State v. Fox

784 So. 2d 24, 0 La.App. 5 Cir. 1409, 2001 La. App. LEXIS 549, 2001 WL 370225
CourtLouisiana Court of Appeal
DecidedMarch 14, 2001
DocketNo. 00-KA-1409
StatusPublished

This text of 784 So. 2d 24 (State v. Fox) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fox, 784 So. 2d 24, 0 La.App. 5 Cir. 1409, 2001 La. App. LEXIS 549, 2001 WL 370225 (La. Ct. App. 2001).

Opinion

JjMcMANUS, Judge.

Defendant, Jonathan A. Fox, here appeals his conviction for third offense DWI. For the reasons that follow, we affirm Defendant’s conviction and sentence.

STATEMENT OF THE CASE

Defendant was charged in a bill of information on January 20, 2000, with third offense driving while intoxicated in violation of LSA-R.S. 14:98(D). After a trial on May 31, 2000, a six-person jury unanimously found Defendant guilty as charged. Defendant was subsequently sentenced to five years at hard labor with the first six months to be served without the benefit of probation, parole or suspension of sentence. In addition, Defendant was ordered to pay a $2,000.00 fine and his car was ordered to be seized, impounded and sold at auction. Thereafter, he filed a Motion to Reconsider Sentence which was denied by the trial court. Defendant now appeals his conviction and sentence.

FACTS

On April 6, 1999, Stephanie Toups was stopped at a red light on Jefferson | ^Highway at its intersection with Sauve Road when Defendant, Jonathan Fox, rear-ended her vehicle. The impact was so forceful that it pushed Ms. Toups’s vehicle through the intersection. Defendant fled the scene of the accident and was followed by Shane Bouvier, who had been stopped at the same red light and witnessed the accident.

Mr. Bouvier followed Defendant to an auto repair shop at which time Mr. Bouvier flagged down a passing police officer, Deputy Roy Guggenheim. Defendant subsequently moved his car to a used car lot. Trooper Robert Cousins subsequently arrived at the scene and observed Defendant as he was being carried into an ambulance. Trooper Cousins noted Defendant’s eyes were glassy and his speech was slurred. At the hospital, Trooper Cousins saw Defendant staggering down the hallway and leaning on the wall for support. Defendant told Trooper Cousins that he had taken Vicodin and Soma. Defendant submitted to a urinalysis which revealed the presence of hydrocodone, an active ingredient in Vicodin.

Defendant was later arrested at his residence where he was found hiding under a bed.

REVIEW PURSUANT TO ANDERS v. CALIFORNIA

Defense counsel has filed a brief pursuant to the procedure approved by the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), discussed in State v. [27]*27Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990), approved by State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, and adopted by this Court in State v. Bradford, 95-929, 95-930 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108. In particular, counsel has asserted that he could not find any non-frivolous issues to raise on appeal and seeks to withdraw as defense counsel. In his brief, defense counsel addresses and dismisses as possible issues the sufficiency of evidence and excessiveness of sentence. Neither defense counsel nor the State noted any errors patent.

lain conformity with established procedure, therefore, upon receipt of defense counsel’s Anders brief, this Court mailed Defendant a certified letter advising him that his appellate counsel had found no non-frivolous issues for appeal and gave Defendant until October 26, 2000, to file a supplemental brief if he so desired. As of this date, Defendant has not filed a supplemental brief.

In State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242, the Louisiana Supreme Court revisited the Anders procedures outlined in State v. Benjamin, supra, and adopted by this Court in State v. Bradford, supra, and stated that the brief filed by defense counsel “must review not only the procedural history of the case and the' evidence presented at trial but must also provide ... a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Defense counsel is required to “cast an advocate’s eye over the trial record and consider whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Jyles, supra at 242.

In the present case, appellate counsel’s brief adequately reviews the procedural history of the case and the evidence presented at trial, and provides a detailed assessment of whether the appeal is worth pursuing, thereby satisfying the requirements of Jyles.

When an Anders brief is filed, the appellate court reviews (1) the bill of information or indictment to insure the Defendant was properly charged; (2) all minute entries to insure the Defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) all pleadings in the record; (4) a review of the jury sheets; and (5) all transcripts to determine if any ruling provides an arguable basis for appeal. State v. Bradford, supra at 1110-1111.

In conducting this review, there does not appear to be any arguable basis |4for appeal. Defendant was properly charged in the bill of information and was present at all crucial stages of the proceedings. The six-person jury was proper under LSA-C.Cr.P. art. 782 and the verdict was correct. And, the sentence imposed by the trial court is legal as authorized by LSA-R.S. 14:98(D).1

In addition, a review of the pleadings and transcripts does not reveal any basis for appeal. Prior to trial, Defendant filed a Motion to Suppress his state[28]*28ment on the basis it was not free and voluntary. After a hearing, the trial court denied Defendant’s Motion to Suppress his statement. The record reveals that the officer to whom Defendant made a statement testified that he had advised Defendant of his Miranda rights and that Defendant appeared to understand his rights. The officer further testified that he did not threaten Defendant or make any promises to Defendant in exchange for his statement.2

Defendant also filed a Motion in Limine seeking to limit the testimony of the victim. In particular, Defendant sought to prevent the victim from testifying regarding the accident, the extent of the injuries she received when Defendant struck her car, and the impact the injuries have had on her life on the basis that such testimony would be prejudicial and irrelevant. A hearing was held and the trial court granted the motion in part and denied the motion in part. Specifically, the trial court ruled the victim could testify about the accident and the nature of | sher resulting injuries but could not testify about the extent of her medical treatment due to the injuries and the impact of the injuries on her life. The trial court is vested with wide discretion in determining the relevancy of evidence and in weighing the probative value of the evidence with its potential prejudice. And, absent an abuse of discretion, the trial court’s ruling will not be disturbed on appeal. State v. Ratcliff, 98-101 (La.App. 5 Cir. 2/23/99), 731 So.2d 356, writ denied, 99-1112 (La.9/3/99), 747 So.2d 541. A review of the record does not indicate the trial court abused its discretion in limiting the nature and extent of the victim’s testimony.

Furthermore, there appears to be sufficient evidence to support Defendant’s conviction for third offense driving while intoxicated.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
State v. Benjamin
573 So. 2d 528 (Louisiana Court of Appeal, 1990)
State v. Weiland
556 So. 2d 175 (Louisiana Court of Appeal, 1990)
State v. Mouton
653 So. 2d 1176 (Supreme Court of Louisiana, 1995)
State v. Bradford
676 So. 2d 1108 (Louisiana Court of Appeal, 1996)
State v. Haynes
676 So. 2d 1120 (Louisiana Court of Appeal, 1996)
State v. Jyles
704 So. 2d 241 (Supreme Court of Louisiana, 1997)
State v. Snyder
700 So. 2d 1082 (Louisiana Court of Appeal, 1997)
State v. Watts
735 So. 2d 866 (Louisiana Court of Appeal, 1999)
State v. Ratcliff
731 So. 2d 356 (Louisiana Court of Appeal, 1999)
State v. Oliveaux
312 So. 2d 337 (Supreme Court of Louisiana, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
784 So. 2d 24, 0 La.App. 5 Cir. 1409, 2001 La. App. LEXIS 549, 2001 WL 370225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fox-lactapp-2001.