Michael Oduro Kwarteng v. State

Opinion

ACCEPTED 01-13-00909-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 1/30/2015 6:48:21 PM CHRISTOPHER PRINE CLERK

NO. 01-13-00908-CR NO. 01-13-00909-CR ________________________________________ FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS In the 1/30/2015 6:48:21 PM Court of Appeals CHRISTOPHER A. PRINE For the Clerk First District of Texas At Houston ________________________________________

On appeal from the 182nd District Court of Harris County, Texas No. 1365142 No. 1369903 ________________________________________

MICHAEL ODURO KWARTENG, Appellant v. THE STATE OF TEXAS, Appellee

ANDERS BRIEF FOR APPELLANT

Emily Detoto State Bar No.: 00797876 917 Franklin, 4th Floor Houston, Texas 77002 Telephone: (713) 227-2244 Facsimile: (713) 222-5840 emilydetoto@mac.com

Counsel for Appellant

ORAL ARGUMENT NOT REQUESTED Identity of Parties and Counsel

Appellate Counsel for Appellant, Mr. Michael Oduro Kwarteng Emily Detoto State Bar No.: 00797876 917 Franklin, 4th Floor Houston, Texas 77002 Telephone: (713) 227-2244 emilydetoto@mac.com

Appellate Counsel for Appellee, The State of Texas Ms. Devon Anderson District Attorney Mr. Alan Curry Assistant—Appeal

Harris County District Attorney’s Office 1201 Franklin, Suite 600 Houston, Texas 77002 Telephone: (713) 755-5800

Trial Counsel for Appellant, Mr. Michael Oduro Kwarteng Mr. Arthur Jerome White, III State Bar No.: 24048877 1300 Post Oak Boulevard, Suite 1600 Houston, Texas 77056 Telephone: (832) 620-6406

Trial Counsel for Appellee, The State of Texas Ms. Devon Anderson District Attorney Ms. John Lewis, Assistant State Bar No.: 24055849

Harris County District Attorney’s Office 1201 Franklin, Suite 600 Houston, Texas 77002 Telephone: (713) 755-5800

ii Table of Contents

Page(s)

Identity of Parties and Counsel………………………………………………….ii

Index of Authorities……………………………………………………………...v

Statement of the Case……………………………………………………………1

Anders Issues Presented………………………………………...……………….1

Statement of Facts……………………………………………………………….1

Summary of the Argument……………………..………………………………..2

Arguable Grounds for Review…………………………………………………...3

Issue Number One…………………………………………………………….....3

OTHER MATTERS DO NOT PROVIDE NON-FRIVOLOUS ISSUES FOR APPEAL.

A. Sufficiency of the Indictment……………………………………………..3

B. Any Adverse Pretrial Rulings, Including but not Limited to Rulings on Motions to Suppress, Motions to Quash, and Motions for Speedy Trial……………………………………………………………………….4

C. Compliance With Texas Code of Criminal Procedure Article 26.13 and, if appropriate, Padilla v. Kentucky, 559 U.S. 356 (2010)…………...4 D. 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…………………………………………………………5

E. Whether Appellant’s Plea was Freely and Voluntarily Made….................6

iii F. Any Adverse Rulings During the Sentencing Hearing on Objections or Motions………………………………………………….....6

G. Any Failure on the Part of the Appellant’s Trial Counsel to Object to Fundamental Error……………………………………………...7

H. Whether the Sentence Imposed was Within the Applicable Range of Punishment……………………………………………………..7

I. Whether the Written Judgment Accurately Reflects the Sentence That was Imposed and Whether any Credit was Properly Applied……………………………………………………….....7

J. Whether There is Evidence to Support a Guilty Plea in a Felony Case……………………...……………………………………......8

K. Examination of the Record to Determine if the Appellant was Denied Effective Assistance of Counsel………………………………………..…9

Prayer………………………..……………..………………………………..…...9

Certificate of Service…………………………………………………..……….10

Certificate of Compliance………………………………………………………10

Certificate of Notice to Appellant……………………………………………….10

Notice to Client………………………………………………………………….11

iv Index of Authorities

Statutes

Tex. Code Crim. Proc. Art. 1.15…………………………………………..…..6, 8

Tex. Code Crim. Proc. Art. 26.13…………………………………………..4, 5, 6

Tex. Pen. Code § 12.33…………………………………………………….……7

Tex. Penal Code § 22.01……………………………………………………....3, 4

Tex. Penal Code § 22.02…………………………………………………....3, 4, 7

Tex. R. App. Proc. § 9.4………………………………………………………..10

Tex. R. App. Proc. § 34.5……………………………………………………....11

Tex. R. App. Proc. § 34.6………………………………………………………11

Federal Cases

Anders v. California, 386 U.S. 738 (1967)…………………………………....2, 3

Dusky v. U.S., 362 U.S. 402 (1960)………………………………………..…….5

Padilla v. Kentucky, 559 U.S. 356 (2010)……………………………………….4

Texas Court of Criminal Appeals

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

Martinez v. State, 981 S.W.2d 195 (Tex. Crim. App. 1998)(en banc)…………..6

Menefee v. State, 287 S.W.3d 9 (Tex. Crim. App. 2009)……………………..…8

Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991)………………..2, 3, 9

v Turner v. State, 422 S.W.3d 676 (Tex. Crim. App. 2013), reh'g denied (Apr. 2, 2014)……………………................……………………………………5

Williams v. State, 522 S.W.2d 483 (Tex. Crim. App. 1975)…………………….6

vi Statement of the Case

Appellant, Michael Oduro Kwarteng, was charged by indictment in cause

number 1365142 with the felony offense of aggravated assault with a deadly

weapon and in cause number 1369903 with the felony offense of aggravated

assault causing serious bodily injury. (1CR at 10; 2CR at 9)1. Mr. Kwarteng

entered a guilty plea in both cases. (1CR at 17-18; 2CR at 16-17; RR Vol. 1 at

4). The court assessed punishment at 10 years in prison for each case, to run

concurrently. (1CR at 26; 2CR at 25; RR Vol. 1 at 8). Mr. Kwarteng timely

filed a Notice of Appeal. (1CR at 29-30; 2CR at 28-29). Mr. Kwarteng’s brief

is due January 30, 2015.

Anders Issues Presented

1. Other matters do not provide non-frivolous issues for appeal.

Statement of Facts

Mr. Kwarteng shot Dominique Dean in the chest and the hip following a

heated argument in their apartment complex parking lot. (2Supp CR at 5; RR

Vol. 1 at 7). A 14-year-old boy, who was not the intended target, was also shot

in the knee. (2Supp CR at 5; RR. Vol. 1 at 6). His ability to walk has been

1 1CR refers to Clerk’s Record in cause number 1365142 and 2CR refers to the Clerk’s Record in cause number 1369903; RR refers to Reporter’s Record. There is only one Reporter’s Record because both cause numbers were resolved together in a single sentencing hearing. 2Supp CR refers to the Second Supplemental Clerk’s Record that applies to both cause numbers.

1 affected. (RR Vol. 1 at 6-7). Mr. Kwarteng fled the scene but turned himself in

several hours later. (2Supp CR at 7-8).

Mr. Kwarteng entered a guilty plea to both cases and went to the trial court

for sentencing without an agreed recommendation. (1CR at 17-18, 21; 2CR at

16-17, 20). The trial court ordered the preparation of a pre-sentence

investigation report (PSI) and then conducted a sentencing hearing. (RR Vol. 1

at 4; 2Supp CR at 5). Defense counsel and Mr. Kwarteng requested deferred

adjudication probation from the trial court. (RR Vol. 1 at 6). The prosecution

requested no less than 10 years in prison. (RR Vol. 1 at 7-8).

Summary of the Argument

The United States Supreme Court has instructed court-appointed counsel:

“Of course, if counsel finds his case to be wholly frivolous, after a conscientious

examination of it, he should so advise the court and request permission to

withdraw.” Anders v. California, 386 U.S. 738, 744 (1967). “[A]ppellate

counsel must provide the reviewing court with a ‘professional evaluation of the

record demonstrating why there are no arguable grounds to be advanced.’”

Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991)(citing High

v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978)). This requires a

discussion of the evidence at trial, including references to the record and

applicable case law. Id. Appellate counsel is required to discuss anything that

2 “might arguably support the appeal.” Id. A copy of the Anders brief must be

provided to the Appellant and he should be given time to respond if he so

chooses. Anders, 386 U.S. at 744. This Court will then examine the

proceedings and make a determination as to whether an appeal is frivolous. Id.

Court-appointed counsel has reviewed the Reporter’s Record and the

Clerk’s Record in Mr. Kwarteng’s case, and has determined that there are no

non-frivolous issues to raise as set forth in this brief. Accordingly, court-

appointed counsel respectfully requests permission to withdraw as attorney of

record and to permit the Appellant, Mr. Michael Kwarteng, to file any additional

brief he deems necessary.

Arguable Grounds for Review

ISSUE I: OTHER MATTERS DO NOT PROVIDE NON-FRIVOLOUS ISSUES FOR APPEAL.

A. Sufficiency of the Indictment.

The first indictment tracks the required elements in the Texas Penal Code for

aggravated assault with a deadly weapon. (1CR at 10); Tex. Penal Code §§

22.02(a)(2); 22.01(a)(1). The second indictment tracks the required elements in

the Texas Penal Code for aggravated assault causing serious bodily injury.

3 (2CR at 9); Tex. Penal Code §§ 22.02(a)(1); 22.01(a)(1). The indictments were

never subjected to a motion to quash. Thus, the indictments are sufficient.

B. Any Adverse Pretrial Rulings, Including but not Limited to Rulings

on Motions to Suppress, Motions to Quash, and Motions for Speedy

Trial.

There was a Motion to Substitute counsel filed in both cases, which was

granted. (1CR at 13; 2CR at 12). There was also a Motion for Community

Supervision filed in both cases. (1CR at 16; 2CR at 15). There were no other

motions filed and thus, no pretrial rulings adverse to Mr. Kwarteng.

C. Compliance With Texas Code of Criminal Procedure Article 26.13

and, if Appropriate, Padilla v. Kentucky, 559 U.S. 356 (2010).

Mr. Kwarteng entered a plea of guilty for both cause numbers. (1CR at 17-

18; 2CR at 16-17; RR Vol. 1 at 4). Mr. Kwarteng is a citizen of the United

States therefore Padilla is inapplicable. (2Supp CR at 4, 15). The trial court

prepared written admonishments for Mr. Kwarteng, defense counsel, and the

prosecutor to sign. (1CR at 19-20; 2CR at 18-19). The written admonishments

complied with Texas Code of Criminal Procedure Article 26.13. Mr. Kwarteng

signed the document declaring, “I have read and I understand the

4 admonishments set out above. I understand my plea’s consequences.” Tex.

Code Crim. Proc. Art. 26.13(d); (1CR at 20; 2CR at 19).

D. 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.

The issue of competency was not raised in the trial court. “The constitutional

standard for competency to stand trial asks whether the defendant has a

sufficient present ability to consult with his lawyer with a reasonable degree of

rational understanding and whether he has a rational as well as factual

understanding of the proceedings against him.” Turner v. State, 422 S.W.3d

676, 689 (Tex. Crim. App. 2013), reh'g denied (Apr. 2, 2014)(citing Dusky v.

U.S., 362 U.S. 402, 402 (1960).

Mr. Kwarteng declared in the plea admonishment documents that he signed,

“I am mentally competent. I understand the charges against me, and I

understand the nature of these proceedings. I am freely and voluntarily pleading

guilty.” (1CR at 19; 2CR at 18). There were no mental health issues in the PSI.

(2Supp CR at 17). There was nothing in the Reporter’s Record to raise concerns

about the competency of Mr. Kwarteng. (RR Vol. 1 at 1-10).

5 E. Whether Appellant’s Plea was Freely and Voluntarily Made.

“In considering the voluntariness of a guilty plea, the court should examine

the record as a whole.” Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim.

App. 1998)(en banc)(citing Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim.

App. 1975)).

A finding that a defendant was duly admonished creates a prima facie showing that a guilty plea was entered knowingly and voluntarily. Ex parte Gibauitch, 688 S.W.2d 868 (Tex.Crim.App.1985). A defendant may still raise the claim that his plea was not voluntary; however, the burden shifts to the defendant to demonstrate that he did not fully understand the consequences of his plea such that he suffered harm. Id. at 871. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998)(en banc).

Mr. Kwarteng declared in writing, “I am freely and voluntarily pleading

guilty.” (1CR at 19; 2CR at 18). There is nothing to indicate otherwise in the

record. Mr. Kwarteng was also properly admonished under Texas Code of

Criminal Procedure Articles 1.15 and 26.13. See Sections C and J.

F. Any Adverse Rulings During the Sentencing Hearing on Objections

or Motions.

There were no objections by defense counsel during the sentencing hearing.

6 G. Any Failure on the Part of the Appellant’s Trial Counsel to Object to

Fundamental Error.

After a thorough review of the record, no fundamental error is apparent.

H. Whether the Sentence Imposed was Within the Applicable Range of

Punishment.

Aggravated assault is a second degree felony which “shall be punished by

imprisonment in the Texas Department of Criminal Justice for life or for any

term of not more than 20 years or less than 2 years.” Tex. Pen. Code §§

22.02(b); 12.33(a). A second degree felony also carries a potential $10,000

maximum fine. Tex. Pen. Code § 12.33(b). The sentence imposed was 10 years

imprisonment in the Texas Department of Criminal Justice without a fine on

each case, to run concurrently. (1CR at 26; 2CR at 25; RR Vol. 1 at 8). The

sentence imposed was within the applicable range of punishment.

I. 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.

(1CR at 26-27; 2CR at 25-26). Credit was properly applied for Mr. Kwarteng’s

time in custody since the arrest. (1CR at 6, 26; 2CR at 25).

7 J. Whether There is Evidence to Support a Guilty Plea in a Felony Case.

Mr. Kwarteng agreed to stipulate to the evidence and gave a written judicial

confession to both indictments, which contained all of the required elements of

the offenses. (1CR at 17-18; 2CR at 18-19); Tex. Code Crim. Proc. Art. 1.15.

He also waived his rights in compliance with article 1.15: “I waive the right of

trial by jury. I also waive the appearance, confrontation, and cross-examination

of witnesses, and my right against self-incrimination.” (1CR at 17; 2CR at 18).

The Court of Criminal Appeals has held:

No trial court is authorized to render a conviction in a felony case, consistent with Article 1.15, based upon a plea of guilty ‘without sufficient evidence to support the same.’ Evidence offered in support of a guilty plea may take many forms. The statute expressly provides that the defendant may consent to the proffer of evidence in testimonial or documentary form, or to an oral or written stipulation of what the evidence against him would be, without necessarily admitting to its veracity or accuracy; and such a proffer or stipulation of evidence will suffice to support the guilty plea so long as it embraces every constituent element of the charged offense. Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009)(internal citations

omitted).

There was sufficient evidence to support the guilty pleas.

8 K. Examination of the Record to Determine if the Appellant was Denied

Effective Assistance of Counsel.

A thorough examination of the record reveals that Mr. Kwarteng was not

denied effective assistance of counsel.

Prayer

For the reasons above, Appellant respectfully urges that this appeal

presents no non-frivolous issues or grounds for relief. Appellant’s Counsel

respectfully requests that this Court grant the motion to withdraw. Stafford v.

State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). Appellant urges this Court

grant such other relief as he may be entitled.

Respectfully submitted,

__/s/ Emily Detoto_______ EMILY DETOTO State Bar No. 00797876 917 Franklin, 4TH Floor Houston, Texas 77002 (713) 227-2244 (713) 222-5840 (fax) emilydetoto@mac.com

9 Certificate of Service

I hereby certify that a true and correct copy of the Anders Brief for Appellant was electronically delivered to Mr. Alan Curry, Appellate Division Chief, Harris County District Attorney’s Office, on this 30th day of January 2015.

_____/s/ Emily Detoto____ EMILY DETOTO

Certificate of Compliance

I hereby certify, pursuant to Rule 9.4 of the Texas Rules of Appellate Procedure, that the instant brief is computer generated using Microsoft Word for Mac and said computer program has identified that there are 1,805 words within the portions of this brief required to be counted by Rule 9.4(i)(1)&(2) of the Texas Rules of Appellate Procedure. The document was prepared in proportionately spaced typeface using Times New Roman 14 for text and Times New Roman 12 for footnotes.

_____/s/ Emily Detoto______ EMILY DETOTO

Certificate of Notice to Appellant

The undersigned counsel affirms that the Notice to Client, infra, has been given to the appellant, Mr. Michael Kwarteng, regarding his right to examine the appellate record and to file a pro se responsive brief.

10 Notice to Client

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967) and Texas Rules of Appellate Procedure 34.5(g) and 34.6(h), as the appellant, you have the automatic right to examine the record on appeal and file a pro se responsive brief arguing that there are meritorious issues to appeal. A defendant who intends to file a responsive brief must notify the Court in writing within 14 days of receipt of the Anders brief and have the Court of Appeals set forth a date by which the brief will be filed.