No. 07-15-00288-CR In the FILED IN 7th COURT OF APPEALS Court of Appeals AMARILLO, TEXAS For the 10/13/2015 11:11:00 AM VIVIAN LONG Seventh District of Texas CLERK
At Amarillo
Trial Court Cause No. B 18288-1002 In the 242nd District Court of Hale County, Texas
SERGIO MUSQUIZ, JR., Appellant
v.
THE STATE OF TEXAS, Appellee
_________________________________________________________________
ANDERS BRIEF IN SUPPORT OF MOTION TO WITHDRAW
_________________________________________________________________
TROY BOLLINGER State Bar No. 24025819 600 Ash Street Plainview, Texas 79072 Tel.: (806) 293-2618 Fax: (806) 293-8802 troy@laneybollinger.com Attorney for Appellant CERTIFICATE OF COUNSEL
The undersigned Counsel states that he has diligently reviewed the entire
appellate record in this case and certifies to this Honorable Court that this brief is
in compliance with the requirements Anders v. California, 87 S.Ct. 1396 (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); and Currie v. State, 515 S.W.2d 684
(Tex.Crim.App. 1974). Unfortunately for the Appellant, 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 also filed – “Motion to Withdraw”.
The undersigned has posted a copy of this brief to the Appellant. Counsel
has further informed Appellant by letter that it is this Attorney’s opinion that the
appeal is wholly without arguable grounds. Counsel further informs Appellant 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.
In preparing the following brief, Appellant Counsel has striven to exceed all
the requirements and expectations of a reviewing Court when receiving an Anders’ brief. In doing so, Counsel followed the Anders’ Guidelines specifically
promulgated by other Texas Appellate Courts. This Counsel was unable to find
guidelines specifically created and published by this Honorable Court. However,
we have created this brief to comport with the Guidelines promulgated by sister
Courts such as the Thirteenth (Corpus Christi) and Fourteenth (Houston) Courts of
Appeals. These Guidelines were found at
http://www.13thcoa.courts.state.tx.us/court/anders.asp and
http://www.14thcoa.courts.state.tx.us/pdf/AndersGuidelines.pdf respectively.
/s/ Troy Bollinger . TROY BOLLINGER
State Bar No. 24025819 600 Ash Street Plainview, Texas 79072 Tel.: (806) 293-2618 Fax: (806) 293-8802 troy@laneybollinger.com
Attorney for Appellant STATEMENT REGARDING ORAL ARGUMENT Appellant waives oral argument. Oral argument would not significantly aid the court in determining the legal and factual issues presented in this appeal.
NAMES OF ALL PARTIES TO TRIAL COURT’S JUDGMENT
Appellant: SERGIO MUSQUIZ, JR.
Counsel for Appellant on Appeal: TROY BOLLINGER SBN: 24025819 600 Ash Street Plainview, TX 79072 (806) 293-2618 Telephone (806) 293-8802 Fax troy@laneybollinger.com
Counsel for Appellant at Revocation of Community Supervision: Terry McEachern 109 East 6th Street Plainview, Texas 79072 (806) 293-2668
Counsel for the State: Wally Hatch, District Attorney of Hale County, Texas Meredith Bridges, Assistant District Attorney Address for the above listed State’s attorneys: HALE COUNTY DISTRICT ATTORNEY’S OFFICE 225 Broadway, Suite 1 Plainview, TX 79072 (806) 291-5241
Trial Judge: THE HONORABLE Kregg Hukill, Judge Presiding
i TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ..................................................................i
NAMES OF ALL PARTIES TO TRIAL COURT’S JUDGMENT ..........................................i
STATEMENT OF THE CASE.....................................................................................................1
ISSUE PRESENTED.....................................................................................................................6
STATEMENT OF FACTS............................................................................................................6
ARGUMENT & EXPLANATION...............................................................................................8
A) Anders briefs in general...................................................................................................8
B) Required Elements .........................................................................................................12
1. Sufficiency of the Indictment ....................................................................................12
2. Compliance with Texas Code of Criminal Procedure, Article 26.13 and, if appropriate, Padilla v. Kentucky, 130 s.ct. 1473 (2010). ........................................13
3. Whether the issue of competency was raised prior to sentencing, so as to warrant any inquiry by the court, and whether appellant was mentally competent when the court accepted the plea........................................................................................15
4. Whether the Appellant’s plea was freely and voluntarily made. ..........................16
5. Sufficiency of evidence, including a recitation of elements and the facts and evidence adduced at trial relevant to the offense upon which the conviction is based............................................................................................................................16
6. Any failure on the part of Appellant’s trial counsel to object to fundamental error. ...........................................................................................................................17
7. Whether the sentence imposed was within the applicable range of punishment.17
8. Whether the written judgment accurately reflects the sentence that was imposed and whether any credit was properly applied.........................................................18
C) Any Error From The Initial Plea Has Been Waived ........................................18
D) Revocation proceedings ............................................................................................20
1.) Standard .....................................................................................................................20
ii 2.) Application .................................................................................................................21
3.) Analysis.......................................................................................................................23
E) Examination of the record to determine if the appellant was denied effective assistance of counsel. .........................................................................................23
CONCLUSION ............................................................................................................................25
PRAYER.......................................................................................................................................27
CERTIFICATE OF SERVICE ..................................................................................................27
CERTIFICATE OF COMPLIANCE ........................................................................................28
iii INDEX OF AUTHORITIES Cases
Anders v. California, 87 S.Ct. 1396 (1967) ..........................................................................passim
Anthony v. State, 962 S.W.2d 242 (Tex.App - Fort Worth 1998) ................................................19
Bledsoe v. State, 178 S.W.3d 824 at 826-27 (Tex.Crim.App. 2005) ............................................11
Brumbalow v. State, 933 S.W.2d 298, (Tex.App.-Waco 1996, pet. ref’d) ...................................21
Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim.App.1993).........................................................20
Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974) ......................................................2, 9, 10
Ex Parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010) ..................................................24
Ex Parte Wilson, 956 S.W.2d 25 (Tex.Crim.App. 1997) .............................................................26
Garner v. State, 300 S.W.3d (Tex.Crim.App. 2009) ....................................................................11
High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978).............................................................2, 10
Holiday v. State, 983 S W.2d 326, 327 (Tex.App.- Houston [14th Dist] 1998) ...........................19
In re Schulman, 252 S.W.3d 403 at 407 (Tex.Crim.App. 2008) ...................................................8
Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App.1979).........................................................21
Joseph v. State, 3 S.W.3d 627, 640 (Tex.App.-Houston [14th Dist.] 1999, no pet.)................6, 20
Manuel v. State, 994 S.W.2d 658 (Tex.Crim.App - 1999) ...........................................................18
McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429 n.10 (1988).......................................8, 9
Mitchell v. State, 193 S.W.3d 153 (Tex.App.-Houston [1st Dist.] 2006, no pet.) .........................11
Naquin v. State, 607 S.W.2d 583, (Tex.Crim.App.1980) .............................................................21
Padilla v. Kentucky, 130 S.Ct. 1473 (2010)..................................................................................13
Rodriguez v. State, 799 S.W.2d 301 (Tex.Crim.App. 1990) ........................................................12
Russell v. State, 685 S.W.2d 413, (Tex.App.-San Antonio 1985, pet. ref’d) ...............................21
Sowells v. State, 45 S.W.3d 690 (Tex.App.- Waco 2001, no pet)...................................................9
iv Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991)..............................................2, 9, 10, 12
Stephens v. State, 35 S.W.3d 770 (Tex.App.-Houston [1st Dist.] 2000, no pet.) .........................26
Strickland v. Washington 466 U.S. 668 (1984)............................................................................23
Statutes
Texas Code of Criminal Procedure Section 1.14(b) ......................................................................12
Texas Code of Criminal Procedure, Article 1.15 ..........................................................................16
Texas Code of Criminal Procedure, Article 26.13 ........................................................................13
Texas Code of Criminal Procedure, Article 26.13(a)(1) ...............................................................14
Texas Code of Criminal Procedure, Article 26.13(a)(2) ...............................................................14
Texas Code of Criminal Procedure, Article 26.13(a)(3) ...............................................................14
Texas Code of Criminal Procedure, Article 26.13(a)(4) ...............................................................14
Texas Code of Criminal Procedure, Article 26.13(a)(5) ...............................................................15
Texas Code of Criminal Procedure, Article 26.13(a)(l)-(5) ..........................................................15
Texas Code of Criminal Procedure, Article 42. 12, Section 23(b)................................................19
Texas Code of Criminal Procedure, Article 42.12.........................................................................19
Texas Penal Code, Sections 19.02 .................................................................................................12
v TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Sergio Musquiz, Jr., Appellant, was indicted in cause number B 18299-1002
in the 242nd District Court of Hale County, Texas for the charge of “Prohibited
Substances or Items in a Correctional Facility”, alleged to have occurred on
November 28, 2009 [Clerk’s Record (hereinafter CR), p153]. Matt Hawkins was
originally appointed as Appellant’s Counsel pre-trial (or pre-plea) as evidenced by
the “Order Appointing Attorney” found in Clerk’s Record [CR, p20]. The Court
(the Honorable Judge Self) entered its standard “Standard Discovery Order” on
February 24, 2010 [CR, pp. 29-31].
Trial Counsel filed no motions pretrial. The State provided required
disclosures [CR, pp. 34-35]. The present case was set for a “Guilty Plea” on May
3, 2010 [CR, p37].
On May 3, 2010 the Appellant entered a plea of “Guilty” to the indictment as
charged to the Trial Court [CR, p55]. At the plea, the Defendant was represented
by Sara Smitherman. On that day the cause was pled for a Five (5) Years
confinement in the Texas Department of Criminal Justice, Institutional Division
with the sentenced ordered suspended. The Defendant was placed on probation for
1 five (5) years [CR, p55]. Prior to accepting the plea, the Defendant executed
required plea forms including:
1) Waiver of Jury Trial (State’s Exhibit #2), [CR, p43],
2) Admonishment of Rights, [CR, pp. 44-45],
3) Stipulation of Evidence (State’s Exhibit #1), [CR, pp. 41-42].
Ms. Smitherman signed each of the required plea papers and admonishments [CR,
pp. 41-48].
Following the execution of the plea paperwork and the admonition from the
bench, the Trial Court entered a specific “Certificate of Findings” which included:
“…his (Defendant’s) waiver of Jury Trial was knowingly and voluntarily and
intelligently entered with full knowledge of the consequences of waiving the same”, and
“…the foregoing warnings and rights were explained by the Court to the Defendant and
acknowledged by him and the Court finds that he understands them, that his waiver of these
rights and plea of Guilty was knowingly, freely and intelligently made, and that the Defendant is
mentally competent to stand trial”. [CR, p46]
The Trial Court found evidence sufficient to find the Appellant guilty of the
offense charged and (following the plea agreement); the Court suspended the
sentence and placed the Defendant on probation for a period of five (5) years.
Sentence additionally included a $2,000.00 fine and court costs ($335.00).
2 Judgment was pronounced in open court on May 3, 2010 and “signed and entered”
on May 6, 2010 [CR, pp. 55-56].
Defendant was placed on community supervision following the Guilty plea
entered on May 3, 2010. Conditions of the community supervision were
immortalized in written orders [CR, pp. 53-54].
The Appellant had a rocky time on probation. Mr. Musquiz was voluntarily
(by agreement) sent off to SAFPF [CR, pp. 63-65]. Appellant successfully
completed this program [CR, pp. 73-75].
Following his release from SAFPF, the State filed a “MOTION TO
REVOKE PROBATION” on January 20, 2012 [CR, pp. 76-79]. For these
proceedings, the Trial Court appointed Jody Myatt as counsel for Mr. Musquiz
[CR, p83].
Following appointment of Counsel, the matter was set for a hearing on
February 28, 2012 [CR, p86]. Appellant retained private Counsel, one Sara F.
Moore, to handle the revocation [CR, p91]. At the February 28 setting, the
Defendant was continued on probation and extended five (5) years until May 3,
2020 [CR, pp. 107-109].
In its motion, the State alleged that the Appellant had used alcohol, failed to
keep his officer informed, had failed to pay moneys as required, had failed to
3 perform community service as ordered, and had failed to complete a drug
counseling program [CR, pp. 77-78]. At the hearing, the Appellant pled “NOT
True” to the allegations in the Motion but the Court found the allegations to be
True [CR, p107].
The Court entered an “ORDER CONTINUING DEFENDANT ON
COMMUNITY SUPERVISION” which lays out allegations, findings, and the
modifications to Appellant’s probation ordered by the Court [CR, pp. 107-109].
The Court specifically ordered that the Appellant’s fines and fees be recalculated
and all delinquencies be reworked to zero ($0) [CR, p110].
Unfortunately, the State filed another “Motion to Revoke Community
Supervision” [CR, pp 111-114]. In its motion, the State alleged that the Appellant
had new law violations, used drugs, failed to keep his officer informed, had failed
to pay moneys as required, and failed to perform community service [CR, pp. 111-
113]. This motion was filed on March 19, 2015 [CR, p113].
For these proceedings, the Trial Court appointed Terry McEachern as
counsel for Mr. Musquiz [CR, p120]. Mr. McEachern filed a discovery motion in
the matter [CR, pp. 122-127].
The State filed a (much more detailed) “Amended Motion to Revoke
Community Supervision” on May 22, 2015 [CR, pp. 128-131].
4 The hearing on this amended Motion was eventually held on June 15, 2015
[Reporter’s Record {hereinafter RR}, p3]. At the hearing, the Appellant pled
“True” to some violations and “Not True” to others [CR, pp. 142-144]. After the
plea of “True” (to some violations), the Court found some specific allegations true
and revoked Appellant’s probation and sentence the Appellant to:
“the original sentence in this matter which was a period of five years and the payment of a $2,000 fine” [RR, pp. 15-16].
At the hearing and after the plea of “true”, the State called Marty Mejorado
(probation officer) to testify [RR, pp. 8-11] and rested.
The Defense called the Appellant [RR. pp. 12-14]. Appellant’s testimony
showed remorse, asked for help with treatment, and accepted responsibility for his
actions. It did not, however, refute the State’s Motion or Appellant’s own
Stipulated violations.
Following testimony, the Trial Court specifically revoked the Appellant’s
community supervision [RR, p15] and reinstated the original sentence of five (5)
years confinement [RR, p16]. Reasons for this revocation specifically included
new law violations, drug use, violation of curfew, failure to pay, and failure to
perform community service. These reasons were specifically annotated in the
“Judgment Revoking Community Supervision” [CR, pp. 153-154].
5 The undersigned attorney was appointed to represent Appellant on the 10th
of July, 2015 [CR, p165]. Appellant filed a pro se Notice of Appeal on July 16th,
2015 [CR, p167].
ISSUE PRESENTED
Counsel believes there are no arguable grounds for appeal remaining from the Appellant’s cause that rise to reversible error.
STATEMENT OF FACTS
The relevant facts and procedural points were all discussed in the
“Statement of the Case, above. The Appellant pled “Guilty” to the allegations in
the original case [CR, pp. 41, 43, & 55]. The Appellant further pled “True” to the
final allegations that he violated the terms of his community supervision at the
Revocation Hearing [CR, p153] and [RR, p7].
The Trial Court, after the revocation hearing, found the Appellant had
violated his terms of community supervision. The Trial Court sentenced Appellant
to a term of incarceration. It is from this finding and revocation that the Appellant
today attempts to appeal. However, the status of the case law is clear. If the Trial
Court can prove up one violation, then that Court does not abuse its discretion by
doing so. Joseph v. State, 3 S.W.3d 640, Tex. App. 14th – Houston. As was shown
from the plea and the testimony [RR, pp. 8, 10, 11, 13, 15, 17, 19, 26, & 27], the
6 Appellant admitted violating his community supervision. No legally valid reasons
were raised to excuse these violations in the record. Because of this, the Trial
Court was (unfortunately for the Appellant) well within its rights to revoke the
Appellant.
What the Appellant wanted (and still fervently wishes) was to request further
help in rehabilitation and redemption. He wanted help for his relapse and to be
able to continue to care for his family [RR, pp. 12-13]. Unfortunately, while these
are admirable, they are not legal issues which can overturn a Trial Court’s
decision. From the Trial Court’s own discussion [RR, p15] he was receptive to the
Appellant’s argument, but was not convinced that adequate efforts had not already
been made.
7 ARGUMENT & EXPLANATION
A) Anders briefs in general1
An attorney has an ethical obligation to refuse to prosecute a frivolous
appeal. In re Schulman, 252 S.W.3d 403 at 407 (Tex.Crim.App. 2008). If an
appointed attorney finds, following a professional and conscientious evaluation of
the record, that an appeal would be frivolous, his obligation to his client is to seek
leave to withdraw. Anders v. California, 87 S.Ct. 1396 (1967). Counsel’s
obligation to the Appellate Court is to assure it, through an Anders brief, that such
a complete review of the record has been undertaken and that the request to
withdraw is well-founded. Id.
A wholly frivolous appeal is one that “lacks any basis in law or in fact.”
McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429 at 438 n.10 (1988). A
reviewing Court must resolve doubtful issues in the Appellant’s favor. Id. In the
brief which accompanies his motion to withdraw, Counsel must make references to
the trial record as well as to any applicable statutes, rules, and cases that lead
Counsel to the conclusion that the appeal is frivolous. Sowells v. State, 45 S.W.3d 1 Appellate Counsel is aware of the Justices’ general preference against Anders briefs in general and in specific. Counsel took to heart the Honorable Chief Justice’s remarks at the Advanced Criminal Law seminar earlier this year. However, in a second revocation with a true plea, Counsel is at a loss. My office has scoured the record but there just is nothing here that will support a winning brief.
8 690 at 691 (Tex.App.- Waco 2001, no pet). The brief must contain references to
anything in the record that might arguably support the appeal, even though Counsel
believes that the argument will not succeed or is frivolous. Anders v. California,
supra; Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991).
Counsel is not required to make arguments that would not be made on behalf
of a client who has retained Counsel for an appeal. Counsel is not required to
make arguments for which there is no merit. Currie v. State, 516 S.W.2d 684
(Tex.Crim.App. 1974). If Counsel concludes that there are no arguable grounds
for appeal, then Counsel should so state and should make references to the record,
statutes, and cases which support that conclusion. Stafford v. State, supra; High v.
State, 573 S.W.2d 807 (Tex.Crim.App. 1978). When discussing the record,
Counsel must discuss the evidence introduced at trial and must provide the
Appellate Court “with ready references to the record.” Stafford v. State, supra at
510 n. 3; High v. State, supra. Conclusory statements in the brief are insufficient.
Anders v. California, supra; High v. State, supra; Currie v. State, supra.
Counsel must furnish a copy of the motion to withdraw and a copy of the
brief to appellant and must (also) advise Appellant of his right to review the record
and to file a pro se brief. Counsel must certify or otherwise show the Appellate
Court that Appellant has been furnished with a copy of the motion and brief and
9 that Appellant has been advised of his right to obtain the record and to file a pro se
brief.
After Appellant raises the points that he wishes to raise, or the time has
passed for him to do so, the Appellate Court must conduct an independent
examination of the proceedings and determine whether the appeal is indeed wholly
frivolous. Anders v. California, supra; Mitchell v. State, 193 S.W.3d 153
(Tex.App.-Houston [1st Dist.] 2006, no pet.). If the Court finds that the appeal is
frivolous and that there are no arguable grounds for appeal, it will grant the motion
to withdraw and affirm the judgment of the Trial Court. Garner v. State, 300
S.W.3d 763 at 766 (Tex.Crim.App. 2009). Although a reviewing Court may issue
an opinion explaining why the appeal lacks arguable merit, it is not required to do
so. Id., at 767. If the Court determines that there are arguable grounds, it will
abate the appeal and remand the cause to the Trial Court with instructions that the
Trial Court appoint new and different Counsel to represent Appellant on appeal to
present those arguable grounds, as well as any others that new Counsel might wish
to present. Bledsoe v. State, 178 S.W.3d 824 at 826-27 (Tex.Crim.App. 2005).
The Appellate Court does not make a decision on the merits of any issue, except to
determine whether an appeal is wholly frivolous and that there either are or are not
arguable grounds for appeal. Anders v. California, supra; Stafford v. State, supra.
An Appellant may challenge a holding that there are no arguable grounds for
10 appeal by filing a petition for discretionary review in the Court of Criminal
Appeals. Bledsoe, supra, at 827-828, fn 6.
B) Required Elements
1. Sufficiency of the Indictment
The Clerk’s Record reflects that the Appellant was indicted for the felony
offense of “Prohibited Substances or Items in a Correctional Facility” [CR, p22].
The indictment complied with all the requirements of charging the above offense
per Texas Penal Code, Sections 22.02.
No motion to quash the indictment was filed or requested. Any claim of a
defect or want of sufficient notice was waived by the failure to file a motion to
quash the indictment. Rodriguez v. State, 799 S.W.2d 301 (Tex.Crim.App. 1990);
and Texas Code of Criminal Procedure Section 1.14(b).
2. Compliance with Texas Code of Criminal Procedure, Article 26.13 and, if appropriate, Padilla v. Kentucky, 130 s.ct. 1473 (2010). In Padilla v. Kentucky, the U.S. Supreme Court held that the Sixth
Amendment requires Defense Counsel to provide affirmative, competent advice to
noncitizen defendants regarding immigration consequences of guilty pleas and that
absence of such advice may be a basis for a claim of ineffective assistance of
counsel. Padilla v. Kentucky, 130 S.Ct. 1473 at 1482-84 (2010).
11 There is no evidence or indication of any kind within the Record that the
Appellant is not a United States citizen. The Appellant neither raised nor currently
raises a complaint that Counsel at the plea failed to conduct Padilla’s required
warnings. Further, the admonishments of the Court include the required
immigration admonishments [CR, p44]
With respect to Texas Code of Criminal Procedure, Article 26.13 (“Plea of
Guilty”), written admonishments were signed by the Appellant, which indicated
his understanding of the following:
Range of punishment. Texas Code of Criminal Procedure, Article 26.13(a)(1). The Appellant signed an “ADMONITION OF RIGHTS” [CR, pp. 52-53]
that properly admonished him that the offense he was pleading guilty to carried a
punishment of “CONFINEMENT FOR A TERM FROM 2 TO 10 YEARS IN
PRISON AND AN OPTIONAL FINE NOT TO EXCEED $10,000.00” [CR, p44].
This admonishment is, in fact, the true and correct range of punishment for the
offense which the Appellant pled “Guilty”;
Admonishment regarding the fact that any recommendation of punishment by the prosecutor is not binding on the Court, but that if the Court chose to reject the agreement, the Defendant could withdraw his guilty plea. Texas Code of Criminal Procedure, Article 26.13(a)(2).
Admonishment that if the punishment assessed by the Court did not exceed the punishment recommended by the prosecutor, the Trial Court must give
12 its approval before any appeal could be undertaken (except for matters raised by written motions filed prior to trial. Texas Code of Criminal Procedure26.13(a)(3) ..
Admonishment informing the Defendant that if he is not a U.S. citizen, his plea of guilty or nolo contendere could result in deportation. Texas Code of Criminal Procedure, Article 26.13(a)(4).
As with the range of punishment, he Appellant signed an “ADMONITION OF
RIGHTS” containing each piece of appropriate language [CR, pp 44-45].
Admonishment concerning sex offender registration for certain offenses. Texas Code of Criminal Procedure, Article 26.13(a)(5).
There was no such admonishment, as the Appellant’s charged offense does
not carry such consequences [CR, pp. 55 & 153].
From the above, it is clear that the Trial Court provided all the
admonishments necessary under Texas Code of Criminal Procedure, Article
26.13(a)(l)-(5), and that the Appellant indicated that he understood each of them.
3. Whether the issue of competency was raised prior to sentencing, so as to warrant any inquiry by the court, and whether appellant was mentally competent when the court accepted the plea. There is no suggestion that the Appellant’s competency was an issue in this
case. There were no motions filed in the case regarding possible incompetency or
insanity. At the motion to adjudicate hearing, the Appellant did not complain of
any mental problems and testified that he had never been treated for any kind of
13 mental problem [RR, p5]. Defense Counsel stated that she believed the Appellant
to be competent [RR, p5].
4. Whether the Appellant’s plea was freely and voluntarily made. Each and every one of the required admonitions is present and covered by
the Trial Court. Following the execution of the plea paperwork, the Trial Court
entered a specific “Certificate of Findings” which included:
“…the Court having informed the Defendant that he has the right to a Jury
Trial and having made inquiry as to whether his waiver of Jury Trial was
knowingly and voluntarily and intelligently entered with full knowledge of the
consequences of waiving the same and the Waiver is accepted.”,
and
“…the foregoing warnings and rights were explained by the Court to the
Defendant and acknowledged by his and the Court finds that he understands them,
that his waiver of these rights and plea of GUILTY was knowingly, freely and
intelligently made, and that the Defendant is mentally competent to stand trial”.
[CR, p46]
14 5. Sufficiency of evidence, including a recitation of elements and the facts and evidence adduced at trial relevant to the offense upon which the conviction is based. Article 1.15, Tex. Code Crim. Proc. Ann., provides that the State offer
sufficient proof to support any judgment, even one based upon a guilty plea before
the Court. This was accomplished in this case through the admission of a written
“Stipulation of Evidence” [CR, p41]. The Appellant filled out this stipulation
(State’s Exhibit #1 at Guilt / Innocence) which accurately set out the allegations of
the indictment [CR, p22].
6. Any failure on the part of Appellant’s trial counsel to object to fundamental error. It is unclear what “fundamental error” could have existed in this case. The
indictment was correctly pled and the undersigned has certainly not detected any
other fundamental errors to which an objection should have been posed.
7. Whether the sentence imposed was within the applicable range of punishment. Here also, the Appellant is clearly unhappy with the final result from the
revocation. Unfortunately, the Appellant was indicted and pled to a felony offense.
To these charges, he pled guilty [CR, pp. 55]. This made the punishment range (as
discussed above) two (2) years to ten (10) years confinement in the Institutional
Division of the Texas Department of Criminal Justice. The punishment also
included the possibility of a fine not to exceed $10,000.00. Therefore, the sentence
15 which was assessed was well within the available range of punishment. The Court
allowed a previous revocation to pass and sent the Appellant to SAFPF (the most
strenuous treatment the state can provide). Even though the Appellant clearly
desires another chance, the sentence ordered is both totally legal and what he
originally pled to.
8. Whether the written judgment accurately reflects the sentence that was imposed and whether any credit was properly applied. The final judgment (JUDGMENT REVOKING COMMUNITY
SUPERVISION) in cause number B 18299-1002 accurately reflects a conviction
for “PROHIBITED SUBSTANCES OR ITEMS IN A CORRECTIONAL
FACILITY” [CR, p153]. The judgments accurately list the offense as a “3RD
DEGREE FELONY”. The judgments reflect a “FIVE (5) YEAR” sentence. As to
credit for time served, the judgment states the previous time periods that the
Appellant spent in confinement and that time was to be credited to the Appellant
[CR, p153]. The Appellant has raised no complaints as to any errors in the time so
ordered.
C) Any Error From The Initial Plea Has Been Waived A defendant placed on community supervision may raise issues relating to
the conviction only in appeals taken when community supervision is originally
imposed. Manuel v. State, 994 S.W.2d 658 at 661 (Tex.Crim.App – 1999).
16 The failure to timely appeal from a conviction resulting in community
supervision waives the right to appeal. Texas Code of Criminal Procedure, Article
42.12, Section 23(b), Anthony v. State, 962 S.W.2d 242 at 245 (Tex.App - Fort
Worth 1998). In this case, no notice of appeal was given at the time Appellant
received community supervision. No attempt to appeal was offered before, during,
or after the initial proceedings which created the Appellant’s deferred adjudication
probation. The only notice of appeal was filed after Appellant’s community
supervision was finally revoked following this motion and hearing [CR, p153]. A
Defendant whose community supervision is revoked may only appeal issues from
the revocation. Code of Criminal Procedure, Article 42 12, Section 23(b), Holiday
v. State, 983 S W.2d 326, 327 (Tex.App.- Houston [14th Dist] 1998). An issue
regarding the original plea granting community supervision may not be raised on
an appeal filed after community supervision is revoked. Manuel, 994 S.W.2d at
661.
In this matter, the Appellant did NOT attempt to refute the allegations of the
original charge at any point in the record.
D) Revocation proceedings
1.) Standard The burden of proof is on the State to show by a preponderance of the
evidence that the probationer violated a condition of probation as alleged in the
17 motion to revoke in any proceeding to revoke any community supervision. Cobb v.
State, 851 S.W.2d 871, 873 (Tex. Crim.App.1993). The State satisfies this burden
when the greater weight of credible evidence before the court creates a reasonable
belief that it is more probable than not that a condition of probation has been
violated as alleged in the motion to revoke. Joseph v. State, 3 S.W.3d 627, 640
(Tex.App.-Houston [14th Dist.] 1999, no pet.).
When there is evidence to support a revocation, the Appellate Courts must
review the evidence in the light most favorable to the judgment. Reviewing Courts
must give deference to the Trial Court as the sole trier of facts, the credibility of
the witnesses, and the weight to be given to the evidence presented. Russell v.
State, 685 S.W.2d 413, 419 (Tex.App.-San Antonio 1985, pet. ref’d); and see
Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App.1979). This review is
conducted under the abuse of discretion standard. Naquin v. State, 607 S.W.2d
583, 586 (Tex.Crim.App.1980). When the standard of review is abuse of
discretion, the record must simply contain some evidence to support the decision
made by the Trial Court. Brumbalow v. State, 933 S.W.2d 298, 300 (Tex.App.-
Waco 1996, pet. ref’d).
2.) Application In this case, the Trial Court specifically ruled that the Defendant violated his
conditions of community supervision by:
18 1) Defendant committed an offense,
2) Defendant used marijuana, cocaine, and methamphetamine, 3) Defendant violated curfew, 4) Defendant failed to pay, and 5) Defendant failed to perform community service [CR, p154]. These specific allegations may be found in the filed Amended Motion to
Revoke [CR, pp. 128-131]. The State’s proof supporting for each is as follows:
It is an unavoidable fact that the Appellant signed a Stipulation of Evidence
[CR, pp. 142-144] to the relevant violations. In addition, he pled true to each
before the Trial Court:
THE COURT: At this time you would have the right to have the allegations against you read out loud here in open court, or you can waive reading those allegations.
What do you wish to do?
THE DEFENDANT: I wish to waive those.
THE COURT: To the allegations in the State's Amended Motion to Revoke Community Supervision, other than Allegation 1-C which has been abandoned, how do you plead, true or not true?
THE DEFENDANT: True.
THE COURT: Sir, are you pleading true because the allegations are true and for no other reason?
THE DEFENDANT: Yes, sir. [RR, p7]
The Appellant provided all the State needed for evidence to support the
decision made by the Trial Court. The Appellant violated the terms of his
19 probation (more than once). The Appellant admitted not performing his probation.
There is really no question as to whether this is supported to the preponderance
standard.
3.)Analysis The record does NOT support a challenge to any of the findings which
support the revocation order. The burden any Appellant carries when appealing an
order revoking community supervision is to challenge ALL the findings. Joseph v.
State, 3 S.W.3d 640. The record does not even challenge a single finding. The
finding of a single violation will support an order of revocation. Joseph at 640.
Here, the ONLY evidence that exists is that it is more likely than not that the
Appellant violated the conditions of probation alleged in the motion. Thus, the
Trial Court did not abuse its discretion in revoking the Appellant’s probation.
Joseph at 640.
E) Examination of the record to determine if the appellant was denied effective assistance of counsel. Every Appellant is absolutely entitled to effective assistance of Counsel
throughout the trial. In Strickland v. Washington 466 U.S. 668 at 694 (1984), the
Supreme Court set out the two-part test for judging ineffective assistance of
Counsel. To obtain relief under this test, an applicant must show:
1) “that his counsel’s performance was unconstitutionally deficient.”, and
20 2) “there is a reasonable probability—one sufficient to undermine confidence
in the result—that the outcome would have been different but for his
counsel’s deficient performance.” Ex Parte Harrington, 310 S.W.3d 452 at
458 (Tex. Crim. App. 2010).
There is no evidence in the record that either original or final Counsels’
performances were deficient. The only possible question we could contemplate
concerns the Appellant’s contentions that did not spend enough time with any of
his Counsels at the Trial Court level. However, as discussed above, this is outside
the record, not supportable by the available evidence, and a remedy is not available
in this direct appeal in the absence of evidence. There is simply nothing in the
record to support this issue (if it exists at all). Even the Appellant does not say any
original or subsequent Trial Counsel was ineffective in any specific performance.
When discussing Counsel at the adjudication hearing, there appears that
there was nothing more he could bring to the table. The Appellant pled guilty, got
on probation, and failed. One does not wish to sound harsh, but drug use and new
law violations will get one revoked 9 times out of ten. While any Counsel might
have approached the case differently, there is no indication of any lack of
professional treatment or performance. In light of these facts, it is unclear what
else could have been done.
21 It IS clear that the performance was well within the boundaries of what is
professionally acceptable. The record does NOT “affirmatively demonstrate” any
potential ineffectiveness. There was NO reasonable probability that the outcome of
this hearing would have been different but for Counsel’s actions. Nothing in the
record comes even close to establishing this. To claim ineffective assistance at the
adjudication in this particular set of facts would be frivolous.
CONCLUSION
Unfortunately, Appellate Counsel can find no valid arguable grounds
remaining from the Appellant’s plea of Guilty or from the revocation hearing
finally assigning punishment. For the reasons stated above, there is simply no
valid argument still to present.
A copy of the entire appellate record (which consists of one volume of the
Clerk’s Record and one volume of the Reporter’s Record) has been sent to the
Appellant at his current address, which is:
Sergio Musquiz, Jr. c/o Yolanda Musquiz PO Box 1011 Hale Center, TX 79041
(address confirmed by Appellant on 10/12/2015)
22 The undersigned has also sent a letter with the copy of the record, explaining
further the import of this brief and how the Appellant might pursue issues on an
11.07 writ that cannot be raised on direct appeal. A copy of this brief is also being
sent to the Appellant, as is the attached Motion to Withdraw. Anders v.
California, supra and Stephens v. State, 35 S.W.3d 770 at 771 (Tex.App.-Houston
[1st Dist.] 2000, no pet.) (motion to withdraw pursuant to Anders brief is properly
directed to the Appellate Court, not the Trial Court).
The undersigned has informed the Appellant that he may, should this Court
grant the undersigned’s Motion to Withdraw, pursue the matter on his own.
Further, the Appellant is notified of his right to pursue discretionary review in the
Court of Criminal Appeals. Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App.
1997).
PRAYER
For the reasons stated above, the undersigned prays that he be allowed to
withdraw from representing the Appellant in this case, and that the Appellant be
given the opportunity to file his own brief, should he so desire.
Respectfully Submitted,
23 State Bar No. 24025819 600 Ash Street Plainview, Texas 79072 Tel.: (806) 293-2618 Fax: (806) 293-8802 troy@laneybollinger.com Attorney for Appellant
CERTIFICATE OF SERVICE
Pursuant to Tex.R. App. Pro. R. 9.5(a) & (e), I certify that on or about October 13, 2015, I presented a copy of the foregoing Appellant’s Brief with the District Attorney’s Office for Hale County, and mailed a copy to Appellant.
/s/ Troy Bollinger . TROY BOLLINGER Counsel for the Appellant
CERTIFICATE OF COMPLIANCE
I, Troy Bollinger, attorney for Sergio Musquiz, Jr., Appellant, certify that
this document was generated by a computer using Microsoft Word which indicates
that the word count of this document is 6,072 words as required by Tex.R. App. P.
9.4 (i).
/s/ Troy Bollinger . TROY BOLLINGER Counsel for the Appellant