Johnson, Morris Landon Ii

Opinion

? IH5 jK ib IN A L

COURT OF CRWAIA^ 3

SEP 18 2015 Petition for

Discretionary Review Abel AcOSta, Gte:': Morris Landon Johnson II

PD-0911-15

FILED IN ORAL ARGUMENT NOT REQUESTED C0URT 0F CRIMINAL APPEALS SEP 18 2015 Motion for Rehearing not Filed Abel Acosta, Clerk Identity of Parties

Morris Landon II Appellant/Petitioner

2661FM 2054

Tennessee Colony, Texas 76408

Appellate Counsel

Richard L. Mattox

State Bar No. 09233200

201 E. Bridge Street

Granbury, Texas 76048

Trial Counsel/Defense

Angie Hadley

State Bar No. 24050705

600 S. Texas Street

DeLeon, Texas 76444

Appellee/State of Texas

Trial Court

Robert Christian

State Bar No. 004798106

1200 W. Pearl Street

Granbury, Texas 76408 Table of Contents

Cover

Identity of Parties

Table of Contents

Table of Cases/Index of Authorities

Statement of the Case

Procedural History

Argument/Question 1

Argument/Question 2

Summary of the Argument

Certificate of Service Table of Cases

State

Carroll v State 916 Sw2d p. 494 (Tx.crim.app 1996)

Coleman v State 915 Sw2d p80 (Tx. App-Waco 1996 pdr gntd

Coleman v State 966 SW2D p. 525 (Tx. Crim.app 1998)

Ex Parte Shumake 953 Sw2d p. 942 (Tx.app-Austin 1997)

High v State 573 Sw2d p. 807, 812 (Tx.crim.app 1978)

Jefferyv State 903 Sw2d p. 776 (Tx.app-Dallas 1995) remanded

Mitten v State 79 Sw3d p. 751 (Tx.app-Corpus Christi 2002)

Mitten v State 145 Sw3d p. 225 (Tx.crim.app.app) on remand

Mitten v State 225 Sw3d p. 693 (Tx.crim.ap) rr

Polask v State 16 SW3d p.83 (Tx.app-Houston 1 Dist 2000)

Pena v State 932 Sw2d p. 31 (Tx.app-EI Passo 1997)

Ramirez v State 802 Sw2d p. 674 (Tx.crim.appl993)

Virte v State 739 Sw2d p. 25, 35 (Tx.Cr.app 1987)

Supreme Court

Alford v United States 51S ct p. 1218 (1931)

Anders v State 386 US 734 (1967)

Chambers v Mississippi 93 S ct p. 1308 (1973)

Evitts v Lucy 105 S ct p. 930 (1985)

McCoy v Court of Appeals 108 S ct p. 1895 (1988)

Pointer v Texas 85 s ct p. 1065 (1988)

Smith v Illinois 88s ct p. 748 (1962)

Washington v Texas 87 s ct p. 1920 (1967) Statement of the Case

This case involved a conviction for delivery of a controlled substance. The transaction was set up by a confidential informant (CI) and a detective. A pre-trial suppression hearing focused on texting information was denied. The jury found the defendant guilty and sentence was placed at forty years.

At the close of trial, the district clerk handed to trial counsel prepared subpoenas of Camon Buchannon that was never served. No prior notice of this failure was provided, (see Appellate record of Angie Hadley) -Affidavit

Trial counsel was appointed on 10/13/2013. A jury trial commenced on 9/15/2014. After a finding of guilt, Richard Mattox was appointed as appellate counsel who then filed an Anders Brief and motion to withdraw on 1/7/2015, the same day notifying the defendant by letter of such with instructions how to file a pdr.

The Appellate Court filed pro se a response to the Anders Brief. Late on June 18, 2015 the Second Court of Appeals issued their opinion affirming the decision, and granting the withdraw motion. This PDR follows. QUESTION FOR REVIEW

WHETHER AN ANDERS BRIEF CAN

STAND ON AN INCOMPLETE RECORD

ARGUMENT

It is well settled that a Defendant is entitled to the effective assistance of counsel on appeal. Evitts v Lucy 108 s ct p. 830 (1987).

The proper standard for evaluating ineffectiveness of counsel on appeal is that set forth in Strickland v Washington 104 s ct p. 2052. See Smith v Robbins s ct p. 746 (2000). To achieve this standard, counsel must play the role of an active advocate rather than a mere friend of the court, assigned in a detached evaluation of his client's claim. Anders v State 386 US 734 (1967).

Counsel in reviewing the record must be "zealous and resolve all doubts that any arguable grounds are wholly frivolous" Pena v State 932 Sw3d p. 31 (tx.app-EI Paso 1997) citing McCoy vs Court of Appeals 108 S ct p.1895 (1988). Conclusory statements in the brief are insufficient. High v State 573 Sw2d p. 807, 812 (Tx.cr.app 1978). The Anders Brief provides the appellate courts with a basis for determining whether appointed counsel has fully performed their duty to support their client's appeal to the best of his duty. Ex Patte Shumake 953 Sw2d p. 942 (Tx.app-Austin 1997).

This is a critical determination that must be kept free from unreasonable distinction that can only impede open and equal access to the courts.

This process of the appellate courts involves two questions. First, whether the lawyer really did function as a committed advocate, and two, whether he misjudged the legitimate applicability of any issue. In this review, the court is responsible for assuring that counsel has gone as far as advocacy will take him with the best issues discounted. See Jeffery v State 903 Sw2d p. 776 (Tx.app-Dallas 1995) remanded.

In Jeffery, counsel submitted an Anders brief. The appellate "court in it's review discovered that the oral pronouncement of 20 years was not reflected accurately in the judgement of 20 years plus a 1000.00 dollar fine. "If counsel missed such an obvious error, we cannot assure that counsel would have caught other more subtle points of error". Appellant counsel was allowed to withdraw and new counsel was appoint to file a brief.

In the instant case, appellate counsel appears to have missed a subpoena not served, and more importantly that bench conferences were not recorded, particularly on cross. The absence lends to restricted testimony and dial of confrontation.

Trial counsel filed an affidavit as to the actions of the District Clerk not serving the complete subpoena.

Discretionary review should be granted on the grounds of an incomplete record, and on appellate counsel's failure to act in good faith, in light of existing facts. Questions Two

WHETHER THE COA DECISION CAN STAND ON AN INCOMPLETE RECORD

An accused has a right ofcompulsory process for obtaining witnesses on his behalf. US Constitution VI, Texas Constitution Art 110. The Texas Constitution offers more protection in a criminal case.

Trial counsel filed a written, sworn application that identified a witness and that his testimony would be material and relevant at sentencing.

Issuance ofa subpoena is a matter ofright on written, sworn application, identifying the witness and indicating that their testimony is material to state or defense. See Mitten vState 79 Sw3d (Tx.app- Corpus Christi 2002) pdr gntd rvds 145 Sw3d p. 225, (Tex.crim.app, on remand 225 Sw3d p. 693 citing Colman v State 915 Sw2d p. 80 (Tx.app-Waco 1996) pdr gntd. Colman was reversed and granted a new trial. See 966 Sw2d p. 525 (Tx.crim.app 1998 En. Banc. If astate arbitrarily denies a criminal defendant the right to have a person to testify who was physically and mentally capable totestify toevidence that he had personally observed and would have given evidence which would have been relevant and material to defense, then his constitution rights are violated.

Such was the holding in Washington vTexas 87 Sct p. 1920 (1967). This right is not absolute, as the witness testimony must both be relevant, material and favorable. See United States vValenzuela- Bernal 102 S ct p. 3440 (1983). The court reported failed to record four bench conferences requested by the state (RR vol 4 p. 65, 90,91,126,127. The state requested such on the cross by thedefense of the CI. The right to confront witnesses is guaranteed US Const Amend v. as held in Pointer vTexas 85 S ct p.1065 (1988). This right ensures fairness to any matter that could reflect awitness's credibility. Virte v State 7.39 Sw2d p. 25, 35 (Tex.cr.app 1987). There are limitations to this right. See Chambers v Mississippi 921S ct p. 1038 (1973). In cross examination, the trial judge determines to safeguard the witness from; harassment, prejudice, confusion of the issues, and repetition or marginal relevant interrogation (see Smith vIllinois 85 Sctp.748 1962). This instant case involved a criminal informant. (CI) also asdistinguished in the holding ofCarrol vState 916 Sw2d p. 494 (Tex.cr.app 1996). The trial counsel was questioning both the detective and the CI as to in part agreements, such was evaded by the witness. The State during such facts opened the door attheir opening statements to which the details that the defense counsel was forced to abandoned. When a witness leaves afalse impression, the opposing party is allowed to correct that false information see Ramirez vState 802 Sw2d p. 674 (Tex.crim.app 1998) Where a CI is part of a criminal case the motive of bias exists, and defense much be allowed, as an unqualified right to determine any coercion, or immunity, such concern is relevant. See Alford v United States 51 s ct p.1218 (1931).

The request to record all proceedings pursuant to T.R.A.P. 113.1 has been found to be in conflict with Tex.Govt Code 52.046 (a) see Polasek v State 16 Sw3d p. 82 (Tex.app-Houston [1 dist} 2000). The dissenting opinion focused on the plain meaning of the rule "upon request, shall".

In the appellants case a review of the record is needed to determine if such rule was followed. This request is based on on in part the bad faith of appellate counsel.

The PDRshould be granted because the filing of an Ander's Brief was impeded the appellant to fully develop the record, as is his ability to establish the violation of the right to compel witnesses in his favor. The COA decision ought not to stand on procedural errors effecting the constitutional right of the Petitioner. Prayer

Therefore it is the Prayer of the Petitioner, Pro Se, grant review of the Appellate Courts decision in this case and provide all judicial relief applicable to petitioner.

Sincerely

Morris Landon Johnson II

TDC# 1877943

Coffield Unit

Tennessee Colony, Texas 75884 I

Cause #12645 8 IN THE 355th JUDICIAL THE STATE OF TEXAS | I DISTRICT COURT OF vs ! MORRIS LANDON JOHNSON §I WOOD COUNTY, TEXAS HOODCOUN ^mPAVTT OF FACTS

being by me duly sworn stated the following under oath: -My name is Angie H^ey.latnovertheageoffour.ena^ears.a.dlam co^torna.etMsafndav, Thestentscontainedhereinare *ueand correct. ^Mahou,Octoherl5,20n..wasappointed«orepresen,Mr.MorriSLmdonIohnSon ^rheeharseofManurac^eliveryofa—edSubs^nrorethanag^butless^ 4grams inHoodCounty, aseconddegreefelony enhancedto afirst. .OnSeptenrbcr^OHM, Johnsonwastriedby abound guilty and sentenced* .^h.TOa.However.rhesentencingwi.ness^t.s^aednevershowedupfor* i. andat^ only Mr. Johnson's brother the hmther's girlfriend who 1had personally spoken with, biother sgirimen (Applicationfor Subpoenas attached as exhibit A)

served. .. ^Hevethat ifCanonBue—(theonly sentencingwitnesses subpoenaed by a^hadbeenservedand.d^edatthesentencingphaseof.etrial^theo^e

served him with a subpoena. ^S.ONINOTH.S^AV.VOLL.TAIULY.IHAVBNO^.N PROMTSBOFANYNATXlREBBENMAOElNEXCHANOEFORMYEXECOnONO THIS AFFIDAVIT."

SieT^ley | SWORN and SUBSCRIBED before me, the undersigned authority, onthis ^ clay ,2015. of

3TPARK£R Nota^ubiicTStote ofTexas «»522K52?tt,: (--'; ___

CR-12645

IN THE 355TH JUDICIAL THE STATE OFTEXAS § § § DISTRICT COURT OF § VS. § § HOOD COUNTY, TEXAS MORRIS LANDON JOHNSON §

*,Fm ir ATION FQW SUBPOENA

testimony ofthese persons is ^ ^ ^ ^ ^ fctfaL witness needs to appear September 16,2014 at 9.0U am 1. Scott Johnson (brother) 1415 Private Road 702 Stephenville,TX 76401 254-592-4679

2. PattiNisbit 1415 Private Road 702 Stephenville,TX 76401 3. CamonBuchannon 1301 Shawnee Trail Granbury, TX 76048 817-501-7405

Angie Hadley State Bar #: 24050705 PO Box 336 DeLeon,TX 76444 Phone: 254-893-7778 Fax: 254-893-7779 yfgcctc.net /

jmey at Law

e.w»*A COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00411-CR

MORRIS LANDON JOHNSON, II APPELLANT

V.

THE STATE OF TEXAS STATE

FROM THE 355TH DISTRICT COURT OF HOOD COUNTY TRIAL COURT NO. CR12645

MEMORANDUM OPINION1

A jury found Appellant Morris Landon Johnson, II guilty of delivery of one gram or more but less than four grams of methamphetamine; Johnson pleaded true to an enhancement allegation and the jury assessed his punishment at forty

years' confinement and a $5,000 fine. The trial court sentenced him accordingly.

1SeeTex. R. App. P. 47.4. See Tex. Health & Safety Code Ann. § 481.112(a), (c) (West 2010); Tex. Penal

Code Ann. § 12.42(b) (West Supp. 2014). Johnson timely perfected this appeal.

Johnson's appointed appellate counsel has filed a motion to withdraw as

counsel and a brief in support of that motion. Counsel's brief and motion meet

the requirements of Anders v. California by presenting a professional evaluation

of the record demonstrating why there are, in counsel's assessment, no arguable

grounds for relief. See 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). In

compliance with Kelly v. State, counsel notified Johnson of his motion to

withdraw, provided him a copy of the brief, informed him of his right to file a pro

se response, informed him of his pro se right to seek discretionary review should

this court hold the appeal is frivolous, and took concrete measures to facilitate

Johnson's review of the appellate record by providing him with a copy of the

clerk's record and the reporter's record. See 436 S.W.3d 313, 319 (Tex. Crim.

App. 2014). Johnson filed a pro se response to counsel's Anders brief raising five points, many of which are unpreserved for our review. See Tex. R. App. P.

33.1.

As the reviewing court, we must conduct an independent evaluation of the

record to determine whether counsel is correct in determining that the appeal is

frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);

Mays v. State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no pet.). Only then may we grant counsel's motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82-83, 109 S. Ct. 346, 351 (1988). We have carefully reviewed the record, counsel's brief, and Johnson's pro

se response. We agree with counsel that this appeal is wholly frivolous and

without merit; we find no preserved error in the record that arguably might

support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim.

App. 2005). Accordingly, we grant counsel's motion to withdraw and affirm the

trial court's judgment.

/s/ Sue Walker SUE WALKER JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: June 18, 2015