Derrick Deshawn Gilbert v. State

• Court: Court of Appeals of Texas
• Decided: September 8, 2015
• Docket: 01-15-00144-CR
• Status: Published

Opinion

ACCEPTED 01-15-00144-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 9/7/2015 4:36:16 PM CHRISTOPHER PRINE CLERK

NO. 01-15-00144-CR FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 9/8/2015 11:06:00 AM CHRISTOPHER A. PRINE Clerk IN THE COURT OF APPEALS

OF TEXAS

FIRST SUPREME JUDICIAL DISTRICT

DERICK DESHAWN GILBERT, APPELLANT

VS.

STATE OF TEXAS, APPELLEE

APPELLANT’S BRIEF

TERRENCE GAISER LAWYER FOR APPELLANT 2900 SMITH STREET, # 220 HOUSTON, TEXAS 77006 SBOT# 07572500 713/ 225-0666 tagaiser@aol.com INDEX

INTERESTED PARTIES-------------------------------------------------------p.2

INDEX OF AUTHORITIES----------------------------------------------------p.3

PRELIMINARY STATEMENT-----------------------------------------------p.4

STATEMENT OF COUNSEL-------------------------------------------------p.5

STATEMENT OF THE CASE-------------------------------------------------p. 6

FARETTA V. CALIFORNIA---------------------------------------------p.6

PRETRIAL MOTIONS-----------------------------------------------------p.7

INDICTMENT & EVIDENCE--------------------------------------------p.7

PUNISHMENT HEARING ----------------------------------------------------p.10

CONCLUSION-------------------------------------------------------------------p.13

CERTIFICATE OF COUNSEL------------------------------------------------p.14

CERTIFICATE OF SERVICE-------------------------------------------------p.15

CERTIFICATE OF COMPLIANCE------------------------------------------p.15

1 INTERESTED PARTIES

Hon. Denise Bradley, Judge 262nd District Court Harris County Criminal Justice Center 1201 Franklin Street Houston, Texas 77002

Ms. Erin Epley & Ms. Jamie Burro Assistant District Attorneys (at Trial) 1201 Franklin Street Houston, Texas 77002

Mr. Alan Curry Assistant District Attorney (on Appeal) 1201 Franklin Street Houston, Texas 77002

Mr. Derrick Deshawn Gilbert Attorney Pro Se (at Trial)

Mr. Terrence Gaiser Attorney for Appellant (on Appeal) 2900 Smith, Ste. 220 Houston, Texas 77006

Mr. Derrick Deshawn Gilbert., Appellant TDCJ-ID 01077834 Eastham Unit 2665 Prison Road # 1 Lovelady, Texas 75851

2 INDEX OF AUTHORITIES CASES: Alvarez v. State, 566 S.W.2d 612 (Tex.Crim.App. 1978).-----------------------------------------------------------p.9

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

Birl v. State, 763 S.W.2d 860 (Tex.App.—Texarkana 1988 no pet.).------------------------------------------p.9

Collier v. State, 959 S.W.2d 621, 626 (Tex.Crim.App. 1997).-----------------------------------------------------------p.6

Combs v. State, 652 S.W.2d 804 (Tex.App.-Houston[1stDist.] 1983 no pet.).-----------------------------------p.13

Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).---------------------------------------------------------p.6

High v. State, 573 S.W.2d 807 (Tex.Crim.App.1978).------------------------------------------------------------p.5

Samuel v. State, 477 S.W.2d 611 Tex.Crim.App.1972).-------------------------------------------------------------p.13

Studer v. State, 799 S.W.2d 263 (Tex.Crim.App.1990).------------------------------------------------------------p.8

STATUTES & RULES:

Articles 21.02 & 21.03, V.A.T.S., Code of Criminal Procedure.-----------p.9

Sections, 29.02 & 29.03 TEX.PENAL CODE.--------------------------------p.7

CONSTITUTION:

United States Constitution, Eighth Amendment.-----------------------------p.13

3 NO. 1407722

STATE OF TEXAS § IN THE DISTRICT COURT § VS. § HARRIS COUNTY,TEXAS § DERRICK DESHAWN GILBERT § 262ND JUDICIAL DISTRICT

DERRICK DESHAWN GILBERT appeals from a judgment of guilt

and seventy-five (75) year sentence for the offense of robbery by threats.

PRELIMINARY STATEMENT

On December 1, 2013, appellant was indicted for the offense of

aggravated robbery, in cause number 1407722. The indictment alleged the

use and exhibition of a deadly weapon, a knife. The indictment alleged two

prior sequentially committed and convicted felony offenses making

appellant an habitual offender. (TR. 14)

On May 7, 2014, the trial court went on record with regard to

appellant’s desire to represent himself. After a lengthy colloquy the court

granted appellant’s request and ordered that appellant’s appointed counsel,

Mr. Sam Maida, remain as standby counsel. (TR. 86 & R.2) On February 9,

2015, a jury was selected and sworn, and on the next day testimony

continued. On February 10, 2015, the trial court granted appellant’s motion

4 for an instructed verdict on the offense of aggravated robbery and submitted

the case to the jury on the offense of robbery by threats. (R.5, 9) The same

day the jury returned a verdict of guilty for the offense of robbery by threats.

(TR. 74) The following day, February 11, 2015, the jury heard evidence and

was charged on the issue of punishment. The jury assessed punishment at

seventy-five years.

Throughout the entire proceedings appellant did not offer a single

valid objection that was overruled or offer any evidence that was not

admitted.

STATEMENT OF COUNSEL

Inasmuch as counsel is of the opinion that this appellate record, by

itself, presents no reversible error and no error upon which a direct appeal

can be properly predicated, counsel will certify that this appeal is without

merit and the prosecution of this appeal is frivolous. In compliance with the

requirements of Anders v. California, 386 U.S. 738 (1967), and High v.

State, 573 S.W.2d 807 (Tex.Crim.App.1978), and cases decided under those

authorities counsel has reviewed the entire record of these cases and will set

out the reasons these appeals are frivolous.

5 STATEMENT OF THE CASE

The indictment alleges that appellant on or about October 29, 2013,

did unlawfully while in the course of committing theft of property owned by

Syed Zaidi, with intent to obtain and maintain control of the property

intentionally and knowingly threaten and place the complainant in fear of

bodily injury and death, and did then and there use and exhibit a deadly

weapon, namely, a knife. (TR. 14)

Faretta v. California.

The trial court complied with the dictates of Faretta v. California,

422 U.S. 806, 95 S.Ct. 2525 45 L.Ed.2d 562 (1975) and Collier v. State,

959 S.W.2d 621, 626 (Tex.Crim.App. 1997), and held a pretrial hearing

when appellant asked to proceed pro se. (R.2)

A record of the hearing is a virtual replay of the requirements set out

in Faretta and Collier. Appellant was aware of his right to appointed

counsel because he had court-appointed counsel, Mr. Sam Maida, at the time

of the hearing. The court had already appointed a private investigator to aid

in the defense. The court learned that although appellant had a seizure

disorder he did not have any mental issues. He finished the 10 th grade and

had a graduate equivalency degree, (GED). He had been through two

previous trials and never raised the issue of mental competency. He had

6 been through Job Corp and could read and write. He “stays” in the law

library when he is incarcerated. (R.2, 4-11) Appellant demonstrated a clear

understanding of the nature of the charges against him. (R.2, 12)

Appellant understood the range of punishment for the offense and

understood the enhancement paragraphs. (R.2, 12-14) He understood that

the rules of evidence and rules of procedure applied to him, and he would

have to follow them. (R.2, 15-19) The trial judge explained the severity of

the allegations and possible result. (R.2, 19-21) The court acceded to

appellant’s request for standby counsel and appointed Mr. Maida to that

position. The court carefully explained the extent of Mr. Maida’s role. (R.2,

19-20)

At no point in the record does it appear that appellant’s decision was

not voluntary, knowing and intelligent. This is bolstered by the fact that the

trial court granted his motion for instructed verdict.

Pretrial Motions.

Appellant received no adverse ruling on any pretrial motion. No error is

shown.

Indictment & Evidence.

The indictment for aggravated robbery tracks the language of Sections 29.02

and 29.03(a)(2), TEX.PENAL CODE, and alleges the offense of

7 aggravated robbery. The indictment contains all the requisites of an

indictment and states all elements necessary for the State to prove at trial.

Articles 21.02 & 21.03, V.A.T.S., Code of Criminal Procedure. No motion

to quash or dismiss the indictment was filed. The indictment is not

fundamentally defective. No error is shown. Studer v. State, 799 S.W.2d

263 (Tex.Crim.App.1990).

The State offered the testimony of Syed Zaidi who was working the

desk at the Medical Center Inn and Suites at 9000 Main Street on the

evening of October, 29, 2013, when he saw someone just outside the locked,

main door. He pushed the button to allow entry. When the individual he

identified as appellant entered the door, he used a piece of white cloth to

prop the door open. Zaidi asked him to pick up the cloth. Appellant

refused. He approached Zaidi and said, “Hey man, I want to do it the easy

way,” then went behind the counter. Standing next to Zaidi he lifted his

shirt and displayed a knife handle stuck in his waist in what appeared to be a

plastic bag. Appellant took the money from the register. He made Zaidi get

down on his knees and told him, “If you call the police, I will come back and

kill you.” Sometime later he identified appellant in a lineup. (R.4, 11-37)

Officer Ted Adams, a robbery investigator for the Houston Police

Department, developed a suspect and had photos of the suspect. He went to

8 an apartment complex with the photo to find the suspect. When he

mistakenly walked into the business office at the apartments, instead of the

leasing office, appellant was using a computer. Appellant jumped up and

asked him who he was and who he was looking for. Adams was surprised

he had been so lucky. He walked out and called for backup. When it did not

arrive promptly, he attempted to detain appellant and ended up in a foot

chase before he could detain him. Later he was present at the lineup when

the complainant identified appellant as the robber. (R.4, 60-74)

When the State rested, appellant moved for an instructed verdict.

(R.4, 85-89) The following day the court granted the motion as to

aggravated robbery and proceeded to charge the jury on robbery by threat.

The jury found appellant guilty of robbery. (R.5, 4-16)

The cases cited by appellant, and those perused by the trial court,

demonstrate the validity of the court’s ruling and that this evidence is amply

sufficient to sustain the jury verdict. Alvarez v. State, 566 S.W.2d 612

(Tex.Crim.App. 1978); Birl v. State, 763 S.W.2d 860 (Tex.App.—

Texarkana 1988 no pet.).

There was no objection to the jury charge. There is no possible claim

of egregious harm.

9 Punishment.

Appellant was arraigned and pled “not true’ to the enhancement

allegations of the indictment.

Officer Adams testified that after he arrested appellant, he obtained

consent to search appellant’s apartment from appellant’s mother, the lessee.

He obtained sunglasses, a watch and gold chain, white hats, and some shirts.

All of the items were similar to items seen on videos being worn by the

robber in a series of serial robberies where the modus operandi was similar

to the one used in the Zaidi case.

The State presented evidence from the complainants in the serial

robbery cases. Yesenia Reyes identified appellant as the perpetrator of a

case on August 10, 2013, when she was working at the desk as a night

auditor at the Holiday Inn Express at 8080 Main Street. Appellant jumped

the counter and said, “Give me all the fuckin’ money!” She ran and saw

appellant go to the cash register. (R.6, 49-55)

Anthony Ellison was working at the desk at the Quality Inn and Suites

at 2364 Southwest on October 12, 2013, when appellant entered, pointed a

gun at him, and took the cash. Appellant told him, Give me the money or

I’ll kill you.” (R,6, 64-69)

10 Laurel Henderson worked at Prime Storage at 9300 Main Street on

October 1, 2013. A person entered the business office after hours using the

ruse that he was there to make a payment. When he got in, he told the clerk

he wanted the money. He told her he had a weapon. He pulled up his t-shirt

to expose what looked like the handle of a pistol. He said, “Don’t make me

use this.” He took the cash and told her not to call the police or he would

come back and kill her. (R.6, 103-115) The video-surveillance and still

photos from the video of the robbery were identified by Officer Adams as

those of the appellant. (R.6, 20)

Detective Juan Quintana of the Webster Police Department

investigating a case involving a complainant, Ashley Molina, and the

November 3, 2013, robbery at the Springhill Suites. (R.6. 125-129) He

developed a suspect through the Houston Police Department and created a

photo lineup. (R.6, 129-132)

Ashley Molina worked at the Springhill Suites in November of 2013.

She was working the desk at about two in the morning when appellant

entered, engaged her in conversation, looked at a room and left. He returned

in a few minutes, pulled what Molina thought was a gun in a bag, took the

money and threatened her and her family. During the robbery he groped her

11 breast and butt. She identified appellant in Quintana’s photo lineup. (R.6,

125-150)

The enhancement paragraphs of the indictment alleged that before the

commission of the current offense, on March 12, 1992, in the 339 th District

Court of Harris County, Texas, appellant was convicted of delivery of a

controlled substance in cause number 0620161. The indictment further

alleged that after the conviction in 0620161 was final and before he

committed the current offense, he committed the offense of assault-public

servant and was convicted on October 2, 2002, in the 182nd District Court of

Harris County Texas in cause number 902224. (TR. 14)

Travis Rawls, a crime scene investigator with the Harris County

Sheriff’s Department, was qualified as an expert witness in fingerprint

analysis and comparison. He testified that he compared latent fingerprint

exemplars that he took from appellant with fingerprints contained within jail

cards and penitentiary packets from the Texas Department of Criminal

Justice, Institutional Division. (R.6, 79-87) State’s Exhibits # 40 and # 42

were admitted without objection. They contained penitentiary documents

(R.6, 91) Officer Rawls connected appellant to the judgments of conviction

in both documents. State’s Exhibit # 42 contained a judgment of conviction

for the offense of delivery of a controlled substance on March 12, 1992, in

12 the 339th District Court. State’s Exhibit # 40 contained a judgment of

conviction for the offense of assault-public servant on October 2, 1992, in

the 182nd District Court. The judgment shows the offense in the latter case

was committed on February 7, 2002. (R.8, State’s Exhibits # 40 and # 42)

The finding that the enhancement paragraphs are true is supported by

sufficient evidence. The punishment is within the range of punishment set

by statute. Samuel v. State, 477 S.W.2d 611 (Tex.Crim.App.1972); Combs

v. State, 652 S.W.2d 804 (Tex.App.-Houston[1stDist.] 1983 no pet.).

There is no viable contention that the punishment is a violation of the Eighth

Amendment’s proscription against cruel and unusual punishment. United

States Constitution, Amendment Eight.

There is no error in the punishment proceedings.

CONCLUSION

Appellant was indicted for the offense of aggravated robbery. He

knowingly and voluntarily waived his right to counsel and proceeded pro se.

His motion for instructed verdict as to a deadly weapon was granted. He

was convicted of robbery. The punishment evidence showed he was an

habitual offender as alleged in the indictment. The punishment assessed by

the jury was within the range set by law.

This is a frivolous appeal. This case should be affirmed

13 Respectfully Submitted,

S/Terrence Gaiser___________ TERRENCE GAISER LAWYER FOR APPELLANT 2900 SMITH, STE. 220 HOUSTON, TEXAS 77006 SBN: 07572500 713/225-0666 tagaiser@aol.com

CERTIFICATE OF COUNSEL

In compliance with the requirements of Anders v. California, 386 U.S. 738 (1967), and High v. State, 573 S.W.2d 807 (Tex.Crim.App.1978), counsel for DERRICK DESHAWN GILBERT, on this appeal, states that he has diligently reviewed the entire appellate record in this case and the law applicable thereto and, in his opinion, the appeal of the judgment of conviction in this case is without merit and is frivolous because the record reflects no reversible error. Further it is the opinion of the undersigned that there are no grounds upon which an appeal can be predicated.

The undersigned is serving a copy of this brief on the appellant. At the same time the undersigned informed appellant by letter that it is counsel’s view that the appeal is wholly without merit and that he has the right to view the record and to file a pro se appellate brief should he so desire. Appellant has been informed that the court will be requested to make the record available to him and to grant an extension of time for filing of a pro se brief, if desired.

S/ Terrence Gaiser___ TERRENCE GAISER

14 CERTIFICATE OF SERVICE

I CERTIFY THAT A COPY OF THE ABOVE AND FOREGOING APPELLANT’S BRIEF IS BEING SERVED ON ALL PARTIES OF RECORD ACCORDING TO THE RULES.

S/ Terrence Gaiser____ TERRENCE GAISER

CERTIFICATE OF COMPLIANCE

I CERTIFY THAT THE ABOVE AND FOREGOING APPELLANT’S BRIEF FILED IN THE ABOVE-STYLED CASE CONTAINS LESS THAN 3000 WORDS ACCORDING TO THE MICROSOFT WORD PROGRAM USED TO GENERATE THIS DOCUMENT.

S/ Terrence A. Gaiser TERRENCE A. GAISER