Aaron Edward Bell v. State

• Court: Texas Supreme Court
• Decided: December 27, 2013
• Docket: 07-13-00237-CR
• Status: Published

Opinion

CAUSE NOS. 07-13-00234-CR; 07-13-00235-CR; 07-13-00236-CR; 07-13-0023 7-CR; 07-13-00238-CR; AND 07-13-00239-CR

IN THE SEVENTH COURT OF APPEALS AMARILLO, TEXAS December 27, 2013

AARON EDWARD BELL Appellant, vs.

THE STATE OF TEXAS, Appellee.

APPEALING THE JUDGMENTS AND SENTENCES IN CAUSE NUMBERS 1288725D, 1288726D, 1288727D AND 1288728D, 1290870D, AND 1290871D IN THE 372Nn DISTRICT COURT FOR TARRANT COUNTY, TEXAS, HON. SCOTT WISCH, JUDGE PRESIDING.

APPELLANT'S ORIGINAL BRIEF (Certified Frivolous)

DAVID L. RICHARDS Oral Argument is not requested SBN: 16845500 3001 West 5th Street, Ste. 800 FORT WORTH, TEXAS 76107 (817) 332-5567 (phone) (817) 885-7688 (fax)

COUNSEL FOR APPELLANT IDENTITY OF PARTIES AND COUNSEL

The Parties to the trial Aaron Edward Bell Defendant Court' s judgment are:

Trial counsel were: Hon. G. Dewayne Huston Defense Counsel 100 East 15th Street, Ste. 620 Fort Worth, Texas 76102

The State of Texas Prosecution

Hon. Elizabeth Beach Tarrant County

Office of the Tarrant County District Attorney 401 W. Belknap Street Fort Worth, Texas 76196 (817) 884-1400

Appellate counsel are: David Richards Appellant 3001Weat5th Street, Ste. 800 Fort Worth, Texas 76107 (817) 332-5567

Hon. Charles M. Mallin State of Texas

Tarrant County District Attorney's Office Appellate Section Address Above TABLE OF CONTENTS

TABLE OF CONTENTS

Identi~ of Parties and Counsel .............................................. 1

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement as to Why No Points are Presented on Appeal ......................... 4

COUNSEL ON APPEAL CERTIFIES THAT HE HAS CAREFULLY REVIEWED THE TRIAL COURT RECORD, BUT CAN FIND NO ARGUABLE ERROR. HE THEREFORE CERTIFIES THIS APPEAL AS FRIVOLOUS AND HAS FORWARDED BOTH A COPY OF THE RECORD AND A COPY OF THIS BRIEF TO APPELLANT.

Conclusion, Prayer and Certificate of Service ................................... 6

11 INDEX OF AUTHORITIES

Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973) .......................................... .4

Anders v. California, 386 U.S. 738 (1967) ................................................................................... 5

Gutierrez v. State, 36 S.W.3d 509, 511 (Tex. Crim. App. 2001) ............................................ .4

McDuffv. State, 939 S.W.2d 607 (Tex. Crim. App.), cert. denied, 522 U.S. 844 (1997) .............................. .4

Sanchez v. State, 120 S. W 2d 359 (Tex. Crim. App. 2003) .. ....... .... ... .. ....... ... ..... ................ ..4

Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) ................................................... 5

Strickland v. Washington, 466 U.S. 668 (1984) ................................................................................... 4

lll STATEMENT ON APPEAL

COUNSEL ON APPEAL CERTIFIES THAT HE HAS CAREFULLY REVIEWED THE TRIAL COURT RECORD, BUT CAN FIND NO ARGUABLE ERROR. HE THEREFORE CERTIFIES THESE APPEALS AS FRIVOLOUS AND HAS FORWARDED BOTH A COPY OF THE RECORD AND A COPY OF THIS BRIEF TO APPELLANT.

1 STATEMENT OF THE CASE Appellant's full name is Aaron Edward Bell (hereinafter "Mr. Bell"). He is an inmate

of the Texas Department of Criminal Justice, Institutional Division and has been assigned

inmate No. 01861465, 2664 FM 2054, Tennessee Colony, Tx. 75886. Mr. Bell was

sentenced by the trial court to multiple concurrent sentences of fifty years ' and forty years'

confinement, following his pleas of guilty and "true" to the enhancement paragraphs, and

his conviction and subsequent sentencing hearings, in these cases of aggravated robbery,

jointly tried, on May 31, 2013. RR. Vol. II, p. 44-45.

STATEMENT AS TO THE WAIVER ORAL ARGUMENT No argument is requested; however, should appellant request oral argument in

connection with an appellate brief he may file pro-se, counsel requests that the Court not

consider this waiver as a ground to overrule that request.

PROCEDURAL HISTORY

Appellant was convicted and sentenced in each case on May 13, 2013. RR. Vol. II, p.

44-45. Written Notice of Appeal was timely given on June 3, 2013. CR. Vol. 1, p. 48.

Following an extension granted by this Court, this brief is tendered on December 22, 2013.

2 STATEMENT OF FACTS

Mr. Bell admitted that he committed multiple aggravated robberies occurring in

Tarrant County in 2012. CR. Vol I, p. 5, RR. Vol. II, p. 43-44.

Further review of the facts is deferred to the "Discussion" section of this brief, below.

3 STATEMENT AS TO WHY NO POINTS ARE PRESENTED

COUNSEL ON APPEAL CERTIFIES THAT HE HAS CAREFULLY REVIEWED THE TRIAL COURT RECORD, BUT CAN FIND NO ARGUABLE ERROR. HE THEREFORE CERTIFIES THIS APPEAL AS FRIVOLOUSANDHASFORWARDEDBOTHACOPYOFTHERECORD AND A COPY OF THIS BRIEF TO APPELLANT.

DISCUSSION

The reflects that Mr. Bell, after being properly admonished of his rights by the trial

court, entered pleas of guilt and admitted each allegation contained the indictment in each

case. RR. Vol. II, p. 6; CR. I, P. 38-43. There evidence was therefore sufficient. See Sanchez

v. State, 120 S. W 2d 359 (Tex. Crim. App. 2003); McDuffv. State, 93_9 S.W.2d 607, 614 (Tex.

Crim. App.), cert. denied, 522 U.S. 844 (1977).

There was mitigating evidence offered by the defense at the sentencing hearing, and

that evidence was weighed by Judge Wisch prior to his determination of the sentences

assessed. RR. Vol. II, p. 12-29. The arguments were objection free, save for one instance in

which the trial court overruled an objection by the State. RR. Vol. II, p. 30-31.

All entences were below the maximum sentences of 99 years or life, and there was no

objection to the sentences on that ground. RR Vol. I-II, p. 44-45. Therefore there was no

error in that regard. See Gutierrez v. State, 36 S.W.3d 509, 511 (Tex. Crim. App. 2001).

Nothing in either defense counsel' s argument nor the prosecutor' s argument was

inappropriate or outside the areas of permissible argument. See Alejandro v. State, 493

S.W.2d 230, 231 (Tex. Crim. App. 1973).

Mr. Bell was represented by counsel at trial and nothing in the record indicates that

trial counsel rendered ineffective assistance. See Strickland v. Washington, 466 U.S. 668

(1984)(setting forth test for ineffective assistance). He zealously represented Mr. Bell and

made an effective argument prior to the trial court' s decisions. Id.

4 Wherefore, counsel requests that the Court accept this brief as one properly certified

frivolous, and allow counsel to withdraw from further representation on appeal. See Anders

v. California, 386 U.S. 738 (1967); Stajfordv. State, 813 S.W.2d 503, 511 (Tex. Crim. App.

1991 ). Contemporaneous with the filing of this brief counsel is drafting a letter to Mr. Bell

explaining his rights, including the filing of a pro-se brief, as well as a copy of the clerk' s

record and court reporter' s record. Counsel is also presenting a courtesy copy of this brief

to the trial court, with the note that Mr. Bell is in-custody and that appropriate

accommodations may become necessary should he decide to file a pro-se brief.

CONCLUSION AND PRAYER

For the reasons set forth above, appellant requests that Court accept this certified

frivolous brief, permit counsel to withdraw as attorney of record, and permit Mr. Bell, should

he so desire, to file a brief, pro-se, and for such other and further relief as he may show

himself entitled at law or in equity.

Respectfu ly submitted,

,~ L DAVIJ.D L. RI

COUNSEL FOR APPELLANT

5 CERTIFICATE OF SERVICE The undersigned certifies that a copy of this brief has been forwarded by mail to Mr.

Bell and to Hon. Charles M. Mallin, Chief of the Appellate Division of the Office of the

Tarrant County District Attorney, on this 23" day of December, 2013. /

6 CERTIFICATE OF COMPLIANCE

The undersigned certifies that this brief (Aaron Edward Bell v. State ofTexas) contains

1029 words and is believed to be in copliance with all of the Texas Rules of Appellate

Procedure. A copy of the brief and this Certificate has been forwarded by mail to Mr. Bell

County District Attorney, on this 6ili day of January, 0 and to Hon. Charles M. Mallin, Chief of the Appellate Division of the Office of the Tarrant

~ J /, .~

DAVID L. RICHARDS

6 DAVID L. RICHARDS Board Certified 300 1 West S'h Street Office 817-332-5567

1'daeuri~al.net Suite 800 Criminal Law Texas Board of Legal Specialization Fort Worth, TX 76107 Ali\i~I-7688

December 23, 20 13

Mr. Aaaron Bell TDC# 01861 465 Mark W. Michael Unit 2664 FM 2054 Tennessee Colony, Texas 75886

Certified Mail No. 7007 2680 0000 0376 4387 Return Receipt Requested

Re: Bell v. State of Texas

Dear Mr. Bell,

Enclosed please find a copy of the brief! have filed in the Seventh Court of Appeals on your behalf.

Because I could find no arguable points of error I have certified it "frivolous." If the Court of Appeals accepts it and determines, from its own review, that there is no reversible error, the appeals will be ailirmed unless you file a brief on your own, in a pro-se capacity, convincing them that reversible error is present.

I do not believe that there is any such error, but because you have the right to present your own brief, should you so desire, I have filed a motion to withdraw (making you the attorney), and am enclosing a copy of the appellate record. You must cite the volume and page number of any alleged error in any p ro-se brief you file.

The brief should generally fo llow the format of the brief I have filed, but contain "points" or "issues" in the spot where I have explained to the Court why I do not believe there is any error. If the Rules of Appellate Procedure are not available in your law library let me know and I will mail you a copy. Should you have any questions about procedural questions, please let me know at your earliest convenience.

Any pro-se brief you file must be sent to the Comi of Appeals at the following address:

CLERK, SEVENTH COURT OF APPEALS POTTER COUNTY COURTS BLDG. 50 1 S. FILLMORE, STE. 2-A AMARJLLO, TX. 79101-2449 In the event the Court of Appeals affirms your conviction, you have the right to file a pro-se petition for discretionary review with the Texas Court of Criminal Appeals. The petition is due no later than the 30th day following the issuance of the opinion, unless you obtain an extension of time from the Court. The petition must be filed with the Court of Criminal Appeals in Austin. I have enclosed copies of the applicable Rules of Appellate Procedure.

In the event that you need an extension of time to file the petition for discretionary review (you are permitted a one time extension of 30 days) you may do so by writing the Texas Court of Criminal Appeals at the following address:

Clerk, Court of Criminal Appeals P.O. Box 12308 Capitol Station Austin, Texas, 78711

Sincerely,

Drvi-/~ DAVID L. RICHARDS

Encl. CAUSE NOS. 07-13-00234-CR; 07-13-00235-CR; 07-13-00236-CR; 07-13-00237-CR; 07-13-00238-CR; AND 07-13-00239-CR

AARON EDWARD BELL x IN THE SEVENTH x v. x COURT OF APPEALS x STATE OF TEXAS x AMARILLO, TEXAS

COUNSEL'S MOTION TO WITHDRAW AS ATTORNEY OF RECORD IN CONNECTION WITH THE FILING OF ANDERS BRIEF

The undersigned attorney, David L. Richards, was appointed by the Court to represent

Appellant, Aaron Edward Bell, in these appeals. A copy of the Anders brief, certified as wholly

frivolous and tendered with this Motion, has been mailed certified mail, return receipt requested,

to Appellant with instructions on how and where to file any prose briefhe deems necessary. A

copy of that letter (containing no privileged attorney client matters and listing Appellant's

mailing address ) is also attached.

For the reasons set forth in the Anders brief, counsel certifies that it is his professional

opinion that these appeals are frivolous. Under that circumstance, counsel files this Motion to

avoid the potential situation of hybrid representation. Wherefore, counsel requests that this

Motion be granted.

Appellant's mailing address is: Aaron Edward Bell, No. 01861465. Mark W. Michael

Unit, 2224 FM 2054, Tennessee Colony, Tx. 75886. Respectfully submitted,

DA State Bar No. 16845500 3001 West 5th Street, Ste. 800 Fort Worth, Texas 76107 Phone: 817/332-5567 Fax: 817 /885-7688

COUNSEL FOR

APPELLANT

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Motion has been forwarded to

Appellant and to Hon. Charles M. Mallin, Chief of the Appellate Division of the Office

of the Tarrant County District Attorney, on this _ _ _ day of December, 2013.

D