ACCEPTED 01-13-01027-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 1/20/2015 4:26:54 PM CHRISTOPHER PRINE CLERK
CAUSE NO. 01-13-01027-CR
FILED IN 1st COURT OF APPEALS IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS 1/20/2015 4:26:54 PM CHRISTOPHER A. PRINE Clerk
RODNEY EUGENE MILUM, APPELLANT VS. THE STATE OF TEXAS, APPELLEE
On Appeal from the 184th Criminal District Court of Harris County, Texas, Cause No. 1347034 Honorable Jan Krocker, Judge Presiding
BRIEF FOR APPELLANT, RODNEY EUGENE MILUM,
AN ANALYSIS OF THE APPELLATE RECORD IN ACCORDANCE WITH
ANDERS V. CALIFORNIA, 386 U.S.738 (1967).
Deborah Summers 11210 Steeplecrest, Ste 120 Houston, Texas 77065 State Bar No. 19505600 (281) 897-9600 summerspc@sbcglobal.net Counsel for Appellant
ORAL ARGUMENT WAIVED CAUSE NO. 01-13-01027-CR
IN THE FIRST COURT OF APPEALS
RODNEY EUGENE MILUM, APPELLANT VS. THE STATE OF TEXAS, APPELLEE
On Appeal from the 184th Criminal District Court of Harris County, Texas, Cause No. 1347034 Honorable Jan Krocker, Judge Presiding
CERTIFICATE OF COUNSEL
The undersigned counsel states that she has diligently reviewed the entire appellate
record in this case and certifies to this Court that in compliance with the requirements
of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim.
App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 515
S.W.2d 684 (Tex. Crim. App. 1974); and Gainous v. State, 436 S.W.2d 137 (Tex. Crim.
App. 1969) that this appeal is without merit. A review of the record reflects no
reversible error and no grounds on which an appeal can be predicated. Counsel for
Appellant has filed a motion to withdraw from representation. See appellate exhibit "A".
i The undersigned has served a copy of this analysis on Appellant. Counsel has
further informed Appellant by letter that it is this attorney's opinion that the appeal is
wholly without merit and that he has the right to view the appellate record and to file pro
se an appellate brief should he so desire. Appellant has been informed that he has the
right to request that the Court make the record available to him and to grant him an
extension of time for the filing of a pro se brief. See appellate exhibit "B". Further,
Counsel has provided Appellant with a Motion to request the record and for an
extension of time. See appellate exhibit "C".
/s/ Deborah Summers Deborah Summers State Bar No. 19505600 11210 Steeplecrest, Suite 120 Houston, Texas 77065 (281) 897-9600 summerspc@sbcglobal.net
ATTORNEY FOR APPELLANT
ii IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.1(a), the following are parties or counsel to the judgment
appealed from:
Presiding Judge: The Honorable Jan Krocker 184th Criminal District Court 1201 Franklin Houston, Texas 77002
Appellant: Rodney Eugene Milum 19527 Remington Martin Drive Houston, Texas 77073
Attorneys for State: Mr. Brandon Leonard (at trial) Harris County District Attorney's Office 1201 Franklin Houston, Texas 77002
Mr. Alan Curry(on appeal) Harris County District Attorney's Office 1201 Franklin Houston, Texas 77002
Attorneys for Appellant: Mr. James Dennis Smith (at trial) 4615 Southwest Freeway, # 520 Houston, Texas 77067
Ms. Deborah Summers (on appeal) 11210 Steeplecrest, Suite 120 Houston, Texas 77065
iii TABLE OF CONTENTS
IDENTITY OF PARTIES i
TABLE OF CONTENTS ii
INDEX OF AUTHORITIES iii
STATEMENT OF THE CASE ix
STATEMENT REGARDING REFERENCES TO THE RECORD x
ISSUE PRESENTED x THIS APPEAL PRESENTS NO ISSUES FOR REVIEW WITH MERIT. An d e rs v. Califo rn ia, 386 U.S. 738 (1967)
STATEMENT OF FACTS 1 ANALYSIS 2 A. Indictment 2 B. Voir Dire 3 C. Pre-trial Motions 3 D. Trial Guilt/Innocence 3 1. Sufficiency of Evidence 3 2. Jury Charge 4 E. Punishment 5 1. Punishment Evidence 5 2. Jury Charge 6 3. Is Sentence Cruel and Unusual? 6 4. Conditions of Community Supervision 7 5. DNA Court Costs 11 F. Ineffective Assistance of Counsel 11 1. Trial Counsel 13 2. Appellate Counsel 16
PRAYER FOR RELIEF AND CERTIFICATE OF SERVICE 17
CERTIFICATE OF COMPLIANCE 18
iv INDEX OF AUTHORITIES
CASES PAGE
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) 6
Anders v. California, i,iv, x, 386 U.S. 738 (1967) 16,17
Barton v. State, 21 S.W.3d 287 (Tex. Crim. App. 2000) 8
Benjamin v. State, 874 S.W.2d 132 (Tex. App.-Hous.[14th Dist.] 1994 no pet.) 6
Benson v. State, 661 S.W.2d 708 (Tex. Crim. App. 1982) 5
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) 4
Calcote v. State, 931 S.W.2d 668 (Tex.App.-Hous.[1st Dist.] 1996, no pet.) 7
Carmona v. State, 941 S.W.2d 949 (Tex. Crim. App. 1997) 3
Coit v. State, 629 S.W.2d 263 (Tex. App.-Dallas 1982, pet. ref’d) 4
Currie v. State, 515 S.W.2d 684 (Tex. Crim. App. 1974) i
Ex Parte Flores, 387 S.W.3d 626 (Tex. Crim. App. 2012). 16
v CASES PAGE
Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969) i
Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005) 13
Gutierrez-Rodriguez v. State, 444 S.W.3d 21 Tex. Crim. App. 2014) 14
Guzman v. State, 923 S.W.2d 792 (Tex. App.-Corpus Christi 1996, no pet.) 12
Hernandez v. State, 726 S.W.2d 55 12,13 (Tex. Crim. App. 1986) 14
Jackson v. Virginia, 43 U.S. 307 (1979) 4
Jackson v. State, 877 S.W.2d 768 (Tex.Crim.App. 1992) 12
Jackson v. State, 973 S.W.2d 954 (Tex.Crim.App. 1998) 15
Jagaroo v. State, 180 S.W.3d 793 (Tex.App.-Hous.[14th Dist.] 2005, pet. ref’d.) 13
Lanum v. State, 952 S.W.2d 36 (Tex. App.-San Antonio 1997, no pet.) 12
McArthur v. State, 1 S.W.3d 323 (Tex.App.-Fort Worth 1999, pet. ref’d.) 8,10
Mitchell v. State, 420 S.W.3d 448 (Tex.App.-Houston[14th Dist.], 2014, n. p. h.) 7,9,10
vi CASES PAGE
Peraza v. State, No. 01-12-00690-CR, 2014 LEXIS 13915, WL 7476214 (Tex.App.-Houston [1st Dist.] December 30, 2014, no pet. h). 11
Rodriguez v. State, 799 S.W.2d 301 (Tex. Crim. App. 1990) 2
Roper v. State, 917 S.W.2d 128 (Tex.App.- Fort Worth 1996, pet. ref’d) 4
Simon v. State, 442 S.W.3d 581 (Tex. App.-San Antonio, 2014 pet. ref’d) 11
Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999) 11
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) i
Strickland v. Washington, 11,12 466 U.S. 668 (1984) 13,14
Thompson v. State, 9 S.W.3d 808 (Tex.Crim.App. 1999) 12,15
Villalon v. State, 791 S.W.2d 130 (Tex. Crim. App. 1990) 4
Ybarra v. State, 3 S.W.3d 99 (Tex. App.-San Antonio 1994, pet. ref’d) 12
vii CONSTITUTIONS PAGE
U.S. CONST. amend. VI 11
U.S. Const. amend. VIII 6
Tex. Const. art. I, § 10 11
Tex. Const. art. I, § 13 6
STATUTES PAGE
Tex. Crim. Proc. Code Ann. § 1.051 (Vernon Supp. 2013) 11
Tex. Crim. Proc. Code Ann. § 1.14(b) (Vernon Supp. 2013) 2
Tex. Crim. Proc. Code Ann. § 37.07, sec 3 5-6 (Vernon Supp. 2013)
Tex. Crim. Proc. Code Ann. Art. 42.12 § 4 (Vernon Supp. 2013) x,5,6
Tex. Crim. Proc. Code Ann. Art. 42.12 § 9A (Vernon Supp. 2013) 7
Tex. Crim. Proc. Code Ann. Art. 42.12 § 11 (Vernon Supp. 2013) 7, 8,9
Tex. Crim. Proc. Code Ann. Art. 42.12 § 12 (Vernon Supp. 2013) 7
Tex. Crim. Proc. Code Ann. Art. 42.12 § 13B (Vernon Supp. 2013) 7,8,9
viii STATUTES PAGE
Tex. Crim. Proc. Code Ann. Art. 42.12 § 13G (Vernon Supp. 2013) 7,8,9
Tex. Crim. Proc. Code Ann. Art. 42.12 § 13G( c)(1) (Vernon Supp. 2013) 10
Tex. Penal Code Ann. § 12.33 (Vernon Supp. 2013) x,5,6
Tex. Penal Code Ann. § 22.011(a)(2)(A) (Vernon Supp. 2013) x,2,5
RULES PAGE
Tex. R. App. P. 9.4 18
Tex. R. App. P. 33.1(a) 3
Tex. R. App. P. 38.1(a) iii
EXHIBITS ATTACHED
MOTION TO WITHDRAW - APPELLATE EXHIBIT A
LETTER TO CLIENT - APPELLATE EXHIBIT B
MOTION FOR EXTENSION OF TIME - APPELLATE EXHIBIT C
ix STATEMENT OF THE CASE
The Appellant was charged by indictment with the offense
of Sexual Assault of a Child under the age of 17 (CR at 8). Tex. Penal Code Ann. §
22.011(a)(2)(A) (Vernon Supp. 2013).
A jury was impaneled on October 14, 2013 (RR2 at 209). The Appellant was
convicted, by the jury, on October 17, 2013 (RR5 at 28; RR7 at 4).
The Appellant elected to have the jury assess punishment in the event of a guilty
verdict (CR at 122). The Appellant faced a range of punishment of 2 -20 years in the
Texas Department of Criminal Justice Institutional Division (TDCJ) and a possible fine
up to 10,000. Tex. Penal Code Ann. § 12.33 (Vernon Supp. 2013). He was also eligible
for community supervision. Tex. Crim. Pro. Code Ann art. 42.12 § 4 (Vernon Supp.
2013).
After, hearing additional evidence and the arguments of counsel, the jury
sentenced the Appellant to 2 years in TDCJ and recommended that the sentence be
probated (RR6 at 21-25; RR7 at 4).
Appellant filed a timely, written Notice of Appeal on October 30, 2013 (CR at
181).
Appellate counsel, Melissa Martin was appointed on appeal (CR at 183). Ms.
Martin filed an appellate brief concluding that the appeal was without merit. Anders v.
California 386 U.S. 738 (1967). The Appellant then filed a pro se brief on October 1, 2014
x alleging trial and appellate counsel were ineffective.
This Court abated this appeal and ordered the appointment of new counsel to
review the record and address all arguable non frivolous grounds. Deborah Summers
was appointed on November 21, 2014.
The trial court held a hearing on December 1, 2014 to address this Court’s
concerns (Supp. RR2).
xi STATEMENT REGARDING REFERENCES TO THE RECORD
The clerk's record in this case will be cited as "CR". The reporter's record for the
trial consists of eight volumes and will cited as "RR1, RR2 etc...”. Exhibits will be cited
as “State’s Exhibit 1, 2 etc...” The supplemental reporter’s record and clerk’s filed after
the abatement of the appeal will be cited as, “Supp. RR1” and “Supp. CR” etc....
ISSUE PRESENTED
This appeal presents no issues with merit for review. In accordance with Anders
v. California, 386 U.S. 738 (1967), a review of the appellate record follows.
xii STATEMENT OF FACTS
The complainant testified that she and the Appellant were dating and that
eventually this relationship led to sexual intercourse. The Appellant testified that she
was 14 years old at the time of the sexual intercourse and that the Appellant was 19
years old. She testified the sexual intercourse was consensual (RR3 at 19-40).
Sgt. Colburn testified that he interviewed the complainant. As part of his
investigation, he recovered a carpet sample (from the complainant’s bedroom) that
the complainant claimed the Appellant had ejaculated on. He also interviewed the
Appellant. The Appellant denied the relationship and denied that he had ever been in
the complainant’s bedroom (RR3 at 78-108).
Jennifer Clay, an DNA analyst testified that the semen sample recovered from
the complainant’s bedroom contained the Appellant’s DNA (RR4 at 162, 184).
1 ANALYSIS OF THE APPELLATE RECORD
A. The Indictment
of Sexual Assault of a Child under the age of 17 (CR at 8 ). Tex. Penal Code Ann. §
22.011(a)(2)(A) (Vernon Supp. 2013). The indictment complies with all the
requirement of charging the above offense. Tex. Penal Code Ann. § 22.011(a)(2)(A)
(Vernon Supp. 2013).
No motion to quash the indictment was filed or requested. Any claim of a
defect or want of sufficient notice has been waived by the failure to file a motion to
quash the indictment. Rodriguez v. State, 799 S.W.2d 301 (Tex. Crim. App. 1990); Tex.
Crim. Proc. Code Ann.§ 1.14(b) (Vernon Supp. 2013).
B. Voir Dire
The voir dire examination was recorded and trial counsel conducted a thorough
voir dire (RR2 at 189-197). Thereafter, several veniremembers were excused by
agreement (RR2 at 161-163, 186, 200, 202, 206).
Several venire members were individually questioned and then challenged by
the State and trial counsel for the Appellant (RR2 at 172, 173, 176, 181, 185, 194).
The trial court denied one challenge for cause by the defense and granted one
challenge for cause (RR2 at 181, 194). The trial court granted seven challenges for
cause by the State (RR2 at 172, 173, 176, 185, 191, 198).
2 Thereafter, no objection was made to the jury as seated (RR2 at 209).
C. Pre-trial Motions
Several pre-trial motions were filed by the trial attorney (CR at 60, 67, 121,
122). There was a discussion regarding the video statement of the Appellant and
whether a motion to suppress would be addressed and trial counsel stated that there
was no legal basis for a motion to suppress (RR2 at 214). Trial counsel effectively
argued against a motion in limine filed by the State (RR2 at 6-8).
No objection was made at the trial that additional motions or evidence was
needed before proceeding to trial. Without a specific and timely objection, no error
is preserved for appellate review. Carmona v. State, 941 S.W.2d 949, 957 (Tex. Crim.
App. 1997); Tex. R. App. P. 33.1(a).
D. Trial - Guilt/Innocence
1. Sufficiency of Evidence
The State presented all the elements required for conviction on the indictment
(CR at 8; RR3 at 19-22, 24, 33, 40, 47-48, 56, 91, 102-103, 106, 108; RR4 at 162, 184) .
Medical records detailed the physical exam and the responses of the
Complainant regarding her description of the sexual encounter (State’s Exhibit # 21;
RR8 at 40). In the records, the Complainant told the nurse that the Appellant, “his
penis, he kinda forced it in my vagina” (id.).
The evidence, presented by the State, was sufficient to convict the Appellant.
3 “When determining sufficiency of evidence, we are to consider all of the evidence
admitted before the jury at the guilt/innocence phase of trial.” Roper v. State, 917
S.W.2d 128, 130 (Tex. App. - Fort Worth 1996, pet. ref’d) citing Villalon v. State, 791
S.W.2d 130, 133 (Tex. Crim. App. 1990).
DNA placed not just the Appellant at the scene, but his semen, which was
consistent with the testimony of the complainant (RR3 at 40-41, 80, 91, 103, RR4 at
162, 184). She testified he ejaculated onto the carpet (RR3 at 40-41).
The jury is the sole judge of the credibility of the witnesses and the weight to
be given their testimony. Brooks v. State, 323 S.W.3d 893, 901-902 (Tex. Crim. App
2010) .
When reviewing a challenge to the sufficiency of the evidence, the standard is:
“Considering all of the evidence in the light most favorable to the verdict, is a jury
rationally justified in finding guilt beyond a reasonable doubt”. Brooks v. State, 323
S.W.3d 893 at 902 citing Jackson v. Virginia, 43 U.S. 307, 319 (1979). Clearly, the
State’s evidence, viewed in the “light most favorable to the verdict” was sufficient for
any rational trier of fact to convict the Appellant.
2. The Charge on Guilt/Innocence
No requests or objections were made to the charge (RR at 5). A defendant
who fails to object to a jury charge or to request a definition, waives all but
fundamental error. Coit v. State, 629 S.W.2d 263 (Tex. App.- Dallas 1982, pet. ref'd).
4 A review of the charge submitted and argued to the jury reflects no fundamental error
and further reflects a proper charge (CR at 137). The jury must be informed of the
individual elements that constitute the offense for which a defendant is being tried
and the jury must be provided with the statutory definitions for any term that is
statutorily defined. Benson v. State, 661 S.W.2d 708 (Tex. Crim. App. 1982) cert. denied
467 U.S. 1219 (1983). The court's charge complied with this rule.
The charge in this case provided the jury with all the elements, definitions and
law applicable to this offense.
E. Trial - Punishment
The Appellant elected to go the jury for punishment in the event he was
convicted (CR1 at 109; CR2 at 109). The Appellant had no prior felony convictions
and had never before been placed on adult probation (CR at 121, 122). Therefore, he
was eligible for community supervision. Tex. Crim. Code Ann. Art. 42.12 § 4
(Vernon Supp. 2013). He faced a range of punishment from 2 years to 20 years in the
TDCJ and a 10,000 dollar fine if he were convicted of Sexual Assault of a Child. Tex.
Penal Code Ann. §§ 12.33, 22.011 (Vernon Supp. 2013).
1. Punishment evidence
The Appellant’s parents testified that he was eligible for community
supervision and that he would be a good candidate for probation (RR6 at 8-21).
Neither the State nor the Appellant offered any additional evidence. Tex. Crim. Proc.
5 Code Ann. § 37.07, sec. 3 (Vernon Supp. 2013).
In closing argument, the State agreed that community supervision would be
appropriate for the Appellant (RR6 at 22-23). Trial counsel for Appellant asked for a
sentence of five years and further requested that the jury recommend community
supervision (RR6 at 25).
2. Jury Charge on Punishment
No requests or objections were made to the charge (RR6 at 7). A defendant
who fails to object to a jury charge waives all but fundamental error and will only
obtain a reversal if he can show the error was so egregious and created such harm
that he was denied a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1985). A review of the charge submitted the jury reflects no
fundamental error and further reflects a proper charge (CR at 149).
3. Is the Sentence Cruel and Unusual?
No. Appellant cannot complain that the sentence violates the United States or
Texas Constitutions. U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13. When a
punishment is assessed within the statutory limits, it is not cruel and unusual within
constitutional prohibitions. Benjamin v. State, 874 S.W.2d 132, 134 (Tex. App.-
Hous.[14th Dist.] 1994 no pet.) citations omitted. The Appellant received the
minimum sentence he could receive and then that sentence was probated (CR at 159,
164). Tex. Crim. Proc. Code Ann. Art. 42.12 § 4; Tex. Penal Code Ann. § 12.33.
6 The jury had the discretion to sentence the Appellant to a maximum of twenty
years and they did not do so. See, Calcote v. State, 931 S.W.2d 668 (Tex. App.-
Hous.[1st Dist.] 1996, no pet.) (Defendant eligible for deferred adjudication received
two life sentences for Aggravated Sexual Assault of a Child).
Appellant cannot complain that his sentence is cruel and unusual, it is the
minimum that the jury could assess.
4. Conditions of Community Supervision
After the jury recommended community supervision, the trial court sentenced
the Appellant and stated several conditions of community supervision (RR7 at 5-6).
Thereafter, the trial court got off the record indicating that the Appellant and the trial
court would go over all the conditions of community supervision carefully.
The trial court ‘may impose any reasonable condition that is designed to
protect or restore the community, protect or restore the victim, or punish,
rehabilitate, or reform the defendant.’ Tex. Crim. Code Ann. Art. 42.12 § 11 (Vernon
Supp. 2013). Article 42.12 has a list of basic conditions of community supervision as
well as sections which concern cases such as the case at bar. Tex. Crim. Code Ann.
Art. 42.12 §§ 9A, 11, 12, 13B, 13G (Vernon Supp. 2013)(standard conditions and
then conditions for sexual assault and sexual assault of children).
Absent a clear abuse of discretion, the trial court’s judgment on the terms of
community supervision must be upheld. Mitchell v. State, 420 S.W.3d 448 (Tex.App.-
7 Hous.[14th Dist.], 2014, no pet.). However, the trial court has no ‘discretion’ to
impose an invalid condition of community supervision. Id. citing Barton v. State, 21
S.W.3d 287, 289 (Tex. Crim. App. 2000). An invalid condition of community
supervision is a condition that: 1) has no relationship to the crime; 2) is conduct that
is itself not criminal; and 3) forbids or requires conduct that is not reasonable related
to future criminality or, does serve the statutory ends of community supervision.
McArthur v. State, 1 S.W.3d 323, 332 (Tex.App.-Fort Worth 1999, pet. ref’d.).
When abating this appeal, this Court ordered Counsel to address whether any
of the 41 conditions of community supervision were invalid. This Court emphasized
two conditions of community supervision, in particular, that it wanted addressed .
Abatement Order dated November 20, 2014, page 51. See, McArthur v. State, 1 S.W.3d
323 at 332.
Specifically the conditions relating to ‘entering a place of worship’ and ‘internet
access’. Abatement Order, page 2. While the trial court did assess a long list of
conditions of community supervision, most are from the long list of standard
conditions (CR at 164-170). The vast majority of the conditions come verbatim
from Tex. Crim. Code Pro. Ann. Art. 42.12 §§ 11, 13B and 13G (CR at 166,
paragraphs 1-12; at 167, paragraphs 23-25, 35; page 169, paragraphs 37, 39, 40, 41.
The conditions listed in these sections can be said to be reasonably related to the
Hereafter Abatement Order 1
8 purposes of community supervision. Tex. Crim. Code Ann. Art. 42.12 § § 11, 13B,
13G. See, Mitchell v. State, 420 S.W.3d 448 , at 450.
However, there are several conditions of which can be characterized as ‘over
broad’ or ‘not related to the offense’ (CR at 168, paragraphs 26, 31, 32, 34; 169,
paragraph 38).
At the abatement hearing, the trial court addressed some of these concerns
(Supp. RR at 6-9). The trial court stated her reasons for paragraphs 26 and 32.
In regards to paragraph 26: which allows the Appellant to enter his place of
worship 15 minutes before the service and requires him to leave immediately at the
conclusion of the service, the trial court submitted the location was like any other that
children gather (Supp. RR at 8). The trial court emphasized that the Appellant could
request that he be allowed to attend specific counseling sessions or classes at a church
but that he could not just ‘hang around’ a church (Supp. RR at 8-9). This condition
appears reasonably related to the purposes of community supervision. Mitchell v. State,
420 S.W.3d 448, at 450.
In regards to paragraph 32: which prohibits access to the Internet, the trial
court stated that there are many defendants contacting children through the Internet
and it is a provision to protect children (Supp. RR at 9-10). However unlike
paragraph 26 above, the issue of Internet access is specifically addressed in Art. 42.12
§ 13G. Tex. Crim. Proc. Code Ann. Art. 42.12 § 13G. While the trial court may
9 prohibit Internet access as outlined in the statute, a blanket prohibition constitutes
an invalid condition. McArthur v. State, 1 S.W.3d 323, 332 . Appellate courts have
held that a condition is invalid if: 1) has no relationship to the crime; 2) is conduct
that is itself not criminal; and 3) forbids or requires conduct that is not reasonable
related to future criminality or, does not serve the statutory ends of community
supervision. McArthur v. State, 1 S.W.3d 323, 332. See also, Mitchell v. State, 420 S.W.3d
448, at 450. The offense for which the Appellant was tried, did not involved the
Internet. Access to the Internet is not criminal in itself. Denial of any access to the
Internet is not reasonably related to future criminality and it does not serve the
statutory ends of community supervision. Further, denial of any2 access to the
Internet could sabotage the Appellant’s ability to get and keep a job thereby causing
him to violate his community supervision. Section 13G recognizes this when it
discusses modifying the conditions of community supervision if the inability to access
the Internet places an undue hardship on probationer. Art. 42.12 § 13G( c )(1).
In addition to the problem with paragraph 32, paragraph 34 (don’t enter a
nightclub) ; and parts of paragraph 31 (no massages), and paragraph 38 (no
possession of ammunition) seem unrelated to the offense. McArthur v. State, 1 S.W.3d
323, 332 (remedy is to delete improper conditions and reform judgment of trial
All emphasis is author’s unless otherwise stated. 2
10 court).
Unless Appellant objects to these conditions once his community supervision
begins, he will forfeit his right to complain. See, Simon v. State, 442 S.W.3d 581 (Tex.
App.-San Antonio, 2014 pet. ref’d) (while case on appeal, trial court has no
jurisdiction to modify conditions of community supervision); Speth v. State, 6 S.W.3d
530 (Tex.Crim.App. 1999)(probationer must object to conditions at trial level when
the court has the discretion to modify the terms).
5. DNA Court Costs
As part of his sentence, the Appellant will be required to pay the costs of DNA
testing (CR at 176). Recently this Court found this fee to be unconstitutional. Peraza
v. State, No. 01-12-00690-CR, 2014 LEXIS 13915, WL 7476214 (Tex.App.-Houston
[1st Dist.] December 30, 2014, no pet. h). The proper remedy for unsupported fee is
to modify the judgment deleting the fee. Id.
F. Ineffective Assistance of Counsel
The Appellant has the right to effective representation. U.S. CONST. VI; TEX.
CONST. Art. I, Sec. 10; Tex. Crim. Proc. Code Ann. § 1.051 (Vernon Supp. 2013).
The standard for effective representation has been defined in Strickland v.
Washington, 466 U.S. 668 (1984). The Strickland test requires a defendant to show that
his attorney’s representation fell below an objective standard of reasonableness and
but for counsel’s unprofessional errors, the result of the proceeding would have been
11 different. Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) citing
Strickland v. Washington, 466 U.S. 668 (1984).
A defendant is not entitled to error free representation and any review of an
attorney’s performance will be highly deferential. Guzman v. State, 923 S.W.2d 792,
797 (Tex. App.-Corpus Christi 1996, no pet.). In assessing counsel’s performance,
courts will “not scrutinize isolated acts or omissions” or “trial strategy” nor will the
courts measure the defendant’s trial attorney against a standard of perfection. Rather
the courts look to the “totality of the representation” at the time of trial. Lanum v.
State, 952 S.W.2d 36, 40 (Tex. App.-San Antonio 1997, no pet.) quoting Ybarra v. State,
890 S.W.2d 98, 112 (Tex. App.-San Antonio 1994, pet. ref’d). An allegation of
ineffectiveness will only be sustained if the record affirmatively demonstrates
counsel’s ineffectiveness. Guzman v. State, 923 S.W.2d at 797.
Where counsel’s failures or omissions, if any, are not apparent until long after the
time for filing a motion for new trial has passed, there is a lack of evidence in the
record as to counsel's reasons for his actions and/or omissions3. An appellate court
may not speculate about why counsel acted as he did. See Jackson v. State, 877 S.W.2d
768, 771 (Tex. Crim. App. 1992). See, Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim.
3 As Judge Baird pointed out in his footnote to Jackson, one may develop a record on a motion for new trial but in most cases time constraints do not provide adequate time for investigation and the trail record will not be transcribed and available for use at a motion for new trial hearing. Jackson v. State, 877 S.W.2d at 773, footnote 3.
12 App. 1999).
“Appellate courts should not find ineffective assistance of counsel (on direct
appeal) unless the challenged conduct was ‘so outrageous that no competent attorney
would have engaged in it’.” Jagaroo v. State, 180 S.W.3d 793, 797 (Tex.App.-
Houston[14th Dist.] 2005, pet. ref’d) quoting Goodspeed v. State, 187 S.W.3d 390, 392
(Tex.Crim.App. 2005). No such ‘outrageous’ conduct exists in this record.
1. Trial Counsel
(a) Guilt/Innocence phase
A review of this appellate record demonstrates that the complainant testified
that the Appellant had sex with her when she was fourteen years of age and the
Appellant was 19 years old and this sexual encounter occurred in her bedroom (RR3
at 19-22, 24, 33-34, 40). The Appellant denied ever being in her room (RR3 at 103-
106). DNA (semen) was recovered from the carpet in the complainant’s room (RR3
at 91). Jennifer Clay, a DNA analysis, testified that the DNA was a match to the
Appellant (RR3 at 162, 184).
If trial counsel committed any error during the guilt/innocence phase of the
trial, it would not have changed the outcome of the jury’s decision to convict.
Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) citing Strickland v.
Washington, 466 U.S. 668 (1984). Trial counsel was not ineffective under the Strickland
standard at trial during the guilt/innocence phase.
13 (b) Punishment Phase
The jury sentenced the Appellant to the bare minimum it could and then
recommended community supervision (RR7 at 4). Any error committed by the
Appellant’s trial attorney during the punishment phase of the case had no effect on
the best possible outcome for the Appellant at sentencing. Hernandez v. State, 726
S.W.2d 53, 55 (Tex. Crim. App. 1986) citing Strickland v. Washington, 466 U.S. 668
(1984).
( c) Probation Conditions
After the jury recommend community supervision, the trial court sentenced
the Appellant and stated several conditions of community supervision (RR7 at 5-6).
Thereafter the trial court got off the record indicating that the Appellant and the trial
court would go over all the conditions of community supervision carefully.
Trial counsel did not speak up during the list of conditions with any possible
objections. At no time has the Appellant, through any method, objected to the
conditions of community supervision which the trial court will impose upon
completion of the appellate process. Without an objection, the Appellant will forfeit
the right to complain about potentially invalid conditions of community supervision.
Gutierrez-Rodriguez v. State, 444 S.W.3d 21, 23 (Tex. Crim. App. 2014). Appellant
either with or without counsel must object to conditions of community supervision
or he will forfeit the right to complain. The objections must be made to the trial
14 court.
This record is insufficient to determine whether trial counsel was present
during the time the conditions of community supervision were provided to the
Appellant or, if he and the Appellant discussed the conditions which may be invalid.
(d) Plea Offer
After the Appellant’s first appellate counsel filed an Anders brief, he filed his
own pro se brief alleging that he was not informed of all of the factors surrounding a
plea offer (RR2 4-6). Pro Se Response to Anders Brief filed October 1, 2014.
Specifically, Appellant complained that, if he had known about the ten year
registration requirement as a sex offender as opposed to the life time registration he
now faces, he would have taken the plea offer. Id. at 4.
The burden is on the Appellant to prove his trial counsel was ineffective.
Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). This record contains
nothing in order to determine what, if anything, trial counsel and the Appellant
discussed regarding the plea offer and the ten year registration requirement.
Generally, the record is best developed by an application for a writ of habeas corpus
where testimony can be introduced on this issue. See, Jackson v. State, 973 S.W.2d
954, 957 (Tex.Crim.App. 1998). This record does not sustain the Appellant’s
burden. Thompson v. State, 9 S.W.3d at 813.
15 2. Appellate Counsel
Appellant further complained in his pro se brief that his appellate counsel was
ineffective when she failed to address and argue that trial counsel was ineffective. Pro
Se Response to Anders Brief at 5-6.
In order for Appellant to receive relief in the form of a new direct appeal for
ineffective assistance of appellate counsel, the applicant must show:
(1) that appellate counsel’s decision not to raise an issue was ‘objectively unreasonable’ and, (2) that ‘but for’ appellate counsel’s failure to raise a particular issue, he would have prevailed on appeal.
If appellate counsel failed to raise a claim that would have resulted in the case being
reversed, then appellate counsel is ineffective. Ex Parte Flores, 387 S.W.3d 626, 638
(Tex. Crim. App. 2012). A review of the record has not revealed a claim that
appellate counsel could have raised that would have resulted in a reversal of the case.
Anders v. California, 386 U.S. 738 (1967).
Certainly appellate counsel should have raised the improper conditions of
community supervision and the improper DNA fee, but neither of these issues will
result in a reversal of the case. The improper conditions and the improper fee should
be merely deleted and the conditions of community supervision and the judgment
should be reformed. Appellate counsel was not ineffective. Ex Parte Flores, 387
S.W.3d 626, 638.
16 CONCLUSION AND PRAYER FOR RELIEF
FOR THE FOREGOING REASONS, the undersigned prays that this
Honorable Court of Appeals review the analysis herein, and the record of the
proceedings below, and make a ruling in accord with Anders v. California and its
progeny and allow counsel on appeal to withdraw.
RESPECTFULLY SUBMITTED,
/S/ Deborah Summers Deborah Summers State Bar No. 19505600 11210 Steeplecrest, Suite 120 Houston, Texas 77065 (281) 897-9600 summerspc@sbcglobal.net
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing
instrument has been furnished to the Harris County District Attorney by depositing
same in the drop box designated for the Appellate division of the Harris County
District Attorney on this the 20th day of January 2015.
/S/ Deborah Summers Deborah Summers
17 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(I), the undersigned counsel certifies that this brief
complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(I).
1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4(i)(1), this brief
contains 3965 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and 12 point font in footnotes produced by Corel Word
software.
3. Upon request undersigned counsel will provide an electronic version of this
brief and/or a copy of the word printout to the Court.
4. Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R.
App. Proc. 9.4(j), may result in the Court’s striking this brief and imposing sanctions
against the person who signed it.
18 Cause No. 01-13-01027-CR
RODNEY EUGENE MILUM, APPELLANT VS. THE STATE OF TEXAS, APPELLEE
On Appeal from the 184th Criminal District Court of Harris County, Texas, Cause No. 1347034 Honorable Jan Krocker, Judge Presiding
MOTION TO WITHDRAW FROM REPRESENTATION
TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:
Comes now court-appointed appellate counsel, Deborah Summers, and
respectfully requests that she be allowed to withdraw from representation on the above
referenced appeal and in support would show the Court as follows:
I
I have reviewed the appellate record in this cause and have determined that there
are no legally cognizable arguments which could conceivably persuade this Court to
reverse my client's conviction. I have attempted to resolve doubts and
A-1 ambiguous legal questions in favor of my client and have not been able to locate one
issue which is arguable on its merits.
II
I have provided my client with a copy of my brief in this cause. I have also
provided him a motion to request a copy of the trial transcript and for an extension of
time in which to allow Appellant to file a pro se brief under the Anders v. California, 386
U.S. 738 (1967) procedure. Further, I have informed my client that he has the right to
review the appellate record and file a pro se brief.
WHEREAS PREMISES CONSIDERED, appellant counsel prays that this Court
GRANT this motion and allow counsel to withdraw from representation.
/s/Deborah Summers Deborah Summers 11210 Steeplecrest, # 120 Houston, Texas 77065 State Bar no. 19505600 (281)897-9600 summerspc@sbcglobal.net
Counsel for Appellant
A-2 Cause No. 01-13-01027-CR
RODNEY EUGENE MILUM, APPELLANT VS. THE STATE OF TEXAS, APPELLEE
On Appeal from the 184th Criminal District Court of Harris County, Texas, Cause No. 1347034 Honorable Jan Krocker, Judge Presiding
MOTION TO HAVE APPELLATE RECORD MADE AVAILABLE TO APPELLANT AND FOR EXTENSION OF TIME TO FILE A PRO SE BRIEF
Comes now Appellant, RODNEY EUGENE MILUM and files this his
Motion to have the appellate record made available to Appellant and for an extension
of time to file a pro se brief and would respectfully show the Court as follows:
I have been served with a copy of the brief filed by my court-appointed
C-1 appellate attorney, Ms. Deborah Summers. She has filed an Anders brief along with a
motion to withdraw the appeal. I have been advised by Ms. Summers that I have the
right to review the appellate record and file a pro se brief.
It is my desire to review the appellate record and to file a pro se brief. I request
that this Court direct the 184th Criminal District Court to make available to me a
copy of the appellate record for my review. Further, I request that the Court allow
me at least thirty (30) days, from the date the Court makes the record available to me
to file a pro se brief with the clerk of this Court.
WHEREFORE PREMISES CONSIDERED, Appellant prays the Court
GRANT Appellant's motion to have the appellate record made available to Appellant
and for extension of time to file a pro se brief of at least thirty (30) days from the date
Appellant receives the appellate record.
RODNEY EUGENE MILUM
C-2