Ronnie McMullen A/K/A Ronnie Barnes v. State ( 2015 )


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  •                                                                                        ACCEPTED
    13-15-00135-CR
    THIRTEENTH COURT OF APPEALS
    CORPUS CHRISTI, TEXAS
    5/28/2015 9:52:30 AM
    DORIAN RAMIREZ
    CLERK
    NO. 13-15-00135-CR
    Ronnie McMullen               FILED IN
    13th COURT OF APPEALS
    Appellant       CORPUS CHRISTI/EDINBURG, TEXAS
    5/28/2015 9:52:30 AM
    VS.              DORIAN E. RAMIREZ
    Clerk
    THE STATE OF TEXAS,
    Appellee
    * * *
    IN THE COURT OF APPEALS
    FOR THE THIRTEENTH COURT OF APPEALS DISTRICT OF TEXAS
    Corpus Christi, Texas
    * * *
    Appeal From Cause Number 14-CR-3618-H
    347th District Court of Nueces County, Texas
    * * *
    AMENDED BRIEF IN SUPPORT OF MOTION TO
    WITHDRAW AS APPELLATE COUNSEL
    John Grant Jones
    Attorney For Appellant
    208 Pipe Creek Lane
    Tel: 361-815-2470 / Fax: 1-866-243-9810
    Email: grant800@att.net
    State Bar Number: 10917000
    NO ORAL ARGUMENT IS REQUESTED
    IDENTITY OF PARTIES AND COUNSEL
    Defendant: Ronnie McMullen
    Trial Judge:
    Judge Robert Blackmon (visiting)
    Sitting for Presiding Judge Missy Medary
    347th District Court
    Nueces County, Texas
    State Counsel At Trial For Plea Of Guilty:
    Mr. David Jakubowski
    Assistant District Attorney
    Nueces County Courthouse
    901 Leopard Street, Room 206
    Corpus Christi, Texas 78401
    Telephone: (361) 888-0410
    SBN: 24978729
    Defense Counsel At Trial For Plea Of Guilty:
    Mr. L. Chris Iles
    Attorney At Law
    711 N. Caracahua, #700
    Corpus Christi, Texas 78401
    Tel: 361-883-2020
    Fax: 866-565-5343
    SBN: 00789391
    1
    Defense Counsel On Appeal By Appointment:
    John Grant Jones
    Attorney At Law
    208 Pipe Creek Lane
    Georgetown, Texas 78633
    Tel: 361-815-2470 / Fax: 1-866-243-9810
    Email: grant800@att.net
    State Bar Number: 10917000
    2
    TABLE OF CONTENTS
    IDENTITY OF PARTIES AND COUNSEL …………………………………1
    INDEX OF AUTHORITIES…………………………………………………..4
    STATEMENT OF THE CASE………………………………………………..5
    ISSUES PRESENTED………………………………………………………...5
    STATEMENT OF THE FACTS (Matters Pertinent To Anders Brief)……….6
    1. Sufficiency of the indictment………………………………………..6
    2. Adverse pretrial rulings……………………………………………...6
    3. Compliance with Texas Code Of Criminal Procedure,
    Section 26.13, and Padilla v. Kentucky……………………………...6
    4. Competency………………………………………………………….7
    5. Voluntariness of appellant’s plea……………………………………..7
    6. Adverse rulings during the sentencing hearing ……………………...7
    on objections or motions.
    7. Failure to object to fundamental error………………………………..7
    8. Legality of sentence…………………………………………………..7
    9. Accuracy of written judgment as to sentence and
    proper application of credit…………………………………………..8
    10. Sufficiency of the evidence………………………………………..…8
    11. Effective assistance of counsel……………………………………….9
    12. Discovery Rights……………………………………………………..9
    PRAYER………………………………………………………………………...9
    CERTIFICATE OF COMPLIANCE…………………………………………..10
    CERTIFICATE OF SERVICE…………………………………………………10
    3
    INDEX OF AUTHORITIES
    Cases:
    Supreme Court
    Anders v. California, 
    87 S. Ct. 1396
    (1967) …………………………………….9
    Strickland v. Washington, 
    466 U.S. 668
    (1984)…………………………………9
    Texas Cases
    Dinnery v. State, 
    592 S.W.2d 343
    , 353 (Tex. Crim. App. 1979) (op. on reh'g)….8
    Ex parte Bates, 
    978 S.W.2d 575
    , 577-78 (Tex. Crim. App. 1998)……………….8
    Ex parte Martinez, 
    330 S.W.3d 891
    , 900 (Tex. Crim. App. 2011)……………...9
    Gainous v. State, 
    436 S.W.2d 137
    (Tex.Crim.App.1969)………………………..9
    High v. State, 
    573 S.W.2d 807
    , 811 (Tex.Crim.App. [Panel Op.] 1978)………...9
    In Re Schulman, 252 S.W 3d 403 (Tex.Crim.App. 2008)………………………..9
    Tabora v. State, 14 S.W.3rd 332 (Tex.App., Houston [14th Dist] 2000)……….…8
    Statutes And Rules:
    Texas Code Of Criminal Procedure, Art. 22.02…………………………………..6
    Texas Code Of Criminal Procedure, Art. 26.13…………………………………..6
    Texas Code Of Criminal Procedure, Art. 39.14…………………………………..9
    Texas Code Of Criminal Procedure, Art. 46B.004…………………………….….7
    Texas Code Of Criminal Procedure, Art. 42.03(1)(a)…………………………….8
    Texas Penal Code, Sec. 12.33……..……………………………………..………..8
    Texas Penal Code, Sec. 12.34……………………………………………………..7
    Texas Penal Code, Sec. 31.03(a),(b),(e)(4)(D)……………………………………6
    Texas Penal Code, Sec. 36.02……………………………………………………..6
    4
    STATEMENT OF THE CASE
    This is an appeal from an open plea of guilty to the trial court to a two-count
    indictment charging state jail felony theft (Count 1) and bribery (Count 2). (Clerk
    Record, pp. 5,6) The indictment followed appellant’s arrest for shoplifting and his
    attempt to bribe a peace officer not to arrest him shortly after his initial detention.
    (Clerk Record, pp. 47, 48) The court denied appellant’s request for community
    supervision and assessed punishment at 8 years on the bribery count and 2 years on
    the theft count. (Reporter Record, Vol. 2, pp. 28, 29) The court ordered the
    sentences to run concurrently. (Reporter Record, Vol. 2, p. 29) Appellant
    requested the court to re-consider the sentence. In a second punishment hearing,
    the court denied this request. (Record Record, Vol. 3. Pp. 5-6)
    The certification of defendant’s right to appeal states that the case “ is not a
    plea bargain case, and the Defendant has the right of appeal.” (Clerk Record, p. 44)
    ISSUES PRESENTED
    There are no issues presented.
    5
    STATEMENT OF THE FACTS
    Matters Pertinent To Anders Brief
    1. Sufficiency of the indictment.
    Count 1 of the indictment charges state jail felony theft under Texas Penal
    Code, Sec. 31.03(a),(b),(e)(4)(D). Count 1 alleges each statutory element under
    statute.
    Count 2 of the indictment charges the offense of bribery under Texas Penal
    Code, Section 36.02. Count 2 alleges each statutory element under statute.
    The indictment meets all of the requisites of Texas Code of Criminal
    Procedure, Article 22.02. (Clerk Record, p. 5)
    2. Adverse pretrial rulings.
    There are no adverse pretrial rulings.
    3. Compliance with Texas Code Of Criminal Procedure, Section 26.13, and
    Padilla v. Kentucky.
    Before pleading guilty defendant executed a comprehensive admonishment
    and waiver of rights form. The requirements of Section 26.13, are fully met by the
    execution of this form. (Clerk Record, pp. 30-41) Defendant is a citizen of the
    United States. (Clerk Record, p. 37)
    6
    4. Competency.
    The issue of competency was not raised prior to sentencing so as to warrant
    an inquiry by the trial court. See Texas Code Criminal Procedure, Art. 46B.004.
    During the plea of guilty proceeding, defense counsel stated that he believed
    appellant was competent.(Clerk Record, p. 39) In the waiver form, appellant
    admits that he is competent. (Clerk Record, p. 36)
    5. Voluntariness of appellant’s plea.
    There is nothing in the record to show that appellant’s plea of guilty was
    other than freely and voluntarily made. Defendant admits his pleas were freely and
    voluntarily made. (Clerk Record, p. 45)
    6. Adverse rulings during the sentencing hearing on objections or motions.
    There were no adverse rulings during the sentencing hearing on objections
    or motions.
    7. Failure to object to fundamental error.
    There is nothing in the record to show fundamental error. Counsel could find
    no jurisdictional defects.
    8. Legality of sentence.
    The offense alleged in count one of the indictment is a third degree felony.
    (Clerk Record, p. 5) The two-year sentence (with no fine) imposed is within the
    range authorized by law for a third degree felony. Texas Penal Code, Sec. 12.34.
    7
    The offense alleged in count two of the indictment is a second degree felony.
    The six-years sentence with no fine imposed is within the range authorized by law
    for a second degree felony. Texas Penal Code, Section 12.33
    9. Accuracy of written judgment as to sentence and proper application of credit.
    The written judgment accurately states the sentence of two years with no
    fine pronounced in court for count 1. (Clerk Record, p. 107) The written judgment
    accurately states the sentence of eight years with no fine pronounced in court for
    count 2. (Clerk Record, p. 107 ) The judgment requires that the sentences run
    concurrently, as pronounced. (Clerk Record, p. 107) The judgment also grants
    credit for time in jail. (Clerk Record, p. 107 ). Texas Code Criminal Procedure,
    Art. 42.03(1)(a) and Ex parte Bates, 
    978 S.W.2d 575
    , 577-78 (Tex. Crim. App.
    1998).
    10. Sufficiency of the evidence.
    Appellant’s judicial confession is sufficient evidence to support the
    court’s finding of guilty. (Clerk Record, p. 45) Dinnery v. State, 
    592 S.W.2d 343
    ,
    353 (Tex. Crim. App. 1979) (op. on reh'g); Tabora v. State, 14 S.W.3rd 332
    (Tex.App., Houstion [14th Dist] 2000)
    8
    11. Effective assistance of counsel.
    Counsel finds nothing in the record to suggest ineffective assistance of
    counsel. See Strickland v. Washington, 
    466 U.S. 668
    (1984). Ex parte Martinez,
    
    330 S.W.3d 891
    , 900 (Tex. Crim. App. 2011)
    12. Discovery Rights.
    Appellant and this attorney made a written waiver of appellant's discovery
    rights under Texas Code Of Criminal Procedure, Article 39.14 (Clerk Record, p.
    43)
    CONCLUSION AND PRAYER
    After a careful and diligent review of the record, counsel can find no
    arguable issues to bring forward for review, and prays that the motion to withdraw
    be granted. See Anders v. California, 
    87 S. Ct. 1396
    (1967); Gainous v. State, 
    436 S.W.2d 137
    (Tex.Crim.App.1969); High v. State, 
    573 S.W.2d 807
    , 811
    (Tex.Crim.App. [Panel Op.] 1978); and In Re Schulman, 252 S.W 3d 403
    (Tex.Crim.App. 2008)
    /s/ John Grant Jones
    ________________________
    John Grant Jones
    Attorney At Law
    208 Pipe Creek Lane
    Georgetown, Texas 78633
    Tel: 361-815-2470 / Fax: 1-866-243-9810
    Email: grant800@att.net
    SBN: 10917000
    9
    CERTIFICATE OF COMPLIANCE
    I certify that the length of this brief meets the length requirements of Rule
    9.4(i)(2)(B), Texas Rules Of Appellate Procedure. The number of words in this
    document is 1431.
    /s/ John Grant Jones
    ___________________________
    John Grant Jones
    CERTIFICATE OF SERVICE
    I hereby certify that on May 28, 2015, I electronically filed the
    foregoing document with the Clerk of the Thirteenth Court of Appeals, Corpus
    Christi, Texas, using the Texas Efile System which will send notification of such
    filing to:
    Mr. Douglas Norman
    Nueces County
    District Attorney’s Office
    901 Leopard Street
    Corpus Christi, Texas 78410
    /s/ John Grant Jones
    _______________________________
    John Grant Jones