Mark Victor Dheil v. State

• Court: Court of Criminal Appeals of Texas
• Decided: January 27, 2015
• Docket: 06-14-00201-CR
• Status: Published

Opinion

ACCEPTED 06-14-00201-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 1/25/2015 4:34:52 PM DEBBIE AUTREY CLERK

No. 06-14-00201.-CR FILED IN IhI T,he Sixth Court oll APPeale;6th COURT OF APPEALS Texarkana, lfexas TEXARKANA, TEXAS 1/27/2015 4:34:52 PM DEBBIE AUTREY Clerk D4ARK VTCTOR DHEIL /

AptroeL7atzt, v. THE STATE OF TE)IN,S, Ag>igeJ-Iee -

Appeals from the 4th Dirstrict Crpurt Rusk CountY, Terxas T:ria1 Court No. CR14-089

AIiTDERS BRIEI'

ATTORNEY FOR APPELI,ANT:

ileff T. "lackson STBOT No " 2406997 6 7 3 6-A Hw5'1 259 N . I(ilgoren TX 75662 Ithone: 903- 654-3362 I!'ax: 8117-887-4333 oRAL ARGI'MENT NOT REQUESTED L]EST OE. PARTIES AND COI'NSEL

APPELLANII: Mark V'ictor Dhei1 TDCiI . 0t9657 67 N'o SID No,. O6344978 Choice Moore Transfer JFaciJ.ity 1700 Nl. EA{ 87 Bonhamr, TX 154L9

Represented at original Plea bY: MR. .fEFF SANDEI1S SBOT No. 24033.153 Ellis & Sanders, PLLC L20 ll . Broadwalg, Suite II2 Tyle:r, TX 1 51 0:2 Phone: 903-593-8084

@appeal bv: Jef f T. Jacksotr SBOT No. 2406997 6 736-A Hwy 259 I\I . Kilgore, TX 15662 Phonr: : 903- 65 4'-3362 Fax: 817-BB7-4333

APPELLEE:I Sltate of Texas Represent,ed at ori-gina1 plea arrd sentenci-ng by: Micheal E. Jim,=rson Rusk County District AttorneY SBOT : 00'7 89406 115 N. Main St . Henderson, TX 7 5652 Phone : 903- 6It1-2265 Fax: 903- 6ai'7 -0329 TABLE OF CONTENTS

Lt_st of Parties and Counsel.. .."'i Table of f-nnj- VVfIUVTIUJ.anl- q. . . . ii

Index of Authorities iv Statement of the Ca.se " "vi Issues Presented. '"'vii 1 Statement. of Facts... ""'r- Summary of the ArguLment.s . - " "2 Argument... " '4 I. APPELLANT' S PLEA OF GUILTY COMPL:TED W]TH THE REQUIF{EMENTS OF ARTICLE 26 'L::i OF THE TEXAS CODE OF CRTMINAL PROCEDURE . . . .4

II. NO OBJECT]:ON TO THE EVIDI]NCE OR EXHIBITS WERE MADE DURING THE PUN]-SHMENT STAGE OF TRIAL AND NO MqRITORIOIJS LEGA.L CLAIM EXISTS RIILATED TO THE IMPOSI'IION OF PUNISHMENT . . .7

III. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IS NOT A V]I\BLE CLAIM BASED ON TH]l RECORD BEFORE THIS COURT 9

IV. NO OTHER ARGUABLE ERROR WAI] COMMIT':IED . .T2

StatemenL of Attorney to the Court ' ' "L4 Conclusion and PasrTet ..--15 Certificate of l,nmnli:nna \/\JlttP-L-LCrrr\-s .....16

Certificate of Service.. --.-.1'1

111 IIIDEX OF AUTHORIT]IES

Cas,e Law:

Anders v. Cal-if orni.a, 386 U.S. 738,'744, (1967)- -1, 2, 1-3

Brady v. United States, 391 IJ.S. 742, "749, (1970). 5

Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.I914). IJ

Fuentes v. State, q 5BB l3.W.2d 542,, 544 (Tex.Crim.APP 1985) Hernandez v. State,' 726 S.W.2d 53, 57 (Tex.Crim.APP,. 1986) v

Jack v. State, glr s.w.2d 74t (Tex . Cr . App . L97 4,)

Jackson v. State, 877 S.W.2d 768, 71 1 (Tex. Crim.APP .I994) \, 10

Jeffery v. State, 903 S.W. 716 (Iex.App.-Dallas 1-995, ho pet. ) '3, 13

Strickl-and v. Wash-Lngton, q 1n 466 u.S" 668 (1984). . Jt

Thompson v. State, 9 S.W.3d B0B, BL2 (Tex-Cri-m-App-1999) .9, 10

Unj-ted States v. J

1V Sta'tutes :

Tex. Code Cri-m. Proc . Art . 26 .I3 < Jt fl al 5

Tex . Code, Cri-m. P. Art. 42.L2 SS 9(a)' \y/ 7 S]]ATEMENT OF THE CASE

AppeJ-l-ant wars indicted for driving while

int.oxicated 3'd or more, a 3'd degree felony, bY formal ^h=rni l-LIo.I nrv .i v J-1rv rrr\ .strumen't- f iled on February 4, i2074. CR p.

5. On October Ll , 2014, Appellant waived his right to

trial by jury and entered his plea of guilty to the

offence charged i-n the indictmenL,, cR p. 24-28 - The

TriaI Court sentenced Appellant j-n open court to f our

(4 ) years conf inement in the institutional.. division of t.he Texas; De'part,ment of Criminal- Justice ' CR p' 32 '

vl ISSUES PRESENTEI)

I. Whether Appel-l-ant' s plea of guilty crcmplied with

the requirement.s of Art. j-cle 26.73 of the Texas Code of Criminal- Procedure?

fI. Whether an objection was made to the evidence or exhibit.s durj-ng t.he punishment stage of tria-l-?

III. Whether inef fective assistance of tria.l counsel- is

a viable claim based upon the record before this Court?

IV. Whet.her any otfrer arguable error was co:mmitted?

vll TO THE HONORABLE S]XTH COURT OF APP]IALS:

Comei; now Jef f T. Jackson, attqrney f or Mark Victor Dhei1, appellant the above st.yled eind numbered in causes, eind respec'tful1y submits this Anders Br j-ef and would show the Court the following:

9I',ATEMENT OF THE FACm

In a single count indictment, Appef l-ant. was

indicted for drJ-ving while intoxj-cated 3'd or more ' CR

p. 5. Jeff Sanderr3 was hired to represent Appellant by the Tria-L CourL " On October 11 , 20L4, Appell-Iant waived his right to trial- by jury and entered his plea of Y urri l "crrr tvt' uJ to the of f ence charged in the irrdicLment . RR

The Trial court sentenced Appel--l-ant in open

courL to f our (4 ) years conf inement i-.n the Texas Department of Crim:Lnal Justice - CR' p. 32 '

NOTE: The reco:rd is refe:rred to as: \\CR//: clerk's reco:rd in Cause No- C:R14-089' \\RR//: reJcortert s recorC "SCR": supplementa.I clerk's record SUMMARY OF THE ARGUMENTS

Under: Anders v. Cafifornia, 386 U.S. 738, 744, (7967 ) , a court.-appointed appell-aLe attorney may not raise an issue in an appeal if he nrakes a conscientious examinat.i.on of the case and f inds the appeal is who11y f rivol-ousi . To compty with Anders, counsel must isolate "poSsibly important iSSueS" and "furnish tLre court with references to the record and lega-L authorities to aid it in j.ts appellate functi-on. " unite

Johnson, 521 E .2d, I32B I L329 ( 5th Cir . I91 6) . After

the appellant is g j-ven an opporturrity to respond, the

court makes a ful] examination of the record to detect whether the case is frivolous. Anders, 385 U'S' at 144. Appellant's counsel- has reviewed the Clerk's Record a.nd Reporter 's Record f rom the Trie,LI Court, the sentence received by Appell-ant arLd the f:actual basis for: the senLence. As set forth in 'bhe Brief , there are no non-fri-volous issues - The record reveal- s that the t.ri-al court substantially complied with Article 26.L3 of the Texas

Code of Criminal Procedure when accepting Appell-ant' s

pIea. RR pp. 6-10. No obj ection \^/as made by Appellant. to any of the evj-dence, exhilcit,s or the sentencing of Appellant by the trial courL. RR pp. 10- 29. Ther:e are no iurisdictional defects- There are no

non-jurisidictj-onal- defects arislng at or af:ter entry of t.he plea . see Jack v. state, 817 S . W. 2d 7 4I

(Tex. Cr.App. Lgl 4) . Counsel- has al-so f iled with this Court a Motion to Withdraw as Court Appoi.nted Counsel on Appeal with support.ing exhibits in accordance with the procedures and standards set out in. Jeffery State, 903 S.W. 116 (Tex-App.-Dallas 1995, no pet') ' ARGUMENTS AND AUTHOR]TIES

I.

APPEI,LANT' S PLEA OF GUILTY COMPLIED IVITH THE REQUIREMENTS OF ARTICLE 26.L3 OF THE TEXAS CODE

OF CI{IMINAL PROCEDURE .

Appe-Ll-ant's counsel has reviewed t'he c:ntire record in detail and has identif ied no error on t'he trial court' S part that suggests harmful- error in the

Defendant's pleading guilty to the charges' Before accepting a guilty plea, t.he trial court

must admonish a defendant of: (1) Lhe punishment range' (2) the fact t.hat the state's sentencing r(3commendation is not binding on the court, (3) the limited right to appeal and (4) the possibility of deportation. Tex'

code crj-m. Proc. art . 26. 13 (a) . ithe admonishments may be made either orally or in writitgt. Id at 26'L3 (d) '

At appeJ-lant,s original pleas, the court admonished appellant on the proper range for driving while j-ntoxicat.ed, 3td or more. RR p. B. The court substanti ally complied with fJ-'^ LI-IV rorrlrirom,cnf.5 of ! v\agJ! vrr|vrr 9! the

statute in accept ing appelf ant' s guilt-y plea as

evroerrceu ^--.1 ^^^^^;t uy the written plea admonishments and verbal 1^.

admoni shment s by the trial- judge. P. B. .RR

To be constitutionatty va1id, et guilty plea must be knowing eind voluntary. See Brady v. Unite<.I States, 397

U-S. 142, 749-750, (7970); see also Tex" Code Crim' Proc. Ann. art . 26.13 (b) . When the record shows that the trial- court admonished the defendant in substantial compliance with Art j-cle 26 .13 of Lhe Code of Criminal Procedure, this is a prima facie showing that the plea was knowing and volunt.ary. See Tex. Cod<,: Cr j-m - Proc

Ann. arL. 26.L3 (C) . There is nothing in t.he record to ind.icate appellant. pleaded guilty and "true without und.erstanding the consequences of his pleas, and as a

rosrr !vuuret I| - annel-1ant *_L/r Suf f ered no har:m. Ser) Fuentes v.

state, 6BB S.W.2d 542, 544 (Tex.Clrim.App 1985). The tri.al crturt accepted Appellant' s; original plea of gui.lt.y and subsequent plea of true and punishment was ^ ^^,.J dJJr=J,>E\.l . RR pp. 6-10; KK pp. aa,an 26-zY. f f IU

of nlcns is ^nnel ant/ r- l,- volLlntarine s s; v! I s I/rvsL, sl:rown 1-.r vJ z L IlE^

record. RR p " 6-10. II. NO OBJECTION TO EV]DENCE OR EXHIBITS ]I\]AS MADE

DURING THE PUNISHMENT STAGE OF TRIAL AND NO MERI:IORIOUS LEGAL CLAIM EXISTS RELATED TO THE

IMPOI]ITION OF PUNISHMENT.

On t.he :-lt]" day of October , 2014, Appellant's plea rrf rrrri I i-Uyrz \ar.-o WCIJ arl =nnanl- us\f, A\-\-Ey l-rrz v J furrs ho tri u! ! ] COUft,, RR pp. 6- uI I |.l-Lr "1

1n On that same duy, Appel-lant.'s pullishment was assessed. RR pp. 28-29 . The only eviden.ce presented bV the State was a presentence investigati-on report that had been conducted by the Rr-rsk County community supervis j-on depart.ment j-n accorda.nce with Tex. Code

Crim. P. Art. 42.I2 SS 9(a), (g)- RR p" 10. Appellant called One witness, and bot.h sides made a closing argument ., RR pp . 6-28. Appellant made no ob j ection to

evidence or exhibits of f ered by the sta.Le, and the

trial judge sentenced Appellant to four (4) years to serve in the institutional division of TDCJ. RR pp. 28-29. The trial court was the fact finder for purposes of the punishment, decis j-on. The evidence befo.re the court was substantial. The judge's remarks following the cl-oseof evidence indicate the circumstances taken in r

consideration related to the sentence assessed i-n open court. KK p. zY. AA III.

]NE F]IECT ]VE ASSISTANCE OF TRIA], COUNSE:L IS NOT

A VIABLE CLAIM BASED UPON THE RECORD BEFORE

THIS COURT

Clalrns of ineffective assistance of counsel are ane srrs+J I ttz.ed sve rrnder the two-prong test set ouL by the United States Supreme CourL in Strickf ancl v. Washington, 466

u. s. 668 (1984 ) t -nA d-IIL,l =Ann{- 66l A\l\-/YUs\r krrz T(rxF PI r\r^sr S in Hef nandeZ V.

State , '7 26 S.W.2d 53, 51 (Tex.Crllm.App-1986) -

AppeIlant- must show that. trial- counsel-'s performance was def ici-enL, that is, counsel' s representation f el-l below an objective standard of realionableness. Thompson

v. State,, 9 S"W.3d BOB, BI2 (Tex.Crj-m-App.1999)' Anncl I ant must also show that counsel..'s def icient narfrrrm-arr..a I./(=r rv!rllqrrve nror -y- vJ rrri'i r:ccl his defense. Strickfand, 466

U. S . at 68-l ; Jackson v. State,871 S.W"2d 168,11I (Tex. Crirn.App .1994) . This requ:Lres Appellant show

there is a reasonable probability the;Lt, but f or counsel-'s unprofessional errors, the result of the proceeding would have been different Strickland, 466

U.S. at 694; Jackson, Bll S.Vf.2d ert 77I- A reasonabl-e

probability j-s a probability suf f icient iEo undermine

confidence in the outcome. StrickTand, 466 U. S. at 694; Jackson, 871 S"W.2d at 11I. In reviewinq an ineffective assistance of counsef claim, Lhere is a strong presumption t.hilt Counsel 's conduct f alls wit.hin the wide l:ange of reasonable

professiqnal assistance and the apF,ellant must overcome the pres'umption that the chal-lenged conduct might be

cons j-dererd sound trial- strategy. Thompson,' 9 S . W. 3d at

813; StrickTand, 466 U. S. at 689. Any allegation of

inef f ecti-veness mus t be !f fr !rLLrJ rfr | \7 f ,cunded and

af f irmat j-veIy demonstrated j-n the record to overcome t,his presumption. Thompson, 9 S.W.3d at 813; see Jackson, 871 S.W.2d at, 11I. It is the Appel-lant 's burden to'prove ineffective assistance of counsel- by a

prepondel:ance of the evldence. Id- Atthequilt/innocencephase.lfhist.rialwherein he entered. a plea of "gui LLy , " Appellant was informed

10 by the tr:j-al- court of his various choices :::egardi-ng his rights to plead "not guilty" and the presumption of innocencer and applicabl-e burden of proof . RR pp. 6-10. Af n/a nn.in1- rlrrrinrr vu--.,y Fn\/ ^f \JJ- rlra LLIs nrna6'p6linCrS yr\-/\/t;surrrye in f,-tr this CaUSe f\L IIU F)U-LIf L

r-li.l Annel I ant aSSert to the tri-a-L court that he VIV was

unhappy \Mj-th t.he performance and representatj-on of his trial co'unsel, Mt . Sanders . Appell-ant pl.eaded guilty freel-y alld voluntarily after being proper1-y admonished

of the prunishment range, RR pp. 6-10. Based on t,his

-n^n-A Ig\-L./I\rt nA IIv legitimate non-f rivolous basi.s exists to :rrrr'ra s!Yuv i- r-i :l counsel was constitutionally ineffect'ive.

11 IV.

NO OTHER ARGUABLE ERROR WAS COMMI]'TED

Counsel has scrutini-zed the ::ecord and f ound no

arguabl_e error . There are no j urisdictional def ects -

There are no non- j urisdictional def ects a:rising at or ant-rrr -€rar E.tr o.I LgI t-J- y ho nl ea. r'.,f t.uf,rv v! See Jack v. State.>, BlI S.W.2d

1 4t (Tex . Cr " App . Lgl 4) . The indic L.menL was suf f icient to suppor:t the convict ion - CR, p' 5'

Because this appeal- stems from Appel-l-ant's entry of

a plea of "Gui lty" and a rath,er brie:f punishment

hearing, ho mot j-ons were made by Appell-ant at the trial-

level, a.nd. no pretrial rulings etdverse to Appellant

were made. Appellant. was found competent. RR pp. 9- 10. There was evidence to support; Appell-ilnt's plea of "Guilty.''' RR pp. 6-1 . No fundamer:rtal- error existed at

any point during the trial . The tr::ial court's

cer:tificiation of Defendant's Right of Appeal was

inaccura'te, CR p. 36, and the tria.I court ,amended it to

reflect its certification of Appellant's right to

t2 appeal . SCR' p. 3. The written Judgment Nlunc Pro Tunc reflectedi the sentence that was imposed and credit toward thLat sentence was properly al?pfied, lscR p- 4-6-

13 STATEIVIENT OF ATTORNEY TO THE COUTTT

This brief is f iled by counsel appolnted by the court to represent appellant on arppeal i:n accordance with Anders v. Cal-ifornia, 385 U.S. 738 (1961), and currie v. state, 516 S.W.2d 684l (Tex"Cr.App-t974). Counsel has also f if ed with this Court a Mot'ion to withdraw as court Appoint.ed cou.nsel- orx Appeal in accordance with the procedures as standards set out in Jef'f ery \/. State, 903 S.W. 2d 11 6 (llex.App " --Dallas ]-995 ,

no pet. ) . thorough examina.t j-on of the clerk' s Af ter

record and reporter's record, counsiel can f ind no point of error that can be supported by the record' Counsel

has discussed t,he evidence and the documents in t'he ra^r'rrril IgU\Jl-\lt r--i urrr\J \/I rof crences to the records I i nrr rv!v -

t4 PRAYER

Whe re fore , premises considered, t.he undersigned counsel requests the Court of Appeals revj-ew the record on appeal, consider the Motion t.o Withdraw as Court Appointed Counsel with supporting a.f f j-davit., review the foreqoing Brief in Support of Moti-on to Wi-thdraw, and grant the Motion to Withdraw-

RespecLfully submittedi,

SBOT No. 2406991 6 136-A Hwy 259 N. Kilgore, TX 1f;662 Phone: 903-65 4-3362 Fax: BI7 -BB7-4333 Email: jef ftjacksonlarnrGgmail- - com

Attorney for APPelTant:, Mark Victor Dheif

15 CERTTFICATE OF COMPT,TANCE

The foregoing Appellant's Brief is in compliance

with TEX. R. APP. P. g .4 (i) (2) (B) . The total number of

words contained in Appel-lant' s llrief ttrat' are not

speci f i cal Iy excl-uded f rom t,he word count under TEX ' R '

APP. P. 9.4 (i) (1) is 1,555 words-

Jef f T. Jeickson SBOT No. 24069976 Atto rney f o r APPe lant -'L , Ma rk Victo r D.he if

16 CERTTFICATE OF SER\/ICE

II the undersigned attorney, do he::eby certify that a true and correct copy of the above Motion was served ol:t the State of Texas by mailing same to the District Attorney of Rusk County on January 26, 2015 -

I further certj-fv that I have mai-led a. copy of the above Brief by First class Mait, Postage paid, to Appell-ant, Mark Victor Dheil, at the ad'Cress list'ed above on the same date. /// /t 4kr Jeff T. Jackson