Margaret Jane Griffith v. State

Opinion

ACCEPTED 04-15-00358-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 11/18/2015 7:34:34 PM KEITH HOTTLE CLERK

Court of Appeals Nos. 04-15-00358-CR & 04-15-00359-CR Trial Court Cause Nos. B09-09 & B08-578 FILED IN 4th COURT OF APPEALS IN THE FOURTH SUPREME JUDICIAL DISTRICT SAN ANTONIO, TEXAS 11/18/15 7:34:34 PM COURT OF APPEALS KEITH E. HOTTLE Clerk SAN ANTONIO, TEXAS

_______________________

MARGARET JANE GRIFFITH

v.

THE STATE OF TEXAS _______________________

APPEALED FROM THE 198TH JUDICIAL DISTRICT COURT, KERR COUNTY, TEXAS Honorable Rex Emerson, Presiding _____________________________________________________________

APPELLANT’S BRIEF _____________________________________________________________

M. Patrick Maguire State Bar No. 24002515 M. Patrick Maguire, P.C. mpmlaw@ktc.com 945 Barnett Street Kerrville, Texas 78028 Telephone (830) 895-2590 Facsimile (830) 895-2594

ATTORNEY FOR APPELLANT, MARGARET JANE GRIFFITH TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL 2

INDEX OF AUTHORITIES 4

STATEMENT OF THE CASE 5

ISSUES PRESENTED 6

SUMMARY OF THE ARGUMENTS 7

CERTIFICATE OF COMPLIANCE WITH TRAP 9.4 8

STATEMENT OF FACTS 9

ARGUMENTS & AUTHORITIES 11

ISSUE 1: Undersigned counsel files this “Anders” Brief after a thorough review of the appellate record in these cases and no meritorious issues were found to bring forward for review. 11

PRAYER FOR RELIEF 15

CERTIFICATE OF SERVICE 16

1 Court of Appeals Nos. 04-15-00358-CR & 04-15-00359-CR Trial Court Cause Nos. B09-09 & B08-578

IN THE FOURTH SUPREME JUDICIAL DISTRICT

COURT OF APPEALS

SAN ANTONIO, TEXAS

THE STATE OF TEXAS _____________________________________________________________

IDENTITY OF PARTIES & COUNSEL _____________________________________________________________

Appellant certifies that the following is a complete list of the parties, attorneys, and any other person who has any interest in the outcome of this appeal:

Appellant: Margaret Jane Griffith

Appellee: The State of Texas

Attorney for Appellant: M. Patrick Maguire M. Patrick Maguire, P.C. 945 Barnett Street Kerrville, Texas 78028

Attorney for Appellee: Hon. Scott Monroe 198th Judicial District Attorney 400 Clearwater Paseo, Suite 500 Kerrville, Texas 78028

2 Trial Judge: Hon. Rex Emerson 198th Judicial District Judge 700 Main Street Kerrville, Texas 78028

3 INDEX OF AUTHORITIES

CASES

Anders v. California, 386 U.S. 738 (1967) 11

Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997) 13

Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993) 12

Kelly v. State, 436 S.W.3d 212 (Tex. Crim. App. 2014) 11

McMahon v. State, 529 S.W.2d 771 (Tex. Crim. App. 1975) 11

Moses v. State, 590 S.W.2d 469 (Tex. Crim. App. 1979) 12

Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006) 12

Sears v. State, 91 S.W.3d 451 (Tex. App.—Beaumont 2002, no pet.) 14

Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) 11

Villescas v. State, 189 S.W.3d 290 (Tex. Crim. App. 2006) 14

STATUTES

Tex. Code Crim. Proc. art. 42.12 §5(b) 12

4 STATEMENT OF THE CASE

Appellant, Margaret Jane Griffith, is appealing the trial court’s

decision to adjudicate Appellant’s deferred adjudication probation in the

above-referenced causes after Appellant pled “true” to allegations contained

in the State’s motions to proceed.

5 APPELLANT'S ISSUES PRESENTED FOR REVIEW

I. Undersigned counsel files this “Anders” Brief after a thorough review of the appellate record in these cases and no meritorious issues were found to being forward for review.

** For purposes of reference in the Appellant’s Brief the following will be the style used in referring to the record:

1. Reference to any portion of the Court Reporter’s Statement of Facts will be denoted as “(RR____, ____),” representing volume and page number, respectively.

2. The Transcript containing the District Clerk’s recorded documents will be denoted as “(CR___, ___).”

6 SUMMARY OF THE ARGUMENTS

After a thorough review of both the Clerk’s Record and the Reporter’s

Record no meritorious issues were found to bring forward for review.

7 CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

I certify that this brief contains 2,007 words (counting all parts of the

document and relying upon the word count feature in the software used to

draft this brief). The body text is in 14 point font and the footnote text is in

12 point font.

/s/ M. Patrick Maguire M. Patrick Maguire, Attorney for Appellant

8 STATEMENT OF FACTS

On November 2, 2009, Appellant was placed on ten years deferred

adjudication in Cause No. B08-578 for the second degree felony offense of

Possession of a Controlled Substance. CR 1, 12. On that same date,

Appellant was also placed on ten years deferred adjudication in Cause No.

B09-09 for the first degree felony offense of Possession of a Controlled

Substance. CR 1, 12. On October 11, 2012, the State filed Motions to

Proceed in each of Appellant’s cases seeking to adjudicate Appellant guilty

of the underlying offenses and sentence Appellant to a term of confinement

in the Texas Department of Criminal Justice – Institutional Division. CR 1,

16.

On April 20, 2015, the trial court held a hearing on the State’s

Motions to Proceed. RR 1, 1. Appellant entered a plea of “true” to all of the

allegations contained in the Motions to Proceed. RR 1, 6-7. The State then

presented evidence that Appellant was previously convicted of four separate

felony offenses prior to committing the offenses that were before the trial

court. RR 1, 11-12. The evidence of the prior felony offenses was

introduced without objection by Appellant. RR 1, 12. The State then rested.

Appellant testified on her own behalf. RR 1, 13. Appellant also

called an acquaintance, Ted Stokely, to testify. RR 1, 22.

9 The trial court found the allegations contained in the State’s Motion to

Proceed true, adjudicated Appellant guilty of the underlying offenses and

sentenced Appellant to 15 years imprisonment in Cause No. B08-578 and 40

years imprisonment in Cause No. B09-09. RR 1, 30-32.

10 ARGUMENTS & AUTHORITIES

I. Undersigned counsel files this “Anders” Brief after a thorough review of both the Clerk’s Record and the Reporter’s Record in these cases and no meritorious issues were found to bring forward for review.

A. Standard of Review

If, after a thorough review of the record and careful investigation,

appellate counsel concludes that an appeal is frivolous and without merit,

counsel may submit a brief which presents a professional evaluation

showing why there is no basis to advance an appeal. See Anders v.

California, 386 U.S. 738, 744 (1967); See Stafford v. State, 813 S.W.2d 503,

509-10, 510 n.3 (Tex. Crim. App. 1991). Appellate counsel should also

inform the appellant that he has a right to file a pro se appellate brief and

review the record. See McMahon v. State, 529 S.W.2d 771, 771 (Tex. Crim.

App. 1975). Finally, appellate counsel must take steps to ensure that the

appellant has access to the appellate record to exercise his right to file a pro

se brief, if appellant desires. Kelly v. State, 436 S.W.3d 212 (Tex. Crim.

App. 2014).

B. Analysis

Undersigned counsel for Appellant has conducted a thorough review

of the clerk’s record and reporter’s record and has determined that

Appellant’s appeal is frivolous and without merit.

11 Sufficiency of the Evidence

Undersigned counsel first reviewed the sufficiency of the evidence to

support the trial court’s judgment adjudicating Appellant’s deferred

adjudication probation and supporting the sentencing range. An appeal from

a trial court’s order adjudicating guilt is reviewed in the same manner as a

revocation hearing. Tex. Code Crim. Proc. art 42.12 §5(b). When

reviewing an order revoking community supervision imposed, the sole

question before the appellate court is whether the trial court abused its

discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).

In a revocation proceeding, the State must prove by a preponderance of the

evidence that the probationer violated a condition of community supervision

as alleged in the motion. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim.

App. 1993). A plea of “true” standing alone is sufficient to support a trial

court’s revocation order. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim.

App. 1979). The record shows that Appellant pled “true” to all allegations

contained in the State’s Motions to Adjudicate. RR 1, 6-7. Therefore, there

is sufficient evidence supporting the trial court’s judgment adjudicating

Appellant guilty of the underlying offenses.

The next issue reviewed was the appropriateness of the sentences

assessed. The State introduced, without objection, judgments of conviction

12 establishing that Appellant had been convicted at least twice prior to the

commission of the underlying offenses before the trial court. RR 1, 11-12.

The sentences assessed are within the punishment ranges for the offenses

charged and the sequencing of these convictions appears to be in order.

Therefore, there does not appear to be error in the trial court’s action in this

regard.

Enhancement Notice

The record does not contain any notice that the State was going to use

particular convictions that were used for enhancement purposes. Although

the clerk’s record reflects that the State filed a notice to use the convictions

for extraneous offense purposes, there was nothing filed by the State to

indicate that the State was using these convictions for enhancement

purposes. Additionally, there were no enhancement paragraphs included in

the original indictments or in the original plea paperwork executed by

Appellant when she originally entered her guilty pleas. CR 1, 7-15.

Because the issue of enhancement is delayed until punishment, it is

not mandatory that enhancement allegations appear in the indictment or

information but it is necessary to provide reasonable notice of the State’s

intent to enhance. Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App.

1997). In other words, prior convictions used for enhancement must be pled

13 in some form, it is just not necessary to plead them in the indictment. Id.

The exact time period for the required notice has not been specified,

although at least one court of appeals has suggested that 10 days’ notice is

appropriate because this time period is considered sufficient in a number of

other circumstances. Sears v. State, 91 S.W.3d 451, 453-54 (Tex. App.—

Beaumont 2002, no pet.).

The “extraneous offense” notice filed by the State does not constitute

proper notice of intent to enhance Appellant’s punishment using these

convictions. Sears, 91 S.W.3d at 453-54. An error in this regard is of

constitutional dimension. Villescas v. State, 189 S.W.3d 290, 294 (Tex.

Crim. App. 2006). In order to raise this issue on appeal, the issue must be

properly preserved by Appellant. Sears, 91 S.W.3d at 453. (appellant timely

lodged objection to untimely notice); Villescas, 189 S.W.3d at 294 (noting

U.S. Supreme Court’s rejection of due process claims when defendant failed

to raise any matters in defense or to obtain a continuance to investigate the

existence of any possible defense).

In this case, Appellant’s trial counsel did not raise any objections or

seek a continuance based upon the lack of notice.1 Therefore, this issue does

not appear to be cognizable on appeal.

1 Because the record is silent as to trial counsel’s reasons for not objecting, the record in this appeal is insufficient to develop a claim for ineffective assistance of counsel.

14 After reviewing the entire record in this case, undersigned counsel has

found no meritorious issues to bring forward for review. By copy of this

brief, undersigned counsel is advising Appellant that he has the right to

review the record and to file a pro se brief. Additionally, Appellant certifies

that he has forwarded copies of the clerk’s record and reporter’s record to

Appellant.

After reviewing the entire record in this case, undersigned counsel has

found no meritorious issues to bring forward for review. By copy of this

brief, undersigned counsel is advising Appellant that he has the right to

review the record and to file a pro se brief. Additionally, Appellant certifies

that he has forwarded copies of the clerk’s record and reporter’s record to

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that this Honorable Court permit undersigned counsel to withdraw

from further representation of Appellant in this case and permit Appellant

the necessary time to review the record and file a pro se brief.

15 Respectfully submitted,

M. PATRICK MAGUIRE, P.C.

/s/ M. Patrick Maguire M. Patrick Maguire State Bar No. 24002515 945 Barnett Street Kerrville, Texas 78028 Telephone (830) 895-2590 Facsimile (830) 895-2594

ATTORNEY FOR APPELLANT, MARGARET JANE GRIFFITH

CERTIFICATE OF SERVICE

I hereby certify that I have served a true and correct copy of Appellant's Brief to counsel for the State, Hon. Scott Monroe, via electronic transmission at scottm@198da.com, and whose address is 400 Clearwater Paseo, Suite 500, Kerrville, on this the 18th day of November, 2015.

/s/ M. Patrick Maguire M. Patrick Maguire