Daniel Reynulfo Edison v. State ( 2015 )

ACCEPTED
14-14-00889-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
4/28/2015 2:41:06 PM
No. 14-14-00890-CR
CHRISTOPHER PRINE
CLERK
No. 14-14-00889-CR
FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
IN THE 4/28/2015 2:41:06 PM
CHRISTOPHER A. PRINE
Clerk
COURT OF APPEALS
FOR THE
FOURTEENTH DISTRICT OF TEXAS
AT HOUSTON
Cause nos. 1372460 & 1379135
In the 232nd District Court
of Harris County, Texas
DANIEL EDISON
Appellant
v.
THE STATE OF TEXAS
Appellee
APPELLANT’S BRIEF ON APPEAL
PATTI SEDITA
State Bar No. 00787484
One Sugar Creek Ctr Blvd.
Suite 1045
Sugar Land, TX 77478
281.313.4225
Counsel for Appellant
ORAL ARGUMENT NOT REQUESTED
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. PROC. 74, Appellant does not request oral
argument in this case.
IDENTIFICATION OF THE PARTIES
In order that the members of this Court may determine disqualification and
recusal under the Texas Rules of Appellate Procedure 14 and 14a, Appellant
certifies that the following is a complete list of the parties, attorneys, and other
persons with an interest in the outcome of this lawsuit:
Honorable Mary Lou Keel Presiding Judge in the 232nd District Court
Patti Sedita Defense counsel on appeal
Tanya Terry Defense counsel at trial
Charles Brodsky Assistant District Attorney at trial
Alan Curry Assistant District Attorney on appeal
Daniel Edison Appellant
Page ii
TABLE OF CONTENTS
ORAL ARGUMENT NOT REQUESTED............................................................ i
STATEMENT REGARDING ORAL ARGUMENT .......................................... ii
IDENTIFICATION OF THE PARTIES .............................................................. ii
TABLE OF AUTHORITIES ................................................................................ iv
PRELIMINARY STATEMENT ........................................................................... 1
STATEMENT OF THE FACTS ........................................................................... 2
POINTS OF ERROR ............................................................................................. 2
REVIEW OF THE RECORD AND ARGUMENTS........................................... 3
CONCLUSION AND PRAYER FOR RELIEF ................................................ 17
CERTIFICATE OF SERVICE ........................................................................... 18
STATEMENT OF WORD COUNT ................................................................... 18
Page iii
TABLE OF AUTHORITIES
Cases
Anders v. California, 396 U.S. 736 ......................................................................... 3
Hawkins v. State, 112 S.W.3d 340, 344 (Tex.App.-Corpus Christi 2003, no pet.) . 3
Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). ............................. 13
Strickland v. Washington, 466 U.S. 688, 694-95, 104 S. Ct. 2052, 2068 (1984) .. 14
Statutes
TEX. CODE CRIM. PROC. Art. 26.13 .................................................................... 12
TEX. CODE CRIM. PROC. art. 1.15 ........................................................................ 13
Rules
TEX. R. APP. PROC. 74 ............................................................................................. ii
TEX. R. APP. PROC. 9.4 .......................................................................................... 19
Page iv
PRELIMINARY STATEMENT
Appellant was indicted in cause numbers 1372460 on January 23, 2014 and
in 1379135 on March 8, 2013, for the offenses of aggravated robbery. (Clerk’s
record, p. 11,12). Appellant elected to enter a plea of guilty, on June 24, 2014,
without a plea recommendation, allowing the judge to sentence him after a pre
sentence investigation was complete. (Clerk's record, p. 144,138). After a hearing
on October 2, 2014, the judge assessed punishment at 45 years confinement in the
Texas Department of Criminal Justice, Institutional Division. (Clerk’s record, p.
157, 151). The trial court signed the judgment and sentence on that same day.
(Clerk’s record p. 157,151). On October 21, 2014 Appellant gave notice of appeal.
(Clerk’s record, p. 160, 154).
Page 1
STATEMENT OF THE FACTS
There is no statement of facts for this appeal, as it was a plea of guilty and a
sentencing hearing. The factual summary from the presentence report is contained
in the body of the record review below.
POINTS OF ERROR
There are no points of error.
Page 2
REVIEW OF THE RECORD AND ARGUMENTS
After a thorough review of the record, Appellant's counsel on appeal is
unable to find any errors which she, in good faith, can urge warranting a reversal of
this conviction. Counsel is aware that she had a duty to advance arguable grounds
of error. Anders v. California, 396 U.S. 736, 87 S. Ct. 1396, 19 L. Ed. 2d 493.
Because Appellant entered a guilty plea, appellate review is limited to: (1)
potential jurisdictional defects; (2) the voluntariness of Appellant's plea; (3) error
that is not independent of and supports the judgment of guilt; and (4) potential
error occurring after the guilty plea. See Hawkins v. State, 112 S.W.3d 340, 344
(Tex.App.-Corpus Christi 2003, no pet.).
ISSUE ONE: A review of error in the proceedings
(1) Jurisdictional Defects
Our review of the record reveals that the trial court had jurisdiction over
the case. The events occurred in Harris County Texas. There is no arguable
reversible ground of jurisdictional error.
Page 3
(2) Voluntariness
The presentence investigation report contains a summary of the events
contained taken from the police reports:
The following is a summarized version of the Houston Police
Department (HPD) offense report number 1466564l2-U:
On Tuesday, November 20, 2012, at approximately 9:41 a.m., Officer Blankinship-
Reeves and her partner, Officer R. Palacios, were dispatched to the Cash America
Pawn shop located at 3818 Broadway in response to an activated hold-up (panic)
alarm.
When the officers arrived, they were met in the parking lot of the business by
twenty-nine year old Crystal Soliz, who stated she had been carjacked and her
white, 2003 Toyota Corolla four door sedan had been stolen.
Further investigation disclosed a male suspect, later determined to be thirty-three
year old Daniel Reynulfo Edison, the defendant, entered the Cash America Pawn
shop armed with a pistol and wearing a camouflage mask. The defendant ordered
the employees and customers to lie on the floor as he demanded money and
jewelry. During this robbery, the defendant fired a shot which struck the store
manager, forty-six year old Jesus Martinez in the leg. The defendant then gathered
money and jewelry from the store and fled on foot. Once he was outside the
business, he carjacked Ms. Soliz as she sat in her car in the parking lot, and fled the
scene.
Houston Fire Department Emergency Medical Services ambulance #29 responded
to this business and transported Mr. Martinez to Hermann Hospital. Officers
observed Mr. Martinez to have a gunshot wound to his lower left leg.
Officers notified the Robbery Division and broadcast a description of the defendant
and the complainant's stolen car to other units in the area.
Sergeant Doreck, Sergeant King, Officer Harrell and Officer Varela of the Robbery
Division responded to this call and began their investigation. Officer Rachel of the
Robbery Division went to Hermann Hospital to interview Mr. Martinez. A crime
scene unit was also dispatched to process the scene for physical evidence.
Page 4
A few minutes later, Ms. Soliz's stolen vehicle was located by officers in the 7900
block of Hartford Street, a short distance from where it had been stolen. Officers
responded to the scene and after determining the suspect was not present, officers
secured the vehicle for processing by a crime scene technician.
Officer Gonzalez spoke with the residents of nearby houses and learned one of
them, fifty-nine year old Vanderbilt Smith, observed the defendant park the stolen
vehicle in the street and get into a white Ford F-150 pickup truck which was
occupied by two Hispanic males. Another resident, seventy-six year old Doris
Hedley stated she saw a male with a black bag get into the pickup truck before it
drove away.
The stolen vehicle was later towed to the Police Department's impound lot for
forensic processing.
Officer C. D. Duncan, a crime scene technician, was assigned to process the crime
scene for possible evidence. Officer Duncan recovered and processed a Mag-Lite
flashlight for DNA and latent fingerprints; recovered a fired "RP 40 S&W"
cartridge case from beneath the first cash register; recovered a bloodstained sock
which had a hole consistent with a bullet hole near its top edge; recovered a fired
bullet from next to the cash register; and, recovered a rubber floor mat which had
an entrance and exit bullet hole. Based on the evidence found at the scene, Officer
Duncan stated the defendant fired one round which struck Mr. Martinez in the leg
before striking the floor and ricocheting off the floor and eventually landing on top
of the cash register.
The store's surveillance video was reviewed and showed an armed, gloved and
partially masked suspect entering the pawnshop at 9:31:26 a.m. The suspect is seen
arriving on foot and committing the offense before he is seen carjacking Ms. Soliz
and stealing her vehicle.
Summary of interviews with witnesses
Officer Varela, the lead investigator, was assisted by Officer Harrell in conducting
interviews with the store employees and other witnesses.
Officer Varela interviewed thirty-three year old Yesika Guerra, who stated she was
assisting a customer when the suspect entered the store. She stated she heard the
suspect screaming, "Give me the money!" and heard the gunshot when the suspect
fired his gun inside the store. Ms. Guerra stated she hid under the counter and did
not get a good look at his face. Ms. Guerra stated she believed the suspect brought
Page 5
a flashlight with him which he left behind on a shelf.
Fifty-three year old Norberto Silva stated he was shopping and was being helped
by Ms. Guerra when the suspect entered the store. Mr. Silva stated he immediately
got on the floor when he heard the suspect yell for everyone to get down. Mr. Silva
stated the suspect put his gun to his head at least twice as he moved between him
and the counter where he was demanding money.
Thirty-three year old Julio Hernandez, who worked at a transmission company
located across the street from the pawnshop, stated he saw a male wearing a mask
and carrying a gun run towards the pawn shop. Mr. Hernandez stated the male was
crouching as he ran and was carrying a bag. Mr. Hernandez stated he saw the same
male leave in a white Toyota. Mr. Hernandez stated he saw an unknown Hispanic
male running from the store and gave him his cell phone and told him to call the
police. Mr. Hernandez stated he went inside the pawnshop where he learned the
male had robbed the store and shot the manager.
Twenty-three year old Jose Mares stated he parked his car in front of the pawn
shop and left his girlfriend, Ms. Crystal Soliz, sitting in his car. Mr. Mares stated
he ran out of the pawnshop when he saw the defendant in the business with a gun
and saw several people dropping to the floor. Mr. Mares stated he ran around the
building and did not see the defendant leave.
The store manager, Mr. Jesus Martinez, was interviewed at Hermann Hospital by
Officer Rachel. Mr. Martinez stated he was working behind the counter when the
defendant ran into the store wearing a mask and holding a pistol. Mr. Martinez
stated he feared for his life as the defendant demanded money and jewelry. Mr.
Martinez stated he was getting jewelry for the defendant when defendant shot him.
Mr. Martinez stated the defendant fled in a car he stole from a customer outside the
pawn shop. He also stated he tried not to look at the defendant and could not
identify him.
On November 20, 2012, Officer Varela completed a Crime Stoppers bulletin which
was released, together with a surveillance photograph of the defendant, to the local
media.
On December 4, 2013, Officer Varela received a Crime Stoppers tip identifying
Daniel Reynulfo Edison as the person who committed this offense.
On December 28, 2012, Daniel Reynulfo Edison was arrested for his part in an
aggravated robbery which occurred at the Flamingo Super Market located at 5202
Page 6
Canal Street, Houston, Texas. (This robbery is described in Houston Police
Department offense report number 163036112-R which is summarized below.)
After being arrested, the defendant confessed to participating in this robbery. A
second person, Shane Mikel, was also arrested and charged while a third person
remained at large.
On February 13, 2013, Officer Varela interviewed the defendant at the Harris
County Jail. After being advised of his legal warnings, the defendant agreed to
speak with Officer Varela without an attorney being present. During this interview
the defendant admitted committing the robbery of the Flamingo Super Market but
denied being involved in the robbery of the Cash America Pawn shop.
On February 14, 2013, Officer Varela interviewed co-defendant Shane Mikel at the
Harris County Jail. After being advised of his legal warnings, co-defendant Mikel
agreed to speak with Officer Varela without an attorney being present. Co-
defendant Mikel denied participating in or of having any knowledge of any
robbery.
After interviewing the defendant and co-defendant Mikel, Officer Varela prepared
a photo array which included a photograph of the defendant. On February 15,2013,
the photo array was shown to Mr. Martinez, who, after viewing the photo array,
positively identified the defendant as being the person who robbed and shot him on
November 20, 2012.
Officer Varela called the Harris County District Attorney's Office and spoke with
Assistant District Attorney Brodsky, who, after hearing the facts of this case,
agreed to accept a charge of Aggravated Robbery with a Deadly Weapon against
the defendant, Daniel Reynulfo Edison.
The following is a summarized version of the Houston Police Department
(HPD) offense report number 163036112-R:
On Friday, December 28, 2012, at approximately 1:29 p.m., Officer Robles was
flagged down by a citizen, fifty-five year old Rafael Gonzalez, who reported there
was an aggravated robbery in progress at the Flamingo Super Market located at
5202 Canal Street. Mr. Gonzalez pointed towards the store and stated, in Spanish,
"That's my truck, they are taking my truck." Mr. Gonzalez then opened the door of
Officer Robles's patrol car and begged for protection. Mr. Gonzalez told Officer
Page 7
Robles the robbers had a big AK-47. Officer Robles told Mr. Gonzalez to wait for
him as he began to follow the suspects in Mr. Gonzalez stolen Nissan Frontier.
Officer Robles alerted his dispatcher as he followed the stolen Nissan into the 100
block of N. Edgewood. Officer Robles observed three males, all of whom were
wearing blue jeans and sweaters, jump out of the vehicle. Officer Robles drove up
to the three males, drew his service weapon and ordered them to lie on the ground.
The driver, later identified as thirty- three year old Daniel Reynulfo Edison, the
defendant, threw himself on the ground and placed his hands on top of his head.
The two other suspects began fleeing on foot. As they fled, Officer Robles
observed one of them, later identified as thirty-four year old Shane Allen Mikel,
throw some objects over a fence near where the stolen Nissan was recovered.
Officer Robles arrested the defendant and placed him into the back seat of his
patrol car. Officer Robles asked the defendant if either of his co- defendants were
armed and the defendant told him, "No, the gun on the back seat of the truck is
mine." Officer Robles then looked inside the truck and found an AK-47 rifle.
Additional units responded to the scene and began searching the area for the two
remaining suspects. Officers also completed an accident report after learning the
stolen Nissan truck had struck a parked Ford F-250 pickup truck. The owner of the
damaged truck stated he could not identify the driver or the occupants of the stolen
Nissan truck because he had been inside and had not personally witnessed the
accident.
Interviews with the compiainant(s) and witnesses
The owner of the Flamingo Super Market, Mr. Abu Momin, stated he had not been
present when the robbery occurred and had been called by his employees.
The complainant, forty-five year old Inayat Kasam Meredia, told officers he had
been working behind the counter with another employee, Mr. Rafik Meridia, when
he saw three males enter the store. Mr. Meredia stated each of the three males had
their face covered and the first suspect, later identified as the defendant, thirty-
three year old Daniel Reynulfo Edison, pointed a rifle at him as they told everyone
to get on the floor. Mr. Meredia stated one of the males jumped through a gap in
the protective glass and went straight to the area where they kept the money. Mr.
Meredia stated this male grabbed a shoebox which contained sixty thousand ($60k)
dollars in cash. Mr. Meredia stated he then heard several shots being fired and the
Page 8
three males were gone. Mr. Meredia could not say how many shots were fired;
however, he stated the suspect shot the magnet on the door and broke the glass.
Another complainant, thirty-eight year old Rafik Kasma Meredia, stated he was
working behind the counter when he saw three males run into the store brandishing
weapons and demanding everyone get down on the floor. Mr. Meredia stated the
three robbers had their faces covered and pointed their guns at everyone. Mr.
Meredia stated one of the robbers jumped through the gap in the protective glass
and entered the area where the money was kept. Mr. Meredia stated the robber
took the box which contained the money and fled the store. Mr. Meredia stated he
did not look up until he knew the three men had left; however, he reported hearing
a shot outside the store.
The owner of the stolen Nissan Frontier, fifty-five year old Rafael Gonzalez, stated
he had been standing outside the store when he heard several gunshots inside the
store. Mr. Gonzalez stated he then saw three males running towards him who were
all wearing masks and hoodies and blue jeans. Mr. Gonzalez stated the tallest of
the trio pointed a rifle at him and demanded he give them the keys to his truck. Mr.
Gonzalez stated when he refused to hand over his keys, the male pointed the rifle
at him and fired one shot at his feet. Mr. Gonzalez stated he feared for his life and
surrendered the keys to his truck. Mr. Gonzalez then ran towards Canal Street
where he flagged down Officer Robles and reported the robbery.
A witness, Mr. Herazmo Herrero Garces, told Officer Carreon and stated he had
seen a male walking at 310 Engel Street who was removing his clothing and
throwing it away in a ditch. Mr. Garces described the person he had seen and his
description matched the description of co- defendant Shane Mikel. The clothing
was recovered and found to be a gray sweater with a red stripe, gloves and a black
ski mask. Officer Carreon also recovered a set of brown gloves and a hunting
mask. All of these items were retained as evidence and placed in the Police
Department's property room.
Description of the first scene (The Flamingo Super Market)
The Flamingo Super Market is located at 5202 Canal Street, Houston, Texas. The
building was a gas station whose entrance consisted of two aluminum framed glass
doors. One of the pair of front doors had been damaged and there were shards of
glass on the ground. Although the building was a gas station, this store also sold
groceries, soft drinks and beer. The cash register area of the store was completely
surrounded with bullet proof glass; however, the clerk did not secure the pass
Page 9
through window which allowed the suspects to get behind the counter by jumping
through the open window. The damage to the doors was caused when the suspects
attempted to shoot out the electromagnetic lock the store employees activated
which locked everyone inside the store. Officers recovered a total of seven (7)
spent 7.62x39mm shells from inside the front door of the store and a bullet casing
was recovered from where Mr. Gonzalez had been parked. Officers also found a
bullet hole in the ground where Mr. Gonzalez had been standing next to his truck.
Officers were able to obtain the store's surveillance video which documented both
of these robberies.
Sergeant Ewing viewed the security video and noted three suspects entered the
business. Two of them were wearing black tops and blue jeans while the third was
wearing a gray top with blue jeans. All three suspects were wearing face coverings,
two being camouflaged. The tallest of the trio, later determined to be the
defendant, was armed with an AK-47 rifle and was the one who shot at the door.
The robbery only lasted a matter of seconds and it appeared as if the suspects knew
exactly where the money was kept. The video also showed the suspects carjacking
Mr. Gonzalez for his Nissan Frontier. The defendant is seen forcing Mr. Gonzalez
out of his vehicle at gunpoint and in the process he fired in his direction before
taking his truck. The video shows the suspects leaving and seconds later Officer
Robles's patrol car can be seen turning north onto North Edgewood Street.
Description of the second scene (300 N. Edgewood Street)
This is the location where the suspects crashed Mr. Gonzalez's stolen Nissan
Frontier and fled on foot.
Arrest o f Co-defendant Mikel
Officer R. Trejo observed co-defendant Mikel walking in the 5900 block of Canal
Street, detained him and took him to the second crime scene. Although he was not
wearing the gray sweater with the red stripe or blue jeans, Officer Robles
positively identified his as being one of the suspects he saw jump from Mr.
Gonzalez's stolen truck and flee on foot.
The stolen Nissan Frontier was towed to the Police Department impound lot while
all of the items recovered by officers were tagged in to the appropriate repository
for safekeeping.
The defendant and co-defendant Mikel were transported separately to the Robbery
Division where they were interviewed by Robbery detectives.
Page10
Investigation by Robbery detective(s)
Investigator N. D. Wallace of the Robbery Division was assigned this case for
follow-up investigation.
Investigator Wallace reviewed the offense report and learned a total of four
suspects (two known and two unknown) arrived at the complainant's business in a
silver, mid 1990's Ford Escort four door sedan. Three ofthe four suspects entered
the business armed with automatic weapons. The suspects pointed their weapons at
the complainants and demanded the store's money. After obtaining the store's
money, the suspects exited the store to find their getaway car had left them. The
suspects carjacked Mr. Gonzalez for his vehicle during which the defendant
discharged his weapon; however, the bullet did not strike Mr. Gonzalez. The
suspects fled in the stolen vehicle and two of them were arrested by responding
officers. The third and fourth suspects are still at large.
Investigator Wallace interviewed the defendant, Daniel Reynulfo Edison. After
being advised of his legal warnings, the defendant agreed to speak with
Investigator Wallace without an attorney being present.
The defendant stated he committed an aggravated robbery against the complainants
and their place of business. The defendant stated, "We took the old man's truck."
The defendant stated he shot the door of the business because they had gotten
locked inside the store. The defendant stated he planned the robbery and only knew
the person who got away as, "Chris." The defendant stated he and the others had
been dropped off at this business but he refused to reveal the identity of their
driver.
Investigator Wallace concluded his interview with the defendant and the defendant
was booked into the City Jail pending transfer to the Harris County Jail.
Investigator Wallace then attempted to interview co-defendant Shane Allen Mikel.
After being advised of his legal warnings, the co-defendant invoked his right to
remain silent and requested an attorney. Investigator Wallace terminated the
interview and the co-defendant was booked into the City Jail pending transfer to
the Harris County Jail.
Disposition of co-defendant(s):
Shane Mikel was charged by the State with the offense of Aggravated Robbery
with a Deadly Weapon in Cause number 1372459. On March 5, 2014, a jury in the
Page11
232nd found him guilty as charged and sentenced him to serve twenty years
confinement in the Texas
(Supplemental Clerk’s record, pp. 3-11).
It appears from a review of the plea papers and other parts of the record that
Appellant’s plea of guilty was freely and voluntarily given. Appellant was
properly admonished, in writing, in accordance with the requirements set forth in
TEX. CODE CRIM. PROC. Art. 26.13. State’s exhibit number one on the plea
contains a waiver of constitutional rights, agreement to stipulate, and judicial
confession as well as a series of admonishments. (Clerk’s records, p. 144-149,
138-143). Appellant and his lawyer signed the waiver of constitutional rights,
agreement to stipulate, and judicial confession. (Clerk’s records, p. 144-145, 138-
139).
The plea of guilty was taken on the record. (Reporter’s record, Vol. 1).
Therefore, the review is not limited to the plea paperwork is contained in the
clerk’s record. During the entry of this guilty plea, Appellant was asked directly
by the trial judge how he was guilty of the charged offenses:
JUDGE: Tell me how it is you're guilty of the November 20, 2012
incident. How did you commit aggravated robbery on
that case?
APPELLANT: I committed it with a firearm ma'am, on both of them.
JUDGE: Where were you? Were you in a parking lot?
Page12
APPELLANT: No, ma'am. It was in a business. A store. It was in
November. It was at a pawnshop.
JUDGE: You went into a pawn shop by yourself?
APPELLANT: Yes, ma'am.
JUDGE: What time of the day?
APPELLANT: In the morning.
JUDGE: What did you do?
APPELLANT: I went in told them to give me everything.
JUDGE: Did you display your gun?
APPELLANT: Yes, ma'am. I pulled out and I put it -- I pointed it at him
and told him to give it up. He was scared and he gave it
up and I was gone.
JUDGE: The person that you pointed the gun at was that the clerk
at the store?
APPELLANT: Yes, ma'am.
JUDGE: All right. The December 28, 2012, aggravated robbery
how did you commit that crime?
APPELLANT: There were a few of us in there. I went in with the A. K.
47 and I didn't point the gun at anybody on -- in that
robbery but I was involved in it and my co-defendant
went in there and got the money from him. I went by the
door with the A. K. 47 and we got locked in and shot the
doors out and some of them got away. I was caught.
COUNSEL: Your Honor, this is a case that was tried with Markay
Stroud, Shane Mikel the robbery he's discussing.
APPELLANT: And I was caught on that same day on that robbery.
JUDGE: What kind of location was that?
Page13
APPELLANT: It was in Second Ward ma'am at a meat market.
JUDGE: Was this the place over on Navigation?
APPELLANT: Yes, ma'am.
(Reporter’s Record, Vol. 1, 2-5).
Because Appellant entered his guilty plea on the record and allocuted to the
offenses charged, as well there being no error in the paperwork, nothing that
indicates Appellant did not understand the rights he was waiving at the time of the
entry of his plea. Additionally, Appellant admits his guilt in the PSI report.
(Clerk’s supplemental record, p. 12-13). He also admits his guilt when testifying at
the sentencing hearing. (Reporter’s Record, PSI hrg volume, p. 7-9). As such, here
is no legal argument to be made that Appellant’s plea was not voluntary.
(3) Error Independent of Conviction
A plea of guilty is not sufficient to support a felony conviction under
Texas law. The State still bears the burden of proving the guilt of the defendant by
introducing sufficient evidence to support the conviction. TEX. CODE CRIM. PROC.
art. 1.15. The plea paperwork contains a judicial confession where Appellant
admits to committing the charged offense of aggravated robbery. (Clerk’s record,
p. 144-149, 138-143). The admission of the judicial confession is sufficient to
support the guilty plea. Therefore, there are no arguable grounds of appellate error
independent of the conviction.
Page14
(4) Sentencing Error
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). The sentence assessed by the trial court was within the
statutorily permissible range. The trial judge sentenced Appellant to forty five (45)
years in the Institutional Division of the Texas Department of Criminal Justice.
The range of punishment for aggravated robbery, a first degree felony as charged,
was five (5) to ninety-nine (99) years or life in prison. Therefore there is no issue
from the sentencing phase.
ISSUE TWO: effective assistance of counsel
There is nothing in this record to indicate that but for actions on the part of
trial counsel the outcome of the case at hand would have been different as required
by the second prong of the Strickland test. Strickland v. Washington, 466 U.S.
688, 694-95, 104 S. Ct. 2052, 2068 (1984). Strickland requires that, to show
ineffective assistance of counsel, an appellant must prove that his attorney's
representation fell below an objective standard of reasonableness under the
prevailing professional norms and that there is a reasonable probability that, but for
those unprofessional errors, the result of the proceeding would have been different.
Id. at 694-95.
Page15
All of the paperwork and testimony in the clerk’s and reporter’s records
support Appellant understanding of what was happening and what the possibilities
were during the sentencing hearing. Both the plea proceeding and the sentencing
hearing were recorded.
Therefore based on this representation and on this record, it appears
Appellant was not rendered ineffective assistance of counsel. As a result,
Appellant not would prevail on this issue.
Page16
CONCLUSION AND PRAYER FOR RELIEF
Based on a thorough review of the record, there are no grounds counsel can
ethically argue constitute error in this case. The undersigned has forwarded a copy
of this brief in this case to Appellant for his review. The undersigned has also sent
Appellant a complete copy of the record. Please see the attached letter sent to
Appellant explaining the legal issues in his case.
Respectfully submitted,
PATTI SEDITA
State Bar No. 00787484
One Sugar Creek Ctr Blvd.
Suite 1045
Sugar Land, TX 77478
281.313.4225
Attorney for Appellant
Page17
CERTIFICATE OF SERVICE
I certify that I delivered a copy of the Appellant’s Brief the Harris County
District Attorney’s Office, Appellate Division at 1201 Franklin, Houston, Texas
77002, via efiletex.gov, on this the 28th day of April 2015.
Patti Sedita
Attorney for Appellant
STATEMENT OF WORD COUNT
In compliance TEXAS RULE OF APPELLATE PROCEDURE 9.4, the number of
words in the brief as counted by the word processing program used is 5606.
______________________________
Patti Sedita
Attorney for Appellant
Page18
Exhibit A
PATTI SEDITA
ATTORNEY AT LAW
One Sugar Creek Center Blvd., Suite 1045
Sugar Land TX 77478
SBOT number 00787484
Office: 281.313.4225
Fax: 866.827.2087
pfsedita@gmail.com
April 28, 2015
Daniel Edison
TDCJ no. 01958042
Holiday Unit
295 IH-45N
Huntsville, TX 77320
Dear Mr. Edison:
I have finished working on your appeal. I am very sorry to tell you I do not
have good news. Unfortunately, I do not see any legal errors in your case. There is
no legal basis to argue that there is error in the judge’s sentencing decision or that
your lawyer was ineffective in the representation of you.
The appeal of a case is limited to what is in the trial record. I am sending
you the complete trial record in your case. The trial record consists of the clerk’s
record (all of the documents that are filed with the clerk of the court), a
supplemental clerk’s record (the PSI report) and the reporter’s record (all of what
was said in court that was on the record). The review I do is limited to these
volumes of records.
As I wrote to you earlier, the appeal of a plea of guilty is very limited. I
addressed all possible areas of potential error in the brief I have filed, a copy of
which is included with this letter. There is nothing on the record to indicate you
entered your plea of guilty involuntarily or that there were any errors in the
process.
The only other potential issue was whether or not your lawyer did the job
required as defense counsel. I have reviewed the record and researched this issue.
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Based on the record on appeal, your trial lawyer did all that was required.
Since I cannot see any legal way to argue your conviction should be reversed
in this direct appeal process, I have filed what is called an Ander’s brief. I have
included a copy of the brief for you. This brief tells the Court of Appeals that I do
not see any legal errors and cannot ethically argue for your conviction to be
reversed.
When your lawyer files an Ander’s brief, you are entitled to file a brief
on your own if you believe there are legal points of error the court should address.
You have thirty days to do that from the time I file the brief with the court, which
was April 28, 2015. Your thirty day deadline is: May 28, 2015. You may notify
the court that you need more time. You can contact the court by writing to the
Fourteenth Court of Appeals, 301 Fannin, Houston, Texas 77002.
I have sent this to you by the fastest means possible to give you as much
time as I can before that first due date arrives. I have included a copy of the
complete appellate record and a motion to withdraw as your counsel. You will also
get a copy of a motion to withdraw as your appellate lawyer. I am obligated to file
a motion to withdraw so that you can proceed on your own if you wish to do so.
You will notice you will get from me the motion to withdraw two more times. The
law requires I send you these documents by two specific means. They will be
marked as copies and will be identical to what is included in this package.
It is your right to file a brief yourself, but I do not believe there are any
issues to address. I am truly sorry that I do not have any better news for you in
your case but I am bound by the law and the trial record. I cannot make arguments
that are outside that record. I hope you understand this. Please let me know the
questions you have, about this process and other legal avenues you may wish to
pursue.
Sincerely,
Patti Sedita
Enclosure: brief on appeal
Complete record below
Motion to withdraw
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