Brandy Ann Bussey v. State

• Court: Court of Appeals of Texas
• Decided: April 23, 2009
• Docket: 06-08-00221-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00221-CR ______________________________

BRANDY ANN BUSSEY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 71st Judicial District Court Harrison County, Texas Trial Court No. 07-0419X

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Brandy Ann Bussey appeals from her conviction by a jury on her plea of guilty to the offense of endangering a child. See Tex. Penal Code Ann. § 22.041 (Vernon Supp. 2008). The jury assessed her punishment at two years' confinement in a state-jail facility. See Tex. Penal Code Ann. § 12.35(a) (Vernon Supp. 2008). Bussey was represented by appointed counsel at trial and on appeal. Bussey's attorney has filed a brief in which he concludes that the appeal is frivolous and without merit, after a review of the record and the related law.

Counsel states that he has studied the record and finds no error preserved for appeal that could be successfully argued. The brief contains a professional evaluation of the record and advances one arguable ground for review. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

Counsel mailed a copy of the brief to Bussey February 17, 2009, informing her of her right to examine the entire appellate record and to file a pro se response. Counsel simultaneously filed a motion with this Court seeking to withdraw as counsel in this appeal. Bussey has not filed a response or a request for an extension of time in which to file such a response.

We have determined that this appeal is wholly frivolous. We have independently reviewed the clerk's record and the reporter's record, and we agree that no arguable issues support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).

We affirm the judgment of the trial court. ⁽¹⁾

Josh R. Morriss, III

Chief Justice

Date Submitted: April 22, 2009

Date Decided: April 23, 2009

Do Not Publish

1. Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of Bussey in this case. No substitute counsel will be appointed. Should Bussey wish to seek further review of this case by the Texas Court of Criminal Appeals, Bussey must either retain an attorney to file a petition for discretionary review or Bussey must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. See Tex. R. App. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.

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Original Mandamus Proceeding

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            In 2000, a jury convicted Benjamin Wayne McCoin for trying to kill his ex-wife and her husband by blowing them up with dynamite. McCoin v. State, 56 S.W.3d 609 (Tex. App.—Texarkana 2001, no pet.). McCoin was sentenced to ninety-nine years' imprisonment, and this Court affirmed the conviction on direct appeal. Id. McCoin now asks us to order the Honorable John Miller, trial judge of the 102nd Judicial District Court, to conduct an evidentiary hearing on McCoin's tenth post-conviction application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2004). We deny McCoin's request.

            Mandamus is an extreme remedy. We may issue a writ of mandamus only when the record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992). Article 11.07 of the Texas Code of Criminal Procedure governs the procedure whereby a felon who was convicted of a noncapital crime may file an application for writ of habeas corpus. Tex. Code Crim. Proc. Ann. art. 11.07. A trial court must conduct a hearing on an application for writ of habeas corpus only "[i]f the convicting court decides there are controverted, previously unresolved facts which are material to the legality of the applicant's confinement . . . ." Tex. Code Crim. Proc. Ann. art. 11.07(3)(d).

            We asked the district clerk to file with this Court a record consisting of McCoin's application for writ of habeas corpus, the State's response (if any), and the trial court's order(s) pertaining to McCoin's application. See Tex. R. App. P. 34.5(c). That record was filed March 19, 2004, yet it also included an order from the Texas Court of Criminal Appeals regarding McCoin's application for writ of habeas corpus. The order from the Texas Court of Criminal Appeals stated, in pertinent part:

            In his present application, [McCoin] contends, inter alia, that he is not receiving credit on his sentence for all of the time that he spent in federal custody pursuant to a state detainer.

            The trial court has not entered findings of fact or conclusions of law. Applicant has alleged facts which, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and that since this Court cannot hear evidence, the trial court is the appropriate forum. The trial court may resolve those issues as set out in Article 11.07, § 3 (d), V.A.C.C.P., in that it may order an affidavit from [the] Sheriff's Office officials, or it may order depositions, interrogatories, or a hearing. In the appropriate case, the trial court may rely on its personal recollection.

            If the trial court elects to hold a hearing, that court should first decide whether [McCoin] is indigent. If the trial court finds that [McCoin] is indigent, and the Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Article 26.04, V.A.C.C.P., appoint an attorney to represent him at the hearing.

Ex parte McCoin, No. 19,388-10, slip op. at 1–2 (Tex. Crim. App. Jan. 21, 2004) (not designated for publication). The Texas Court of Criminal Appeals did not direct the trial court to conduct a hearing on the other issues raised in McCoin's application.

            The order from the Texas Court of Criminal Appeals permits the trial court to receive affidavits or evidence in lieu of a formal hearing. On February 2, 2004, the trial court entered an order partially granting the relief requested by McCoin's application for writ of habeas corpus by giving him credit for the time he spent in 1992 in federal custody while the State of Texas had a detainer against him.

            The order from the Texas Court of Criminal Appeals left to the trial court's discretion the decision of whether to conduct a full evidentiary hearing. Based on the record before us, we cannot say McCoin has demonstrated the trial court either abused that discretion or committed a violation of a statutory duty. Accordingly, McCoin is not entitled to relief in his petition for writ of mandamus.

            We deny McCoin's petition for writ of mandamus.

Date Submitted:          March 29, 2004

Date Decided:             March 30, 2004