Derrick Deshawn Gilbert v. State ( 2015 )

ACCEPTED
01-15-00144-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/7/2015 4:36:16 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00144-CR
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
9/8/2015 11:06:00 AM
CHRISTOPHER A. PRINE
Clerk
IN THE COURT OF APPEALS
OF TEXAS
FIRST SUPREME JUDICIAL DISTRICT
DERICK DESHAWN GILBERT, APPELLANT
VS.
STATE OF TEXAS, APPELLEE
APPELLANT’S BRIEF
TERRENCE GAISER
LAWYER FOR APPELLANT
2900 SMITH STREET, # 220
HOUSTON, TEXAS 77006
SBOT# 07572500
713/ 225-0666
tagaiser@aol.com
INDEX
INTERESTED PARTIES-------------------------------------------------------p.2
INDEX OF AUTHORITIES----------------------------------------------------p.3
PRELIMINARY STATEMENT-----------------------------------------------p.4
STATEMENT OF COUNSEL-------------------------------------------------p.5
STATEMENT OF THE CASE-------------------------------------------------p. 6
FARETTA V. CALIFORNIA---------------------------------------------p.6
PRETRIAL MOTIONS-----------------------------------------------------p.7
INDICTMENT & EVIDENCE--------------------------------------------p.7
PUNISHMENT HEARING ----------------------------------------------------p.10
CONCLUSION-------------------------------------------------------------------p.13
CERTIFICATE OF COUNSEL------------------------------------------------p.14
CERTIFICATE OF SERVICE-------------------------------------------------p.15
CERTIFICATE OF COMPLIANCE------------------------------------------p.15
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INTERESTED PARTIES
Hon. Denise Bradley, Judge
262nd District Court
Harris County Criminal Justice Center
1201 Franklin Street
Houston, Texas 77002
Ms. Erin Epley & Ms. Jamie Burro
Assistant District Attorneys (at Trial)
1201 Franklin Street
Houston, Texas 77002
Mr. Alan Curry
Assistant District Attorney (on Appeal)
1201 Franklin Street
Houston, Texas 77002
Mr. Derrick Deshawn Gilbert
Attorney Pro Se (at Trial)
Mr. Terrence Gaiser
Attorney for Appellant (on Appeal)
2900 Smith, Ste. 220
Houston, Texas 77006
Mr. Derrick Deshawn Gilbert., Appellant
TDCJ-ID 01077834
Eastham Unit
2665 Prison Road # 1
Lovelady, Texas 75851
2
INDEX OF AUTHORITIES
CASES:
Alvarez v. State, 566 S.W.2d 612
(Tex.Crim.App. 1978).-----------------------------------------------------------p.9
Anders v. California, 386 U.S. 738 (1967).-----------------------------------p.5
Birl v. State, 763 S.W.2d 860
(Tex.App.—Texarkana 1988 no pet.).------------------------------------------p.9
Collier v. State, 959 S.W.2d 621, 626
(Tex.Crim.App. 1997).-----------------------------------------------------------p.6
Combs v. State, 652 S.W.2d 804
(Tex.App.-Houston[1stDist.] 1983 no pet.).-----------------------------------p.13
Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525,
45 L. Ed. 2d 562 (1975).---------------------------------------------------------p.6
High v. State, 573 S.W.2d 807
(Tex.Crim.App.1978).------------------------------------------------------------p.5
Samuel v. State, 477 S.W.2d 611
Tex.Crim.App.1972).-------------------------------------------------------------p.13
Studer v. State, 799 S.W.2d 263
(Tex.Crim.App.1990).------------------------------------------------------------p.8
STATUTES & RULES:
Articles 21.02 & 21.03, V.A.T.S., Code of Criminal Procedure.-----------p.9
Sections, 29.02 & 29.03 TEX.PENAL CODE.--------------------------------p.7
CONSTITUTION:
United States Constitution, Eighth Amendment.-----------------------------p.13
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NO. 1407722
STATE OF TEXAS § IN THE DISTRICT COURT
§
VS. § HARRIS COUNTY,TEXAS
§
DERRICK DESHAWN GILBERT § 262ND JUDICIAL DISTRICT
APPELLANT’S BRIEF
DERRICK DESHAWN GILBERT appeals from a judgment of guilt
and seventy-five (75) year sentence for the offense of robbery by threats.
PRELIMINARY STATEMENT
On December 1, 2013, appellant was indicted for the offense of
aggravated robbery, in cause number 1407722. The indictment alleged the
use and exhibition of a deadly weapon, a knife. The indictment alleged two
prior sequentially committed and convicted felony offenses making
appellant an habitual offender. (TR. 14)
On May 7, 2014, the trial court went on record with regard to
appellant’s desire to represent himself. After a lengthy colloquy the court
granted appellant’s request and ordered that appellant’s appointed counsel,
Mr. Sam Maida, remain as standby counsel. (TR. 86 & R.2) On February 9,
2015, a jury was selected and sworn, and on the next day testimony
continued. On February 10, 2015, the trial court granted appellant’s motion
4
for an instructed verdict on the offense of aggravated robbery and submitted
the case to the jury on the offense of robbery by threats. (R.5, 9) The same
day the jury returned a verdict of guilty for the offense of robbery by threats.
(TR. 74) The following day, February 11, 2015, the jury heard evidence and
was charged on the issue of punishment. The jury assessed punishment at
seventy-five years.
Throughout the entire proceedings appellant did not offer a single
valid objection that was overruled or offer any evidence that was not
admitted.
STATEMENT OF COUNSEL
Inasmuch as counsel is of the opinion that this appellate record, by
itself, presents no reversible error and no error upon which a direct appeal
can be properly predicated, counsel will certify that this appeal is without
merit and the prosecution of this appeal is frivolous. 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), and cases decided under those
authorities counsel has reviewed the entire record of these cases and will set
out the reasons these appeals are frivolous.
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STATEMENT OF THE CASE
The indictment alleges that appellant on or about October 29, 2013,
did unlawfully while in the course of committing theft of property owned by
Syed Zaidi, with intent to obtain and maintain control of the property
intentionally and knowingly threaten and place the complainant in fear of
bodily injury and death, and did then and there use and exhibit a deadly
weapon, namely, a knife. (TR. 14)
Faretta v. California.
The trial court complied with the dictates of Faretta v. California,
422 U.S. 806, 95 S. Ct. 2525 45 L. Ed. 2d 562 (1975) and Collier v. State,
959 S.W.2d 621, 626 (Tex.Crim.App. 1997), and held a pretrial hearing
when appellant asked to proceed pro se. (R.2)
A record of the hearing is a virtual replay of the requirements set out
in Faretta and Collier. Appellant was aware of his right to appointed
counsel because he had court-appointed counsel, Mr. Sam Maida, at the time
of the hearing. The court had already appointed a private investigator to aid
in the defense. The court learned that although appellant had a seizure
disorder he did not have any mental issues. He finished the 10 th grade and
had a graduate equivalency degree, (GED). He had been through two
previous trials and never raised the issue of mental competency. He had
6
been through Job Corp and could read and write. He “stays” in the law
library when he is incarcerated. (R.2, 4-11) Appellant demonstrated a clear
understanding of the nature of the charges against him. (R.2, 12)
Appellant understood the range of punishment for the offense and
understood the enhancement paragraphs. (R.2, 12-14) He understood that
the rules of evidence and rules of procedure applied to him, and he would
have to follow them. (R.2, 15-19) The trial judge explained the severity of
the allegations and possible result. (R.2, 19-21) The court acceded to
appellant’s request for standby counsel and appointed Mr. Maida to that
position. The court carefully explained the extent of Mr. Maida’s role. (R.2,
19-20)
At no point in the record does it appear that appellant’s decision was
not voluntary, knowing and intelligent. This is bolstered by the fact that the
trial court granted his motion for instructed verdict.
Pretrial Motions.
Appellant received no adverse ruling on any pretrial motion. No error is
shown.
Indictment & Evidence.
The indictment for aggravated robbery tracks the language of Sections 29.02
and 29.03(a)(2), TEX.PENAL CODE, and alleges the offense of
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aggravated robbery. The indictment contains all the requisites of an
indictment and states all elements necessary for the State to prove at trial.
Articles 21.02 & 21.03, V.A.T.S., Code of Criminal Procedure. No motion
to quash or dismiss the indictment was filed. The indictment is not
fundamentally defective. No error is shown. Studer v. State, 799 S.W.2d
263 (Tex.Crim.App.1990).
The State offered the testimony of Syed Zaidi who was working the
desk at the Medical Center Inn and Suites at 9000 Main Street on the
evening of October, 29, 2013, when he saw someone just outside the locked,
main door. He pushed the button to allow entry. When the individual he
identified as appellant entered the door, he used a piece of white cloth to
prop the door open. Zaidi asked him to pick up the cloth. Appellant
refused. He approached Zaidi and said, “Hey man, I want to do it the easy
way,” then went behind the counter. Standing next to Zaidi he lifted his
shirt and displayed a knife handle stuck in his waist in what appeared to be a
plastic bag. Appellant took the money from the register. He made Zaidi get
down on his knees and told him, “If you call the police, I will come back and
kill you.” Sometime later he identified appellant in a lineup. (R.4, 11-37)
Officer Ted Adams, a robbery investigator for the Houston Police
Department, developed a suspect and had photos of the suspect. He went to
8
an apartment complex with the photo to find the suspect. When he
mistakenly walked into the business office at the apartments, instead of the
leasing office, appellant was using a computer. Appellant jumped up and
asked him who he was and who he was looking for. Adams was surprised
he had been so lucky. He walked out and called for backup. When it did not
arrive promptly, he attempted to detain appellant and ended up in a foot
chase before he could detain him. Later he was present at the lineup when
the complainant identified appellant as the robber. (R.4, 60-74)
When the State rested, appellant moved for an instructed verdict.
(R.4, 85-89) The following day the court granted the motion as to
aggravated robbery and proceeded to charge the jury on robbery by threat.
The jury found appellant guilty of robbery. (R.5, 4-16)
The cases cited by appellant, and those perused by the trial court,
demonstrate the validity of the court’s ruling and that this evidence is amply
sufficient to sustain the jury verdict. Alvarez v. State, 566 S.W.2d 612
(Tex.Crim.App. 1978); Birl v. State, 763 S.W.2d 860 (Tex.App.—
Texarkana 1988 no pet.).
There was no objection to the jury charge. There is no possible claim
of egregious harm.
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Punishment.
Appellant was arraigned and pled “not true’ to the enhancement
allegations of the indictment.
Officer Adams testified that after he arrested appellant, he obtained
consent to search appellant’s apartment from appellant’s mother, the lessee.
He obtained sunglasses, a watch and gold chain, white hats, and some shirts.
All of the items were similar to items seen on videos being worn by the
robber in a series of serial robberies where the modus operandi was similar
to the one used in the Zaidi case.
The State presented evidence from the complainants in the serial
robbery cases. Yesenia Reyes identified appellant as the perpetrator of a
case on August 10, 2013, when she was working at the desk as a night
auditor at the Holiday Inn Express at 8080 Main Street. Appellant jumped
the counter and said, “Give me all the fuckin’ money!” She ran and saw
appellant go to the cash register. (R.6, 49-55)
Anthony Ellison was working at the desk at the Quality Inn and Suites
at 2364 Southwest on October 12, 2013, when appellant entered, pointed a
gun at him, and took the cash. Appellant told him, Give me the money or
I’ll kill you.” (R,6, 64-69)
10
Laurel Henderson worked at Prime Storage at 9300 Main Street on
October 1, 2013. A person entered the business office after hours using the
ruse that he was there to make a payment. When he got in, he told the clerk
he wanted the money. He told her he had a weapon. He pulled up his t-shirt
to expose what looked like the handle of a pistol. He said, “Don’t make me
use this.” He took the cash and told her not to call the police or he would
come back and kill her. (R.6, 103-115) The video-surveillance and still
photos from the video of the robbery were identified by Officer Adams as
those of the appellant. (R.6, 20)
Detective Juan Quintana of the Webster Police Department
investigating a case involving a complainant, Ashley Molina, and the
November 3, 2013, robbery at the Springhill Suites. (R.6. 125-129) He
developed a suspect through the Houston Police Department and created a
photo lineup. (R.6, 129-132)
Ashley Molina worked at the Springhill Suites in November of 2013.
She was working the desk at about two in the morning when appellant
entered, engaged her in conversation, looked at a room and left. He returned
in a few minutes, pulled what Molina thought was a gun in a bag, took the
money and threatened her and her family. During the robbery he groped her
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breast and butt. She identified appellant in Quintana’s photo lineup. (R.6,
125-150)
The enhancement paragraphs of the indictment alleged that before the
commission of the current offense, on March 12, 1992, in the 339 th District
Court of Harris County, Texas, appellant was convicted of delivery of a
controlled substance in cause number 0620161. The indictment further
alleged that after the conviction in 0620161 was final and before he
committed the current offense, he committed the offense of assault-public
servant and was convicted on October 2, 2002, in the 182nd District Court of
Harris County Texas in cause number 902224. (TR. 14)
Travis Rawls, a crime scene investigator with the Harris County
Sheriff’s Department, was qualified as an expert witness in fingerprint
analysis and comparison. He testified that he compared latent fingerprint
exemplars that he took from appellant with fingerprints contained within jail
cards and penitentiary packets from the Texas Department of Criminal
Justice, Institutional Division. (R.6, 79-87) State’s Exhibits # 40 and # 42
were admitted without objection. They contained penitentiary documents
(R.6, 91) Officer Rawls connected appellant to the judgments of conviction
in both documents. State’s Exhibit # 42 contained a judgment of conviction
for the offense of delivery of a controlled substance on March 12, 1992, in
12
the 339th District Court. State’s Exhibit # 40 contained a judgment of
conviction for the offense of assault-public servant on October 2, 1992, in
the 182nd District Court. The judgment shows the offense in the latter case
was committed on February 7, 2002. (R.8, State’s Exhibits # 40 and # 42)
The finding that the enhancement paragraphs are true is supported by
sufficient evidence. The punishment is within the range of punishment set
by statute. Samuel v. State, 477 S.W.2d 611 (Tex.Crim.App.1972); Combs
v. State, 652 S.W.2d 804 (Tex.App.-Houston[1stDist.] 1983 no pet.).
There is no viable contention that the punishment is a violation of the Eighth
Amendment’s proscription against cruel and unusual punishment. United
States Constitution, Amendment Eight.
There is no error in the punishment proceedings.
CONCLUSION
Appellant was indicted for the offense of aggravated robbery. He
knowingly and voluntarily waived his right to counsel and proceeded pro se.
His motion for instructed verdict as to a deadly weapon was granted. He
was convicted of robbery. The punishment evidence showed he was an
habitual offender as alleged in the indictment. The punishment assessed by
the jury was within the range set by law.
This is a frivolous appeal. This case should be affirmed
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Respectfully Submitted,
S/Terrence Gaiser___________
TERRENCE GAISER
LAWYER FOR APPELLANT
2900 SMITH, STE. 220
HOUSTON, TEXAS 77006
SBN: 07572500
713/225-0666
tagaiser@aol.com
CERTIFICATE OF COUNSEL
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),
counsel for DERRICK DESHAWN GILBERT, on this appeal, states that he
has diligently reviewed the entire appellate record in this case and the law
applicable thereto and, in his opinion, the appeal of the judgment of
conviction in this case is without merit and is frivolous because the record
reflects no reversible error. Further it is the opinion of the undersigned that
there are no grounds upon which an appeal can be predicated.
The undersigned is serving a copy of this brief on the appellant. At
the same time the undersigned informed appellant by letter that it is
counsel’s view that the appeal is wholly without merit and that he has the
right to view the record and to file a pro se appellate brief should he so
desire. Appellant has been informed that the court will be requested to make
the record available to him and to grant an extension of time for filing of a
pro se brief, if desired.
S/ Terrence Gaiser___
TERRENCE GAISER
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CERTIFICATE OF SERVICE
I CERTIFY THAT A COPY OF THE ABOVE AND FOREGOING
APPELLANT’S BRIEF IS BEING SERVED ON ALL PARTIES OF
RECORD ACCORDING TO THE RULES.
S/ Terrence Gaiser____
TERRENCE GAISER
CERTIFICATE OF COMPLIANCE
I CERTIFY THAT THE ABOVE AND FOREGOING
APPELLANT’S BRIEF FILED IN THE ABOVE-STYLED CASE
CONTAINS LESS THAN 3000 WORDS ACCORDING TO THE
MICROSOFT WORD PROGRAM USED TO GENERATE THIS
DOCUMENT.
S/ Terrence A. Gaiser
TERRENCE A. GAISER
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