James Douglas Slagle, II v. State ( 2009 )

NO. 07-08-0171-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

 

JUNE 5, 2009

______________________________

JAMES DOUGLAS SLAGLE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

NO. 18727-C; HONORABLE ANA ESTEVEZ, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

          Appellant James Douglas Slagle appeals from his conviction by jury of sexual assault and the trial court’s sentence of twelve years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant's attorney has filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008) and certifies that there are no non-frivolous issues to appeal. Agreeing with appointed counsel’s conclusion the record fails to show any arguably meritorious issue that could support the appeal, we affirm the trial court’s judgment.   

          Appellant was charged by indictment with sexual assault. The indictment also contained a second count for burglary of a habitation with intent to commit sexual assault. Appellant plead not guilty. The evidence at trial showed that during the late evening or early morning hours of February 7, 2008, a female victim, sleeping in her bed in her apartment, awakened to find a man on top of her. Appellant was a friend of the victim’s brother, and she identified him as her assailant. She testified she recognized his voice when he spoke and recognized his figure as he left her bedroom. A sexual assault nurse examiner testified she found minor injuries to the victim consistent with forced penetration. No physical evidence tied appellant to the attack.

          Appellant later gave a recorded statement to police, denying he had assaulted the victim. Appellant told police he had engaged in consensual intercourse with the victim two weeks before. During her testimony, the victim denied any consensual relationship with appellant. He did not testify at trial, but presented the testimony of a friend who said appellant was in a nearby apartment at the time of the assault. Other witnesses also testified appellant was in the nearby apartment at various times during the evening.

 

          The jury found appellant guilty of sexual assault and sentenced him to imprisonment for a term of twelve years. The trial court certified appellant’s right of appeal and this appeal followed.

          Thereafter, appellant's appointed appellate counsel filed a motion to withdraw and a brief in support pursuant to Anders in which she certifies that she has diligently reviewed the record and, in her professional opinion, under the controlling authorities and facts of the case, there is no reversible error or legitimate ground on which a non-frivolous appeal can arguably be predicated. The brief discusses in detail the procedural history of this case and the events at trial. Counsel discusses the applicable law and sets forth the reasons she believes there are no arguably meritorious issues on which to appeal. Counsel has certified that a copy of the Anders brief and motion to withdraw have been served on appellant, and that counsel has advised appellant of his right to review the record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.–Waco 1994, pet. ref'd). By letter, this Court also notified appellant of his opportunity to submit a response to the Anders brief and motion to withdraw filed by his counsel. Appellant has not filed a response.

          In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record in each matter. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.–San Antonio 1997, no pet.). If this Court determines the appeal has merit, we will remand it to the trial court for appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).  

 

          In her brief, appellate counsel discusses several grounds on which a meritorious appeal might lie. Counsel first addresses potential issues concerning the factual sufficiency of the evidence to support appellant’s conviction. We agree the record does not support an arguably meritorious contention with regard to the jury’s resolution of the conflicting testimony.

          Secondly, counsel notes potential abuse of discretion by the trial court in allowing the introduction into evidence of the record of the victim’s 911 call. We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex.Crim.App. 2006). The trial court abuses its discretion only when the decision lies “outside the zone of reasonable disagreement.” Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App. 2007). After a complete review of the record, we agree with appellate counsel that the ground identified does not arguably support an appeal.   

          Lastly, counsel identifies the possibility that appellant might argue he had received ineffective assistance of counsel at trial because counsel allowed appellant’s recorded statement to be admitted into evidence without objection. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986) (establishing standard for ineffective assistance of counsel). We agree with counsel that the record contains no support for such a contention.   

 

          We note also we see no appealable issues with regard to appellant’s assessed punishment. The jury assessed punishment at twelve years of confinement in the Institutional Division of the Texas Department of Criminal Justice, a term within the permissible range. See Tex. Penal Code Ann. § 22.011 (Vernon 2005); Tex. Penal Code Ann. § 12.33 (Vernon 2003). It is the general rule that a sentence within the proper range of punishment will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App. 1984);           Rodriguez v. State, 917 S.W.2d 90, 92 (Tex.App.–Amarillo 1996, pet. ref’d).  

          Our review convinces us that appellate counsel conducted a complete review of the record. We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal from appellant’s conviction and sentence. We agree the record presents no meritorious grounds for review. Accordingly, we grant counsel's motion to withdraw and affirm the judgment of the trial court. 

 

                                                                           James T. Campbell

                                                                                     Justice

 

 

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  NO. 07-10-0418-CR

NO. 07-10-0419-CR

                                                                             

                                                   IN THE COURT OF APPEALS

 

                                       FOR THE SEVENTH DISTRICT OF TEXAS

 

                                                                 AT AMARILLO

 

                                                                      PANEL B

 

                                                           FEBRUARY 14, 2011

                                            ______________________________

 

                                                    BRYANT KESSLER JONES,

 

Appellant

 

                                                                            V.

 

                                                        THE STATE OF TEXAS,

                                                                             

Appellees

                                            ______________________________

                                                                                                                                   

         FROM THE CRIMINAL DISTRICT COURT NO. TWO OF TARRANT COUNTY;

 

              NOS. 1207009R and 1208348R; HON. WAYNE SALVANT, PRESIDING

                                           _______________________________

                                                                             

                                               ON ABATEMENT AND REMAND

                                           _______________________________

 

Before QUINN, C.J., and CAMPBELL and HANCOCK , JJ.

Appellant Bryant Kessler Jones appeals from his convictions for the offenses of engaging in organized criminal activity, to-wit: murder and aggravated assault with a deadly weapon, a firearm.  On November 4, 2010, the clerk=s record was filed.  The reporter=s record was due on January 18, 2011.  On January 25, 2011, this Court notified the reporter by letter that the record in each case had not been filed and to advise the Court of the status of the record on or before February 4, 2011.  To date, no status of the records nor reporter=s records have been filed.

Accordingly, we abate this appeal and remand the cause to the Criminal District Court No. 2 of Tarrant County (trial court) for further proceedings.  Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine:

when the reporter=s records can reasonably be transcribed into written form and filed in a manner that does not further delay the prosecution of this appeal or have the practical effect of depriving the appellant of his right to appeal.

 

 

The trial court shall cause the hearing to be transcribed. So too shall it 1) execute findings of fact and conclusions of law addressing the foregoing issue, 2) cause to be developed a supplemental clerk=s record containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in this matter, and 3) cause to be developed a reporter=s record transcribing the evidence and arguments presented at the aforementioned hearing, if any.  Additionally, the district court shall then file the supplemental clerk=s and reporter=s records transcribing the hearing with the clerk of this court on or before March 16, 2011.  Should further time be needed by the trial court to perform these tasks, then same must be requested before March 16, 2011.

It is so ordered.

Per Curiam

 

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