ACCEPTED 13-15-00258-CR FILED THIRTEENTH COURT OF APPEALS IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS CORPUS CHRISTI 9/30/2015 8:48:43 AM Dorian E. Ramirez CLERK
Appellate Cause No. 13-15-00258-CR 09/30/15
CLERK ******************************************************** RECEIVED IN 13th COURT OF APPEALS
IN THE COURT OF APPEALS9/30/2015 8:48:43 AM CORPUS CHRISTI/EDINBURG, TEXAS
THIRTEENTH JUDICIAL DISTRICT AT CORPUS CHRISTI, TEXAS DORIAN E. RAMIREZ Clerk
******************************************************** WAYMOND ANDERSON,
Appellant.
v.
THE STATE OF TEXAS,
Appellee.
********************************************************** Appeal from Cause Number 09-CR-2559-F In the 214th Judicial District Court of Nueces County, Texas **********************************************************
ANDER’S BRIEF
********************************************************** CORETTA T. GRAHAM Attorney at Law SBN 50511851 Graham Legal Services 3206 Reid Drive, suite 105 Corpus Christi, TX 78404 (361) 723-1530 office (361) 723-1531 fax grahamlegalservices@yahoo.com (E-mail)
COUNSEL FOR APPELLANT
pg. 1 IDENTITY OF PARTIES AND COUNSEL
Appellant WAYMOND ANDERSON TDC#01997761 TDCJ – DOMINGUEZ UNIT 6535 Cagnon Road San Antonio, TX 78252
Counsel for Appellant (Trial) At the Trial, the defendant was represented by: LAURA RAMOS SBN 24079179 400 Mann, Suite 605 Corpus Christi, TX 78401 Phone: 361-991-2068 Fax: unknown
Counsel for Appellant (Appeal) On Appeal, the defendant is represented by: CORETTA T. GRAHAM SBN 50511851 3206 Reid Drive Suite 105 Corpus Christi, Texas 78404 Phone: 361-723-1530 Fax: 361-723-1531
Counsel for Appellee The Honorable Mark Skurka Nueces County District Attorney Office 901 Leopard, rm. 205 Corpus Christi, TX 78401 Phone: 361-888-0400 Fax: 361-888-0700
pg. 2 TABLE OF CONTENTS Item Page
Identity of the Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-12
Prayer/Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
pg. 3 INDEX OF AUTHORITIES
United States Supreme Court Cited at Page
Anders v. California, 386 U.S. 738 (1967) 6, 7
Court of Appeals/ Court of Criminal Appeals Cited at Page
Kelly v. State, PD-0702-13, 2014 WL 2865901, at **1–4 (Tex. Crim. App. June 25, 2014) 6, 8
In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) 8
Hawkins v. State, 112 S.W.3d 340 (Tex. App.—Corpus Christi 2003, no pet.) 8
pg. 4 STATEMENT OF THE CASE
On or about August 6, 2009, Waymon Anderson (“Anderson”) was indicted
for Felony Theft, a state jail felony. [CR, Pg. 5, 32] On September 21, 2009,
Anderson pled guilty and was placed on deferred community supervision for two
years. [CR, Pg. 70] On July 11, 2001, Anderson’s community supervision was
modified and extended twelve months. [CR, Pg. 78] On August 22, 2012,
Anderson’s community supervision was modified and extended another twelve
months. [CR, Pg. 79-80] On August 8, 2013, Anderson’s community supervision
was modified and extended a third time for two years. [CR, Pg. 81-82]
On May 15, 2014, Anderson’s community supervision was modified for a
payment plan without an extension. [CR, Pg. 83-85] March 18, 2015, the State filed
a motion to revoke Anderson community supervision. [CR, Pg. 97] On May 5, 2015,
Counsel was appointed. [CR, Pg. 86] On May 12, 2015, a revocation hearing was
held and Anderson was given a sentence of twenty months at the Texas Department
of Criminal Justice, State Jail Division. [CR, Pg. 95-96] The trial court certified
Anderson’s right to appeal. [CR, Pg. 94] Counsel was appointed for Anderson’s
appeal on June 2, 2015. [CR, Pg. 103]
pg. 5 STATEMENT REGARDING ORAL ARGUMENT
I am not requesting oral argument. Further, I have filed a motion to withdraw
as counsel and have filed this brief pursuant to Anders v. California, 386 U.S. 738
(1967) and Kelly v. State, PD-0702-13, 2014 WL 2865901, at **1–4 (Tex. Crim.
App. June 25, 2014). After meeting with the appellant, doing careful study of the
record including the competency and insanity evaluations, and reviewing the
applicable law, I believe that this case presents no appealable issues.
ISSUES PRESENTED
My review of the record reveals no issues which can be advanced in good
faith. Any arguable points that could exist were waived by Anderson with his plea
of true to some of the violations of his community supervision. Thus, the questions
raised in this Anders appeal are:
I. Whether defense counsel committed ineffective assistance with Anderson’s revocation hearing?; and II. Whether the trial court committed reversible error with Anderson’s sentence?
pg. 6 STATEMENT OF FACTS
On May 12, 2015, a hearing was held to consider Anderson’s violations of his
community supervision. [RR Vol. 1, Pg. 1 Ln 18-23] The court confirmed
Anderson’s identity. [RR Vol. 1, Pg. 4 Ln 13-17] The court reviewed Anderson’s
constitutional rights in a revocation hearing. [RR Vol. 1, Pg. 5 Ln 4-12] The court
reviewed the range of punishment. [RR Vol. 1, Pg. 5 Ln 13-22] The court took
Anderson’s plea to each alleged violation of community supervision. [RR Vol. 1,
Pg. 7-9 Ln 1-25] For the “not true” allegations, the State presented testimony from
a probation officer that Anderson was an absconder in 2014, and Anderson admitted
to using drugs in June and August of 2014 {RR Vol.1 Pg. 11 Ln 1-9; Pg. 15 Ln 16-
24] Anderson testified for his defense. [RR Vol.1, Pg. 19 Ln 1-7] After hearing the
testimony, the court found Anderson had violated his community supervision. [RR
Vol. 1, Pg. 26 Ln 12-16] Anderson was adjudicated, revoked and sentenced to
twenty months incarceration. [RR Vol. 1, Pg. 26 Ln 8-12] This Anders appeal arises
from Anderson’s pleas and testimony during his revocation hearing.
SUMMARY OF THE ARGUMENT
I have submitted this brief in accordance with Anders v. California, 386 U.S.
738 (1967) and Kelly v. State, PD-0702-13, 2014 WL 2865901, at **1–4 (Tex. Crim.
App.
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ACCEPTED 13-15-00258-CR FILED THIRTEENTH COURT OF APPEALS IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS CORPUS CHRISTI 9/30/2015 8:48:43 AM Dorian E. Ramirez CLERK
Appellate Cause No. 13-15-00258-CR 09/30/15
CLERK ******************************************************** RECEIVED IN 13th COURT OF APPEALS
IN THE COURT OF APPEALS9/30/2015 8:48:43 AM CORPUS CHRISTI/EDINBURG, TEXAS
THIRTEENTH JUDICIAL DISTRICT AT CORPUS CHRISTI, TEXAS DORIAN E. RAMIREZ Clerk
******************************************************** WAYMOND ANDERSON,
Appellant.
v.
THE STATE OF TEXAS,
Appellee.
********************************************************** Appeal from Cause Number 09-CR-2559-F In the 214th Judicial District Court of Nueces County, Texas **********************************************************
ANDER’S BRIEF
********************************************************** CORETTA T. GRAHAM Attorney at Law SBN 50511851 Graham Legal Services 3206 Reid Drive, suite 105 Corpus Christi, TX 78404 (361) 723-1530 office (361) 723-1531 fax grahamlegalservices@yahoo.com (E-mail)
COUNSEL FOR APPELLANT
pg. 1 IDENTITY OF PARTIES AND COUNSEL
Appellant WAYMOND ANDERSON TDC#01997761 TDCJ – DOMINGUEZ UNIT 6535 Cagnon Road San Antonio, TX 78252
Counsel for Appellant (Trial) At the Trial, the defendant was represented by: LAURA RAMOS SBN 24079179 400 Mann, Suite 605 Corpus Christi, TX 78401 Phone: 361-991-2068 Fax: unknown
Counsel for Appellant (Appeal) On Appeal, the defendant is represented by: CORETTA T. GRAHAM SBN 50511851 3206 Reid Drive Suite 105 Corpus Christi, Texas 78404 Phone: 361-723-1530 Fax: 361-723-1531
Counsel for Appellee The Honorable Mark Skurka Nueces County District Attorney Office 901 Leopard, rm. 205 Corpus Christi, TX 78401 Phone: 361-888-0400 Fax: 361-888-0700
pg. 2 TABLE OF CONTENTS Item Page
Identity of the Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-12
Prayer/Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
pg. 3 INDEX OF AUTHORITIES
United States Supreme Court Cited at Page
Anders v. California, 386 U.S. 738 (1967) 6, 7
Court of Appeals/ Court of Criminal Appeals Cited at Page
Kelly v. State, PD-0702-13, 2014 WL 2865901, at **1–4 (Tex. Crim. App. June 25, 2014) 6, 8
In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) 8
Hawkins v. State, 112 S.W.3d 340 (Tex. App.—Corpus Christi 2003, no pet.) 8
pg. 4 STATEMENT OF THE CASE
On or about August 6, 2009, Waymon Anderson (“Anderson”) was indicted
for Felony Theft, a state jail felony. [CR, Pg. 5, 32] On September 21, 2009,
Anderson pled guilty and was placed on deferred community supervision for two
years. [CR, Pg. 70] On July 11, 2001, Anderson’s community supervision was
modified and extended twelve months. [CR, Pg. 78] On August 22, 2012,
Anderson’s community supervision was modified and extended another twelve
months. [CR, Pg. 79-80] On August 8, 2013, Anderson’s community supervision
was modified and extended a third time for two years. [CR, Pg. 81-82]
On May 15, 2014, Anderson’s community supervision was modified for a
payment plan without an extension. [CR, Pg. 83-85] March 18, 2015, the State filed
a motion to revoke Anderson community supervision. [CR, Pg. 97] On May 5, 2015,
Counsel was appointed. [CR, Pg. 86] On May 12, 2015, a revocation hearing was
held and Anderson was given a sentence of twenty months at the Texas Department
of Criminal Justice, State Jail Division. [CR, Pg. 95-96] The trial court certified
Anderson’s right to appeal. [CR, Pg. 94] Counsel was appointed for Anderson’s
appeal on June 2, 2015. [CR, Pg. 103]
pg. 5 STATEMENT REGARDING ORAL ARGUMENT
I am not requesting oral argument. Further, I have filed a motion to withdraw
as counsel and have filed this brief pursuant to Anders v. California, 386 U.S. 738
(1967) and Kelly v. State, PD-0702-13, 2014 WL 2865901, at **1–4 (Tex. Crim.
App. June 25, 2014). After meeting with the appellant, doing careful study of the
record including the competency and insanity evaluations, and reviewing the
applicable law, I believe that this case presents no appealable issues.
ISSUES PRESENTED
My review of the record reveals no issues which can be advanced in good
faith. Any arguable points that could exist were waived by Anderson with his plea
of true to some of the violations of his community supervision. Thus, the questions
raised in this Anders appeal are:
I. Whether defense counsel committed ineffective assistance with Anderson’s revocation hearing?; and II. Whether the trial court committed reversible error with Anderson’s sentence?
pg. 6 STATEMENT OF FACTS
On May 12, 2015, a hearing was held to consider Anderson’s violations of his
community supervision. [RR Vol. 1, Pg. 1 Ln 18-23] The court confirmed
Anderson’s identity. [RR Vol. 1, Pg. 4 Ln 13-17] The court reviewed Anderson’s
constitutional rights in a revocation hearing. [RR Vol. 1, Pg. 5 Ln 4-12] The court
reviewed the range of punishment. [RR Vol. 1, Pg. 5 Ln 13-22] The court took
Anderson’s plea to each alleged violation of community supervision. [RR Vol. 1,
Pg. 7-9 Ln 1-25] For the “not true” allegations, the State presented testimony from
a probation officer that Anderson was an absconder in 2014, and Anderson admitted
to using drugs in June and August of 2014 {RR Vol.1 Pg. 11 Ln 1-9; Pg. 15 Ln 16-
24] Anderson testified for his defense. [RR Vol.1, Pg. 19 Ln 1-7] After hearing the
testimony, the court found Anderson had violated his community supervision. [RR
Vol. 1, Pg. 26 Ln 12-16] Anderson was adjudicated, revoked and sentenced to
twenty months incarceration. [RR Vol. 1, Pg. 26 Ln 8-12] This Anders appeal arises
from Anderson’s pleas and testimony during his revocation hearing.
SUMMARY OF THE ARGUMENT
I have submitted this brief in accordance with Anders v. California, 386 U.S.
738 (1967) and Kelly v. State, PD-0702-13, 2014 WL 2865901, at **1–4 (Tex. Crim.
App. June 25, 2014). After having carefully examined this record and after having
pg. 7 researched relevant case law, I have concluded that Anderson’s appeal concerning
the ineffective assistance of counsel cannot be substantiated. Therefore, I request the
Court's permission to withdraw as attorney of record and to allow Appellant
Waymond Anderson to file any further briefs he deems necessary.
ARGUMENT
I. Whether the trial counsel committed ineffective assistance of counsel with
Anderson’s revocation hearing?
Analysis
Pursuant to Anders v. California, 386 U.S. at 744, and Kelly v. State, PD-
0702-13, 2014 WL 2865901, at **1–4, the Court must evaluate whether Counsel’s
brief meets the requirements of Anders as it presents a professional evaluation
demonstrating why there are no arguable grounds to advance on appeal. See In re
Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders
brief need not specifically advance. . . arguable points of error if counsel finds none,
but it must provide record references to the facts and procedural history and set out
pertinent legal authorities.”) (citing Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex.
App.—Corpus Christi 2003, no pet.));
pg. 8 Appellate counsel has reviewed the court records in detail concerning
Anderson’s assertions that his trial counsel provided ineffective assistance, and
counsel has identified no action or inaction on the district court’s part or defense
counsel’s part that would suggest harmful or reversible error. This case is pending
in this Thirteenth Court of Appeals from the 214th Judicial District Court in Aransas
County, Texas. Counsel has not identified any aspect of the revocation hearing that
would suggest Anderson’s trial counsel was ineffective. In fact, the record
affirmatively suggests Anderson was given the opportunity to testify in his own
defense. [RR Vol. 1 Pg. 19-25 Ln 1-25] At the hearing, defense counsel offered an
additional witness but Court did not want to hear any additional evidence. [RR Vol.
1 Pg. 26 Ln 2-7] Anderson’s plea of true to some of the violations was voluntarily
made. [RR Vol. 1 Pg. 7-9 Ln 1-25] Counsel on appeal has reviewed the appellant
records concerning Anderson’s revocation hearing as follows:
REVOCATION HEARING REVIEW
I. Sufficiency of the indictment, complaint or motion to revoke - CR, Pg. 97-100 II. Any adverse pretrial rulings, including but not limited to rulings on motions to suppress, motions to quash, and motions for speedy trial – No adverse pretrial ruling exist.
III. Advising of the Defendant with written Admonishments in compliance with Texas Code of Criminal Procedure 26.13
pg. 9 (A) risk of perjury CR, Pg. 87 (B) right to plead not true CR, Pg. 87 (C) right to a trial CR, Pg. 87 (D) right to counsel CR, Pg. 87 (E) the range punishment range TCCP 26.13(a)(1) CR, Pg. 90 (F) nature of the charge CR, Pg. 90 (G) recommendation of punishment not binding on the court CR, Pg. 88 TCCP 26.13 (a)(2) (H) Admonishment on plea bargains. TCCP 26.13 (a)(3) CR, Pg. 87
(I) admonishment on effect of plea if one is not a citizen. CR, Pg. 88 TCCP 26.13(a)(4) (J) no plea accept unless defendant is mentally competent to CR, Pg. 87 accept plea TCCP 26.13 (b) (K) court compliance with review of written CR, Pg. 93 admonishments for defendant TCCP 26.13 (c & d) (L) inquire into victim statement (if applicable) TCCP N/A 26.13(e) (1) N/A (M) inquiry into notice to victim (if applicable) TCCP 26.13 (e) (2) N/A (N) inquiry on registration requirement of Chapter 62 (if applicable) TCCP 26.13 (a)(5) & (h) IV. Trial Court proceedings
(A) Whether the issue of competency was raised prior to N/A sentencing; inquiry into a plea bargain. (B) defendant’s waiver of trial rights RR Vol. 1, Pg. 5
(C) nature of the charges or allegations RR Vol. 1, Pg. 4, 6
(D) Whether appellant was mentally competent when the RR Vol. 1, Pg. 6-10 court accepted the pleas of true or not true (E) the range punishment range RR Vol 1 Pg. 5
(F) applicable fines same citation as ( E) pg. 10 (G) any applicable forfeiture N/A (H) any applicable restitution CR, Pg. 99
V. Voluntariness of Plea of “True” CR, Pg. 90
VI. Any adverse rulings during the sentencing hearing on objections or motions - none VII. Any failure on the part of appellant's trial counsel to object to fundamental error. - none VIII. Whether the sentence imposed was within the applicable range of punishment. RR Vol. 1 Pg. 26 Ln 8-16 IX. Factual Basis for the Revocation CR, Pg. 95
X. Judicial Consideration of Plea Agreement (advisory to defendant on the type of plea considered) - N/A XI. Accepting Plea Agreement (informing defendant that, toN/A the extent agreement is of specified type, the agreed disposition will be in the judgment) XII. Whether the written judgment accurately reflects the sentence that was imposed and whether any credit was properly applied. CR, Pg. 95-96
XIII. Whether the appellant was denied effective assistance of counsel. - No evidence found on ineffective assistance of counsel.
II. Whether the trial court committed reversible error with Anderson’s
sentence?
Appellate counsel has reviewed the court records for Anderson’s sentencing
and has detected no error, clear or harmless. In this cause, Anderson was placed on
community supervision for a state jail felony. [RR Vol. 1 Pg. 4 Ln 13-21] The range
pg. 11 of punishment for state jail felony is one hundred and eighty days up to two years in
the State Jail Division of the Texas Department of Criminal Justice. [CR, Pg. 20, 70]
There are no plea bargains in a revocation hearing. [CR, Pg. 87] A revocation
hearing was held and the trial court imposed a ten month sentence. [CR, Pg. 95]
Anderson was given time credits toward his sentence. [CR, Pg. 95]
CONCLUSION
In accordance with Anders v. California and Kelly v. State, I have examined
the record for issues which might arguably support an appeal. In my opinion, there
are none. Consequently, I respectfully move to withdraw from this case in
accordance with Anders and ask the Court to rule on this appeal accordingly.
Respectfully submitted,
_/s/Coretta T. Graham____________ CORETTA T. GRAHAM Attorney at Law SBN 50511851 Graham Legal Services 3206 Reid Drive, suite 105 Corpus Christi, TX 78404 (361) 723-1530 office (361) 723-1531 fax grahamlegalservices@yahoo.com (E-mail) COUNSEL FOR APPELLANT
pg. 12 CERTIFICATE OF COMPLIANCE
I, CORETTA GRAHAM, certify that there are 2,572 words in the document
per the word count of the computer program used to prepare the document.
_/s/Coretta T. Graham____________ CORETTA T. GRAHAM
pg. 13 CERTIFICATE OF SERVICE
I, CORETTA GRAHAM, certify that, a copy of this Anders brief for
Appellant Waymond Anderson was served upon following parties on or about
September 30, 2015 via fax, electronic mail or certified mail:
The Honorable Mark Skurka Nueces County District Attorney Office 901 Leopard Street rm. 205 Corpus Christi, TX 78401 Phone: 361-888-0400 Fax: 361-888-0700
WAYMOND ANDERSON TDC#01997761 TDCJ – DOMINGUEZ UNIT 6535 Cagnon Road San Antonio, TX 78252
_/s/Coretta T. Graham____________ CORETTA T. GRAHAM Attorney at Law SBN 50511851 Graham Legal Services 3206 Reid Drive, suite 105 Corpus Christi, TX 78404 (361) 723-1530 office (361) 723-1531 fax grahamlegalservices@yahoo.com (E-mail)
pg. 14