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AFFIRM and Opinion Filed July 21, 2006
In The
€mirt of Appeals
iffiftf? district of ®exas at Ballas
No. 05-05-01060-CR No. 05-05-01061-CR
DONALD GENE BLANTON, Appellant V.
THE STATE OF TEXAS, Appellee
On Appeal from the 86th Judicial District Court Kaufman County, Texas
Trial Court Cause Nos. 23078-86 and 23592-86
s c OPINION
Before Justices Whittington, Bridges, and Richter Opinion By Justice Richter
Agrand jury indicted Donald Gene Blanton on two charges: (1) possession ofcocaine in an amount less than one gram (appellate cause number 05-05-01060-CR) and (2) tampering with evidence (appellate cause number 05-05-01061 -CR). The charges arose after Mabank police officer Joshua Jennings signaled Blanton to stop for atraffic violation. During the approximate 250 feet Blanton traveled before stopping, Jennings observed Blanton throw two plastic "baggies" from his car window. The bags were later retrieved and, although ripped with some ofthe contents spilling onto the street and unrecoverable, they contained ameasurable amount ofwhat appeared to be crack cocaine and marijuana.1
Dissatisfied with his appointed counsel, Blanton moved for new counsel prior to trial. When
his request was denied, he moved and was allowed toproceed "pro sewith assistance ofcounsel."2
After ajury convicted him ofboth offenses and assessed an enhanced punishment oftwenty years in the possession case and life in the tampering case, Blanton was again appointed counsel. On
appeal, Blanton argues that his convictions should be reversed because (a) the evidence is legally and factually insufficient to support the convictions, (b) he did not knowingly, voluntarily, and competently waive his right to assistance ofcounsel, and (c) the trial judge erred in failing to grant his request for new appointed counsel and his request to submit ajury charge instruction concerning the legality of the stop. Finding against Blanton, we affirm.
Sufficiency of the Evidence
In his first four issues, Blanton contends the evidence islegally and factually insufficient to support the convictions. We review challenges to the legal and factual sufficiency ofthe evidence under well-known standards. Inreviewing a legal sufficiency challenge, we view therecord inthe
light most favorable to the verdict anddetermine whether, based on the evidence and reasonable
inferences, any rational trier offact could have found the essential elements ofthe crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Inreviewing a factual sufficiency challenge, we view all the evidence
in aneutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v..State, 144 S.W.3d 477,484 (Tex. Crim. App. 2004). We will find the
' The record docs not reflect whether any charges were filed stemming from the marijuana. j/ •Blanton's proceeding "pro se »iih assistance ofcounsel" amounted to hybrid representation as both Blanton and counsel participated at trial. See Walkerv. Slate, 962 S.W.2d 124. 126 (Tex. App.-Houston [1st Dist.) 1997. pet. refd). The record reflects counsel filed and areued pre-trial motions; conducted voir dire; participated extensively at guilt-innocence by cross-examining the Slate's expert, directing the defensc's'sole witness moving for an instructed verdict, objecting to the charge, and arguing at closing; and participated in every aspect ofpunishment. Blanton participated only atguilt-innocence, making opening argument and cross-examining the arresting and back-up officers.
-2-
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IN THE 86th JUDICIAL DISTRICT COURT UAo KAUFMAN COUNTY, TEXAS
'8: IS
EX PARTE °> -.m;.-, .. ., •• • CAUSE NO. 23.078A-86 cle
DONALD GENE BLANTON, and a^ CAUSE NO. 2%SS2X%kf-~r:rr>L.Ty APPLICANT
ATTORNEY'S AFFIDAVIT
STATE OF TEXAS
COUNTY OF KAUFMAN (
BEFORE ME, the undersigned authority, personally appeared DEBORAH A. BEESLEY, Attorney at Law, who, by me duly sworn on her oath deposed and said as follows:
"My name is DEBORAH A. BEESLEY. I am an attorney licensed to practice law in the State of Texas. My, State Bar Card number is 02042300. Iwas the attorney appointed by the honorable Judge of the 86th Judicial District Court, Kaufman County, Texas, to represent, DONALD GENE BLANTON, Applicant in Cause No. 23,078-86 and Cause No 23,592-86 in the 86th JUDICIAL DISTRICT COURT OF KAUFMAN COUNTY, TEXAS, which resulted in Applicant being sentenced to twenty years in prison in Cause No! 23,078-86 and to life in prison in Cause No. 23,592-86 by a jury.
"As to the claim that Applicant received ineffective assistance from his trial counsel, Iwould show the Court that Iwas not Applicant's trial counsel. I had been appointed to represent DONALD GENE BLANTON on August 2, 2004. Imet with Applicant on August 4,2004 at the Kaufman County Law Enforcement Center in Kaufman, Texas. At thattime, Applicant had been charged with two felony offenses, Possession of a Controlled Substance Penalty Group One, Less Than One Gram and Tampering With Physical Evidence. Applicant advised me that he was on parole and would have a blue warrant issued for him soon if one had hotalready been issued for him. Applicant also advised me that the police should have a video of his traffic stop and that the tape would show the police planting drugs on him during the stop. Iimmediately contacted theDistrict Attorney's Office for Kaufman County and discovered that their office had not received the poiice report on Applicant's cases yet. I met with Applicant again at the jail on August 12, 2004 to inform him that the District Attorney's Office did not have a copy ofhis police report or his videotape yet but that I would continue to investigate his case by contacting the Mabank Police Department myself. On September 3, 2004, Iwas able to talk with Chief
ATTORNEY'S AFFIDAVIT - PAGE 1
187
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1
be appointed to represent him. The Court denied Applicant's request. The Court advised Applicant that he could have any attorney that he wanted as long as he was willing to pay for the attorney. Applicant did not state any valid reasons as to why I was not representing him effectively! Essentially, Applicant was upset with me because I had advised him that I anticipated that a jury would convict based on the evidence in his cases and that was the only reason he was upset. As the Judge told Applicant during that hearing, Applicant probablywould not be happy with any attorney who bothered to tell him the truth ....that he would be convicted by the evidence in his cases.
"With respect to the Judge admonishing the Applicanton his right to represent himself, the Judge did everything in his powerto make sure that the Applicant understood that he alone would be responsible for knowing everything an attorney should know about the laws when trying cases. No one forced Applicant to represent himself. That decision was his and his alone. No one in the courtroom felt that was a good decision on Applicant's part, but he has the right to represent himself even ifhe has a fool for a client.
"As to Applicant's Ground Five, it is totally and completely without merit. No one other than the jurors went back into the juryroom during deliberations. The alternate juror was dismissed and released from her jury duty prior to the jury beginning their deliberations.
"With respect to Applicant's Ground Six, he alleges that his conviction was obtained due to improper instructions to the jury regarding having testimony read back during jury deliberations. Applicant's allegation is totally without merit. The Judge gave the proper instructions with regards to the jury not being specific enough in their note about the testimony they wanted read back to them. The court reporter was in the process of finding the testimony that the jurors had requested be read back to them when the jury sent out the filled out verdict form which indicated that they had reached a verdict. Contrary to Applicant's allegation, the jurywould have been allowed to hear the testimonythat they felt was in dispute but for, apparently, their own decision to continue deliberating and trying to reach a verdict while the court reporter was looking the information up for them. The Judge certainly did not instruct the jury to continue on with their deliberations without hearing the testimony that they had requested.
"In his claim in Ground Eight, Applicant alleges that the baggies which contained the 'altered' evidence in his case was not ripped or torn as alleged by the State. Applicant's allegation is totally and completely false. During my investigation ofthe case, Italked with all of the witnesses who came into contact with the evidence. Each witness indicated to me that the baggies were ripped or torn when he first saw the baggies containing the cocaine in Applicant's cases. This was also verified to me by Andrew Macey who conducted the analysis of the drugs. Also, I personally viewed the two baggies myself prior to the jurytrial and noticed that the two baggies definitely had been either ripped or
ATTORNEY'S AFFIDAVIT - PAGE 12
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torn. I also showed the torn baggies to Applicant prior to the beginning of his jury trial. In addition, Iwould bring to the Court's attention that Applicant mislead the Court when he attached a copy of the baggie in Applicant's Appendix "F." Applicant stated to the Court that the picture in Applicant's Appendix"F" is a picture of the baggie that is alleged by the State to contain cocaine. It is not. The baggie that is shown in that picture contained the marijuana that Applicant also had in his possession at the time of his arrest. It does not contain a picture of the two separate baggies which contained the cocaine that was the reason for his arrest. I have attached a copy of the picture which actually shows the two torn baggies which held were evidence against Applicant at his trial, see attached Exhibit "C."
"As to Applicant's allegation in Ground Nine that his convictions were obtained and based on legally and factually insufficient evidence, Applicant could not be more wrong. After obtaining all of the evidence on Applicant's cases, I explained to him that the evidence was overwhelmingly against him. The evidence against Applicant was one of the strongest and most powerful in a criminal case that I had ever seen. Not only did Officer Jennings testify that Applicant was in possession of a controlled substance, but he also testified that he saw Applicant exercise care, custody and control over the drug when Applicant threw the two separate baggies out of his truck window. The Officer also testified that the baggies appeared to have been tampered with because they had been ripped in order to allow the drugs to fly out of the bags as the Applicant was tossing the bags out of his window. All of the arresting officer's testimony was corroborated by the videotape of the incident. Applicant's convictions, despite his allegations to the contrary, were based on legally and factually sufficient evidence.
"As to Applicant's claim in Ground Ten that his convictions were obtained due to the wrongful denial of his Motion for Change of Venue, Iwould submit that the Judge's denial of his Motion was proper. Applicant was well aware of the burden in Chapter Thirty-One of the Texas Code of Criminal Procedure that requires a defendant to prove that he could not receive a fair and impartial jury in Kaufman County, Texas in order to get the venue changed. He had asked me about getting a change of venue while I was preparing his case fortrial and we had specificallydiscussed that issue. Ieven made a special trip back to the jail just to show Applicant that particular law so that he could read it for himself. Applicant had the burden of proving that he could not receive a fair trial and he did not prove that. None of the panel members indicated that they had prior knowledge of the Applicant or of his cases.
"As to Applicant's allegation in Ground Eleven, he claims that his convictions were obtained because the trial court failed to properly and adequately present the fact issue as to probable cause for the traffic stop to the jury. Applicant's allegation is without merit. The Judge properly denied Applicant's request. During Officer Jennings' testimony,
ATTORNEY'S AFFIDAVIT - PAGE 13
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3 Ed Walton 5 Criminal District Attorney 100 W. Mulberry Kaufman, Texas 75142
(972) 932-4331
June 29, 2005
Carla Stone Kaufman County Law Enforcement Center
RE: Donald Gene Blanton, DOB 11/13/1962^ ^, 'fllpU 2 Dz. <fljp-
Dear Ms. Stone:
Please release the hold on Donald Gene Blanton for the offense of Possession of Marihuana alleged to have occurred on July 10, 2004. The State has reviewed this case and does not wish to prosecute the case.
Thank you,
BiHunt Assistant District Attorney Bar No. 24027081
EXHIBIT "£'
35
•'5"
INDEX TO EXHIBITS
State's Exhibit A (Affidavit from Trial Counsel)
State's Exhibit B (Affidavit from Court Reporter)
State's Exhibit C (Affidavit from Bailiff)
State's Exhibit D (Affidavit from Prosecutor)
Chief Justice Lisa Matz " Carolyn Wright Clerk of the Court (214)712-3450
Justices theolerk@5th.txcourts.gov David L. Bridges Molly Francis Gayle Humpa Douglas S. Lang Business administrator Elizabeth Lang-Miers (214)712-3434 Robert M. Fillmore gayle.humpa@5th.txcourts.gov Lana Myers Court of Appeals David Evans Facsimile David Lewis J"tfth ©igtrtct of tEexaa at ©alias! (214)745-1083 Ada Brown 600 Commerce Street, Suite 200 Craig Stoddart Internet Bill Whitehili. Dallas, Texas 75202 www.txcourts.gov/5thcoa.aspx DavidJ.Schenck (214)712-3400
Mav21, 2015
Mr. Donald Gene Blanton #1307891 Ferguson Unit 12120 Savage Drive Midway, TX, 75852
RE: Court of Appeals Number: 05-14-01324-CV Trial Court Case Number: 23078-86
Style: In Re: Donald Gene Blanton
Dear Mr. Blanton:
I have been asked to respond to your April 6, 2015 letter to Chief Justice Wright. Please be advised that it is inappropriate to correspond directly with a justice of this Court. Please direct any future correspondence to the clerk of court as required by the rules of appellate procedure. Tex. R. App. P. 9.6.
Respectfully,
/s/Lisa Matz, Clerk of the Court
cc:
Ms. Erleigh Norville Wiley District Attorney Kaufman County District Attorney's Office Kaufman County Courthouse 100 W. Mulberry Kaufman, TX, 75142
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