Bell, Reginald Fritz ( 2015 )

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CAUSE NO:
IN THE
COURT OF CRIMINAL APPEALS U K IU IN A L
OF TEXAS
REGINALD FRITZ BELL,
APPELLANT/PETITIONER
RECEIVED IN
VS. COURT CF CRIMINAL APPEALS
JUL 20 2015
THE STATE OF TEXAS,
APPELLWREstefiWtepte.CS@rk
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Fll FD IN
COURT OF CRIMINAL APPEALS
IN APPEAL NO: 02-14-00156-CR JUL 22 20^5
FROM THE
Abel Acosta, Clerk
COURT OF APPEALS
FOR THE 2ND JUDICIAL DISTRICT OF TEXAS
Reginald F. Bell
TDCJ-ID: 1923613
James A. Lynaugh Unit
1098, South Hwy 2037
Ft. Stockton, Tx 79735
CAUSE NO:
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
REGINALD FRITZ.BELL,
APPELLANT/PETITIONER
VS.
THE STATE OF TEXAS,
APPELLEE/RESPONDENT
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
Appellant/Petitioner respectfully submits this Petition for
Discretionary Review and moves that this Honorable Court grant review
of this cause and offers the following in support thereof ;
Statement Regarding Oral Argument
The Appellant/Petitioner request Oral Argument in this case because
such argument may assist the Court in applying the facts to the issues
raised, it is suggested that Oral Argument may help simplify the facts
and clarify the issues.
-1-
Statement of the Case
On May 24, 2013, Appellant was indicted for the felony offense
of Indecency - Fondling alleged to have occurred on or about Septem
ber 02, 2012 in Tarrant County, Texas (CR6). On September 27, 2013,
Appellant entered a plea of guilty and received 10 years deferred
adjudication probation, pursuant to a plea bargain agreement which
was approved by the trial Court. (CR26-31). On March 03, 2014, the
State filed its first Petition to proceed to adjudication (CR45-49),
on April 15, 2014, the trial Court conducted a hearing on the Petition.
After being admonished by the trial Court, Appellant entered plea of
"True" to each allegation (RR.I 5-16). The State offered no testimony
(RR. I 15). Appellant's trial counsel called four witness, including
Appellant (RR I 18-86). After both sides rested and presented argument,
the trial Court assessed Appellant's punishment at 15 years in the
Institutional Division of the Texas Department of Criminal Justice
(RR I 93). The next day, Appellant filed his notice of appeal (CR 73).
-2-
Statement of Procedural History
In Case No. 1319218-D, The Appellant/Petitioner was charged with
the offense of Indecency with a Child. The Appellant/Petitioner was
convicted of such offense on April 15, 2014 and appealed the convic
tion.
On April 16, 2015, the 2nd Court of Appeals affirmed the convic
tion. No Motion for Rehearing was filed. sOn July 17, 2015, this Petition
for Discretionary Review was timely forwarded to the Court of Appeals
for filing pursuant to Rule 9.2(b) Texas Rules of Appellate Procedure.
-3-
List of Interested Parties
Pursuant to the Texas Rules of Appellate Procedure, Rule 38.1
(a), Appellant lists the following persons who have an interest in
the appeal for purpose of the Court's determining conflicts and re
cusals :
PARTIES TRIAL COUNSEL
REGINALD FRITZ BELL Hon. Gary Shane Lewis
Attorney At Law
1319 Ballinger Street
Fort Worth, Tx 76102
APPELLATE COUNSEL
Don Hase
Attorney At Law
4025 Woodland Park Blvd,
Suite 100
Arlington, Tx 76013
THE STATE OF TEXAS TRIAL COUNSEL
Hon. Erin W. Cofer
Mr. Phillip Hall (Intern)
Assistant District Attorney
401 W. Belknap
Fort Worth, Tx 76196
APPELLATE COUNSEL
Hon. Joe Shannon, Jr., .:.L. • ?,
District Attorney
Hon. Charles Mallin,
Assistant Attorney
Attorney & Chief of Appellate
Section
401 W. Belknap
Fort Worth, Texas 76196
JUDGE
Hon. Mollee Westfall
371st District Court
401 W. Belknap
Fort Worth, Texas 76196
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Table of Contents
Page
INDEX OF AUTHORITIES iii
STATEMENT REGARDING ORAL ARGUMENT 1
STATEMENT OF THE CASE 2
STATEMENT OF PROCEDURAL HISTORY 3
GROUNDS FOR REVIEW 4
GROUND FOR REVIEW NO. ONE 5
CLAIM OF JURISDICTION DEFECT.
GROUND FOR REVIEW NO. TWO 6
IMPROPER VENUE
GROUND FOR REVIEW NO. THREE 7
INEFFECTIVE ASSISTANCE OF COUNSEL AT ORIGINAL PLEA PROCEEDING
GROUND FOR REVIEW NO. FOUR 8
INEFFECTIVE ASSISTANCE OF COUNSEL AT COMMUNITY SUPERVISION
REVOCATION HEARING
GROUND FOR REVIEW NO. FIVE 9
ONE PROSECUTOR NOT AUTHORIZED TO PRACTICE LAW
ARGUMENT NUMBER ONE 5
ARGUMENT NUMBER TWO 6
ARGUMENT NUMBER THREE 7
ARGUMENT NUMBER FOUR 8
ARGUMENT NUMBER FIVE 9
PRAYER FOR RELIEF 10
CERTIFICATE OF SERVICE 10
APPENDIX A. [MEMORANDUM OPINION] 11-14
LIST OF INTERESTED PARTIES i
-ii-
Index of Authorities
Cases^ Page
Rodriguez v. State, 42 S.W.3d 181 4,5
Black v. State, 645 S.W.2d 789 4,6
David v. State, 704 S.W.2d 766 4
Jones v. State, 42 S.W.3d 143 5
Martinez v. State, 5 S.W.3d 722 5
Exparte Rogers, 820 S.W.2d 35 5
Peterson v. State, 659 S.W.2d 59 6
Couchman v. State, 3 S.W.3d 155 6
Granados v. State, 843 S.W.2d 736 6
Barton v. State, 948 S.W.2d 364 6
Braddy v. State, 908 S.W.2d 465 6
Exparte Harmon, 116 S.W.3d 778 (Tex. Crim. App. 2003) 7
Exparte Patrick Logan Montgomery, 2009 WL 1165499 (Tex. Crim
App. 2009) 7
Schmutz v. State, 440 S.W.3d 29 7
Wesley v. State, 548 S.W.2d 37 7
Slavin v. State, 548 S.W.2d 30. 7
C.F. v. State, 897 S.W.2d 464 7
Polk v. State, 547 S.W.2d 605 7
Victory v. State, 547 S.W.2d 1 7
Cooper v. State, 45 S.W.3d 77 8
Mendozaiv. State, 76 S.W.3d 742 8
Rules:
Texas Rules of Appellate Procedure, Rule 9.2(b) 3
Texas Rules of Appellate Procedure, Rule 38. lg 4
Texas Criminal Procedure Code Ann §§13,14 and 13, 17... 6
Code of Criminal Procedure Article 42.12 §5(b) 4
Texas Rules of Appellate Procedure, Rule 25.26(3) 9
Code of Criminal Procedure Article 1.15 and 1.17 9
Other Authorities
Criminal Law 105
Courts - 40
Criminal Law 564(1)
-in-
Grounds for Review
I.
Claim of Jurisdiction Defect
When a Court has no jurisdiction, it has no power to act, and
any actions taken in the absence of jurisdiction is void. Rodriguez
v. State, 42 S.W. 3d 181.
II.
Improper Venue
As a general rule, venue is proper in the county where alleged
Sexual Offense takes place. Tex. Crim. Proc. Code Ann §§13.14 and
13.17. Black v. State 645 S.W. 2d 789.
III.
Ineffective Assistance of Counsel at original Plead Proceeding.
After adjudication of guilt, a defendant's normal appellate
remedies are available to him under Article 42.12 §5(b) raise a
claim of error arising from the original plea proceeding. David v.
State, 704 S.W.2d 766.
IV.
Ineffective Assistance of Counsel at Supervision Revocation hearing.
The right of the defendant to appeal for a review of the con
viction and punishment, as provided by law, and he is called on to
serve a sentence in a jail or in the TDCJ.
V.
One Prosecutor not Auhtorized to Practice Law.
One Prosecutor not authorized to practice law pursuant to
Texas Rules of Appellate Procedure, Rule 38.1(g). The trial Court
erred when it allowed a person not authorized to practice law in
Texas acting as one of the two prosecutors in the revocation hearing,
Ground for Review No. One
Claim of Jurisdiction iDefect
Statement of Facts:
According to the indictment the alleged felony offense occurred
on or about December 02, 2012 in Tarrant County, Texas (CR6). However,
the Court error by invoking jurisdiction because the Court didn't have
jurisdiction of person. The defendant didn't live in Tarrant County
and the venue was not in Tarrant County either. The alleged felony
offense occurred at the Budget Suite 1050 N. Hwy 360 Grand Prairie,
Texas 75050, Dallas County. The defendant also lived in Dallas County
at the time of alleged offense. Criminal law 105 a jurisdiction issue
may always be reached at any time whether raised by the parties or by
the Court. Rules App. Proc. Rule 25.2b(3) as in Jdnes v. State, 42
S.W.3d 143. Court - 40 any action taken by a Court without jurisdic
tion is void. Martinez v. State, 5 S.W.3d 722 (Tex. App.-San Antonio
1999). Subject matter jurisdiction in both criminal and civil matter
is fundamental, can be raised at any time and cannot be waived orc.v-i
conferred by agreement, Exparte Rogers, 820 S.W.2d 35. Thus when a
Court has no jurisdiction, it has no power to act, and any actions
taken in the absence of jurisdiction is void. Rodriguez v. State, 42
S.W. 3d 181.
-5-
Ground for Review Two
Improper Venue
As a general rule, Venue is proper in the county where the alle
ged Sexual Offense takes place. Tex. Crim. Proc. Code Ann. §§13.14 &
13.17. The burden of proof is on the State to establish proper venue
by a preponderance of the evidence Black v. State, 645 S.W.2d 789;
Peterson v. State, 659 S.W.2d 59, failure to prove venue in the
county of prosecution is reversible error. Criminal law 304(6). An
Appellate Court can take judicial notice that a given town is a coun
ty seat. Criminal law 564(1) Judicial notice can serve as proof that
venue lies in the county for which a town is the county seat for crimes
alleged in that town. In the above case the venue is improper because
it lies in the county of Dallas. Proper venue would have afforded the
defendant his due process. Couchman, 3 S.W.3d 155; Granados, 843 S.W.
2d 736; Barton, 948 S.W.2d 364; Braddy v. State, 908 S.W.2d 465.
-6-
Ground for Review Three
Ineffective Assistance of Counsel at original plea proceeding.
Voluntariness of plea was involuntary do to the ineffective of
counsel. Upon hiring Mark Scott of Tarrant County for the offense of
Indecency with a child I was not properly advise about the matter.
Upon setting in county to be released on bond the attempt to contact
the defendant attorney would go without respond. The defendant wrote
the Court about unable to contact the attorney upon trying to get the
case resolved. The defendant felt he had no other choice but, to take
probation and try to resolve the case from outside. A defendant's
guilty plea did not bar relief. Exparte Harmon, 116 S.W.3d 778 (Tex.
Crim. App. 2003); Exparte Patrick Loyar Montomery, 2009 WL 1165499
Tex. Crim. App. 2009. The act of the defendant counsel was in fact
harmful and prejudice. In Schmutz v. State, 440 S.W.3d 29,:show the
harmful act of Ineffective Assistance of Counsel. An indictment must
allege both the act and the accompany mental state, because the accom
panying mental state is a part of the conduct "Elements of the offense"
mean the "Forbidden Conduct" plus the required culpability. The defen
dant was advise by his counsel that the out cry alone was good enough
to convict. The defendant told counsel that there was never intent to
arouse or gratify the sexual desire of any person constitutes reversible
error, regardless of whether a Motion to Quash indictment was filed.
Wesley v. State, 548 S.W.2d 37; Slavin v. State, 548 S.W.2d 30; C.F.
v. State, 897 S.W.2d 464; Polk v. State, 547 S.W.2d 605; Victory v.
State, 547 .'S.W. 2d 1.
-7-
Ground for Review Four
Ineffective Assistance of Counsel at Supervision Revocation Hearing.
In this ground for review, Counsel's .action was harmful and pre
judice by not objecting to at several stages of the hearing. At one
point doing the hearing why defendant was question by the prosecutor
Assistance District Attorney Erin W. Cofer, who's state bar number is
listed as 24066277, which doing question stated the intent to arouse
and gratify the sexual desire of any person was "Irrelavant" which is
necessary for the offense of Indecency with child.' The -plea of guilty
or nolo contendere alone is not sufficient to support conviction; State
is required to introduce sufficient evidence to support judgment. Cooper
v. State, 45 S.W.3d 77. Also during the punishment phase defendant
counsel fail to bring to the attention of the court the ruling in a
similar case as to punishment of seven years. When the defendant tried
to object to the punishment he was told to put it on a appeal by the
Court. Even though defendant plead true to the violation there were
do to the defendant trying to fulfill the condition of community super
vision, defendant communicated with community supervisor thus more than
idea candidate for community supervision. Counsel remarks in closing
argument was harm and prejudice to .the ability of the defendant to
complete community supervision. In Mendoza v. State, 935 S.W.' 2d 501;
The Courts dealt with when the evidence is contrary to a guilty plea.
-8-
Ground for Review Five
One Prosecutor not Authorized to Practice law.
Pursuant to Texas Rules of Appellate Procedure Rule 38.1(g),
Appellant submits that the trial court gave permission to appeal.
In Marbut v. State, 76 S.W 3d 742, Justice Gray stated if an appeal
is from a judgment rendered on the defendant's plea of guilty or nolo
contendere under code of criminal procedure article 1.15 and the
punishment assessed did not exceed the punishment recommended by the
prosecutor and agreed to by the defendant. State that the trial court
granted permissionvito appeal. The trial court denied any objection
when defendant tried to object in the punishment phase of the hearing
stating to put it on an appeal. Court gave permission to do so. There
fore the defendant preserve this alleged error for review according
to Rule of Appellate Procedure 25.2(b)(3), Criminal law 1030(2) and
1033.1. Denial of absolute, systemic requirement which do not require
a timely and specific objection to raise for the first time on appeal,
includes jurisdiction of the person, jurisdiction of the subject matter
and a Penal Statute's being in compliance.
•9-
Prayer for Relief
For the reasons stated above, it is respectfully submitted that
the Court of Criminal Appeals of Texas shoud grant this Petition for
Discretionary Review.
Respectfully Submitted,
laid Fritz Bell
•ID #1923613
James A. Lynaugh Unit
1098, South Hwy 2037
Ft. Stockton, Tx 79735
Certificate of Service
The undersigned Appellant/Petitioner hereby certify that a true
and correct copy of the foregoing Petition for Discretionary Review
has been mailed, U.S. Mail postage prepaid to the office of the
Criminal District Attorney for Tarrant County, Hon Joe Shannon, Jr.,
District Attorney, 401 W. Belknap, Forth Worth, Texas 76196 and to
the State Prosecution Attorney, P.O.Box 12405, Austin, Texas 78711
on this the 17th dat of July, 2015.
X
Legijnald Fritz
RegLrfald Fri Bel
Appellant/Petitioner
•10-
/
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00156-CR
REGINALD FRITZ BELL APPELLANT
V.
THE STATE OF TEXAS STATE
FROM THE 371 ST DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1319218D
MEMORANDUM OPINION1
Appellant Reginald Fritz Bell appeals the trial court's judgment adjudicating
him guilty of indecency with a child and sentencing him to fifteen years'
confinement. See Tex. Penal Code Ann. §21.11 (West 2011). In one point, Bell
argues that the trial court reversibly erred by allowing a law-student intern from
the district attorney's office to question two witnesses and make closing
1SeeTex. R. App. P. 47.4.
♦
arguments during the punishment hearing that followed the trial court's
adjudication of guilt. We will affirm.
The facts of this case are not in dispute. And Bell does not dispute that he
pleaded "true" to each of the State's alleged violations in its petition to proceed to
adjudication. Bell also does not challenge the trial court's having adjudicated him
guilty based upon his pleas. See Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim.
App. [Panel Op.] 1979) (holding that a defendant's plea of true to any of the
State's alleged violations, standing alone, is sufficient to support a trial court's
revocation of community supervision). Rather, Bell argues that Phillip Hall, an
apparent law student and intern at the district attorney's office who purportedly
sat "second chair" to Tarrant County Assistant District Attorney Erin W. Cofer
during the adjudication proceedings below, should not have been allowed to
question witnesses nor make closing arguments without the trial court first having
found that Hall was a "qualified law student" in accordance with the Supreme
Court of Texas's promulgated rules that govern when a law student may
participate in court proceedings. See Tex. Gov't Code Ann. § 81.102(b)(3) (West
2013) (stating that the supreme court may promulgate rules that govern and
allow law students to practice law). The State argues that because Bell did not
object at trial to Hall's participation, Bell has failed to preserve this alleged error
for our review. We agree with the State.
As a general rule, to preserve a complaint for our review, a party must
have presented to the trial court a timely request, objection, or motion that states
the specific grounds for the desired ruling if they are not apparent from the
context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v.
State, 280 S.W.3d 235, 238-39 (Tex. Crim. App. 2009). Here, Bell did not object
in the trial court that Hall was not a "qualified law student." Therefore, Bell failed
to preserve this alleged error for our review, and we overrule his sole issue. See
Marbut v. State, 76 S.W.3d 742, 750 (Tex. App.—Waco 2002, pet. ref d) (holding
that defendant forfeited appellate review of alleged procedural violations in
appointing an attorney pro tern by failing to object in the trial court).
Having overruled Bell's sole issue on appeal, we affirm the trial court's
judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 16,2015
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00156-CR
Reginald Fritz Bell § From the 371st District Court
§ of Tarrant County (1319218D)
v. § April 16, 2015
§ Opinion by Justice Meier
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court's judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By /s/ Bill Meier
Justice Bill Meier
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