Brian Lynn Puckett v. State

Opinion

ACCEPTED 06-15-00109-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 9/1/2015 4:04:03 PM DEBBIE AUTREY CLERK

No. 06-15-00109-CR FILED IN IN The Sixth Court of Appeals 6th COURT OF APPEALS Texarkana, Texas TEXARKANA, TEXAS 9/1/2015 4:04:03 PM DEBBIE AUTREY Clerk BRIAN LYNN PUCKETT, Appellant, V. THE STATE OF TEXAS, Appellee.

Appeals from the 124th District Court Gregg County, Texas Trial Court No. 44,451-B

ANDERS BRIEF

ATTORNEY FOR APPELLANT:

Jeff T. Jackson SBOT No. 24069976 736-A Hwy 259 N. Kilgore, TX 75662 Phone: 903-654-3362 Fax: 817-887-4333

ORAL ARGUMENT NOT REQUESTED LIST OF PARTIES AND COUNSEL

APPELLANT: BRIAN LYNN PUCKETT TDCJ No. 02001172 Bradshaw State Jail P.O. Box 9000 Henderson, TX 75653-9000

Represented at trial by: Mr. Brandon Winn SBOT No. 24070866 411 W. Tyler St. Gilmer, TX 75644 Phone: 903-680-9466

Represented on appeal by: Jeff T. Jackson SBOT No. 24069976 736-A Hwy 259 N. Kilgore, TX 75662 Phone: 903-654-3362 Fax: 817-887-4333

APPELLEE: State of Texas

Represented at trial by: Mr. V. Christopher Botto SBOT No. 24064926 101 E. Methvin, Ste. 333 Longview, TX 75601 Phone: 903-236-8440

Represented on appeal by: Van Colson Brown Gregg County District Attorney SBOT No. 03205900 101 E. Methvin, Ste. 333 Longview, TX 75601 Phone: 903-236-8440

i TABLE OF CONTENTS

List of Parties and Counsel...........................i

Table of Contents....................................ii

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

Statement of the Case.................................v

Issues Presented.....................................vi

Statement of Facts....................................1

Summary of the Arguments..............................3

Argument..............................................5

I. APPELLANT’S PLEA OF GUILTY COMPLIED WITH THE REQUIREMENTS OF ARTICLE 26.13 OF THE TEXAS CODE OF CRIMINAL PROCEDURE.................5

II. NO OBJECTION TO THE EVIDENCE WAS MADE DURING THE PUNISHMENT STAGE OF TRIAL AND NO MERITORIOUS LEGAL CLAIM EXISTS RELATED TO THE IMPOSITION OF PUNISHMENT...............8

III. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IS NOT A VIABLE CLAIM BASED ON THE RECORD BEFORE THIS COURT.........................10 Statement of Attorney to the Court...................13

Conclusion and Prayer................................14

Certificate of Compliance............................15

Certificate of Service...............................16

ii INDEX OF AUTHORITIES

Case Law:

Anders v. California, 386 U.S. 738, 744, (1967) . . . . . . . . . . .2, 9

Brady v. United States, 397 U.S. 742, 749, (1970). . . . . . . . . . . . .5

Crawford v. State, 890 S.W.2d 542, 544 (Tex.Crim.App.1985). . . . . 5

Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974). . . . . . . . . 9

Fuentes v. State, 688 S.W.2d 542, 544 (Tex.Crim.App 1985). . . . . .5

Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986). . . . . . .7

Jack v. State, 871 S.W.2d 741 (Tex.Cr.App.1974) . . . . . . . . .3

Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994) . . . .7, 8

Jeffery v. State, 903 S.W. 776 (Tex.App.-Dallas 1995). . . . . . 3, 9

Strickland v. Washington, 466 U.S. 668 (1984). . . . . . . . . . . . . . 7, 8

Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). . . . . 7, 8

United States v. Johnson, 527 F.2d 1328, 1329 (5th Cir. 1976). . . . . . . .2

iii Statutes:

Tex. Code Crim. Proc. Art. 26.13 . . . . . . . .2, 4, 5

iv STATEMENT OF THE CASE

Appellant was indicted for possession of controlled

substance in penalty group one, namely methamphetamine,

in an amount less than one gram, a state jail felony, by

formal charging instrument filed on December 18th, 2014.

CR p. 3. Appellant elected to enter an open plea to the

court on May 28th, 2015. RR1 p. 5-13. After taking

evidence related to punishment, the Trial Court sentenced

Appellant in open court to eighteen (18) months

incarceration in the State Jail Division of the Texas

Department of Criminal Justice. CR p. 25-26; RR1 p. 30.

Appellant perfected this appeal by timely filing a Notice

of Appeal, dated June 11, 2015. CR p. 29.

v ISSUES PRESENTED

I. Whether Appellant’s plea of guilty complied with the

requirements of Article 26.13 of the Texas Code of

Criminal Procedure?

II. Whether an objection was made to the evidence or

exhibits during the punishment stage of trial?

III. Whether ineffective assistance of trial counsel is a

viable claim based upon the record before this Court?

vi TO THE HONORABLE SIXTH COURT OF APPEALS:

Comes now Jeff T. Jackson, attorney for BRIAN LYNN

PUCKETT, Appellant in the above styled and numbered

causes, and respectfully submits this Anders Brief and

would show the Court the following:

STATEMENT OF THE FACTS

In a single count indictment, Appellant was charged

with possession of a controlled substance in penalty

group 1 in an amount punishable as a state jail felony.

CR p. 3. Brandon Winn represented Appellant in the trial

court, and on May 18, 2015, Appellant entered a plea of

“guilty” to the charged offense. RR1 p. 6. A punishment

trial was heard by the trial court wherein evidence was

presented by both the Appellant and the

NOTE: The record is referred to as: “CR”: clerk’s record in Cause No.44451-B. “RR1,2”: reporter’s record, volume number in Cause No.44451-B.

1 State. RR1 pp. 10-32. Appellant was sentenced by the

trial court to eighteen months in the state jail division

of TDCJ. RR1 p. 30.

2 SUMMARY OF THE ARGUMENTS

Under Anders v. California, 386 U.S. 738, 744,

(1967), a court-appointed attorney may not raise an issue

in an appeal if he makes a conscientious examination of

the case and finds the appeal is wholly frivolous. To

comply with Anders, counsel must isolate “possibly

important issues” and “furnish the court with references

to the record and legal authorities to aid it in its

appellate function.” United States v. Johnson, 527 F.2d

1328, 1329 (5th Cir. 1976). After the appellant is given

an opportunity to respond, the court makes a full

examination of the record to detect whether the case is

frivolous. Anders, 386 U.S. at 744. Appellant‘s counsel

has reviewed the Clerk‘s Record and Reporter‘s Record

from the Trial Court, the sentence received by Appellant

and the factual basis for the sentence. As set forth in

the Brief, there are no non-frivolous issues.

The record reveals that the trial court substantially

complied with Article 26.13 of the Texas Code of Criminal

Procedure when accepting Appellant’s plea. RR1 pp. 5-

3 10. No objection was made by Appellant to any of the

evidence, exhibits or the sentencing of Appellant by the

trial court. RR1 pp. 5-30. There are no jurisdictional

defects. There are no non-jurisdictional defects arising

at or after entry of the plea. See Jack v. State, 871

S.W.2d 741 (Tex.Cr.App.1974). Counsel has also filed

with this Court a Motion to Withdraw as Court Appointed

Counsel on Appeal with supporting exhibits in accordance

with the procedures and standards set out in Jeffery v.

State, 903 S.W. 776 (Tex.App.-Dallas 1995, no pet.).

4 ARGUMENTS AND AUTHORITIES

I.

APPELLANT’S PLEA OF GUILTY COMPLIED WITH THE

REQUIREMENTS OF ARTICLE 26.13 OF THE TEXAS CODE

OF CRIMINAL PROCEDURE.

Appellant’s counsel has reviewed the record in detail

and has identified no action or inaction on the trial

court’s part that suggests harmful error in the

Defendant’s pleading guilty to the charges.

Before accepting a guilty plea, the trial court must

admonish a defendant of: (1) the punishment range, (2)

the fact that the State’s sentencing recommendation is

not binding on the court, (3) the limited right to appeal

and (4) the possibility of deportation. Tex. Code Crim.

Proc. art. 26.13(a). The admonishments may be made

either orally or in writing. Id at 26.13(d).

At Appellant’s original pleas, the court admonished

Appellant on the proper range for the possession of a

controlled substance charge. RR1 p. 6; CR p.9. The

5 court substantially complied with the requirements of the

statute in accepting Appellant’s guilty plea as evidenced

by the written plea admonishments and verbal

admonishments by the trial judge. RR1 pp. 5-10; CR pp.

9-10.

To be constitutionally valid, a guilty plea must be

knowing and voluntary. See Brady v. United States, 397

U.S. 742, 749, (1970); see also Tex. Code Crim. Proc.

Ann. art. 26.13(b). When the record shows that the trial

court admonished the defendant in substantial compliance

with Article 26.13 of the Code of Criminal Procedure,

this is a prima facie showing that the plea was knowing

and voluntary. See Tex.Code Crim. Proc Ann. art.

26.13(C); See Crawford v. State, 890 S.W.2d 542, 544

(Tex.Crim.App.1985). There is nothing in the record to

indicate Appellant pleaded guilty and true without

understanding the consequences of his plea, and as a

result, Appellant suffered no harm. See Fuentes v.

State, 688 S.W.2d 542, 544 (Tex.Crim.App 1985). The

trial court accepted Appellant’s original plea of guilty

6 and punishment was assessed. RR pp. 6-10, 32-34. The

voluntariness of Appellant’s pleas is shown by the

record. RR p. 5-9.

7 II.

NO OBJECTION TO EVIDENCE OR EXHIBITS WAS MADE

DURING THE PUNISHMENT STAGE OF TRIAL AND NO

MERITORIOUS LEGAL CLAIM EXISTS RELATED TO THE

IMPOSITION OF PUNISHMENT.

On the 28th day of May, 2015, Appellant’s plea of

guilty was accepted by the trial court. RR1 pp. 5-10.

On the same day, the punishment phase of Appellant’s

trial began. RR1 p.10. No evidence was presented by the

state other than cross-examination of the Defendant and

a defense witness. RR1 pp. 21-30. Appellant called the

Defendant and one other witness, RR pp. 10, 17, and both

sides made a closing argument. RR1 pp. 30-32. Appellant

made no objection to evidence or exhibits offered by the

state, and the trial judge sentenced Appellant to

eighteen (18) months to serve in the state jail division

of TDCJ. RR p. 32.

The trial court was the fact finder for purposes of

the punishment decision. The evidence before the court

8 was substantial. The judge‘s remarks following the close

of evidence indicate the circumstances taken in

consideration related to the sentence assessed in open

court. RR1 pp. 32-34.

9 III.

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IS NOT

A VIABLE CLAIM BASED UPON THE RECORD BEFORE THIS

COURT

Claims of ineffective assistance of counsel are

analyzed under the two-prong test set out by the United

States Supreme Court in Strickland v. Washington, 466

U.S. 668 (1984), and adopted by Texas in Hernandez v.

State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986). Appellant

must show that trial counsel's performance was deficient,

that is, counsel's representation fell below an objective

standard of reasonableness. Thompson v. State, 9 S.W.3d

808, 812 (Tex.Crim.App.1999).

Appellant must also show that counsel's deficient

performance prejudiced his defense. Strickland, 466 U.S.

at 687; Jackson v. State, 877 S.W.2d 768, 771

(Tex.Crim.App.1994). This requires Appellant show there

is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would

10 have been different. Strickland, 466 U.S. at 694;

Jackson, 877 S.W.2d at 771. A reasonable probability is

a probability sufficient to undermine confidence in the

outcome. Strickland, 466 U.S. at 694; Jackson, 877

S.W.2d at 771.

In reviewing an ineffective assistance of counsel

claim, there is a strong presumption that counsel‘s

conduct falls within the wide range of reasonable

professional assistance and the appellant must overcome

the presumption that the challenged conduct might be

considered sound trial strategy. Thompson, 9 S.W.3d at

813; Strickland, 466 U.S. at 689. Any allegation of

ineffectiveness must be firmly founded and affirmatively

demonstrated in the record to overcome this presumption.

Thompson, 9 S.W.3d at 813; see Jackson, 877 S.W.2d at

771. It is the Appellant‘s burden to prove ineffective

assistance of counsel by a preponderance of the evidence.

Id.

At the guilt phase of her trial wherein she entered

a plea of “guilty,” Appellant was informed by the trial

11 court of his right to plead “not guilty” and have the

case tried before a jury. RR1 pp. 6-7. At no point

during any of the proceedings in this cause did Appellant

assert to the trial court that he was unhappy with the

performance and representation of his trial counsel, Mr.

Winn. Appellant pleaded guilty freely and voluntarily

after being properly admonished of the punishment range,

RR1 pp. 5-10. Based on this record, no legitimate non-

frivolous basis exists to argue trial counsel was

constitutionally ineffective.

12 STATEMENT OF ATTORNEY TO THE COURT

This brief is filed by counsel appointed by the court

to represent Appellant on appeal in accordance with

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

State, 516 S.W.2d 684 (Tex.Cr.App.1974). Counsel has

also filed with this Court a Motion to Withdraw as Court

Appointed Counsel on Appeal in accordance with the

procedures as standards set out in Jeffery v. State, 903

S.W.2d 776 (Tex.App.-Dallas 1995, no pet.). After

thorough examination of the clerk’s record and reporter’s

record, counsel can find no point of error that can be

supported by the record. Counsel has discussed the

evidence and the documents in the record, citing

references to the records.

13 PRAYER

Wherefore, premises considered, the undersigned

counsel requests the Court of Appeals review the record

on appeal, consider the Motion to Withdraw as Court

Appointed Counsel with supporting affidavit, review the

foregoing Brief in Support of Motion to Withdraw, and

grant the Motion to Withdraw.

Respectfully submitted, /s/ Jeff T. Jackson Jeff T. Jackson SBOT No. 24069976 736-A Hwy 259 N. Kilgore, TX 75662 Phone: 903-654-3362 Fax: 817-887-4333 Email: jefftjacksonlaw@gmail.com

Attorney for Appellant, BRIAN LYNN PUCKETT

14 CERTIFICATE OF COMPLIANCE

The foregoing Appellant’s Brief is in compliance with

TEX. R. APP. P. 9.4(i)(2)(B). The total number of words

contained in Appellant’s Brief that are not specifically

excluded from the word count under TEX. R. APP. P. 9.4

(i)(1) is 1,465 words.

/s/ Jeff T. Jackson Jeff T. Jackson SBOT No. 24069976 Attorney for Appellant, BRIAN LYNN PUCKETT

15 CERTIFICATE OF SERVICE

I, the undersigned attorney, do hereby certify that

a true and correct copy of the above Motion was served

on the State of Texas by mailing same to the District

Attorney of Gregg County on September 2nd, 2015.

I further certify that I have mailed a copy of the

above Brief and accompanying motion by First Class Mail,

postage paid, to Appellant, BRIAN LYNN PUCKETT, TDCJ No.

02001172, at the address listed above on the same date.

/s/ Jeff T. Jackson

Jeff T. Jackson