Vernon Cooks, Jr. v. State ( 2018 )

ACCEPTED
06-17-00118-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/3/2018 11:34 PM
DEBBIE AUTREY
CLERK
NO. 06-17-00118-CR
____________________________________________________________
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE COURT OF APPEALS 1/4/2018 9:24:00 AM
DEBBIE AUTREY
SIXTH DISTRICT Clerk
AT TEXARKANA, TEXAS
____________________________________________________________
VERNON COOKS, JR, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
____________________________________________________________
APPEAL IN CAUSE NUMBER 28,190
IN THE 196TH DISTRICT COURT
OF HUNT COUNTY, TEXAS
____________________________________________________________
‘ANDERS’ BRIEF IN SUPPORT OF MOTION TO WITHDRAW
____________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Comes now the Counsel for Appellant and submits this brief pursuant
to the provisions of the Texas Rules of Appellate Procedure.
IDENTITY OF PARTIES AND COUNSEL
Appellate Attorney:
Jason A. Duff
2615 Lee Street
P.O. Box 11
Greenville, Texas 75403
Appellant’s Trial Attorney:
Russell P. Brooks
2515 Washington St
PO Box 1905
Greenville, TX 75403-1905
Appellee:
The State of Texas by and through
Noble D. Walker, Jr.
Jeff Kovach
Hunt County District Attorney
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401
2
TABLE OF CONTENTS
Identity of the Parties and Counsel ............................................................. 2
Table of Contents ....................................................................................... 3
Index of Authorities ..................................................................................... 4
Statement of the Case ................................................................................ 6
Certificate of Counsel and Special Statement to the Court.......................... 7
Statement of the Facts ................................................................................ 9
Issues and Authorities............................................................................... 12
Jurisdiction .................................................................................... 12
Assistance of Counsel .................................................................. 13
The Plea of True: Valid and Voluntary.......................................... 13
Competence ................................................................................... 14
Limitations ..................................................................................... 16
Jeopardy......................................................................................... 17
Presence of Defendant .................................................................. 17
Punishment .................................................................................... 17
Back Time....................................................................................... 20
Written Judgment .......................................................................... 20
Finger Prints .................................................................................. 20
Summary ........................................................................................ 21
Conclusion and Prayer for relief ................................................................ 22
Certificate of compliance of typeface and Word Count ............................. 23
Certificate of Service ................................................................................. 24
3
INDEX OF AUTHORITIES
FEDERAL CASES:
Anders v. California, 386 U.S. 738, (1967) .................................................. 7
McGruder v. Puckett, 954 F.2d 313 (5th Cir.1992) .................................... 17
Strickland v. Washington, 466 U.S. 668 (1984)......................................... 13
STATE CASES:
Basham v. State, 608 S.W.2d 677, 678 (Tex. Crim.App.1980) ................. 14
Cole v. State, 757 S.W.2d 864 (Tex.App.-Texarkana 1988, pet. ref'd) ...... 19
Davis v. State, 905 S.W.2d 655 (Tex.App.-Texarkana 1995, pet. ref'd) .... 18
Ex parte Bates, 978 S.W.2d 575 (Tex. Crim. App. 1998) ......................... 20
Fluellen v. State, 71 S.W.3d 870 (Tex.App.-Texarkana 2002, pet. ref'd) ... 18
Hidalgo v. State, 983 S.W.2d 746, 750 (Tex. Crim. App. 1999) ................ 13
Holliday v. State, 983 S.W.2d 326 (Tex. App. – Houston [14th Dist.]
1998, pet. ref’d)......................................................................................... 16
Howard v. State, 830 S.W.2d 785 (Tex. App.--San Antonio 1992, pet.
ref'd) ......................................................................................................... 19
Howlett v. State, 994 S.W.2d 663 (Tex.Crim.App. 1999) .......................... 17
Jackson v. State, 989 S.W.2d 842 (Tex.App.-Texarkana 1999,no pet.) .... 18
Jefferson v. State, 803 S.W.2d 470 (Tex.App.-Dallas 1991, pet.ref'd)....... 19
Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App.1973)..................... 18
4
Kuyava v. State 538 S.W.2d 627, 628 (Tex.Crim.App. 1976).................... 15
Latham v. State, 20 S.W.3d 63 (Tex.App.-Texarkana 2000, pet. ref'd) ..... 18
McClenan v. State, 661 S.W.2d 108, 110 (Tex.Crim.App.1983) ............... 18
Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003) ..................... 17
Nesbit v. State, 227 S.W.3d 64 (Tex. Crim. App. 2007) ........................... 12
Proctor v. State, 967 S.W.2d 840, 844 (Tex.Crim.App. 1998) ................... 16
Ring v. State, 450 S.W.2d 85, 88 (Tex.Cr.App.1970) ................................ 15
STATE STATUTES:
Tex. Code Crim. Proc. Ann. Art. 26.13. (Casemaker 2017)....................... 14
Tex. Code Criminal Procedure. Art.37.06 (Casemaker 2017) ................... 17
Tex. Code Crim. Pro. Ann. Art.38.33 (Casemaker 2017) .......................... 20
Tex. Code Crim. Proc. Ann. Art. 42.12 § 21(Casemaker 2017) ................. 12
Tex. Code Crim. Proc. Ann. Art. 42.12 § 22 (Casemaker 2017) ................ 12
Tex. Code Crim. Pro. Ann. Art.42.01(23) (Casemaker 2017) .................... 20
Tex. Code Crim. Proc. Ann. Art.46B.003(Casemaker 2017) ..................... 14
Texas Penal Code §42.072
(Casemaker 2017) ................................................................................... 17
Tex. R. App.P.33.1(a)(Casemaker 2017) .................................................. 21
5
STATEMENT OF THE CASE
This is an appeal of the judgment Adjudicating Guilt and sentence in
a criminal case for the 196th District Court, in Hunt County, Texas.
Appellant plead true to the allegations in the motion to revoke of the
underlying crime of Stalking. (RR Vol. 1. p. 6-7) Appellant was assessed a
sentence of imprisonment for 910 Days Years TDCJ, $0.00 fine, and $0.00
court costs with 22 days Credit on June 7, 2017 by the trial court. Notice of
appeal was given on June 9, 2017 in the trial court. The reporter’s record
was filed on July 31, 2017, and the clerk’s record was filed November 3,
2017.
6
CERTIFICATE OF COUNSEL
In compliance with requirements of Anders v. California, 386 U.S.
S.Ct.1396, 18 L. Ed 2d 493 (1966) and Gainous v. State, 436 S.W.2d 137,
138 (Tex.Crim. App. 1969), the undersigned appointed attorney on appeal
for Vernon Cooks states that he has diligently reviewed the entire record
and the law applicable thereto and, in his opinion, the appeal is without
merit and wholly frivolous in that the record reflects no reversible error. It is
also the opinion of the undersigned appointed attorney on appeal that there
are no grounds of error upon which an appeal can be predicated. The
undersigned appointed attorney on appeal has served a copy of this brief,
clerk's record, and reporter's record on Appellant in paper form.
At that time, the undersigned attorney informed Appellant, by letter to
his last known address that, in his professional opinion, the appeal was
without merit. The undersigned attorney also explained that Appellant has
the right to review the record and file a pro se brief if he so desires. The
undersigned attorney has made the record available to Appellant.
Appellant has also been informed by the undersigned attorney that he may
request an extension of time from this Honorable Court for the filing of a pro
se brief.
7
SPECIAL STATEMENT TO THE COURT
After diligent search, the undersigned attorney, appointed as counsel
for Appellant on appeal has determined that the appeal is frivolous and
without merit, and further, that the record contains nothing upon which an
appeal can be predicated.
The record in this cause reflects that Appellant's rights were
protected at every stage of the proceedings. Mr. Cooks was represented by
competent counsel at all critical stages of the trial process. This appeal
brief was filed on January 3, 2018 within Appellant's time limit for filing an
appeal. (CR Vol. 1 p. 68).
8
STATEMENT OF THE FACTS
Appellant pled guilty the crime of Stalking on November 19, 2012. As
part of that original plea bargain Appellant was placed on 3 years deferred
probation with violence terms. (CR Vol. 1 p.18). During the term of
community supervision Appellant was Appellant was specifically required
to:
1. Commit no new offense against the laws of this Stale, or any
other state, or of the United States, or any political subdivision
thereof;
(CR Vol. 1 p. 21).
By October 30, 2014 the Hunt County District Attorney filed its first
motion to revoke community supervision. But instead of revoking
Appellant’s probation, the trial court amended and supplemented
Appellant’s terms and conditions in a new order. In that order to amend,
the trial court extended Appellant’s community supervision to November
18, 2017, ordered Appellant to pay $250.00 per month, waived his
community service requirement, and dismissed the state’s Motion to
Revoke without prejudice. (CR Vol. 1 p.40-41).
9
Then State later filed its second “Motion to Revoke Deferred
Adjudication Community Supervision and Request for Final Adjudication”
on February 17, 2016. The second motion alleged, among other things:
1: Said Defendant committed an offense against the laws of the State
of Texas, to wit: on or about the 17th day of June, 2014 in the County
of Limestone and State of Texas, the defendant did then and there
commit the offense of Assault Causes Bodily Injury Family Violence;
(CR Vol. 1 CR 44-47). Pursuant to the Motion to revoke Appellant was
appointed an attorney to represent him. (CR Vol. 1 p. 50.)
The trial court held a hearing pursuant to Tex. Code Crim. Proc. Ann.
Art. 42.12 § 23(a). At the beginning of that hearing the trial court informed
Appellant that the purpose of that hearing is review and hear evidence on
the State’s Motion to revoke. The trial court further stated Appellants full
range of punishment. Then the Appellant replied that he understood the
purpose and range of punishment. (RR Vol. 3. p. 4-5).
The trial court inquired from Appellant if he had an opportunity to
speak with his attorney about the proceeding, and Appellant replied that he
had. (RR Vol. 3 p.5). Then Appellant’s trial attorney read aloud each
allegation the State made in their motion to revoke. For each allegation
Appellant’s trial attorney asked Appellant that if he understood the
allegation against him and for each the Appellant stated in the affirmative.
For each allegation the Appellant pled true. (RR Vol. 3 p. 6-7). Yet, the
10
State offered no evidence to support allegations 2 and 3, so the trial court
found them to be not true. Ultimately, the trial court did find allegation 1 to
be true, ending the adjudication phase of the proceeding. (RR Vol. 3 p.11).
At the beginning of the punishment phase both Appellant and the
State announced ready to proceed. (RR Vol.3 p. 11). Appellant stated he
indeed pled guilty to Assault Causing Bodily Injury Family Violence in
Limestone County, Texas. (RR Vol.3 p. 13).
Appellant was able present mitigating evidence by testifying that he is
disabled and lives of about $1,600.00 a month in disability. Further,
Appellant was able to testify that he has been hospitalized approximately
50 times since 2013 and 10 or 12 times through June 2017 alone. (RR Vol.
3 p. 9 & 14). Appellant testified that the “Mary” he knows in Limestone
County and victim in the assault case is not the same person he went on
probation in this case for stalking. (RR Vol. 3 p.17).
At a later hearing the trial court reviewed the back time Appellant was
ordered any back time Appellant was entitled to. Appellant’s trial counsel
informed the trial court the correct day for beginning his back time began
earlier. (RR Vol. 4 p. 5). At the end of formal sentencing hearing Appellant
was handed a copy of the judgement. (RR Vol.4 p. 8).
11
ISSUES AND AUTHORITIES
JURISDICTION
The trial court retains jurisdiction during the period of
community supervision so that at any point during that term may issue a
warrant for a violation of the conditions. Tex. Code Crim. Proc. Ann. Art.
42.12 § 21(Casemaker 2015). The term of probation begins on the first day
the defendant is sentence and excludes the anniversary date. A motion to
revoke must be filed at least a day before the anniversary date of the end
of the probationary term. Nesbit v. State, 227 S.W.3d 64 (Tex. Crim. App.
2007).
While Appellant was originally given a probation term of three years
from November 19, 2012, the term was extended to November 18, 2017.
(CR Vol. 1 p.18 & 40-41). A court may, extend the period of community
supervision as it deems necessary, so long as it does not exceed 10 years.
Tex. Code Crim. Proc. Ann. Art. 42.12 § 22(c) (Casemaker 2017). Here
the motion to revoke was filed on February 17, 2016, well before the
expiration of this valid extended probationary term. (CR Vol. 1. p.44).
12
ASSISTANCE OF COUNSEL
A complete review of the record reflects that Appellant was
represented by counsel at all critical stages of the proceedings as required
by the Texas and U.S. Constitutions, and that his counsel joined in all
decisions as required by law. Hidalgo v. State, 983 S.W.2d 746, 750 (Tex.
Crim. App. 1999). The record indicates that trial Appellant had sufficient
opportunity to meet with Appellant to prepare for the hearing on his motion
to revoke. (RR Vol. 3 p. 5). Trial counsel demonstrated a familiarity with
the underlying procedural posture of the case as well as the facts that
brought about this latest revocation proceeding. (RR Vol. 3 p. 4-7).
Counsel is ineffective only if his representation of Appellant falls below a
minimum standard for representation and his errors undermine the
reliability of the result to the appellant. Strickland v. Washington, 466 U.S.
668, 687(1984).
THE PLEA OF TRUE: VALID AND VOLUNTARY
The Appellant, joined by his counsel, plead true to each allegation in
the motion to revoke on the record. (RR Vol. 3. p. 6-7, 15). Nothing in the
record indicates that Appellant objected to the admission of the allegations.
The trial court, by verbal means and by written means, admonished the
13
Appellant of the range of punishment. (RR Vol. 3. p. 4-5); (CR Vol. 1 p.12).
The trial court’s admonishments would also be in substantial compliance
with Tex. Code Crim. Proc. Ann. Art. 26.13, but are not necessary under in
revocation proceedings.
COMPETENCE
"A person is incompetent if he lacks either (1) sufficient present ability
to consult with his lawyer with a reasonable degree of rational
understanding; or (2) a rational as well as a factual understanding of the
proceedings against him. A person is presumed competent to stand trial
and shall be found competent to stand trial unless proved incompetent by a
preponderance of the evidence. Tex. Code Crim. Proc. Ann.
Art.46B.003(Casemaker 2017). McGowin v. State, 912 S.W.2d 837, 840
(Tex.App.—Dallas1995, no pet).
The purpose of article 26.13, the written plea admonishments and
waivers, is to assure that the defendant does not plead guilty without a full
understanding of the charges against him and the consequences of his
plea. Basham v. State, 608 S.W.2d 677, 678 (Tex. Crim.App.1980).
Substantial compliance with article 26.13 is sufficient. Tex. Code Crim.
Proc. Ann. Art.26.13 (f). Article 26.13 (b) states: No plea of guilty or plea of
14
nolo contendre shall be accepted by the court unless it appears that the
defendant is mentally competent and the plea is free and voluntary."
However, no specific finding of competency in the record is required.
Texas courts have long held in interpreting Article 26.13(b) that unless an
issue is made of an accused's present insanity or mental competency at
the time of the plea the court need not make inquiry or hear evidence on
such issue. Ring v. State, 450 S.W.2d 85, 88 (Tex.Cr.App.1970); Kuyava v.
State 538 S.W.2d 627, 628 (Tex. Crim. App. 1976).
In this case competence is apparent where the court has had the
opportunity to observe the accused in open court, hear him speak, observe
his demeanor and engage him in conversation. Appellant testified at the
revocation hearing in response to questions from his own attorney and the
trial judge in multiple points. There is no suggestion in the record that
Appellant was not competent to enter his pleas at any time.
A complete review of the record discloses sufficient information to
support the trial court's conclusion that Appellant was competent to enter
his plea of true, and that the plea was both free and voluntary. Id.
Art.26.13(b) (Casemaker 2017). It is true that Appellant indicated to the
trial court he had a disability. But Appellant indicated that disability was
related to congestive heart failure and renal disease. Appellant indicated
15
he needs a heart transplant and he needs a defibrillator. (RR Vol. 3 p. 9);
(CR Vol. 1 p. 51). Appellant has not indicated that he suffers from any
condition that would adversely affect his capacity or otherwise restrict his
ability to understand the proceedings against him or stop him from assisting
his attorney in his defense.
LIMITATIONS
The original offense, alleged to have been committed on or about and
February 27, 2011 and the Order of Deferred Adjudication was entered
November 19, 2012. (CR Vol. 1 p.18). It is well settled that a defendant
whose community supervision is revoked may only appeal from the
revocation. The underlying adjudication may only be appealed at the time
the probation was given. Holliday v. State, 983 S.W.2d 326 (Tex. App. –
Houston [14th Dist.] 1998, pet. ref’d). As stated above, the motion to revoke
was filed and served well before the end of the legally extended period of
community supervision.
Further, Appellant waived any objection to the limitations issue when
he entered his plea. Here no objection to limitations was made.
Limitations is a defensive issue, and must be raised by defendant before
the plea is entered, or it is waived. Proctor v. State, 967 S.W.2d 840, 844
16
(Tex.Crim.App. 1998); Howlett v. State, 994 S.W.2d 663, 667
(Tex.Crim.App. 1999).
JEOPARDY
There is no jeopardy argument because Appellant was indicted and
prosecuted in the case. There is no jeopardy issue in the record.
PRESENCE OF DEFENDANT
Appellant was present when the verdict was pronounced, as required
by Tex. Code Criminal Procedure. Art.37.06. (RR Vol. 4 p. 4-7).
PUNISHMENT
A sentence outside the maximum or minimum range of punishment is
unauthorized by law and therefore illegal. Mizell v. State, 119 S.W.3d 804,
806 (Tex.Crim.App. 2003). But, Appellant’s sentence of nine hundred ten
days is well within the statutory range of punishment for the offense. Texas
Penal Code §42.072. No other range was set by the original Judgment.
(CR Vol.1 p. 18). As stated above, probationers cannot appeal the
underlying judgment.
17
Moreover, Texas courts have traditionally held that, as long as the
punishment assessed is within the range prescribed by the Legislature in a
valid statute, the punishment is not excessive, cruel, or unusual. Jordan v.
State, 495 S.W.2d 949, 952 (Tex.Crim.App.1973). Yet, in Jackson v. State,
989 S.W.2d 842, 845 (Tex.App.-Texarkana 1999, no pet.), this Court
recognized that a prohibition against grossly disproportionate punishment
survives under the Eighth Amendment to the United States Constitution
apart from any consideration of whether the punishment assessed is within
the range established by the Legislature. Fluellen v. State, 71 S.W.3d 870,
873 (Tex.App.-Texarkana 2002, pet. ref'd); Latham v. State, 20 S.W.3d 63,
68-69 (Tex.App.-Texarkana 2000, pet. ref'd).
Only if the Court finds that the sentence is grossly disproportionate to
the offense will we then consider the remaining factors and compare the
sentence received to sentences for similar crimes in the same jurisdiction
and to sentences for the same crime in other jurisdictions. McGruder v.
Puckett, 954 F.2d 313, 316 (5th Cir.1992); see also Davis v. State, 905
S.W.2d 655, 664-65 (Tex.App.-Texarkana 1995, pet. ref'd).
Additionally within the revocation context a trial court's arbitrary
refusal to consider the entire range of punishment available for the violation
of a criminal law would constitute a denial of due process. McClenan v.
18
State, 661 S.W.2d 108, 110 (Tex.Crim.App.1983); Jefferson v. State, 803
S.W.2d 470, 471 (Tex.App.-Dallas 1991, pet. ref'd); Cole v. State, 757
S.W.2d 864, 865 (Tex.App.-Texarkana 1988, pet. ref'd). Where a trial court
in a community supervision proceeding announces his predetermined
intent to impose the maximum or an extremely harsh sentence before any
mitigating evidence might be presented, a defendant would be denied due
process. Howard v. State, 830 S.W.2d 785 (Tex. App.--San Antonio 1992,
pet. ref'd.
Here the trial court was able to hear and consider mitigating evidence
Appellant’s medical conditions. (RR Vol. 3 p. 9 & 14). The trial court even
stated that it took into consideration Appellant’s medical conditions in
determining his sentence. (RR Vol. 3 p.24). The court also heard evidence
that the victim in the Limestone County assault case was not the same
victim as this Stalking case. (RR Vol 3. p.17).
In this case, there is nothing contained in the record where the trial
court announced his predetermined intent to impose the maximum or an
extremely harsh sentence, either before mitigation evidence or after the
Appellant rested. Instead the trial court sentenced Appellant to 6 months
over the minimum.
19
BACK TIME
A probationer is entitled to credit for time spent confined pending a
motion to revoke his community supervision, Ex parte Bates, 978 S.W.2d
575 (Tex. Crim. App. 1998). The trial court ordered any back time he was
entitled (RR Vol. 4 p. 5). Appellant was credited with twenty two days back
time, as reflected in the judgment, and based on the record was accurately
calculated, as required by law. (CR Vol. 1. p.53).
WRITTEN JUDGMENT
The written judgment conforms to the court's oral pronouncement or
judgment and sentence, as required by law. (RR Vol. 3 p. 24); (CR Vol. 1 p.
53).
FINGERPRINTS
The record reflects that Appellant's right thumb prints were taken as
required by Tex. Code Crim. Pro. Ann. Art.42.01(23) and Tex. Code Crim.
Pro. Ann. Art.38.33 (Casemaker 2017). (CR Vol. 1 p. 56).
20
SUMMARY
The undersigned attorney has reviewed the entire record to
determine if any objections were made or any constitutional or structural
errors on Appellant's behalf which would support a point of error on appeal.
Tex.R. App. P.33.1(a)(Casemaker 2017).
In counsel’s professional opinion, the trial court displayed no
prejudice toward either side. For above reasons, appellate counsel found
no arguable grounds on which to appeal the instant conviction, and
Appellant should receive the opportunity to file a pro se brief.
21
CONCLUSION AND PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, the undersigned counsel
being of the earnest opinion that no arguable points of error appear in the
record at the plea or sentencing stages of the case, Counsel prays that this
Honorable Court will grant his Motion for Counsel to Withdraw and afford
Appellant the opportunity to file a pro se brief asserting all grounds of which
he knows to reverse the judgment of the trial court below and render
judgment of acquittal or, alternatively, remand the cause to the trial court
for further proceedings.
Respectfully submitted,
Jason A. Duff
State Bar No. 24059696
2615 Lee Street
P.O. Box 11
Greenville, TX 75403
Attorney for the Appellant
22
CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT
In accordance with Texas Rules of Appellate Procedure 9.4 (e) and
(i), the undersigned attorney or record certifies that Appellants Brief
contains 14-point typeface of the body of the brief, 12-point typeface for
footnotes in the brief and contains 2,425, excluding those words identified
as not being counted in appellate rule of procedure 9.4(i)(1), and was
prepared on Microsoft Word 2010.
Jason A. Duff
Attorney for the Appellant
23
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded to Sixth Court of Appeals, Texarkana, Texas via
electronic filing and to Hunt County District Attorney Noble Walker, on this
the 3rd day of January, 2018, by electronic filing manager.
Jason A. Duff
Attorney for the Appellant
24