Lawrence James Jr. v. State

Opinion

ACCEPTED 13-14-00380-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 2/23/2015 7:44:06 PM DORIAN RAMIREZ CLERK

NO. 13-14-00380-CR

FILED IN 13th COURT OF APPEALS In The CORPUS CHRISTI/EDINBURG, TEXAS 2/23/2015 7:44:06 PM Court of Appeals DORIAN E. RAMIREZ Clerk

Thirteenth Supreme Judicial District

Corpus Christi, Texas ________________________________________________________________

LAWRENCE JAMES, JR Appellant

vs.

THE STATE OF TEXAS Appellee ________________________________________________________________

On Appeal in Cause No. 12-14114

252nd District Court, Jefferson County, Texas

HONORABLE LARRY GIST, Judge Presiding ________________________________________________________________

BRIEF FOR APPELLANT ________________________________________________________________

TERRENCE LEON HOLMES 455 Milam Street Beaumont, Texas 77701 (409) 832-6041 (409) 832-6078 FAX TBN: 09908486 Attorney for Appellant No Oral Argument Requested SUBJECT INDEX

PAGE

IDENTITY OF PARTIES AND COUNSEL 3

INDEX OF AUTHORITIES 6

STATEMENT OF THE CASE 7

ISSUES PRESENTED 10

STATEMENT OF FACTS 11

SUMMARY OF THE ARGUMENT 14

ARGUMENT 14

CERTIFICATE OF COUNSEL 19

CERTIFICATE OF COMPLIANCE WITH RULE 9.4 21

CERTIFICATE OF SERVICE 22

2 IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX.R.APP. 38.1(a), Appellant certifies that the following persons may have an interest in this case to the extent of their respective designations, and this certification is made in order that the presiding judges may evaluate possible conflicts of interests.

LAWRENCE JAMES, JR Defendant/Appellant Institutional Division

THE STATE OF TEXAS Complainant, victim, or aggrieved party

TERRENCE LEON HOLMES, 455 Milam, Beaumont, Texas 77705 Attorney for the Appellant on Appeal

RODNEY D. CONERLY, Assistant Criminal District Attorney, Jefferson County Courthouse, Beaumont, Texas 77701 Counsel for Appellee on Appeal

ERIC HOUGHTON, Assistant District Attorney, 1001 Pearl, Suite 301, Beaumont, Texas 77701 Counsel for the State (Guilt/innocence and sentencing)

NATHAN L. REYNOLDS, JR., 3500 Memorial Blvd., Port Arthur, Texas 77640 Attorney for the Appellant before Appeal

JUDGE HONORABLE LARRY GIST, 252nd District Court, Jefferson County, Texas Trial Court Judge

3 NO. 13-14-00380-CR

In The

Court of Appeals

Thirteenth Supreme Judicial District

Corpus Christi, Texas ________________________________________________________________

LAWRENCE JAMES, JR Appellant

vs.

THE STATE OF TEXAS Appellee ________________________________________________________________

On Appeal in Cause No. 12-14114

252nd District Court, Jefferson County, Texas

HONORABLE LARRY GIST, Judge Presiding

________________________________________________________________

BRIEF FOR APPELLANT ________________________________________________________________

TO THE HONORABLE COURT:

LAWRENCE JAMES, JR, Defendant in Cause No. 12-14114 in the 252nd

4 District Court, Jefferson County, Texas, Honorable Larry Gist, Judge Presiding, and

Appellant for the Court of Appeals, respectfully submits this brief to the Court for the

purpose of appealing his conviction of Murder.

For convenience, the parties will be referred to as “Appellant” and the “State.”

5 INDEX OF AUTHORITIES

CASES PAGE

Anders v. California, 366 U. S. 738 (1967) 19

Anderson v. State, Not Reported in S.W.3d, 2003 WL 21197260, Tex.App.-Hous. (1Dist.), May 22, 2003 17

Gainous v. State, 436 S. W. 2d 737 (Tex. Crim. App. 1969) 19

Gomez v. State, 921 S.W.2d 329 (Tex. App.-Corpus Christi 1996) 14

Harvill v. State, 13 S.W.3d 478 (Tex. App.-Corpus Christi 2000) 14

High v. State, 573 S. W. 2d 807 (Tex. Crim. App. 1978) 19

Houston v. State, 201 S.W.3d 212 (Tex. App.- Hous. [14 Dist.] 2006) 14

Lord v. State, 63 S.W.3d 87 (Tex. App.-Corpus Christi 2001) 14

Saldana v. State, 150 S.W.3d 486 (Tex.App.-Austin 2004) 16

STATUTES

Vernon’s Ann.Texas C.C.P. art. 26.13 14, 15, 16 & 17

6 STATEMENT OF THE CASE

Nature of the Case

This is an appeal from a conviction in Cause No. 12-14114 for Murder. On

April 28, 2014 a Pre-Trial Hearing was held. (Supplemental Reporter’s Record,

Volume 1 of 2). The Supplemental Reporter’s Record states that on April 29, 2014 a

Pre-Trial Motion and Voir Dire Hearing was held; however this date is the day after

the Written Plea Admonishment were signed by the Appellant. (Clerk’s Record, pgs.

5-6 and pgs. 29-31; Supplemental Reporter’s Record, Volume 2 of 2). Moreover, on

April 28, 2014, the Appellant pled guilty to said offense in the indictment (Clerk’s

Record, pgs. 5-6 and pgs. 29-31); however, the Reporter’s Record states that the Plea

hearing occurred on April 29, 2014. (Reporter’s Record, Vol. 2, pg. 5, lines 12-14).

Course of Proceedings

The indictment alleges that the offense of Murder occurred on or about March

27, 2012. (Clerk’s Record, pgs. 5-6). On April 28, 2014, the Appellant pled guilty to

said offense in the indictment (Clerk’s Record, pgs. 5-6 and pgs. 29-31); however, the

Reporter’s Record states that the Plea hearing occurred on April 29, 2014. (Reporter’s

Record, Vol. 2, pg. 5, lines 12-14). Additionally, Appellant orally affirmed to the trial

court during the plea hearing that he was pleading guilty of his own free choice and

that he did everything he was charged with in the indictment. (Reporter’s Record, Vol.

7 2, pg. 5, lines 23 thru pg. 6, line 3). Appellant was properly admonished pursuant to

Art. 26.13 of the Texas Code of Criminal Procedure at the time of the plea. (Clerk’s

Record, pgs. 29-31; Reporter’s Record, Vol. 2 pgs. 4-6 and Vol. 4). Under Art. 1.14

Tx.C.C.P., the Appellant gave up all rights to him by law, whether of from, substance

or procedure. Joined by his attorney, Appellant gave up his right to a jury in this case

and his right to the appearance, confrontation and cross examination of the witnesses.

(Clerk’s Record, pgs. 29-31). Written admonitions were signed by the Appellant.

(Clerk’s Record, pgs. 29-31). The Appellant orally represented to the court that he

understood everything he signed with his lawyer. (Reporter’s Record, Vol. 2 pg. 6,

lines 4-22). The Appellant’s plea was non-negotiated or un-agreed. (Reporter’s

Record, Vol. 2 pg. 5, lines 15-18). The Court found the evidence sufficient to find the

Appellant guilty and ordered a pre-sentence report. (Clerk’s Record, pgs. 29-31,

Reporter’s Record, Vol. 2 pg. 6). The pre-sentence report stated that the Appellant was

withdrawing his guilty plea because he “hasn’t been given proper due process” and

was “coerced into pleading guilty” by his attorney. (Clerk’s Record, pg. 47). At the

sentencing hearing on June 2, 2014, the Appellant’s counsel moved to withdraw the

Appellant’s guilty plea. (Reporter’s Record, Vol. 3, pg. 6, lines 15-16). The Court

denied Appellant’s motion to withdraw. (Reporter’s Record, Vol. 3, pg. 6, lines 17-20).

After arguments by the State and the Appellant, the Court sentenced the Appellant to

8 life in the Department of Corrections. (Clerk’s Record, pgs. 55-58). (Reporter’s

Record, Vol. 3, pg. 11, lines 14-16).

Counsel herein was appointed to represent Appellant on appeal.

9 ISSUES PRESENTED

There are no arguable points of error, fundamental or otherwise, upon which

Appellant could obtain relief from the conviction in the trial court below.

10 STATEMENT OF FACTS

This is an appeal from a conviction in Cause No. 12-14114 for Murder. On

April 28, 2014 a Pre-Trial Hearing was held. (Supplemental Reporter’s Record,

Volume 1 of 2). The Supplemental Reporter’s Record states that on April 29, 2014 a

Pre-Trial Motion and Voir Dire Hearing was held; however, this date is the day after

the Written Plea Admonishment were signed by the Appellant. (Clerk’s Record, pgs.

5-6 and pgs. 29-31; Supplemental Reporter’s Record, Volume 2 of 2). Moreover, on

April 28, 2014, the Appellant pled guilty to said offense in the indictment (Clerk’s

Record, pgs. 5-6 and pgs. 29-31); however, the Reporter’s Record states that the Plea

hearing occurred on April 29, 2014. (Reporter’s Record, Vol. 2, pg. 5, lines 12-14).

The indictment alleges that the offense of Murder occurred on or about March

27, 2012. (Clerk’s Record, pgs. 5-6). On April 28, 2014, the Appellant pled guilty to

said offense in the indictment (Clerk’s Record, pgs. 5-6 and pgs. 29-31); however, the

Reporter’s Record states that the Plea hearing occurred on April 29, 2014. (Reporter’s

Record, Vol. 2, pg. 5, lines 12-14). Additionally, Appellant orally affirmed to the trial

court during the plea hearing that he was pleading guilty of his own free choice and

that he did everything he was charged with in the indictment. (Reporter’s Record, Vol.

2, pg. 5, lines 23 thru pg. 6, line 3). Appellant was properly admonished pursuant to

Art. 26.13 of the Texas Code of Criminal Procedure at the time of the plea. (Clerk’s

11 Record, pgs. 29-31; Reporter’s Record, Vol. 2 pgs. 4-6 and Vol. 4). Under Art. 1.14

Tx.C.C.P., the Appellant gave up all rights to him by law, whether of from, substance

or procedure. Joined by his attorney, Appellant gave up his right to a jury in this case

and his right to the appearance, confrontation and cross examination of the witnesses.

(Clerk’s Record, pgs. 29-31). Written admonitions were signed by the Appellant.

(Clerk’s Record, pgs. 29-31). The Appellant orally represented to the court that he

understood everything he signed with his lawyer. (Reporter’s Record, Vol. 2 pg. 6,

lines 4-22). The Appellant’s plea was non-negotiated or un-agreed. (Reporter’s

Record, Vol. 2 pg. 5, lines 15-18). The Court found the evidence sufficient to find the

Appellant guilty and ordered a pre-sentence report. (Clerk’s Record, pgs. 29-31,

Reporter’s Record, Vol. 2 pg. 6). The pre-sentence report stated that the Appellant was

withdrawing his guilty plea because he “hasn’t been given proper due process” and

was “coerced into pleading guilty” by his attorney. (Clerk’s Record, pg. 47). At the

sentencing hearing on June 2, 2014, the Appellant’s counsel moved to withdraw the

Appellant’s guilty plea. (Reporter’s Record, Vol. 3, pg. 6, lines 15-16). The Court

denied Appellant’s motion to withdraw. (Reporter’s Record, Vol. 3, pg. 6, lines 17-20).

After arguments by the State and the Appellant, the Court sentenced the Appellant to

life in the Department of Corrections. (Clerk’s Record, pgs. 55-58). (Reporter’s

Record, Vol. 3, pg. 11, lines 14-16).

12 The Appellant filed notice of appeal on June 5, 2014. (Clerk’s Record, pg. 72).

The Court certified the Appellant’s right to appeal on June 5, 2014. (Clerk’s Record,

pg. 60). Counsel herein was appointed to represent Appellant on appeal, and files this

brief in that regard. No reversible error has been found in this case, as further detailed

in this brief.

13 SUMMARY OF THE ARGUMENT

There are no arguable points of error as further detailed in this brief.

ARGUMENT

After diligently reviewing the record (Reporter's Record and Transcript) in this

case and researching the law, appointed counsel herein has found no reversible error

committed by the trial court and no arguable grounds or error.

First, a nonnegotiated plea of guilty waives all nonjurisdictional defects

occurring prior to entry of the plea, but such a plea does not preclude a defendant from

challenging the voluntariness of his plea on appeal. (Harvill v. State, 13 S.W.3d 478,

2000 WL 221888, Tex.App.-Corpus Christi, February 24, 2000). Next, to be

constitutionally valid, a guilty plea must be knowing and voluntary. Moreover, a trial

court’s substantial compliance with the statute (Vernon’s Ann.Texas C.C.P. art. 26.13)

governing the required admonishments at plea hearings establishes a prima facie case

that the plea was valid. (Lord v. State, 63 S.W.3d 87, 2001 WL 1346401, Tex.App.-

Corpus Christi, November 01, 2001). When considering the voluntariness of a guilty

plea, an appellate court must examine the entire record. (Houston v. State, 201 S.W.3d

212, 2006 WL 2294495, Tex.App.- Hous. [14 Dist.], August 10, 2006). Pursuant to

Gomez v. State, 921 S.W.2d 329, 1996 WL 87107, Tex. App.-Corpus Christi, February

29, 1996, the voluntariness of a guilty plea is determined by the totality of

14 circumstances. Vernon’s Ann. Texas C.C.P. art. 26.13(b)

In light of the evidence in the record, the Appellant’s plea appears to voluntary

and the trial court substantially complied Vernon’s Ann. Texas C.C.P. art. 26.13

which governs the required admonishments at plea hearings. The record shows that the

indictment alleged the offense Murder occurred on or about March 27, 2012. (Clerk’s

Record, pgs. 5-6). And the record shows that on April 28, 2014, the Appellant pled

guilty to said offense in the indictment (Clerk’s Record, pgs. 5-6 and pgs. 29-31);

however, the Reporter’s Record states that the Plea hearing occurred on April 29,

2014. (Reporter’s Record, Vol. 2, pg. 5, lines 12-14). The recorded also shows that the

Appellant’s plea was non-negotiated or un-agreed. (Reporter’s Record, Vol. 2 pg. 5,

lines 15-18). Additionally, Appellant orally affirmed to the trial court during the plea

hearing that he was pleading guilty of his own free choice and that he did everything

he was charged with in the indictment. (Reporter’s Record, Vol. 2, pg. 5, line 23 thru

pg. 6, line 3). Moreover, written admonitions were signed by the Appellant. (Clerk’s

Record, pgs. 29-31; Reporter’s Record, Vol. 4). Furthermore, the Appellant orally

represented to the court that he understood everything he signed with his lawyer.

(Reporter’s Record, Vol. 2 pg. 6, lines 4-22). In the acknowledgement that Appellant

signed it states as follows:

Comes now the defendant, joined by my counsel, and states that I understand the

15 foregoing admonishments from the Court and I am aware of the consequences of my

plea. I am mentally competent and my plea is freely and voluntarily made. If counsel

was appointed, I give up and waive any time provided to me by law to prepare for trial.

I am totally satisfied with the representation provided to me by my attorney who

provided fully effective and competent legal representation. Applying the facts to the

rule, the record reflects that the Appellant was properly admonished pursuant to Art.

26.13 of the Texas Code of Criminal Procedure at the time of the plea. (Clerk’s

Record, Vol. pgs. 29-31; Reporter’s Record, Vol. 2 pgs. 4-6 and Vol. 4).

The record further shows that the Court found the evidence sufficient to find the

Appellant guilty and ordered a pre-sentence report. (Clerk’s Record, pgs. 29-31,

Reporter’s Record, Vol. 2 pg. 6). The pre-sentence report dated May 22, 2014 stated

that the Appellant was withdrawing his guilty plea because he “hasn’t been given

proper due process” and was “coerced into pleading guilty” by his attorney. (Clerk’s

Record, pg. 47). At the sentencing hearing on June 2, 2014, the Appellant’s counsel

moved to withdraw the Appellant’s guilty plea. (Reporter’s Record, Vol. 3, pg. 6, lines

15-16). The Court denied Appellant’s motion to withdraw. (Reporter’s Record, Vol. 3,

pg. 6, lines 17-20).

Pursuant to Saldana v. State, 150 S.W.3d 486, 2004 WL 524445, Tex.App.-

Austin, March 18, 2004, a defendant may withdraw his guilty plea as a matter of right

16 without assigning any reason until the judgment has been pronounced or the case has

been taken under advisement.

In Anderson v. State, Not Reported in S.W.3d, 2003 WL 21197260, Tex.App.-

Hous. (1Dist.), May 22, 2003, the Court held that denial of motion to withdraw plea,

brought after trial court had taken case under advisement and reset it for preparation of

pre-sentence investigation report, was not abuse of discretion. The record reflects that

the Appellant stated his intent to withdraw his plea in the pre-sentence report dated

May 22, 2014 and his attorney moved to withdraw his plea during sentencing June 2,

2014 after the Court made a finding of guilt and ordered a pre-sentence investigation

report on April 29, 2014. Applying the facts to the rule, the denial of Appellant’s

motion to withdraw his plea after trial court had taken the case under advisement and

reset it for preparation of pre-sentence investigation report, was not an abuse of the

trial court’s discretion.

Appellant pled guilty before the court. Appellant was properly admonished

pursuant to Art. 26.13 of the Texas Code of Criminal Procedure at the time of the plea.

Counsel herein has obtained, filed and reviewed the reporter's record from the plea

and found no reversible error, fundamental or otherwise. The trial court assessed

punishment in the hearing with the absence of fundamental error. Counsel reviewed the

indictment, pleadings, the plea proceedings and all other matters in the record. No

17 authority has been found to indicate an abuse of discretion on the part of the trial court

in accepting Appellant plea and pronouncing sentence.

The Appellant has raised a claim of ineffective assistance against his trial

counsel; however, I could not find anything in the record to raise that claim on appeal.

If the Court disagrees with appointed counsel herein, then this appeal should be

abated in the interest of justice, and counsel herein should be directed to prepare a brief

to particularize any complaint of Appellant, which the court finds to be meritorious.

Counsel herein further urges the Court to fully consider any contention of Appellant,

which he may choose to raise pro se, after he receives and review the matter of record

herein.

Respectfully submitted,

/s/ Terrence Leon Holmes _______________________________ TERRENCE LEON HOLMES 455 Milam Street Beaumont, Texas 77701 TBN: 09908486 (409) 832-6041 (409) 832-6078 FAX Email: terrencelholmes@aol.com

18 NO. 13-14-00380-CR On Appeal in Cause No. 12-14114

LAWRENCE JAMES, JR § IN THE COURT OF APPEALS Appellant § § VS. § THIRTEENTH DISTRICT § § THE STATE OF TEXAS, § Appellee § CORPUS CHRISTI, TEXAS

CERTIFICATE OF COUNSEL

In compliance with the requirements of High v. State, 573 S. W. 2d 807 (Tex. Crim. App. 1978), Anders v. California, 366 U. S. 738 1967) and Gainous v. State, 436 S. W. 2d 737 (Tex. Crim. App. 1969) the appointed counsel of record herein for LAWRENCE JAMES, JR, on the appeal states that he has diligently reviewed the entire appeal record in this case and the law applicable thereto and, in his opinion, the appeal from the judgment and sentence and all proceedings appurtenant thereto is without merit and is frivolous because the record reflects no reversible error. Further, it is the opinion of counsel herein that there are no grounds upon which an appeal can be predicated pertaining to the indictment or trial hereof. Counsel herein has served a copy of this brief on Appellant at the time of its filing. At the time, counsel informed Appellant by accompanying letter that it is the opinion of counsel that the appeal is without merit, and that he personally has the right to view the record and file a pro-se brief raising any ground or error or complaint which he may desire. Counsel herein has filed a motion to extend the time to file a brief, requesting that the Appellant be afforded an additional 30 days from the date he may receive 19 the record herein or 30 days from the date of filing of said motion, in order to file a pro-se brief if he so chooses.

Respectfully submitted,

/s/ Terrence Leon Holmes _______________________________ TERRENCE LEON HOLMES 455 Milam Street Beaumont, Texas 77701 TBN: 09908486 (409) 832-6041 (409) 832-6078 FAX Email: terrencelholmes@aol.com

ATTORNEY FOR APPELLANT

20 CERTIFICATE OF COMPLIANCE WITH RULE 9.4

I hereby certify that this document complies with the requirements of Tex. R.

App. Proc. 9.4(i)(2)(B) because there are 2020 words in this document, excluding the

portions of the document excepted from the word count under rule 9(i)(1), as

calculated by the MS Word computer program used to prepare it.

_______________________________ /s/ Terrence Leon Holmes TERRENCE LEON HOLMES 455 Milam Street Beaumont, Texas 77701 Email: terrencelholmes@aol.com (409) 832-6041 (409) 832-6078 FAX

21 CERTIFICATE OF SERVICE

I do hereby certify that on February 23, 2015, a true and correct copy of the

foregoing Anders Brief for Appellant was submitted by telecopy (409) 835-8573 via

efile to, Waylyn G. Thompson, Assistant Criminal District Attorney, and a true and

correct copy was mailed via regular US Mail to LAWRENCE JAMES, JR, TDCJ#

01940637, Eastham Unit, 2665 Prison Road #1, Lovelady, Texas 75851.

/s/ Terrence Leon Holmes ______________________________ TERRENCE LEON HOLMES 455 Milam Street Beaumont, Texas 77701 Email: terrencelholmes@aol.com (409) 832-6041 (409) 832-6078 FAX