Ronnie McMullen A/K/A Ronnie Barnes v. State

Opinion

ACCEPTED

13-15-00135-CR

THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS

5/28/2015 9:52:30 AM

DORIAN RAMIREZ

CLERK

NO. 13-15-00135-CR

Ronnie McMullen FILED IN 13th COURT OF APPEALS

Appellant CORPUS CHRISTI/EDINBURG, TEXAS 5/28/2015 9:52:30 AM

VS. DORIAN E. RAMIREZ Clerk

THE STATE OF TEXAS,

Appellee

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IN THE COURT OF APPEALS

FOR THE THIRTEENTH COURT OF APPEALS DISTRICT OF TEXAS Corpus Christi, Texas

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Appeal From Cause Number 14-CR-3618-H 347th District Court of Nueces County, Texas

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AMENDED BRIEF IN SUPPORT OF MOTION TO WITHDRAW AS APPELLATE COUNSEL

John Grant Jones Attorney For Appellant 208 Pipe Creek Lane Tel: 361-815-2470 / Fax: 1-866-243-9810 Email: grant800@att.net State Bar Number: 10917000

NO ORAL ARGUMENT IS REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Defendant: Ronnie McMullen

Trial Judge:

Judge Robert Blackmon (visiting) Sitting for Presiding Judge Missy Medary 347th District Court Nueces County, Texas

State Counsel At Trial For Plea Of Guilty:

Mr. David Jakubowski Assistant District Attorney Nueces County Courthouse 901 Leopard Street, Room 206 Corpus Christi, Texas 78401 Telephone: (361) 888-0410 SBN: 24978729

Defense Counsel At Trial For Plea Of Guilty:

Mr. L. Chris Iles Attorney At Law 711 N. Caracahua, #700 Corpus Christi, Texas 78401 Tel: 361-883-2020 Fax: 866-565-5343 SBN: 00789391

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Defense Counsel On Appeal By Appointment:

John Grant Jones Attorney At Law 208 Pipe Creek Lane Georgetown, Texas 78633 Tel: 361-815-2470 / Fax: 1-866-243-9810 Email: grant800@att.net State Bar Number: 10917000

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL …………………………………1 INDEX OF AUTHORITIES…………………………………………………..4 STATEMENT OF THE CASE………………………………………………..5 ISSUES PRESENTED………………………………………………………...5 STATEMENT OF THE FACTS (Matters Pertinent To Anders Brief)……….6 1. Sufficiency of the indictment………………………………………..6 2. Adverse pretrial rulings……………………………………………...6 3. Compliance with Texas Code Of Criminal Procedure, Section 26.13, and Padilla v. Kentucky……………………………...6 4. Competency………………………………………………………….7 5. Voluntariness of appellant’s plea……………………………………..7 6. Adverse rulings during the sentencing hearing ……………………...7 on objections or motions. 7. Failure to object to fundamental error………………………………..7 8. Legality of sentence…………………………………………………..7 9. Accuracy of written judgment as to sentence and proper application of credit…………………………………………..8 10. Sufficiency of the evidence………………………………………..…8 11. Effective assistance of counsel……………………………………….9 12. Discovery Rights……………………………………………………..9 PRAYER………………………………………………………………………...9 CERTIFICATE OF COMPLIANCE…………………………………………..10 CERTIFICATE OF SERVICE…………………………………………………10

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INDEX OF AUTHORITIES

Cases:

Supreme Court Anders v. California, 87 S.Ct. 1396 (1967) …………………………………….9 Strickland v. Washington, 466 U.S. 668 (1984)…………………………………9 Texas Cases Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1979) (op. on reh'g)….8 Ex parte Bates, 978 S.W.2d 575, 577-78 (Tex. Crim. App. 1998)……………….8 Ex parte Martinez, 330 S.W. 3d 891, 900 (Tex. Crim. App. 2011)……………...9 Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App.1969)………………………..9 High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978)………...9 In Re Schulman, 252 S.W 3d 403 (Tex.Crim.App. 2008)………………………..9 Tabora v. State, 14 S.W.3rd 332 (Tex.App., Houston [14th Dist] 2000)……….…8 Statutes And Rules: Texas Code Of Criminal Procedure, Art. 22.02…………………………………..6 Texas Code Of Criminal Procedure, Art. 26.13…………………………………..6 Texas Code Of Criminal Procedure, Art. 39.14…………………………………..9 Texas Code Of Criminal Procedure, Art. 46B.004…………………………….….7 Texas Code Of Criminal Procedure, Art. 42.03(1)(a)…………………………….8 Texas Penal Code, Sec. 12.33……..……………………………………..………..8 Texas Penal Code, Sec. 12.34……………………………………………………..7 Texas Penal Code, Sec. 31.03(a),(b),(e)(4)(D)……………………………………6 Texas Penal Code, Sec. 36.02……………………………………………………..6

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STATEMENT OF THE CASE

This is an appeal from an open plea of guilty to the trial court to a two-count

indictment charging state jail felony theft (Count 1) and bribery (Count 2). (Clerk

Record, pp. 5,6) The indictment followed appellant’s arrest for shoplifting and his

attempt to bribe a peace officer not to arrest him shortly after his initial detention.

(Clerk Record, pp. 47, 48) The court denied appellant’s request for community

supervision and assessed punishment at 8 years on the bribery count and 2 years on

the theft count. (Reporter Record, Vol. 2, pp. 28, 29) The court ordered the

sentences to run concurrently. (Reporter Record, Vol. 2, p. 29) Appellant

requested the court to re-consider the sentence. In a second punishment hearing,

the court denied this request. (Record Record, Vol. 3. Pp. 5-6)

The certification of defendant’s right to appeal states that the case “ is not a

plea bargain case, and the Defendant has the right of appeal.” (Clerk Record, p. 44)

ISSUES PRESENTED

There are no issues presented.

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STATEMENT OF THE FACTS

Matters Pertinent To Anders Brief

1. Sufficiency of the indictment.

Count 1 of the indictment charges state jail felony theft under Texas Penal

Code, Sec. 31.03(a),(b),(e)(4)(D). Count 1 alleges each statutory element under

statute.

Count 2 of the indictment charges the offense of bribery under Texas Penal

Code, Section 36.02. Count 2 alleges each statutory element under statute.

The indictment meets all of the requisites of Texas Code of Criminal

Procedure, Article 22.02. (Clerk Record, p. 5)

2. Adverse pretrial rulings.

There are no adverse pretrial rulings.

3. Compliance with Texas Code Of Criminal Procedure, Section 26.13, and Padilla v. Kentucky.

Before pleading guilty defendant executed a comprehensive admonishment

and waiver of rights form. The requirements of Section 26.13, are fully met by the

execution of this form. (Clerk Record, pp. 30-41) Defendant is a citizen of the

United States. (Clerk Record, p. 37)

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4. Competency.

The issue of competency was not raised prior to sentencing so as to warrant

an inquiry by the trial court. See Texas Code Criminal Procedure, Art. 46B.004.

During the plea of guilty proceeding, defense counsel stated that he believed

appellant was competent.(Clerk Record, p. 39) In the waiver form, appellant

admits that he is competent. (Clerk Record, p. 36)

5. Voluntariness of appellant’s plea.

There is nothing in the record to show that appellant’s plea of guilty was

other than freely and voluntarily made. Defendant admits his pleas were freely and

voluntarily made. (Clerk Record, p. 45)

6. Adverse rulings during the sentencing hearing on objections or motions.

There were no adverse rulings during the sentencing hearing on objections

or motions.

7. Failure to object to fundamental error.

There is nothing in the record to show fundamental error. Counsel could find

no jurisdictional defects.

8. Legality of sentence.

The offense alleged in count one of the indictment is a third degree felony.

(Clerk Record, p. 5) The two-year sentence (with no fine) imposed is within the

range authorized by law for a third degree felony. Texas Penal Code, Sec. 12.34.

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The offense alleged in count two of the indictment is a second degree felony.

The six-years sentence with no fine imposed is within the range authorized by law

for a second degree felony. Texas Penal Code, Section 12.33

9. Accuracy of written judgment as to sentence and proper application of credit.

The written judgment accurately states the sentence of two years with no

fine pronounced in court for count 1. (Clerk Record, p. 107) The written judgment

accurately states the sentence of eight years with no fine pronounced in court for

count 2. (Clerk Record, p. 107 ) The judgment requires that the sentences run

concurrently, as pronounced. (Clerk Record, p. 107) The judgment also grants

credit for time in jail. (Clerk Record, p. 107 ). Texas Code Criminal Procedure,

Art. 42.03(1)(a) and Ex parte Bates, 978 S.W.2d 575, 577-78 (Tex. Crim. App.

1998).

10. Sufficiency of the evidence.

Appellant’s judicial confession is sufficient evidence to support the

court’s finding of guilty. (Clerk Record, p. 45) Dinnery v. State, 592 S.W.2d 343,

353 (Tex. Crim. App. 1979) (op. on reh'g); Tabora v. State, 14 S.W.3rd 332

(Tex.App., Houstion [14th Dist] 2000)

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11. Effective assistance of counsel.

Counsel finds nothing in the record to suggest ineffective assistance of

counsel. See Strickland v. Washington, 466 U.S. 668 (1984). Ex parte Martinez,

330 S.W. 3d 891, 900 (Tex. Crim. App. 2011)

12. Discovery Rights.

Appellant and this attorney made a written waiver of appellant's discovery

rights under Texas Code Of Criminal Procedure, Article 39.14 (Clerk Record, p.

43)

CONCLUSION AND PRAYER

After a careful and diligent review of the record, counsel can find no

arguable issues to bring forward for review, and prays that the motion to withdraw

be granted. See Anders v. California, 87 S.Ct. 1396 (1967); Gainous v. State, 436

S.W.2d 137 (Tex.Crim.App.1969); High v. State, 573 S.W.2d 807, 811

(Tex.Crim.App. [Panel Op.] 1978); and In Re Schulman, 252 S.W 3d 403

(Tex.Crim.App. 2008)

/s/ John Grant Jones

________________________

John Grant Jones Attorney At Law 208 Pipe Creek Lane Georgetown, Texas 78633 Tel: 361-815-2470 / Fax: 1-866-243-9810 Email: grant800@att.net SBN: 10917000

CERTIFICATE OF COMPLIANCE

I certify that the length of this brief meets the length requirements of Rule

9.4(i)(2)(B), Texas Rules Of Appellate Procedure. The number of words in this

document is 1431.

/s/ John Grant Jones

___________________________

John Grant Jones

CERTIFICATE OF SERVICE

I hereby certify that on May 28, 2015, I electronically filed the

foregoing document with the Clerk of the Thirteenth Court of Appeals, Corpus

Christi, Texas, using the Texas Efile System which will send notification of such

filing to:

Mr. Douglas Norman Nueces County District Attorney’s Office 901 Leopard Street Corpus Christi, Texas 78410

/s/ John Grant Jones

_______________________________

John Grant Jones