Brandon Master v. State ( 2015 )

ACCEPTED
04-15-00100-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
6/24/2015 11:25:36 AM
KEITH HOTTLE
CLERK
NO. 04-15-00100-CR
FILED IN
4th COURT OF APPEALS
IN THE SAN ANTONIO, TEXAS
FOURTH COURT OF APPEALS 6/24/2015 11:25:36 AM
OF TEXAS KEITH E. HOTTLE
AT SAN ANTONIO, TEXAS Clerk
BRANDON MASTER,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
Trial Court No. 2010CR4791W
Appeal from the 227th District Court
of Bexar County, Texas
Hon. Kevin O’Connell, Presiding
BRIEF IN SUPPORT OF MOTION TO WITHDRAW
RICHARD B. DULANY, JR.
Texas Bar No. 06196400
Assistant Public Defender
Bexar County Public Defender’s Office
101 W. Nueva St., Suite 370
San Antonio, Texas 78205
ORAL ARGUMENT WAIVED (210) 335-0701
FAX (210) 335-0707
richard.dulany@bexar.org
ATTORNEY FOR APPELLANT
Identity of Parties and Counsel
Pursuant to TEX. R. APP. P. 38.1(a), the parties are:
APPELLANT
BRANDON MASTER
TDCJ# 01653759
Garza West Transfer Facility
4250 HWY 202
Beeville, TX 78102
APPELLANT’S ATTORNEYS
AT THE REVOCATION HEARING:
Angela Blake (State Bar No. 24026998)
214 Dwyer, Suite 103
San Antonio, TX 78204
ON APPEAL:
Richard B. Dulany, Jr. (State Bar No. 06196400)
Assistant Public Defender
Bexar County Public Defender’s Office
101 W. Nueva St., Ste. 310
San Antonio, TX 78205
STATE’S ATTORNEYS
AT THE REVOCATION HEARING:
Marissa Giovenco (State Bar No. 24073534)
Assistant District Attorney
Paul Elizondo Tower
101 W. Nueva, Fourth Floor
San Antonio, TX 78205
ON APPEAL:
Nicolas A. LaHood, Bexar County District Attorney
(or his appellate section)
Bexar County District Attorney’s Office
Appellate Division
101 W. Nueva St., Ste. 710
San Antonio, TX 78205
ii
TRIAL COURT
AT THE REVOCATION HEARING:
Hon. Kevin M. O’Connell, Judge Presiding
227th District Court
Cadena-Reeves Justice Center
300 Dolorosa St., Fourth Floor
San Antonio, TX 78205
iii
Table of Contents
Page
Identity of Parties and Counsel ............................................................................. ii-iii
Table of Contents ......................................................................................................iv
Table of Authorities ............................................................................................. v-vii
A Note on Record References................................................................................ viii
Certificate of Compliance ...................................................................................... viii
Statement of the Case............................................................................................. 1-3
No Meritorious Issues Presented for Review ............................................................ 3
Pursuant to Anders v. California, 386 U.S. 738 (1967) and High v.
State, 573 S.W.2d 807 (Tex. Crim. App. 1978), counsel for Appellant
has diligently searched the record and upon researching all applicable
law has determined that this appeal is without merit and frivolous.
Summary of Facts .................................................................................................. 4-8
Summary of the Argument.........................................................................................8
Summary of the Facts Pertinent to Anders v. California ....................................... 8-9
Argument and Authorities.................................................................................. 10-16
Conclusion ......................................................................................................... 16-17
Prayer .......................................................................................................................18
Certificate of Service ...............................................................................................19
Appendix ..................................................................................................................20
iv
Table of Authorities
Cases
Anders v. California, 386 U.S. 738 (1967) ...................................................... passim
Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) ...........................................13
Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984) ...................................10
Cobb v. State, 851 S.W.2d 871 (Tex. Crim. App. 1993) .........................................10
Cole v. State, 578 S.W.2d 127 (Tex. Crim. App. 1979) ..........................................11
Duncan v. State, 321 S.W.3d 53 (Tex.App. – Houston [1st Dist.] 2010, pet. ref’d)....
10, 11, 12
Ex parte Beck, 922 S.W.2d 181 (Tex. Crim. App. 1996) ........................................16
Ex parte Raborn, 658 S.W.2d 602 (Tex. Crim. App. 1983)....................................12
Ex parte Wilson, 724 S.W.2d 72 (Tex. Crim. App. 1987).......................................13
Hacker v. State, 389 S.W.3d 860 (Tex. Crim. App. 2013) ......................................10
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) ...15
Harris v. State, 656 S.W.2d 481 (Tex. Crim. App. 1983) .......................................15
Hays v. State, 933 S.W.2d 659 (Tex. App. – San Antonio 1996, no pet.) ..............11
Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) ..................................12
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) ................................13
High v. State, 537 S.W.2d 807 (Tex.Crim.App. 1978).................................. iv, 3, 12
Johnson v. United States, 360 F.2d 844 (D.C. Cir. 1966) .......................................16
v
Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) .........................................12
Lugaro v. State, 904 S.W.2d 842 (Tex. App. – Corpus Christi 1995, no pet.) .......12
McMahon v. State, 528 S.W.2d 771 (Tex. Crim. App. 1975) .................................12
Mercado v. State, 718 S.W.2d 291 (Tex. Crim. App. 1986) ...................................14
Nix v. State, 65 S.W.3d 664 (Tex.Crim.App. 2001) ................................................12
Puga v. State, 916 S.W.2d 547 (Tex.App. – San Antonio 1996, no pet.) ...............14
Rickles v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006) ............................... 10, 11
Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003) ...................................14
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) .7,
12
Wilkerson v. State, 726 S.W.2d 542 (Tex. Crim. App. 1986) .................................13
Yabrra v. State, 890 S.W.2d 98 (Tex. App. – San Antonio 1994, pet. ref’d) .........12
Statutes
TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2005)...............................................16
TEX. CODE CRIM. PROC. ANN. art. 21.21 (West 2009) .............................................16
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(d) (West 2015) ...............................12
TEX. CONST. art. I § 13 .............................................................................................15
TEX. CONST. art. V § 8 .............................................................................................16
TEX. GOV’T CODE ANN. § 24.139 (West 2009) .......................................................16
TEX. GOV’T CODE ANN. § 24.405 (West 2009) .......................................................16
vi
TEX. PENAL CODE ANN. § 12.34 (West 2015) .........................................................14
TEX. PENAL CODE ANN. § 49.07 (West 2015) .........................................................14
U.S. CONST. art. VIII................................................................................................15
vii
A Note on Record References
The reporter’s record in this case consists of two volumes, both from the
hearing on the motion to revoke probation. Reference to the reporter’s record will
be: ([Volume Number] RR at ___). A reference to the clerk’s record will be: (CR
at ___).
Certificate of Compliance
Pursuant to TEX. R. APP. P. 9.4(i)(1) & (i)(2)(B), the word count, from the
beginning of the Summary of Facts until, but excluding, the signature block, is:
3,304. The total word count is 5,099.
viii
TO THE FOURTH COURT OF APPEALS OF TEXAS:
The undersigned attorney submits this brief in support of his motion to
withdraw. This is an appeal from a judgment revoking community supervision
(probation), upon Appellant’s plea of true. 1
Statement of the Case
The Appellant, Brandon Master, was charged by information with one count
of intoxication assault in cause number 2010CR4791W. (CR at 6). The information
alleged that the offense was committed on or about July 11, 2008. (CR at 6). The
information was filed with the clerk of the trial court on May 10, 2010. (CR at 7).
On May 10, 2010, Appellant entered a negotiated no-contest plea to the
charged offense. (CR at 8, 14, 16). The trial court, the Honorable Philip A. Kazen,
Jr. presiding, followed the terms of the plea agreement by finding Appellant guilty
of the charged offense and placing Appellant on community supervision for 10
years with a $1,500 fine. (CR at 87). Appellant was initially sentenced to shock
probation, so the term of community supervision actually began on December 8,
2010. (CR at 93, 97).
On October 1, 2014, the supervision officer filed a Violation Report which
stated that Appellant had violated several conditions of his probation. (CR at 116-
117). The supervision officer noted that three prior violation reports had been filed
1
In this brief, the terms “community supervision” and “probation” are used interchangeably.
1
and recommended revocation. (CR at 117). On October 1, 2014, the State filed a
“Motion to Revoke Community Supervision (Adult Probation).” (CR at 118-119).
The motion alleged that Appellant violated a number of the conditions of
community supervision, including Condition No. 2, which required him to submit
to drug testing on specific dates in January, July, August and September of 2014.
(CR at 118). The motion further alleged that Appellant failed to keep “gainful
employment,” failed to report a change of address, failed to pay fines and fees,
failed to complete community service hours, and failed to maintain a daily curfew.
(CR at 118-119).
On December 9, 2014, an amended motion to revoke was filed to add the
allegation that Appellant committed the new offense of failure to identify on or
about December 1, 2014. (CR at 121). A second amended motion to revoke was
filed on January 21, 2015 to add allegations that Appellant failed to submit to drug
testing in January 2015, and also possessed drug paraphernalia. (CR at 129).
On February 5, 2015, the trial court, the Honorable Kevin M. O’Connell
presiding, held an evidentiary hearing on the motion to revoke. (1 RR at 1). On
February 6, 2015, the trial court, after having heard Appellant’s plea of true and the
evidence presented by the parties, found that Appellant violated nine separate
conditions of probation. (2 RR at 12). The trial court revoked Appellant’s
probation and sentenced him to imprisonment in the Institutional Division of the
2
Texas Department of Criminal Justice for 10 years, with a $1,500.00 fine. (2 RR at
12-13)(CR at 132). The sentence runs concurrently with the sentence and fine
imposed in cause number 2010CR4792W. (2 RR at 13)(CR at 132).
On February 24, 2015, Appellant’s pro se notice of appeal was timely filed
with the clerk of the trial court. 2 (CR at 134). The trial court accurately certified
that Appellant has a limited right of appeal from the revocation, but not the
underlying conviction. (CR at 131). On March 16, 2015, the trial court appointed
the Bexar County Public Defender’s Office to represent Appellant on appeal. (CR
at 141). This appeal follows.
No Meritorious Issues Present for Review
In compliance with the requirements of Anders v. California, 386 U.S. 738
(1967) and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), the
undersigned, court-appointed attorney states that he has diligently reviewed the
entire record in this cause and the law applicable thereto, and, in his opinion, has
determined that this appeal is wholly frivolous and without merit in that the record
reflects no reversible error, and no issues for review upon which an appeal may be
predicated.
2
The notice of appeal was mailed to the clerk of this court on February 19, 2015. (CR at 135).
3
Summary of Facts
Brandon Master, the Appellant, was charged by information with one count
of the felony offense of intoxication assault in cause number 2010CR4791W. (CR
at 6). The information alleged that the offense was committed on or about July 11,
2008. (CR at 6). The information was filed with the clerk of the trial court on May
10, 2010. (CR at 7).
On May 10, 2010, Appellant entered a negotiated no-contest plea to the
charged offense. (CR at 8, 14, 16). The trial court, the Honorable Philip A. Kazen,
Jr. presiding, followed the plea agreement by finding Appellant guilty of the
charged offense and placing him on probation for 10 years, with a $1,500.00 fine.
(CR at 87). Appellant was initially sentenced to shock probation, so the term of
probation began on December 8, 2010. (CR at 93, 97).
On October 1, 2014, the State filed a “Motion to Revoke Community
Supervision (Adult Probation).” (CR at 118-119). Two amended motions to revoke
were filed to allege additional violations. (CR at 121, 129).
A revocation hearing was held in the trial court on February 5, 2015, the
Hon. Kevin M. O’Connell, presiding. (1 RR at 1). Appellant was represented by
counsel. (1 RR at 2). The attorney for the State proceeded on the “Second
Amended” motion to revoke probation. (1 RR at 5)(CR at 128-130). The trial court
asked Appellant how he pled to the first allegation, that he failed to submit to drug
4
testing on September 19, 2014 as required by condition number 2 of the probation
agreement. (1 RR at 4). Appellant replied that the allegation “is true.” (1 RR at 4).
Appellant said the allegation that he failed to submit to drug testing on September
10, 2014 was “[t]rue with an explanation.” (1 RR at 5). He also pleaded “true with
an explanation” to allegations that he failed to submit to drug testing on January 2,
2014, on July 18, 2014, and on August 16, 2014. (1 RR at 5-6).
Appellant pleaded “[n]ot true” to allegations that he failed to show proof of
employment in violation of condition number 4 and failed to report a change of
address in violation of condition number 9-A. (1 RR at 6-7). He pleaded “[t]rue
with an explanation” to the allegation that he failed to pay certain fees and costs in
violation of condition number 10. (1 RR at 9). He also pleaded “[t]rue with an
explanation” to allegations that he failed to complete 350 hours of community
service in violation of condition number 10, failed to maintain curfew in violation
of condition number 37, and committed the new offense of failure to identify
himself on December 1, 2014, in violation of condition number 1. (1 RR at 9-10).
The trial court entered pleas of “not true” for Appellant on the remaining
allegations and asked Appellant to provide his explanations for his pleas of true. (1
RR at 12). Appellant explained that he missed the scheduled drug test on
September 19, 2014 because he working that day “and trying to make ends meet.”
(1 RR at 12). He said he missed the drug test on January 2, 2014 because he was
5
also working that day. (1 RR at 14). Appellant offered no explanation for his
failure to pay fines and restitution, but told the trial court he now has a job and
would be able to make payments in the future. (1 RR at 15). Appellant claimed the
supervising officer said he “didn’t have a curfew” so long as he was working. (1
RR at 15). He explained the failure-to-identify allegation by saying he was
“flustered and nervous” and gave the police his girlfriend’s last name by mistake.
(1 RR at 16).
The prosecutor called her first witness, Ronald Jimenez. Jimenez is a Bexar
County probation officer. (1 RR at 17). He supervised Appellant. Jimenez said that
every time he asked Appellant to submit to a drug test, “he would either go the
next day or just not go at all.” (1 RR at 19). Appellant did not submit to a drug test
as requested on July 18, 2014 or on August 16, 2014. (1 RR at 21). Appellant
never provided Jimenez with proof of employment. (1 RR at 19, 23). He did not
report to Jimenez during November and December of 2014. (1 RR at 27). Jimenez
testified that he knew Appellant violated his curfew on September 30, 2014,
because Jimenez went to Appellant’s residence that day and he wasn’t there. (1 RR
at 28). Jimenez denied telling Appellant that he didn’t have a curfew so long as he
was working. (1 RR at 31).
Edgar Santiago is also a Bexar County probation officer. (1 RR at 34). He
went to Appellant’s residence with Jimenez on January 15, 2015 for a “visit.” (1
6
RR at 35). Appellant was alone in the apartment and said his girlfriend hadn’t been
there for four days. (1 RR at 35-36). Santiago found a pipe used for smoking
“crack” or marijuana on Appellant’s bed. (1 RR at 38). He also found a knife with
an eight-inch blade. (1 RR at 38). Appellant said the knife was his, but not the
pipe. (1 RR at 40). The knife was a violation of probation because Appellant was
not supposed to possess any weapons. (1 RR at 42).
Defense counsel called Bill Bohneblust to testify. He is also a Bexar County
probation officer. (1 RR at 45). Bohneblust supervised Appellant “for about a
year” and had “no trouble” with him. (1 RR at 45). He supervised Appellant in
2013 and 2014. (1 RR at 49).
The revocation hearing resumed the next day. (2 RR at 1). Appellant pleaded
“true with an explanation” to the allegation that he violated condition number 2 by
failing to submit to drug testing on January 16, 2015. (2 RR at 4). He entered the
same plea to the allegations that he violated condition number 6-C by possessing
the pipe and violated condition number 11 by possessing the knife. (2 RR at 4).
Appellant blamed transportation problems for his failure to submit to the drug test
on January 16, 2015. (2 RR at 5). He said the pipe was not his, but admitted that he
owned the knife that was found in his apartment. (2 RR at 5-6).
Defense counsel asked the trial court to continue Appellant’s probation. (2
RR at 8-9). The prosecutor reminded the trial court of Appellant’s many prior
7
violations. (2 RR at 10-11). The trial court found that Appellant violated the
conditions of his probation. (2 RR at 12). He explained that his finding was based
on the testimony presented and on Appellant’s plea of “true.” (2 RR at 12). The
trial court specifically found that Appellant violated conditions 2 (six separate
times), 4, 9, 10, 11, 20, 37, and 6-C. (2 RR at 12). The trial court revoked
Appellant’s probation and sentenced him to 10 years of imprisonment in the Texas
Department of Criminal Justice with a $1,500.00 fine. (2 RR at 13)(CR at 132-
133).
Summary of the Argument
In the professional opinion of the undersigned counsel for Appellant, after a
diligent search of the record and of the applicable law, there is no reversible error
reflected in the record. Therefore, this appeal is without merit and frivolous.
Summary of Facts Pertinent to Anders v. California
The record in this case clearly reflects that the trial court had before it
Appellant’s plea of true to various allegations that he violated the conditions of his
probation. Appellant’s plea of true, standing alone, was sufficient to support the
trial court’s decision to revoke his probation. The State also provided the testimony
of two probation officers to substantiate allegations that Appellant violated the
conditions of probation. So the trial court did not abuse its discretion in revoking
8
Appellant’s probation because the trial court’s ruling was supported by a
preponderance of the evidence.
Moreover, the record does not indicate that Appellant received ineffective
assistance of counsel, and does not indicate that there are any jurisdictional defects.
The record also reflects that Appellant’s plea of “true with an explanation” was
voluntary and the sentence imposed was within statutory range of punishment. In
short, undersigned counsel can find no meritorious issues for review to raise on
Appellant’s behalf. As such, this appeal is frivolous and without merit.
9
Argument and Authorities
Standard of review.
The trial court’s decision to revoke probation is reviewed on appeal for an
abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).
In a probation revocation hearing, the State must prove by a preponderance of the
evidence that the probationer violated a condition of his or her probation. Cobb v.
State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). The trial court does not abuse
its discretion if the order revoking probation is supported by a preponderance of
the evidence. Rickels, 202 S.W.3d at 763-64. The evidence meets this standard if
the greater weight of the credible evidence creates a reasonable belief that the
defendant violated a condition of his probation. Duncan v. State, 321 S.W.3d 53,
57 (Tex. App. ––Houston [1st Dist.] 2010, pet. ref’d). The evidence must be viewed
in the light most favorable to the trial court’s ruling. Cardona v. State, 665 S.W.2d
492, 493 (Tex. Crim. App. 1984).
In a revocation proceeding, the trial court is the “sole judge of the credibility
of witnesses and the weight to be given to their testimony.” Hacker v. State, 389
S.W.3d 860, 865 (Tex. Crim. App. 2013). To support the trial court's order to
adjudicate guilt, the State need only establish one sufficient ground for revocation.
Duncan, 321 S.W.3d at 57. A plea of true to a violation, standing alone, is
sufficient to support the trial court’s order revoking Appellant’s probation. Cole v.
10
State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979); Hays v. State, 933 S.W.2d
659, 661 (Tex. App. – San Antonio 1996, no pet.); Duncan, 321 S.W.3d at 58.
There is no reason for a trial court to disregard a plea of true, even if defensive
issues are later presented. Id.
The greater weight of the evidence supports revocation.
Here, Appellant pleaded true to several of the allegations that he violated
conditions of probation, including the allegation that he violated condition number
2 by failing to submit to drug testing on September 19, 2014. (1 RR at 4). He also
pleaded “true with an explanation” to many of the other allegations, including
allegations that he failed to pay required fees and perform community service
hours. (1 RR at 9-10, 15). His plea of true, standing alone, provides sufficient
evidence to support revocation. Cole, 578 S.W.2d 129. The trial court also heard
testimony from two probation officers that Appellant missed drug tests, didn’t
comply with curfew, and possessed a prohibited knife. (1 RR at 21, 28, 38). The
weight of this evidence creates a reasonable belief that Appellant violated one or
more conditions of probation and negates a finding that the trial court abused its
discretion in revoking Appellant’s probation. See Rickels, 202 S.W.3d at 763-64.
11
So, unless Appellant can show either that counsel was ineffective at the revocation
hearing, or that there is a jurisdictional defect, 3 he has no appealable issues.
The record does not indicate ineffective assistance of counsel.
A defendant in a revocation proceeding is entitled to effective assistance of
counsel, unless counsel is waived. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(d)
(West 2015); see Lugaro v. State, 904 S.W.2d 842, 843 (Tex. App. – Corpus
Christi 1995, no pet.). In a claim that a defendant received ineffective assistance of
counsel, the defendant bears the burden of establishing ineffective assistance by a
preponderance of the evidence. Yabrra v. State, 890 S.W.2d 98, 112 (Tex. App. –
San Antonio 1994, pet. ref’d). The test for ineffective assistance of counsel is
derived from the Supreme Court case Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by the Texas Court of Criminal
Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). In
order for counsel to be deemed ineffective, it must be shown that counsel’s
representation “fell below an objective standard of reasonableness” and there is the
probability that, but for counsel’s deficient performance, the result would have
been different. Id. at 55. The test is applied to the “totality of the representation”
rather than to isolated acts or omissions of trial counsel, Ex parte Raborn, 658
3
Jurisdictional defects which render a judgment void may be raised in the context of an appeal
of a probation revocation. Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001); Duncan,
321 S.W.3d at 57.
12
S.W.2d 602, 605 (Tex. Crim. App. 1983), and is applied at the time of the
proceeding, not through hindsight. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.
Crim. App. 1986). It is rare for the record in a direct appeal to contain sufficient
information to permit an appellate court to evaluate the merits of a claim of
ineffective assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
The Strickland test requires an accused to show that his or her counsel’s
representation fell below an objective standard of reasonableness and that the
deficient performance prejudiced the defense. In meeting the second prong, that
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Ex
parte Wilson, 724 S.W.2d 72, 74 n. 1 (Tex. Crim. App. 1987). Thus, the defendant
must show that he was prejudiced as a result of deficient attorney performance.
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999).
Undersigned counsel has searched the record, and has not found any facts
that suggest that reversible error occurred in the revocation proceeding. Appellant
may argue that trial counsel should not have allowed him to plead true, since that
plea standing alone gave the trial court authority to revoke his probation. However,
that argument would not be meritorious. The appellate court will not second-guess
trial counsel’s strategy, nor is the court privy to the reasons counsel may have
advised Appellant to plead true. Judicial scrutiny of counsel’s performance must be
13
highly deferential, and a reviewing court “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance[.]” Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
Thus, “the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’”
Id.
With regard to any challenge to the propriety of the sentence, trial counsel
failed to preserve error by failing to object or file a motion for new trial. Mercado
v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986). However, when the
punishment assessed by the court is within the statutory range for the underlying
offense, “it is not within the province of an appellate court to pass upon the
propriety of the sentence.” Puga v. State, 916 S.W.2d 547, 550 (Tex. App. – San
Antonio 1996, no pet.).
Appellant was convicted of intoxication assault, a third-degree felony. See
TEX. PENAL CODE ANN. § 49.07 (West 2015). The punishment range for that
offense is imprisonment in the Texas Department of Criminal Justice for any term
of not more than 10 years or less than 2 years, with a possible fine not to exceed
$10,000. TEX. PENAL CODE ANN. § 12.34 (West 2015). The sentence was within
the statutory range. (CR at 132). Moreover, the trial court gave Appellant credit for
the time he had already served. (2 RR at 13)(CR at 132).
14
The punishment is within the range established by the Legislature, and, as
such, does not violate the constitutional prohibitions against cruel and unusual
punishment under either U.S. CONST. art. VIII or TEX. CONST. art. I § 13; Harris v.
State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983). Nor does the undersigned
attorney discern anything in the record to suggest that the punishment assessed is
grossly disproportionate to the crime. See Harmelin v. Michigan, 501 U.S. 957,
111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991). Additionally, no objection was made to
the punishment assessed at the revocation hearing. (2 RR at 13).
The facts in the present case do not support an assertion that Appellant
received ineffective assistance from his revocation counsel. The totality of the
representation appears to be sound. Revocation counsel made sure that Appellant
was allowed to offer his explanations for why he failed to comply with the various
conditions of probation. She also called one of Appellant’s former supervising
probation officers to testify that he supervised Appellant for a year and “didn’t
have any problems with him.” (1 RR at 47). In addition, revocation counsel made
sure that the sentence imposed in this cause ran concurrently with the sentence
imposed in cause number 2010CR4792W, and made sure that Appellant was given
credit for his “back time.” (2 RR at 12-13). For these reasons, the record does not
support a finding that defense counsel’s performance fell below an objective
15
standard of reasonableness under Strickland. Therefore, it is unnecessary to reach
the second prong of the analysis.
There are no jurisdictional defects.
A defect which renders a sentence void may be raised at any time. Ex parte
Beck, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996). But the sentence in this case is
not void on any ground and there are no jurisdictional defects apparent from the
record. The 227th District Court of Bexar County, Texas, has jurisdiction over
felony cases, such as this one. TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2005);
TEX. GOV’T CODE ANN. §§ 24.139, 24.405 (West 2009). The charging instrument
was in proper form, pursuant to TEX. CODE CRIM. PROC. ANN. art. 21.21 (West
2009), and correctly alleged the offense of intoxication assault. (CR at 6). The
charging instrument conferred jurisdiction on the trial court by virtue of TEX.
CONST. art. V § 8.
Conclusion
After a thorough review of the record, the undersigned attorney is unable to
identify any potentially meritorious points on appeal. It is the professional opinion
of the undersigned counsel that the appeal is frivolous and without merit. 4 See
Anders v. California, 386 U.S. 738 (1967).
4
See Johnson v. United States, 360 F.2d 844, 846 n. 2 (D.C. Cir. 1966) (Burger, J. concurring):
“An attorney owes his first duty to the court . . . His oath requires him to be absolutely honest
even though his client’s interests may seem to require a contrary course.”
16
Counsel has executed an attached Certificate of Service certifying that he is
sending Appellant a copy of his Motion to Withdraw, and a copy of this Brief, with
an explanation of Appellant’s further rights regarding this appeal. High v. State,
537 S.W.2d 807 (Tex. Crim. App. 1978). Pursuant to the requirements of Anders v.
California, 386 U.S. at 744-45, and High v. State, 573 S.W.2d at 813, counsel has
documented that he has furnished Appellant with a copy of this brief. He has
notified Appellant of his right to obtain and review the record, and to file any brief
that he deems appropriate.
He has also provided Appellant with a motion for pro se access to the
appellate record to file with this Court if Appellant decides that he does wish to
review the record and file a pro se brief. See Kelly v. State, 436 S.W.3d 313, 318-
19 (Tex. Crim. App. 2014). Counsel for Appellant has attached documentation of
the letter advising Appellant of his rights and remedies, with instructions for filing
the motion for pro se access to the appellate record. See Anders, 386 U.S. at 744;
McMahon v. State, 528 S.W.2d 771, 772 (Tex. Crim. App. 1975); Kelly, 436
S.W.3d at 318-19.
17
Prayer
Counsel respectfully requests that he be allowed to withdraw from
representation of Appellant, and for all other relief that is fair and just.
Respectfully submitted,
/s/ Richard B. Dulany, Jr.
___________________________________
RICHARD B. DULANY, JR.
Assistant Public Defender
Bexar County Public Defender’s Office
101 W. Nueva St., Suite 370
San Antonio, Texas 78205
(210) 335-0701
FAX (210) 335-0707
richard.dulany@bexar.org
Texas Bar No. 06196400
ATTORNEY FOR APPELLANT
18
Certificate of Service
I hereby certify that a true and correct copy of the foregoing Appellant’s
Brief In Support of Motion to Withdraw has been delivered by electronic service to
the Bexar County District Attorney’s Office, Appellate Division, Paul Elizondo
Tower, 300 101 W. Nueva St., Suite 710, San Antonio, Texas 78205, on June 24,
2015.
I further certify that a true and correct copy of the foregoing brief, as well as
counsel’s motion to withdraw and letter outlining Appellant’s right to file a pro se
brief, and a motion for pro se access to the appellate record, were sent to: Brandon
Master, TDCJ# 01653759, Garza West Unit, 4250 HWY 202, Beeville, TX 78201,
by certified mail, return receipt requested, Article No. 7012 1640 0002 4217 6719,
on June 24, 2015.
/s/ Richard B. Dulany, Jr.
____________________________________
RICHARD B. DULANY, JR.
19
Appendix –
Letter advising Brandon Master of his rights under Anders v. California, with a
motion for pro se access to the appellate record.
20
NO. 04-15-00100-CR
IN THE
FOURTH COURT OF APPEALS
OF TEXAS
AT SAN ANTONIO, TEXAS
BRANDON MASTER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
APPELLANT’S MOTION FOR PRO SE
ACCESS TO THE APPELLATE RECORD
TO THE HONORABLE COURT OF APPEALS:
COMES NOW the Appellant in the above styled and numbered cause and
files this Motion for Pro Se Access to the Appellate Record.
I.
Appellant’s appointed counsel has filed a motion to withdraw and brief in
support of the motion, pursuant to Anders v. California, 386 U.S. 738 (1967).
II.
The undersigned Appellant wishes to exercise his right to review the
appellate record in preparing his pro se response to the Anders brief that court-
appointed counsel has filed. The undersigned Appellant now moves this Court to
provide him with free, pro se access to the appellate record, including the clerk’s
record and reporter’s record. See Kelly v. State, 436 S.W.3d 313, 318-19 (Tex.
Crim. App. 2014).
III.
The undersigned Appellant is presently incarcerated and lacks access to a
computer. For that reason, he respectfully requests that a paper copy of the
appellate record be provided to him. He also asks for a 30-day extension of time to
file his pro se brief.
IV.
This motion is addressed to the Fourth Court of Appeals, Cadena-Reeves
Justice Center, 300 Dolorosa St., Suite 3200, San Antonio, Texas 78205. This
motion is delivered to the Fourth Court of Appeals by U.S. Mail, on this the _____
day of _________, 2015.
WHEREFORE, PREMISES CONSIDERED, the Appellant respectfully
prays that the Court grant this Motion for Pro Se Access to the Appellate Record.
Respectfully submitted,
______________________________
Brandon Master
TDCJ# 01653759
Garza West Transfer Facility
4250 HWY 202
Beeville, TX 78102
APPELLANT PRO SE