Richard Lee Pollard v. State
Opinion
ACCEPTED
03-14-00545-CR
4499342
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/13/2015 4:36:50 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00545-CR
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS 3/13/2015 4:36:50 PM AUSTIN JEFFREY D. KYLE Clerk
RICHARD LEE POLLARD,
Appellant
v.
THE STATE OF TEXAS
Appellee
Appeal in Cause No. CR6692 in the 424thJudicial District Court of Llano County, Texas
BRIEF FOR APPELLEE
-------------------------
OFFICE OF DISTRICT ATTORNEY 33RD and 424th JUDICIAL DISTRICTS Wiley B. McAfee, District Attorney P. O. Box 725, Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274
By: R. Blake Ewing
Assistant District Attorney State Bar No. 24076376 asstda2@burnetcountytexas.org ATTORNEY FOR APPELLEE
March 13, 2015
ORAL ARGUMENT WAIVED
IDENTITY OF THE PARTIES
Trial Court
Honorable Dan Mills (now former) 424th Judicial District Burnet County Courthouse Annex (North) 1701 East Polk St., Suite 74 Burnet, TX 78611
Trial Counsel for Appellee
Anthony J. Dodson Assistant District Attorney P. O. Box 725 Llano, Texas 78643 (325) 247-5755 State Bar No. 05927200
Robert Blake Ewing Assistant District Attorney 1701 E. Polk St., Suite 24 Burnet, Texas 78611 (512) 756-5449 State Bar No. 24076376
Appellate Counsel for Appellee
Robert Blake Ewing Assistant District Attorney 1701 E. Polk St., Suite 24 Burnet, Texas 78611 (512) 756-5449 State Bar No. 24076376
ii
Trial Counsel for Appellant
Richard D. Davis P.O. Box 398 Burnet, TX 78611 (512) 756-5117 State Bar No. 05537100 rdd@austin.twcbc.com
Barton Joseph Vana Attorney at Law P.O. Box 398 Burnet, TX 78611 (512) 756-5117 State Bar No. 24084441
Appellate Counsel for Appellant
Richard D. Davis P.O. Box 398 Burnet, TX 78611 (512) 756-5117 State Bar No. 05537100 rdd@austin.twcbc.com
Appellant
Richard Lee Pollard TDCJ #01934170 SID #02166353 Wallace Pack Unit 2400 Wallace Pack Rd. Navasota, TX 77868
iii
TABLE OF CONTENTS
Identity of the Parties........................................................................................ ii
Table of Authorities.......................................................................................... v
Statement of the Case........................................................................................ 2
Statement on Oral Argument............................................................................. 3
Reply to Issues Presented.................................................................................. 3
Statement of the Facts....................................................................................... 3
Summary of the Argument and Argument -
Reply to Issue No. 1................................................................................ 4 The State agrees that no reversible error exists in the record of this cause and that the appeal herein is frivolous.
Prayer for Relief................................................................................................ 5
Certificate of Word Count................................................................................. 6
Certificate of Service......................................................................................... 6
iv
TABLE OF AUTHORITIES
Cases
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2nd 492 (1967)….…4
High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978)………….………………..4
Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L.Ed.2d 300 1988) ……………4
Constitutions
None cited
Statutes/Rules
TEX. R. APP. PROC. 38.1(d) ……………………………………………………..2
v
NO. 03-14-00545-CR
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AUSTIN
RICHARD LEE POLLARD,
Appellant
v.
THE STATE OF TEXAS
Appellee
Appeal in Cause No. CR6692 in the 424th Judicial District Court of Llano County, Texas
BRIEF FOR APPELLEE
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW the State of Texas, hereinafter called Appellee, and submits
this brief pursuant to the provisions of the Texas Rules of Appellate Procedure in
support of the State’s request to affirm the judgment of the trial court.
STATEMENT OF THE CASE
Appellant has adequately described the Statement of the Case, although the
undersigned will provide a separate statement of the case supported by record
references to assist the Court. TEX. R. APP. PROC. 38.1(d).
Appellant was indicted for the offense of Driving While Intoxicated 3rd or
More on August 13, 2013. C.R. 6. The State gave notice of its intent to seek an
enhanced penalty range on Jan 2, 2014 and amended its notice on April 23, 2014.
C.R. 16-17, 37-38. The State moved to amend and interlineate the indictment on
April 23, 2014. C.R. 39-40. The trial court granted the State’s motion over
Appellant’s objection. R.R., Vol. 3, pp. 4-6.
Appellant proceeded to trial on June 16, 2014 and entered a plea of not
guilty. R.R., Vol. 4, pp. 1, 18. After hearing evidence, the jury returned a verdict
finding Appellant guilty of the offense of Driving While Intoxicated 3rd or More as
charged in the indictment. C.R. 64. Appellant timely filed his election to have the
jury assess punishment. C.R. 59. Upon conclusion of the punishment phase of
trial the jury returned its verdict assessing punishment at confinement in the
Institutional Division of the Texas Department of Criminal Justice for a term of
life. C.R. 71. Notice of Appeal was timely filed. C.R. 80.
STATEMENT ON ORAL ARGUMENT
The undersigned waives oral argument. The undersigned does not believe
that Oral Argument will be beneficial for this case for the reason that the issues are
straightforward and devoid of any novel or complex questions. Should the Court
believe that oral argument will assist the Court in any way, the undersigned will
accommodate the Court.
REPLY TO ISSUE PRESENTED
Reply To Issue One: The State agrees that no reversible error exists in the record of this cause and that the appeal herein is frivolous.
STATEMENT OF THE FACTS
Appellant’s statement of the facts is adequate, and the undersigned believes
that Appellant’s statement is supported by the record with only one discrepancy.
Appellant notes that the State introduced at the punishment phase of trial evidence
of Appellant’s prior convictions, and states that one of those convictions was for
“intoxication manslaughter.” APPELLANT’S BRIEF 3. The conviction
referenced by Appellant was, in fact, for involuntary manslaughter under the law
as it existed in 1981. R.R., Vol. 7, STATE’S EXHIBIT 15.
In all other respects, the undersigned believes that Appellant has accurately
stated the facts of the case.
SUMMARY OF THE ARGUMENT AND ARGUMENT ON REPLY TO ISSUE NO. 1
(1) The State agrees that no reversible error exists in the record
of this cause and that the appeal herein is frivolous.
Appellant seeks to appeal his conviction and sentence. Appellant’s appellate
counsel describes various arguable grounds for appeal and explains why such
grounds do not support a finding of reversible error. The State of Texas has fully
reviewed the record and agrees that there was no reversible error committed in the
trial proceedings and that the appeal thereof is frivolous. See Anders v. California,
386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2nd 492 (1967); Penson v. Ohio, 488 U.S. 75,
109 S. Ct. 346, 102 L.Ed.2d 300 (1988); and High v. State, 573 S.W.2d 807 (Tex.
Crim. App. 1978).
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellee prays the Court deny
Appellant’s appeal and affirm the judgment of the trial court.
Respectfully submitted,
OFFICE OF DISTRICT ATTORNEY 33RD and 424th JUDICIAL DISTRICTS Wiley B. McAfee, District Attorney P. O. Box 725 Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274
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