attempting lawfully to arrest or
detain him.
(b) An offense under this section is a Class A misdemeanor, except that the
offense is: An offense under this section is a Class A misdemeanor, except that the
offense is:
(1) a state jail felony if the actor has been previously convicted under this section;
(2) a felony of the third degree if:
(A) the actor uses a vehicle while the actor is in flight; Tex. Health & Safety Code Sec. 481.121. Offense: Possession of Marihuana
(a) Except as authorized by this chapter, a person commits an offense if the person
knowingly or intentionally possesses a usable quantity of marihuana.
(b) An offense under Subsection (a) is:
*17 (3) a state jail felony if the amount of marihuana possessed is five pounds or less but more than four ounces;
Appellant is aware that in a legal sufficiency review, this Honorable Court will examine the evidence in the light most favorable to the verdict to determine
whether any rational fact-finder could have found the essential elements of the
crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319
(1979). Appellant recognizes the fact finder is the sole judge of the credibility and
weight to be attached to the testimony of witnesses. Thomas v. State, 444 S.W.3d
4, 8 (Tex. Crim. App. 2014) (citing Jackson, 443 U.S. at 319). Appellant
understands this court will give full deference to the jury's responsibility to fairly
resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007) Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007).
Appellant counsel finds that the evidence in the instant matter is sufficient because the record contains a mere modicum of evidence probative of an element
of the offense. Gonzalez v. State, 337 S.W.3d 473, 479 (Tex. App.-Houston [1
*18 Dist.] 2011) Appellant believes that the evidence presented supports a conclusion
that the defendant committed; the criminal offenses of evading arrest and
possession of marijuana.
In the instant matter there was testimony from two peace officers who witnessed the incident, video and photography evidence of the appellant’s evasion,
and testimony from the appellant admitting to the offenses.(RR Vol. 2, p.10-12,
14-15, 22, 29-30, 34-35, 38,40-43,53-54, 56-57) Each of these will be considered.
The issue here is whether there the evidence is legally sufficient to prove the
offenses of evading arrest and possession of marihuana as alleged in the
indictments.
Appellant argues there was not a lack of evidence as recognized by the Judge in counts 1 and 2. Appellant argues a rational trier of fact could determine a
consistent set of facts of which could be believed beyond a reasonable doubt.
Thus, pursuant to Williams v. State, Gonzalez v. State and Jackson v. Virginia,
supra, appellant argues there is more than a “mere modicum” of evidence probative
of the element of the direction of the discharge as well hereinafter be addressed.
Appellant argues the Judge could as a rational fact finder have found the elements of the offense as alleged in the indictment to have been shown beyond a
reasonable doubt. The testimony of the two peace officers is sufficient to support
the elements charged. Both officers testified they activated their lights and sirens in an attempt to stop the appellant. The officers then pursued the appellant as
he drove, refused to bring his vehicle to a stop, and proceeded to drive away from
the officers as they tried to detain the appellant lawfully. Additionally, Officer
McLin testified that he discovered marijuana, later determined to weigh a pound,
in a backpack and paraphernalia, including a digital scale, empty clear capsules, a
marijuana grinder, and papers when he processed the vehicle.
Appellant argues the video and photographic evidence of the peace officers support the elements of the offense of evasion as alleged in the indictment. The
state introduced without objection State’s Exhibit 1, Sergeant Ray’s in-car dash
camera video and audio of the incident, State’s Exhibit 2, Officer McLin’s patrol
car video, and State’s Exhibits 3 through 7, snapshots of Officer McLin’s patrol car
video. (RR Vol. 2, p. 14, 29-30, 37) These visuals depicted a passing 18-wheeler
and other vehicles, the appellant’s vehicle traveling at a high rate of speed without
lights on, and the appellant traveling in multiple lanes followed by the peace
officers. (RR Vol. 2, p.10-13, 29-30, 34-35, 47)
Appellant counsel finds the Judge could as a rational fact finder have found the elements of the offenses as alleged in the indictment to have been shown
beyond a reasonable doubt from the testimony of appellant. Mr. Lancaster, the
appellant testified that he was aware the police were following him, and was
driving fast because he was afraid since he was in an unfamiliar area. (RR Vol. 2,
p. 52-54) He had come from and noticed police were following him after he
crossed the state line into Texas.( RR Vol. 2, p. 53-54) The appellant also stated
that marijuana was in his vehicle, and he was trying to get to his home located in
Houston and stated that he made a mistake. (RR Vol. 2, p. P56-57) Appellant
counsel cannot reasonably argue that the evidence was insufficient as there was no
controverting evidence.
Anders Issue 2. Is there error in the admission of State’s exhibit one through twenty five including any error regarding trial objections?
Only twenty-five exhibits were offered at the plea and sentencing hearing.
No objections were made to any of the exhibits offered by the State. (RR Vol. 2, p.
p. 14, 30, 36, 37, 41, 42) Appellant counsel found no other instances of objection
in the record. Generally it is held that a timely objection must be made in order to
preserve an error in the admission of evidence. Dinkins v. State, 894 S.W.2d 330,
*21 355 (Tex. Crim. App. 1995) In viewing the trial court’s decision to admit or
exclude evidence and whether there was an abuse of discretion it is generally been
determined that the trial court is in the best position to decide questions of
admissibility, and will be upheld if a trial court's decision to admit or exclude
evidence is "within the zone of reasonable disagreement when reviewed under an
abuse of discretion standard. See Rodriguez v. State, 203 S.W.3d 837, 841 (Tex.
Crim. App.2006); Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex. Crim.
App.1990). Appeal counsel believes there was no preserved error regarding any of
the exhibits or the objections by defense counsel. As such appeal counsel finds no
harm in relation to the record to subvert the substantial right of the appellant to
require a reversal of the trial courts sentence.
Anders Issue 3 Was the trial court’s sentences of eight years confinement in TDCJ-ID and two years confinement in State Jail disproportionate sentence in violation of
the Eighth Amendment and Fourteenth Amendments to the United States Constitution? (U.S. Const. Amend. VIII; U.S. Const. Amend. XIV.) The sentence of eight years confinement in ID-TDCJ and two years State Jail was within the penalty range of two to ten years, for a third degree felony and
six months to two year State Jail in the State of Texas. In this matter there was no
objection to the trial court concerning the sentence. There was no allegation or
complaint that the sentence is grossly disproportionate, constituting cruel and
unusual punishment, and as such the error if any was not preserved for review.
See, Tex .R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 119-20 (Tex.
Crim. App. 1996). (RR Vol. 2, p. 64) Here, after the trial court announced its
sentence at the punishment hearing, appellant made no objection to the trial court
about the punishment assessed and did not assert her claim under the Eighth
Amendment and the Texas Constitution in the trial court. (RR Vol. 2 p. 64) As
such, the punishment of eight years confinement in ID-TDCJ and two years State
Jail falls within the range set forth by the Texas Legislature. Therefore, the
punishment is not prohibited as cruel, unusual, or excessive per se. Harris v. State,
656 S.W. 2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W. 2d 949,
952 (Tex. Crim. App. 1973) Appeal counsel believes appellant has waived his
cruel and unusual punishment complaint. See Ladd v. State , 3 S.W.3d 547, 564
(Tex. Crim. App. 1999) There is no evidence that the appellant‘s sentencing
process did not provide fundamental fairness. U.S. Const., Amend XIV. Euler v.
State, 158 S.W. 3d 88, 91 (Tex. Crim. App. 2007) Fundamental fairness requires
that an accused receive a fair trial. In the instant matter, the appellant’s testified to
what he believed to explain his actions. (RR Vol. 2 p. 54-55) Further, the appellant
waived his right to a PSI report. (RR Vol. 2 p. 64)
Anders Issue 4
Was trial counsel’s representation ineffective? The standard promulgated in Strickland v. Washington, 466 U.S. 668, 104 S. 22. Ct. 2052, 80 L. Ed. 674 (1984) requires a two-step analysis. First it requires a
demonstration that trial counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms. To satisfy this requirement
appellant must identify the acts or omissions of counsel alleged to be ineffective
assistance and affirmatively prove that they fell below the professional norm of
reasonableness. McFarland v. State, 928 S.W. 2d 482, 500 (Tex. Crim. App. 1996)
*24 This Honorable court then will judge a claim of ineffectiveness based on the totality of the representation. Strickland, supra, 466 U.S. at 695-96, 104 S. Ct. at
2069. The presumption is that trial counsel was effective. See, Jackson v. State,
877 S.W.2d 768,771 (Tex. Crim. App. 1994). Trial counsel did present evidence
through the appellant’s testimony. (RR V2, P 52-62) Trial counsel cross-examined
witnesses in detail. (RR Vol. 2 p. 23, 26, 44, -51, 55-57, 77-87) The appellant was
able to present his reasoning for his behavior. (RR Vol. 2 p. 54-55) Appeal counsel
finds no basis to determine trial counsel’s strategy or to ascertain of what value it
might have been to call or not to call other witnesses. The appellant’s testimony as
set out previously supports the facts of the indictment. Appeal counsel does not
find support from the record to argue “but for” trial counsels decisions in the
sentencing hearing there would have been a different result. Especially,
considering the appellant’s testimony regarding offense. (RR Vol.2 p. 53-61) In
reviewing the totality of trial counsel’s representation and presentation of evidence
as considered above- the record does not present evidence of trial counsel falling
below the objective standard of reasonableness and professional norms. Strickland,
supra. Further, appellant counsel does not find a single egregious error or omission
that will constitute ineffective assistance. Nero v. Blackburn, 597 F.2d 991, 994 (5th Cir. 1979)
As such appellate counsel offers this Anders Brief.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant’s counsel respectfully
requests, as relief, that he be allowed to withdraw as this appeal is frivolous and so
advise Appellant so that she may pursue a pro se brief if she so desires, or
alternatively to appoint other counsel for Appellant in the prosecution of this
appeal.
Respectfully, Submitted: /S/ John D. Reeves JOHN D. REEVES Attorney at Law 1007 Grant Ave.
Lufkin, Texas 75901 Phone: (936) 632-1609 Fax: (936) 632-1640 SBOT # 16723000 Email: tessabellus@yahoo.com ATTORNEY FOR APPELLANT *26 CERTIFICATE OF COMPLIANCE I, John D. Reeves Counsel for appellant hereby certify that this brief exclusive of
the rule provisions that do not provide counting contains 4,333 words.
/S/ John D. Reeves John D. Reeves CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing Appellant’s Brief on this 2 nd day of November has been forwarded to the State’s Counsel,
April-Ayers-Perez, Assistant District Attorney of Angelina County, by Efiling
service.
/S/ John D. Reeves John D. Reeves