Hung Le v. State

• Court: Court of Appeals of Texas
• Decided: July 8, 2015
• Docket: 01-14-01019-CR
• Status: Published

Opinion

ACCEPTED 01-14-01019-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 7/8/2015 7:18:20 PM CHRISTOPHER PRINE CLERK

No. 01-14-01019-CR __________________________________________________________________ FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS FOR THE 7/8/2015 7:18:20 PM FIRST SUPREME JUDICIAL DISTRICT CHRISTOPHER A. PRINE Clerk AT HOUSTON __________________________________________________________________

HUNG LE § APPELLANT

V. §

STATE OF TEXAS § APPELLEE

__________________________________________________________________

On Appeal in Cause 1398928 from the 232nd District Court of Harris County,

Texas

_________________________________________________________________

BRIEF OF APPELLANT

__________________________________________________________________

J. Sidney Crowley 214 Morton St. Richmond, Texas 77469 (281)232-8332 TBC No. 05170200

ATTORNEY FOR APPELLANT INTERESTED PARTIES

APPELLANT Hung Le Texas Department of Criminal Justice Correctional Division

TRIAL JUDGE Hon. Mary Lou Keel 232nd District Court of Harris County

TRIAL COUNSEL Samuel Adamo 3200 Travis, Fourth floor Houston, Texas 77002

APPELLATE COUNSEL J. Sidney Crowley 214 Morton St. Richmond, Texas, 77469

STATE OF TEXAS Devon Anderson District Attorney, Harris County 1201 Franklin St. Houston, Texas 77002

Markay Stroud Assistant District Attorney Harris County

2 TABLE OF CONTENTS

LIST OF INTERESTED PARTIES ..........................................................................2

INDEX OF AUTHORITIES......................................................................................4

STATEMENT OF THE CASE..................................................................................5

POSSIBLE POINTS OF ERROR.............................................................................6

STATEMENT OF FACTS........................................................................................7

SUMMARY OF THE ARGUMENT........................................................................9

POSSIBLE POINT OF ERROR ONE The trial court reversibly erred in failing to comply with the requirements of TEX.CODE CRIM.PROC., art. 26.13...............................10

CERTIFICATE REGARDING FRIVOLOUS APPEAL........................................10

CONCLUSION........................................................................................................11

NOTICE TO APPELLANT.....................................................................................11

PRAYER..................................................................................................................12

CERTIFICATE OF COMPLIANCE.......................................................................13

CERTIFICATE OF SERVICE................................................................................13

3 INDEX OF AUTHORITIES

Statutes

TEX. CODE CRIM. PROC., art. 26.13............................................................7,9,10

Cases

Anders v. California, 386 U.S. 738, 87 S.Ct., 1396 (1967)...................................5,9

Gomez v. State, 921 S.W. 2d 329 (Tex.App.-Corpus Christi 1996).......................10

Lindsey v. State, 902 S.W.2d 9, 11 (Tex.App-Corpus Christi 1995).....................10

4 TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Appellant, Hung Le, by and through his attorney, J. SIDNEY CROWLEY,

submits this frivolous appeal brief pursuant to Anders v. California, 386 U.S. 738,

87 S.Ct. 1396 (1967).

STATEMENT OF THE CASE

Appellant, charged by indictment with the felony offense of aggravated assault

on a public servant, entered a plea of guilty to the trial court. The court sentenced

Appellant to confinement in the Texas Department of Corrections, Correctional

Division, for life.

5 POSSIBLE POINT OF ERROR

POSSIBLE POINT OF ERROR ONE

The trial court reversibly erred in failing to comply with the requirements of

TEX.CODE CRIM.PROC., art. 26.13 when it accepted Appellant’s plea of guilty.

.

6 STATEMENT OF FACTS

POSSIBLE POINT OF ERROR 0NE

Appellant was charged by indictment with the offense of aggravated assault on

a public servant. Appellant entered a plea of guilty without an agreed

recommendation from the state and requested the preparation of a presentence

investigation report. Prior to the plea, Appellant filed a document entitled “Waiver

of rights, agreement to stipulate and judicial confession” signed by the attorney for

the state, Appellant’s attorney, and Appellant himself (CR-1602). In it, Appellant

waived the right of trial by jury, the right to confront the witnesses and his right

against self-incrimination. Appellant also judicially confessed to having committed

the offense as alleged in the indictment.

A set of separate set of written admonishments, initialed and signed by

Appellant, the prosecutor and defense counsel was also executed (CR-1604). The

admonishments are those set forth in TEX. CODE CRIM. PROC., art. 26.13. The

trial court also orally admonished Appellant (RR-2). The Court inquired whether

Appellant had been forced to plead guilty or had been promised anything, to which

Appellant responded in the negative. The court orally admonished Appellant on the

correct range of punishment for the offense (RR-2, p. 4). The court informed him that

he could possibly receive probation but also that the court could very well sentence

7 him to life in prison (RR-2, p. 4). The Court asked if he had understood the paper

work and Appellant replied in the affirmative. The court then recessed the

proceedings and ordered the preparation of a presentence report.

The court conducted a sentencing hearing 3 months later when the presentence

report was ready. The state introduced numerous medical records and a video tape.

Appellant’s sister testified concerning his history. At the close of the hearing the

court found Appellant guilty and sentenced him to confinement for life in the

Institutional Division.

8 SUMMARY OF THE ARGUMENT

Appellant signed a long series of written admonishments, which satisfied

the requirements of article 26.13. In addition he was orally admonished by the

trial court.

9 POSSIBLE POINT OF ERROR ONE

The trial court reversibly erred in failing to comply with the requirements of

TEX. CODE CRIM. PROC., art. 26.13 when it accepted Appellant’s plea of guilty.

Argument and Authorities

Before accepting a plea of guilty the trial court must admonish the defendant

in accord with the requirements of article 26.13. The admonishments may be orally

or in writing. Gomez v. State, 921 S.W.2d 329 (Tex.App.-Corpus Christi, 1996). If

the trial court admonishes the defendant in writing instead of orally, the court must

receive a statement signed by the defendant and his attorney that he understands the

admonishments and is aware of the consequences of his plea. Lindsey v. State, 902

S.W.2d 9,11 (Tex.App.-Corpus Christi 1995). The trial record contains such a signed

statement. The trial court fully complied with all of the statutory requisites in

accepting Appellant’s plea. Appellant was also admonished orally by the trial court.

In addition Appellant was sentenced within the permissible range of punishment for

the offense of aggravated assault on a public servant.

CERTIFICATE REGARDING FRIVOLOUS APPEAL

In compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967),

counsel has conscientiously reviewed the entire Clerk’s and Reporters record from

the proceedings below, has thoroughly researched the law, and has exercised

10 judgment in identifying the arguments that may be advanced on appeal. In searching

for the strongest arguments available, counsel resolved all doubts and legal questions

in Appellant’s favor. The only theories that counsel could discover after his

conscientious review of the record and the law were arguments that lacked any merit

and that could not conceivably persuade this Court to reverse Appellant’s judgment

of conviction. Therefore counsel is of the opinion that the appeal is “frivolous”.

Accordingly counsel is filing this brief with reference to anything that might

“arguably support the appeal”. Id., at 744, 87 S.Ct., at 1400.

A copy of this brief has been forwarded to Appellant. Pursuant to Anders,

counsel has advised Appellant that he has the right to file a pro se brief raising any

other additional points that he chooses.

CONCLUSION

Appellate counsel has examined the entire record, and in his opinion, this

appeal is frivolous. In addition, he has mailed a copy of the brief to Appellant.

NOTICE TO APPELLANT

I have made a thorough and conscientious review of the record and the law in

your case. After searching for the strongest arguments available and resolving all

doubts and ambiguous legal questions in your favor, the only theories that I can

11 discover are arguments that cannot conceivably persuade an appellate court to reverse

the judgment.

You have a right of access to the record and the right to file a brief on your own

behalf at the Court of Appeals. The address of the Court of Appeals is:

Clerk, First Court of Appeals 301 Fannin St, Houston, Texas 77002

You may request access to the record by filing a request with the First Court of

Appeals at the above address. A form for obtaining the record will be sent to you.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this

Court accept this brief, that the Court conduct an independent examination of the

record in the instant case, and that it take appropriate action.

Respectfully submitted,

/s/ J. SIDNEY CROWLEY 214 Morton St. Richmond, Tx. 77469 281-232-8332 TBC 05170200

Attorney for Appellant

12 CERTIFICATE OF COMPLIANCE

The foregoing instrument consists of 1306 words, computer generated.

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing instrument was e-served

on the Appellate Division, Harris County District Attorney’s Office, Houston,

Texas and mailed to Hung Le, TDCJ-ID No. 01966229, Michael Unit, 2664 FM

2054, Tennessee Colony, Texas 75886, this the 9th day of July, 2015.

/s/ J. Sidney Crowley