Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 5/6/2015 3:20:46 PM JEFFREY D. KYLE Clerk No. 031400445CR THIRD COURT OF APPEALS 5/6/2015 3:20:46 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-14-00445-CR *1 ACCEPTED [5179055] CLERK In the
COURT OF APPEALS
For the THIRD SUPREME JUDICIAL DISTRICT at Austin
______________________________________ On Appeal from the County Court at Law Number 3 Williamson County, Texas
Cause Number 14021542 ______________________________________ Alicia Marie Midkiff, Appellant v.
THE STATE OF TEXAS, Appellee _____________________________________ MOTION TO WITHDRAW AS COUNSEL WITH ANDERS BRIEF IN SUPPORT _____________________________________ Counsel for Appellant Crystal D. Murray
Alicia Marie Midkiff ATTORNEY AT LAW
SBN No. 24029611 1001 Cypress Creek Rd, Ste. 405 Cedar Park, Texas 78613 (512) 2571010 (512) 2570005 (FAX) Crystal@cedarparklaw.com *2 IDENTIFICATION OF PARTIES Pursuant to Texas Rule of Appellate Procedure 38.1, a complete list of the names of all interested parties is provided below so the members of this
Honorable Court may at once determine whether they are disqualified to serve or
should recuse themselves from participating in the decision of this case.
Appellant:
Alicia Marie Midkiff
Counsel for Appellant:
Todd Ver Weire
1000 Heritage Center Circle
Round Rock, Texas 78664
Crystal D. Murray (on appeal)
1001 Cypress Creek Rd, Ste. 405
Cedar Park, Texas 78613
Counsel for Appellee, The State of Texas:
Doyle “Dee” Hobbs, Jr.
Williamson County Attorney
Stephanie Maugham (at trial)
James LaMarca (on appeal)
Assistant County Attorneys
405 Martin Luther King Blvd.
Georgetown, Texas 78626
Trial Court Judge:
The Honorable Doug Arnold
Presiding Judge
County Court at Law Number Three
TABLE OF CONTENTS
IDENTIFICATION OF PARTIES…………………………………………....2 TABLE OF CONTENTS……………………………………………………...4 INDEX OF AUTHORITIES…………………………………………………..5 STATEMENT OF THE CASE………………………………………………..7 STATEMENT OF FACTS…………………………………………………....8 ISSUE PRESENTED………………………………………………………...11 Whether the instant appeal is frivolous and without merit, such that the undersigned should withdraw as counsel.
PROFESSIONAL EVALUATION………………………………………….13 POTENTIAL ERRORS CONSIDERED BY COUNSEL…………………...15 CONCLUSION……………………………………………………………....17 NOTICE TO APPELLANT………………………………………………….17 PRAYER……………………………………………………………………..17 CERTIFICATE OF SERVICE……………………………………………....18 CERTIFICATE OF WORD COUNT………………………………………..19 *5 INDEX OF AUTHORITIES FEDERAL CASES
Anders v. California, 386 U.S. 738 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
McCoy v. Court of Appeals of Wisconsin, District I, 486 U.S. 429 (1988). . 11, 13
TEXAS CASES
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)....................................15
Gaines v. State, 479 S.W.2d 678 (Tex. Crim. App. 1972) . . . . . . . . . . . . . . .15, 16
Hawkins v. State, 112 S.W.3d 340 (Tex. App. Corpus Christi 2003) . . . . . . . . 13
Jordan v. State, 495 S.W.2d 949 (Tex. Crim. App. 1973) . . . . . . . . . . . . . . .15, 16
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991).....................14, 16
Samuel v. State, 477 S.W.2d 611 (Tex. Crim. App. 1972) . . . . . . . . . . . . . . 15, 16
Wilson v. State, 40 S.W.3d 192 (Tex. App. – Texarkana 2001).. . . . . . . . . . . . . 12
STATUTES AND RULES
T EX . P ENAL C ODE §12.21.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
T EX . P ENAL C ODE §22.01.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
STATEMENT REGARDING ORAL ARGUMENT Pursuant to Texas Rule of Appellate Procedure 39.1, Oral argument is not applicable in the present case.
No. 031400445CR
In the
COURT OF APPEALS
For the THIRD SUPREME JUDICIAL DISTRICT at Austin
______________________________________ On Appeal from the County Court at Law Number Three Williamson County, Texas
Cause Number 14021542 ______________________________________ ALICIA MARIE MIDKIFF, Appellant v.
THE STATE OF TEXAS, Appellee _____________________________________ MOTION TO WITHDRAW AS COUNSEL WITH ANDERS BRIEF IN SUPPORT _____________________________________
STATEMENT OF THE CASE On July 9, 2014, Appellant pleaded not guilty to the misdemeanor offense of assault with bodily injuryfamily violence. (2 R.R. at 5). On the same day, the
jury trial commenced. (2 R.R. at 18). On July 10, 2014, a jury found the
Appellant guilty of the charged offense. (1 C.R. at 67). The Appellant waived
jury sentencing and elected for the Court to assess punishment. (1 C.R. at 68)
On the same day, the Appellant and the State agreed to a plea bargain for 225
days confinement in the Williamson County Jail. (3 R.R. at 63). After a
sentencing hearing, the Court sentenced Appellant to 225 days confinement in the
county jail. (1 C.R. at 71).. Appellant timely filed Notice of Appeal on July 15,
2014. (1 C.R. at 72). This appeal results.
STATEMENT OF FACTS On March 14, 2014, Cole Smith, Brooke Reiman, several of Ms. Reiman’s friends from College Station, and the Appellant drove to Maggiore’s restaurant in
Cedar Park, Texas to watch the a college basketball game. (2 R.R. at 112113).
At the time, the Appellant, Cole Smith, Brooke Reiman, and another young man
named Preston were roommates in an apartment located in Cedar Park. (2 R.R. at
155). While at Maggiore’s, the Appellant began drinking margaritas. (2 R.R. at
113). While Mr. Smith stayed inside the restaurant, the Appellant, Ms. Reiman,
and the other guests, stepped outside to smoke. (2 R.R. at 114). While outside
smoking, the Appellant urinated on herself. (2 R.R. at 136). The group abruptly
paid their checks, and began walking out, laughing about an unrelated incident.
(2 R.R. at 137). Appellant, assuming the laughter was directed at her, became
belligerent with the group. (2 R.R. at 115).
While driving back to the shared apartment, the Appellant continued to confront Ms. Reiman about whether or not Ms. Reiman had a problem with
Appellant’s behavior. (2 R.R. at 140). Ms. Reiman confirmed that she was
embarrassed by Appellant’s behavior in public. Id. After arriving at the
apartment, and while Mr. Smith was outside with the dogs, Ms. Reiman requested
that the Appellant pack her belongings and move out of the apartment. Appellant
walked to the hallway towards her room, and Ms. Reiman attempted to let
another dog out of its kennel. Appellant approached Ms. Reiman, struck her with
her palm, and grabbed her shirt. Ms. Reiman struck the Appellant back 24
times. Ms. Reiman testified that the first strike landed under her right cheekbone,
causing redness and swelling. (2 R.R. at 142144). When Mr. Smith arrived
back inside the apartment, he did not observe who started the fight, but did see
Ms. Reiman punch the Appellant. (2 R.R. at 130). Mr. Smith separated the
women, and while Ms. Reiman stayed in her bedroom, the Appellant left the
apartment in her car. (2 R.R. at 151). When officers from the Cedar Park Police
Department arrived, Officer Kitchens observed Ms. Reiman’s torn shirt and
swollen cheek. (2 R.R. at 165).
Another CPPD officer, Sergeant Mauer saw the Appellant’s car a short distance from the apartment and pulled her over. (3 R.R. at 30). Prior to Sgt.
Mauer’s testimony, defense counsel requested several redactions to Sgt. Mauer’s
patrol video, and the court granted defense counsel’s request. Several sections of
superfluous background discussions, any allegations to driving while intoxicated,
references to attending court, and criminal history checks on witnesses were
redacted. After the court granted defense counsel’s redaction requests, counsel
objected to the patrol video in its redacted entirety as more prejudicial than
probative to the Appellant in its redacted state. The court denied the Appellant’s
motion to exclude the video, stating that the redacted version was at the defense
counsel’s request. (3 R.R. at 614).
While speaking with Sgt. Mauer, the Appellant alternated between crying and remaining calm. (3 R.R. at 35). Before Sgt. Mauer explained to the
Appellant the reason for the stop, the Appellant repeatedly stated that “everybody
was lying” and to “take her to jail.” (3 R.R at 3536). She was subsequently
arrested for Assault with Bodily InjuryFamily Violence.
ISSUE PRESENTED
Whether the Instant Appeal Is Frivolous and Without Merit, Such That the Undersigned Should Withdraw as Counsel.
A criminal defense attorney’s duty is to zealously represent the interests of his or her client on appeal. Anders v. California, 386 U.S. 738, 744 (1967). If
the appointed attorney finds the “case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request
permission to withdraw.” Anders, 386 U.S. at 744.
Both retained and appointed appellate attorneys have a “duty to withdraw” as counsel when they conclude that an appeal would be frivolous, but appointed
counsel “is presented with a dilemma because withdrawal is not possible without
leave of court, and advising the court of counsel’s opinion that the appeal is
frivolous would appear to conflict with the advocate’s duty to the client.” McCoy
v. Court of Appeals of Wisconsin, District I, 486 U.S. 429, 437 (1988). “It is well
settled, however, that this dilemma must be resolved by informing the court of
counsel’s conclusion.” Id. “Under Anders and its progeny, if an appointed
attorney concludes that his client’s appeal is without merit, he or she must (1) so
inform the court, (2) seek permission to withdraw, and (3) file a brief ‘referring to
anything in the record that might arguably support the appeal.’” Wilson v. State,
40 S.W.3d 192, 196 (Tex. App. Texarkana 2001).
As the Supreme Court explained, the attorney’s motion to withdraw must, however, be accompanied by a brief referring to anything in the record that might
arguably support the appeal. Anders, 386 U.S. at 744. A copy of counsel’s brief
should be provided to the Appellant and time should be allowed for him to raise
any points that he chooses. Id. Then, the Court, and not counsel, decides, after a
full examination of all the proceedings, whether the case is wholly frivolous. Id.
If it so finds, it may grant counsel’s request to withdraw and dismiss the appeal
insofar as federal requirements are concerned, or proceed to a decision on the
merits, if state law so requires. Anders, 386 U.S. at 744. In Texas, an Anders
brief need not specifically advance “arguable” points of error if counsel finds
none, but it must provide record references to the facts and procedural history and
set out pertinent legal authorities. See Hawkins v. State, 112 S.W.3d 340, 343344
(Tex. App.–Corpus Christi 2003). The attorney’s duty to withdraw is based upon
his or her professional and ethical responsibilities as an officer of the court not to
burden the judicial system with false claims, frivolous pleadings, or burdensome
time demands. McCoy, 486 U.S. at 436. The Supreme Court instructs: “Neither
paid nor appointed counsel may deliberately mislead the court with respect to
either the facts or the law, or consume the time and the energies of the court or
the opposing party by advancing frivolous arguments. An attorney, whether
appointed or paid, is therefore under an ethical obligation to refuse to prosecute a
frivolous appeal.” Id.
PROFESSIONAL EVALUATION Counsel would respectfully show the Court of Appeals that the instant appeal is frivolous and without merit, for the following reasons:
The trial court had jurisdiction over the present misdemeanor case and venue was proper in Williamson County, where the offense was alleged to have
occurred. The records reflects ample testimony supporting the Appellant’s
conviction for Assault with Bodily InjuryFamily Violence. There was no
contradictory testimony that Appellant became belligerent with Ms. Reiman and
intentionally struck Ms. Reiman in the face, causing bodily injury T EX . P ENAL
C ODE §22.01.
Defense counsel successfully argued for a large number of redactions from Sgt. Mauer’s patrol video. All references to anything that would have been more
prejudicial than probative to the Appellant, or bolstering of the State’s witnesses
were removed from the audio portion of the video prior to publishing the jury.
There are no allegations that the State failed to redacted any of the requested
redactions. (3 R.R.). A trial court does not abuse its discretion by admitting
evidence if its decision to do so is reasonable. Montgomery v. State, 810 S.W.2d
372, 391 (Tex. Crim. App. 1991).
The punishment for that offense, as alleged in the information, is that of a class A misdemeanor. T EX . P ENAL C ODE §22.01(b). After pleading not guilty,
hearing witness testimony, and reviewing photographic and video testimony, the
trial court assessed punishment at 225 days in the county jail, within the statutory
range of punishment for the offense. T EX . P ENAL C ODE §12.21. A punishment
which falls within the statutory range is not excessive, cruel, or unusual
punishment. Gaines v. State, 479 S.W.2d 678, 679 (Tex. Crim. App. 1972). See
also Jordan v. State 495 S.W.2d 949, 952 Tex. Crim. App. 1973; Samuel v. State,
477 S.W.2d 611, 614 (Tex. Crim. App. 1972).
POTENTIAL ERRORS CONSIDERED BY COUNSEL Counsel considered the following point of errors on appeal: (1) Whether the evidence was sufficient to support Appellant’s conviction.
It is counsel’s opinion that the evidence in this case was sufficient to support Appellant’s conviction because Appellant witnesses testified that the
Appellant argued and confronted Ms. Reiman, Mr. Smith observed Appellant in a
fight with Ms. Reiman, and three witnesses testified that Ms. Reiman had a
swollen cheekbone and torn shirt. Furthermore, Appellant requested to be taken
to jail, and accused the others of lying before Sgt. Mauer explained the reason for
the stop. In reviewing legal sufficiency, the court shall review “in the light most
favorable to the verdict.” Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App.
2010). There is ample evidence to support the Appellant’s verdict.
(2) Whether the trial court erred by admitted the patrol video of Sgt. Mauer with the redactions requested by the defense.
It is counsel’s opinion that the trial court did not err in admitting Sgt.
Mauer’s redacted patrol video. The trial court granted all of the defense requests
for redactions and there were no allegations that the State failed to comply with
those requests. A trial court does not abuse its discretion by admitting evidence
if its decision to do so is reasonable. Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1991).
(3) Whether Appellant’s punishment was excessive.
It is counsel’s opinion that the punishment assessed by the trial court was not excessive because Appellant’s punishment fell within the statutory
punishment range for a Class A misdemeanor offense. A punishment which falls
within the statutory range is not excessive, cruel, or unusual. Gaines v. State, 479
S.W.2d 678, 679 (Tex. Crim. App. 1972). See also Jordan v. State 495 S.W.2d
949, 952 Tex. Crim. App. 1973; Samuel v. State, 477 S.W.2d 611, 614 (Tex.
Crim. App. 1972).
CONCLUSION
There are no points of error which, in good conscience, could be raised in this appeal.
NOTICE TO APPELLANT The undersigned has forwarded a copy of this motion to withdraw and a letter explaining Appellant’s rights, as well as the procedures to be followed
when a brief is filed by counsel indicating that the appeal is frivolous and without
merit, to Appellant. The letter also informs Appellant of his right to file a pro se
petition for discretionary review. In addition to the letter, the undersigned has
also forwarded to Appellant a Motion for Pro Se Access to the Appellate Record
so that Appellant can obtain the necessary records to file a brief, should he
choose to do so. A true and correct copy of such letter is attached hereto.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Crystal D. Murray, *18 courtappointed counsel for Appellant in the above styled and numbered cause
respectfully prays that, after providing Appellant an opportunity to submit a pro
se brief, this Honorable Court of Appeals will review the appellate record to
make an independent determination of whether there are grounds upon which to
appeal. The undersigned also prays that the Court will grant this motion to
withdraw.
Respectfully submitted, ____/s/Crystal D. Murray_______ Crystal D. Murray State Bar Number 24029611 1001 Cypress Creek Rd. Ste. 405 Cedar Park, Texas 78641 (512) 2571010 (512) 2570005 (fax) crystal@cedarparklaw.com CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Motion to Withdraw as Counsel with Anders Brief in Support has been
emailed to the Williamson County Attorney’s Office, via James LaMarca,
jlamarca@wilco.org on May 6, 2015.
______/s/ Crystal D. Murray____ Crystal D. Murray CERTIFICATE OF WORD COUNT The undersigned hereby certifies that the foregoing document consists of 2,685 words in compliance with Texas Rule of Appellate Procedure 9.4.
______/s/ Crystal D. Murray___ Crystal D. Murray