Adeli Medina Carranza v. State

• Court: Court of Appeals of Texas
• Decided: December 15, 2015
• Docket: 06-15-00139-CR
• Status: Published

Opinion

ACCEPTED 06-15-00138-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 12/14/2015 3:33:49 PM DEBBIE AUTREY CLERK

Nos. 06-15-00138-CR; 06-15-00139-CR

FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 12/14/2015 3:33:49 PM In the DEBBIE AUTREY Clerk Sixth Court of Appeals at Texarkana, Texas _______________________

Adeli Medina Carranza, Appellant,

v.

The State of Texas, Appellee. _______________________________ On Appeal from the 6th District Court of Lamar County Hon. William Harris, Presiding _______________________________ APPELLANT’S BRIEF (IN ACCORDANCE WITH ANDERS V. CALIRFORNIA)

DON BIARD STATE BAR NO. 24047755 COUNSEL FOR APPELLANT

ORAL ARGUMENT NOT REQUESTED PREAMBLE

I have submitted this brief in accordance with Anders v. California, 386 U.S. 738 (1967) and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). After having carefully examined this record and after having researched the relevant issues and case law, I have concluded that this appeal presents only legally frivolous issues. Therefore, I request the Court’s permission to withdraw as attorney of record and to allow Appellant, Adeli Medina Carranza, to file any further briefs he deems necessary.

1 IDENTITY OF PARTIES AND COUNSEL

Defendant Below Appellant in this Court

Adeli Medina Carranza

Counsel for Appellant: Don Biard (on appeal) State Bar No. 24047755 38 First Northwest Paris, Texas 75460 Tel: (903)785-1606 Fax: (903)785-7580

David C. Turner, Jr. (at trial) State Bar No. 20337000 1116 Lamar Avenue Paris, Texas 75460 Tel: (903)785-8511 Fax: (903)785-8513

Appellee in this Court

The State of Texas

Counsel for Appellee: Lamar County District and County Attorney’s Office 119 N. Main Street Paris, Texas 75460 Tel: (903)737-2458 Fax: (903)737-2455

2 TABLE OF CONTENTS

Preamble....................................................................................................................1

Identity of Parties and Counsel……………………..…………………....................2

Table of Contents………………………………..…………………….....................3

Index of Authorities…………………………………………..……….....................4

Statement of the Case………………………………………………........................5

Issues Presented…………………………..………………………….......................5

Procedural History……………………..……………………………....................6-7

Facts……………………………………………….…………………..................8-9

Argument and Authorities………………………………………..…................10-15

Prayer………………………………………….…………………….....................16

Certificate of Service…………………………………………………...................17

Certificate of Compliance with TRAP 9.4(i)(3)......................................................18

3 INDEX OF AUTHORITIES

Caselaw

Anders v. California, 386 U.S. 738 (1967)……………………..………….…...1,16

High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978)……………..………....1,16

Statutes

Tex. Pen. Code §12.42...............................................................................................6

Tex. Pen. Code §46.04 ………………………………………………......................6

Tex. Health & Safety Code §481.115………………………………………………6

Tex. Health & Safety Code §481.134………………………………………………6

Tex. Govt. Code §25.0003.......................................................................................10

Tex. Govt. Code §25.1412.......................................................................................13

Rules of Procedure

Tex. Code Crim. Pro. Art. 26.13……………………………………………….…11

4 STATEMENT OF THE CASE

Nature of the Case: Guilty plea to one charge of Possession of a Controlled Substance in a Drug Free Zone and one charge of Unlawful Possession of a Firearm by a Felon

Trial Court: The Honorable William Harris 6th District Court, Lamar County, Texas

Trial Court Disposition: The trial court accepted Appelant’s guilty plea, found Appellant guilty of the charged offenses, and sentenced Appellant to 18 years’ imprisonment.

ISSUES PRESENTED

My review of the record reveals no issues which can be advanced in good faith.

Any arguable points that could exist would arise from Appellant’s guilty plea

and/or his subsequent sentencing. Thus, the questions raised in this Anders appeal

are:

I. Whether the trial court erred in denying Appellant’s request for new trial

counsel?

II. Whether the trial court reversibly erred at Appellant’s guilty plea?

III. Whether the trial court reversibly erred at Appellant’s sentencing?

5 PROCEDURAL HISTORY1

On February 12, 2015, a grand jury indicted Appellant for unlawful

possession of a firearm by a felon, a third degree felony in violation of Texas Penal

Code §46.04.2 On April 5, 2015, a grand jury indicted Appellant for Possession of

Methamphetamine in an amount more than one gram but less than four grams

within 1000 feet of a school, also a third degree felony in violation of Texas Health

and Safety Code §481.115 and §481.134.3 Appellant was also alleged to have been

a repeat offender under the provisions of Texas Penal Code 12.42(b).4

On June 19, 2015, Appellant plead guilty to the charged offenses and pled

true to the drug free zone finding.5 The plea of guilty was made pursuant to a plea

bargain in which the defendant would have the trial judge assess punishment.

There was no cap placed on the permitted punishment.6 On July 8, 2015, a

sentencing hearing was held and the court sentenced Appellant to 10 years’

imprisonment on the unlawful possession of a firearm charge and 18 years’

1 All references to the record on appeal are made in the following manner: CR, pg.# and RR, pg.#. CR designates the Clerk’s Record and RR designates the Reporter’s Record, followed by the particular page in that record. CR, Vol. 1, designates the Clerk’s Record in Cause No. 26122. CR, Vol. 2, designates the Clerk’s Record in Cause No. 26186. 2 CR, Vol. 1, pg. 7 3 CR, Vol. 2, pg. 11 4 CR, Vol. 2, pg. 14 5 RR, Vol. 2, pg. 28, 34 6 CR, Vol. 1, pg. 45 6 imprisonment on the possession of methamphetamine charge. The sentences were

ordered to run concurrently.7 Appellant timely filed notice of appeal.8

7 RR, Vol. 3, pg. 116 8 CR, Vol. 1, pg. 69 7 FACTUAL BACKGROUND

In January 2015, Leigh Foreman, a detective with the Paris Police

Department, received information that someone was selling drugs from a room at a

local hotel. That hotel is located near a daycare and preschool as well as an

elementary school.9

On January 19, 2015, Detective Foreman and another detective went to the

hotel to investigate.10 Detective Foreman knocked on the door of the one rooms at

the hotel and found Appellant inside.11 Detective Foreman testified he noticed the

odor of marijuana coming from inside the room.12

Detective Foreman talked to Appellant in the doorway of the room. At some

point, they became engaged in a struggle.13 During the struggle, Foreman noticed

Appellant kept reaching towards a trash can with his right hand.14 Foreman

eventually subdued Appellant.

A search of Appellant’s room uncovered two handguns – a .38 caliber

revolver in a trash can by the door and a .380 semi-automatic handgun in the

9 RR, Vol. 3. Pg. 9-10 10 RR, Vol. 3, pg. 9 11 RR, Vol. 3, pg. 13 12 RR, Vol. 3, pg. 13 13 RR, Vol. 3, pg. 14 14 RR, Vol. 3, pg. 15 8 opposite corner of the room.15 The detectives also found 1.36 grams of

methamphetamine in the room.16

15 RR, Vol. 3, pg. 18 16 RR, Vol. 3, pg. 22 9 SUMMARY OF THE ARGUMENT

Appellate counsel has reviewed the record thoroughly and has failed to

identify any legally non-frivolous issues. The only areas in which arguable issues

could arise would be: (1) the trial court’s denial of Appellant’s request for new

trial counsel; (2) the guilty plea; and (3) the sentencing.

The record does not show that the trial court erred in failing to appoint

Appellant new trial counsel. The record shows the trial court substantially

complied with Tex. Code Crim. Pro. Art. 27.13 and Art. 26.13 when accepting

Appellant’s plea. The trial court also issued a sentence within the permissible

range of punishment, and within the parameters of Appellants’s plea bargain, when

it sentenced Appellant to 18 years’ imprisonment.

10 ARGUMENT

I. Whether the trial court reversibly erred in failing to appoint Appellant a

different attorney?

Analysis

Prior to entering his plea, Appellant asked the trial court to appoint him new

trial counsel.17 The trial court denied this request.

The record contains insufficient evidence to make a good faith argument that

Appellant’s appointed trial counsel was ineffective or that the trial court erred in

failing to appoint Appellant new trial counsel.18

17 RR, Vol. 2, pg. 5 18 RR, Vol. 2, pgs. 5-11 11 II. Whether the trial court reversibly erred in accepting Appellants’s guilty

plea?

Appellate counsel has reviewed the record in detail and has identified no

action or inaction on the trial court’s part that suggests harmful error during the

plea admonishments. Nor has counsel identified any aspect of the plea hearing that

would suggest Appellant’s plea was involuntary. In fact, the record shows that

both the trial judge and Appellant’s trial counsel spent considerable time on the

record informing Appellant about the effect of a guilty plea.19 The trial court

fulfilled all of the requirements of Article 26.13 of the Code of Criminal Procedure

when accepting Appellant’s plea. These admonishments were given orally by the

judge. 20 In addition, these admonishments were made in writing and signed by

Appellant and his attorney.21

This Court’s review of the plea hearing will confirm that the trial court

properly inquired into the necessary relevant areas before accepting Appellant’s

plea. If the trial court omitted some necessary admonishments or inquiries, those

omissions were harmless.

19 RR, Vol. 3, pgs. 11-23 20 RR, Vol. 3, pgs. 26-37 21 CR, Vol 1, pgs. 45-56; CR, Vol. 2, pgs. 27-38; also see Tex. Code Crim. Pro. Art. 26.13(d) 12 If a trial court fails to substantially comply with Article 26.13, a harm

analysis is conducted under Tex. R. App. Pro. 44.2(b). Under that analysis, any

error that does not affect the substantial rights of the accused must be disregarded.

Viewed against the backdrop of its more-than-substantial compliance with Article

26.13, the trial court’s actions to do not give rise to any non-frivolous appellate

challenge.

13 III. Whether the trial court reversibly erred at Appellant’s sentencing?

a. Jurisdiction of the Trial Court

Appellant’s case was assigned to the 6th District Court. However, his guilty

plea and sentencing hearing were heard by Judge William Harris, presiding judge

of the Lamar County Court at Law.

By statute, the judge of the Lamar County Court at Law has jurisdiction to

accept guilty pleas in all felony cases.22 Further, the judge of the Lamar County

Court at Law may exchange benches with a judge of a district court and act in any

manner pending before the district court.23

b. Disproportionate Sentence

Appellant was sentenced to serve 18 years’ in prison on the possession of

methamphetamine charge and 10 years’ in prison on the unlawful possession of a

firearm charge. The sentences were ordered to run concurrently.

Appellant faced a minimum sentence of 7 years’ imprisonment and a

maximum sentence of 20 years’ imprisonment for the drug charge and 10 years’

imprisonment for the firearm charge. This amounted to an effective maximum

sentence of 30 years’ imprisonment if the maximum punishment had been assessed

on each charge and the sentences had been ordered to run consecutively.

22 Tex. Govt. Code §25.1412(a)(1)(C) 23 Tex. Govt. Code §25.1412(n) 14 The trial court’s sentence of 18 year’s imprisonment fell roughly halfway

between the minimum and maximum possible sentences. There is no evidence that

this sentence exceeds those given for similar crimes in this jurisdiction. Further,

there were several aggravating factors for the trial court to consider including

Appellant’s criminal history, Appellant’s struggle with a police officer during the

arrest, and Appellant’s perceived lack of candor during his testimony.24

Considering all of the above, counsel for Appellant is unable to make a good

faith argument that Appellant’s sentence was excessive on a constitutional

dimension.

24 RR, Vol. 4, pg. 114; RR, Exhibits 8-11 15 PRAYER

In accordance with Anders v. California and High v. State, I have examined

the record for issues which might reasonably support an appeal. In my opinion,

there are none. Consequently, I respectfully move to withdraw from this case in

accordance with Anders and High and ask the Court to rule on this appeal

accordingly.

Respectfully Submitted,

/s/ Don Biard_________________ Don Biard State Bar No. 24047755 McLaughlin, Hutchison & Biard, LLP 38 First Northwest Paris, Texas 75460 Tel: (903)785-1606 Fax: (903)785-7580 Counsel for Appellant

16 CERTIFICATE OF SERVICE

I certify that on December 14, 2015 a copy of the foregoing Appellant’s Brief was served to the following parties by the method indicated below.

/s/ Don Biard // Don Biard

Via Email and Hand Delivery Hon. Gary Young Lamar County District Attorney’s Office 119 N. Main Street Paris, Texas 75460 Tel: (903)737-2458 Fax: (903)737-2455

Via Certified Mail RRR Adeli Medina Carrana #02012148 Hutchins Unit 1500 E. Langdon Rd. Dallas, TX 75241

17 CERTIFICATE OF COMPLIANCE PURSUANT TO TEXAS RULE OF APPELLATE PROCEDURE 9.4(i)(3) __________________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

Counsel for Appellant files this certification that Appellant’s brief is a computer-

generated document that contains 1,980 words. Counsel further certifies that he

relied on the word count of the computer program used to prepare this document.

/s/ Don Biard // Don Biard State Bar No. 24047755 McLaughlin, Hutchison & Biard 38 First Northwest Paris, Texas 75460 Tel: (903)785-1606 Fax: (903)785-7580 Attorney for Appellant