NO. 05-11-00657-CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS 5th Court of Appeals FILED: 03/23/2012 14:00 Lisa Matz, Clerk GLEN FRAZIER, Appellant v. THE STATE OF TEXAS, Appellee On appeal from the 283rd Judicial District Court of Dallas County, Texas Cause No. F08-72665-T BRIEF IN SUPPORT OF MOTION TO WITHDRAW Lynn Richardson Chief Public Defender Counsel of Record: Kathleen A. Walsh Assistant Public Defender Dallas County Public Defender s Office Katherine A. Drew State Bar Number: 20802200 Chief, Appellate Division 133 N. Riverfront Blvd., LB 2 Dallas, Texas 75207-4399 (214) 653-3550 (telephone) (214) 653-3539 (fax) ATTORNEYS FOR APPELLANT
LIST OF PARTIES APPELLANT Glen Frazier APPELLANT S ATTORNEYS AT TRIAL: Calvin Johnson State Bar No. 24032596 1700 Commerce Street, Suite 540 Dallas, TX 75201 ON APPEAL: Kathleen A. Walsh Assistant Public Defender Dallas County Public Defender s Office State Bar Number: 20802200 Frank Crowley Courts Building 133 N. Industrial Blvd., LB 2 Dallas, Texas 75207-4399 STATE S ATTORNEYS AT TRIAL: Reynie Tinajero State Bar No. 24008163 Audra Riley State Bar No. 24043291 Assistant District Attorneys ON APPEAL: Craig Watkins (or his designated representative) Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Industrial Blvd., LB-19 Dallas, Texas 75207-4399 ii
TABLE OF CONTENTS LIST OF PARTIES... ii INDEX OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 CERTIFICATE OF COUNSEL... 1 SPECIAL STATEMENT TO THE COURT... 2 Jurisdiction... 2 Plea Proceedings... 4 CONCLUSION... 8 CERTIFICATE OF SERVICE... 8 iii
INDEX OF AUTHORITIES Cases Anders v. California, 386 U.S. 738 (1966)...1 Cevalles v. State, 513 S.W.2d 865 (Tex. Crim. App. 1974)...6 Davenport v. State, 858 S.W.2d 1 (Tex. App. Dallas 1993, no pet.)...6 Dinnery v. State, 592 S.W.2d 343(Tex. Crim. App. 1979)...6 Ex parte Broadway, 301 S.W.3d 694(Tex. Crim. App. 2009)...3, 4 Ex parte Delaney, 207 S.W.3d 794 (Tex. Crim. App. 2006)...3 Gainous v. State, 436 S.W.2d 137(Tex. Crim. App. 1969)...1 Harmelin v. Michigan, 501 U.S. 957 (1991)...7 Harris v. State, 656 S.W.2d 481(Tex. Crim. App. 1983)...7 Hernandez v. State, 726 S.W.2d 53(Tex. Crim. App. 1986)...7 Jeffery v. State, 903 S.W.2d 776 (Tex. App. Dallas 1995, no pet)....2 Monreal v. State, 99 S.W.3d 615(Tex. Crim. App. 2003)...3 Strickland v. Washington, 466 U.S. 668 (1984)...7 iv
Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1989)...4 Statutes TEX. CODE CRIM. PROC. art. 1.13...5 TEX. CODE CRIM. PROC. art. 1.14...3 TEX. CODE CRIM. PROC. art. 1.14(b)...4 TEX. CODE CRIM. PROC. art. 1.15...6 TEX. CODE CRIM. PROC. art. 26.13...6 TEX. CODE CRIM. PROC. art. 26.13(b)...5 TEX. CODE CRIM. PROC. art. 44.02...3 TEX. PENAL CODE 22.04(a)(1)...4 Constitutional Provisions TEX. CONST. art. I, 13...7 TEX. CONST. art. V, 12...4 U.S. CONST. art. VIII...7 v
TO THE HONORABLE COURT OF APPEALS: The undersigned attorney submits this brief in support of the motion to withdraw. This is an appeal from a conviction for the offense of serious bodily injury to a child in the 283rd Judicial District Court of Dallas County, Texas, the Honorable Rick Magnis, Judge presiding. STATEMENT OF THE CASE Appellant was charged by indictment with offense of serious bodily injury to a child alleged to have been committed on July 6, 2008. (CR: 5). On January 20, 2011, Appellant waived his right to a jury trial and entered an open plea of guilty. (RR2: 5-7). Appellant s signed written, judicial confession and stipulation of evidence was admitted into evidence. (RR2: 7: CR: 62-66). The punishment hearing was held on March 28, 2011. (RR3). After hearing the testimony of numerous witnesses, the trial court found Appellant guilty on his plea and sentenced Appellant to 25 years imprisonment. (RR3: 62). Notice of appeal was timely filed. (CR: 70). CERTIFICATE OF COUNSEL In compliance with the requirements of Anders v. California, 386 U.S. 738 (1966) and Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969), the undersigned appointed attorney states that she has diligently reviewed the entire record in this cause and the law applicable thereto and, in her opinion, this appeal is without merit and wholly frivolous in that the record reflects no reversible error. It is also the opinion of the
undersigned appointed attorney on appeal that there are no grounds of error upon which an appeal can be predicated. The undersigned appointed attorney on appeal has served a copy of this brief on Appellant. At that time, the undersigned attorney informed Appellant by letter that, in her professional opinion, the appeal was without merit. The undersigned attorney also explained that Appellant has the right to review the record and to file a pro se brief if he so desires. The undersigned attorney has provided a copy of the record to Appellant. Appellant has also been informed by the undersigned attorney that he may request an extension of time from this Honorable Court for the filing of a pro se brief if he so desires. The undersigned attorney has also filed a Motion to Withdraw as mandated by this Court s opinion in Jeffery v. State, 903 S.W.2d 776 (Tex. App. Dallas 1995, no pet). SPECIAL STATEMENT TO THE COURT Jurisdiction. An argument can be made that Appellant has waived his right of appeal in this case. However, based upon the record and the nature of the proceedings, as well as the applicable law, the undersigned attorney has concluded that Appellant has not waived such right. The record contains a document entitled Plea Agreement which is dated January 20, 2011 and signed by both the State, the Appellant, and the Magistrate who initially took Appellant s plea. (CR: 62-65). This document indicates that Appellant would enter 2
an open plea of guilty. (CR: 62-65). In the Section entitled State s recommendation, the words 40 TDC is written. (CR: 62). The only entry written in the section entitled Agreed Sentence, is the word OPEN. (CR: 63). In the Section entitled Defendant s Statements and Waivers, the box is checked in front of the language indicating that Appellant was waiving his right to appeal if the trial court followed the terms of the State s recommendation as to sentencing. (CR: 64). The plea hearing was held on January 20, 2011 before a magistrate. (RR2). At the end of the hearing, the Court accepted Appellant s plea of guilt, found that Appellant was mentally competent to enter his plea, and found that the plea was freely and voluntarily made. (RR2: 7). The Court further found the evidence sufficient to prove Appellant s guilt beyond a reasonable doubt; however, the Court made no finding of guilt and passed the case to another date for further adjudication and punishment. (RR2: 7). There was no discussion during the initial plea hearing regarding Appellant s right to appeal. (RR2: 5-8). At the end of the punishment hearing after Appellant was sentenced, the trial court admonished Appellant that he had a right to appeal. (RR3: 62). A defendant in Texas has a statutory right to appeal his conviction. TEX. CODE CRIM. PROC. art. 44.02. A defendant may waive this right, if the waiver is executed voluntarily, knowingly, and intelligently. Ex parte Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App. 2009) (citing TEX. CODE CRIM. PROC. art. 1.14; Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003)). However, where a waiver of the right to appeal is entered prior to adjudication and sentencing, has not been bargained for, and the precise 3
terms of punishment are uncertain, the waiver is not considered voluntarily, knowingly, and intelligently made and is void. Ex parte Delaney, 207 S.W.3d 794, 796-97 (Tex. Crim. App. 2006). It is only if some form of bargain is made between the State and the defendant, in exchange for the plea, that the waiver may be upheld. Broadway, 301 S.W.3d at 697-98 (finding that the State gave consideration by consenting to join in a defendant s waiver of a jury trial). Here, the only evidence in the record that Appellant waived his right to appeal is the box checked on the form entitled Plea Agreement; however, this form was executed before Appellant was found guilty and sentenced. Indeed, the record shows that the State introduced the executed document into evidence during the initial plea hearing before the court accepted Appellant s plea, before the trial court found Appellant guilty, and before Appellant testified and requested that the trial court assess probation. There is no evidence in the record that Appellant did not want to appeal and after sentencing, the trial court admonished Appellant that he had the right to appeal. Accordingly, any waiver of the right to appeal is not valid under these circumstances. Plea proceedings. The record in this case clearly reflects that Appellant entered an open plea of guilty to the indictment. (RR2: 5-7). The indictment for serious bodily injury to a child contained all of the elements of the offense as proscribed by TEX. PENAL CODE 22.04(a)(1). This indictment conferred jurisdiction upon the trial court. TEX. CONST. art. V, 12; Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1989). No complaint, 4
either in the form of an objection or a motion, was made to this indictment; hence nothing is presented for appellate review. TEX. CODE CRIM. PROC. art. 1.14(b). The undersigned attorney has searched the record for any pretrial motions which might support a point of error. Appellant s initial attorney 1 filed several pretrial motions, including a motion for an investigator. (CR: 18-59). The motion for an investigator was granted; however, there is no indication in the record that any of the other motions were presented to the trial court for a ruling. (CR: 18-19, 20-22, 23-32, 33-34, 35-36, 37-39, 40-41, 42-43, 44-45, 46-47, 48-50, 51-53, 54-57, 58-59). Thus, there is nothing presented for appellate review. Appellant properly waived his right to a jury trial in accordance with the terms of TEX. CODE CRIM. PROC. art. 1.13. The waiver was signed by all parties, and received the consent and approval of the trial court, as required by Art. 1.13. (RR2: 6; RR3: 5; CR: 63-65). Prior to accepting Appellant's plea, the court inquired as to the voluntariness of the plea and Appellant's understanding of the consequences of his plea. (RR2: 5-7; CR: 65). Appellant entered his plea freely and voluntarily. (RR2: 7). The trial court inquired as to Appellant's competency and found that Appellant was competent to enter his plea. (RR2: 7; RR3: 61-62; CR: 65). After a complete review of the record, the undersigned attorney 1 Appellant was arrested and charged with the offense on July 23, 2008. (CR: 7-8). On that same day, Attorney Catherine Bernhard was appointed to represent him. (CR: 12, 60). At some point, Appellant retained trial attorney Calvin Johnson. (CR: 9). 5
is satisfied that Appellant was competent to enter his plea and that this plea was made both freely and voluntarily. TEX. CODE CRIM. PROC. art. 26.13(b). The record contains written admonishments in accordance with the terms of TEX. CODE CRIM. PROC. art. 26.13. (CR: 63-65). These admonishments were signed by Appellant. (CR: 65). Additionally, Appellant was orally admonished by the trial court; those admonishments were in substantial compliance with Article 26.13. (RR2: 5-6). The undersigned attorney is satisfied that, in the case at bar, these admonishments were sufficient to substantially comply with Art. 26.13. The State introduced evidence sufficient to substantiate Appellant's plea of guilty. TEX. CODE CRIM. PROC. art. 1.15. Appellant signed a judicial confession and a stipulation of evidence which was introduced as State's Exhibit 1. (RR2: 7; CR: 64-66). The judicial confession, standing alone, is sufficient evidence to support Appellant's conviction. Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1979); Cevalles v. State, 513 S.W.2d 865, 866 (Tex. Crim. App. 1974); Davenport v. State, 858 S.W.2d 1, 3 (Tex. App. Dallas 1993, no pet.). Appellant also testified during the open plea hearing and admitted having committed the offense. (RR3: 11-26). The undersigned attorney has reviewed the record to determine if any objections were made on Appellant's behalf which would support an issue on appeal. No objections were made. Nor does the record reflect any opportunity where a proper objection could have been interposed on Appellant's behalf. 6
The undersigned attorney has reviewed the performance of trial counsel. The record reflects that Appellant received reasonably effective assistance of trial counsel, based on the standards of Strickland v. Washington, 466 U.S. 668 (1984) and Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). The punishment assessed is within the range established by the Legislature, and, as such, does not violate the constitutional prohibitions against cruel and unusual punishment under either U.S. CONST. art. VIII or TEX. CONST. art. I, 13; Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983). Nor does the undersigned attorney discern anything in the record to suggest that the punishment assessed is grossly disproportionate to the crime. See Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L.Ed.2d 836 (1991). Additionally, no objection was made to the punishment assessed at trial. In the undersigned attorney's professional opinion, Appellant received a fair trial free from reversible error. 7
CONCLUSION After full review of the record, the undersigned attorney is of the opinion that the appeal in this cause is frivolous and without merit. Respectfully submitted Lynn Richardson Chief Public Defender Kathleen A. Walsh Assistant Public Defender State Bar No. 20802200 Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Dallas, TX. 75207-4399 (214) 653-3550 (telephone) (214) 653-3539 (fax) CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing brief was served on the Dallas County Criminal District Attorney s Office (Appellate Division), 133 N. Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by hand delivery on the 20th day of March, 2012 and by email to Michael Casillas, Assistant District Attorney, Chief of the Appellate Division. Kathleen A. Walsh 8