Michael Dean Raglin v. State ( 2015 )

ACCEPTED
06-15-00177-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/15/2015 5:01:34 PM
DEBBIE AUTREY
CLERK
NO. 06-15-00177-CR
TO THE SIXTH COURT OF APPEALS FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
MICHAEL DEAN RAGLIN, Appellant.
12/15/2015 5:01:34 PM
DEBBIE AUTREY
Clerk
THE STATE OFTEXAS, Appellee,
BRIEF PURSUANT TO ANDERS V. CALIFORNIA
APPEAL FROM THE 8TH DISTRICT COURT,
HOPKINS COUNTY, SULPHUR SPRINGS, TEXAS
the Honorable Eddie Northcutt, Presiding Judge
BRYAN WHITE
Attorney at Law
210 W. Shannon Rd.
Sulphur Springs, TX 75482
Ph: 903-885-1155
Fx:903-885-5522
bryan@roperwhite.com
SBN: 24081206
Attorney for Appellant
MICHAEL DEAN RAGI-IN
Appellant does not request oral argument.
Page 1 of 33
BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
LIST OF PARTIES AND COUNSEL
Appellant
Mr. Michael Dean Raglin
TDCJ#02026959
Joe F. Gurney
1385 FM 3328
Palestine, TX 75803
Ph: 903-928-3118
Counsel for Appellant jn Trial Court
Mr. Jonathan Newsom
Attorney at Law
216 Davis St. North
Sulphur Springs, TX 75482
Ph: 903-951-1851
Fax: 903-951-1852
Email: ionathan@newsomlaw.net SBN:
24081067
Counsel for Appellant on Appeal
Counsel for State of Texas in Trial Court
Matt Harris
Assistant Criminal District Attorney 8th
Judicial District Attorney's Office 100
Main St.
Sulphur Springs, TX 75482
Ph: 903-885-0641
Fax: 903-885-0640
Email: mharris@hopkinscountytx.orq
SBN: 2408314ž
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
Counsel for State of Texas on Appeal
Matt Harris
Assistant Criminal District Attorney 8th
Judicial District Attorney's Office 100
Main St.
Sulphur Springs, TX 75482
Ph: 903-885-0641
Fax: 903-885-0640
Email: mharris@hopkinscountytx.orq
SBN: 24083142
Trial Judqe
Honorable Eddie Northcutt
Presiding Judge, 8th District Court
Hopkins County Courthouse 118
Church St.
Sulphur Springs, Texas 75482
"h: 903-4384022
Fax: 903-438-4092
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
TABLE OF CONTENTS
Table of Contents
LIST OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 4
TABLE OF AUTHORITIES 5
STATEMENT OF THE CASE 7
ISSUES PRESENTED 10
STATEMENT OF FACTS 1
1
SUMMARY OF ARGUMENTS 14
ARGUMENTS 15
CONCLUSION AND PRAYER FOR RELIEF 31
CERTIFICATE OF COMPLIANCE 32
CERTIFICATE OF SERVICE FOR BRIEF 33
Page 4 of 33
BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
TABLE OF AUTHORITIES
CASES
Anders v. California,
386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967)
Bradfield v. State, 28
42 S.W.3d 350 (Tex.App.—Eastland 2001 , pet. ref'd)
High v. State,
573 S.W.2d 807 (Tex.Crim.App. 1978)
Jackson v. State, 28
680 S.W.2d 809 (Tex.Crim.App. 1984)
Mays v. State, 10 16
904 S.W.2d 920 (Tex.App.—Fort Worth 1995, nopet.)
Pollard v. State, 28
2012 WL 5447955, 2012 Tex. App. LEXIS 9306 (Tex.App.—Fort
Worth #02-11-00496-CR, #02-11-00497-CR, #02-11- 00498-CR, #021 1-
00499-CR, #02-11-00500-CR, 11/8/2012, no pet, Not Designated for
Publication)
Stafford v. State, 16
813 S.W.2d 503 (Tex. Crim. App. 1978)
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
STATUTES
Texas Code of Criminal Procedure, Article 4.01 17
Texas Code of Criminal Procedure, Article 4.05 17
Texas Code of Criminal Procedure, Article 13.18 17
Texas Code of Criminal Procedure, Article 132 17
Texas Code of Criminal Procedure, Article 39.14 Texas 8,12
Health & Safety Code, 481.121
Texas Rules of Appellate Procedure, Rule 44.2 17,18
US. Constitution, Amend. Vlll 28
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
STATEMENT OF THE CASE
This case involves a criminal prosecution for possession of marijuana in an
amount of 50 pounds or less but more than 5 pounds. (CR:5). On July 20, 2011,
Michael Dean Raglin was indicted by a grand jury of Hopkins County, Texas for
possession of marijuana in an amount of 50 pounds or less but more than 5
pounds in violation of Chapter 481 of the Texas Health & Safety Code. (CR:5). On
July 22, 2011, an order setting bond was set at $30,000.00. (CR:6). On August 19,
2011, Mr. Raglin was arraigned and executed an Arraignment From. (CRI 1-12).
On January 26, 2012, Mr. Raglin plead guilty to the offense of possession
of marijuana in an amount of 50 pounds or less but more than 5 pounds and
executed a plea bargain agreement. (CRM 6-27). The terms of the plea bargain
agreement included a sentence recommendation for ten (10) years in the
Institutional Division of the Texas Department of Criminal Justice and for that
sentence of confinement to be suspended and Mr. Raglin to be placed on
community supervision for a period of ten (10) years. (CR:24-27). The plea
bargain agreement also imposed a fine of $3,000.00, court costs of $381.00,
and restitution of $140.00. (CR:24-27). Furthermore, a community supervision
order was executed listing the terms and conditions of community supervision.
(CR:24). Mr. Raglin executed
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
Written Plea Admonishments and the Trail Court's Certification of
Defendant's Right of Appeal. (CRM 7-23, 16).
A Motion To Revoke Community Supervision was filed on August 6,
2014 and subsequently withdrawn on November 3, 2014. (CR:28, 30).
Thereafter, a Motion To Revoke Community Supervision was filed on August
13, 2015 alleging Mr. Raglin had violated the conditions of his community
supervision, the details of which were listed in eight (8) numbered paragraphs
in the State's motion. (CR:32-33). On August 24, 2015, the 8th Judicial Court of
Hopkins County, Texas appointed Jonathan
Newsom to represent Mr. Raglin. (CR:39)-
On September 10, 2015, Mr. Raglin executed Written Plea
Admonishments on the Motion To Revoke Community Supervision and also
executed the State's Certificate of Discovery And Defendant's
Acknowledgment of Receipt of Discovery pursuant to TEX. CODE CRIM. PROC.
ART. 39.14. (CR:44-47). The Court set the case for sentencing to be held on
September 21, 2015. (CR:48). On September 21, 2015, The Court set the case
for trial before the court to be held on September 22, 2015.
(CR:50).
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
On September 22, 2015, the Court entered a Judgment Revoking
Community Supervision and assessed punishment in accordance with the
judgment originally entered - ten (10) years in the Institutional Division of the
Texas Department of Criminal Justice. (CR:51-53). The judgment also imposed a
fine of $2,941.00 and court-appointed attorney's fees of
$500.00. (CR:51-53, 56). Mr. Raglin executed the Trail Court's Certification of
Defendant's Right of Appeal. (CR:54).
A Notice of Appeal was timely filed on October 9, 2015 along with a
Motion to Withdraw by Attomey Jonathan Newsom (CR:58-60), and the trial
court certified Mr. Raglin's right to appeal on September 22, 2015 (CR:54). An
order appointing Attorney Bryan White for the purpose of appeal was filed on
October 19, 2015. (CR:61).
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
ISSUES PRESENTED
No issues are presented for review. This brief is submitted to comply with
the requirements of Anders v. California, 386 U.S. 738, 87
S. Ct. 1396, 18 L. Ed. 2d 493 (1967), High v. state, 573 S.W.2d 807
(Tex.Crim.App. 1978), and Mays v. state, 904 S.W.2d 920 (Tex.App.— Fort
Worth 1995, no pet).
Page 10 of 33
BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
STATEMENT OF FACTS
This case involves a criminal prosecution for possession of marijuana in an
amount of 50 pounds or less but more than 5 pounds. (CR:5). On July 20, 2011,
Michael Dean Raglin was indicted by a grand jury of Hopkins County, Texas for
possession of marijuana in an amount of 50 pounds or less but more than 5
pounds in violation of Chapter 481 of the Texas Health
& Safety Code. (CR:5). On July 22, 2011, an order setting bond was set at
$30,000.00. (CR:6). On August 19, 2011, Mr. Raglin was arraigned and executed
an Arraignment From. (CR:11-12).
On January 26, 2012, Mr. Raglin plead guilty to the offense of possession
of marijuana in an amount of 50 pounds or less but more than 5 pounds and
executed a plea bargain agreement. (CRM 6-27). The terms of the plea bargain
agreement included a sentence recommendation for ten
(10) years in the Institutional Division of the Texas Department of Criminal
Justice and for that sentence of confinement to be suspended and Mr. Raglin
to be placed on community supervision for a period of ten (10) years. (CR:24-
27). The plea bargain agreement also imposed a fine of
$3,000.00, court costs of $381.00, and restitution of $140.00. (CR•.24-27).
Furthermore, a community supervision order was executed listing the terms and
conditions of community supervision. (CR:24). Mr. Raglin executed
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
Written Plea Admonishments and the Trail Court's Certification of
Defendant's Right of Appeal. (CRM 7-23, 16).
A Motion To Revoke Community Supervision was filed on August 6,
2014 and subsequently withdrawn on November 3, 2014. (CR:28, 30).
Thereafter, a Motion To Revoke Community Supervision was filed on August
13, 2015 alleging Mr. Raglin had violated the conditions of his community
supeMsion, the details of which were listed in eight (8) numbered
paragraphs in the State's motion. (CR:32-33). On August 24, 2015, the 8th
Judicial District Court of Hopkins County, Texas appointed
Jonathan Newsom to represent Mr. Raglin. (CR:39).
On September 10, 2015, Mr. Raglin executed Written Plea
Admonishments on the Motion To Revoke Community Supervision and also
executed the State's Certificate of Discovery and Defendant's
Acknowledgment of Receipt of Discovery pursuant to TEX. CODE CRIM. PROC.
ART. 39.14. (CR:44-47). The Court set the case for sentencing to be held on
September 21, 2015. (CR:48). On September 21, 2015, the Court
set the case for trial before the court to be held on September 22, 2015.
(CR:50).
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
On September 22, 2015, the Court entered a Judgment Revoking
Community Supervision and assessed punishment in accordance with the
judgment originally entered - ten (10) years in the Institutional Division of the
Texas Department of Criminal Justice. (CR:51-53). The judgment also imposed a
fine of $2,941.00 and court-appointed attorney's fees of
$500.00. (CR:51-53, 56). Mr. Raglin executed the Trial Court's Certification of
Defendant's Right of Appeal. (CR:54).
A Notice of Appeal was timely filed on October 9, 2015 along with a
Motion to Withdraw by Attorney Jonathan Newsom (CR:58-60), and the trial
court certified Mr. Raglin's right to appeal on September 22, 2015 (CR:54). An
order appointing Attorney Bryan White for the purpose of appeal was filed on
October 19, 2015. (CR:61).
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
SUMMARY OF THE ARGUMENTS
This brief is submitted for the purpose of compliance with the
requirements of Anders v. California, supra, and related cases.
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
ARGUMENTS
1. The Anders Brief
In the case ofAnders v. California, supra, the United States Supreme
Court set forth the standard for cases in which an appellant's counsel deems
the appeal to be "fitm€':
Of course, if counsel finds his case to be whollyfrivolous, after a
conscientious examination of it, he should so advise the court and
request permission to withdraw. That request must, however, be
accompanied by a brief referring to anything in the record that might
arguably support the appeal. A copy of counsel's briefshould be
furnished the indigent and time allowed him to raise any points that
he chooses; the court—not counsel—then proceeds, after a full
examination of all the proceedings, to decide whether the case is
wholly frivolous. If it so finds it may grant counsel's request to
withdraw and dismiss the appeal insofar as federal requirements are
concerned, or proceed to a decision on the merits, if state law so
requires. On the other hand, if it finds any of the legal points
arguable on their merits (and therefore not frivolous) it must, prior
to decision, afford the indigent the assistance of counsel to argue
the appeal.
Anders v. California, supra, 386 U.S. at 744, 87 S. Ct. at 1400.
In High v. State, supra, the Texas Court of Criminal Appeals elaborated on
these requirements, stating that the trial court makes the initial determination
regarding the sufficiencyofcounsel's Anders brief (see high v. State, supra, 573
S.W.2d at 808), and further stating:
of33
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
As applied to Texas procedure , court-appointed counsel should, in
his brief, refer to anything in the record that might arguably support
the appeal and make ready references to the record and legal
authorities in order to assist the trial court, in the first instance, to
determine whethera new trial should be granted Ifthetrial court
finds any of the legal points arguable on their merits, and therefore
not frivolous, it must, prior to decision, afford the indigent the
assistance of counsel in order to argue those points.
High v. State, supra, 573 S.W.2d at 811. With regard to the contents of the
Anders brief, the Court stated:
We recognize that there are cases in which counsel cannot, in
good faith, advance any arguable grounds of error. However, in
those instances, we require the brief of counsel to contain a
professional evaluation of the record demonstrating why, in
effect, there are no arguable grounds to be advanced.
High v. State, supra, 573 S.W.2d at 812. The Anders brief should contain
"ready references not only to the record, but also to germane legal authorities."
Mays v. State, supra, 904 S.W.2d at 922. Further, the briefing attorney "should
educate the reviewing court with all the salient facts and the relevant legal
authorities, and present and analyze the critical issues in the case." Id Finally,
the Court of Criminal Appeals has held that if arguable grounds for appeal are
found, a new defense counsel should be appointed to represent the appellant.
Stafford v. State,
813 S.W.2d 503, 511 (Tex.Crim.App. 1978).
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
2. Jurisdiction and Venue
Jurisdiction for felony offenses lies in the district courts and the criminal
district courts. TEX. CODE CRIM. PROC. ART. 4.01 and 4.05.
This case was held in the 8th District Court, Hopkins County, Texas (CR:5,11 ,25-
26, 51-53), which has jurisdiction for felony offenses.
Thus, jurisdiction was proper.
Chapter 13 of the Texas Code of Criminal Procedure states that an
offense of possession of marijuana may be prosecuted in the county where the
offense was committed or with the consent of the defendant in a county that is
adjacent to and in the same judicial district as the county where the offense
was committed. TEX. CODE CRM. PROC. ART. 13.22 Therefore, venue is proper
in the county in which the offense was committed. TEX. CODE CRIM. PROC.
ART. 13.18. The indictment alleges that the offense was committed "in the
County of Hopkins," in Texas. (CR:5). The information contained within the
Clerk's file, including, but not limited to, the executed plea bargain agreement
established that the offense occurred in Hopkins County, Texas. (CR:5, 11, 25-
26, 51-53). Therefore, venue was proper in Hopkins County. In addition, Rule
44.2(c) of the Texas Rules of Appellate Procedure provides that the court of
appeals must presume that venue was proved jn the trial court unless
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
venue was disputed in the trial court or the record affirmatively shows that
venue was not proven. TEX. R. App. PROC. 44.2(c)(1). The record does not
indicate that venue was disputed or unproven in this case.
3. Adverse Pre-Trial Rulings
No evidence was provided to establish any adverse pre-trail rulings.
In fact, the State agreed to withdraw the month of May as far as
Paragraph 5 in the State's Motion to Revoke Community Supervision. And
there was a stipulation of true by Appellant to all remaining paragraphs in the
State's Motion to Revoke Community Supervision as well as a stipulation as
to the Appellant's criminal history. Regarding stipulations, Appellant signed
the section on the Written Plea
Admonishments on Motion to Revoke Community Supervision stating he
consented to oral and written stipulations of evidence. (CR: 46). No evidence
was provided to establish any conflict of interest between trial counsel and
Appellant. There were no adverse pre-trial rulings.
4. Adverse Trial Rulings
During the guilt/innocence phase of trial, the State called no
witnesses. (RR Vol. 3). No objections to preserve error were made for the record
concerning the testimony of any witnesses. (RR Vol. 3). The
State introduced (2) exhibits — Written Plea Admonishments On Motion
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
To Revoke Community Supervision Or Motion To Proceed To
Adjudication and a recorded jail call made by Appellant. (RR Vol. 4: 4-6,
7; RR Vol. 3: 7-10). The exhibits were admitted without objection. (RR Vol. 3: 7-
10). No error was preserved for review.
Trial counsel called (2) witnesses. (RR Vol. 3: 10-44). No objections were
made by the State concerning the testimony of any witnesses, Appellant,
Michael Dean Raglin, and Appellant's wife, Tina Raglin. (RR
Vol. 3). Trial counsel introduced (2) exhibits — Employment
Documentation and Order of Driver's License Reinstatement. (RR Vol. 4:5-7; RR
Vol. 3: 19-26). The exhibits were admitted without objection.
(RR Vol. 3: 19-26).
5. Jury Selection
Appellant waived his right to a jury. (CR:16, 17-23, 25-26, 45-47,
51-54). No issue of reviewable error is presented for jury selection.
6. Sufficiency of the Guilty Verdict and Sentence
On January 26, 2012, Mr. Raglin plead guilty to the offense of possession
of marijuana in an amount of 50 pounds or less but more than 5 pounds and
executed a plea bargain agreement. (CRM 6-27). The terms of the plea bargain
agreement included a sentence recommendation for ten (10) years in the
Institutional Division of the Texas Department of
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
Criminal Justice and for that sentence of confinement to be suspended and Mr.
Raglin to be placed on community supewision for a period of ten
(10) years. (CR:25-26). The plea bargain agreement also imposed a fine of
$3,000.00, court costs of $381.00, and restitution of $140.00. (CR:24, 25-26, 27).
Furthermore, a community supervision order was executed listing the terms and
conditions of community supervision. (CR:24). Mr. Raglin executed Written Plea
Admonishments and the Trial Court's
Certification of Defendant's Right of Appeal. (CRM 7-23, 16). The Written Plea
Admonishments included a section titled "Community Supervision" that states
"If the Court grants you community supervision as opposed to deferred
adjudication, upon violation of any imposed condition, you may be arrested and
detained as provided by law. You will then be entitled to a hearing limited to the
determination by the Court, without a jury, whether to revoke your community
supervision and sentence you to confinement for a period of time not to exceed
that originally assessed by the Court at the time you were found guilty. If you
receive community supervision in more than one case, future revocations
resulting in confinement in I.D.D.C.J. or
S.J.D.D.C.J. may be cumulated. (CR: 19). Appellant and his attorney signed those
admonishments. (CR: 20-23).
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
On January 26, 2012, the Appellant and his attorney also signed the Trial
Court's Certification of Defendant's Right of Appeal certifying that the defendant
has no right of appeal and had waived the right of appeal. (CFR:
16).
On September 10, 2015, prior to any judgment being entered, the
Appellant was admonished by the Court on the record. (RR Vol. 2: 5-13). In
relevant parts, the Court admonished the Appellant on his right to a contested
hearing. (RR Vol. 2: 6-8). The Court also advised the Appellant on the various
options available to the Court. (RR Vol. 2: 6-8). The Appellant waived his rights and
plead true to violating his probation. (RR Vol. 8, 10). The Appellant agreed that he
was making his decisions freely, voluntarily, knowingly, and competently. (RR Vol.
8-9). The State admitted State's
Exhibit 1 (plea papers signed January 26, 2012) with no objection. (RR: Vol. 2: 10-
12). The Appellant stated he understood what he was signing each time he signed.
(RR Vol. 2: 11-12). The Court accepted Appellant's plea of true and found it to be
true that Appellant did violate the conditions of his probation as alleged by the
State after they have abandoned that one month in Paragraph 5. (RR Vol. 2: 12).
The Court found that the decisions made by Appellant were made freely,
voluntarily, knowingly, and competently. (RR
Vol. 2: 12).
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
The Appellant signed Written Plea Admonishments On Motion To Revoke
Community Supervision Or Motion To Proceed To Adjudication stating "l swear
my true name is MICHAEL DEAN RAGI-IN and I am one and the same person that
was placed on community supervision in this cause. I further state that each and
every allegation contained in the State's motion to revoke my community
supervision or to adjudicate my guilt is true. When I was placed on community
supervision, I was given a copy of the conditions of my community supervision
and they were explained to me. I understood the conditions of community
supervision at the time I was placed on community supervision, and I understand
then, now, and at all intervening times. I swear to all of the foregoing and I further
swear that all testimony I give in this case will be the truth, the whole truth and
nothing but the truth, so help me God." (CR: 46). The Appellant also signed the
section stating "l consent to oral and written stipulations of evidence." (CR: 46).
On September 22, 2015, the Court entered a Judgment Revoking
Community Supervision and assessed punishment in accordance with the
judgment originally entered - ten (10) years in the Institutional Division of the
Texas Department of Criminal Justice. (CR:51-53, 25-26). The judgment also
imposed a fine of $2,941.00 and court-appointed attorney's
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
fees of $500.00. (CR:51-53, 56). Appellant executed the Trial Court's
Certification of Defendants Right of Appeal on this day as well. (CR:54).
7. Sufficiency of the Indictment and Evidence of Guilt
The indictment in Appellant's case alleges that he
. on or about the 6th day of April, 2009, and beforethe presentment of
this indictment, in the County of Hopkins, State of Texas, did then and
there intentionally or knowingly possess a usable quantity of marijuana
in an amount of 50 pounds or less but more than five pounds. (CR:5)
Chapter 481.121 of the Texas Health & Safety Code defines the offense of
possession of marijuana in an amount of 50 pounds or less but more than 5
pounds.
That statute states, in relevant part:
(a) A person commits an offense if the person knowingly or
intentionally possesses a usable quantity of marijuana... (b)(4) An
offense under Subsection (a) is a felony of the third degree if the
amount of marihuana possessed is 50 pounds or less but more than
5 pounds.
The indictment in Appellant's case alleges each of these
elements.
(CR:5). Thus, the indictment sufficiently alleged the offense.
Appellant plead guilty to the offense and executed a plea bargain
agreement. (CRM 7-27). Appellant executed Written Plea
Admonishments on January 26, 2012. (CRM 7-23). The Written Plea
Admonishments include a section labeled "Judicial Confession" that states
"Upon my oath I swear that I am the person charged as the defendant in
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
the charging instrument; I have read (or have had read to me) the indictment or
information filed in this case and it has been reviewed with me by my attorney
and I understand all matters contained therein; I committed and am guilty of
each and every act as alleged in the charging instrument, except those acts
expressly waived by the State; all of the facts alleged in the charging instrument
are true and correct; I am guilty of the offense(s) charged as well as all lesser
included offenses; any enhancement and habitual allegations set forth in the
Indictment, if any, are true and correct, expect those expressly waived by the
State; I further admit any guilt on any unadjudicated offenses set forth in the
plea recommendation, if any, and request the Court to take each into account in
determining my sentence for the instant offense; I swear to all of the foregoing
and further swear that all testimony I give in the case will be the truth, the
whole truth, and nothing but the truth, so help me God." The
Judicial Confession was signed by the Appellant. (CR:21-22).
On September 10, 2015, prior to any judgment being entered, the
Appellant was admonished by the Court on the record. (RR Vol. 2: 5-13). In relevant
parts, the Court admonished the Appellant on his right to a contested hearing. (RR
Vol. 2: 6-8). The Court also advised the Appellant on the various options available
to the Court. (RR Vol. 2: 6-8). The Appellant
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
waived his rights and plead true to violating his probation. (RR Vol. 2: 8). The
Appellant agreed that he was making his decisions freely, voluntarily,
knowingly, and competently. (RR Vol. 2: 9-10). The State admitted State's
Exhibit 1 (plea papers signed January 26, 2012) with no objection. (RR Vol. 2: 10-
11). The Appellant stated he understood what he was signing each time he signed.
(RR Vol. 2: 11-12). The Court accepted Appellant's plea of true and found it to be
true that Appellant did violate the conditions of his probation as alleged by the
State after they have abandoned that one month in Paragraph 5. (RR Vol. 2: 12).
The Court found that the decisions made by Appellant were made freely,
voluntarily, knowingly, and competently. (RR Vol. 2: 12).
The Appellant also executed Written Plea Admonishments On
Motion To Revoke Community Supervision Or Motion To Proceed To
Adjudication on September 10, 2015. (CR.' 45-47). The Appellant signed the
section stating "l swear my true name is MICHAEL DEAN RAGI-IN and I am one
and the same person that was placed on community supervision in this cause. I
further state that each and every allegation contained in the State's motion to
revoke my community supervision or to adjudicate my guilt is true. When I was
placed on community supervision,
I was given a copy of the conditions of my community supervision and
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
they were explained to me. I understood the conditions of community
supervision at the time I was placed on community supervision, and I understand
then, now, and at all intervening times. I swear to all of the foregoing and I further
swear that all testimony I give in this case will be the truth, the whole truth and
nothing but the truth, so help me God." (CR.'
46).
Trial counsel in 2012 did not object to the Written Plea
Admonishments. (CR.' 17-23). Trial counsel in 2015 did not object to the
Written Plea Admonishments On Motion To Revoke Or Motion To Proceed To
Adjudication. (CR: 45-47). The Clerk's Record does not show any fundamental
error(s) to which Appellant's trial counsel could or should have objected.
8. Trial Counsel's Objection(s) to Fundamental Error
The trial transcript and Clerk's Record do not show any fundamental
error(s) to which Appellant's trial counsel could or should have objected.
9. Adverse Rulings During Punishment Phase
In the punishment phase of trial, Appellant's trial counsel called two
witness; Appellant, Michael Dean Raglin (RR Vol 3: 10), and Appellant's wife, Tina
Raglin (RR Vol. 3: 40). Appellant was admonished that he was not required to
testify. (RR Vol. 3: 11). Both witnesses testified in favor of
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
a lenient sentence from the Judge for Appellant. (RR Vol. 3: 10-44). State's trial
counsel did not make any objections to Appellant's trial counsel's questionsof
either witness, or to their responses. (RR Vol. 3: 10-44). After both sides rested
and closed at the punishment phase, the
Judge deliberated and returned with a sentence of ten (10) years
confinement in the Texas Department of Corrections — Institutional
Division, and a fine of $2,941.00 and court-appointed attorney fees of
$500.00. (RR Vol. 3: 44-55).
The Court did not make any adverse rulings to the defense during the
punishment phase of trial. (RR Vol. 3). No error was preserved or presented
for review from the punishment phase of the trial. (RR Vol. 3).
10. Legality of the Sentence
A. Prison Sentence
Based on the evidence presented by the State at trial, Appellantwas
convicted of possession of marijuana in an amount of fifty (50) pounds or less
but more than five (5) pounds, and was subject to a sentence of two
(2) years to ten (10) years in prison. (CR: 17-20, 25-26, 45-47, 51-53). Chapter
481 of the Texas Health & Safety Code. The judge sentenced him to ten (10)
years in prison. (CR: Vol. 3: 53-54). Since this sentence was within
the statutory range of two (2) years to ten (10) years,
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
his sentence was legal. See Bradfield v. State, 42 S.W.3d 350, 354 (Tex.App.—
Eastland 2001, pet. ref'd) ("A penalty within the range of punishment
established by the legislature will not be disturbed on appeal."); see also,
Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App. 1984).
On the other hand, the Second Court of Appeals has implied that a
sentence might be reviewable for an abuse of discretion based upon the Eighth
Amendment's prohibition against cruel and unusual punishment.
Pollard v. state, 2012 WI-5447955, at *1, 2012 Tex. App. LEXIS 9306
(Tex.App.—Fort Worth #02-11-00496- CR, #02-11-00497-CR, #02-11-
00498-CR, #02-11-00499-CR, #02-11-00500-CR, 11/8/2012, no pet, Not
Designated for Publication); U.S. Constitution, Amend. Vlll. In Pollard, the Court
stated, "In general, when the sentence imposed is within the proper range of
punishment, the trial court has a great deal of discretion and the sentence will
not bedisturbed on appeal," and then held that the trial court did not abuse its
discretion in sentencing the appellant to 75 years in prison. Pollard v. State,
supra, 2012 WL 5447955 at *1-2.
In Appellant's case, I believe challenging the sentence as a violation of the
Eighth Amendment's prohibition of cruel and unusual punishment would be
frivolous, in view of the nature of the offense and the fact that
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
the Appellant agreed to the sentence in the original judgment and executed
written admonishments on two separate occasions.
Based on the foregoing, I believe it would be frivolous to argue that the
trial court abused its discretion by imposing a sentence of ten (10) years in
prison in this case.
B. Court Costs
The trial court's judgment includes $0.00 in court costs. (CR: 51-53)
11. Judgment Accurately Reflects Sentence
The Trial Court's Judgment reflects that Appellant was found guilty
of possession of marijuana in an amount of fifty (50) pounds or less but more
than five (5) pounds and that it was true that the Appellant violated the
conditions of his community supervision. (CR: 51-53). The Judgment also states
that Appellant was sentenced to ten (10) years imprisonment in the Texas
Department of Criminal Justice — Institutional Division, and a fine of $2,941.00
and court-appointed attorney fees of $500.00. (CR: 5153, 56). This corresponds
with the sentence at the conclusion of the punishment phase of the trial. (CR:
25-27, 51-53, 56) (RR Vol. 3: 53-54).
12. Effective Assistance of Counsel
Appellate counsel has fully and thoroughly examined the trial transcript
and Clerk's Record. No evidence of ineffective assistance of
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
counsel is present in the record. Trial counsel thoroughly and diligently
presented witness testimony on Appellant's behalf at the punishment phase
and the Judge handed down a sentence; a sentence that was in accordance with
the judgment originally entered and agreed to by the defendant after executing
written admonishments. (CR: 51-53) (RR Vol. 3: 51-53. Furthermore, in the
Written Plea Admonishments To Revoke Community Supervision, the Appellate
signed indicating he was totally satisfied with the representation given to him
by his counsel and that he provided effective and competent representation.
(CR: 46). Accordingly,
Appellant received effective assistance of counsel at trial.
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
CONCLUSION AND PRAYER FOR RELIEF
Based on the foregoing discussion, and after a conscientious examination
of the appellate record and relevant case law, I believe that any issue that could
be raised in this case would be wholly frivolous, and I therefore request this
Honorable Court's permission to withdraw as counsel for Appellant.
I therefore respectfully pray that this Honorable Court would grant my
Motion for Withdrawal of Counsel and relieve me from further responsibility in
this case.
Respectfully submitted,
Attorney at Law
210 W. Shannon Rd.
Sulphur Springs, TX 75482
Ph: 903-885-1155
Fax: 903-885-5522
Email: bryan@roperwhite.com
SBN: 24081206
Attorney for Appellant
MICHAEL DEAN RAGI-IN
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
CERTIFICATE OF COMPLIANCE
Per Rule 9.4 of the Texas Rules of Appellate Procedure, I certify that the
foregoing brief contains 5411 words—exclusive of those portions which are
excludable per Texas Rule of Appellate Procedure 9.4(i)(1 based on the word
count of Microsoft Word word-processing software, which was used to prepare
this document. I further certify that the document uses the Arial 14-point font.
Attorney at Law
210 W. Shannon Rd.
Sulphur Springs, TX 75482
Ph: 903-885-1155
Fax: 903-885-5522
Email: bryan@roperwhite.com
SBN: 24081206
Attorney for Appellant
MICHAEL DEAN RAGI-IN
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)
CERTIFICATE OF SERVICE FORBRIEF
As Attorney for the Appellant, MICHAEL DEAN RAGI-IN, I certify that a true
and correct copy of the foregoing brief was delivered to the counsel listed
below, at the address indicated, on December 15, 2015, by eFile service.
Counsel for the State of Texas
Matt Harris
Assistant Criminal District Attorney 8th
Judicial District Attorney's Office 100
Main St.
Sulphur Springs, TX 75482
Email: mharris@hopkinscountytx.orq SBN:
24083142
And I further certify that a true and correct copy of the foregoing brief
was mailed via first-class certified U.S. mail, return receipt requested, to the
party listed below, at the address indicated, on
December 15, 2015.
Appellant
Michael Dean Raglin
TDCJ#02026959
Joe F. Gurney
1385 FM 3328
Palestine, TX 75803
BRYAN WHITE
Attorney for Appellant,
MICHAEL DEAN RAGI-IN
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BRIEF PURSUANT TO ANDERS V. CALIFORNIA (Michael Dean Raglin v. State of Texas)