ACCEPTED
03-15-00238-CR
8017102
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/30/2015 3:34:54 PM
JEFFREY D. KYLE
CLERK
COURT OF APPEALS NUMBER 03-15-00238-CR
(District Court Number 71,326) FILED IN ********** 3rd COURT OF APPEALS AUSTIN, TEXAS
IN THE COURT OF APPEALS FOR 11/30/2015 3:34:54 PM
JEFFREY D. KYLE
THE STATE OF TEXAS Clerk
(Third Supreme Judicial District)
**********
TRACY LARANCE GORDON
Appellant
vs.
THE STATE OF TEXAS
**********
Appealed from the 264th Judicial District
Court of Bell County, Texas **********
APPELLANT'S MOTION TO WITHDRAW AND BRIEF **********
Respectfully Submitted,
TROY C. HURLEY Attorney for Appellant P.O. Box 767 312 East Central Avenue Belton, Texas 76513 (254) 939-9341 SBA No. 1031200
LIST OF PARTIES
TRACY LARANCE GORDON, Appellant TDCJ No. 01990081 Poluncky Unit 3872 FM 350 South Livingston, Texas 77351
MICHAEL F. WHITE, Attorney at Trial 100 Kasberg Drive, Suite A Temple, Texas 76502
TROY C. HURLEY, Attorney on Appeal P.O. Box 767 Belton, Texas 76513
BOB D. ODOM, Attorney for State P.O. Box 540 Belton, Texas 76513
-i-
TABLE OF CONTENTS
ITEMS PAGES
LIST OF PARTIES.................................... i
INDEX OF AUTHORITIES............................... iii
PRELIMINARY STATEMENT.............................. 1
FRIVOLOUS APPEAL STATEMENT......................... 4
CONCLUSION......................................... 9
CERTIFICATE OF SERVICE UPON STATE.................. 10
CERTIFICATE OF SERVICE UPON APPELLANT.............. 11
CERTIFICATE OF COMPLIANCE.......................... 12
LETTER OF TRANSMITTAL TO APPELLANT................. 13
APPELLANT’S MOTION FOR PRO SE ACCESS TO THE APPELLATE RECORD................................... 14
CERTIFICATE OF COUNSEL............................. 17
-ii-
INDEX OF AUTHORITIES
CASES PAGES
Anders v. California, 386 U.S. 738, 18 L.Ed. 2d 493, 87 S.Ct. 1396 (1967)........... 4
Currie v. State, 516 S.W. 2d 684(Tx.Cr.App. 1974).. 4
High v. State, 573 S.W. 2d 807 (Tx.Cr.App. 1978)... 4
Killingsworth v. State, 654 S.W.2d 724 (Tx.App. 14 Dist. 1983, pet. ref.)........ 6
Morales v. State, 587 S.W.2d 418 (Tx.Cr.App. 1979). 6
Ring v. State, 450 S.W.2d 85 (Tx.Cr.App. 1970)..... 6
Thomas v. State, 562 S.W.2d 240 (Tx.Cr.App. 1978).. 6
Tupper v. State, 506 S.W.2d 858 (Tx.Cr.App. 1974).. 7
Whitten v. State, 587 S.W. 2d 156 (Tx.Cr.App. 1979) 6
Ybarra v. State, 960 S.W.2d 742 (Tx.App. 6 Dist. 1997)......... 7
OTHER
Vernon’s Annotated Code of Criminal Procedure Article 26.13….................................4, 7 Article 26.13(a)(2) and (3)….................... 5 Article 26.13(a)(4)…............................ 6 Article 26.13(b)…............................... 6 Article 26.13(c)…............................... 7 -iii-
Vernon's Texas Code Annotated
V.T.C.A., Health and Safety Code, Section 481.115..2, 5
V.T.C.A., Penal Code, Section 12.35............... 5
-iv-
No. 03-15-00238-CR
(District Court Number 71.326)
TRACY LARANCE GORDON º IN THE THIRD COURT OF APPEALS Appellant º º
VS. º THIRD SUPREME JUDICIAL º
THE STATE OF TEXAS º DISTRICT, AUSTIN, TEXAS
APPELLANT'S MOTION TO WITHDRAW AND BRIEF
TO THE HONORABLE JUDGES OF THE TEXAS COURT OF APPEALS:
COMES NOW the undersigned Court Appointed Attorney
for the Appellant on appeal only and respectfully moves
the Court to allow him to withdraw as counsel herein
for the reason that he has carefully examined the
record herein and the law applicable to Appellant's
case and is unable to find any supportable grounds for
appeal and has concluded that the appeal of this cause
is wholly frivolous and in support hereof respectfully
shows the Court as follows:
PRELIMINARY STATEMENT
Appellant, Tracy Larance Gordan, was charged with the felony offense of Possession of a Controlled Substance, to-wit: Cocaine Less Than One Ounce as
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prohibited in V.T.C.A., Health and Safety Code, Section 481.115. He waived a jury (CR-I-31 through 32; RR-V-78) and entered a plea of guilty to the indictment (RR-V-78) before the 264th District Court of Bell County, Texas, Judge Martha Jane Trudo presiding, on February 3, 2015. There was no plea bargain with the State of Texas that the defendant receive an agreed sentence, only an agreement that the sentences of this case and two (2) others would all run concurrently (CR-I-33: RR-V-79). The trial judge accepted the plea bargain (RR-VI-42).)
The punishment phase of the trial was held before the 264th District Court of Bell County, Texas, Judge Martha Jane Trudo presiding, on March 19, 2015.
Appellant was found guilty (CR-I-42 through 44; RR-
VI-40) and his punishment was set by the Trial Court at two (2) years in the Texas Department of Criminal Justice, State Jail Division, and no fine (CR-I-42 through 44; RR-VI-40). Appellant filed a timely Notice of Appeal (CR-I-45).
References to the record in the brief are based on the following chart:
Clerk's Record--CR-I Reporter's Record:
RR-II—Habeas Corpus Hearing held on May 3, 2013. RR-III—Pretrial Hearing held on January 8, 2015. RR-IV—Pretrial Hearing held on January 12, 2015.
3
RR-V-Sentence Hearing held on February 3, 2015. RR-VI-Sentence Hearing held on March 19, 2015. RR-VII-Exhibit Volume
4
FRIVOLOUS APPEAL STATEMENT The undersigned Counsel, appointed to represent Appellant on appeal, after having fully examined the record herein, is of the opinion that said appeal is wholly frivolous and without merit and that no arguable points on appeal nor authorities to support such points are to be found in the record. Counsel, however, respectfully offers the following evaluation of the record as required in Anders v. California, 386 U.S. 738, 18 L.Ed. 2d 493, 87 S.Ct. 1396 (1967); High v. State, 573 S.W. 2d 807 (Tx.Cr.App. 1978); Currie v. State, 516 S.W. 2d 684(Tx.Cr.App. 1974).
The judgment of conviction herein was based upon Appellant's plea of guilty (RR-V-78), Appellant having waived a jury both orally before the Trial Court (RR-V- 78) and in writing (CR-I-31 through 32). The State and the Court both joined in that jury waiver. The acceptance of Appellant's plea by the Trial Court was thus governed by Article 26.13, V.A.C.C.P. That article requires the Court to admonish the accused as to certain specific matters prior to accepting his plea of guilty.
First, the Court must advise the defendant as to the range of punishment for the particular offense. In this case the Trial Court advised Appellant that the range of punishment for the offense of Possession of a
5
Controlled Substance, to-wit: Cocaine Less Than One Ounce is not less than one-hundred eighty (180) days or more than two (2) years in the state jail and a fine of up to $10,000.00 (RR-V-75 and 76). V.T.C.A., Health and Safety Code, Section 481.115 provides that Possession of a Controlled Substance, to-wit: Cocaine Less Than One Ounce is a State Jail felony. V.T.C.A., Penal Code, Section 12.35 provides that a state jail felony is punishable by imprisonment for not less than 180 (180) days and not more than two (2) years and may include a fine of up to $10,000.00. The Court thus properly admonished Appellant concerning the range of punishment possible for the offense.
Article 26.13(a)(2) and (3), V.A.C.C.P., requires the Court to make certain admonitions to the accused if his plea is in response to a plea bargain with the State. The Trial Court did advise Appellant that there was no plea bargain agreement in the case regarding the sentence the Appellant would receive. There was only an agreement between the State and the Appellant that the sentence he would receive would run concurrently with his sentence in Cause Number 71,325 (Appellate Number 03-15-00239-CR) and Cause Number 71,792 (Appellante Number 03-15099240-CR) (RR-VI-40).
These admonishments, therefore, were immaterial to
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this case and not required in order for the Court to be in substantial compliance with the statute. Whitten v. State, 587 S.W. 2d 156 (Tx.Cr.App. 1979).]
The Trial Court did not admonished Appellant as to the potential effect of a plea of guilty upon him should he not be a citizen of the United States because the Appellant advised the Trial Court that he was a citizen of the United States of America(RR-V-73 and 74). Terefore, such admonishments were not as required by Article 26.13(a)(4), V.A.C.C.P.
Finally, the Trial Court is required to ascertain that the defendant is mentally competent and that the plea of guilty is freely and voluntarily entered. Article 26.13(b), V.A.C.C.P. Appellant acknowledged that his plea was freely and voluntarily entered because he was, in fact, guilty and for no other reason (RR-V- 79). The Trial Court inquired of Appellant's counsel regarding his competency and found Appellant to be mentally competent prior to accepting his plea (RR-V- 78). Killingsworth v. State, 654 S.W.2d 724 (Tx.App. 14 Dist. 1983, pet. ref.) This finding was also based upon an extended dialogue between Appellant and the Trial Court. There was no issue raised as to his competency. Morales v. State, 587 S.W.2d 418 (Tx.Cr.App. 1979); Thomas v. State, 562 S.W.2d 240 (Tx.Cr.App. 1978); Ring
7
v. State, 450 S.W.2d 85 (Tx.Cr.App. 1970). Further, there is a recital in the Judgment to the effect that the Appellant appeared to be mentally competent (CR-I-42 through 44). Tupper v. State, 506 S.W.2d 858 (Tx.Cr.App. 1974)
There was clearly substantial compliance with Article 26.13, V.A.C.C.P. and such compliance is sufficient absent a showing that the accused was not aware of the consequences of his plea or that he was in some way misled or harmed by the admonishments of the Court. Article 26.13(c), V.A.C.C.P. The record as a whole clearly shows that Appellant was aware of the consequences of his plea and no such harm can be shown.
In support of Appellant's plea of guilty the State offered a Written Stipulation and Judicial Confession, signed by Appellant and his Counsel, wherein he admitted each and every element of the offense charged against him in the indictment (CR-I-33 through 40). This instrument includes Appellant's acknowledgment and waiver of his right to remain silent and to confront and cross-examine the witnesses against him.
The Appellant admitted his guilt in writing (CR-
I-33 through 40) and in sworn testimony (RR-VI-4). A judicial confession alone will sustain a conviction on a guilty plea and when a defendant testifies and admits guilt, he waives any error that might have occurred.
8
Ybarra v. State, 960 S.W.2d 742 (Tx.App. 6 Dist. 1997)
The indictment (CR-I-1 and 2) and the Judicial Confession (CR-I-33 through 40) contained all of the statutorily required elements of the offense charged against the Appellant. The Trial Court carefully inquired as to the fact that all waivers and consents executed by Appellant were freely and voluntarily entered, with full knowledge of the effect of those instruments. (RR-V-79). All the statutory requirements for the entry and acceptance of Appellant's plea of guilty and for the support of that plea have been fulfilled.
The Trial Court assessed punishment at two (2)
years in the Texas Department of Criminal Justice, State Jail Division, and no fine (CR-I-42 through 43; RR-VI-40). This was within the statutory range for the offense with which Appellant was charged and convicted.
There were no objections made by the State or by the Defense nor ruled upon by the Court during the trial. The record clearly shows that Appellant freely and voluntarily entered his plea of guilty after proper admonishment by the Trial Court and that plea was supported by his written stipulation as well as his oral admission of the commission of the offense.
Appellant was allowed to fully testify and could have call witness in his behalf for the purpose of
9
urging leniency from the Court in punishment.
CONCLUSION and PRAYER
Counsel for Appellant has examined the record herein and no arguable points of error can be found. Counsel, therefore, respectfully moves that he be allowed to withdraw as Attorney of Appellant herein.
Respectfully Submitted,
/s/ Troy C. Hurley______ Troy C. Hurley Attorney for Appellant P.O. Box 767 312 East Central Avenue Belton, Tx 76513 (254)939-9341 SBA# 10312000
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CERTIFICATE OF SERVICE UPON STATE
This is to certify that a true and correct copy
hereof was served upon Bob D. Odom, counsel for the
State of Texas, at the Bell County District Attorney's
Office in Belton, Texas, on this the 30th day of
November, 2015.
/s/ Troy C. Hurley_ Troy C. Hurley Attorney at Law
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CERTIFICATE OF SERVICE UPON APPELLANT
I, the undersigned court-appointed counsel for
Appellant, hereby certify that a true and correct copy
hereof has been served upon the Appellant by depositing
same, properly addressed to him:
TRACY LARANCE GORDON
TDCJ No. 01990081
Poluncky Unit 3872 FM 350 South
Livingston, Texas 77351
in the United States Mail by First Class and Certified
Mail. I further certify that a letter to Appellant,
which is attached hereto, accompanied the copy of the
brief and advised him of his right to add to or delete
from this brief and to file a brief of his own.
Appellant was also advised of his right to a copy
of the record of the proceedings against him.
SIGNED this 30th day of November, 2015.
/s/ Troy C/ Hurley Troy C. Hurley Attorney at Law
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CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the
length limitations of Texas Rule of Appellate Procedure
9.4(i)(3) as this brief contains one thousand seventy-
six (1,076) words, excluding the parts of the brief
exempted by Texas Rule of Appellate Procedure 9.4(i)(1);
a number which is less than the 15,000 words allowed
under Rule 9.4(i)(2)(B).
I also certify that this brief complies with the
typeface requirements of Texas Rule of Appellate
Procedure 9.4(e) because this has been written with a
conventional typeface using a 14-point font (with
footnotes no smaller than 12-points) using Microsoft
Office Word 2010 (version 14), in Courier New font.
/s/ Troy C. Hurley
Troy C. Hurley
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TROY C. HURLEY
Attorney at Law
P.O. Box 767
312 East Central Avenue
Belton, Texas 76513
(254) 939-9341 FAX (254) 939-2870
November 30, 2015
TRACY LARANCE GORDON, Appellant Inmate No. 01990081 Polunsky Unit Unit 3872 FM 359 South Livingston, Texas 77351
Re: Tracy Larance Gordon v. State of Texas Cause No. 03-15-00238-CR (Dist. Ct. No. 71,326)
Dear Mr. Gordon:
Enclosed you will find a copy of the brief which we are filing in your behalf in the Texas Court of Appeals in Austin, Texas. You are hereby advised that you have a right to add to or delete from this brief should you desire to do so. You also have the right to raise additional grounds of appeal by filing a pro se brief of your own in this case.
I have also enclosed a APPELLANT’S MOTION FOR PRO SE ACCESS TO THE APPELLATE RECORD for your use to aid you in obtaining the Appellate record from the District Clerk of Bell County, Texas. Address the envelope to the Third Court of Appeals in Austin, Texas. The address is in paragraph IV. Of the Motion.
We would further advise you that, as an indigent, you may request a record in your case by contacting the District Clerk at the Bell County Courthouse in Belton,
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Texas. We will continue to keep you informed of the progress of your appeal.
Sincerely,
/s/_Troy C. Hurley__ Troy C. Hurley Attorney at Law
Enclosure
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NO. 03-14-00000-CR
IN THE THIRD COURT OF APPEALS OF TEXAS
AT AUSTIN, TEXAS
TRACY LARANCE GORDON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
APPELLANT’S MOTION FOR PRO SE ACCESS TO THE APPELLATE RECORD
TO THE HONORABLE COURT OF APPEALS:
COMES NOW the Appellant in the above styled and numbered cause and
files this Motion for Pro Se Access to the Appellate Record.
I.
Appellant’s appointed counsel has filed a motion to withdraw and brief in
support of the motion, pursuant to Anders v. California, 386 U.S. 738 (1967).
II.
The undersigned Appellant wishes to exercise his right to review the
appellate record in preparing to file a pro se response to the Anders brief that
court-appointed counsel has filed in this case. By filing this motion, the
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undersigned Appellant asks this Court to provide him with free, pro se access to
the appellate record. See Kelly v. State, No. PD-0702-13, 2014 WL 2865901, at *3
(Tex. Crim. App. June 25, 2014)(designated for publication).
III.
The undersigned Appellant is presently incarcerated and lacks access to a
computer. For that reason, he respectfully requests that a paper copy of the
appellate record be provided to him.
IV.
This motion is addressed to the Third Court of Appeals, P.O. Box 12547,
Austin, Texas 78711-2547. This motion is delivered to the Third Court of Appeals
by U.S. Mail, on this the _____ day of _________, 2015.
WHEREFORE, PREMISES CONSIDERED, the Appellant respectfully
prays that the Court grant this Motion for Pro Se Access to the Appellate Record.
Respectfully submitted,
______________________________
Tracy Larance Gordon TDCJ# 01990081 Polunsky Unit 3872 FM 350 South_. Livingston, TX 77351
APPELLANT PRO SE
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NO. 03-15-00238-CR
TRACY LARANCE GORDON § IN THE COURT OF APPEALS §
v. § THIRD JUDICIAL DISTRICT §
THE STATE OF TEXAS § SITTING AT AUSTIN, TEXAS
CERTIFICATE OF COUNSEL
In compliance with the requirements of Anders v.
California, 386 U.S. 378 (1967), I, Troy C. Hurley, court-appointed counsel for appellant, [Name of Appellant], in the above referenced appeal, do hereby verify, in writing, to the Court that I have: 1. notified appellant that I filed a motion to withdraw as counsel with an accompanying Anders brief, and provided a copy of each to appellant;
2. informed appellant of his right to file a pro se response identifying what he believes to be meritorious grounds to be raised in his appeal, should he so desire;
3. advised appellant of his right to review the appellate record, should he wish to do so, preparatory to filing that response;
4. explained the process for obtaining the appellate record, provided a Motion for Pro Se Access to the Appellate Record lacking only appellant’s signature and the date, and provided the mailing address for this Court; and 5. informed appellant of his right to seek discretionary review pro se should this Court declare
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his appeal frivolous.
Respectfully submitted,
/s/ Troy C. Hurley
Attorney for Appellant