DJ Christopher Lowe v. State ( 2015 )

RECEIVED
FIRST COURT OF APPEALS
HOUSTON, TEXAS
JUL 1 3 2015
NO. 01-14-00158-CR
CHRISTO RINE
IN THE COURT OF APPEALS CLERK wr
FIRST DISTRICT OF TEXAS
HOUSTON CHRISTI, TEXAS
DJ CHRISTOPHER LOWE,
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE
MOTION TO WITHDRAW FROM FRIVOLOUS APPEAL
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW, Mark W. Racer, herein referred to as "Movant" in his capacity as
attorney appointed by the trial court to prepare an appeal for the Appellant, DJ CHRISTOPHER
LOWE, and submits this Motion to Withdraw from a Frivolous Appeal, and in support thereof
would show as follows:
1. On August 15, 2013, in the 400th Judicial District Court of Fort BendCounty, Texas
the Defendant waived a trial by jury and entered a plea of guilty to the indictment
for delivery of a controlled substance in a drug free zone with intent to deliver.
After the punishment phase of trial, the trial court sentenced Defendant to 75 years
confinement in the Texas Department of Criminal Justice-Institutional Division.
The trial court appointed Movant to prepare an appeal for Appellant.
2. Movant has diligently searched and thoroughly reviewed the record, and has found
no good faith basis upon which to appeal, and has determined that any appeal so
advanced would be frivolous and without merit.
3. Attached hereto as Exhibit "A" is a brief that sets out an analysis of the record that
will not support error.
4. Attached hereto as Exhibit "B" is a copy of a letter to Appellant that informs him of
the right to proceed with an appeal on her own behalf.
WHEREFORE, Movant prays that he be allowed to withdraw from this cause and that
Appellant be allowed an extension of at least sixty (60) days after the receipt of his copies
of the record in order to submit a brief if he should so request.
Respectfully submitted,
A<^C~>/US^
Mark W. Racer
Texas Bar No. 16448450
212 E. Burleson
Wharton, Texas 77488
(979)531-0322
(979)531-0355 Fax
Attorney for Appellant
CERTIFICATE OF DELIVERY
This is to certify that a true and correct copy of the foregoing Motion to Withdraw has
been forwarded to counsel for the State of Texas, Mr. John Harrity, 309 South 4th Street, Suite
258, Richmond, Texas 77469 on this the 20th day of November ,
2014.
h^A c^>
Mark W. Racer
EXHIBIT A
NO. 01-14-00158-CR
IN THE COURT OF APPEALS
FIRST DISTRICT OF TEXAS
HOUSTON, TEXAS
DJ CHRISTOPHER LOWE,
APPELLANT
VS.
THE STATE OF TEXAS
APPELLEE
BRIEF FOR APPELLANT
Respectfully submitted,
Mark W. Racer
Texas Bar No. 16448450
212 E. Burleson
Wharton, Texas 77488
(979)531-0322
(409) 531-0355 FAX
Attorney for Appellant
IDENTITY OF THE PARTIES
Appellant- Mr. Thomas Phillip Allen
Appellee- The State of Texas
Counsel for Appellant- Mr. Mark W. Racer
Texas Bar No. 16448450
212 E. Burleson
Wharton, Texas 77488
(979)531-0322
(979) 531-0355 FAX
Counsel for Appellee- Mr. John Harrity
309 South Fourth Street, Suite 258
Richmond, Texas 77469
(281)341-4460
(281) 341-3440 Fax
TABLE OF CONTENTS
PAGE
1. NAMES OF PARTIES 3
2. INDEX OF AUTHORITIES 5
3. STATEMENT OF THE CASE 6
4. ISSUES PRESENTED 7
5. STATEMENT OF FACTS 8
6. SUMMARY OF ARGUMENT 9
7. ARGUMENT 10
8. PRAYER 13
INDEX OF AUTHORITIES
CASES
Jacks vs. State, 871 S.W.2d 741 (Tex.Crim.App. 1994)
Strickland vs. Washington, 466 U.S. 668 (1984)
CONSTITUTION
U.S. Constitution Amendment VI
Texas Constitution Art. I. Sec. 10
STATUTES
Texas Code of Criminal Procedure Article 21.02
Texas Penal Code Annotated 12.32
STATEMENT OF THE CASE
This case is a prosecution for aggravated sexual assault of a child. Appellant pled guilty
to the offense of aggravated sexual assault of a child on August 15, 2013. (CR 18-27). The Court
accepted the Appellant's plea of guilty and set the punishment phase of the trial for December 6,
2013. At the punishment phase of the case the trial court sentenced Appellant to 75 years in the
Texas Department of Criminal Justice-Institutional Division. (RR 13-14).
ISSUES PRESENTED
CERTIFICATE OF COUNSEL
I, Mark W. Racer, counsel of record for Appellant, DJ Christopher Lowe, do hereby state
that I have diligently searched the record in Cause No. 10-DCR-055397, and have researched the
law applicable to the facts and issues contained therein, and it is my professional evaluation that
no reversible error is reflected in the record. Therefore, I am of the professional opinion that the
appeal is without merit and frivolous. In compliance with the applicable law pertaining to
appeals of this type, I have set forth no grounds of error that may arguably support an appeal.
I have cause a copy of this brief to be served on the Appellant, accompanied by a letter
informing the Appellant of his right to examine the entire appellate record for the purpose of
filing a pro se brief. A copy of this letter has been attached to this brief
Mark W. Racer
10
STATEMENT OF FACTS
Appellant was indicted for aggravated assault of a child. (CR 5). Appellant pled guilty to
the offense of aggravated assault of a child on August 15, 2013. (CR 18-25). The Court accepted
the Appellant's plea and set the punishment phase of the trial for December 6, 2013. On
December 6, 2013 Appellant was sentenced to 75 years in the Texas Department of Criminal
Justice-Institutional Division. (RR 13-14).
11
SUMMARY OF ARGUMENT
Appellant was arrested and indicted aggravated sexual assault of a child. Appellant pled
guilty to the offense ofaggravated sexual assault ofa child. The Court accepted the Appellant's
plea and found Appellant guilty. The Court sentenced Appellant to 75 years in the Texas
Department of Criminal Justice-Institutioiial Division. There is no reversible error reflected in
the record.
12
ARGUMENT
Analysis of the pre-trial record
Indictment
The record contains no objection to the indictment at trial but was examined for error.
The requisites for a valid indictment as set forth in the Texas Code of Criminal Procedure, Art.
21.02 are:
Commence with "In the name and by the authority of the State of Texas;"
Presented in the district court of Fort Bend County;
It was an act of a Fort Bend County grand jury;
Contains the name of the accused;
Recites the crime was committed within the jurisdiction of Fort Bend County;
The date of the crime was prior to the date the grand jury convened;
The recited offense tracks the language contained in the Texas Penal Code;
Concludes with "Against the Peace and Dignity of the State"; and
It was signed by the foreman of the grand jury.
The indictment in this cause complied with all of the requirements of Texas Code of
Criminal Procedure, Art. 21.02. There was no error in the indictment.
Analysis of the Trial Record
On August .15, 2013, the Appellant changed his plea from "Not Guilty" to "Guilty". (CR
18-25). The legal effect of a voluntary and knowing plea of guilty without a plea bargain is to
waive all non-jurisdictional defects that occur before the entry of the plea. Jack vs. State, 871
13
S.W.2d 741 (Tex.Crim.App. 1994). If the Appellant wishes to overturn his plea on appeal, he
must show that it was not voluntarily given or that he was not properly admonished.
Appellant signed Defendant's Plea of Guilty or Nolo Contendere-Written
Admonishments, Waiver of Statutory and Constitutional Rights, and Written Stipulation and
Judicial Confession which was also signed by Appellant's attorney, the prosecutor and the trial
judge. (CR 19-24). The Appellant affirmed the following to the trial court:
1. That he had fully consulted with his attorney before entering his plea and that
he was satisfied that his attorney had properly represented of him. (CR 22);
2. That he had a right to a trial by jury and was giving Up that right. (CR 20);
3. That he was pleading guilty voluntarily and that no one had coerced or
promised the Appellant anything to get him to plead guilty. (CR 22);
Appellant's attorney confirmed that Appellant was competent and the Court found him to
be competent. (CR 24).
The record indicates that the Appellant did receive the proper admonishments. Therefore,
a prima facie case is made that the plea was given knowingly and voluntarily. The record
contains no facts to support a conclusion that Appellant did not know what he was doing when
he entered his plea of "Guilty." No error was found.
Analysis of the Trial Record on Punishment
Fairness of the Punishment
Appellant was assessed punishment of seventy-five (75) years confinement in the Texas
Department of Criminal Justice-Institutional Division. If a punishment is excessive then such
punishment would be cruel and unusual under the Eighth Amendment and the Appellate Court
14
should grant a new trial. In the instant case Appellant was charged with aggravated sexual assault
of a child. The range of punishment for this offense was imprisonment in the institutional
division for life or any term of not more that 99 years or less than 20 years and a fine not to
exceed $10,000.00. Tex. Penal Code Ann, 12.32 Vernon's 1994). Texas courts have consistently
held that where the trial court sentences a defendant within the statutorily prescribed range, then
the punishment is not cruel and unusual.
Ineffective assistance of counsel
In all proceedings, a person is entitled to the assistance of counsel." U.S.Const. Amend.
VI and Tex.Const.Art I, Sec. 10. In order to prevail on a claim of ineffective assistance of
counsel, the defendant must first show that trial counsel's performance was deficient. Second, the
defendant must show that this deficient performance prejudiced the defense which requires a
demonstration that counsel's errors were so serious as to deprive the defendant of a fair trial.
Strickland vs. Washington, 466 U.S. 668 (1984). In this case Appellant pled guilty to the offense
of aggravated sexual assault of a child. The trial court assessed the punishment of Appellant
within the range of punishment for the offense of aggravated sexual assault of a child. There is
ho valid claim of ineffective assistance of counsel.
15
PRAYER
WHERFORE, Appellant respectfully requests that judgment of the trial court be reversed
and a new trial granted and any and all relief to which he may be entitled.
Respectfully submitted,
Mark W. Racer
Texas Bar No. 16448450
212 E.Burleson
Wharton, Texas 77488
(979)531-0322
(979) 531-0355 FAX
Attorney for Appellant
CERTIFICATE OF DELIVERY
This is to certify that a true and correct copy of the foregoing brieffor Appellant has been
forwarded to counsel for the State of Texas, Mr. John Harrity, 309 South 4th Street, Suite 258,
Richmond, Texas 77469 on this the day of , 2014.
Mark W. Racer
16
EXHIBIT B
17
MARK W. RACER
ATTORNEY AT LAW
212 E.Burleson
Wharton, Texas 77488
(979)531-0322
(979) 531-0355 Fax
November 20,2014
ATTORNEY-CLIENT PRIVILEGE
Mr. DJ Christopher Lowe
TDCJ# 01912512
Telford Unit
3899 Hwy 98
New Boston, Texas 75570
Re: Cause No. 01-14-00158-CR; DJ Christopher Lowe vs. The State
of Texas; In The Court of Appeals-First District
Dear Mr. Lowe:
Enclosed please find a copy ofthe brief that was filed inyour case. Inthese circumstances
I have a responsibility to prepare a brief to the Court ofAppeals and advise them ofthe analysis I
have made ofthe record onyour behalf. In your case I did not find any error in the record.
1 have also enclosed a Motion to Withdraw which has been sent to the Court of Appeals
for review. The justices will examine your case and determine if the brief that I have prepared
provided athorough search ofthe record for any possible point oferror. They will also determine
if I have drawn the proper conclusion that an appeal would be frivolous. Ifthe Court ofAppeals
determines that my brief is inadequate then they may order me to rebrief the case or order the
trial court to appoint a new appellate attorney to investigate the record and file a new brief.
On the other hand, if the Court of Appeals agrees with my brief that the record is
insufficient to support a point of error, it does not end your right of appeal. You still have a right
to receive a copy of your record and prepare your own arguments. I have enclosed a copy of the
record in your case.
If you have any other questions please contact us at this address.
Very truly yours,
Mark W. Racer
18
19
U.S POSTAGE
PAID
WHARTON,TX
77488
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umrcosraTEs
POSTAL SERVICE AMOUNT"
iOOO
77002
$1.86
00083490-04
Mark W. Racer
Attorney at Law
212 E. Burleson
Wharton, Texas 77488
FILED IN
1ST COURT OF APPEALS
•
HOUSTON. TEXAS
JUL 1 3 2015
CHRISTOPHER A. PRINE
Clerk, FirstCourt ofAppeals
-: n rnK ...... —
301 Fannin
Houston, Texas 77002
y •
MAIL RECEIVED
I RECEIVED ``
IFIRST COURT OF APPEALS
HOUSTON, TEXAS
JUL 1 3 2015
I CHRISTOPHER A. PRINE
ICLERK