ACCEPTED 06-16-00061-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 6/30/2016 12:18:29 PM DEBBIE AUTREY CLERK
No. 06-16-00061-CR FILED IN 6th COURT OF APPEALS In The TEXARKANA, TEXAS 6/30/2016 12:18:29 PM DEBBIE AUTREY Clerk Court of Appeals
Sixth District of Texas
Texarkana, Texas
MARION RAYMON CRENSHAW V. THE STATE OF TEXAS
Appellant’s Brief
(Filed Pursuant To Anders v. California)
Damara H. Watkins Attorney for Appellant 1541 Princeton Drive Corsicana, Texas 75110 Telephone(903)641-2595 Facsimile (903)872-6456 damarawatkins@gmail.com State Bar No. 00787740
BRIEF OF APPELLANT Page 1 IDENTITY OF PARTIES AND COUNSEL
Trial Judge: Hon. James Lagomarsino 13th Judicial District Court Navarro County 800 N. Main St. Corsicana, Texas 75110
Appellant: MARION RAYMON CRENSHAW
Appellant’s trial counsel: Daniel Biltz Attorney at Law 417 W. Collins Corsicana, Texas 75110
Appellants’ appellate counsel: Damara H. Watkins Attorney at Law 1541 Princeton Drive Corsicana, Texas 75110
State’s counsel: Will Thompson Asst. Criminal District Attorney Navarro County 800 N. Main St. Corsicana, Texas 75110
BRIEF OF APPELLANT Page 2 TABLE OF CONTENTS
Cover Page………………………….……………………………………..……….1
Identity of Parties……………….…………………………………………..……...2
Table of Contents………………………………………………………….….....…3
Index of Authorities……………………………………………………….……….4
Statement of the Case……………………….………………………………….…..6
Statement Regarding Oral Argument………………………………………………6
Issue Presented………………………………………………..…………….……...7
Statement of Facts…………………………………….……………………………7
Summary of the Argument…………………………………………………….…...8
Argument…………………………………………………………………….….....8
Prayer……………………………………………………………………………..18
Certificate of Compliance…..…………………………….……………………....18
Certificate of Service…..…………………………………………………………19
Appendix
Anders Letter to Client….………………………………………………….20
BRIEF OF APPELLANT Page 3 INDEX OF AUTHORITIES
Adams v. State, 707 S.W.2d 900 (Tex. Crim. App. 1986)
Anders v. California, 386 U.S. 738(1967)
Beal v. State, 91 S.W.3d 794,795 (Tex.Crim.App. 2002)
Cartwright v. State, 833 S.W.2d 134, 135 (Tex.Crim.App. 1992)
Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim. App. 1989)
Duran v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997).
Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985)
Ex Parte Rich, 194 S.W.3d 508, 513-514 (Tex.Crim.App. 2006)
Flowers v. State, 220 S.W.3d 919, 922 (Tex.Crim.App. 2007)
Hampton v. State, 165 S. W.3d 691, 693 (Tex.Crim.App. 2005)
Harmelin v. Michigan, 501 U.S. 957 (1991)
Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983)
Harrison v. State, 950 S. W.2d 419, 421 (Tex. App.- Houston [1st Dist.] 1997, pet. ref
‘d)
Harvey v. State, 611 S.W.2d 108, 111 (Tex.Crim.App. 1981 )
Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986)
High v. State, 573 S.W.2d 807(Tex. Crim. App. 1978)
Jackson v. Virginia, 443 U.S. 307, 319 (1979)
BRIEF OF APPELLANT Page 4 Johnson v. State, 583 S.W.2d 399,403 (Tex.Crim.App [Panel Op.] 1979)
Knight v. State, 481 S.W.2d 143 (Tex.Crim.App. 1972)
Lugo v. State, 299 S. W.3d 445, 455-56 (Tex. App.- Fort Worth 2009, pet. ref’d )
Magic v. State, 217 S. W.3d 66, 70 (Tex. App.- Houston [1st Dist.] 2006, no pet.)
Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997)
Martinez v. State, 981 S.W.2d 195 (Tex. Crim. App.1998)
Mikel v. State, 167 S.W.3d 556 (Tex.App.- Houston [141h Dist.] no pet.).
Potts v. State, 571 S.W.2d 180 (Tex.Crim.App. 1978)
Sanchez v. State, 120 S.W.3d 359, 364 (Tex. Crim. App. 2003)
Sanders v. State, 785 S.W.2d 445 (Tex.App.- San Antonio 1990, no pet.) Sexton v.
State, 476 S.W.2d 320 (Tex.Crim.App. 1972)
Solo v. State, 456 S.W.2d 389 (Tex.Crim.App. 1970)
Sprinkle v. State, 456 S.W.2d 387 (Tex.Crim.App. 1970)
Strickland v. Washington, 466 U.S. 668, 687 (1984)
Waage v. State, 456 S.W.2d 388 (Tex.Crim.App. 1970)
Williams v. State, 209 S.W.3d 124 (Tex. App.- Texarkana 2010)
Wilson v. State, 671 S.W.2d 524,525 (Tex.Crim.App. 1984)
Young v. State, 14 S.W.3d 748,750 (Tex.Crim.App. 2000)
BRIEF OF APPELLANT Page 5 Tex. Code Crim. Proc. Ann. art 21.02
Tex. Code Crim. Proc. Ann. art. 26.13(b)
Tex. Health & Safety Code 481.112(c)
TEX.R.APP. PROC. 33.1
TEX. CONST. Art. I, § 13
TEX. CONST. Art. V § 12
U.S. CONST. art. VIII
STATEMENT OF THE CASE
Appellant was indicted for the offense of Possession of a Controlled Substance
with Intent to Deliver Over 1 gram under 4 grams in D36,179 in the 13th Judicial
District Court of Navarro County, Texas. (Clerk’s Record [CR] 13). On November 6,
2015, Appellant entered a plea of guilty (Reporter’s Record [RR] Volume 5) and went
open to the Court for punishment. (CR 44, 47). The Court ordered a Pre-Sentence
Investigation and recessed for the completion of that report. (5 RR 6). After a short
punishment hearing on December 18, 2015, the court sentenced Appellant to 6 years
TDCJ. The Judgement and Sentence was entered on December 23, 2015 (CR 53).
STATEMENT REGARDING ORAL ARGUMENT
No oral argument is requested.
BRIEF OF APPELLANT Page 6 ISSUE PRESENTED
Whether there are any grounds for appeal that are warranted by existing law or by a good faith argument for the extension, modification or reversal of existing law?
STATEMENT OF FACTS
Appellant was indicted for the offense of Possession of a Controlled Substance with
Intent to Deliver Over 1 gram under 4 grams in D36,179 in the 13th Judicial District
Court of Navarro County, Texas. (CR 13). Appellant was found to be indigent and
Rhett Darby was appointed to represent him. (CR 9). Mr. Darby filed an Omnibus Pre-
trial Motion and a Motion to Suppress. (CR 15, 21). These Motions were set for a
hearing on July 1, 2015. (CR 15, 21). After a Motion to Continue filed by the
Appellant was granted, the Motion to Suppress came to be heard on July 7, 2015 and at
the hearing, the State requested a continuance on the hearing which was granted by the
court. (2 RR 3). Although not a part of the record, Mr. Darby passed away after this
hearing and new counsel was appointed. (CR 33). On November 6, 2015, Appellant
entered a plea of guilty (5 RR) and went open to the Court for punishment. (CR 44,
47). The Court ordered a Pre-Sentence Investigation and recessed for the completion
of that report. (5 RR 6). After a short punishment hearing on December 18, 2015, the
court sentenced Appellant to 6 years TDCJ. The Judgement and Sentence was entered
on December 23, 2015 (CR 53). Appellant filed a motion for new trial and general
BRIEF OF APPELLANT Page 7 notice of appeal on January 19, 2016 and March 17, 2016 respectively. (CR 59, 65).
The court denied the Motion for New Trial on February 24, 2016 without a hearing.
(CR 64). The Trial Court’s Certification of the Defendant’s Right of Appeal filed with
at the time of the plea indicates that Appellant waived his right to appeal. However, a
new certification was filed upon appeal that corrects the error and indicates that this
was not a plea bargained case so Appellant has maintained the right to appeal. (CR46,
69). Finally, the Judgement reflects that Appellant is to be responsible for court
appointed attorney fees, but there is no new finding that the Appellant is not indigent.
(CR 53).
SUMMARY OF THE ARGUMENT
After full examination of the record of the above-referenced case and conducting
legal research to determine the existence of any grounds for appeal that are warranted
by existing law or by a good faith argument for the extension, modification, or reversal
of existing law, the undersigned counsel has been unable to find any such grounds and
requests this Court to review the record to determine if reversible error has been
committed by the trial court in this case.
ARGUMENT
After full examination of the record of the above-referenced cases and conducting
legal research to determine the existence of any grounds for appeal that are warranted
BRIEF OF APPELLANT Page 8 by existing law or by a good faith argument for the extension, modification or reversal
of existing law, the undersigned has been unable to find any such grounds and
therefore is filing this Brief pursuant to the holdings in Anders v. California, 386 U.S.
738(1967). The undersigned requests this Court to review the record to determine if
any reversible error has been committed by the trial court in the above-referenced
cases. The undersigned, court-appointed counsel, has conducted a thorough
examination of this case, including the reporter’s record, clerk’s record, relevant cases,
and statutes. After conscientious examination, however, she finds the appeal to be
wholly frivolous. Counsel is unable to identify an issue with sufficient merit to support
a meaningful argument for relief on appeal. Counsel therefore respectfully requests the
Court to fully examine the record on appeal for possible prejudicial error and to
determine whether counsel overlooked any issue, in accord with Anders v. California,
386 U.S. 738 (1967); High v. State, 573 S.W.2d 807(Tex. Crim. App. 1978).
Counsel has sent a copy of this brief with a cover letter to Defendant by first class
mail. The cover letter advises Defendant of his right to file supplemental arguments on
his own behalf and provides him with the address of the court. Counsel has also
provided copies of the Clerk’s Record and the Reporter’s Record. A copy of the letter
is attached in the Appendix to this Brief. Counsel respectfully asks the Court grant
Defendant sufficient time to raise any points that he chooses in support of this appeal.
BRIEF OF APPELLANT Page 9 In accordance with Anders, supra, counsel submits this brief to provide what
assistance she can to the Court reviewing this matter for possible error. Counsel directs
the court’s attention to the following issues that should be reviewed in any appeal after
a plea of guilty and other issues raised by trial counsel in the sentencing hearing.
1. Sufficiency of the indictment.
The Texas Court of Criminal Appeals has held that an instrument is an indictment
"if it accuses someone of a crime with enough clarity and specificity to identify the
penal statute under which the State intends to prosecute, even if the instrument is
otherwise defective." Duran v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997).
Since the 1985 amendments to Article V, Section 12(b), of the Texas Constitution, and
Article 1.14(b) of the Texas Code of Criminal Procedure, an Appellant has had the
affirmative duty to object to any defect in the indictment before trial. Failure to do so
will prevent him from raising a claim of a defect for the first time on appeal. Sanchez v.
State, 120 S.W.3d 359, 364 (Tex. Crim. App. 2003). The only exception to this rule is
when there is a violation of a fundamental right, such as when the trial court lacked
jurisdiction on the face of the indictment. Id. at 365. When a trial court errs in
overruling a challenge to the indictment, such as through a motion to quash, a
conviction may nevertheless be affirmed so long as the defect did not prejudice the
defendant’s substantial rights. Adams v. State, 707 S.W.2d 900 (Tex. Crim. App.
BRIEF OF APPELLANT Page 10 1986), as cited in Sanchez at 365.
Appellant was indicted for Possession of a controlled substance with intent to
deliver – penalty group 1 – over one gram under 4 grams by a Navarro County Grand
Jury. The indictment appears to be valid on its face and carries the signature of the
purported Foreperson of the Grand Jury. Tex. Code Crim. Proc. Art 21.02. The
language of the indictment is consistent with Section 481.112(c) of the Texas Health
and Safety Code and alleges all required elements of the offense as contained in that
statute. The indictment is sufficient and conferred jurisdiction upon the trial court.
TEX. CONST. Art. V § 12; Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App.
1989). (CR 16). There are no apparent grounds of appeal based on the indictment
language.
2. Any adverse pretrial rulings affecting the course of the trial, including but not
limited to rulings on motions to suppress, motions to quash, and motions for a
speedy trial.
Appellant’s first counsel filed an Omnibus Pre-Trial Motion and a Motion to
Suppress, and an Amended Motion to Suppress. (CR 15, 21, 27 ). However, these
motions were never heard or ruled upon. No other motions or objections were located
within the record. Further, Appellant waived all previously filed Motions and
objections when he entered his plea on November 6, 2015. (CR 47). Thus, there are no
BRIEF OF APPELLANT Page 11 grounds for review based upon any adverse pretrial rulings.
3. Whether the issue of competency was raised prior to sentencing, so as to warrant
an inquiry by the court, and whether appellant was mentally competent when the
court accepted the plea.
There is no indication from the record that the issue of competency was raised prior
to sentencing so as to warrant an inquiry by the court. However, the court did inquire
of trial counsel as to whether Appellant had said or done anything to suggest that
incompetency might be an issue. Trial counsel answered in the negative. The trial
court affirmatively found Appellant competent. (5 RR 5).
4. Whether appellant’s plea was freely and voluntarily made.
5. Compliance with Texas Code of Criminal Procedure article 26.13 and, if
appropriate, Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
Counsel recognizes the separate and distinct character of the possible arguments
stated in issues 4 and 5 above. However, because they are factually intertwined,
counsel will discuss these issues together. A plea of guilty must be entered voluntarily
and freely. Tex .Code. Crim. Proc. Ann. art. 26.13(b). In considering the voluntariness
of a guilty plea, the appellate court examines the record as a whole. Martinez v. State,
981 S.W.2d 195 (Tex. Crim. App.1998). A showing in the record that a defendant was
admonished by the trial court creates a prima facie showing that the plea was entered
BRIEF OF APPELLANT Page 12 knowingly and voluntarily. Id. The burden then shifts to the defendant to show that he
entered the plea without understanding the consequences of his action and was harmed
as a result. Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985). A
defendant who is properly admonished by the trial court bears the heavy burden of
proving that his plea was entered involuntarily. Martinez v. State, 981 S.W.2d 195
(Tex. Crim. App. 1998). Prior to accepting Appellant's plea of guilty, the court
inquired as to the voluntariness of the plea. (5 RR 3). Appellant replied that he was
entering his plea freely and voluntarily. (5 RR 3). The record contains written
admonishments pertaining to the consequences of his plea of guilty which substantially
comply with the terms of Tex. Code Crim. Proc. Ann. art. 26.13. These
admonishments were signed by Appellant. (CR 44). Additionally, Appellant was orally
admonished by the trial court as to the proper range of punishment and his right to a
trial by jury. (5 RR 4). After a complete review of the record, the undersigned attorney
is satisfied that Appellant was properly admonished and that this plea was made both
freely and voluntarily.
6. Any adverse rulings during the sentencing hearing on objections or motions.
7. Any failure on the part of appellant’s trial counsel to object to fundamental
error.
During the sentencing hearing, two witnesses were called to testify. Trial counsel
BRIEF OF APPELLANT Page 13 did not make any objections during this hearing. Further counsel has been unable to
locate any failure on the part of appellant’s trial counsel to object to fundamental error.
8. Whether the sentence imposed was within the applicable range of punishment.
Appellant was sentenced to 6 years TDCJ which is well within the 2 – 20 year range
for a second degree felony. (6 RR 40 ). The punishment assessed is within the range
established by the Legislature, and, as such, does not violate the constitutional
prohibitions against cruel and unusual punishment under either U.S. CONST. art. VIII
or TEX. CONST. art. I, § 13; Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App.
1983). Nor does counsel discern anything in the record to suggest that the punishment
assessed is grossly disproportionate to the crime. See Harmelin v. Michigan, 501 U.S.
957 (1991). Appellant did not object to the Court’s imposing the sentence. Therefore,
he has failed to preserve error, if any, pursuant to TEX.R.APP. PROC. 33.1.
9. Whether the written judgment accurately reflects the sentence that was imposed
and whether any credit was properly applied.
The written judgment accurately reflects the sentence that was imposed and there is
no indication in the record that Appellant did not received back time credit to which he
was entitled. (CR 53). However, the judgement does recite that Appellant is
responsible for court appointed attorney fees. This is improper in that there was an
initial finding of indigence, and there was no subsequent finding of ability to pay.
BRIEF OF APPELLANT Page 14 Counsel suggests that the judgement should be reformed by this court to delete this
requirement.
10. Whether there is evidence to support a guilty plea in a felony case.
This Anders brief must address two distinct issues concerning sufficiency of the
evidence - the sufficiency of the evidence to support the Appellant's conviction and the
sufficiency of the evidence with respect to the enhancement paragraph enhancing the
range of punishment. With regard to the conviction, the Appellant entered into a
judicial confession in which he admitted his guilt to the indicted offense. (CR 44).
Then, on the record and in open-court, the Appellant also voluntarily pleaded guilty to
the indicted offense. (5 RR 3). Neither the Reporter's Record nor the Clerk's Record
indicates any irregularities in the plea hearing from counsel's diligent and thorough
review of the complete records. A complete, diligent, and thorough review of the
record in this matter reveals that it is clear that there was sufficient evidence for the
trial court to find Appellant guilty of the offense.
A. Standard of Review - Conviction
In reviewing the sufficiency of the evidence to support a conviction, a court of
appeals reviews all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential elements of
the crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
BRIEF OF APPELLANT Page 15 Hampton v. State, 165 S. W.3d 691, 693 (Tex.Crim.App. 2005). So long as judicial
confessions or stipulations of evidence concerning guilt cover all of the statutory
elements of the charged offenses, they will suffice to support the guilty plea. See
Sprinkle v. State, 456 S.W.2d 387 (Tex.Crim.App. 1970); Waage v. State, 456 S.W.2d
388 (Tex.Crim.App. 1970); Solo v. State, 456 S.W.2d 389 (Tex.Crim.App. 1970);
Sexton v. State, 476 S.W.2d 320 (Tex.Crim.App. 1972); Knight v. State, 481 S.W.2d
143 (Tex.Crim.App. 1972); Potts v. State, 571 S.W.2d 180 (Tex.Crim.App. 1978).
Here, Appellant entered a judicial confession admitting guilt to the offense as alleged
in the indictment. The indictment for possession of a controlled substance tracks the
statutory language in the Texas Health and Safety Code constituting the legal elements
of the crime. The Appellant entered a guilty plea to the offense on the record and in
open-court. A claim of insufficient evidence to support the Appellant's conviction
would not prevail because the record reflects that the specific facts of the incident
giving rise to the Appellant's arrest, and later indictment, is legally sufficient to support
the Appellant's conviction, because the Appellant signed a judicial confession
admitting his guilt, and because the Appellant pleaded guilty to the offense on the
record in open-court, this Court has no rationale for finding the evidence of the
Appellant's conviction insufficient. As such, under controlling authority, a claim
against the sufficiency of the evidence in this regard is frivolous and would not prevail.
BRIEF OF APPELLANT Page 16 Examination of the record to determine if the appellant was denied effective
assistance of counsel.
The undersigned attorney has reviewed the performance of trial counsel. The record
reflects that Appellant received reasonably effective assistance of trial counsel, based
on the standards of Strickland v. Washington, 466 U.S. 668, 687 (1984) and Hernandez
v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). Counsel did file a Motion for
New Trial based on Ineffective Assistance of Counsel. However, the trial court denied
this Motion without a hearing. The substance of that claim is that Appellant was
improperly advised that he would get probation. Counsel understands that upon this
record, the Court of Appeals would not have enough information to determine the
claim of Appellant without trial counsel being afforded the opportunity to explain or
refute the claims made by Appellant. Since no hearing was held, Appellant’s best
strategy is to save the ineffective assistance of counsel claim, if any, for a post-
conviction writ of habeas corpus.
In conclusion, in the undersigned attorney's professional opinion, Appellant
received a fair trial free from reversible error. For this reason and for the further
reasons stated in this brief, counsel believes that an appeal in this case is without merit.
BRIEF OF APPELLANT Page 17 CERTIFICATE OF COMPLIANCE
Appellant certifies that the above and foregoing Brief of Appellant filed in this case
on complies with the word-count limitations of Tex. R. App. P. 9.4(i) because it
contains 3503 words as calculated by the word-count feature of the software used to
prepare said document.
PRAYER
Wherefore, in accord with Anders, supra, the undersigned counsel respectfully
requests this court to review the entire record in this matter for possible error. Further,
counsel prays the court grant Appellant an adequate opportunity to prepare and present
any written arguments he wishes to make on his own behalf in light of counsel’s
inability to find a non-frivolous argument in this appeal. Counsel requests the Court
reform the judgment to delete the requirement for payment of court appointed attorney
fees. Finally, counsel prays this court grant the Motion to Withdraw as Appellate
Counsel filed in conjunction with this brief.
Respectfully submitted, /s/ Damara H. Watkins S.B.N. 00787740 1541 Princeton Corsicana, Texas 75110 Phone: (903)641-2595 Facsimile: (903)872-6456 damarawatkins@gmail.com
BRIEF OF APPELLANT Page 18 CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Appellant's Brief was delivered to the all interested parties listed in this brief on the 30th day of June, 2016 by certified mail, return receipt requested.
/s/ Damara H. Watkins
BRIEF OF APPELLANT Page 19